DECEMBER 1988
COMMISSION DECISIONS
12-13-88
12-15-88

Southern Ohio Coal Company
The Helen Mining Company

LAKE 87-95-R
PENN 86-94-R

Pg. 1669
Pg. 1672

LAKE 88-67-M
CENT 88-77-M
KENT 88-171-D

Pg. 1679
Pg. 1683
Pg. 1689

WEVA 88-218-D
WEVA 88-243
KENT 88-21
PENN 88-155
WEVA 88-139
PENN 88-293-D
LAKE 88-130-ff
VA
88-22-M
SE
88-50
KENT 88-175-D

Pg.
Pg.
Pg.
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LAKE 88-89
WEVA 88-281-D
PENN 88-227

Pg. 1776
Pg. 1778
Pg. 1780

WEST 88-231
WEST 89-3-R
VA
87-8
WEVA 89-31-D

Pg.
Pg.
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Pg.

ADMINISTRATIVE LAW JUDGE DECISIONS
12-08-88
12-08-88
12-12-88
12-12-88
12-16-88
12-20-88
12-22--88
12-22--88
12-23-88
12-23-88
12-27-88
12-28-88
12-29-88
12-29-88
12-29-88
12-30-88

Lincoln Sand & Gravel Co.
Marion County Limestone Co., Ltd.
Sec. Labor for Patrick Stanfield v. National
Mines Corporation
James D. Grimes v. Consolidation Coal Co.
Consolidation Coal Company
Karst Robbins Coal Company, Inc.
Randy Rothermel, d/b/a Tracey & Partners
Consolidation Coal Company
Randy G. Cunningham v. Consolidation Coal Co.
Jackie Sanders v. Gosser Construction Co.
James River Limestone Co., Inc.
Faith Coal Company
Sec. Labor for Ford Allen Amos v. Nally and
Hamilton Enterprises, Inc.
Zeigler Co&l Company
Sec. Labor for Raymond Long v. Cannelton Industries
Pennsylvania Electric Company

1701
1702
1708
1716
1734
1748
1749
1750
1769
1771

ADMINISTRATIVE LAW JUDGE ORDERS
11-10-88
12-22-88
12-23-88
12-27-88

Mid-Continent Resources
Mid-Continent Resources
Adkins Coal Corporation
Sec. Labor for David S. Haynes v. DeCondor Coal Co.

1791
1798
1808
1810

DECEMBER 1988

Review was granted in the following cases during the month of December:
Local Union 2333, District 29, United Mine Workers of America v. Ranger
Fuel Corporation, Docket No. WEVA 86-439-C. (Judge Melick, Decision on
Remand, October 25, 1988)
Secretary of Labor on behalf of Joseph Gabossi v. Western Fuels-Utah,
Docket No. WEST 86-24-D. (Judge Morris, Decision on Remand, October 24, 1988)
Rochester & Pittsburgh Coal Company v. Secretary of Labor, MSHA, Docket
No. PENN 88-152-R. (Judge Melick, November 17, 1988)
Review was denied in the following case during the month of December:
Secretary of Labor, MSHA v. Southern Ohio Coal Company, Docket No.
WEVA 86-190-R, WEVA 86-254. (Judge Maurer, Decision on Remand, October
31, 1988)

COMMISSION DECISIONS

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

December 13, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

v.

Docket Nos. LAKE 87-95-R
LAKE 88-26

SOUTHERN OHIO COAL COMPANY

BEFORE:

Ford B. Ford, Chairman; Backley, Doyle, Lastowka, and Nelson,
Commissioners

ORDER

BY THE COMMISSION:
In this matter pending on review, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982)("Mine Act"
or "Act"), counsel for the Secretary of Labor has filed a motion
requesting vacation of the citation and associated civil penalty
assessment in issue and dismissal of the proceeding. Southern Ohio Coal
Company ("SOCCO") has filed a response indicating that it has no
objection to the granting of the Secretary's motion. For the following
reasons, we grant the motion.

On July 22, 1987, an inspector of the Department of Labor's Mine
Safety and Health Administration ("MSHA") issued·SOCCO a citation
alleging a violation of 30 C.F.R. § 70.lOO(a), the mandatory health
standard that, in general, requires operators of underground coal mines
to maintain continuously an average concentration of respirable dust in
mine atmospheres at or below 2.0 milligrams of dust per cubic meter of
air ("mg/m3") ... The citation was based on analysis of twelve respirable
dust samples obtained by MSHA inspectors conducting a respirable dust
survey in a particular longwall section of SOCCO's Meigs No. 2 underground coal mine. The samples indicated an average respirable dust
concentration of 2.1 mg/m3, a level in excess of that permitted under
section 70.lOO(a). SOCCO contested the citation and this matter
proceeded to hearing before Commission Administrative Law Judge Avram
Weisberger. In his.decision, Judge Weisberger concluded that SOCCO had
violated the standard, affirmed the citation, and assessed a $259 civil

1669

~na1 il:l:iy 'f.o'r 'the 'viiolatfon.

10 FMSHRC 923 (July '1988}(~LJ}. ·w~
subsequently granted SOCCO's petition for discretionary review, which,
inter alia, challenged the dust sampling procedures used by the MSHA
inspectors in this case.

After the submission of SOCCO's brief on review, the Secretary
filed with us a Motion to Vacate Citation and to Dismiss Proceeding. Ih
this motion, the Secretary states that one of the twelve samples upon
which the citation was based was not obtained in conformance with MSHA''s
s?mpling procedures. The Secretary further states that if the invalid
sample wete deleted from the dust analysis, the average ·dust concentration for the mine section in question would be 1.67 mg/m3, a
permissible level. The Secretary requests that we enter an order
vacating the citation and assessed civil penalty and dismissing this
proceeding. On November 18, 1988, the Commission issued an order
directing SOCCO to file a written response to the Secretary's motion.
On November 29, 1988, SOCCO filed a Memorandum in Response, in which it
asserts that is has no objection to the granting of the Secretary's
motion and the dismissal of this proceeding.
As we have held, our "responsibility under the Mine Act is to
ensure that a contested case is terminated, or continued, in accordance
with the Act. 11 Youghiogheny & Ohio Coal Co., 7 FMSHRC 200, 203
(February 1985) ( 11 Y&0 11 ) . A motion by the Secretary to vacate a citation
or order and to dismiss a review proceeding will be granted if "adequate
reasons" to do so are present. See, ~· Y&O, supra; Kocher Coal Co.,
4 FMSHRC 2123, 2124 (December 1982); Climax Molybdenum Co., 2 FMSHRC
2748, 2750-51 (October 1980), aff'd, 703 F.2d 447 (10th Cir. 1983).
Here, the Secretary asserts that it now appears to her that a necessary
factual predicate for the violation in issue is lacking. As the
prosecutor charged with enforcement of the Mine Act, the Secretary has
reached a determination that she should seek withdrawal of this
proceeding. ff. Roland v. Secretary of Labor, 7 FMSHRC 630, 635-36 (May
1985), aff'd, No. 85-1828 (10th Cir. July 14, 1986). The operator has
not objected to the Secretary's motion or claimed that it will be
prejudiced by the requested action. No reason otherwise appears on this
record as to why the motion should not be granted.

1670

Accordingly, upon consideration of the Secretary's motion and the
operator's response, the Secretary's motion is granted. The citation
and assessed civil penalty are vacated. Our direction for review is
also vacated and this proceeding is dismissed.

~~

~~
Richard V. Backley, Commissioner

J~ A. Doyle, CommiSS=ner

/-1

\/

~

A.

I '-t~ ()

Lasto~,

Commissioner

-n -

r-

d~f_.J...-~··J 1LUL4-~·-1'-'
L. Clair Nelson, Commissioner

Distribution
David A. Laing, Esq.
Porter, Wright, Morris & Arthur
41 South High Street
Columbus, Ohio 43215
Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suit.e 1000
Falls Church, Virginia 22041

1671

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

December 15, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

v.

Docket Nos. PENN 86-94-R
PENN 86-181

THE HELEN MINING COMPANY

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

DECISION

BY THE COMMISSION:
This consolidated contest and civil penalty proceeding arises
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seg. (1982) ("Mine Act"). The issue before us is whether Commission
Administrative Law Judge Avram Weisberger properly found that a
violation of 30 C.F.R. § 75.200, the mandatory roof control safety
standard for.underground coal mines, was not caused by the unwarrantable
failure of The Helen Mining Company ("Helen") to comply with the
standard. 9 FMSHRC 1095 (June 1987)(ALJ). For the reasons that follow,
we affirm the judge's decision.
The relevant facts are undisputed. The Homer City Mine is an
underground coal mine located in Homer City, Pennsylvania. Homer City
is the only underground coal mine in the country that utilizes the
shortwall mining method. The shortwall method is a pillar extraction
system whereby the roof is temporarily supported by hydraulicallypressurized shields while a remote-controlled continuous miner cuts 10f oot deep swaths from the face. The extracted coal is removed from the
face area by a conveyor belt or pan line.
The hydraulic shields are
advanced into the void created by the cut as the face is advanced and
are repressurized against the newly exposed roof. As the shields move
forward, the roof that the shields had been supporting "caves" or falls
creating a "gob" area behind the shields. If, because of the structure
of the overburden, ~he main roof does not break, it will start to bend,
exerting extreme pressure in the roof over the tops of the shields.
Although the shields support this pressure, the roof between the inby

1672

end of the shields and the face will show signs of stress and start to
fracture, resulting in small roof falls or "pot-outs." Tr. 426-27, 433,
435-36; Battistoni Deposition, p. 16.
In August 1985, Helen installed in its H-Butt No. 4 shortwall
section new Gullick Dobson shields that Helen's engineers had designed
to meet the specific needs of the Homer City Mine. l/ On January 7,
1986, Helen began using a new continuous mining machine, the Joy 14-CM,
in the section. Since the remote controls on the Joy miner differed
significantly from those of the machine that had been previously used,
operators of the Joy 14-CM experienced some difficulty in precisely
controlling the cuts made. The operators overcut the coal seam creating
changes in the height of the roof of the mine. "Step-ups" in the roof
generated by the overcuts ranged up to 7 inches and averaged between 3-4
inches. 2/
On January 28, 1986, William McClure, an inspector with the
Department of Labor's Mine Safety and Health Administration ("MSHA"),
conducted an inspection of the mine. McClure was accompanied by his
supervisor, Robert Nelson. Upon arriving at the H-Butt No. 4 shortwall
section, McClure noted that the first four ~hields, located in the
headgate entry area, had cribbing installed between their main canopies
and the mine roof, due to gaps in the roof created by pot-outs. McClure
also observed that of the 53 shields, 13 had forepole pads that were not
in contact with the roof. The inspector determined that four of the 13
forepole pads were not in contact due to pot-outs and the remaining nine
were not in contact because a step-up had been created in the roof on
the prior pass across the face. McClure measured gaps of 10 to 13
inches from the tops of the forepole pads to the roof on at least four
of the shields, and lesser gaps of 2 to 10 inches. over the other nine
shields. The 13 forepole pads not in contact with the roof were within
4 feet of the face.
The Homer City mandatory roof control plan required that:
The space in between the shield canopy extensions
and the coal face shall not exceed 4 feet. Where
this spacing is exceeded, roof support shall be
installed not to exceed 4 foot spacing before any
work or travel is permitted in this unsupported
area, except for the purpose of installing supports.

l/

The shields have five major components: (1) the main canopy, which
supports up to 688 tons; (2) the forward canopy, which supports up to 44
tons and can be cantilevered against the roof; (3) the forepole
extension pad (or forepole pad), which supports up to 13.9 tons and
which can be extended from the forward canopy; (4) the shield hydraulic
legs; and (5) the ram arm, which pushes the conveyor forward and pulls
the shield ahead as the face advances.

'l:_/
"Step-ups" are vertical overcuts into the mine roof by the
continuous miner at·a height greater than the height of the previous
cut. Tr. 714-722; see also Tr. 495-498.

1673

Exhibit GX-2, Diagram 16(b) .. McClure interpreted this provision to
require the forepole pads to be in contact with the roof at a point no
greater than 4 feet from the face. McClure also found that the
violation of section 75.200 was significant and substantial in nature
and the result of Helen's unwarrantable failure to comply with the
mandatory safety standard. Therefore, the inspector issued an order to
Helen pursuant to section 104(d)(2) of the Mine Act alleging a violation
of section 75.200. lf The order was terminated within 45 minutes of its
issuance, after cribbing was installed between the forepole pads of some
shields and the roof, and other shields were repositioned so that the
forepole pads contacted the roof.
Helen contested the issuance of the order and the Secretary's
proposed civil penalty for the violation. Helen contended that the
language of its roof control plan did not require the forepole extension
pads to contact the mine roof within 4 feet of the face, that MSHA had
never. before cited the lack of contact between forepole pads and the
roof as a violation of the plan, and that installing cribbing above the
forepole pads posed a greater hazard than allowing forepole pads to not
be in .contact with the roof.

ll

Section 104(d)(2) of the Mine Act, 30 U.S.C. § 814(d)(2), states:
(2) If a withdrawal order with respect to any area
in a coal or other mine has been issued pursuant to
paragraph (1), a withdrawal order shall promptly be
issued by an authorized representative of the
Secretary who finds upon any subsequent inspection
the existence in such mine of violations similar to
those that resulted in the issuance of the
withdrawal order under paragraph (1) until such time
as an inspection of such mine discloses no similar
violations. Following an inspection of such mine
which discloses no similar violations, the
provisions of paragraph (1) shall again be
applicable to that mine.

Section 75.200, which restates section 302(a) of the Mine Act, 30 U.S.C.
§ 862(a), provides in pertinent part that:
The roof ... of all active ... working places shall
be supported or otherwise controlled adequately to
protect persons from falls of the roof ...• A roof
control plan and revisions thereof suitable to the
roof conditions and mining system of each coal mine
and approved by the Secretary shall be adopted ....
No person shall proceed beyond the last permanent
support unless adequate temporary support is
provided or unless such temporary support is not
required under the approved roof control plan and
the absence of such support will not pose a hazard
to the miners ....

1674

Following an evidentiary hearing, the judge determined that Helen
did not violate its approved roof control plan because "the ... plan did
not specifically require the forepole pads to be in [contact] with the
roof •..• " 9 FMSHRC at 1101. The judge noted, however, that section
75.200 requires, in addition to compliance with the approved roof
control plan, that "the roof ... of all ... working places ..• be
supported or otherwise controlled adequately to protect persons from
falls." 9 FMSHRC at 1103. The judge observed that the Commission has
stated that "the adequacy of particular roof support or other control
must be measured against the test of whether the support or control is
what a reasonably prudent person, familiar with the mining industry and
protective pu.rpose of the standard, would have provided in order to meet
the protection intended by the standard." Id. (citing Canon Coa.l
Company, 9 FMSHRC 667, 668 (April 1987)). Finding that" ... a
substantial hazard ... [exists] as the gap between the roof and the
forepole pad can lead to unsupported roof being exposed for the duration
of a pass by the [continuous] miner," and that "a reasonably prudent
person familiar with the mining industry would have recognized the
hazard," the judge concluded that Helen, by allowing the gaps to exist,
had failed to support or otherwise adequately control the roof at the
shortwall face in violation of section 75.200. 9 FMSHRC 1104-05. The
judge also concluded that the violation significantly and substantially
contributed to a mine safety hazard. 9 FMSHRC at 1105-06.
In determining whether the violation of section 75.200 constituted
an unwarrantable failure to comply with the regulation, the judge found
that Hel~n had reasonably interpreted its approved roof control plan to
not require the forepole pads to be in contact with the roof, had a .long
history of not being cited by MSHA for similar conditions, and had a
reasonable belief that miners would be exposed to a serious safety
hazard if they were required to install cribbing over forepole pads.
Therefor~, the judge concluded that Helen's failure to comply with the
requirements of section 75.200 was not the result of either
indifference, willful intent, or serious lack of reasonable care.
g FMSHRC at 1106-07.
We granted the Secretary's petition for discretionary review which
challenges only the judge's conclusion that the violation did not result
from Helen's unwarrantable failure. The Secretary contends that the
judge set the legal standard for an unwarrantable failure at a higher
threshold than that intended by Congress. The Secretary argues that
application of a correct unwarrantable failure standard to ~he facts in
this case would result in a finding that Helen unwarrantably failed to
comply with section 75.200. The Secretary also asserts that the judge
erroneously limited his consideration of those aspects of Helen's
violative conduct that might be indicative of an unwarrantable failure.
In determining whether or not Helen's violation of section 75.200
resulted from an unwarrantable failure the judge relied upon the holding
in United States Steel Corp., 6 FMSHRC 1423, 1437 (June 1981), that "an
unwarrantable failure may be proved by showing that a violative
condition or practice was not corrected prior to the issuance of a
citation or order b~cause of indifference, willful intent, or serious
lack of reasonable care." Subsequent to both U.S. Steel and the judge's

1675

decision in the present case, however, we further addressed the proper
interpretation of the term "unwarrantable failure" as used in section
l.04(d) of. the Mine Act. Emery Mining Corp., 9 FMSHRC 1997, 2004
(December 1987) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010
(December 1987). After careful consideration of the ordinary meaning of
the term, the purpose of unwarrantable failure sanctions under the Mine
Act, and the legislative history and judicial precedent, we held that
unwarrantable failure means "aggravated conduct, constituting more than
ordinary negligence, by a mine operator in relation to a violation of
the Act."!::!_/ In Emery, we determined that the same "indifference,
willful intent or serious lack of reasonable care" language from U.S.
Steel, relied upon by the judge, in large measure describes aggravated
forms of operator conduct constituting more than ordinary negligence.
9 FMSHRC at 2003-04. Accordingly, as we did in ~. we find that the
judge's approach to resolving the unwarrantable failure issue in this
case is sufficiently congruent with the subsequently announced
"aggravated conduct" standard to allow us to proceed to an examination
of the evidence supporting the judge's finding. See also Quinland
Coals, Inc., 10 FMSHRC 705, 707-08 (June 1988). Applying Emery, we find
that substantial evidence supports the judge's finding that Helen did
not unwarrantably fail to comply with section 75.200.
Witnesses for both parties testified that Helen's roof control
plan did not expressly address whether the forepole extension pads had
to contact the roof within 4 feet of the face. Helen's witnesses
testified without dispute that there had never been a requirement in
Helen's roof control plan that the forepole pads be in contact with the
roof at any distance from the face. All witnesses to whom the question
was posed also agreed that the roof control plan expressly excluded
forepole pads from the bearing area specification for the shields.
Tr. 218, 367, 451, 512, 516, 564-65, 605, ~85. Further, Helen's
witnesses consistently testified that the function of the forepole pads
i~ to provide coverage from·falling roof debris rather than to support
the roof, and General Mine Foreman Dunn testified, without
contradiction, that the primary roof support component on the Gullick
Dobson shield is the main canopy area, located directly over the
shield's hydraulic legs, rather than the forepole pad. Tr. 578-83, 601,
618-22, 628-29, 645-50, 743~44, 761-62.
We find this evidence concerning the design and function of
Helen's Gullick Dobson shortwall shield system provides a substantial
evidentiary basis supporting the judge's finding that Helen's conduct in
relation to its violation of the standard did not constitute aggravated
~/

The judge focused his determination of unwarrantable failure upon
Helen's motive in not correcting the violative condition. The judge
stated "[tlhe critical issue is not what caused the violative condition,
but rather the operator's motive in not correcting the violative
condition." 9 FMSHRC at 1106. Emery makes clear that in resolving
unwarrantable failure questions, the operator's total conduct "in
relation to a violation of the Act" must be examined. This examination
includes the operato·r• s conduct in causing the violation, remedying it,
or both, depending upon the circumstances of the case.

1676

conduct exceeding ~rdinary negligence under Emery. Although this
substantial evidence is sufficient for affirming the judge's finding, we
also note other factors we find supportive of the judge's finding of no
unwarrantable failure.
First, Helen officials testified that MSHA had not issued any
citations or orders relative to the forepole pads not being in contact
with the roof prior to the order in issue and the Secretary introduced
no evidence of prior enforcement actions that would have put Helen on
notice that forepole pad contact with the roof was required. In fact,
Helen's evidence indicated that similar shields had been used for over
10 years and no controversy concerning such gaps had ever arisen.
9 FMSHRC at 1101, 1107; Tr. 566, 596, 681, 763.
Second, pursuant to meetings between Helen and MSHA officials
after the subject order was terminated the Secretary approved an amended
roof control plan that requires 11 • • • whenever abnormal conditions are
encountered, and two or more adjacent [forepole pad] tips Gannot be made
to contact the roof, lagging should be installed." Exhibit GX-2, p. 15.
The fact that even under the revised plan, not all forepole pads are
required to be in contact with the roof can be viewed as supporting
Helen's belief that the forepole pads did not have to contact the roof
in order to maintain adequate roof support.
Third, there is also substantial record support for the judge's
finding that Helen's officials reasonably believed that installing
cribbing over the forepole pads would expose a miner to a greater hazard
of roof fall than allowing the forepole pads to remain in a non-contact
status. Helen's witnesses testified clearly and unequivocally that they
believed the chance of a miner being injured by falling roof debris was
significantly higher if the miner was installing cribbing than if some
of the forepole pads were not in contact with the roof for the duration
o~ a pass by the continuous mining machine.
Tr. 609-10, 626, 769, 793.
We note that the reasonableness of Helen's belief is lent some support
by the fact that although no miners were injured under Helen's practice
of not installing cribbing between the forepole pads and the roof, in
the period between the issuance of the order in question and the hearing
before the judge, during which period Helen installed cribbing between
the forepole pads and the roof, two miners were injured by falling roof
debris while installing cribbing. Tr. 273, 608.

1677

In sum, in light of all the above, we conclude that substantial
evidence supports the judge's finding of no unwarrantable failure and
that the failure of Helen to install cribbing in the gaps did not
constitute aggravated conduct exceeding ordinary negligence.
Accordingly, we affirm the finding of the judge that Helen did not
unwarrantably fail to comply with the requirements of section 75.200.

rj'_~cl ~

Joyce A. Doyle, ComrniSSi'ner

~mes A/'~astow~a,

Co

L_v ~·""' .

'.'

issioner

//, ]L:r_l·lc-1\.)
·'7

.

.

L. Clair Nelson, Commissioner

Distribution
Colleen A. Geraghty, Esq.
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Ronald B. Johnson; Esq.
Volk, Frankovitch, Anetakis,
Recht, Robertson & Hellersted
3000 Boury Center
Wheeling, West Virginia 26003
Administrative Law Judge Avram Weisberger
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1678

ADMINISTRATIVE LAW JUDGE DECIS;IONS

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

2204i

DEC 8 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner,,.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 88-67-M
A.C. No. 11-01151-05504

v.
Lincoln Sand & Gravel Co.
LINCOLN SAND AND GRAVEL

co.

I

Respondent
DECISION

Appearances:

Before:

Miguel J. Carmona, Esq., U.S. Department of Labor,
Office of the Solicitor, Chicago, Illinois,
for the Petitioner.

Judge Maurer
STATEMENT OF THE CASE

This proceeding concerns a proposal for assesa ent of civil
penalty filed by the petitioner against the responde .. t pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 820(a), seeking a civil penalty assessment of
$168 for three alleged violations of the mandatory safety
standards found in 30 C.F.R. Part 56.
The respondent ~ontested the violations and requested a
hearing.
Pursuant to notice, a hearing was convened in
St. Louis, Missouri, on July 25, 198·8, and while the petitioner
appeared, the respondent did not.
In view of the respondent's
failure to appear, the hearing proceeded without them. For
reasons discussed later in this decision, respondent is held to
be in default, and is deemed to have waived its opportunity to be
further heard in this matter.
ISSUE
The issue presented in this case is whether the petitioner
has established the violations cited, and, if so, the appropriate
civil penalty that should be assessed for the violations.

1679

MSHA's Testimony and Evidence
The following MSHA exhibits were received in evidence in
this proceeding:
1. A copy of the section 104(a) Citation No. 3057591,
issued by Inspector James R. Bagley on October 15' 19 87.
2. A copy of the section 104(a) Citation No. 3-057592'
issued by Inspector James R. Bagley on October 15, 19 87.
3. A copy ·of the section 104Ca) Citation No. 3057593,
issued by Inspector James R. Bagley on October 27, 1987.
4.

A copy of the proposed assessment ::'iata sheet.

Inspector Bagley testified that he conducted a regular
safety inspection of the mine, a sand and gravel operation, on
October 15, 1987.
During the course of this inspection, he observed a 3/8
inch stacker conveyor belt that he wanted to inspect, so he
climbed on the walkway that is attached to that conveyor. When
he stepped on the walkway, it started bouncing. He looked
underneath the walkway and saw that the first two support braces
supporting the walkway were broken, which left only three support
braces intact.
He therefore felt that the access was not safe,
and that this was a violation of 30 C.F.R. § 56.11001. The
walkway is used by employees to perform maintenance and repair
work on the conveyor itself, and it is the only means of access
to that conveyor.
A second condition discovered by the inspector was that the
cover plates on several electrical junction boxes and switch
boxes were not in place on board the dredge. With the covers
missing, the einployees were exposed to 440-volt terminals inside
the boxes located approximately 5-5 1/2 feet above the floor of
the dredge in an active work and travel area. The inspector
found this to be a "significant and substantial" violation of 30
C.F.R. § 56.12032, which could reasonably be.expected to result
in a fatal electrical shock or serious burns.
During a compliance follow-up inspection on October 27,
1987, Inspector Bagley issued a third citation because he found a
transformer enclosure on the squth end of the repair shop which
was not locked against unauthorized entry. The transformer
inside the enclosure was energized to 2200 volts and the so
energized terminals of the transformer were located approximately
four feet above ground level. The inspector determined that this
was a "significant and substantial" violation of 30 C.F.R.

1680

§ 56.12068 because the transformer was located in a normal work
area.
If anyone did contact the terminals on the transformer
they would receive a fatal electrical shock or a serious burn.

Respondent's Failure to Appear at the Hearing
The record in this case indicates that a Notice of Hearing
dated July 1, 1988, setting this case down for hearing in
St. Louis, Missouri, on July 25, 1988, was received by the
respondent on July 5, 1988.
This hearing was originally noticed for 8:00 a.m. on that
date.
Subsequently, the week prior to the hearing in a phone
call which I received from the respondent they requested a later
hearing time and so I telephonically approved a change to 10:00
a.m. on the same date in the same place. This message was also
conveyed to the Secretary's counsel and the court reporter so the
hearing effectively was changed to 10:00 a.m., July 25, 1988. At
10:30 a.m., Mr. Miguel Carmona of the Solicitor's Office called
the Lincoln Sand and Gravel Company in Lincoln, Illinois.
He
spoke to a Mr. Ash, who identified himself as the Office Manager
for the Lincoln Sand and Gravel Company. Mr. Ash advised that
they were not coming to the hearing.
The hearing proceeded in the respondent's absence.
The
petitioner put in her case through the testimony of Inspector
Bagley and moved for an Order af f irrn1ng the three citations ahd
the proposed civil penalty.
Under the circumstances in this record, I conclude and find
that the respondent has waived its right to be heard further in
this matter and that it is in default.
Although Commission Rule
29 C.F.R. § 2700.63 calls for the issuance of a Show Cause Order
before a party is defaulted, given the facts of this case, set
out above, I conclude that the issuance of such an order would be
a futile gesture.
Fact of Violation
I conclude and find that the petitioner· has established the
three alleged violations of 30 C.F.R. Part 56 set out in Citation
Nos. 3057591, 3057592 and 3057593 by a preponderance of the
evidence. The testimony of Inspector Bagley fully supports the
citations which he issued and his special findings concerning the
"S&S" nature of the violations. Therefore, the citations are
affirmed as issued.

1681

Civil Penalty Assessment
On the.basis of the foregoing findings and conclusions, and
taking into account the requirements of section llOCi) of the
Act, I conclude and find that the proposed civil penalty
assessment of $168 is appropriate in this case.
ORDER
Respondent IS ORDERED to pay a civil penalty in the amount
of $168 within thirty (30) days of the date of this decision, and
upon receipt of that payment by MSHA, these proceedings are
DISMISSED.

urer
rative Law Judge
Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department
of Labor, 230 s. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail>
Mr. William C. Bruner, President, Lincoln Sand & Gravel Co., P.O.
Box 67, Lincoln, IL 62657 (Certified Mail)
slk

1682

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

22041

DEC 8 1988
CIVIL PENALTY PROCEEDING

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

:

Docket No. CENT 88-77-M
A.C. No. 13-01953-05504

v.
Portable Plant No. 1 Mine
MARION COUNTY LIMESTONE
COMP ANY, LTD. ,
Respondent
DECISION
Appearances:

Margaret A. Miller, Esq., Office of the
Solicitor, U.S. Department of Labor, Denver,
Colorado, for the Petitioner;
James H. Dingeman, President, Marion County
Limestone Co., Pella, Iowa, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns proposals for assessment of
civil penalties filed by the petitioner against the respondent
pursuant to section llO(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 820(a). The petitioner seeks
a civil penalty assessment of $500 for an alleged violation of
mandatory safety standard 30 C.F.R. § 56.15005; an assessment
of $400 for an alleged violation of safety standard 30 C.F.R.
§ 56.16002(a)(l); and an assessment of $500 for an alleged
violation of safety standard 30 C.F.R. § 56.3400. All of the
alleged violations were cited in a combined section 107(a)
Imminent Danger Order and section 104(a) "S&S" Citation
No. 3055739, served on the respondent by an MSHA inspector on
October 29, 1987.
The respondent filed a timely answer and a hearing was
held in Des Moines, Iowa. The parties waived the filing of
any written posthearing arguments, and I have considered their
oral arguments made on the record during the course of the
hearing in my adjudication of this matter.

1683

Issues
The issues presented in this case are (1) whether the
conditions or practices cited by the inspector constitute
violations of the cited mandatory safety standards, (2) the
appropriate civil penalties to be assessed for the violations,
taking into account the statutory civil penalty criteria found
in section llO(i) of the Act; and (3) whether the violations
were "significant and substantial." Additional issues raised
by the parties are identified and disposed of in the course of
this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977;
Pub. L. 95-164, 30 u.s.c. § 801 et seq.

u.s.c. § 820(i).

2.

Section llO(i) of the 1977 Act, 30

3.

Commission Rules, 29 C.F.R. § 2700.1 et seq.

Stipulations
The parties stipulated to the following (Joint Exhibit
No. 1) :
1. Respondent is engaged in crushing and
selling of limestone in the United States, and
its mining operations affect interstate
commerce.
2. Respondent is the owner and operator
of the Portable Plant No. 1, MSHA ID.
No. L 09154.
3. Respondent is subject to the jurisdiction of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801 et seq. ("the Act").
4. The Administrative Law Judge has jurisdiction in this matter.
5. The subject order/citation was properly
served by a duly authorized representative of
the Secretary upon an agent of the respondent on
the date and place stated therein, and may be

1684

admitted into evidence for the purpose of establishing its issuance, and not for the truthfulness or relevancy of any statements asserted
therein.
6. The exhibits to be offered by the
respondent and the petitioner are stipulated to
be authentic but no stipulation is made as to
their relevance or the truth of the matters
asserted therein.
7. The respondent demonstrated good faith
in abating the violations.
8. Respondent is a medium-size mine operator with 13,607 tons of production in 1987.
9. The certified copy of the MSHA Assessed
Violations History, marked as Exhibit P-1,
accurately reflects the history of the mine for
the two years prior to the date of the
order/citation.
Discussion
The combined section 107(a) Imminent Danger Order and
section 104(a) "S&S" Citation No. 3055739, issued on
October 29, 1987, by Inspector Dennis A. Heater, states as
follows:
The crusher operator was observed standing
with one foot on the vibrating jaw crusher with
the jaw running. The operator was attempting
to break an oversized rock which was lodged in
the jaw opening with a sledge ham~er. If the
operator should slip or lose his balance he
could fall into the crusher jaws. The operator
was directly above the jaw opening. The opening measured approximately 4 foot wide and
could accommodate rocks approximately· 2 foot in
diameter. The crusher reduced rock to approximately 5 inches diameter. This order is to
stop this practice immediately.
The employee did not have the aid of a
safety belt or line (56.15005). Loose material
on the pan feeder above him could fall and
st~ike the operator while in this area
(56.16002, 1) (sic).

1685

. Tbe operator was placing himself in a ~ery
bad position (56.3400). This jaw crusher can
only be shut down from a lower level. The
practice now established, until the feasibility
of obtaining a back hoe or secondary breaking
hammer can be determined, will be to shut the
pan feeder and the jaw crusher down, trim any
loose material from the edge of the pan feeder
and fill in the jaw crusher opening with this
material. The operator will then. attempt to
break the oversize rock with a sledge hammer or
remove it. with the aid of a chain and back hoe.
The order/citation was terminated by Inspector Heater on
November 10, 1987, and the termination notice states as
follows:
The company has established a written
policy along with the verbal policy issued at
the time of the order. The written policy
explains procedure for working around the jaw
crushers not at all while the crusher is in
operation-.~If an object becomes entangled in
the jaw crtisher, the jaw is to be shut down and
then the object is to be removed.
Letter
attached.
Petitioner's Testimony and Evidence
MSHA Inspector D~nnis A. Heater testified as to his
experience and training, and he confirmed that he issued the
combined imminent danger order and citation during the course
of a regular inspection of the respondent's limestone mining
operation. He e.Xplained the mining and crushing procedures
performed at the mine and plant. He confirmed that he issued
the order and citation after observing quarry foreman Clint
Geery standing on, and straddling the jaw crusher hopper using
a sledge hammer to break up a rock which had lodged at the
bottom of the hopper at the opening of the.jaw crusher. The
crusher was in operation, and Mr. Geery had one foot on the
vibrating device. The pan feeder, which dumped rock materials
into the jaw crusher hopper, was located approximately 3 feet
above the hopper opening where Mr. Geery was standin~, and the
pan feeder was shut down and was not in operation.
Mr. Heater confirmed that Mr. Geery was not wearing a
safety belt or line and was not "tied off" while standing over
the hopper opening. In view of the fact that the crusher was

1686

in operation and i-1.r. Geery' s foot was resting on the vibrating
machine, Mr. Heater was concerned that Mr. Geery would fall
into the crusher if he slipped while attempting to break up
the rock with the sledge hammer. Mr. Heater was also concerned
that the unconsolidated rock materials in the pan feeder could
have moved and struck Mr. Gerry, knocking him into the crusher
opening over which he was standing.
Mr. Heater believed that it was highly likely that a
fatal accident would have occurred had Mr. Geery continued the
practice of attempting to break up or free the rock while
standing in such a precarious position. Mr. Heater stated
that in order to preclude distracting Mr. Geery, he did not
yell at him to come down. He simply placed his hand on
Mr. Geery's shoulder and moved him back and away, from his
position on the crusher hopper.
Mr. Heater confirmed that he discussed the matter with
Mr. Geery, and that Mr. Geery informed him that he was
attempting to break up the rock because it would not feed
through the crusher, and that the method he was using was the
only available practical method without shutting down the
crusher and causing delays in production. Mr. Geery admitted
that he had on previous occasions used the same method in
attempting to break up rocks which became lodged in the jaw
crusher opening.
Mr. Heater confirmed that he issued the imminent danger
order in order to prevent Mr. Geery from continuing the practice of standing on an operating crusher opening while attempting to break up or free rock which was stuck over the jaw
crushing opening without wearing a safety belt or being tied
off to prevent him from falling into the jaw crusher opening
located approximately 4 to 5 feet below where Mr. Geery was
standing.
Mr. Heater stated that he cited the respondent with a
violation of section 56.15005, because Mr. Geery was not wearing a safety belt or line and was not otherwise tied off to
prevent him from falling into the crusher.. Mr. Heater
believed that it was highly likely that Mr. Geery could have
slipped and fallen into the running and vibrating crusher
because he was not tied off or wearing a safety belt.
Mr. Heater stated that he cited the respondent with a
violation of section 56.16002(a)(l), because the unconsolidated rock materials which were on the pan feeder presented a
hazard to Mr. Geery at the location where he was standing over
the crusher hopper.
In the event a truck driver inadvertently

1687

dumped a load of rock onto the pan feeder while Mr. Geery was
attempting to dislodge the rock in the crusher, the material
on the pan feeder could have moved and dropped into the
crusher striking Mr. Geery or knocking him into the crusher.
Mr. Heater believed that Mr. Geery was exposed to the hazard
of caving or sliding materials from the pan feeder, and that
his exposure to this hazard while he was standing on the
crusher while it was running would reasonably likely result in
serious injury or death if he were to fall in the crusher.
Mr. Heater confirmed that if Mr. Geery had fallen into the
operating crusher, he would be unable to get out, and that the
cut-off switch was in an area below the crusher and not
readily accessible.
Mr. Heater stated that he cited the respondent with a
violation of section 56.3400, because Mr. Geery placed himself
in a hazardous position while att~nptin~ to perform secondary
breakage of the rock with a sledge hammer. M~. Heater
believed that it was highly likely that an accident would have
occurred and that Mr. Geery would have suffered fatal injuries
had he continued the practice. Mr. Heater agreed that no one
other than Mr. Geery was exposed to any hazard or injury
because of the practice in question.
Mr. Heater confirrned that he discussed the order and citations with the respondent's president J·ames OinJeman at the
time of his inspection, and that Mr. Dingeman agreed that
Mr. Geery should not have attempted to break or dislodge the
rock while standing on the oper~ting crusher. Mr. Dingeman
immediately issued verbal instructions to ~r. Geery not to
repeat the practice, and he subsequently issued a written
notice to all employees instructing them not to stand on top
of the crusher while it was in operation, and to shut it down
before attempting to remove any material entangled in the
crusher. Mr. Heater also confirmed that he had no reason or
information to believe that Mr. Dingeman was aware of the fact
that Mr. Geery had engaged in the practice in question.
Mr. Heater also stated that he considered Mr. Dingeman to be a
conscientious mine operator who was concerned for safety (Tr.
7-35).
On cross-examination, Mr. Heater stated that the materials
in the pan feeder were approximately 3 feet above, and 4 feet
away from where Mr. Geery was standing on the crusher.
Mr. Heater agreed that any material falling from the pan feeder
would not likely cause fatal injuries to Mr. Geery if they
struck him, and that they were only a contributing factor to
the hazard presented.

1688

Mr. Heater confirmed that although Mr. Dingeman had previously engaged in the sand and gravel business, his limestone
operation was rel4tively new and that he had only been in this
business for approximately 3 years (Tr. 35-47).
Respondent's Testimony and Evidence
James H. Dingeman, respondent's president, confirmed that
he does not dispute the fact that Mr. Geery placed himself in
a hazardous position on the crusher as described by Inspector
Heater. Mr. Dingeman also confirmed that he does not dispute
the fact that the violations occurred as stated in the
order/citation issued by Mr. Heater. Mr. Dingeman asserted
that he filed his contest because of his belief that the
proposed civil penalty assessments were excessive, and his
belief that while it was possible that Mr. Geery could have
fallen into the crusher hopper, it was not highly likely that
he would have fallen into the crusher jaws because they were
blocked by the large rock which was lodged at the bottom of
the cone-shaped hopper.
Mr. Ding~nan asserted that he is concerned about the
safety of his employees and has always attempted to operate an
accident-free mining operation.
He confirmed that he had previously installed a chain across the crusher entrance location
to prevent employees from inadvertently walking or falling
into the crusher, and that prior to the issuance of the order
and citation, he believed that breaking or dislodging rocks
from a crusher with a sledge hammer was an acceptable
industry-wide practice.
He had never received any information
that such a practice had ever resulted in accider1ts or
injuries.
Mr. Dingeman stated that in order to gain access to the
crusher, Mr. Geery apparently unhooked the chain which guarded
that location in order to position himself on the crusher.
In
addition to issuing his written work policy instructions
requiring the shutting down of the crusher before any attempts
are made to break or dislodge rocks, Mr. Din3ernan stated that
he relocated the crusher shut-down switch closer to the crusher
so that it would be readily accessible to all employees performing this work. These corrective actions were taken by
Mr. Dingeman after the violations were issued (Tr. 47-52).
~indings

and Conclusions

The respondent does not dispute the fact that the three
violations occurred as stated by the inspector in the contested
order/citation which was issued in this case.
I take note of

1689

the fact that all of the violations were the result of the
inspector.' s observations of quarry foreman Clint Geery placing
himself in a precarious and hazardous position on a vibrating
hopper of a jaw crusher while it was in operation. Mr. Geery
was attempting to break up or dislodge a large rock which had
lodged in the jaw crusher opening, and he was not wearing a
safety belt or otherwise tied off with a safety line to prevent
him from falling into the crusher. The inspector concluded
that in the circumstances, the foreman was in danger of falling
into the crusher.
30 C.F.R. § 56.15005, provides as follows:
l
Safety belts and lines.
Safety belts and lines shall be worn when
persons work where there is danger of falling;
a second person shall tend the lifeline when
bins, tanks, or other dangerous areas are
entered.
30 C.F.R. § 56.16002(a)(l), provides as follows:
Bins, hoppers, silos, tanks, and surge piles.
(a)
Bins, hoppers, silos, tanks, and
surge piles, where loose unconsolidated materials are stored, handled or transferred shall
be -- (1) equipped with mechanical devices or
other effective means of handling materials so
that during normal operations persons are not
required to enter or work where they are
exposed to entrapment by the caving or sliding
of materials.
30 C.F.R. § 56.3400, provides as follows:
Secondary breakage.
Prior to secondary breakage operations,
material to be broken, other than hanging
material, shall be positioned or blocked to
prevent movement which would endanger persons
in the work area. Secondary breakage shall be
performed from a location which would not
expose persons to danger.
In the answer filed in this case, Mr. Dingeman asserts
that the foreman in question was a knowledgeable individual

1690

with many years of accident-free quarrying experience, and
that "if he was highly likely to fall into the crusher he
would have known that" and "would not put himself in jeopardy."
Although the quarry foreman did not testify in this case, I
find no reason for discounting Mr. Dingeman's assessment of
his work skills. However, the Commission has previously considered and rejected such an argument in at least two cases
dealing with the same safety belt and safety line standard
which was cited in this case. See: Kerr-McGee Corp.,
3 FMSHRC 2496, 2497 (November 1981); Great Western Electric
Company, 5 FMSHRC 840 (May 1983).
In the Great Western Electric Company case, the Commission
stated as follows at 5 FMSHRC 842:
Great Western argues that the skill of a
miner is a relevant factor in determining
whether there is a danger of falling because
the miner's skill defines the scope of the
hazard presented. We find that such a subjective approach ignores the inherent vagaries
of human behavior. Even a skilled employee may
suffer a lapse of attentiveness, ~ither from
fatigue or environmental distractions, which
could result in a fall.
The specific purpose
of 30 C.F.R. § 57.15-5 is the prevention of
dangerous falls.
Kerr-McGee Corp., 3 FMSHRC
2496, 2497 (November 1981). By adopting an
objective interpretation of' the standard and
requiring a positive means of protection
whenever a danger of falling exists, even a
skilled miner is protected from injury. We
believe that this approach reflects the proper
interpretation and application of this safety
standard.
That is not to say that the miner's skill
is totally immaterial. The skill of a miner
may be a relevant factor in determining an
appropriate civil penalty for a violation.
In
making work assignments and giving instructions
to its employees, the amount of reliance which
an operator places on the relative skills of
its employees may be an indication of the operator's negligence concerning the violation. A
miner's skill may also influence the probability of the occurrence of the event against
which a standard is d1rected, ana·so affect
that element of gravity.

1691

It is well-settled that under the Act, an operator is
liable without fault for violations of any mandatory standards
committed by its employees. See: Allied Products Co. v.
FMSHRC, 666 F.2d 809 {5th Cir-:-I'982); American Materials
· Corp. , 4 FMSHRC 415 {Mar ch 19 8 2) ; Kerr-McGee Corp. , 3 FMSHRC
2496 {November 1981); El Paso Rock Quarries, Inc., 3 FMSHRC 35
{January 1981); Ace Drilling Company, 4 FMSHRC {April 1980).
In addition to the respondent's candid admissions that
each of the violations occurred as stated in the order/citation
issued by the inspector in this case, I conclude and find that
the testimony·and evidence adduced by the petitioner supports
and establishes each of the violations in question.
I agree
with the inspector's conclusion that the position of the foreman on the vibrating and operating crusher hopper without the
use of a safety belt or line exposed him to a hazard of falling
into the machine.
I also agree with the inspector's conclusion
that by positioning himself in such a manner on the crusher
hopper, the foreman exposed himself to possible entrapment by
the caving or sliding of rock materials from the pan feeder,
and that by performing secondary breakage by means of a sledge
hammer from a hazardous position without being secured from a
fall, the foreman exposed himself to danger. Under all of
these circumstances, the violations, and the combined
order/citation issued by the inspector ARE AFFIRMED.
Significant and Substantial Violations
A "significant and substantial" 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 coal or other mine safety or health
hazard." 30 C.F.R. § 814{d){l). A violation is properly·
designated significant and substantial "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature."
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 {April
1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 {January 1984), the
Commission explained.its interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of
a 1nandatory safety standard is significant and
substantial under National Gypsum the Secretary

1692

of Labor must prove:
Cl) the underlying violation. of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of
danger to saf aty-contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
In Unite.d States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129, the Commission stated further as follows:
We have explained further that the third
element of the Mathias formula "requires that
the Secretary establish a reasonable likelihood
that the hazard contributed to will result in
an event in which there is an injury." U.S.
Steel Mining Co., 6 FM.SHRC 1834, 1836 (August
1984). We have emphasized that, in accordance
with the language of section 104Cd)(l), it is
the contribution of a violation to the cause
and effect of a haza€d that must be significant
and substantial. U.S. Steel Mining Company,
Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
S"t'eel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
The ~uestion of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 19 8 7) .
With regard to the violation of 30 C.F.R. § 56.15005, I
conclude and £ind that the foreman's unsecured position on the
vibrating and operating crusher presented a danger of his fall. ing into the crusher.
In the event of a fall, I believe it
would be reasonably likely that the foreman would have suffered
injuries of a reasonably serious nature.
I agree with the
inspector's "significant and substantial" finding,_ and IT IS
AFFIRM.ED.
With regard to the violation of JO C.F.R. § 56.16002(a)(l),
I agree with the inspector's "significa~t and substantial" finding.
By placing himself in a hazardous position on the crusher
bopper in question, the foreman exposed himself to injury from
moving or falling rock materials from the pan feeder.
Although

1693

it is possible that any materials moving or falling from the pan
feeder may not in and of themselves have inflicted fatal
injuries, I believe one may reasonably conclude that such a fall
or movement of materials could have contributed to the hazard
presented. Any sudden or unexpected movement or fall of these
materials could have knocked the foreman into the crusher hopper
from his unsecured position, and if this occurred, the weight of
the materials would likely have trapped the foreman inside the
moving crusher hopper and prevented his timely exit. For all of
these reasons, I also agree with the inspector's "significant
and substantial" finding with respect to the violation of
30 C.F.R. § 56.3400. Accordingly, the inspector's "S&S" findings as to both of these violations ARE AFFIRMED.
Size of Business and Effect of Civil Penalty Assessments on
the Respondent's Ability to Continue in Business
The parties stipulated that the respondent is a medium
size mine operator, and that the 1987 annual production for
the mine was 13,607 tons of limestone. Mr. Dingeman stated
that he employs five people, and notwithstanding the stipulation, he believes that his mining operation is a relatively
small one.
I agree, and I conclude and find that the evidence
here supports a conclusion that the respondent is a small mine
operator.
Mr. Dingeman stated that while the payment of the proposed
civil penalty assessments will not put him out of business, he
is concerned about the amount of the penalty, particularly
since the three separate violations ~hich were "specially
assessed" by MSHA were the tesult of only one incident involving Mr. Geery's attempts to break or dislodge the rock from the
crusher while not wearing a safety belt or otherwise securing
or protecting himself from a fall into the vibrating and operating machine.
I conclude and find that the penalties assessed
by me will not adversely affect the respondent's ability to
continue in business.
Good Faith Compliance
The parties stipulated that the respondent demonstrated
good faith in abating the violations. The record establishes
that the violations were immediately abated when the inspect.or
removed Mr. Geery from his loc~tion on the crusher. Further,
·as soon as Mr.· Dingeman was informed of the practice, he
immediately verbally instructed Mr. Geery not to repeat the
practice, and subsequently issued written instructions to all
of his employees as to the safe procedures to be followed in

1694

the future, and moved the stop-start switch closer to the location of tne crusher. Under the circumstances, I conclude and
find that the respondent exercised rapid good faith compliance
in abating the violative practice and conditions in question,
and I have taken this into consideration in this case.
History of Prior Violations
An MSHA computer print-out of the respondent's prior history of violations reflects that the respondent has received
no citations or assessed violations prior to February 19, 1987.
The information presented reflects that for the period
February 19, 1987 to October 28, 1987, the respondent ·was
assessed for five violations for which it paid civil penalty
assessments totalling $110. None of these violations involved
any of the mandatory standards cited in this case. Under the
circumstances, I conclude that the respondent has a good compliance record, and I have taken this into consideration in
this case. I have also taken into consideration the inspector's testimony that the respondent is a conscientious and
safety-conscious mine operator.
Gravity
On the basis of the unrebutted testimony of the inspector, and including my "significant and substantial" findings
and conclusions, I conclude and find that all of the violations which have been affirmed in this case were serious.
Negligence
The evidence in this case establishes that the violations
were the direct result of the conduct of the quarry foreman
who jeopardized only his own safety by placing himself in a
hazardous position on the crusher hopper while it was in operation. The inspector's unrebutted testimony reflects that the
foreman admitted that he had engaged in this practice over a
period of 2 years. The inspector was of the opinion that
Mr. Dingeman, as the operator and owner of the quarry, was a
conscientious and safety conscious mine operator, and there is
no evidence that he had aver observed t:he foreman on an operating crusher, or that he had any kno~ledge of the apparent
practice engaged in by the foreman.
Although Mr. Dingeman characterized the foreman as
"intelligent, knowledgeable, and experienced," I have difficulty understanding why such an individual would place himself
in such a precarious position on an operating crusher hopper
without securing himself from a po~sible fall into the machine.

1695

Mr. Dingeman testified that he had previously installed a
chain across the crusher access to preclude individuals from
inadvertently walking into or falling into the crusher, and
that the foreman apparently unhooked the chain guarding the
crusher location in order to position himself over it while
attempting to dislodge the large rock with a sledge hammer.
Although Mr. Dingeman believed that the breaking or dislodging
of a rock with a hammer was an acceptable industry-wide practice, and that he never received any information that such a
practice had ever resulted in accidents or injuries, I find
great difficulty in accepting any notion that engaging in such
a practice while the crusher is in operation without the benefit of a safety belt or line is acceptable, or the industry
norm.
The record and pleadings in this case reflect that
Inspector Heater made a finding of "high negligence" with
respect to the violation of section 56.15005, and that similar
negligence findings were made with respect to the violations
of sections 56.16002(a)(l) and 56.3400 when the order/citation
was subsequently modified by another inspector. Based on the
evidence and testimony adduced at the hearing, I concur in
those findings.
I conclude and find that an experienced and knowledgeable
mine foreman should have recognized the fact that he was placing himself in a precarious position by attempting to break or
dislodge a rock from an operating jaw crusher without first
shutting down the machine or securing himself with a safety
belt or line.
Insofar as the foreman's conduct is concerned,
I conclude and find that it clearly supports a finding of
"high negligence" with respect to each of the violations which
are a direct result of his action in placing himself in such a
hazardous position.
It is well settled that the negligence of a mine foreman
may be imouted to the operator. see: Southern Ohio Coal
Company, 3 FMSHRC 1459 (August 1982); Nacco Mining Co.,
3 FMSHRC 848 (April 1981). However, on the fac~s of this
case, the evidence establishes that Mr. Dingeman had not previously observed the foreman on an operating crusher and had
no knowledge of the practice ad'liitted to by the foreman.
Further, the evidence established that Mr. Dingeman had previously taken steps to prevent anyone fro,n inadvertently walking or falling into the crusher by l~stalling a chain across
the access to the crusher, and the inspector believed that
Mr. Dingeman was a conscientious and safety-minded-mine operator.
Under these circumsta!lces, I believe it is appropriate

1696

in this case to take these factors in consideration in mitigating any civil penalties which should be assessed against
the respondent for the violations in question.
See; Allied
Products Company v. FMSHRC, supra; Nacco.Mining C"O:", 3 FMSHRC
848, 850 (April 1981); Marshfield Sand & Gravel, Inc.,
2 FMSHRC 139l(June 1980); Old Dominion Power Co., 6 FMSHRC
1886 (August 1981).
I have also considered the fact that the
three vioiations which have been affirmed as separate violations of each of the cited mandatory standards, are interrelated and arose out of one single act of the foreman.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking to account the requirements .of section llO(i) of
the Act.
I conclude and find that the following civil penalty
assessments for the violations which have been affirmed are
reasonable and appropriate:
Order/Citation No.
3055739
3055739
3055739

Date

30 C.F.R. Section

Assessment

10/29/87
10/29/87
10/29/87

56.15005
56.16002(a){l)
56.3400

$350
$175
$200

ORDER
The respondent IS ORDERED to pay civil penalty assessments in the amounts shown above within thirty C30) days of
the date of this decision.
Upon receipt of payment by the
petitioner, this matter is dismissed.

H

4,~

//e~Koutras

Ad1ninistrative Law Judge
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S.
Department of Labor, 1585 Federal Office Building, 1961 Stout
Street, Denver, CO 80294 {Certified Mail)
Mr. James H. Dingeman, President, Marion County Limestone Co.,
P.O. Box 25, Pella, IA 50219 {Certified Mail)

/f b

1697

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

22041

DEC 121988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
AOMINISTRATION (MSHA) ,
ON BEHALF OF
PATRICK STANFIELD,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 88-171-D
MSHA Case No. BARB CD 88-25
MSHA Case No. BARB CD 88~28

v.

Stinson No. 7 Mine

NATIONAL MINES CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Koutras
Statement of the Case

This proceeding concerns a complaint of alleged discrimination filed by the Secretary of Labor on behalf of the
complainant Patrick Stanfield against the respondent pursuant
to section 105(c) (2) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. The complaint alleges that the
respondent discriminated against the complainant by suspending
him for lodging safety complaints and by forcing him to take
previously unscheduled accrued annual leave after interrogating
him about his complaints. The Se6retary amended her complaint
and proposed a civil penalty assessment against the respondent
in the amount of $2,500, for the alleged violation.
The respondent filed a timely answer denying any discrimination and the matter was scheduled for a·hearing in Pikeville,
Kentucky, during December 13-14, 1988. The hearing was cancelled
after the Secretary's counsel advised me the parties agreed to
settle the dispute.
The parties have now filed a Joint Motion
seeking approval of the proposed settlement. The relevant terms
of the settlement are as follows:

1698

., r" o

1. National Mines Corporation agrees to
pay Mr. Stanfield gross wages for the 12 working
day suspension imposed by National Mines
Corporation. Such wages amount to gross pay of
$1,618.81. Mr. Stanfield was paid on a monthly
salary basis as a foreman.
2. The records maintained in Mr. Stanfield's
personnel and company file shall be completely
expunged of all information relating to the 12 day
suspension.
3.
In the event that National Mines
Corporation is contacted by a prospective employer
of Mr. Stanfield at any time in the future,
National Mines Corporation agrees not to give
Mr. Stanfield a negative or unfavorable reference
regarding Mr. Stanfield's job performance while
employed by National Mines Corporation. National
Mines Corporation will when contacted by a prospective employer of Stanfield only give such
prospective employer Mr. Stanfield's job title(s)
and' dates of employment.
4.
In light of the difficulties and
contingencies necessarily attendant to the litigation of the subject case together with the
complex factual disputes requiring many witnesses
and the nature of the economic loss to the complainant, which by the terms of this settlement
·shall be recompensed, the parties agree that the
proposed settlement in this case is appropriate
under the circumstances.
5.
In consideration of the willingness of
National Mines Corporation to resolve the claim
quickly by payment of the back wages due to the
complainant, the Secretary agrees to modify her
requested civil penalty from the proposed amount
of $2500.00 to a reduced assessment of $300.00.
Since Section 105(c) of the Act is uniquely
designed to benefit the public interest by
restitution to those affected by violation of
Section 105(c) of the Act, the Secr~tary believes
that such purposes are fulfilled in this case by
the settlement terms.

1699

6. It is·· the parties' belief that approval of
this settlement is in the public interest and will
further the intent and purpose of the Federal Mine
Safety and Health Act of 1977.
Conclusion
After careful review and consideration of the settlement
terms and conditions executed by the p~rties in this proceeding,
I conclude and find that it reflects a reasonable resolution
of the complaint filed by MSHA on Mr. Stanfield's behalf. Since
it seems clear to me that all parties are in accord with the
agreed upon disposition of the complaint, I see no reason why
it should not be approved.
I also find no reason for not
approving the reduction of the civil penalty assessment as proposed by the Secretary.
ORDER
The Joint Motion IS GRANTED, and the settlement IS
APPROVED. The parties ARE ORDERED to fully comply forthwith
with the terms of the settlement. The respondent IS FURTHER
ORDERED to pay to the Secretary a civil penalty assessment of
$300 for the violation in question, and payment is to be made
within thirty (30) days of the date of this decision and ordero
Upon receipt of payment by the Secretary, and full compliance
with the terms of the settlement, this matter is dismissed.

U_.d~

/~ Ko~tras

Administrative Law Judge

Distribution:
Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Charles Baird, Esq., 415 Second Street, Post Office Box 351,
KY 41501 (Certified Mail)

Pikeville~

Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, .Inc.,. P.O. Box 360, Hazard, KY 40701 (Certified Mail)

...

/fb

1700

FEDERAL MINE. SAFETY AND .HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE lAW JUDGES
2 SKYLINE. 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH. VIRGINIA 22o4i

DEC 121988
DISCRIMINATION PROCEEDING

JAMES D. GRIMES,
Complainant

v.

.
..

CONSOLIDATION COAL COMPANY
Respondent

Docket No. WEVA 88-218-D
MORG CD 88-08
Georgetown Prep Plant

ORDER OF DISMISSAL
Before:

Judge Fauver

Pursuant to a settlement approved when this case was called
for hearing on October 4, 1988, the above case is DISMISSED.

~~fav~
William Fauver
Administrative Law Judge
Distribution:
Thomas M. Myers, Esq., General Counsel, UMWA, District 6, 56000
Dilles Bottom, Shadyside, OH 43947 (Certified Mail)
Michael R. Peelish, Esq., Quarto Mining Company, 1800 Washington
Road, Pittsburgh, PA 15241 (Certified Mail)

1701

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

December 16, 1988 ·

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 88-243
A. C. No. 46-01318-03818

v.

Robinson Run No. 95 Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Jo s e ph T• Cr aw f or d , Es q • , Off i c e of t he
Solicitor, U. S. Depart~ent of Labor,
Philadelphia, Pennsylvania, for Petitioner.
Michael R. Peelish, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for
Respondent~

Before:

Judge Merlin

This case is a petition for the assessment of civil
penalties filed by the Secretary of Labor against Consolidation
Coal Company for three alleg-ed violations.
Citation No. 2897188
This citation was issued fo~ a failure to report to MSHA an
injury which was originally believed to have a reasonable potential to cause death. 30 C.F.R. § 50.2(h){2) and 30 C.F.R.
§ 50.10.
At the hearing the Solicitor advised that MSHA was
vacating the citation based upon a report of the ambulance attendant. Therefore, I dismissed the penalty petition insofar as
this item was concerned. I advised both counsel, and particularly the Solicitor who has the burden of proving a violation, that
if a case such as this.goes to hearing, appropriate medical
evidence must be presented.
Order No. 2897193
The subject order i s s ue d un de·r sect i on 1O4 ( d ) { 2 ) of the Act ,
30 U.S.C. § 814(d)(2) recites as follows:
Welding operatiDns were being performed
outside of· the Robinson Run shop on a lowboy
haulage car and the area was not shielded.

1702

On 02-03-88 a 104 d-2 order no. 2897259
was issued in the Robinson Run shop for
welding operations being performed and the
area not shielded, therefore this order will
not be terminated untill [sic] all persons
required to performe [sic] welding operations
are trained in the use of shields.
Jeff Haskins, Maintenance Foreman
Note!
shielded.

The work area inside the shop was

30 C.F.R. § 77.408 provides:
Welding operations shall be shielded and
the area shall be well-ventilated.
The essential facts are not in dispute. Jim Flanagan, an
hourly employee, was welding on a lowboy haulage car in the doorway to the shop (Tr. 23, 50, 83). The lowboy was half in and
half out of the shop (Tr. 26, 86). A shield had been placed
around that portion of the lowboy facing the inside of the shop
(Tr. 25, ·27, 35, 66). However, no shielding was placed on the
side of the welding operation facing out into the yard (Tr. 25,
27, 35, Operator's Exhibits ~os. 3-8). ~arious employees of the
operator could be in the general area and use a door to the shop
which was located about 20 to 25 feet from the welding operation
(Tr. 29-30, 33, 35-36).
7he mandatory standard is clear. Welding operations must be
Since the standard has no exceptions, the shielding
requirement must be held to apply to all sides. Therefore, I
conclude a violation existed. I cannot accept the operator's
argume.nt that distance constitutes a shield. There is no basis
to read such a caveat into the standard. To do so would introdute an element of. uncertainty into the standard, because a determination would have to be made in every situation as to how much
distance con~titutes a shield and under what· circumstances. So
too, the welder's body cannot be accepted as a shield, because he
can change his position at any moment.
shiel~ed.

The violation was cited in a 104{d){2) order. The Commission had held that the special findings in such an order may be
challenged in a penalty proceeding. Quinland Coals, Inc.,
9 FMSHRC 1614 (September 1987). The inspector stated the operator was guilty of unwarrantable failure beca~se the mine foreman
who was in the ~hop area should have known of the violation (Tr.
38, 52-53). The inspector later· testified that the mine foreman
did not tell the welder to erect shielding on the outside (Tr.
37, 54).

1703

The Co~mission has held that unwarrantable failure means
aggravated .conduct, constituting more than ordinary negligence.
Emery Mining Corporation, 9 FMSHRC 1997 (Dec. 1987); Youghiogheny
and Ohio Coal Company, 9 FMSHRC 2007 (Dec. 1987); Southern Ohio
Coal Company, 10 FMSHRC 138 (Feb. 1988); Q~inland Coals, Inc.,
10 FMSHRC 705 (June 1988). The inspector's testimony falls far
short of establishing unwarrantable failure under the Commission's criteria. Indeed, insofar as the record and the brief
filed on behalf of the Secretary indicate, the inspector and the
Solicitor are unaware of governing Commission decisions although
MSHA has acknowledged and explained these decisions. See MSHA
Po 1 i c y Memo r a nd. um 8 8 - 2 C a nd 8 8 -1 M, da t e d Apr i l 6 , 1 98 8 . Ac c o rd ingly, the unwarrantable finding must be vacated. The evidence
shows only ordinary negligence.
The inspector originally designated this violation as significant and substantial, but the conference officer deleted this
designation because the miners are required to wear safety
glasses (Tr. 41-42). The term "significant and substantial" is
not synonymous with gravity. In this case I conclude the Solicitor failed to show any degree of gravity. The inspector testified he knew of situations where individuals, who came in close
proximity to welding operations received injuries (Tr. 32). He
then defined close proximity as 6 feet (Tr. 39). However, he
testified that he did not know who would pass within 6 feet of
the welding operations in this case (Tr. 40). The door to the
shop was located 20 to 25 feet away from the welding operations
but no evidence was presented as to what, if any, injury might be
sustained by persons using this door. I of course, cannot speculate on such a matter. Under the circumstances, therefore, the
vi o 1 aJ: i o n mus t be he 1d no ns er i o us .
A penalty of $25 is assessed.
Order

~o.

2897194

The issue presented here is whether the cited wire was a
trolley wire or a power wire. If it was a power wire~ as the
Secretary contends, it had to be insulated under 30 C.F.R.
§ 75.517. Insulation wraps around the wire and completely covers
it (Tr. 112). If it was a trolley wire, as the operator asserts,
it only had to be guarded in accordance with 30 C.F.R. § 75.1003.
Guarding comes down over the sides of the wire, leaving the
underneath exposed (Tr. 113).
After consideration of this matter and in light of all the
evidence of record, including the testimony of the witnesses, I
conclude that the cited wire was a power wire which should have
been insulated in accordance with 30 C.F.R. § 75.517.
The record discloses that there were a number of different
electrical wires in the affected area, each with its own
characteristics and functions. The cited wire carried power

1704

among the trolley wires in the track yard which was above ground
(Operator's Exhibits 11-17, Tr. 117). 1/ Jt crossed a number of
trolley wires (Tr. 109).
The operator argues that the subject wire is a trolley wire.
I cannot accept this position. The term "trolley wire" is
defined as:
The means by which power is
an electric trolley locomotive.
from the roof and conducts power
locomotive by the trolley pole.
it is sometimes also used to run
equipment. B.C.I.

conveyed to
It is hung
to the
Power from
other

A Dictionary of Mining, Mineral and Related Terms (U. S.
Department of the Interior 1968).
The testimony -.at the hearing accords with the dictionary
definition. A trolley wire runs right over the track and
supplies power directly to the equipment (Tr. 107). A trolley
wire is designed to allow electrical contac.t between it and a
metal slide of the pole attached to the equipment (Tr. 147-148).
The underneath side of a trolley wire is exposed so that the
necessary electrical contact can occur (Tr. 151). If the trolley
wire were insulated, i.e. fully wrapped, there could be no contact (Tr. 151). As already noted, the subject wire did not conduct power by means of a trolley pole to a locomotive or any
other piece of equipment; it merely carried power from one
trolley wire to another (Tr. 117). Additionally, a trolley wire
i~ smaller than the cit~d wire and is made of copper to withstand
the friction of another piece of meta 1 touching it (Tr. 148).
Another type of wire used in the affected area was a trolley
wire. Based upon the evidence, I conclude the subject
wire cannot be considered a trolley feeder wire. As the
operator's safety supervisor testified, the purpose of a trolley
feeder wire is to carry power from the initial power source over
long distances to trolley wires (Tr. 142-143)~ Because the
trolley feeder wire is larger than the troll~y wire it can carry
substantial voltage over greater distances without generating as
much heat (Tr. 147-148). Although, the wire cited by the inspector was the same dimension as a trolley ·feeder wire, this alone
would not make it a trolley feeder wire since its purpose was
different from that of a trolley feeder wire.
feeder~

!/

The cited wire does not ap~ear on the operator's photogra~hs
because the operator removed the wire after the citation
was issued. Th~ wire's route was pencilled in on the photos
(Tr. 102, 133, 154).

1705

The operator's contention that the cited wire is a trolley
wire or troJley feeder wire because it is part of the trolley
wire "system", is unpersuasive. Such an approach presents too
vague and uncertain a standard upon which to decide this case.
Moreover, the purposes of the Act are better served by the conclusion that the wire in question was a power wire. The insulation required for a power wire completely covers all sides of the
wire. It is obviously safer than guarding which covers only on
the top and sides. Guarding with an exposed underside is allowed
for trolley wires, because there must be an electrical contact
between the wire and the pole attached to the piece of equipment
being powered. ·Since the wire in this case did not come in contact with any pole or equipment, there was no need for its
underside to be exposed. In light of the foregoing, I conclude a
violation existed.
The violation was cited in a 104(d)(2) withdrawal order on
the ground that the operator was guilty of unwarrantable failure.
The inspector stated that because the foreman was in the area,
which was pre-shifted every day, he should have known of the violation (Tr. 104, 114, 128, 130). Here again, as with the prior
citation, the inspector and the Solicitor made no reference to
the criteria now laid down by the Commission for determining the
existence of unwarrantable failure. And here again, nothing in
t~e record shows aggraiated conduct of the sort required by the
Commission and illustrated by MSHA in its Policy Memorandum,
cited supra. On the contrary, the uncontradicted evidence discloses that the cited wire had been in use since 1980 without a
citation being issued (Tr. 137). Although such a circumstance
does not preclude subsequent ·enforcement, it. does show the
absence of aggravated conduct on the part of the operator. In
light of the foregoing, the finding of unwarrantable failure must
be vacated. The operator was guilty of only ordinary negligence.
I accept the inspector's testimony that a shock hazard
existed because miners in the area carried bars which could come
in contact with the uninsulated portion of the wire (Tr. 111,
121-122). On this basis I find the violation was serious. The
inspector's finding of significant and substantial must however,
be set aside. As already noted, the term "significant ~nd substantial" is not synonymous with gravity. The Commission has
defined "significant and substantial" in a precise and detailed
manner and.has established a four-step test to determine its
existence. National Gypsum Co., 3 FMSHRC 822 (1981); Mathies
Coal Co., 6 FMSHRC l 0984); U. S. Steel Mining Co., 6 FMSHRC
1834 (1984); Ozark-Mahoning Co., 8 FMSHRC 190 (1986);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (1987); Texasgulf
Inc., 10 FMSHRC 498 (1988). No evidence was presented to show

1706

whether the cited violation was significant and substantial under
the Com~iss1on•s guidelines. Furthermore, the Solicitor asked no
questions on this issue and the inspector said nothing about it.
Accordingly, this finding cannot stand.
In accordance with the foregoing findings of a violation of
ordinary gravity and negligence and in light of the stipulations
regarding the other statutory criteria, a penalty of $250 is
assessed.
ORDER
I have reviewed the briefs filed by counsel. To the extent
that the briefs are inconsistent with this decision, they are
rejected.
As already noted~ the stipulations regarding the remaining
criteria un&er section llO(i) of the Act, have been accepted~
Accordingly, it is ORDERED that Citation ~o. 2897188 be
vacated, and that Order Nos. 2~97193 and 2897194 be affirmed.
It 1s further ORDERED that .the following civil penalties are
assessed.
Order No.
2897193
2897194
the

Penalty
$ 25
$250

It is ORDERED that the operator pay $275 within 30 days from
of this decision.

~ate

\\
Paul Merlin
Chief Administrative Law Judge
Distribution:
Joseph T. Crawford, Esq., Office of the Solicitor, U. S. Department of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)

1707

FEDERAL MJNE SAFETY AND HEALTH REVIEW COMMISSl'ON
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

DEC 201988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

v.

.
.
.
.
.

CIVIL PENALTY PROCEEDING
Docket No. KENT 88~21
A.C. No. 15-09351-03582
Karst Robbins Mine No. 4

KARST ROBBINS COAL COMPANY, INC.:
Respondent
DECISION
Appearances:

Before:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, TN, for
:Petitioner.

Judge Fauver

The Secretary of Labor brought this proceeding for civil
penalties for alleged violations of safety standards under the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
~

The case was called for hearing in Kingsport, Tennessee, on
August 2, 1988. Government counsel appeared with his witnesses
and documentary evidence. Respondent did not attend the hearing.
The Government witness.es were sworn and testified, and the
Government's evidence was received.
It is clear from the nature of the evfdence in relation to
the charges, and the fact of Respondent's non-appearance, that
the request.for hearing by Respondent was intended to delay the
Government's efforts to assess and recover civil penalties.
Respondent's delaying tactics are further shown by the fact that
Respondent is in arrears of past civil penalties due under the
Act in the amount of $78,625 (as of October 4, 1988).
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following:

1708

FINDINGS OF FACT
1. Respondent, Karst Robbins Coal Company, Inc., is a
moderate to large sized operator with a production of 308,363
tons of coal in 1986.
2. The amount of the proposed penalties will not affect the
ability of the operator to continue in business.
Citations 2797848 and 2797849
3. While 6arrying out a spot inspectio~ at Respondent's No.
4 Mine on February 9, 1987, Mine Safety and Health
Administration CMSHA) Inspector Elijah Myers discovered that a
miner, Ira Lee Clark, had received an electrical shock on
February 5, 1987, while working on a 480 volt trailing cable.
4. This accident resulted in second and third degree burns
to Mr. Clark, but Respondent did not report the accident to MSHA.
5. Inspector Myers investigated the accident and found that
when Mr. Clark was injured he was allempting to do electrical
work on the cable, but was not a qualified electrician and was
not working under the direct supervision of a qualified
electrician as required by 30 C.F.R. §§ 75.511 and 75.153. This
was the basis for his issuance of Citation 2797848 on February 9,
19 87.
6.
Inspector Myers also found that when Mr. Clark was
injured the electrical circuit for the roof bolter cable had not
been deenergized and locked out or tagged at the power center, as
required by 30 C.F.R. § 75.Sll. For this reason he issued
Citation 2797849.
7.
Inspector Myers prepared an accident investigation
report shortly after the incident. His testimony regarding the
accident fully supported this report.
Ins~ector Myers found that
the injured miner, Ira Lee Clark, was assigned to do electrical
· repair work by his supervisor, Mr. Bill Whitt, Jr., who was at
that time chief electrical supervisor and maintenance foreman.
8. When he attempted to do electrical work on the roof
bolter trailing cable Mr. Clark was not a qualified electrician
and he was not being directly supervised by a qualified
electrician.

9. Befoce he began working on the cable, Mr. Clark asked
the roof bolter operator, Ernest Robbins, to deenergize the cable.
This was in itself an unsafe practice and also contrary to the
requir~~ents of 30 C.F.R. § 75.511.

1709

10. Mr. Robbins pulled both "cat-heads" or plugs on the
cable from the power center and laid them over the rib. He did
not lock out or tag the cable. Devices to lock out or tag a
disconnected cable. were not available at the power center.
11. After Mr. Robbins removed the cabie plugs, Frank Gross,
the section foreman, came along and plugged them back into the.
power center. He mistakenly assumed that the cable had been
·accidentially disconnected by moving equipment hitting the cable.
12. Forenan Gross stated that there were no devices to lock
out or tag the cat-heads at the time that the injury occurred
despite his prior notification to company officials, including
Danny Karst, the mine manager, of the need for such devices.
13. When Mr. Gross re-energized the cable Mr. Clark was
holding the cable, attempting to resplice it. He was immediately
shocked and burned. If lock out or tagging devices had been
provided for the roof bolter cable and used, Mr. Clark would not
have been injured.
14. Inspector Myers has 28 years of qualified electrical
experience in coal mining, including work in private industry and
with MSHA. In his expert opinion Mr. Clark would have been
killed had Ernest Robbins not pulled the cable out of his hands.
At the time of the electrical shock, Mr. Clark was helpless and
unable to free himself from the live wire.
15. In July 1986, Inspector Myers had investigated an
electrical fatality at the Karst Robbins No. 4 Mine involving
nearly identical circumstances. Ralph Whitehead, like Mr. Clark
in this case, was not a qualified electrician but attempted to.
repair a 480 volt trailing cable. He did not deenergize the
cable and was electrocuted when he came into contact with an
energized conductor.
16. A § 107(a) withdrawal order and three citations were
issued by Inspector Myers in July 1986, as a result of the
investigatidn of the Whitehead fatality.
·
17. Shortly after the Whitehead fatality Inspector Myers
warned Eddie Karst, owner of the mine, about the danger of
assigning ~nqualif ied personnel to do electrical work and the
danger of doing electrical work on a cable without deenergizing
the circuit and locking it out or tagging it.
18. MSHA Supervisor Henry Standafer has over 35 years
qualified electrical experience in coal mining and has been
electrical supervisor for District 7 of MSHA since June 1977.
Mr. Standafer participated in the investigation of the Whitehead

1710

fatality in July 1986 and helped prepare the accident
investigation report.
19. Mr. Standafer described an electrical fatality that
occurred in District 7 on August 8, 1983. A qualified
electrician was electrocuted while attempting to repair a roof
bolter cable without deenergizing the cable. This occurred at
the Lesterf ield Coal Company.
20. As a result of that electrical fatality, Mr. Standafer
initiated a program in District 7 to warn coal operators and
miners doing electrical work of the dangers of working on
energized electrical equipment and to inform them that there was
no need energize a trailing cable in order to "trouble shoot"
it.
(Tr. 51-52).
21. In that program MSHA representatives spoke with over
2,600 mining personnel within District 7, including the
supervisors and affected miners at Karst Robbins. This included
Respondent's supervisor Bill Whitt, Jr.
22. After the Whitehead fatality at Respondent's No. 4
Mine, ·in July 1986, Danny Karst, Edward Karst and Bill Whitt,
Jr. were management representatives at conferences with MSHA
representatives.
In those conferences, MSHA emphasized the need
to have only qualified electricians or properly supervised
personnel doing electrical work and the importance of
deenergizing and locking out or tagging circuits before doing
electrical work on them.
·
23. At the time of the Whitehead fatality, Respondent's No.
4 Mine had only three qualified electricians for the entire m:ine,
which employed about 300 miners in four working sections.
24. Mr. Standafer is responsible for maintaining and
monitoring the mines in MSHA's District 7 to ensure that they
have qualified electrical personnel. He described Karst Robbins'
record for maintaining an adequate number of such miners as "very
poor" (Tr. 55-57).
25. Mr. Standafer also described Respondent's record for
compliance with electrical safety standards as being "very bad,
very poor" (Tr. 62).
26. Mr. Standafer agreed with Inspector Myers' expert
opinion in the Whitehead case, and in this case, that there was
no need to have a trailing cable energized to properly carry out
trouble-shooting or repair work on the cable.

1711

Order 2785787
27. MSHA Inspector Donald Henry issued§ 104(d)(2) Order
2785787 to Respondent on April 16, 1987, for a violation of 30
C.F.R. § 75.507 .because Respondent was opera.ting a power center
in the return air course, rather than in the 1ntake air course.
28. The section foreman, Jim Brogdon, stated to Inspector
Henry that it was the usual procedure at this mine to maintain
power centers in the return air courses.
29. The mine manager, Mr. Danny Karst, confirmed Mr.
Brogdon's statement to Inspector Henry that this was the normal
procedure at the Karst Robbins No. 4 Mine.
30. Because of the risk of methane explosions, and the risk
of propagating fires or explosions by accumulations of coal dust,
a serious threat of explosion or mine fire was caused by return
air from the .face area sweeping over .the power center, which is
not required to be permissible equipment. Such an explosion or
fire could have resulted in death or serious injury to mariy
miners.
Citation Number 3005188
31. Inspector Henry issued Citation 3005188 at Respondent~s
Mine No. 4 on July 1, 1987, for a violation of 30 C.F.R. § 75.200
because he found unsupported roof in two areas of a roadway
leading to the 002 section.
32. One area of unsupported roof was about 2,000 feet from
002 section. Draw rock had fallen out of the roof, loosening
eight roof bolts and leaving a gap three to six inches between
the roof and the bearing plates attached to the roof bolts. This
gap caused the roof .to be unsafe and unsupported because the
bearing plates were not firm against the roof.
33.
Inspector Henry noticed that none of the fallen draw
rock was on the mine floor in this area. This indicated to him
that the ground area had been cleaned up before his observation
of the dangerous roof condition.
34.
Inspector Henry observed another unsafe roof area about
1,000 feet closer to 002 section. The heads of roof bolts and
bearing plates were missing from about 12 roof bolts covering an
area 15 feet wide and 20 feet long.
35.
Inspector Henry observed evidence that the ground area
had been cleaned up prior to his inspection.

1712

36. There had been a number of roof falls in the mine
before the issuance of this citation. Roof conditions at this
mine were generally poor.
37. When Inspector Henry observed the _two cited roof
conditions he was traveling with Jack O'Rourke, mine foreman, and
Bill Shuler, the mine superintendent. ~either offered any
explanation regarding these unsafe conditions.
38. Respondent had not done anything to correct the roof
support in the two cited areas before the inspector arrived.
Both areas of dangerous roof presented a risk of death or serious
injury to miners traveling in the roadway.
DISCUSSION WITH
FURTHER FINDINGS
Citations 279848 and 2797849
Respondent showed gross negligence and a reckless disregard
for the cited safety standards by directing an unqualified and
unsupervised miner, Ira Lee Clark, to do electrical work on a
trailing cable and by failing to deenergize and lock out or tag
the electrical circuit while he attempted to work on the cable.
The miner received an electical shock with serious burns, and
probably would.have been killed had a fellow employee not pulled
the cable from his hands.
Respondent had direct, prior notice of the importance of the
cited regulations when a miner was killed in an electrocution at
this mine involving nearly identical circwnstances {the Whitehecid
case, in July 1986), and in 1983 Respondent had been notified of
the dangers involved in failing to comply with the same
electrical standards.
In addition, Respondent had been put on
notice by MSHA that it was not necessary to energize a trailing
cable in order to trouble shoot or repair the cable.
Order 2785787
Respondent showed gross negligepce in placing a power
center in the return air course, in violation of 30 C.F.R.
§ 75.507.
This equipment is not required to be permissible
(i.e., designed to prevent a methane explosion) and therefore
should not be operated in return air, which would spread any
possible buildup of methane from the working faces to the
ignition sources in the power center. This violation constituted
an "unwarrantable failure" to comply with a safety standard
within the meaning of§ 104{d)(2) of the Act.

1713

Citation 3005188
The dangerous roof conditions were obvious and should have
been corrected by Respondent before the area was inspected by
MSHA. Respondent was therefore negligence ~n connection with
violation. The violation was most serious because the dangerous
roof conditions were in a roadway traveled by miners.
Compliance History
Respondent has a poor compliance history, as shown by
numerous serious violations of safety standards in the two-year
period before the inspections involved here, and as shown by the
testimony of MSHA witnesses.
In addition, Respondent has
demonstrated a persistent and deliberate failure to pay
substantial civil penalties for violations of mine safety
standards that are long overdue. As of October 4, 1988;
Respondent was in arrears for civil penalties in the amount of
$78,625. The recalcitrance shown by this record of nonpayment is
part of Respondent's poor compliance history.
Penalty Assessments
Considering all of the criteria for civil penalties in
Act, I find that the Secretary's following
post-hearing proposals for civil penalties for the violations
found herein are appropriate, and Respondent is ASSESSED those
penalties:
§ llOCi> of the

Civil Penalty
Citation 2797848
Citation 2797849
Order
2785787
Citation 3005188

$7,500
$7, 50·0
$2,500
$1,500
$19,000
Conclusions of law

1. The undersigned judge has jurisdication over this
proceeding.
2.
Respondent violated the safety standards as alleged in
Citatioris 2797848, 2797849 and 3005188 and in Order 2785787.

1714

ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay the above
civil penalties of $19,000 within 30 days of this Decision.
·

~-:r-MAVV\.....
William Fauver
A~inistrative

Law Judge

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Mr. John Luttrell, Operations Manager, Karst Robbins Coal
Company, Inc., Route 1, Box 58, Closplint, KY 40927 (Certified
Mail)

kg

1715

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

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

DEC 221988
. CIVIL PENALTY PROCEEDINGS
.

·v.
RANDY ROTHER..\IBL, individually
and d/b/a TRACEY & PARTNERS,
Respondent

..
.
.
.

..

Docket No. PENN 88-155
A. C. No. 36-01836-03529
Docket No. PENN 88-156
A. C. No. 36-01836-03530
D6cket No. PENN 88-60
A. C. No. 36-01836-03528
Tracey Slope

DECISION
Appearances:

Anita Eve, Esq., Office of the Solicitor,
U. s. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary;
Mr. Randy Rothermel, Tracey and Partners,
Klingerstown, Pennsylvania for the Respondent.

Before:

Judge Weisberger

Statement of the case
In these consolidated cases the Secretary (Petitioner} seeks
civil penalties for alleged violations by the Operator
(Respondent) of various safety standards set forth in Volume 30
of the Code of Federal Regulations.
Pursuant to notice, these
cases were heard in Harrisburg, Pennsylvania, on August 8 - 9,
1988. Donn W. Lorenz, HarryW. Kern, Victor G. Mickatavge, James
Schoffstall, and William c. Hughes testified for Petitioner.
Randy Rothermel and Cindy Rothermel testified for Respondent.
Responden~ also called as witnesses William C. Hughes, Donn
Lorenz, James Schoffstall, and Harry w. Kern.
Neither Petitioner nor Respondent filed a Post Trial Brief
or Proposed Findings although time was allowed for such to be
filed~

on December 14, 1988, Petitioner filed a Motion to Vacate
Citation No. 2676409 and Dismiss the Related Civil Penalty
Proceeding. This Motion was not opposed by Respondent, and it is
hereby granted.

, 7, c:,

Stipulations
At the hearing the Parties indicated the following facts
were stipulated to:
1. The Tracey Slope Mine is owned and operated by the
Respondent, Randy Rothermel.
2. The Tracey Slope Mine is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977.
3. The presiding Administrative Law Judge has jurisdiction
over these proceedings pursuant to § 105 of the Act.
4. The citations, orders, modifications and terminations,
if any, involved herein, were properly served by a duly authorized representative of the Secretary of Labor upon an agent of
the Respondent at the dates, times, and plates stated heiein, and
may be admitted into evidence for the purpose of establishing
their issuance.
·
·
5. The Parties stipulate to the authenticity of their
exhibits but not to relevancy or the truth of the matters asserted
therein.
6. The computer printout reflecting the Respondent's history of violations is an authentic copy and may be admitted as a
business record of the Mine Safety and Health Administration.
7. The total annual production of the Tracey Slope Mine was
approximately 3,240 tons of coal per year.
8.

The Tracey Slope Mine is no longer in operation.

At the hearing, the Parties agreed to submit a post hearing
stipulation as to Respondent's history of violations. On
December 19, 1988, in a telephone conference call, with Counsel
for Petitioner and Respondent's owner, it was stipulated that the
history of the previous violations should be determined based on
the fact that the approximate number of assessed violat~ons in 24
months prior to the issuance of the first Citation in these cases
are 40.
I.

Docket NO. PENN 88-60
Citation No. 2676133

30 C.F.R. § 75.1704i as pertinent, provides that" • • • two
separate and distinct travelable passageways," which are to be
designated as escapeways and" . • • which are maintained to

1717

insure passage at all times of any person, including disabl~d
persons, • • • shal 1 be maintained in safe condition • • •
"
In essence," Donn W. Lorenz, a MSHA Inspector, testi Eied that when
he inspected Respondent's mine on March 24, 1987, of the two
escapeways, one was "inaccessible" due to a rock fall.
Government's Exhibit 1 depicts that the area that was described
by Lorenz as being "inaccessible," was in the path leading from
the face to the fourth level, which was the return escapeway. It
appears to be the Respond~nt's position that the regulations do
not require a second escapeway while a slope is being developed,
and that in either event, as indicated by the cross-examination
of Lorenz, access from the working face to the fourth level
return escapeway could have been obtained by going inby to the
main slope intake escapeway, and then traveling in a northerly
direction to the intersection with the fourth level and then
turning west to the return escapeway.
I find however that
section 75.1704, supra, by its clear language requires "two separate and distinct" escapeways, and that there is nothing further
in the language of this section which would exclude its applicability to a developing slope. Also, I have taken into account
Lorenz's testimony that access from the working face to the
return escapeway was "inaccessible" due to a rock fall, and the
cross-examination of Respondent's owner Randy Rothermel which
indicates that, in essence, although the escape route was
travelable, it would not be possible for a disabled person to
traverse that route.
i\ccordingly, I find that on the date in
issue, the Respondent's mine did not nave two separate and
distinct escapeways maintained in a condition safe enough to
ensure passage of all persons including disabled ones. Thus I
find that there has been a violation· of section 75.1704, supra.
The Citation that was issued characterized the violation
herein as being significant and substantial. The only evidence
bearing on this issue consists of statements by Lorenz that the
escapeway was "inaccessible" due to a rock fall, and that it was
"reasonably likely" that one traveling this way would "get hurt,"
resulting in lost work days or restricted duty (Tr. 30).
Lorenz's testimony does not reveal any facts he took into account
in arriving at the above opinions. Although a rock fall would
clearly contribute to an element of danger to. safety, in view of
the fact that there is no evidence before me with regard to the
extent of the rock fall and its quantity in relation to the
traveled pathi I have no basis to conclude that there was a
reasonable likelihood that the hazard contributed to would result
in an injury, and that the injury in question wotild be of a
"reasonably serious nature."
(c.f. Mathies Coal Company 6 FMSHRC
1, 3-4 (January 1984) ). Accordingly, I conclude that it has not

1718

been established that the violation herein was significant and
substantial..
CSee, Mathies Coal Company, supra). In the same
fashion, for the same reason, I cannot conclude that the violation herein was any more than a moderate degree of gravity.
Further, I conclude that Respondent was negligent to only a
moderate degree, as the escapeway was travelable before a roof
breaking occurred, over which the Respondent had no control
{Tr. 30-31). Based upon this analysis as well as the remaining
·statutory factors contained in section llOCi> of ~he Act, I
conclude that a penalty herein of $100 is appropriate.
Order No. ~676178
Harry w. Kern, an inspector for MSHA, testified, in essence,
that on July 22, 1987, he requested permission from "Rothermel to
enter the mine to make a spot inspection. Kern said that
~othermel told him that he {Kern) was not allowed in the mine to
make an inspection. Accordingly Kern testified that he then
issued Order No. 2676178, a section 104Cb> Order. Rothermel did
not contradict this latter statement attributed to him, but
indicated that on the date the Order was issued, there was a
second escapeway, as the face had advanced from where it was at
the date the original citation was issued, and accordingly the
third slant was open all the way to the return escapeway {the
four th level).
I find, based upon Kern's uncontradicted testimony, that on
July 22, 1987, Rothermel refused him ~ermission to make an inspection.
Accordingly, I find that this Order ~a~ properly issued.
This Order was characterized as significant and substantial, but
there was no evidence adduced on this point. I conclude that
violation herein is not significant and substantial.
Citation No. 26767135
Lorenz testified that, in essence, when he inspected
Respondent's mine on July 12, 1987, he did not observe any
permanent stoppings in the gangway or fourth level which was the
third open crosscut outby the working face.
It was further his
testimony that th~ ventilation map of Respondent's mine so
indicates permanent stoppings in the thicd open crosscut outby
the face.
Rothermel, in essence, conceded that there were no
permanent stoppings in either the first, second, or third slants
or the fourth level. However, he testified that when he took the
mine over, ther~ was a waiver which indicated that permanent
stoppings did not have to be made out of cinder blocks. However,
such a waiver was not offered in evidence, and Rothermel indicated that the waiver did not specify the type of 1naterials to be
used to construct the permanent stoppings.
It was further
Rothermel's testimony that in 1982, when he received a citation

1719

for a permanent stopping, he was told by special investigators
that all he had to install was plywood to separate the intake and
return air.· It was further "Rothermel' s statement that subsequent
to the Citation in issue, he conferred with Jim Schoffstall,
Jerry Farmer, and Ed Blank, MSHA Officials, and explained to them
that he had intended to put an overcast where the stopping should
have been, and therefore had not installed permanent stoppings.
Rothermel indicated that the MSHA Off ic-ials told him that a
double brattice was sufficient. It further was Rothermel's statement that, because the slope was being developed and was at most
100 feet from the blasting, permanent stoppings could not have
been installed as they would have been blown out of the slope.
I conclude, based upon Lorenz's testimony, and not contested
by Respondent, that on the date in question there was no permanent
stopping at the third crosscut outby the face. Such a stopping
appears to be indicated on the ventilation map. Further, the
ventilation plan in effect at the time, CGx-2), indicates that
permanent stopping "will be constructed of concrete blocks, cinder
blocks, sheet metal or other fire-resistant material." I find
that there was insufficient evidence to conclude that there was
any waiver in effect, which would have allowed for the plac~~ent
of stoppings at the third open crosscut outby the face, of
materials other then those described in the plan. Accordingly, I
£ind that· inasmuch as there were no permanent stoppings at the
third open crosscut outby the face as requ.ired by the plan and
map~ the plan has been violated and hence a violation of 30 C.F.R.
§ 75.316.
Citation 2676135 issued by Lorenz alleges the violation to
be significant and substantial. However, there ~as no evidence
adduced to support such a conclusion. Accordingly, I find that
the violation herein was not significant and substantial. There
is no evidence that the air on the working section was insuf ficient. Also there is no evidence of the contribution to any
hazard as a result of the stoppings in question being of brattice,
as testified to by Rothermel, rather than of the construction
required in the plan. Nor is there any evidence that the
diffetence in construction caused any·increment in any hazard.
Accordingly, I find that it has not been established that the
gravity of the violation herein is mace than low.
Further, based
upon the observations of Rothermel's demeanor, I find that he was
truthful in his testimony, in essence, that he acted in good faith
in celying upon a waiver and conversations with MSHA Officials in
constructing a stopping of brattice material.
AccorJingly, I
conclude that the Respondent's negliJence herain is low. Taking
into account these factors as well as the other statutory factors
contained in section llbCi) of the Act as stipulated to by the
Parties, I conclude that a penalty herein of $20 is appropriate.

~20

Order No. 2677518
Victoi G. Mickatavge, a MSHA Inspector, testified that on
.July 22, i987, he returned to Respondent's mine to perform a
follow up inspection. He said that Rothermel told him that he
(Mickatavge) was not to inspect the mine and he was not allowed
entry. Mickatavge accordingly issued Order 2677518 predicated
upon a violation of section 104(b) of the ~ct.
~othermel did not
deny having refused Mickatavge permission to inspect the mine.
It therefore is concluded that this Withdrawal Order was properly
issued.
Ho~ever, there is no evidence to conclude that it was
significant and substantial.
Citation No. 26767136
Lorenz testified that on March 25, 1987, the fifth level was
not depicted in the last ventilation plan ceceived by M.SHA from
Respondent in June 1980. He indicated that this plan depicted
development only to the thir~ level.
James Schoffstall, an
inspector s.upervisor for MSHA, indicated that developm~nt at the
Eourth and fifth level was beyond that depicted in the ventilation
plan CGx-2), which was approved in 1984.
Rothermel indicated that
Eor the last 12 years he has been submitting ventilation maps to
MSHA, and that the last one i~ 1987, had been picked up by MSHA
from Respondent's engineer Al Reidel.
He also maintained, in
essence, that the development of the fifth level would have the
same ventilation as the third level, as it did not change the
\'later gauge ~ihich created the vacuum ori the fan to draw air.
I
find, based upon the testimony of Schoffstall and Lorenz, that on
the date in issue, active working·s at the fifth level had not been
included or projected on a ventilation plan which MSHA had
received from Respondent. Specifically, I note that 30 C.F.R
§ 7 5. 315-1 requires an opera tor to sub.nit a ,nap containing "* ** ( 6)
Projections of anticipated mine development for at least 1 year***
(8) ~ll underground workings with the active working sections
delineated."
Inasmuch as the underground workings at the level 5
were not set forth nor projected in the most recent map on file
with Petitioner, I find that Respondent herein violated section
75.316-1, supra.
I. find Rothermel's testimony insufficient to
establish that any map containing the above information was filed
· "1ith ?et i ti oner.
I do not .E ind any mer it to Respondent's argu~ent, in essence, that it be relieved of any responsibility to
eile such .::i. plan, as development of the t if th level wo11ld have
oeen the same a.s development of the third 1 evel.
I find that no evidence has been adduced by Petitioner to
2stablish either the gravity of the situation of the violation or
the degree of Respondent's negli3ence • . Based upon the lack of
~vidence in these areas, as well as the remaining statutory
factors of llO(i) of the Act, I conclude that a penalty herein of
$20 is appropriate.

1721

Cit~tion Nb.

2616225

Kern testified, in essence, that he received information
from the Denver M.SHA Off ice that Respondent had not filed a
Quarterly Employment and Production Report for the first quarter
of 1987, as required by 30 C.F.R. § 50.30. The Respondent did
not present any testimony or other evidence to rebut Kern's testimony. Accordingly, I find, based upon Kern's testimony, that
Respondent herein violated 30 C.F.R. § 50.30. No evidence was
presented with regard to Respondent's negligence in this matter,
nor was any evidence presented with regard to the gravity of this
violation. Taking into account the lack of these factors, as
~ell as the r~naining statutory factors in section llO(i) of the
Act, I conclude a penalty of $20 as assessed is appropriate.
Citation No. 26776177
30 C.F.R § 49.2 as pertinent, provides, in essence, that an
operator shall either establish two mine rescue teams or enter
into an arrangement for mine rescue services except where alternative compliance is permitted for small and remote mines, or
except for those mines operating under special mining conditions.
There is no evidence in this case that the requirements for these
two exceptions have been met.
Kern testified that, in general, the MSHA District Off ices
are notified when a rescue service no longer covers a min~.
He
further testified that when such a circllinstance occurs, the procedure is Eor the District Off ice to mail a letter to the local
MSHA Off ice advising it of the same and indicating that a citation
is to be served.
According to ~ern such a letter was received and
a citation was served upon Respondent.
No testimony was offered
by ~espondent nor was any evidence adduced by Respondent to rebut
the testimony of Kern.
At most, Kern's testimony, ~ased upon his personal knowledge,
astablished that he received a letter from another MSHA Off ice
advising him to serve a citation. Howeve~, there was no documentary evidence, nor any testimony based upon personal knowledge
from which I could reasonably conclude that,. in fact, the company
that had previously arranged to service Respondent had terminated
its relationship. Nor was any evidence presented before me to
est~blish that Respondent did not have its own mine rescue team.
Thus, I ~ust conclude that it has not been established that there
has been any violation herein of section 49.2, supra.
Accordin3ly, this Citation must be dis~issed due to lack of proof.

1722

II.

Docket No. PENN 88-155
Order No. 2932285 and Citation No. 2932286

According to Lorenz, on October 1, 1987, there was 3 to 15
percent of methane in the working section in the gangway approxi1nately 30 feet inby the ~o. 3 Chute. He indicated that methane
will explode when it is in the concentrations of 5 to 15 percent.
In 1etecting the methane he used a National Mine Service methane
detector.
He issued Withdrawal Order ~o. 2932285 under the
provisions of section 107(a) of the Federal Mine Safety and Health
i\ct of 1977, providing for withdrawals from the mine in the event
of "imminent danger." In addition, Lorenz also issued Citation
~o. 2932286 citing Respondent for violating 30 C.F.R. § 75.308
which provides, in essence, until the air at the working face is
less than 1.0 percent, power shall be cut off and no work shall be
~ermitted, and that if the air ~ontains more than 1.5 percent,
then all f)ersons shall be withdrawn, and all power shall be cut
~EL
According to Rothermel, the methane testing by Lorenz, which
resulted in the Withdrawal O~der and the above Citation, 6ccurred
.:tt approximately 11:00 a.m., when coal had just been fired, which
is the time when methane is nor;nally released.
On cross-e}camination, Lorenz indicated that subsequently on October 1, at
approximately 1:30 p~m., at Rothermel's request he checked for
methan~ and in the monkey it Nas 1.2 percent, and in th~ gangway
1.7 percent. Lorenz's testimony, that at the location tested in
the workin9 section, there was between 3 to 15 percent oE :nethane,
has not been rebutted.
i\lthough there were no workers doing anything at the time, there was power in the section. Giv9n these
uncontradicted s_tatements, I find that the Withdrawal Oeder
No. 2932285 was properly issued and Respondent was in violation of
section 75.308 as cited.
According to Lorenz, the amount of methane detected was in
the explosive range, and a resulting explosion would be "rather
violent," (Tr. 159). Inasmuch as there were miners in the
vicinity of the high methane, and power was on in the section, I
find the violation herein to 'oe significant and substantial.
(See, Mathies, supra).
In the same fashion, I £ind that the
gravity of the violation herein to be high. · In essence, it is
~espondent's positi6n that it was not negligent in having miners
~amain in the vicinity of the high methane reading, as they were
sitting in close proximity to a v~ntil~tion tube providing Eresh
'iir to remove the methane, and if they had left this position,
they ~ould have had to traverse an ~rea of high methane.
~espondent also appears to tnai.'.'ltain that the release of methane
was highest when coal is fired, and that release of high !nethane
at that time is normal.
I find however, that the dictates of
section 75.308, supra, unequivoc~lly mandate withdrawal "from the
·:i c':?.::i of the mine in danger thereby to a sa Ee "lrea," and cut ting

1723

off all electrical power whenever the air contains more then
1~5 percent of methane.
Although the release of methane upon
firing might have been a normal occurrence, I find Respondent
negligent to a high degree in not having had the power shut off
until methane levels safely returned to less than one percent.
In the same vein, I find Respondent highly negligent in not
having removed all its miners from the entire area of the mine
endangered by the release of excessive ;amounts of methane.
Taking these factors into account, as well as the remaining
statutory factors in section llOCi) of the Act, I find the
assessed penalty herein of $1000 to be appropriate.
Citation No. 2932287
Lorenz also issued Citation No. 2932287 alleging that
although Respondent had a permissible flame safety lamp with
which tests were made for methane, Respondent did not have an
approved methane detector, and hence violated 30 C.F.R.
§ 75 .307-1.
This section, in essence, provides that subsequent
to December 31, 1970, an approved methane d~tector "shall be used
for such test," and that a permissible flame safety lamp may be
used as a "supplementary testing device." Respondent has not
contradicted Ldrenz's testimony that it did not have a permissible methane detector • . It appears to be Respondent's position
that either a methane detector or a permissible flame safety lamp
i_s permissible.
However, I findthat according to the clear
language of section 75.307~1, the use of permissible flame
detectors is mandated and that a flame safety lamp may be used in
addition to the methane detector, but not in substitution thereof •
. CSee, Webst.er' s New Collegiate Dictionary, 19 7 9 edition, which
defines supplementary as "added as a supplement," and supplement
as "l.
something that completes or makes an addition.">
Hence,
I find that section 75.307-1 was violated herein.
Although the citation alleges the violation to be significant and substantial, there were not facts presented to establish
that Respondent's failure to have a methane detector was significant and substantial specially in light of the fact that it had a
safety flame lamp. Lorenz's testimony appears to indicate that
generally a methane tester is safer than a safety lamp, in that a
safety lamp could sometimes go out in high concentrations of
methane, and the gauze in the lamp could be ignited, causing an
accident.
Bowever, there was no proof of the specific hazard
contributed to by the violation herein, nor was there any proof
of any likelihood that any hazard contributed to would result in
an injury of a reasonably serious nature.
Hence, I find that the
violation herein has not been established to have been significant
and substantial.
For the same reasons, I find the gravity of the
vi6lation herein not to have been established to have been more
than low.

1724.

Although the violation herein might have resulted from
Respondent's misunderstanding of section 75.307-1, supra, I find
this section is clear in its requirements. Hence Respondent is
found to have been negligent herein to a m6derate degree in not
following the clear dictates of th~ regulation. Considering
these factors, as well as the remaining factors in section llOCi>
of the Act, as stipulated to by the Parties, I find that a
penalty herein of $50 to be appropriate.
Citation No. 2932288
Lorenz further testified that subsequent to the issuance of
the 107Ca> Withdrawal Order <Order ~o. 2932285), he told Rothermel
to withdraw from the mine, and the latter indicated that he was
going up ~o. 2 Chute to drill and shoot. He said that Rothermel
took his tools and crawled through the No. 2 Chute. This testimony has not been rebutted by Respondent.
Accordingly, I find
that Respondent did not obey the Withdrawal Order and hence
Citation No. 2932288 was properly issued.
I have previously found
. that the underlying condition of high methane levels which gave
rise to the Withdrawal Order No. 2932285 posed an imminent danger.
As such, I find that Rothermel, in refusing to vacate the effected
area in spite of being told by Lorenz to vacate, acted with a very
high degree of negligence. The gravity of this violation was
high, as Rothermel would have been subjected to high concentrations of methane. Taking these factors into account,· as well as
the remaining factors in section llO(i) of the Act, I find that
the assessed penalty of $2000 is appropriate.
Citation Nos. 2932309 and 2932310
On the same date, October 1, 1987, Kern issued Citation
Nos. 2932309 and 2932310 alleging violations of 30 C.F.R § 75~301
concerning the quantity of air reaching the last open crosscut in
the ~o. 2 Chute off the fifth level East gangway, and the face of
the West monkey of the fifth level East gang~ay, respectively.
In the Citations he noted the quantity of air at the last open
crosscut to be only 3950 cubic feet par minute with a methane
reading of 2 percent.
In the face he noted. the air quantity of
1291 cubic feet per meter with a methane reading of 5 percent.
Section 75.301, supra, provides that the. minimum quantity of air
reaching the working face shall be 3000 cubic feet a minute.
Respondent did not rebut the finding of ~ern as to only 1291
cubic feet per minute at the face.
~ccordingly, I find a violation of section 75.301, supra, as alleged.
section 75.301,
supra, further provides that in all active workings " • . • the
volwne and velocity of the current of air shall be sufficient to
dilute, render harmless, and to carry away, flammable, explosive,
noxious, and ha~mful gases, and dust, and smok~ and explosive

1725

fumes." It further provides that the authorized representative
of the Secretary "· • • may require in any coal mine a greater
quantity arid velocity of air when he finds it necessary to
protect the health or safety of miners." In this connection,
Kern presented his opinion that there was not enough air present
to remove the concentrations of methane found.
Respondent did
not rebut this opinion or offer any contrary evidence. Accordingly, I find that section 75.301, supra, was violated herein as
indicated in Citation Nos. 2932309 and 2932310.
Rothermel testified that the only machinery which was in
operation when the Citations were written was a nonpermissible
fan.
I find, however, that what is critical is not the situation
at the precise moment the Citation was issued, but I must rather
take into account the presence of undiluted excess methane in the
normal mining cycle which includes blasting. Based upon the
previous testimony of Lorenz, I conclude that excess undiluted
methane does present a·situation where there is a definite safety
hazard of an explosion with a reasonable likelihood that this
hazard will result in an injury of a reasonably serious nature.
Thus, the violation herein can be characterized as significant
and substantial. For essentially the same reasons, I find the
gravity of this violation to be relatively high. I find that the
only evidence with regard to Respondent's negligence herein
consists of testimony by Rothermel with regard to the placement
of a tube from the fan to provide air to clear methane from the
area. Since Respondent was making some attempts to dilute the
methane I find that it acted herein with moderate negligence.
Taking these factors into account, as well as the remaining
statutory factors in section llOCi) of the Act, I find a civil
penalty of $750 for a violation of Citation No. 2932309 and a
civil penalty of $750 for a violation of Citation ~o. 2932310 to
be appropriate.
Citation No. 2932312 and Order No. 2932313
Kern, on October 2, 1987, found with regard to Respondent's
fan, used-to ventilate the working section on the fifth level,
that its glands were loose and its wires were not protected. He
thus issued Citation ~o. 2932312 alleging the fan to be nonpermissible and thus in violation of 30 C.F.R. § 302-4(a). This latter
section provides that a fan used to provide ventilation of the
working face" • • • shall be of a permissible type, maintained in
permissible condition . • •
" The Respondent did not present
evidence as to the specific condition of the fan, but indicated
that it had used the fan for some time. Respondent moved to
vacate the Citation on the ground that it had a waiver for this
fan, and it was not notified that this waiver, which was for the
second level, and used for the third and fourth levels, could not
be used for the fifth level. Neither the waiver nor its contents

1726

were offered in evidence, (Rothermel indicated that his records
had been burned).
As such, I can not find that Respondent was
relieved from the responsibility of complying with section 75.3024 (a) with regard to the fan in issue. I thus find that Respondent
herein did indeed violate section 75.302-4, supra. In _light of
this conclusion, Respondent's Motion to Vacate the Citation is
denied.
Petitioner has alleged that the violation herein was signif icant and substantial, but has not presented any evidence which
would tend to establish that the specific condition of the fan,
which rendered it nonpermissible, created any discrete safety
hazard which resulted in a reasonable likelihood of an injury of
a reasonably sarious nature. As such, I must find the violation
herein not to be significant and substantial (Mathies, supra).
In the same fashion, I can not find that the evidence herein
establishes the violation to be other than a low gravity. I
find, based upon observations of Rothermel's demeanor, that the
Respondent herein acted. in good faith in believing that it had a
proper waiver allowing it to operate the fan in question.
Accordingly, I find that Respondent's negligence herein to be low.
Taking these factors into account, as well as the remaining
statutory factors, I find a penalty herein of $20 to be appropriate.
A:s>proximately 20 mi~utes after the issuance of the above
Citation, Kern issued Withdrawal Order No. 2932313 which provides
th.at" • • • Rothermel stated that he would not remove the
auxiliary electric fan from the working section." Respondent has
not presented any evidence to rebut this statement. Hence, I
find this Order to have been properly issued.
III. PENN 88-156
Citation No. 2932307
Kern testified that when he was at the mine on September 10,
1987, Respondent did not have an updated map. He indicated he
believed the date of the last mine map was 1986, and that he
knows it was more than a year since the last· map was subnitted.
Respondent did not of fer any cross-examination of Kern, and hence
his testimony ...,as not rebutted.
Schoffstal 1, testifying for the
Respondent, indicated that Respondent's last map was submitted in
April 1985, and he was "fairly certain" it set forth the third
level (Tr. 307). Testimony presented with regard to other citations discussed in this decision indicates that Respondent, at
the time the Citation was issued, was working on the fifth level.
Since it was not contradicted that the last EileJ map went to th~
third level, it must be concluded that Respondent did not.have an
updated rnap.
As such, it had been established that there was a

1727

violation of 3-0 C.F.R § 75.1200 which provides, in essence, that
an operator shall have an accurate "and up-to-date map." I do
not find that this violation was any more than a low level of
gravity. Further, Rothermel had told Kern that he had requested
an engineer to prepare an updated map, and as such, I find
Respondent's negligence to be very low. Accordingly, based upon
these factors and the remaining statutory factors, I conclude
that a penalty of $20 is appropriate for the violation herein.
Citation No. 2932311
On October· 1, 1987, Kern issued Citation No. 2932311 inasmuch as he observed, in violation of the Roof Control Plan, that
"Respondent had not installed manways in the No. 2 and No 3 Chutes
off the fifth level gangway. Respondent maintains, referring to
language on page B of the Roof Control Plan (Gx 4), that the Plan
is a minimum Roof Control Plan, and that in lieu of manways, foot
carries were installed every 5 feet. The harries were boards
1 inch thick attached to props on the bottom of the chutes, with
a height of approximately 3 feet.
There were three props across
the approximately 15 foot wide chutes, leaving 2 feet on each
side of th~ barries.

\

I find that the lack of manways to be a clear violation of
the Roof Control Plan, which in the section headed protective
inanways, unequivocally provides as follow:
"Protective ma.oways
will be installed in the chutes along with development,"
(Gx 4).
~lso I note that, as part of the plan, paragraph 12 of the
conventional safety precautions provides for "protected manways"
where the pitch of the vein exceeds 20 degrees, to protect the
miners from sliding and/or falling material, (Gx 4).
Paragraph 2
of the conventional safety precautions clearly provides that any
changes or deviation from the safety precautions is considered a
violation of the Plan, CGx 4). Respondent relies on paragraph 1
of the conventional safety precautions which indicates the Plan
to be a "minimum roof control plan," (Gx 4, p. B). I find this
statement to be 1iualif ied by the following phrase which appears
in the end of that sentence" . • • and was formulated for normal
roof and rib conditions while using the mining system described,"
(Gx 4, p. B). The next sentence requires the operator to provide
additional support ~in areas where abnormal roof or rib conditions are encountered," (Gx 4, p. B, emphasis added). Hence, it
is clear that the terms of the plan are for normal conditions,
and additional suooort is to be orovided where "abnormal" conditions are encount~~ed. There is:no evidence that in the cited
~rea the conditions were anything other than normal.
There is no evidence that the violation herein was signif icant and substantial in light of the protective system of the
foot barries which were installed at the mine.
In the same

1728

fashion, I find that it has not been established in these circwnstances that. the violation herein was anything more than a low
level of gravity. Also, I find that the Respondent acted in good
faith in believing that the foot barries provided a safer protection than the manways, and hence believed that the manways were
not required.
~ccordingly, I find that the negligence herein to
be low. Taking into account these factors, as well as the
remaining factors in llOCi) of the Act, I find that a penalty
hP.rein of $20 is appropriate.
Citation No. 2676404
William G. Hughes, a MSHA Inspector, testified, in essence,
that on Wovember 9, 1987, he performed an eledtrical inspectiori
of Respondent's mine.
In this inspection he observed a one horsepower fan that contained an electrical connection made by twisting
wires. He also observed three-phase wires that were bare and not
insulated to the original dielectric insulation strength.
30 C.F.R. § 75.514 provides that all electiical connections shall
oe "electrically efficient." It was Hughes' testimony, which was
not contradicted by Respondent or impeached upon by cross-examination, that, in essence, the connection in question was not
electrically efficient as the wires being connected could be moved
'oy the fan's vibration, thereby creating sparks and heat. Also,·
section 75.514, supra, provides, in essence, that all electrical
connections " • • • shall be reinsulated at least to the same
degree of protection as the remainder of the wire." In this
connection, it was Hughes' testimony, which was not impeached upon
by cross-examination or rebutted by Respondent, that the threephase wires were bare, and.were not insulated to the original
dielectric insulating properties. I thus find that Respondent
violated section 75.514, supra.
Rothermel, in essence, testified that the fan motor herein

was guarded by a relay to prevent power from going to the fan if
the fan would overheat. Accordingly it is Respondent's position
that this would tend to diminish somewhat the likelihood of heat
to such a degree as to cause an ignition.
It was Hughes' testimony that the type of connection herein
could have 'b~en moved by the vibration of the fan, thereby
creating sparks and heating of the wires. Further, it was
Hughes' testimony, in essence, that inasmuch as the three-phase
wires were riot insulated, and 1 inch on each wire was exposed, a
ground to frame, or phase to phase connection could have resulted.
~his in turn could have caused heat or sparks to be produced,
leading to an ignition especially if high methane was present. I
find Hughes' testimony more persuasive than that of Rothermel. I
thus .E ind. that the violation herein, of imp coper connections and
bare wires, to hava created a discrete safety hazard. Further,

1729

altnou.gh the fan was not being used at that time, it was capable
of being used, and it is clear that it would be used in the
normal mining process. Further, evidence presented in Order No.
2932285 and Citation ~o. 2932286, infra, established the presence
of methane when shots are fired in the normal mining process. As
such, I conclude that the violation was significant and substantial.
For the same reasons I find the violation to have been ·of a
more than moderate level of gravity. There is no evidence herein
to base any finding that the Respondent's negligence was other
than low. Taking these factors into account, as well as the
remaining statutory factors of section llOCi) of the Act,
I
conclude that a penalty herein of $100 for the violation to be a
proper penalty.
Citation No. 26716405
Hughes issued Citation No. 26716405 alleging that the fan
'i1as not provided with a connection to a grounding conductor.
Hughes testified that the fan did not have a ground to provide a
return to th~ surface. A violation of 30 C.F.R. § 701-l(d) was
alleged. Section 75~701-1, supra, provides for five types of
approved grounding. Here, the only facts ~ith regard to the type
of grounding, if any~ consists of Hughes' testimony that the fan
herein should have had a ground to provide a return to the surface. This .type of grounding is only one of the five which are
approved. There is no evidence that the fan did not have one of
the other types of grounds which were approved.
In the absence
of such testimony, I must conclude that section 75.701 has not
·been violated, and this Citation must be dismissed.
Citation No. 2676407
Citation No. 2676407 provides, in essence, that a 75 horsepower three-phase pu.inp at Respondem:.' s mine ". • • was uot
provided with a solid connection to a grounding conductoc
extending to a low resistance ground field on the surface." The
Citation further alleges this to be a violation of 30 C.F.R.
§ 75.701-l(d).
Hughes indicated that there was no method provided for
grounding of the pump (Tr. 358). He indicated that without a
ground, if there is an insulation breakdown or bad connection,
there could be a phase to ground connection which could cause
ignition if methane were present. ~e also indicated that _a phase
to ground connection could cause a person to be electrocuted if
one would come in contact with the frame. Hughes also indicated
that the plli~P was located in the third level which is the normal
passageway for men at the mine. He also indicated that although

1730

there was a fuse disconnect which had a thermal protection it
would be possible still to have a phase to ground overload with
the fuses not disconnecting, and which accordingly would be fatal
to one touching the frame.
Hughes explained that a ground wire
was attached to the pump, but the connection to the outside
grounding was broken.
It was essentially Rothermel's testimony that there was a
· grounding wire that went outside to a low resistance ground
Eield, and that he usually inspected it once a day, but does not
recall when he last inspected it prior to Hughes' inspection.
Hughes then indicated that when he observed the pump when he
issued the Citation, the ground wire was attached to the pump,
but the connection to the outside ground was broken. I ~ccept
Hughes' testimony as to the condition, at the date of the
Citation, of the grounding connection, as it was based on his
observation.
In contrast, 'Rothermel could not recall when.he
last inspected the connection prior to Hughes inspection. I
conclude, based upon the testimony of .Hughes, that the pump was
not connected to a ground, and as such would be in violation of
75.701.
Further, based upon Hughes' testimony, I conclude that
the violation herein to be significant and substantial. Base
upon the same reasons, I conclude that the gravity of the violation was high. Bowever 1 I find credible Rothermel's testimony
that he inspected the connection once a day, although he could
not recall when he last inspected it prior to the inspection. I
thus find that the negligence herein was moderate. 1'aking the
other statutory factors into account, I conclude a violation of
~100 is appropriate.
Citation.No. 2676410
Citation No. 2676410 alleges a violation of 30 C.F.R.
that a disconnect box for the main mine fan" • • • was
not safely installed as the box was lying on the ground exposed to
rain and moisture.~
§ 77.507 in

Hughes testified that the box in question was in the mud and
not mounted to exclude moisture.
Rothermel testified that the
box was 15 inches wide; 2 feet long, and 6 inches deep, and was
mounted to railroad ties ( 8 feet by 3 inches wide by 8 inches
high) ia the form of cribbing of three ties. Hughes testified
that because the box was not grounded, moisture could have
grounded out the phases in the box, and that in the event a
person would have touched the box to pull the handle, he could
have been electrocuted. Hughes also indicated that the "National
~lectrical Code" requires the box to be vertical so that tha
handles can be pulled downward and the blades can come down
(Tr. 427).

1731

Section·75.507, supra, provides, in essence, that all
electrical equipment shall be "permissible." ;\side from the
opinion of Hughes, no evidence was presented which would indicate
that the fan was not permissible.
Hughes made reference to an
electrical code, .but none was offered in evidence.
I find
Rothermel's testimony credible with regard to the placement of
the box in question on cribbing made of railroad ties.
I thus
find that section 75.507 has not been violated and this Citation
· should be dismissed.
Citation No. 2676411
Hughes also issued Citation No. 2676411, which states that
the fan motor was not provided with a "solid connection" to a
grounding conductor extending to a low resistance ground field,
and accordingly 30 C.F.R. § 77.701-l(c) had been violated.
Hughes testified, in essence, that the fan was not provided with
"a source" for return back to the original source, <Tr. 413). He
said that he did not observe any grounding from the motor to the
disconnect box, and that a wire which was attached from the motor
to a ground rod would not have provided a return to the source.
He explained that in such·a situation there would i.1ave been a
difference in potential.
He wa3 asked where the connection for
the grounding would have run~ and he stated that the ground wire
"would have been tonnected" to the frame of the disconnect box,
(Tr. 414).
~othermel indicated that the morning befoce or aft:r
the Citation was issued, he was out at the fan and the giound was
hooked up.
On cross-examination he indicated the electrical
examinations are made weekly, and he would have checked the
ground wire, by looking at it, at the last examination.
He
further indicated the ground wire, that was fastened to the
motor, did not go to the quadruplex, but did go to a ground
stake.
Based on Hughes's testimony, I conclude that on the day the
Citation was issued, the fan did not have proper grounding, and
as such, section 701-1, supra, was violated.
The Citation ~lleges the vi~lation to have been significant
and substantial. The only evidence bearing 6n this issue is
Hughes' testiinony tha:t, in essence, if a person was to have
contacted the fuse disconnect box that had been energized, he
·would have been electrocuted. He indicated that the box had
"some unused opening" which would allow inoisture in the box,
which would make it to become moisturized, (Tr. 413). However,
the Citation was issued for improper grounding for the fan.
Thus, it has not been established the specific hazards, and the
likelihood of any injury as a consequence of the fan not being
grounded.
I thus find the violation not to be significant and
substantial.

1732

For the same reasons, I find the evidence insufficient to
conclude that the violation herein was more than a low level of
gravity. I have taken into account Rothermel's testimony that
when he examined the grounding, it was hooked up. However, he
indicated that the grounding did not go to the quadruplex, which
appears to be the source, but to a ground stake. I thus find
Respondent to have acted with a moderate degree of negligence in
the violation herein. I have also considered the remaining
statutory factors end conclude that a penalty of $75 is appropriate for the violation herein.
Citation No. 2932441
At the hearing, the Parties indicated that, in essence,
Citation ~o. 2932441 is the same or similar to Citation
~o. 2676225.
As such, testimony on this Citation was waived.
Based on the evidence adduced and discussed in Citation
~o. 2676225, infra, I conclude that Citation No. 2932441 was
properly issued and established a violation of 30 C.F.R § 50.30,
and that a penalty of $20 is appropriate.
ORDER
Accordingly, it is ORDERED that: Citation Nos. 2676133,
2676135, 2932312, 2932311, 2676409, and 2676411 be modified to
delete any findings that the cited violations are significant and
substantial.
·
It is further ORDERED that Citation Nos. 2676177, 2676405,
2676409, and, 2676410 are vacated.
It is further ORDERED that Withdrawal Orders 2676178,
2677518, and 2932225 were properly issued.
It is further ORDERED that Respondent shall pay $5,065,
within 30 days of this Decision, as Civil Penalties for the violations found herein.

((

( . I.

l,j~
~
Avram Weisberger
i\di-ninistrative Law Judge

Distribution:
Susan.M. Jordan, Esq., Office of the Solicitor, IJ. s. Department
of.taoor, Room 14480.,..Gateway Building, 3535 Market Street, .
Philadel~hia, PA 19104 (Certified Mail)
Mr: Randy Rothermel, Tracey and Partners, R.
K1 1ngerstown, PA 17941 (Certified Mail)

dcp
1733

o. #1, Box 33-A,·

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

DEC 221988
I

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

.
.
..:
..

v.
CONSOLIDATION COAL COMPANY,
Respondent

.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 88-139
A. C. No. 46-01867-03739
Blacksville No. 1 Mine
Docket No. PENN 88-144
A. C. No. 36-04281-03616
Dilworth Mine

DECISION
Appearances:

Covette Rooney, Esq., Office of the Solicitor,
Department of Labor, Philadelphia, Pennsylvania,
for the Secretary:
Michael R. Peelish, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Weisberger

Statement of the. Cases
In these cases the Secretary (Petitioner) seeks civil penalties for alleged violations by th~ Operator (Respondent) of
30 C.F.R. § 75.400. Pursuant to notice, these cases were heard
in Pittsburgh, Pennsylvania, on August 23, 1988. In Docket No.
WEVA 88-139, James D. Underwood, Raymond .Ash, and James E. Bowman
testified for Petitioner and John Weber, Robert w. Gross, and
Carl Steven Casteel testified for Respondent. In Docket No.
PENN 88-144, James Samuel Conrad, Jr., and Edward Daniel
Yankovich, Sr. testified for Petitioner and Steven Wolfe, Walter
Joseph Malesky, and.John Leo Weiss testified for Respondent.
At the hearing, on Docket No. WEVA 88-139 at the conclusion
of Petitioner's case Respondent made a motion to dismiss which
after argument was denied. Petitioner filed its Post Trial
Memorandum and Proposed Findings of Fact on November 14, 1988 and
Re~pondent filed its Post Hearing Brief on November 9, 1988.
Time was reserved for the filing of Reply Briefs but none were
filed.

1734

Docket No. WEVA 88-139
Stipulations
. ··1'
.. ,, ·-:
...
1. The Blacksville No.·· 1 Mine is· owned and operated by
Respondent, Consolidation Coal Company.

2. The Blacksville No. 1 Mine is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977.
·
3.

This administrative law

judg~

these proceedin~~-

has jurisdiction over

4. The subject Order was properly served by a duly authorized representative of the Secretary of Labor upon an agent of
the Respondent at.the dates, times, and places stated therein,
and may be admitted into evidence for the purpose of establishing
its issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
·
5. The assessment of a civil penalty in this proceeding
will not affect Respondent's ability to continue in business.
6. The Operator 1 s history of previous violations in total
was 478 violations over 554 inspection d~ysi 48 of these violations were for violations of 30 C.F.R. § 75.400 C7 of which were
section 104Cd)(2) Orders).
7.

The Operator's size is as follows:

a. Blacksville No. 1 Mine employees approximately
241 employees.
b. Daily production of Blacksville No. 1 Mine equals
approximately ~etween 6,500 and 7,000 tons~ Annual production
equala approximately 1,500,000 tons.

c.

Consolidation Coal Company operates approximately

30 mines.
d. The annual production of all Re.spondent' s mines is
approximately 52.5 million tons.
e. The annual dollar volume of sales by the Respondent
for 1988 will not be released by the Respondent.

f. E. I. DuPont d~ Nemours and Company is the parent
company, Consolidation Coal Company is a wholly-owned subsidiary.
8. The Operator abated the cited condition immediately.
The Order was terminated at 11:55 a.m. on October 23, 1988.

1735

9. Approximately seven miners were exposed to the cited
condition.
10. A comparison of the fatality and disabling injury
frequency rates for the mine and for the Operator's operation
overall with those of the industry are as fo·llows:
a.

Blacksville No. 1 Mine
1986

Rate
0 - F
13 - NFDL
4
NDL
17

Total

0
5.16
1.59
6.75

1987

Rate
0 - F
41 - NFDL
3 - NDL
44

Total

0

15.34
1.12
16.46

1st Quarter 1988
Rate
11.38
1.42
0
12.81

0 - F
8 - NFDL

1 - NDL

9

Total
b.

Consolidation coal Company
Rate

1988·

Total

.09
3.23
1.49
4.81

9 - F
309 - NFDL
142 - NDL
460

Rate

1987

Total

.02
7.20

2 - F
680 - NFDL
169 - NOL
851

1. 79

9.01

1736

F - Fatal.
NFDL - No Fatal Days lost
NDL - No Days Lost

Rate

1st Quarter 1988

Total

c.

Total

Total

0 - F
177 - NFDL
31 - NDL
208

0
7.94
1.39
9.33

Nationwide
1986

Rate

84 - F
9,165 - NFDL
2,696 - NDL
·11,945

5.70
1.68
7.43

1987

Rate

58 - F
11,538 - NFDL
3,867 - NDL
15,463

.04
7.81
2.62
10.46

.os·

1st Quarter 1988

Total

.03
8.64
2.74
11.40

10 - F
3,102 - NFDL
983 - NDL
4,095

11. The Parties stipulate that there had been on clean intervening inspections of the entire mine between the date of the
inatant .violation and the previously i~sued order. Thus, the
mine, at that time:, was on a .104(d) chain.
(Sic.)
12~
The Parties stipulate the authenticity of their exhibits,
but not to the truth or relevance of the matters asserted therein.

Findings of Fact and Conclusions of Law

I.
Order No. 2943442
James D. Underwood, an inspector for MSHA, testified that in
visiting Respondent's Blacksville No. 1 Mine on the morning
October 23, 1987, in the PG Section he observed float coal dust

1737

deposited on the roof in the third entry in the areas outby the
portal bus _station. He continued to walk in the area and observed
coal dust further outby in this entry and also in crosscut 25
between entries 3 and 4 and crosscut 26 between entries 3 and 2.
(The area he observed coal dust is shaded in red on Government
Exhibit C.) Underwood described the color df the dust as "dark"
and closer to black than gray. He said that the darkest area was
in the crosscut 26 between the 2nd and 3rd entries. He said that
after abatement with rock dust the areas in question became white
in color. Underwood's testimony was corroborated by James E.
Bowman an employee of Respondent, who as representative of the
miners accompanied Underwood on his inspection on October 23.
Bowman indicated that in the areas outlined in red on Government
Exhibit c, he saw coal dust that he described as "black."
In arguing that it did not allow any coal dust to accumulate
in the areas cited by Underwood~ Respondent, in essence, refers
to the fact that on the day piior to Underwood's inspection, MSHA
Inspectors conducted an intensified Triple A Inspection, walked
through the area in question, and did not issued any citations
for violation for section 75.400, supra. In this connection,
Raymond Ash, a MSHA supervisor, indicated that, in e~sence, when
he walked though the area in question there were accu.mulations of
float dust, but the accumulations "weren't that bad" {Tr. 65).
He said that the whole section was rock dusted in a fashion that
was "pretty well within standards" {Tr. 65). He said, in essence,
to the best of his recollection there was nothing outstanding about
the section, and it was not either a very .bad condition or a very
good condition. He further said the conditions were not bad enough
to issue a citation.
John Weber, a mine escort employed by Respondent, testified
that coal dust is black, and that when he observed the areas in
question on October 23, along with Underwood, they were not black,
but were "medium grey" in color (Tr. 102).
(sic.) He indicated
that the color was essentially the same as was observed the day
before. Robert W. Gross, Respondent's s~fety supervisor, indicated
that when he observed the areal on October 23, before the alleged
violation was abated, the material that he observed was-between
light gray to medium gray in color. He said that in his opinion
there was 110 accumulation of coal dust. Carl Steven Casteel,
Respondent's section foceman, W3.s asked whether on October 23, when
he walked through the cited area if there v1as float dust present.
He stated that he did not see anything not acceptable and said that
the color 0£ the material there was gray.

According to Gross when the area in question was initially
mined it was rock dusted and rock dust is white. Gross indicated
that with d.ampness rock dust becomes "off white," CTr. 132) and
described the area in question as damp. However, he indicated
that he felt the material in question, but he did not describe
what it felt like. He was asked if he recal"led whether the
accumulations were wet or dry, and he said "It was October,
they're not going to be what be call wet, they would be damp"
·CTR. 136>. Thus his statement that it was "damp," appears thus
to be based not upon his personal knowledge, but upon his opinion,
based on the time of year of the alleged violation. On the other
hand, when Underwood was asked how he would classify the area, he
described it as a dry area.
Accordingly, I cannot find that it had been established that
the area in question was damp. Thus, I cannot find that the
material in question, rock dust, was made dark by dampness.
Underwood in his testimony described the material in question
as being dark and closer to black than gray. His testimony was
corroborated by Bowman. Weber although describing the material in
question as being medium gray conceded that the area in question
although having a range of colors was not as good as the rest of
the section which was white. In the same fashion although Gross
indicated that the material in question was between light gray to
medium gray, he described the material in the crosscut 26 between
the 2nd and 3rd entries, and the material in the area outby the
power center in Entry No. 3 to be a little darker than the rest of
the area. Also Casteel described the material· in the cited area as
being gray.
In contrast the material outside the cited areas was
described as being a lighter gray. Based upon all of the above, I
conclude that Respondent, in the cited area, had allowed some coal
dust to accumulate and had not cleaned it up when cited by
Underwood.
As such, I find that a violation of 75.400, supra, has
occurred.
II.
According to Underwood, the violation herein by Respondent
resulted from its unwarrantable failure inasmuch as the cited
area is the entry Lo the P6 Section and as such all supervisory
personnel would walk though the area on a daily bases to get to
the working oection. As such, in essence, Underwood maintained
that these personnel should have observed the condition by making
an adequate inspection and should have cleaned it up.
In this
connection it was Underwood's opinion that the coal dust in
question had accumulated when the area was originally cut, and in
his opinion riad been there for a week.

1739

In the recent case of Emery Mining Corporation, 9 FMSHRC
1997 (December 1987), the Commission held that "unwarrantable
failure," i"s more than ordinary negligence and requires "aggravated conduct." I find that Underwood did not refer to any facts
to support his opinion that the violating condition had existed
for a week.
Indeed, he indicated on cross-examination, in
essence, that the condition that he observed could develop in
minutes. Also Weber was present the day prior to Underwood's
inspection, when he accompanied four MSHA Inspector, who walked
throughout the area and.did not issue any violations for allowing
any coal dust to accumulate. Ash, who was present during this
examination, itidicated in his opinion that the rock dusting he
had observed "pretty well" met their standards and described the
accumulation of coal dust as "not that bad." I thus find that
Respondent did not act with more than ordinary negligence when it
did not clean up a condition that was observed the day before,
and not cited, by four MSHA Inspectors. According, I cannot find
that the violation herein resulted from Respondent's unwarrantable failure.
III.
According to Underwood the violation herein should be considered significant and .substantial, because arcing off a
energized trolley ~ire in the area could have ignited the coal
dust. Also a 7200 volt wire and power center were both in the
C\rea and according to Underwood "Anything·could have happened" to
them (Tr. 29), and "it could have intensified it with the float
coal dust accumulation" (Tr. 24).
Underwood further maintained
that any ignition would b~ reasonably likely to cause serious
injuries to the crew of seven working inby in the area. However,
crosscut 26, between entries 2 and 3, described by Underwood as
the darkest area in question contained neither a trolley wire nor
a 7200 volt cable. Also, although Underwood, in essence,
testified that the presence of the coal dust was a dangerous
situation if anything would "happen" (Tr. 29) to the 7200 volt
cable, this event seems unlikely due to Underwood's having
conceded under cross-examination that the cable was very well
insulated. Also the only location of the coal dust that
Underwood testified to was on the roof where~s the cable was
placed on the left rib. Also it does not appear reasonabli
likely that the coal dust in question would contribute to any
hazard occasioned by a malfunction of the power center, as the
power center and its connectors were not within the cited area,
and there is no evidence as their distance to the cited area.
Nor does it appear that it was reasonably likely that the
presence of coal dust would contribute to the hazard of an
ignition occasioned by arcing in the trolley wire. The trolley

1740

wire did not run at all in the most inby of the two areas cited,
and ran for only a portion of the other cited area. In this
-latter area although the trolley wire was between 3 to 6 inches
of the roof, there was an insulated guard-between the wire and
the roof which hung over the side of the wire and which covered,
as agreed to by Underwood, the "majority" of the wire in the area
(Tr. 37). According to Underwood approximately 15 feet of the
wire was not guarded and arcing, which he agreed was a common
occurrence, could occur in that area if there were dust or other
obstructions between the arc of the vehicle and the wire.
However, he indicated that he did not see any dust on the wire.
Taking all of the above into account, I_ conclude that it has
not been established that there was a reasonably likelihood that
the cock dust which had been allowed to accumulate, contributed
to the hazard of an ignition or other hazard which would result
in an injury of reasonably serious nature.
(See, Mathies Coal
Company, 6 FMSHRC 1 (January 1984). As such, I conclude that it
has not been established that the violation herein was
significant and substantial.
In assessing a penalty for the violation found herein, I
have taken to account the factors set forth in section llO(i) of
the Act as stipulated to by the Parties and adopt them. I also
conclude essentially for the reason set forth above, (II., infra)
that the Respondent-herein acted with a low degree of negligence.
Should the accumulation of coal dust herein result in an explosion
or ignition, such would result in grave consequences of injury to
persons. However, it has not been establish that such an event is
reasonably likely to occur. As such, I find that the violation
herein to be of a low level of gravity. Taking all of the above
into account, I conclude that a penalty herein of $50 is appropriate.
Docket No. PENN aa-144
Stipulations
1. Consolidation Coal Company is the owner and operator of
the Dilworth Mine located in Rices Landirig, Greene County,
Pennsylvania.
2. Consolidation Coal Company and Dilworth Mine are subject
to the jurisdiction of the Federal Mine Safety and Health Act of
1977.
3. The Administrative Law Judge has jurisdiction over this
case pursuant to Section 105 of the Act.

1741

4. In the 2 year period prior to November 25, 1987, the
Dilworth Mine had an undetermined number of violations of the
standard c6ntested in this case, 30 C.F.R~ § 75.400.
5.

The size of the operator is reflected by the following

data:
a. The Secretary has no knowledge and therefore cannot
stipulate as to the number of employees employed in the Dilworth
Mine.
b. The Secretary had no knowledge and therefore cannot
stipulate as to the daily production of the Dilworth Mine. Annual
production tonnage of the Dilworth Mine is 1,432,626.
c. The Secretary has no knowledge and therefore cannot
stipulate as to the number of mines operated by the operator and
the total number of miners employed by th.e operator.
d. The annual production tonnage of all the operator's
mines is 41,221,321.
e. Information regarding the annual dollar volume of
sales by the operator during 1985 will not be released by the
operator.

f. DuPont E.I. De Nemours & Company is the parent com. pany; Consolidation Coal Company is a wholly-owned subsidiary.
6. The violation was abated within a reasonable period of
time; the subject area was rerock dusted.
7. Any one miner would be affected or was exposed to the
hazard created by the violation.
8. The Operator's history of previous violations in total
was 405 violations over 504 inspection days. Seventy-five of
these violations were for violations of section 75.400.
9. The Parties stipulate the authenticity of their exhibits,
but not to the truth or relevance of the matters asserted therein.
In a telephone conference call on November 30, 1988, the
Parties further stiptil~ted that: The Dilworth Mine had not had a
clean intervening inspection since the issuance of the previous
d(2) order at this min~, and thus was on a (d)(2) chain.

1742

I.
Order No. 2937915
On November 25, 1987, James Samuel Conrad, Jr., a MSHA
Inspector, performed a spot inspection of Respondent's Dilworth
Mine pursuant to a request of one of Respondent's miners. During
the course of this inspection he observed coal dust in the ribs,
·floor, and belt structure of the 3-D section. He said that with
the cap lamp that he was wearing the coal dust appeared to be
black, with a reddish tint. He explained that it gets to have
such a tint if it is "real black" (Tr. 186). He explained that
under the coal dust he was able to see rock dust and that the
rock dust accumulated in nooks and crannies of the ribs. He said
that on the belt structure~ he was able to brush the dust off and
that at one point he measured the dust with a ruler and it was a
half inch deep.
Edward Daniel Yankovich, Sr., a miner who accompanied Conrad
as a walkaround, stated that the area in question was completely
covered with black coal dust, including the roof, ribs, floor,
and belt structure. He estimated the depth as 2 to 3 inches.
Walter Joseph Malesky, Respondent's belt foreman, who
examined the area in question on November 25, 1987, in a preshift
examination, at ~pproximately 6:45 a.m., indicated that in the
front-end of the belt there was an area that was starting to get
dark in color. He described the color as dark gray to light black
and provided his opinion that it should have been rock dusted in
the next shift. Steven Wolfe, Respondent's construction boss,
testified that the floor of the area in question was darker th~n
the ribs and contained rock and coal dust which was the normal
condition at the mine. He indicated that in general the color was
dark gray. He also opined that when he arrived in the section on
November 25, it needed rock dusting. John Leo· Weiss, Respondent's
assistant foreman, stated that when he walked the length of the
area in question at 9:15 a.m. on November 25, he observed coal dust
on the belt and material on the bottom that was dark in color. He
described the ribs as having some float dust that was gray in color.
He also indicated he believed the area needed to be rock dustad.
Wolfe indicated that the coal dust was thin coated and not "thick"
and Weiss indicated that the deoth of the coal dust was between a
quarter of inch to a half inch,Lbut in most areas there was a
light coating. He provided his opinion th~t the areas in question needed to be cock dusted. 3e said that the ribs were gray
and not dark, the bottom was aark gray, with small spots of black
on the bottom of the left rib and indicated that wetness turns
the material dark.

1743

Based upon the above, I find that at the time in question
Respondent had not cleaned up coal dust in the area in question
and had allowed it to accumulate. In this connection I accorded
more weight to the testimony of Conrad as to the depth of the
coal dust inasmuch as he measured it with a ruler. As such I
find that the citation was properly issued and Respondent herein
did violate 30 c.F.R. § 75.400 as alleged in the citation.
II.
According to Conrad the belt line in question has a history
of coal dust. ·According to Wolfe it probably took a shift for
this dust to develop. At approximately 6:45 a.in. on November 25,
Walter Joseph Malesky, Respondent's belt foreman, in a preshift
examination of the belt in question noticed that the area was
starting to get dark in color and opined that it should be rock
dusted in the next shift. He noted this condition in writing in
the examiner's report of daily inspection for that date. Malesky
indicated that he observed the coal dust as being dark gray to
light black, and when asked what the depth of the material was
indicated that he did not think that it was "any inches"
(Tr. 274). He said that some of the material was part dry and
some of it was damp, and that he made a ball of the mud which
assisted him in determining that in his opinion it was not
dangerous. He indicated upon cross-examination that he had the
authority to stop the belt and assign men to abate the condition.
He did neither, but in addition to the entry of the condition in
the daily inspection report at 7:50 a.m., he informed Robert
Burgh, Ken Dudics, the belt coordinator, and the Assistant
Foreman Mark Watkins of the need to rock dust. Wolfe testified
that he was informed at about 8: 00 a .m. by Mark Watkins that the.
_belt in question needed dusting. He indicated that he went to
the bore hole to obtain the rock duster, but that this equipment
had a hose that was plugged up and that it took between 25 and
30 minutes to change the equipment. The rock duster was then
filled up with 12 tons of dust which took about 30 minutes and
was then transported to the area in question, but that on the way
it was derailed. He indicated that it took another 15 to
· 20 minutes from the derailing to transport the rock duster to the
section.
It appear3 to be Petitioner's position, as articulated by
Conrad, that Respondent herein was negligent to a high degree in
that it was aware of tne fact that the area in question needed
rock dusting, but did not assign anyone to immediately correct
the condition. According to Conrad, Respondent should not have
relied on its abatement by using a bulk duster as this equipment

1744

could fail, and instead should have either assigned men to distribute dust manually or to drag the area. He indicated that it
could have taken two men to perform this work in approximately
10 to 15 minutes. Conrad indicated that dragging or hand dusting
might have been more "expedient" than using a duster CTr. 229).
I note that according to Wolfe, bag or hand·dusting is used in
areas of approximately 100 feet whereas on November 25, the day
of the citation he was informed that area to be dusted was
approximately 300 feet •. I thus find that there was not aggravated conduct in Respondent's condition to eliminate the hazard
of rock dust with the use of a rock duster as opposed to assigning
men to hand dust or drag. It appears that a decision as to the
method to be used was a matter of judgment. As such any delays in
cleaning the coal dust occasioned by the breakdown and derailment
of the rock duster is clearly not evidence of aggravated conduct.
Also although Malesky did not either shut off the belt or assign
men to rock dust the area in question, and did not notify other
management officials of the existence of this condition until
approximately 1 hour after he observed it, I find that any maleficence. in this regard to have been a matter of negligence rather
than "~ggravated conduct," or serious lack of reasonable care
(Emery Mining Co., supra, c.f. U.S. Steel Coro., 6 FMSHRC 1423
(June 1984)), inasmuch as it was based solely upon an error of
judgment. In this connection, I note that Malesky, in supporting
his not shutting off the belt or ordering the men to hand dust,
indicated that he did not believe that the condition was dangerous.
In this connection he noted that part of the material was dry, but
that some of it was damp. The fact that he made a ball of the
material assisted him in determining that it was not dangerous. He
also had indicated that when asked with regard to the depth of the
material that he did not think that it was "any inches" (Tr. 274).
Thus, I find that Respondent's conduct herein was not aggravated
conduct, did not rise above near negligence, and thus the violation
herein cannot be characterized as resulting from Respondent
unwarrantable failure (see Eme~y Mining, supra>.l/

1/I have considered Kitt Energy Core. 6 FMSHRC 289 (May 1984)
which is relied on by Petitioner, but do not find it appropriate
to the issues herein.
In Kitt, Judge Merlin found that failure
of the Operator to assign sufficient men to clear up coal dust
over a period of 2 weeks constituted unwarrantable failure.
In
the case at bar, in contrasti approximately 1 hour after knowledge of the violation, the Operator took action to completely
clean up the accumulation.

1745

III.
According to Conrad, and not contested by Respondent's
witnesses, coal dust is a major contributor to explosion and
to the severity of fire~. He described coal dust as being very
volatile. At the time of the citation the belt was running and
according to Conrad a running belt could be knocked out of line
by a falling rock causing the belt line to rub against various
structures causing ~eat. He also indicated that the belt rollers
could malfunction and generate heat, and that the electrical
motors were of an open type and could blow up or short out. He
said that ·all these events are potentially ignition sources which
would be enhanced by the coal dust in the area. In this connection, Conrad indicated that all the dust that he touched was dry.
Areas of the floor were described as having either puddles or
being dai-np. However, according to Conrad the coal that lies on
top of the water was dry. In this connection, it is noted that
Wiess indicated on cross-examination that coal dust on top of
water can still ignite. I note also that Yankovich indicated
that he stirrad the coal dust with his finger and described it as
dry. In contrast Wolfe testified that there was real moist muck
on tha bottom of the area which contained rock and coal dust, and
this condition is normal at the mine. Malesky who indicated that
he made a ball of the mud described some of the area as wet, some
damp, and "part of it was dry" (Tr. 273).
Based on the testimony of Conrad and Yankovich that the dust
they touched was dry, I find that the area in question contained
coal dust that was dry. I find, based on Conrad's measurements,
that the dust was at least 1/2 inches deep in some places. In
addition, I note Conrad's testimony that on the day of the citation the area in question in the belt line had two tenth of one
percent of methane. Taking all these factors into account, I
conclride that the coal dust in question contributed to the hazard
of an ignition. According to Conrad should such an ignition or
explosion occur it would be reasonably likely to result in an
injury of a reasonably serious nature.
In this connection he
indicated that those fighting the fire, or persons working inby
the sectio11, would likely be burned or injured by having inhaled
carbon monoxide. Accordingly, based upon all these factors, I
conclude that the violation herein was significant and substantial.
(Mathies Coal Company, supra.)

IV.
I conclude that the Respondent herein was negligent to a
modecately high degree, in that Malesky did not infonn any of
Respondent's managers of the condition in question until approximately 1 hour after it was observed by him.
I further find, as

1746

outlined above CIII., infra), that the gravity of the violation
herein was relatively high. Taking these factors into account as
well as the remaining statutory factors in section llO(i) of the
Act, I conclude that a penalty herein of $500 is appropriate.
ORDER
It is ORDERED that Order No. 2943442 be modified to a
·.section 104(a) Citation to reflect the fact that the violation
therein was not significant and substantial.
It is further ORDERED that Order No •. 2937915 be modified to
a section 104(d)(l) Citation to reflect the fact that the viola~
tion therein was not the result of Respondent's unwarrantable
failure.
It is further ORDERED that Respondent herein shall pay $550,
within 30 days of this decision, as a civil penalty for the violations found herein.

Avram Weisberger
i\dministrative Law Judge
Distribution:
Covette Rooney, Esq., Office of the Solicitor, u. S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Michael R. Peelish~ Esq., Con~6lidation Coal Compariy,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
dcp

1747

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

December 23, 1988

DISCRIMINATION PROCEEDINGS

RANDY G. CUNNINGHAM,
Complainant

Docket No. PENN 88-293-D
PITT CD 88-23

v.

Docket N~. PENN 88-294-D
PITT CO 88-24

CONSOLIDATION COAL COMPANY,
Respondent

Dilworth Mine
ORDER OF DISMISSAL
Before:

Judge Merlin

On August 17, 1988, you filed with this Commission
complaints of discrimination under section 105(c) of tne Federal
Mine Safety and Health Act of 1977 •. On November 4, 1988, show
caus~ orders were issued directing you to provide information
regardin~ your complaints or show good reason for your failure to
do so. These show causes were mailed to you certified mail,
return receipt requested and the file contains the receipt cards
indicating you received. the show cause orders. You have however,
not responded and complied with the show cause orders.
Accordingly, these cases are DISMISSED.

=

---

Paul Merlin
Chief Administrative Law Judge

Distribution:
Mr. Randy G. Cunningham·, 3522 Orchard Avenue, Finleyville, PA
15332 (Certified Mail)
Consoltdation Coal Company, 450 Racetrack Road, Washington, PA
15301
( Cert i f i e d M_a i 1 )

1748

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

DEC 231988
DISCRIMINATION PROCEEDING

JACKIE SANDERS,
Complainant

Docket No. LAKE 88-130-D

v.

VINC CD 88-09

GOSSER CONSTRUCTION COMPANY,
Respondent

Jaeco Mine
ORDER OF DISMISSAL
Before:

Judge Melick

By notice issued October 19, 1988, hearings in the
captioned proceedings were scheduled to commence on
November 29, 1988, at 8:30 a.m., in Bloomington, Indiana.
The Complainant however failed to appear at the scheduled
time and place.
Accordingly on November 30, 1988 an Order to Show Cause
was issued directing the Complainant to explain on or before
December 15, 1988 why she failed to appear at the scheduled
hearing. She has failed to respond to that order and
accordin_gly this case must be dismissed.
ORDER
Discrimination Proceeding Docket No.
hereby dismissed.
·)

.

88-130'D is

l
i

!

Gary M
AdminiS rative
( 70 3)
6-6261

7\

Judge

Distribution:
Ms. Jackie Lee Sanders, 207 Hickorf Street, Jasonville,
Indiana 47438 (Certified Mail)
Ronald L. Chapman, Esq., Cotner, Andrews, Mann & Chapman, 528
North Walnut Street, P.O. Box 2478, Bloomington~ Indiana
47402-2478 (Certified Mail)

nt

1749

FEQiRAI. MINE SAFETY AND HEALTH REVl~W CQMMISSIPN
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC 271988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. VA 88-22-M
A.C. No. 44-02786-05514

v.

..

JAMES RIVER LIMESTONE
COMP A.t.'1Y, INC. ,
Respondent

No. 1 Quarry and Mill

DECISION
Appearances:

Page H. Jackson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Petitioner:
Herbert A. Kelly, Plan~ Manager, James River
Limestone Company, Inc., Buchanan, Virginia,
for the Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820(a).
Petitioner seeks a civil penalty assessment in the
ampunt of $305 for an alleged violation of mandatory safety
standard 30 C.F.R. § 56.3200. The respondent filed a timely
answer contesting the alleged-violation, arid a hearing was
convened in Roanoke, Virginia. The parties filed posthearing
arguments, and I have considered them in my adjudication of
this matter.
Issues
The issues presented in this case are (1) whether the
condition or practice cited by the inspector constitutes a
violation of the cited mandatory safety standard, (2) the
appropriate civil penalty to be assessed for the violation,
taking into account the statutory civil penalty criteria found

in section llOCi) of the Act, and (3) whether the violation
was "significant and substantial." Additional issues raised
by the parties are identified and disposed of in the course of
this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977;
Pub. L. 95-164, 30 u.s.c. § 801 et seg.
2.

Section llOCi> of the 1977 Act, 30 ·u.s.c. § 820Ci>.

3 •.

Commission Rules, 29 C.F.R. § 2·700.1 et seg.

Stipulations
The parties stipulated to the following CTr. 8-9):

1. Copies of the contested order/citation,
and the subsequent modifications, exhibits G-1,
G-2, and G-3, were issued by an authorized
representative of the Secretary and properly
served upon the respondent.
2. The presiding judge has jurisdiction
in this matter.
3. The respondent's ability to continue
in business will not be adversely affected by
any civil penalty imposed as a result of this
proceeding.

4. The respondent is a medium-size mine
operator.
5. The respondent abated the violation in
question in good faith by complying with the
order/citation.
Discussion
The combined section 107(a)-section 104(a) Imminent
Danger Order/Citation No. 2851959, issued by MSHA Inspector
Charles E. Rines, cited a violation of mandatory safety
standard 30 C.F.R. § 56.3005. This was subsequently modified
to reflect the redesignation of the cited mandatory safety
standard to the appropriate section which was in ef Eect at the
time of the violation, namely, section 56.3200 (exhibit G-3).
The cited condition or practice is as follows:

1751

This is an .0rd.er of withd:rawal·: A drill
shot on the #4 bench had shot into an underground cavern. The ground condi tion.s around
the opening appear to be very unstable. No one
shall be allowed to enter this area qn the #4
bench 35 0 ft. from the original slide ·area
where the cavern is in the floor until a geologist had inspected the area along with an authorized representative of the Secretary of Labor
and the area has been determined safe for
mining operations.
Petitioner's Testimony and Evidence
MSHA Inspector Charles Rines testified that the respondent operates a limestone quarry which mines dolomite, and he
described the multiple bench drilling and blasting methods
used at the mine. ~e confirmed that he visited the mine on
July 1, 1987, for the purpose of checking into the compliance
for several previously issued orders of withdrawal which had
been served on the respondent to prevent men from working
under a slide area where unstable materials had fallen from
the top of the mountain. He was accompanied by the pit
superintendent Richard Gillam. After viewing the area with
Mr. Gillam, Mr. Rines advised him that in view-of the presence
of unstable materials on the number 2 and 3 benches, the
previous areas affected by the outstanding order would be
extended for an additional 300 feet {Tr. 21-29}.
Mr. ~ines identified exhibit G-1 as a copy of the contested order/citation which he issued, and he confirmed that
he issued it during the course of his inspection and observation of the area in question with Mr. Gillam. Mr. Gillam
advised him that a shot had been fired into an underground
cavern, exposing a hole below the number 3 bench. Mr. Rines
stated that he observed an 80-D shovel working on the number 3
bench, "just t6 the right" of the hole. He also observed a
truck pull up to within 5 feet of the hole, and then back up
to the shovel where it was loaded with materials from the toe
of the nwnber 3 bench. The truck left to take the loaded
material to the crusher, and Mr. Rines observed another truck
drive in to position itself for loading in the same manner as
the first one. Mr. Rines estimated the weight of the loaded
truck ~t 54 tons, and the weight of the shovel at 72 tons. He
estimated the distance of the shovel from the hole as 25 feet.
He estimated the locaiion of the hdle as 35 feet beneath the
top of the bench, and estimated the dimensions of the hole as
12 feet by 10 feet. Mr. Rines confirmed that he could not see
the hole from the top of the bench, and that he had to go down

1752

to the number 4 bench to approach and view it from a position
on the loose rock (Tr. 29-39).
Mr. Rines stated that Mr. Gillam told him that the shot
had been fired several days prior to the i_nspection, and that
the holes had been drilled by Ingersoll-Rand with an experimental drill. Mr. Rines identified several photographs of the
cited area and he described several cracks which he observed
in the number 3 bench along the opening and bottom of the
bench, and extending from the hole itself. Mr. Rines could
not state the depth of the hole in question,·and he identified
the location ~f another cavern which had been shot into in the
past at the face of the number 4 bench CTr. 39-46).
Mr. Rines confirmed that after observing the ground conditions, he advised Mr. Gillam that he would have to issue an
order withdrawing men from the number 3 bench. Mr. Gillam
ordered the truck and shovel removed from the area, and he
left the area to summon Mr. Kelly, the plant manager.
Mr. Rines confirmed that he explained his reasons for issuing
the order to both Mr. Gillam and Mr. Kelly (Tr. 47-48).
Mr. Rines also confirmed that he marked the area affected by
his withdrawal order with a can of red paint on the face of
the number 3 and 4 benches (Tr. 49).
Mr. Rines confirmed that he issued the order because of
the unstable ground conditions in the proximity of the hole in
question. These unstable conditions consisted of visible
horizontal and vertical cracks in the face of the number 3
bench and the floor of the number 4 bench, and on either side
of the hole. He also observed material which had slid down
toward the opening of the hole itself (Tr. 50-51).
Mr. Rines stated that he cited a violation of mandatory
safety standard section 56.3200, which requires that certain
action be tak·en when hazardous ground conditions are present
which create a hazard to persons. He confirmed that the
hazardous conditions consisted of the visible cracks which
were present in the wall and floor of the number 3 bench, and
the uncertainty of the extent of the caver-n and hole in the
number 4 bench.
In his view, these conditions presented a
hazard to the trucks and shovel operating in the proximity of
the hole. He was concerned that the trucks were too close to
the edge of the hole, and that the weight of the trucks may
have caused the wall to give way and break off, thereby
causing the trucks to fall into the void. The shovels was
located approximately 55 feet from the hole, and the trucks
were operating within 5 feet of the hole as they drove into
the area, and within 20 feet as they left with their loads.

1753

The ·cracks which ·he otrs·erved were clC>ser to th-e ·fruck-s than to
the shovel. Although the shovel was approximately 35 to
40 feet from the cracks, given the uncertainty of the length
and breadth of the cavern hole under the bench where they were
operating, he was concerned about the sho~el as well as the
trucks (Tr. 51-56).
·
Mr. Rines explained his gravity finding of "reasonably
likely" as follows (Tr. 57)r
A. Due to the number of cracks and the close
proximity that the trucks were coming to those
cracks in the wall, that if they had continued
operating there, it's reasonably likely we
could have had an accident there.

Q. · Okay. And you say that the likelihood of
the accident would be the ground giving way
underneath the trucks?
A.

Yes, sir.

And you checked here that the _injury was
likely to be fatal. Why did you check fatal?

Q.

A. Well, if that truck -- if the ground gave
way, the truck was going to fall approximately
fifty-five feet (55'). And a truck _going over
the side of a wall, or the wall sloughing off
with him, could be a fatal accident.

Q. Okay. You checked the number of persons
affected as being two.
A.

Yes, sir.

Q.

Who would they be?

A. They would have been the shovel operator
and the truck driver, himself.
·
Mr. Rines stated that he made a finding of "moderate"
negligence because Mr. Gillam-conceded that he had known about
the existence of the cavern but had done nothing about it.
Mr. Rines believed that once the underground cavern was
detected, and given the presence of cracks, the area should
have been barricaded or blocked off.
Hole.s could also have
been drilled to determine the extent of the cavern hole open.ing, and the top of the number 3 bench could have been bermed.

1754

Had these measures been taken, the respondent would have been
in compliance with the cited standard (Tr. 59).
On cross-examination, Mr. Rines confirmed that he did not
speak with any geoltigists after issuing the violation. He
explained that the truck in question was 5· feet from the edge
of the bench above the hole which was located below the bench,
and he identified the location of the hole by ref erring to
respondent's photographic exhibit R-2 (Tr. 75). He ~onfirmed
that there was no actual hole on the flat surface of the
number 3 bench haulageway where the truck was operating, and
that the hole was located at the face of the number 4 bench
(Tr. 76). He reiterated his concern that the area beneath the
roadway where the truck was located could have given way and
engulfed the truck (Tr. 77). He explained the work being performed with the truck and shovel, and indicated that material
was being removed after the area was drilled and blasted (Tr.
79-82). Mr. Rines stated that he was unaware that any geologists were examining the area after he issued the violation,
and that he next returned to the mine on August 22, 1988 (Tr.
85).
Charles B. Vance, MSHA supervisory mine inspector, testified that the respondent's mine has been under the enforcement
jurisdiction of his office, and that he has visited the mine
15 to 20 times over the past 3 years.
He confirmed that he
visited the mine in July, 1987, in the company of MSHA district
ma11ager Mike Trainer, safety specialist Roger McClenta and
sub-district manager Ray Austin. The purpose of the visits was
to observe the ground conditions involving the cavern and slide
area in question (Tr. 90). Mr. Vance confirmed that he visited
the mine on July 15, 1987, to examine the cavern area.
He
identified a copy of a modification he issued to the citation
issued by Inspector Rines to allow work to correct the hazard
noted in his initial order. The modification made reference to
the removal of material from the floor of the number 3 bench,
and the filling of the cavern on the number 4 bench (Tr. 91).
Mr. Vance stated that he had expected the respondent to blast
10 holes which had been _drilled along the edge of the nwnber 3
bench in order to fill the cavern and hole.with the material
blasted from above that location (Tr. 92-93).
Mr. Vance stated that he observed no equipment or work
taking place when he was in the area on July 15th, and the
cavern or hole was still open and unfilled, and nothing had
been don~ to correct the cited con di ti on. · He observed several
cracks "all around that area," and "in and around" the cavern
(Tr. 94).
He considered the ground conditions at that time as
hazardous to persons working in the area because there was no

1755

indication as to the extent of the cavern or how much weight
it would take to break into it, and he believed that the rock
could give way and a vehicle could go over the edge of the
bench or break into the cavern (Tr. 94>•
Mr. Vance confirmed that the visit by Mr. Trainer and
Mr. Austin came after he issued his modification of July 15,
1987, and since that.time the respondent has not requested him
or anyone else in MSHA to further modify the order issued by
Mr. Rines. Mr. Vance also confirmed that no further work has
been done by the respondent in the affected area, and as far
as he knows "it has been left alone" (Tr. 96). He confirmed
that the respondent has the option of either abating the
hazardous cited conditions before continuing any further work
in the area, or simply leaving it alone (Tr. 96).
On cross-examination, Mr. Vance was of the opinion that
the safest method for addressing the hazard in question would
be to seek the aid of a geologist to survey the cavern area
and then fill it with shot rock, or by blasting the materi~l
down into the hole from the drill holes which were not
previously shot (Tr. 96-97). Mr. Vance confirmed that he was
not with Inspector Rines when he issued his order on July 1,
1987.
Respondent's Testimony and Evidence
Herbert A. Kelly, respondent's former plant manager,
testified that he is a professional geologist, and holds a
degree in geo·logy from the South Dakota School of Mines, and a
master's degree in mining engineering from the South Dakota
School of Mines and Technology. He stated that the cited area
in question was not an active bench for quarry production at
the time of the inspection conducted by Mr. Rines. Mr. Kelly
explained that the Ingersoll-Rand Company had requested
permission to test a drill and the respondent permitted them
to do so at the area in question. The location was selected
because "the wall between the No. 3 bench and the No. 4 bench
was pretty ragged. We had what we call a belly rock hanging
out, and it was cracked away in at least one location. And
this historically had been an area of underground caverns, in
this particular corner of the quarry. We had no idea that one
was lurking as close as it was" (Tr. 100).
Mr. Kelly explained that after the blast holes were
drilled, some of them were shot in order to recover some of
the rock. When the shot was fired, the bottoms of the drill
holes broke into the natural cavern under and beyond the reach
of the holes. Mr. Kelly stated that the area was then

1756

observed for a day or two by himself, and the quarry and plant
superintendent, and they detected no problam in working on the
number 3 bench with equipment to remove materials which had
been previously shot from the bench above. The work in
question "had nothing to do with this cavern shot, other than
the fact that we would have to go near th~ top of the bench
above it" (Tr. 101).
Mr. Kelly stated that it is not unusual for quarry trucks
to come close to the edge of a wall, and that usually, a
better berm or big rocks are used to protect equipment from
rolling over the edge to the bench below. He conceded that in
the instant case, "we dic;l not have a very planned arrangement
above the top of this hole" (Tr. 102). Mr. Kelly stated that
he detected no cracks on the face of the number 3 bench or the
wall between the number 3 and 4 benches leading into the
cavern in question. He believed the ground conditions were
safe for equipment to operate, and by throwing rocks down the
cavern hole, he determined that the cavern was going down
rather than up. He confirmed that work had been done in the
cited bench area for the past 6 years without breaking into
anything, and that this was the first time a cavern had been
discovered in that area (Tr. 103).
Mr. Kelly stated that he had no objection-to the withdrawal order at the time Mr. Rines informed him that he would
issue it. Mr. Kelly explained that the cited area was not an
urgent operational area, and it was simply "a side job" which
was not holding up, production.
In weeks following the order,
Mr. Kelly and another company geologist inspected the area and
believed that there was no problem in continuing work on the·
number 3 bench.
In addition, MSHA personnel from Pittsburgh,
including a geologist, inspected the area and agreed that the
only way to resolve the situation was to attempt to fill the
cavity by drilling and blasting material from above, or
trucking in material or bulldozing it in from above to fill
the cavity. Mr. Kelly confirmed that the MSHA personnel did
not believe there was any problem with proceeding in the
manner stated in Mr. Vance's modification of July 15, namely,
"to work on the No. 3 bench to fill the cavern down to the
No. 4 bench" (Tr. 104).
Mr. Kelly confirmed that no work has been done to fill
the cavern in question because the area is not critical, and
other pending work took priority. He explained that work had
started at the top of the quarry in an attempt to rectify
previous ground control withdrawal orders by making benches at
the very top of the quarry, and it is impossible to work
safely on the benches below because of falling rocks. The

1757

respondent intended to fill the cavern, but Mr. Kelly was ·
unaware of any timetable for this to be done (Tr. 105).
Mr. Kelly· agreed that it would be unsafe to bring equipment to
the number 4 bench to try and work around and too close to the
cavern, but he saw no problem in the work .being performed on
the number 3 bench on July 1, 1987, and the work which would
be permitted by Mr. Vance's modification (Tr. 106).
Mr. Kelly confirmed that the drill holes were 55 feet
deep and did not reach the cavern.
He estimated the thickness
of the material below and between the surface of the number 3
bench roadway and the cavern area to be at least 55 feet, but
agreed that he had no idea as to the parameters of the cavern
and conceded· that depending on the extent of the cavern, and
its direction, the roadway could be undermined.
He confirmed
that caverns are natural occurrences in limestone mines (Tr.
10 8).
Mr. Kelly stated that he objected to the civil penalty
assessment points for negligence and lack of good faith abatement, and he believed that the respondent had a good relationship with the inspectors and responded quickly to their
requests (Tr. 109). He also stated that while he had "no
quarrel" with the withdrawal order issued by Mr. Rines, he did
not believe that fines and "bad marks on our r~cord for negligence and lack of good faith" were deserved (Tr. 122). When
asked whether he agreed that a hazard existed, Mr. Kelly
responded "we agreed to get another look from experts on the
outside. We recognize that there's a problem there with the
caverns. We don't pretend to know it all, about them.
And
since it was not holding up our operation, we were certainly
willing to wait for somebody to come in and check it out" (Tr.
122).
Mr. Kelly confirmed that he was aware of the existence of
the cavern hole prior to July 1, 1987, when Mr. Rines came to
the mine, and that it had been exposed from the experimental
drilling which was taking place to shoot. down the crack and
"belly r6ck" which posed a hazard to a shovel and loader working below. Mr. Kelly also confirmed that he was aware of the
fact that a network of caverns were present in that area of
the quarry, but he was not aware that the cavern in question
was so near to the area where drilling would be taking place.
Previous caverns which have been exposed have been filled with
rock (Tr. 124).
Mr. Kelly confirmed that his contacts with MSHA's technical personnel came ~fter the order and modification were
issued by Mr. Rines and Mr. Vance, and that he requested their

assistance in order to obtain an outside opinion. Although
Mr. Kelly agreed that drilling a test hole from the number 3
bench to determine the extent of the cavern was a good idea,
he stated that this was never suggested·by any of the MSHA
people (Tr. 116-117). During this period _of time, no work was
being performed on the bench and nothing further was done (Tr.
117}.
On cross-examination, Mr. Kelly confirmed that there are
a number of holes in the face of the pit which have not been
filled in, and that at the location next to the shot hole,
there was no ·berm which was placed there intentionally (Tr.
125). He confirmed that he walked and observed the area
several times after the shots were shot through to the cavern,
and saw no significant cracks which penetrated the rock to any
depth. He confirmed that the equipment was moved to the cited
location approximately 4 hours before the order was issued
(Tr. 127). He also confirmed that in the past, there was
another location where machinery and miners were working
within 15 feet of a cavern which had .been bridged over, and
where the thickness of the pillar was about 15 feet. However,
he stated that aftef "we worked that for a while, we backed
off from it. We scared ourselves" (Tr. 128).
Inspector Vance was recalled, and he identified exhibit
G-11, as a photograph of the cavern in question which he made
on July 15, 1987, when he modified Mr. Rines' order, and he
identified the area where work would be permitted to continue
pursuant to his modification in order to fill the cavern (Tr.
133-136). Mr. Vance st~ted that Mr. Trainer and Mr. Austin
never told him that it was safe to operate machinery on the
floor of the number 3 bench in the area of the cavern, and
that the matter was not discussed.
In Mr. Vance's opinion,
proper blasting and filling should have been done to fill the
hole (Tr. 137). He believed that this could have been done
from a good distance away from the hole, or from the next
bench above, or from blasting the holes which had already been
drilled (Tr. 138). Mr. Kelly stated that this was tried, but
that the holes were blocked off and could not be opened (Tr.
138).
Petitioner's Arguments
During oral argument at the hearing, petitioner's counsel
argued that the evidence establishes that a hazardous ground
condition existed on July 1, 1987, and that under the circum"':'
stances, the order issued by Inspector Rines was justified and
that a violation of section 56.3200 has been established.
Counsel pointed out that Mr. Kelly conceded that he had no

1759

knowledge of the extent of the caverri which had been exposed
by prior.drilling and blasting, and that men and equipment
were working on the bench area above the location of the
exposed cavern. Although Mr. Kelly further conceded that he
had observed ground cr~cks which he belieyed were not significant, counsel pointed out-that the cracks were not probed to.
debermine whether they were surface or sub-surface cracks.
Conceding that Mr. Kelly kept the area under observation after
the cavern was exposed, since he was a trained geologist,
counsel suggested that Mr. Kelly should have taken further
steps to address the hazardous ground conditions, but that
· nothing was done other than to throw some rocks into the hole
in an attempt to determine its depth and breadth (Tr. 139-144).
Counsel believed that once the cavern was discovered, the
respondent had an obligation to do something about it before
sending men back in for normal operations (Tr. 149).
Petitioner's counsel argued further that a reasonable
interpretation of section 56.3200 would lead one to conclude
that the existence of surface groun'd cracks, coupled with an
exposed cavern hole, the extent and condition of which are
unknown, constituted a hazard to the truck and shovel operators working on the bench above the cavern. Counsel asserted
that the respondent had a duty to at least determine the
extent of the cavern or to fill i t tip, and that drilling to
deter~ine the extent, thickness, and integrity of the ground
above the location of the cavern would have been the kind of
action expected by 'MSHA to address the hazard. Counsel also
suggested that the respondent could have called in MSHA after
such drilling for a determination as to whether or not its
efforts were sufficient (Tr. 147).
In its posthearing brief, petitioner's counsel reiterates
his arguments made at the hearing, and concludes that the
hazard presented by the cavern hole and the surrounding ground
conditions where work was taking place at the time of the
inspection by Inspector Rines posed a danger and risk of
injury to the miners working on the number 3 bench. Conceding
that the term "hazard" is not further defined by the Act or
MSHA's standard~, counsel cites the dictionary definitions of
the term as found in Black's Law Dictionary, Pg. 647 (rev.
5th ed. 1979), and Webster's Ninth New Collegiate Dictionary,
Pg. 557 (1986), which define the term as "a risk or peril,
assumed or involved; a danger of risk lurking in a situation
which by chance or fortuity develops into an active agency of
harm; a source of danger; a chance event." Counsel asserts
that these definitions are consistent with the intent and
purpose of the standards found in 30 C.F.R. Part 56, namely,
the "protection of life, the promotion of health and safety,

1760

and the prevention of accidents." .Counsel also points out
that the rulemaking history concerning the promulgation of
section 56.3200, reflects an intention that the standard have
broad application and would apply wherever a fall of ground
hazard is present.
Counsel asserts that the respondent violated section
56.3200, by permitting miners to operate heavy equipment in
the vicinity of the cavern or hole, the extent of which was
unknown, but which it knew existed beneath the area where the
work was being performed. Counsel concludes that this conduct
by the respondent violated the standard because any ground
condition which creates a risk of injury to a miner must be
taken down or supported before miners resume work: in the
vicinity of that ground condition.
Respondent's Arguments
In support of his belief that the cited area did not pose
a hazard, Mr. Kelly relies on the fact that Inspector Vance's
modification to the order issued by Inspector Rines allowed
entry to the cited area for the purpose ~f removing materials
from the floor of the number 3 bench to fill the cavern on the
number 4 bench. Mr. Kelly asserted that the modification
indicated to him that without doing anything else, work could
safely proceed in the cited nlli~ber 3 bench area to excavate
materials in an attempt to fill the cavern hole below. Since
this permitted excavation work was precisely what was being
done on July 1, 1987, when work was stopped by the withdrawal
order issued by Inspector Rines, Mr. Kelly did not believe
that a hazard existed on that day (Tr. 117-118). Mr. Kelly
advanced this sam49 argument when he stated as follows in his
posthearing argument filed in this case:
The respond~nt requests that the monetary
penalty assessment, penalty points f6r negligence, penalty points for lack of good faith
and the citation on our record with MSHA should
all be rescinded. We followed the inspector's
instructions promptly, courteously and
explicitly when he ordered us to withdraw from
the area. We had other MSHA officials visit
the site as requir2d. Two weeks later MSHA
modified the withdrawal order to permit us to
return to work at the same location under the
same conditions. The modification of the order
mak~s me believe that the alleged safety hazard
was not serious enough to be citable in the
first place.

1761

Findings and Conclusions
Fact of violation
The respondent is charged with an alleged violation of
mandatory safety standard 30 C.F.R. § 56.3200, ~hich provides
as follows:
.Ground conditions that create a hazard to
persons shall be taken down or supported before
other work or travel is permitted in the
affected· area. Until corrective work is completed, the area shall be posted with a warning
against entry and, when left unattended, a
barrier shall be installed to impede unauthorized entry.
The respondent's position with respect to the existence
of any hazardous ground conditions rests on Mr. Kelly's
argument that the modified order issued by Inspector Vance
allowed work to continue in the very same area which Inspector
Rines determined was hazardous. Mr. Kelly also believed that
there was sufficient ground support and stability bet~een the
two benches in question to allow the trucks and shovel to
operate without posing a hazard to miners or equipment.
Although the two actions.taken by the inspectors appear
to be contradictory and lend some support to Mr. Kelly's argument, I tak.e note of Mr. Vance's explanation concerning the
area ~hich he had in mind when he modified the order to allow
work to proceed to address the hazardous giound conditions. I
also take note of the fact that Mr. Vance's modification is
qualified and conditional in that it allowed work to the limit
of the area previously sprayed in red paint by Mr. Rines.
Taken in context, I cannot conclude that Mr. Vance's modification per se supports a reasonable inference that the ground
conditions which he and Mr. Rines believed were.hazardous
never existed.
In my view, any determination as to whether or
not any hazardous conditions were present at the time the
order/citation was issued by Mr. Rines must be made on the
basis of an evaluation of all of the facts and evidence available to .Mr. Rines when he made his evaluation of the ground
conditions and came to the conclusion that they presented a
hazard to miners while they were engaged in the excavation
work which was taking place at that time.

1762

Although Inspector Rines made reference to a drill shot
on the ~o. 4 bench in his order, he clarified this by confirming that ·the violation did not directly involve the number 4
bench because it was blocked off by stored materials and there
was no access into the area by any equipment, and that his
reference to the number 4 bench was intended to ref er to a
production shot on the nwnber 4 bench if it were to be mined
(Tr. 114-115). Mr. Kelly agreed that Mr. Rines was concerned
that the ground on the number 3 bench could give.way to the
cavern b~low, and his belief of the existence of a hazard
because of a possible vertical drop of equipment caused by the
edge of the bench cracking and coming down from the weight of
the equipment operating over the cavern hole (Tr. 113).
The evidence in this case reflects that Inspector Rines
issued the withdrawal order/citation on July 1, 1987, after
observing the exposed cavern and cracks in the floor of the
number 3 bench and the £ace of the number 4 bench.
Coupled
with the uncertainty as to the extent of the cavern or hole
which had been exposed by prior blasting and drilling,
Mr. Rines concluded that the ground conditions where trucks
and a shovel were engaged in the excavation and removal of
materials were such as to create a hazard in that the weight
of the equipment could have caused the floor of the number 3
bench to give way beneath the trucks and shovel. Two weeks
later, on July 15, 1987, Inspector Vance viewed the same
ground conditions, and he observed cracks in the floor of the
number 3 bench near the shot hole, and cracks in the immediate
vicinity in and around the hole. Mr. Vance also believed that
the ground cohditions he observed presented a hazard in that
the rock and material could give way, causing a vehicle to go
into the cavern.
Mr. Kelly confirmed that he had no quarrel with the withdrawal order issued by Inspector Rin~s. Mr. Kelly confirmed
that the quarry area in question had a history of underground
caverns, and that the particular location which was cited by
Mr. Rines was selected for drilling and blasting because it
had "bellied out" with hanging ~ock, was cracked in at least
one location, an.d that the wall between the number 3 and
4 benches was "pretty ragged." Mr. Kelly conceded that these
conditions posed a hazard to miners and equipment working
below.
He also alluded to a prior incident where equipm~nt
and miners were withdrawn from a working area over a cavern
with a pillar thickness of 15 feet because "we scared ourselves." Mr. Kelly also confirmed that caverns may vary from
inches wide to 100 feet wide, and he conceded that n6 drilling
was done to determine the direction or extent of the cavern in
question, and that in the event it extended back under the

1763

number 3 bench, the roadway used by the truck and shovel could
be undermined by the cavity. Although Mr. Kelly saw no
problem with working on the number 3 bench, he agreed that it
would be unsafe to bring in equipment to try and work around
and too close to the cavern.
After careful consideration of all of the facts in this
case, I conclude and find that the petitioner has established
by a preponderance of all of the evidence that the ground
conditions observed by Inspector Rines were hazardous and
presented a risk and danger to the miners who were performing
work in the cited area. Although the respondent was aware of
the hazard presented by the cavern which had previously been
exposed in the course of drilling and blasting to excavate and
remove materials from the area, it simply kept the. area under
observation and took no action to fill the cavern or take down
and support the rock and materials in the affected area.
Under the circwnstances, I conclude and find that a violation
of section 56.3200, has been established, and the citation IS
AFFIRMED.
Significant and Substantial Violation
A "significant arid substantial" violation is described in
sectiori 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 coal or other mine safety or health
hazard." 30 C.F.R. § 814(d)(l). A violation is properly
designated .significant and substantial "if, based upon the
particular facts surrounding the violation there exists a reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." .
. Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April
19 81) •
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "signif icant and substantial" as follows:
In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove:
Cl) 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

1764

in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129, the Commission stated further ~s follows:
We have explained further that the third
element of the Mathies formula "requires that
the Secretary establish a reasonable likelihood
that the hazard contributed to will result in
an event in which there is an injury." U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance
with the language of section 104(d)(l), it is
the contribution of a violation to the cause
and effect of a hazard that must be significant
and substantial. U.S. Steel Mining Company,
Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
S't'eel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular
facts surrounding the violation, including the nature of the
mine involved, Secretary of Labor v. Texasgulf~ Inc.,
10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Company,
9 FMSHRC 2007 (December 1987).
I conclude and find that the hazardous ground conditions,
including the unknown extent of the cavern hole beneath the
bench where men and equipment were working, presented a danger
of the ground giving way under the weight of the equipment.
In the event this had occurred, I believe it would be reasotiably likely that the miners working in the area would have
suffered injuries or a reasonable serious nature. Under the
circumstances, I agree with the inspector's "significant and
substantial" finding, and IT IS AFFIRMED.
History of Prior Violations
An MSHA computer print-out reflects that for the period
July 1, 1985 through June 30, 1987, the respondent paid civil
penalty assessments in the amount of $570 for 10 section
104(a) citations, seven of which are $20 "single penalty"
assessments.
I take note of the fact that none of the prior
citations are for violations of the safety standard cited in
this case, or for any ground control violations.

1765

Inspector Rines was of the opinion that the respondent's
compliance record was "a little bit higher than normal" as
compared to quarries of similar size. In addition, he stated
that the respondent has had chronic ground control problems
which have been of concern to MSHA, and th.a_t several ground
control imminent danger orders have been issued, terminated,
or are still outstanding at the quarry. Mr. Rines believed
that the respondent 1 s ground control practices were poor, and
he confirmed that the two outstanding imminent danger orders
were issued in 1984, but that no active mining was taking
place in those areas. Mr. Rines explained that a previous
slide caused ·by blasting and drilling close to the highwall
resulted in some of the material sliding into the quarry, and
that MSHA has been on the property periodically attempting to
control the overburden so that the quarry may be made safe
(Tr. 60-70).
Although petitioner's counsel stated that Inspector Rines
believed that the respondent had a "poor attitude" in connection with ground control, I find no credible evidence to
support any such conclusion. Further, even.though the respondent may have been served with prior imminent danger orders,
some of which may be outstanding, this does not per se establish a "poor attitude" with respect to ground control. Absent
any facts or evidence to the contrary, I cannot conclude that
the respondent has failed to comply with any MSHA orders or
directives, nor can I conclude that the record in this case
supports a finding that the respondent's compliance record
with respect to its paid history of assessed civil penalties
is such as to warrant any additional increase in the civil
penalty assessment which has been made for the violation in
question.
Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
The parties stipulated that the respondent is a
medium-size mine operator and that the civil penalty assessment made in this case will not adversely affect its ability
to continue in b~siness.
I adopt these stipulations as my
£indings and conclusions on these issues.
Gravity
On. the basis of my findings and conclusions affirming the
"significant and substantial" findings made by Inspector
Rines, I conclude and find that the violation in question was
serious. The unstable ground conditions presented a hazard to
bo·th the miners and equipment working in the cited bench area.

1766

Negligence
Insp~ctor Rines made a finding of "moderate" negligence#
and he testified that "their negligence wasn't all that high.
They just hadn't done anything." The evidence establishes
that the respondent was aware of the cavern which had been
exposed as a result of prior drilling and blasting which was
done in an effort to take down part of the bench wall which
had cracked and "bellied out." Although Mr. Kelly confirmed
that he was aware of the cavern and had inspected it and kept
it under observation prior to the inspection by Mr. Rines, no
particular action was taken to fill the hole or to determine
its extent, and the area was not barricaded or otherwise
secured against entry. Under the circumstances, I conclude
and find that the violation resulted from the respondent's
failure to exercise reasonable care, and the inspector's negligence finding is affirmed.

Good Faith Abatement
The record reflects that the cited conditions have not
been corrected, and that the dontested order is still "outstanding." The respondent has apparently opted to leave the
affected area and continue its mining operations elsewhere in
the quarry. The petitioner has stipulated that the respondent
acted in good faith by immediately withdrawing the miners and
equipment from the cited area, and I find no evidence that the
respondent has been uncooperative with MSHA in attempting to
address the hazardous gr6und conditions in question.
Mr. Kelly testified that in compliance with Inspector Rines'
order, the respondent requested assistance from MSHA's technical support personnel, and petitioner's counsel agreed that·
the unstable ground conditions in the area of the cavern presented a difficult situation in that any attempts to go back
into the area to evaluate the ground conditions, including the
filling of the cavern hole, would in itself present a hazard
and danger (Tr. 150, 154). I find no evidence that the respondent has ever attempted to place men or equipment back to work
in the area which has been withdrawn.
Petitioner's counsel agreed that the respondent withdrew
its miners as soon as the order was issued and that the designated danger area has in effect been dangered or marked off
and has remained so to the present.
Counsel conceded that
once this was done, "the violation ceased to exist," and he
could off er no explanation as to why the respondent received
"negative" civil penalty assessment points with respect to the
issue of good faith (Tr. 109-112). Under all of the aforesaid

1767

. cir.cums tances, I conclude and .find that t·he respondent acted
in good faith once the order/citation was issued, and I have
taken this into account in the civil penalty assessment which
I have made for the violation iri question.
Civil Penalty Assessment
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llOCi) of
the Act, I conclude and find that a civil penalty assessment
in the amount of $250 is reasonable and appropriate for the
violation which has been affirmed in this case.
ORDER
The respondent IS ORDERED to pay a civil penalty in the
amount of $250 for a violation of mandatory safety standard
30 C.F.R. § 56.3200, and payment is to be made to MSHA within
thirty (30) days of the date of this decision and order. Upon
receipt of payment, this proceeding is dismissed.

~~K~~
Administrative Law Judge

Distribution:
Page ft. Jackson, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203 (Certified Mail)
James River Limestone Company, Inc., Drawer 617, Buchanan,
VA 24066 (Certified Mail)
Mr. H. A. Kelly, Route 3, Box 482,
(Certified Mail)
/f b

1768

Buchanan~

VA 24066

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

DEC 2 8 \988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 88-50
A.C. No. 40-02701-03526

v.
Goforth Mine
FAITH COAL COMPANY,
Respondent
DECISION
Appearances.:

Before:

Mary Sue Ray, Esq., Office of the Solicitor, U.S.
Department of Labor, Nashville, Tennessee, for the
Petitioner;
Philip A. Condra, Esq., Dunlap, Tennessee, for the
Respondent.

Judge Maurer

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801, et al., (the Act).
Pursuant to notice, a hearing on the merits was held in
Chattanooga, Tennessee, on October 14, 1988. At the conclusion
of the hearing, the parties proposed a settlement of the case.
Based on the testimony adduced in the record, the petitioner
proposed reducing the charged negligence factor concerning
Citation No. 2808790 from "high" to "moderate" and reducing the
proposed penalty for both violations at bar from $179 to $156. I
have considered the representations and documentation submitted ·
in this case as well as the record of trial and I conclude that
the proffered settlement is appropriate under the criteria set
forth in section llDCi> of the Act.
WHEREFORE,·the motion for approval of settlement is GRANTED,
Citation Nos. 2808790 and 2808791 are affirmed, and it is ORDERED
that respondent pay a penalty of $156 within 30 days of this
order.

Roy J.

a rer

Admini~trative

1769

Law Judge

Mary Sue Ray, Esq.·, U.S. Department of Labor, Office of the
Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Philip A. Condra, Esq., 207 Rankin Avenue South, P.O. Box 307,
Dunlap, TN 37327 (Certified Mail)
/ml

1770

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

DEC 291988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
FORD ALLEN AMOS,
Complainant

v.

.
.
..
.
.
.

DISCRIMINATION PROCEEDINGS
Docket No. KENT
BARB CD 88-24

88~175-D

Kay Jay Mine

NALLY AND HAMILTON
ENTERPRISES, INC.,
Respondent
DECISION
Appearances:

William F. Taylor, Esq., Office of the
.solicitor, U.S. Department of Labor, Nashville,
Tennessee for the Complainant;
Lloyd R. Edens, Esq., Cline & Edens,
Middlesboro, Kentucky for the Respondent.

Before: Judge Melick
This case is before me upon the Complaint by the
Secretary of Labor on behalf of Ford Allen Amos under section
105(c)(2) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et seq., the "Act," alleging that Mr. Amos
was discharged by Nally and Hamilton Enterprises, Inc.
(Nally) on February 22, 1988, in violation of section
105(c)(l) of the Act.1/ The Secretary seeks reinstatement,
damages and interest for Mr. Amos as well as civil penalties
against Respondent Nally. Nally maintains that Amos was in
fact not discharged but quit on his own volition and
therefore suffereo no adverse action within the meaning of
section 105(c)(l).

!7 Section 105(c)(l) of the Act provides as follows:
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any

1771

In order to establish a prima facie violation of
section 105(c)(l), the complainant must prove by a
preponderance of the evidence that he engaged in an activity
protected by that section and that he suffered an adverse
action that was motivated in any part by that protected
activity. Secretary on behalf of Pasula v; ·consolidaton Coal
Company, 2 FMSHRC 2786 (1980) rev'd on other grounds sub~·
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3rd
Cir. 1981); Secretary on behalf of Robinette v. United Castle
Coal Co., 3 FMSHRC 803 (1981).
It is not disputed that during the week before Mr. Amos'
February 22, -19 88, departure from the Nally Kay Jay Mine he
had been "docked" 30 minutes pay for purportedly having
stopped work early on several occasions. Amos' foreman,
Johnny Jackson, testified that he watched_Amos and fellow
truck driver Wayne Roark quit early on two occasions and
explained this to Amos when Amos complained of his paycheck.
Amos disputed that he had quit early and the matter was still
at issue at the time of a confrontation between Amos and
Jackson on February 22, 1988. At this time Jackson was
admittedly also angry, believing that Amos was stirring up
employee dissension by spreading rumors that he would
complain of his reduced pay to company owner Tommy Hamilton.
cont'd fn.1/
miner, representative of miners or applicant for
employment in any coal or other mine subject to
this Act because such miner, representative of
miners or applicant for employment, has filed or
made a complaint under or related to this Act,
including a complaint notifying the operator or the
operator's agent, or the representative of the
miners at the coal or other mine of ~n alleged
danger or safety or health ~iolation in a coal or
other mine or because such miner, representative of
miners or applicant for employment is the subject
of medical evaluations and potential transfer under
a standard published pursuant to sect~on 101 or
-because such miner represent~tive of minerd or
applicant for employment has instituted or caused
to be instituted any proceeding under or related to
this Act or has testified or is about to testify in
any such proceeding, or because of the exercise by
such miner, representative of miners or applicant
for employment on behalf of himself or others of
any statutory right afforded by this Act.

1772

According to Amos, on the evening of February 22, 1988,
Jackson appeared at the worksite and called he and Darryl
Akers off their 50 ton haulage trucks. A heated exchange
followed.
Amos explained what happended in the following
.colloquy:
We were standing there and Johnny looked at me and
s~id "I want. all this talk about going to Tommy
Hamilton stopped •." I. said "John~y, I can't get y.ou
to fix my truck, you won't do nothing for the truck
and if you don't believe me, get up there and drive
it. 11 · I said "now you come up here and cut my time
for something I didn't do." That's when he said
"as of right now your time is stopped." I said
"what do ~ou mean, Johnny? He said "you are fired."
(Tr. 111)_/
While Amos maintained at hearing that he was in fact
discharged at the time of this confrontation, he nevertheless
immediately returned to work driving his 50 ton haulage truck.
Amos also acknowledged that Jackson saw him get back into the
truck.
This evidence is consistent with Jackson's testimony
that after the confrontation he told Amos to go back to work ..
At hearing, Amos confirmed that he continued working after
the confrontation in which he claims he was fired but claims
he did so because he thought he could get his job back.
After continuing to work for about three hours, Amos
decided to leave. He drove his pick-up truck to the mine
exit where he met Matt Roark and Jackson. Amos described,
what ha~pened as follows;
When I reached the shop there was Matt Roark, he
was standing beside the shop and I stopped there
first and hollered at Matt Roark to come over to my
truck.
I had a blanket in my truck which there was
a guy that rides tb work with me and he sat on the
blanke~ on the way home because he was a grease man
and he got oily and stuff. I said "Matt" and Matt
looked at me and said "what is it?" I· said "Johnny
fired me." I said "I want you to give this blanket·
to Ronnie so he could drive in the other guy's
truck." I pulled alongside Johnny.
He said "what
is it?" I said "you fired me." He just grinneCl at
me • ( Tr • 112 ) •
~/ At hearing, co-worker Wayne Roark generally corroborated
Amos' version of this confrontation.

1773

Foreman Johnny Jackson testified that indeed he founO.
that Amos and Wayne Roark had been quitting work early. He
observed them do so on several occasions before docking their
pay. When Amos received his short paychec~ Jackson explained
the reason for the deduction. Jackson later became concerned
because he heard rumors that Amos was threatening to take his
complaints to company owner Tommy Hamilton. According to
Jackson this was causing turmoil among his workers and
therefore, at the February 22, confrontation, he told Amos in
essence that if he did not stop the rumors he would be fired.
Jackson testified that he then told Amos to "get on your
truck and hau1·rock 11 ."!._/
·
Jackson also described what happened later when Amos
approached the exit gate:
At the time that he come up there, Matt got out of
my.pickup and walked around to the front and he
asked Mr. Amos was he broke down and what was wrong.
He said "no, Johnny fired me a while ago," and he
pulled up and Matt was standing, you know, like at
the corner of my pickup and I said "what is your
problem?" He said "you fired me." I said "no,
son, I didn't fire you." (Tr. 251).
After this exchange Amos left the job site and did not
return. He later was paid for the additiorial work he
performed that evening after the initial confrontation.
The credible evidence in this case shows clearly that
after Amos claims he was "fired" he nevertheless, in the
presence of the man who purportedly f iced him, immediately
returned to work driving his haulage truck and continued to
work for another three hours before deciding to leave the job.
This behavior is totally inconsistent with what would be
expected from someone who has just been £ired and what would
be permitted by a foreman who has just fired him. While Amos
testified that he continued to worK because he thought he
might thereby be able to retain his job, this testimony only
confirms that there had never been any real termination of
Amos' employment in the first place.
3/ Charles Jackson a company "oiler" testified that he
;verheard Johnny Jackson tell Amos "to get on his truck and
haul rock".

1774

It is also significant that when Amos later decided to
leave the job after continuing to work for about three hours
he apparently surprised the person (Johnny Jackson) who he
claims had earlier fired him as he approached the exit gate
because Jackson apparently asked Amos "what__is it?" or "what
was wrong?" Amos concedes that he then had to explain why he
was leaving the job site by telling Jackson "you fired me".
If Amos had indeed earlier been fired there would hardly be
need to explain why he was then leaving the job site. Under
the circumstances I do not find that the Complainant has met
her burden proving that Amos had in fact ever been fired as
he alleges or that he was subject to any adverse action
within the meaning of section lOSCc)(l) of the Act.
Accordingly this case must be dismissed.
ORDER
Discrimination Proceedings Docket No.
hereby dismissed.

ENT 88-175 Dare

I

!

Lt\./~i (JJ~

G ry M~ ick

\_,/
Adminis rative L w Judge
(703) 7~6-6261
/!

Distribution:

)

. }

I

•

,i

.

·

w. F. Taylor, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Lloyd R. Edens, Esq., Cline & Edens, Post Office Drawer 2220,
Middlesboro, KY 40965 (Certified Mail)
nt

1775

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

DEC 2 91988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
ZEIGLER COAL COMPANY,·
Respondent

. CIVIL PENALTY PROCEEDING
Docket No. LAKE 88-89
: A.C. No. 11-00612-03534
..
. Spartan Mine
.
DECISION

Appearances:

Before:

Miguel J. Carmona, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, IL; for the
Petitioner
Brent Motchan, Esq., Zeigler Coal Company, Fairview
Heights, IL, for the Respondent.

Judge Maurer

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801, et seq., (the Act).
Pursuant to notice, a hearing on the merits was held in
St. Louis, Missouri, on October 7, 1988. At the conclusion of
the reporting inspector's testimony, the parties proposed a
settlement of the case. Based on the testimony adduced in the
record, the petitioner proposed reducing the charged negligence
from "high" to "low", withdrawing the "unwarrantable failure"
contention and reducing the proposed penalty from $1000 to $250.
I have considered the representations and documentation submitted
in this case as well as the record of trial and I conclude that
the proffered settlement is appropriate under the criteria
set forth in section llOCi> of the Act.
WHEREFORE, the.motion for approval of settlement is GRANTED,
Citation No. 3042299 is hereby modified to one issued under
Section 104Ca) of the Act, and it is ORDERED that respondent pay
a penalty of $250 within 30 days of this order.

aurer
s rative Law Judge

1776

Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U.S.
Department of Labor, 230 South DearbOrn Street, Chicago, IL
60604 (Certified Mail)
Brent Motchan, Esq., zeigler Coal Company, 331 Salem
Place, Fairview Heights, IL 62208 (Certified Mail)
/ml

1777

FED:ERAL M1NE SAFETY AND HEALTH REVIEW COM,MISS·ION·
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
.. FALLS CHURC,H. VIRGIN.IA

22041.

DEC 2 91988
DISCRIM~NATION

SECRETARY OF LABOR,
MINE SAFETY ·A.Nrl HEALTH ' ,,
ADMINISTRATIC)N (MSHA'} ·;r l.:
ON BEHALF OF RAYMOND LONG,
.Complainant

.

•'

v.

PROCEED~NG

Docket No. WEVA 88-281-D
HOPE 88-12
No. 130 Mine

CANNELTON INDUSTRIES, INC.,
Respondent
DECISION APPROVING SETTLEMENT
AND DISMISSING PROCEEDING
Before:

Judge Broderick

On December 15 and 19, 1988, the Secretary filed a
motion to approve a settlement agreed to by all parties to
this proceeding. Respondent agrees to send the letter
attached to the motion as Exhibit 1, to complainant Long,
and to post a copy of. the letter at the mine for 30 days.
Respondent agrees to expunge the written warning issued to
Long from his personnel file.
It further agrees not to
consider the incident of February 12, 1988, in any disciplinary
action or personnel decision involving complainant.
Respondent agrees to set up a training program for its foremen
regarding the provisions of section lOS(c} of the Mine Act.
The program shall conform to the outline attached to the
motion as Exhibit 2 and may be monitored by MSHA.
It
further agrees to pay a civil penalty of $1000, and to post
a copy of the motion and this order at the mine for 30 days.
This case does not involve any lost time or claim for
back. pay or expenses.
I have considered the motion in the
light of the purposes of section 105(c) of the Act, and
conclude that it should be approved.
Accordingly, the motion to approve settlement is GRANTED;
Respondent is ordered to carry out the terms of the settlement,
and to pay the civil penalty of $1000 within 30 days of the
date of this decision. Subject to Respondent carrying out
the terms of the settlement, this proceeding is DI~MISSED.
J

I

I

.

'lf.,i·ut::A' _,AJ~'Ji_r.,rfi.~·-it'Jl
,//

Cf

James A. Broderick
Administrative Law Judge

177R

Distribution:
Page H. Jackson, Esq., U.S. Department of Labor, Office of
the Solicitor, 4015 Wilson Blvd.,· Arlington, VA 22203
(Certified Mail)
Laura E. Beverage~ Esq., Jackson & Kelly, 1600 Laidley Tower,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)
·Raymond Long, General Delivery, Beard's Fork, WV 25014
{Certified Mail)
William "Bolts" Willis, United Mine Workers of America,
Box 126, Pratt, WV 25162 (Certified Mail)
slk

1779

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

DEC: 301988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 88-227
A. C. No. 36-0647S~03S01

v.
Iselin Preparation Plant
PENNSYLVANIA ELECTRIC COMPANY,:
Respondent
DECISION
Appearances:

Before:

"

Therese I. Salus, Esq., U.S. Department of
Labor, Office of the Solicitor, Philadelphia,
Pennsylvania for the Petitioner;
Timothy N. Atherton, Esq., Pennsylvania
Elect~ic Company, Johnstown, Pennsylvania and
John P. Proctor, Esq., Bishop, Cook, Purcell,
Reynolds, for Respondent.

Judge Melick

This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to secti.on
lOS(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s·.c. § 801 et seq., the "Act," charging the Pennsylvania
Electric Company (Penelec) with two violations of regulatory
standards. The general issues before me are whether Penelec
violated the cited regulatory standards and, if so, whether
those viola~ion~ were of such a nature as could have
significantly and substantially contributed to the cause and
effect of a mine safety or health hazard, i.~. whether the
violations were "significant and substantial". More
specifically the threshold issue in this case is whether the
specific areas cited in this case i.e. the head drives of
conveyors SA and SB at Penelec's Homer City Steam Electric
Generating Station, come within the Secretary's jurisdiction
under the Act.
If jurisdiction is established and violations
are found, it will also be necessary to determine the
appr6priate civil penalty to be assessed in accordance with
section llOCi) of the Act. At hearing the parties submittea
the case on joint stipulations of facts (Appendix A)
supplemented by documentary evidence.

1780

Section 4 of the Act provides that "[e]ach coal or other
mine, the products of which enter commerce, or the operations
. or products of which affect commerce, and each operator of
such mine, and every miner in such mine ~hall be subject to
the provisions of this Act." It is not disputed that the
Secretary's jurisdiction in this case is accordingly to be
determined by whether the head drives for the SA and SB
conveyors at issue are part of a facility that is a "coal or
other mine".
"Coal or other mine" is defined in Section 3Ch)(2)
as follows:
•••• [A]n area of land and all structures,
facilities, machinery, tools, equipment, shafts,
slopes, tunnels, excavations, and other property,
real or personal, placed upon, under, or above the
surface of such land by any person, used in, or to ·
be used in, or resulting from, the work of
extracting in such area bituminous coal, lignite,
or anthracite from its natural deposits in the
earth by any means or method, and the work of
preparing the coal so extracted, and includes
custom preparation facilities •••
Section 3Ci> defines "work of preparing the coal" as
" ••• the breaking, crushing, sizing, cleaning, washing,
drying, mixing, storing, and loading of bituminous coal,
lignite, or anthracite, and such other work of preparing such
coal as is usually done by the operator of the coal mine."
The legislative history of the Act also indicates that
the definition of a "mine" is to be given the broadest
possible interpretation and that doubts should be resolved in
£avor of inclusion of a facility within its coverage. See
S.Rep. No. 181, 9Sth Cong., 1st Sess., 1, 14, reprinted in
1977 U.S. Code Cong. Admin. News, pp 3401, 3414. Marshall v.
Stoudt's Ferry Preparation Co., 602 F.2d S89, S92 (3rd Cir.
1979). See also Donovan v. Carolina Stalite Co., 734 F.2d
1S47 (D.C. Cir. 1984); Harman Mining Corp.,.v. Federal Mine
Safety and Health Review Commission, 671 F.2d 794 (4th Cir.
1981); and Cypress Industrial Minerals Co. v. Federal Mine
Safety and Health Review Commission, 664 F.2d 1116 (9th .Cir.
19 81) .
In summary, for purposes of the jurisdictional issue
before me, the relevant undisputed evidence.shows that amorig
other operations, raw coal is received at the Homer City
·
truck receiving facility where it may then be conveyed ·
through a crusher. Eventually the raw coal is transported by

1781

conveyors SA and SB Cover the SA and SB head drives at issue)
through Bin No. 2 and then to the Iselin Preparation Plant
where it is broken, crushed, sized, washed; cleaned, dried
and blended. The useable coal product is then directed for
use in the generating station boilers to pr_o_duce electrical
energy.
Within this framework of evidence it is clear that at
least some raw coal is transported on the SA and SB conveyor
belts which run over the SA and SB head drives on its way to
the Iselin Preparation Plant. At the preparation plant the
coal is broken, crushed, sized, washed, cleaned, dried and
blended in· preparation for consumption in the Penelec
generating station. These activities are all within the
scope of "work of preparing coal" within the meaning of
section 3(i) of the Act. It is also clear that the head
drives over which t6e raw coal passes on its way to such
preparation are "structures", "equipment", and "machinery"
that is "used in or to be used in" the "work of preparing the
coal". See Secretary v. Mineral Coal Sales, Inc., 7 FMSHRC
.615 (198S).
In distinguishing the Mineral Coal Sales case from
the case of secretary v. Oliver M. Elam, Jr. Company, 2
FMSHRC 1S72 (1982), the Commission observed that an
examination of the nature of the Mineral Siding operation
reveals that, unlike the commercial loading dock in Elam in
which coal was crushed merely to facilitate- loading and
transportation on barges, at Mineral Siding all of the above
listed work activities (coal storage, mi~ing, crushing,
sizing and loading) were performed on the coal to make it
suitable for a particular use or to meet market specifications.
In the instant setting a simiilar broad range of coal
preparation activities are conducted and are directed to the
particular purpose of consumption in the Penelec generating
station. Under all t:he circumstances it is- clear that the
head drives of the SA and SB conveyor belts are indeed
subject t6 the Secretary's jurisdiction under the Act.
In accordance with the joint stipulations, Penelec does
not challenge the findings that the SA and SB conveyor head
drives were inadequately guarded as charged in the citations
and that "MSHA had otherwise satisfied its burden of proof
with regard to Citations Nos. 2884282 and 2884283 and the
penalties proposed therefore".
I have considered the
documentation and other evidence submitted in these
proceedings and conclude that the evidence does indeed
support the violations and the proposed penalties. In
particular I find that the operator is chargeable but with
little negligence.
It is undisputed that Penelec was

1782

operating on the good faith belief that the SA and SB
conveyor head drives were subject only to the inspection
jurisdiction of the Occupational Safety and Health
Administration. Moreover it is undisputed that Penelec was
in compliance with that administration's re_g_ulations.
ORDER
Citations No. 2884282 and 2884283 are affirmed as
"significant and substantial" citations and the Pennsylvania
Electric Company is directed to pay civil penalties of $S4
for each violation within 30 days of the date of this
decision. In light of this decision on the merits the
post-hearing Motion to Dismiss and/or For S,ary Judgment
filed by Respondent is denied.

\

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Gary Melick
'\
.Administrative .:Law Judge
(703>: 7S6-6261 J

v

Distribution

.

Therese I. Salus, Esq.~ Office of the Solicitor, U.S.
Department of Labor, 353S Market Street,· Philadelphia, PA
19104 (Certified Mail)
Timothy N. Atherton, Esq., Pennsylvania Electric Company,
1001 Broad Street, Johnstown, PA 1S907 (Certified Mail)
John P. Proctor, Esq., Bishop, Cook, Purcell, Reynolds, 1400
L Street, N.W., Washington, D.C.
2000S-3S02 (Certified Mail)
nt

1783

Appendix A.
A.

P~ocedural

History

1. The Homer City Steam Electric Generating Station,
Homer City, Indiana County, Pennsylvania, is operated by
Penelec and owned by Penelec and the N~w York State Electric
& Gas Corporation C"NYSEG"), each with an undivided fifty
percent ownership interest.
.
2.
On August 2S, 1977, Penelec met with, discussed and
reached a verbal understanding with the Mininig Enforcement and
Safety Administration ("MESA"), predecessor of the Mine Safety
and Health Administration C"MSHA"), regarding MESA's and the
Occupational Safety and Health Admini~tration ("OSHA")'s
jurisdiction over the coal cleaning and coal handling facilities
at the Homer City Station.
·
3.
On January 7, 1988, MSHA inspector John Kopsic issued
two citations to Penelec for alleged violations of ·
·
30 C.F.R. § 77.400Cc) at the Homer City coal handling facility in
an area known as "Conveyors 5A and SB" (e.g., the No. SA and SB
head drives for the belt conveyor were inadeqQately guarded).
(See, "Coal Flow Diagram", attached hereto as Exhibit "A").
4.
Notwithstanding the August 1977 understanding, MSHA ·
has without Respondent's knowledge inspected the head drives of
.the SA and SB conveyors and did so on January 7, 1988, without
prior notice to Penelec.
S.
Shortly after issuance of the subject citations,
· Penelec requested an informal conference which was held among
various Penelec and MSHA personnel on or about February 18, 1988.
·MSHA refused to vacate the subject citations. Richard E. Orris,
Penelec's former Manager-Safety, by letter dated February 2S,
1988 to Donald W. Huntley, MSHA District 2 Manager, referenced
the August 1977 meeting and requested clarification from MSHA on
the question of jurisdiction.
6.
By letter dated April 12, 1988 1 Mr. Huntley informed
Penelec that MSHA would be expanding its inspection activities to
encompass several additional areas of the coal handling facility,
including the head dr.i ves of conveyors SA and s·B. These
inspection activities would include: Cl) Bin No. 1 Building,
including feeders, the control room and the tails of the SA and
SB conveyor belts; (2), Bin No. 2 Building, including motors, the
plug shoot probe, control button, Conveyors SA and SB, and all
floors; (3) Motor Control Circuit Room next to Bin No. 2 from the

1784

Lucerne No •. 6 drawof f tunnels, the No. 3 chute; conveyor, and
silo, the NQ. 24C and 2SC raw coal belts, the Grundlack crusher
(not used since 1982); (4) the Pennsylvania Crusher, a truck
dump, two scale houses three auger samplers, the Machine Mill
drawoff tunnels, (observed in operation by Inspector Kopsic) the
No. lT, No. 2T, No. 3T and No. 4T belts, and the four raw coal
truck silos and all adjoining belts.

7.
Penelec's schematic "Coal Flow Diagram," attached
.hereto as Exhibit "B", demonstrates the movement, of coal within
the Homer City coal handling facility and shows MSHA's inspection
activity prior to the January 1988 inspection and as enunciated
in Mr. Huncley's April 12, 1988 letter.
8.
On May 16, 1988, Penelec received notification from
MSHA of a proposed assessment for each violation in the amount of
$S4.00.
9.
On May 2S, 1988, Penelec requested a formal hearing
with the Mine Safety and Health Review Commission on all ·
viol·ations listed in the proposed assessment.
10. On.June 29, 1988, Penelec received a "Petition of the
Secretary of Labor for Assessment of Civil Penalty."
11. On July 28, 1988, Penelec filed an Answer to the
aforesaid petition and set forth as an affirmative defense MSHA's
lack of jurisdiction over Conveyors SA and SB and the additional
areas outlined in Mr. Huntley's April 12, 1988 letter. Penelec
does not challenge the Inspector's finding that the 5A and SB
conveyor head drives were inadequately guarded and that MSHA had
otherwise satisfied its burden of proof with regard to Citations
Nos. 2884282 an¢! 2884283 and the penalties proposed therefore.
12. On August 3, 1988, Administrative Law Judge Gary
Melick issued a pre-hearing order instructing the parties to
discuss by August 22, 1988 possible settlement, witnesses,
stipulation of material facts and trial dates.
·
13. On August 22, 1988, the parties filed a motion for
extension of time until September 22, 1988 to comply with the
pre-hearing order. The motion was granted bj Judge Melick.
14. On August 31, 1988, Penelec filed an "Application for
Temporary Relief" and on September 9, 1988, counsel for the
Secretary of Labor filed an objection to the application for
temporary relief.
lS. On September 7, 1988, a meeting was held in
Philadelphia between Penelec and MSHA representatives in order to.
resolv~ amicably the matters at issue.

1785

16. No agreement was reached and on September 15, 1988,
Judge Melick conducted a conference call with the parties and a
hearing date was set for September 23, 1988, which date was
rescheduled at Penelec's request to October 18, 1988 in
Hollidaysburg, Pennsylvania.
B.

Penelec's Operations at the Homer City Generating Station

17. The Homer City Generating Station produces electrical
energy by the combustion of coal. The Generating Station has
three generating units: Two (2) 600,000 kilowatt units (Units
Nos. l and 2) ~laded in service in 1969 and a third 650,000
kilowatt unit (Unit No. 3) which began operating in 1977. Homer
City Station burns approximately 4.5 million tons of Pennsylvartia
coal each year.
18. The Secretary does not claim there fs jurisdiction
under the Act regarding working conditions inside any of the
electric generating facilities at the Homer City Station. Those
conditiona are regul~ted by the Occupational Safety and gealth
Act of 1970, 29 u.s.c. § 651, et seq.
19. The sulfur dioxide emission limitation requirement
established by the Pennsylvania Department of Environmental
Resources for Units Nos. 1 and 2 is 3.2 lbs of S02 per mmBtu heat
input; the sulfur dioxide emission limitation requirement
established by the U.S. Environmental Protection Agency for Unit
No. 3 is 1.2 lbs of ·so2 per mmBtu heat input.
20. The Homer City Generating Station is supplied with
coal from three sources: Helen and Helvetia (Lucerne 6, 8 and 9)
miries, which are under MSHA's jurisdiction, and a truck receiving
facility where coal is delivered by various outside sources.
(See, Exhibits "A" and "B").
21. All coal purchases by Penelec from either the Helen or
Helvetia mines or purchased from other sources and delivered at
the truck receiving facility, is consumed at the generating
station.
l.

Coal purchased from Helen and Helvetia mines

22. Coal purchased from the Helen or Helvetia mines is
delivered by conveyor belt to scales where it is weighed, .sampled
automatically, and title passes to Penelec and NYSEG.
(See,
Exhibits "A" and "B").
23. The coal from the Helvetia mines proceeds by conveyors
Nos. 3 and 4 directly to Bin t\Jo. 1, where it is combined with
coal from the Helen mine which also is transported to the Bin by

1786

conveyors Nos. 1 and 2. Previously, the coal from the Helvetia
mines could proceed via a G~undlack crusher (still ii place) that
was used for experimental pu.rposes from 1977 until 1983. At Bin
No. 1, the coal from the Helen and Helvetia mines is sampled
again and then placed on conveyors SA and SB which transport the
coal to Bin No. 2.
24. Though, after the coal is sampled, there exists the
capability to divert the coal from Bin No.2 directly to the
generating station, because the·Helen Helvetia coal generally
does not comply with EPA standards, this is rarely done. Rather,
most of the coal travels from Bin No. 2 to the coal cleaning
plant owned by Penelec and NYSEG and operated by the Iseliri
Preparation Company, a subsidiary of Rochester and Pittsburgh
Coal Company.
(See, Exhibits "A" and "B").
2S. The coal cleaning plant, which breaks, crushes, sizes,
washes, cleans, dries and blends the coal, was constructed in
1977 to provide medium sulfur compliance coal for Units Nos. 1
and 2 and low sulfur compliance coal for Unit No. 3. The Iselin
Coal Preparation Plant has been inspected by MSHA since 1977.
2. Coal purchases and delivered by truck
26. When coal is delivered to the Homer City truck
receiving facility, it is weighed, auger sampled and title passes
to Penelec and NYSEG, after which the coal is dumped into one of
four hoppers.
(See Exhibit "A").
27. From the truck hoppers, the trucked coal C.6% sulfur
or 1.6% sulfur or "raw" coal) is separately transported by
conveyor, through the Pennsylvania Crusher, where, unless the
coal is frozen or clumped together, as it was during Mr. Kopic's
January 1988 inspection, the coal ordinarily bypasses the
crushing mechanism. From the Pennsylvania Crusher, the poal
continues on conveyor 2T to a bypass chute. From the bypass
chute, the trucked coal is transported by conveyors Nos. 3T and
4T to a distribution point on top of the truck coal Silos.
(See,
Exhibits "A" and "B"}.
28. From the distribution point, the low sulfur coal C0.6%
sulfur} is transported by conveyor 7T to clean coal silos for
direct use in Unit No. 3.
29. Medium sulfur coal Cl.6% sulfurn--which Respondent
purchases periodically but has not done since January 1988), on
the other hand, is distributed into any of the four (4) truck
coal silos and then by conveyor 6T to a point immediately outside
Bin No. 1 onto conveyors SA and SB for transport to Bin No. 2.
From Bin No. 2, the medium sulfur coal proceeds by conveyor for
use in Units Nos. 1 and 2.

1787

3:9. 'R'l:l!l eif ,mine ·:O'r ""raw'" eoa'l c£ollows the 'same 'Path as t he
medium sulfur coal (l.6% sulfur) except that at Bin No. 2, the
"raw" coal is diverted and transported by convey,or le to the coal
cleaning plant (See Exhibits "A" and "B").
0

3..

Coal from the coal cleaning plant,

31. The coal cleaning plant produces three products:
(a)
15-20% of the total feed is refuse and is transported via truck
by Iselin personnel to a refuse storage area; Cb) 15-20% of the
total feed is Unit No. 3 product and is delivered to the clean
coal silos via Conveyor 17C or to the clean coal stockpile via
Conveyor 21; and Cc> the remaining 60% of the feed is Units Nos.
1 and 2 product and is delivered by Conveyor 8C back to the top
of Bin No. 2 where it is distributed to the stockpile via
Conveyor 6 or through Feeders 7A and 7B onto Conveyot 7 to the
stacker reclaimer.
32. The stacker rec.laimer _either directs the coal to an
stockpile for later reclamation or passes the coal
directly to the generating station boilers.
activ~

1788

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1789

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EXHIBIT B

HOMER CITY STATION
COAL FLOW DI AGRAM

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COAL TO p~·ANT

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PLING

SAM-.

CLEAN
COAL

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COAL TO STACKER/RECLAIMER

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9/19/88

COAL TO STOCKPILE

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..................._,..__..,....,,.....,.....,....,._.....,....... ..............-...............-.-..-.---...... ..
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~ ADDITIONAL AREAS OF INSPECTION
~ ACTIVITY PURSUANT TOD. HUNTLEY'S

MSHA INSPECTION ACTIVITY
r;~>~J SINCE
1977

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COAL JO STOCKPILE
COAL TO PLANT ( UNITS-1 & 2)

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION·
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

November 10, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-231
A.C. No. 05-00301-03549

v.

Dutch Creek No. 1 Mine

MID-CONTINENT RESOURCES, INC.,
Respondent
ORDER
1. Respondent has served on petitioner certain interrogatories and requests for production of documents.
2. Petitioner responded thereto and a number of objections
have been posted by the petitioner. The parties orally argued to
their respective positions in a conference call on November 9,
1988.
On respondent's motion to compel, I find the following
issues:
Interrogatory No. 8 poses the following question to which
respondent filed the following answer.
8. As to each of the foregoing orders,
list by name, address, place of employment and occupation, each person the
issuing MSHA inspector contacted in the
course of the issuing inspector's investigation prior to the issuance of each of
said orders.
Answer No. 8.
Prewitt.

Order No. 3223449 - George

Order No. 2832627 - David Powell
The identity of any miner who discussed this
citation with the inspector will be protected
as confidential and disclosure of any identity
is hereby objected to.

1791

Discussion
Camnission Rule 59, 29 C.F.R. S 2700.59, provides as
follows:
§ 2700. 59
Name .of miner witnesses
and informants.

A Judge shall not, until 2 days
before a hearing, disclose or order
a person to disclose to an operator
or his agent the name of a miner
who is expected by the Judge to
testify or whom a party expects
to summon or call as a witness. A
Judge shall not, except in extraordinary circumstances, disclose or
order a person to disclose to an
operator or his agent the name of
an informant who is a miner.
The judge is bound by the foregoing Commission Rule.
Accordingly, respondent's motion to compel discovery as to
the identity of any such miner is denied. However, petitioner
is directed to state whether any miners are to be called as
witnesses and to state the number of such witnesses without
disclosing their identity.
Respondent's motion to compel, as modified herein, is
granted.
Interrogatory No. 9 poses the following question to which
respondent filed the following answer:
9. As to each of the foregoing orders,
please identify what fact(s) or data, if
any, relied upon by the issuing inspector,
elicited during the pre-order or precitation investigation, was provided by
what person(s), if any, named responsive
to Interrogatory No. 8.
Answer No. 9. Response to Number 8 above
is hereby incorporated.
Discussion
Facts relied upon do not identify any miner that may be
involved. Respondent's motion to compel is granted.

1792

Interrogatory No. 10 poses the following question to which
respondent filed the following answer:
10. As to each of the foregoing orders,
please identify the name and address of
each person petitioner expects to call as
a witness at the hearing in this matter,
and with respect to each person:
a. State the subject matter about which
the person is expected to testify:
b. State the substance of the facts or
the expected testimony about which the
person is expected to testify:
c. State the substance of the opinions,
if any, to which the person is expected
to testify:
d.

Summarize the grounds for each opinion.

Answer No. 10. The Secretary has not yet
determined what witnesses will be called to
testify, but will state that Phil Gibson
and Lee Smith may be called to testify in
this matter.
Discussion
The parties have agreed that, except for the identity of
miner witnesses, petitioner will answer Interrogatory 10 by
November 22, 1988.
Accordingly, ·respondent's motion to compel is granted.
Interrogatory No. 11 poses the following question to which
respondent filed the following answer.
11. As to each of the foregoing orders,
please identify and describe each exhibit
which petitioner intends to mark and offer
as an exhibit in evidence at the hearing
on the foregoing citations or orders.
Answer No. 11. The Secretary will mark
and introduce the MSHA History of Assessed
Violations. At this time, the Secretary
has not determined what, if any, other
exhibits will be used.

1793

Discussion
The same agreement and ruling is entered herein as provided
above as to Interrogatory No. 10.
Interrogatory No. 13 poses the following question to which
respondent filed the following answer.
13. Please state, if not in writing and
subject to one of the following requests
for production, the enforcement policy or
policies affecting Mid-Continent Resources,
Inc. as determined and put in effect by
each of the following persons: J.L. Spicer,
Ron Schell, John W. Barton, William A.
Holgate, and/or J.M. DeMichiei.
Answer No. 13. All formal policies are
placed in writing by MSHA. All other
policies are protect~d-by the deliberativeprocess privilege and objection is hereby
made to this request.
Discussion
The claim of privilege asserted by petitioner is sustained
and respondent's motion to compel is denied.
Request for Production of Document No. 17 asks for the
following to which respondent responded as f.ollows:
17. As to each of the foregoing orders,
please provide legible copies of any and
all documents which petitioner intends
to mark.and offer as exhibits to be received in evidence in the trial of this
matter.
Response No. 17. The Secretary has not yet
determined what evidence will be introduced.
Discussion
Petitioner has agreed. to produce all such document's by
November 22, 1988. Petitioner will further submit a final update
by November 25, 1988.
Accordingly, respondent's motion to compel is granted.

1794

Request for Production of Document No. 18 asks for the
following to which respondent responded as follows:
18. Any and all notes of memoranda
concerning enforcement at Mid-Continent
Resources, Inc.'s operations in Coal
Basin, Colorado.
Response No. 18. Objections, this
request is burdensome and requests
documents that are confidential.
Discussion
This request is overly broad. The thrust is directed at
Mid-Continent's assertions that the Secretary has abused his
prosecutorial discretion. This.issue has been partially heard
and is pending before the undersigned Judge in WEST 89-3-R.
If the Commission has jurisdiction to review an alleged abuse of
discretion by the secretary Can issue not yet determined but
pending before the undersigned Judge) then requests of this type
should be .presented, argued and briefed· in WEST 89-3-R. In. sum,
an orderly record requires that all of these i,sues be presented
in one case.
Petitioner's objections are sustained and respondent's
motion to compel is denied.
Request for Production of Document No. 19 asks for the
following. to which respondent responded as follows:
19. Any and all memoranda or memorial
of enforcement policies affecting MidContinent Resources, Inc. developed or
promulgated by J.L. Spicer, Ron Schell,
John w. Barton, William A. Holgate,
and/or John M. DeMichiei.
Response No. 19. Objection, this request
is burdensome and calls for documents
that are confidential.
Discussion
The same ruling is made herein as to the Request for
Production involved in Request No. 18.

1795

...

·-:··.

Request for Production of Document No. 20 asks fot t·he
following to which respondent responded as follows:
20. Any· and all notes or memoranda
other than the informant's name made
from telephone calls or personal
contacts by MSHA personnel with MidContinent Cother than management)
personnel regarding Mid-Continent
Cother than management) personnel
regarding Mid-Continent's operations
and/or alleged violations.
Response No. 20. No documents exist
regarding these violations and objection is made as the request calls
for confidential information.
Discussion
Petitioner has agreed to comply with this· request and
respondent accepts the limitation that the request be limited
to Docket No. WEST 88-230 and WEST 88-231.
Accordingly, respondent's motion to compel, as modified, is
granted.
Request for Production of Document No. 21 asks for the
following to which respondent responded as follows:
21. Any and all notes or memoranda
pertinent to the criteria, review, and
processing of special assessment violations.
Response No. 21. Objection, this request is overbroad, burdensome, and
calls for privileged material.
Discussion
Controlling case law establishes that. a mine operator, prior
to a hea·ring, may raise the issue that in proposing a penalty the
Secretary failed to comply with his Part 100 penalty regulations.
Youghiogheny and Ohio Coal company, 9 FMSHRC 673, 679-680 (1987).
Accordingly, respondent's motion to compel is granted.

1796

Request for Production of Document No. 22 asks for the
following to which respondent responded as follows:
22. Any and all notes or memoranda received by MSHA from the U.S. Department
of Labor Inspector General, the General
Accounting Off ice, or any other federal
or state investigative agency concerning
complaints and/or mining methods or
practices conducted at Mid-Continent
Resources, Inc.
Response No. 22. Objection~ this request
is overbroad, burdensome, and calls for
privileged material.
Discussion
The same ruling is entered herein as in Request No. 18.
ORDER
For the reasons stated above and for additional reasons
agreed to in the conference call, the undersigned enters the
following order:
1.

The above rulings are confirmed.

2. The rulings herein are controlling as· to the same issue.s
p_ending in WEST 88-230.
·
3. Petitioner has been ordered to answer interrogatories
and requests herein within certain time frames. Respondent is
likewise ordered to answer petitioner's interrogatories and
requests within the same time frames.

.....-··.. •

Law Judge
Distribution:
James· H. Barkley, Esq., Margaret A. Miller, Esq., Office of
the Solicitor, U.S. Department of Labor, 1585 Federal Building,
1961 Stout Street, Denver, co 80294
Edward Mulhall, Jr. ,. Esq. , Delaney & Balcomb, 818 Colorado
Avenue, P.O. Drawer 790, Glenwood Springs, CO 81602
/ot
1797

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGJ:S
COLONNADE CENTER
ROOM 280. 1244 SPEER BOULEVARD
DENVER. CO 80204

December 22, 1988
MID-CONTINENT RESOURCES, INC.,
Contestant

.

CONTEST PROCEEDING
Docket No. WEST 89-3-R
Order No. 3077666; 9/23/88

v.

Dutch Creek Mine
Mine ID 05-00301

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Respondent
ORDER

This contest proceedings arises under the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., ("the
Act").
Mid-Continent Resources, Inc. (Mid-Continent) has contested
a 104(d)(2) order issued under the Act. The Order, No. 3077666,
alleges Mid-Continent violated 30 C.F.R. § 75.1704. ~/

.!/

The regulation provides as follows:
§ 75.1704 Escapeways

[Statutory Provisions]
Except as provided in §§ 75.1705 and 75.1706, at least two
separate and distinct travelable passageways which are maintained
to insure passage at all.times of any person, including disabled
pers6ns, and which are to be designated as escapeways, at least
one of which is ventilated with intake air~ shall be provided
from each working section continuous to the surface escape drift
opening, or continuous to the escape opening, or continuous to
the escape shaft or slope facilities to the surface, as appropriate, and shall be maintained in safe condition and properly
marked. Mine openings s.hall be adequately protected to prevent
the entrance into the underground area of the mine of surf ace
fires, fumes, smoke and floodwater. · Escape facilit:ies approved
by the Secretary or his authorized representative, properly ,
maintained and frequently tested, shall be present at or in each
escape shaft or slope to allow all persons, including di.sabled
persons, to escape quickly to the surface in the event of an
emergency.

1798

The order alleged the following condition:
The intake air escapeway was not maintained in a safe
travelable condition. Part of the escapeway has heavy
roof problems, however, it is supported by truss bolts,
resin bolts, some 6" x 6" timber and 3 cribs. The bottom
has heaved for approximately 800 feet causing problems
in traveling or moving disabled persons quickly to the
surface in the event of an emergency. The travelway needs
to be cleaned with equipment to make it safe.
In additiori to its contest of Order No. 3077666
Mid-Continent further alleged that the order is part of a
persuasive on-going policy of abuse against Mid-Continent by the
Secretary through MSHA's District Manager.
Said alleged abuse,
implemented by MSHA's supervisors and inspectors, seeks to
subject Mid-Continent to shutdowns of its major mining units
whenever possible, and whether properly or not. Mid-Continent
further asserts that the order issued by MSHA was arbitrary,
capricious and improper.
When Mid-Continent filed its notice of contest it further
requested an expedited hearing.
The motion for an expedited hearing was granted and a two
day hearing, commencing October 12, 1988, was held in Glenwood
Springs, Colorado.
At the hearing both parties presented evidence concerning
Order No; 3077666. The evidentiary record has been closed on
that phase of the case (Tr. 442-443). At the hearing MidContinent, over the Secretary's objection, also presented
evidence in support of its view that the Secretary abused her
statutory discretion in enforcing the Act at ·Mid-Continent's
mine.
At the close of Mid-Continent's evidence the Secretary
orally moved the judge to dismiss all issues involving the
alleged abuse of discretion by the Secretary.
The issue of an alleged abuse of discretion wa~ initially
raised in this expedited hearing. Accordingly, after the entry
of an order on the issue of jurisdiction the judge indicated he
would grant the Secretary time to consider whether she would
stand on her motion to dismiss or seek an evidentiary hearing to
present her evidence on that issue (Tr. 444).
On October 17, 1988 the judge sua sponte directed the
parties to file briefs addressing the issue of whether the
Commission has juri~diction to consider an alleged abuse of
discretion. Such briefs were filed.

1799

Issue
The issue presented here is whether the Commission has
jurisdiction to review the alleged abuse of discretion by the
secretary in enforcing the Mine Safety Act at Mid-Continent's
Mine in the 12 months ending September 30, 1988.
Mid-Continent asserts the Commission not only has such
juri•diction but a corresponding duty to consid~r allegations oi
Secretarial or agency abuse.
Further, Mid-Continent argues that
Commission has review and oversight authority over any
·
misfeasance, malfeasance or abuse if the Commission determines
such conditions exist. Finally, it is contended that the
Commission has wide jurisdictional latitude and authority to
fashion "other appropri~te relief" for such conditions.
Discussion
It is a fundamental principle that, as an administrative
agency created by statute, the Commission cannot exceed the
jurisdictional authority granted to it by Congress. See e.g.,
Civil Aeronautics Board v. Delta Airlines, 367 U.S. 316, 322
(1961); Lehigh & New England R.R. v. ICC, 540 F.2d 71, 78 (3rd
Cir. 1976}; National Petroleum Refiners Assoc. v. FTC, 482 F.2d
672, 674 (D.C. Cir. 1973). The Commission is an independent
adjudicative agency created by section 113 of the Mine Act, 30
U.S.C. § 823, to provide trial-type proceedings and administrative appellate review in cases arising under the Act.
Several
provisions of the Mine Act grant subject matter jurisdiction to
the Commission by establishing specific enforcement and contest
proceedings and other forms of action over which the Commission
judicially presides:~, section 105(d), 30 u.s.c. § 815(d),
provides for the contest of citations or orders, or the contest
of civil penalties proposed for such violations; section
105(b)(2), 30 U.S.C. § .815(b)(2), provides for applications for
temporary relief from orders issued pursuant to section 104;
section 107(e), 30 U.S.C. § 817Ce), provides for contests of
imminent danger orders of withdrawal; section 105Cc), 30 U.S.C.
§ 815 (.c), provides for complaints of discrimination; and section
111, 30 U.S.C. § 821, provides for complaints for compensation.
Specific provisions, such as these, delineate the scope of the
Commission's jurisdiction.
In view of the arguments advanced by Mid-Continent it is
necessary to consider the statutory provisions in detail together
with the legislative history of the Act.
Section 105(d) of the Act, 30
follows:

1800

u.s.c. § 823(d)(l) provides as

(d) If, within 30 days of receipt thereof, an operator
of a coal or other mine notifies the Secretary that he
intends to contest the issuance or modification of an
order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under
subsection (a) or (b) of this section, or the reasonableness ·of the length of abatement time fixed in a citation
or modification thereof issued under section 104, or any
miner or representative of miners notifies the Secretary
of an intention to contest the issuance, modification,
or termination of any order issued under section 104, or
the reasonableness of the length of time set for abatement
by a citation or modification thereof issued under section
104, the Secretary shall immediately advise the Commission
of such notification, and the Commission shall afford an
opportunity for a hearing (in accordance with section 554
of title 5, United States Code, but without regard to
subsection (a)(3) of such section>, and thereafter shall
issue an order, based on findings of fact, affirming,
modifying, or vacating the Secretary's citation, order or
proposed penalty, or directing other appropriate relief.
Such order shall become final 30 days after it issuance.
The rules of procedures prescribed by the Commission shall
provide affected miners or representatives of affected
miners an opportunity to participate as parties to hearings
under this section. The Commission shall take whatever
action is necessary to expedite proceedings for hearing
appeals of orders issued under section 104.
[Emphasis added by Mid-Continent].
The portions of section 105Cd) emphasized by Mid-Continent
in no way enlarge the Commission's jurisdiction. The hearing the
Commission must afford relates to the specific matters set forth
in ~ection 105(d) and elsewhere in the Act.
As stated, the
Commission shall issue an order as to the citations, orders or
proposed penalties. It may also direct "other appropriate
relief" but this relief involves such specific citations, orders
or proposed penalties. It is a £undamental rule of statutory
construction that adjudicat~on of an issue must start with the
plain language of the statute.
Rubin v. United States, 449 U.S.
424, 430 Cl981); International Union, UMWA v. Federal Mine Safety
and Health Review Commission, 840, F.2d 77, 81 CD.C. Cir. 1988).
I believe the statute is clear.
Mid-Continent urges the Commission to interpret" its
authority under sectipn 105(d) as broadly as it has interpreted
section 105Cc)(2). In support such a broad view Mid-Continent
cites Northern Coal Co., 4 FMSHRC 126, 142; Glen Munsey v. Smitty
Baker Coal Co., Inc., 2 FMSHRC 3463, 3464 (1980 and NLRB v.
Rutter-Rex Mfg., Co., 396 U.S~ 258, 263 (1969).
In addition,

1801

Mid-Continent claims the legislative history removes any doubts
on these points:
It is the Committee's intention that the Secretary propose
and that the Commission require, all relief that is
necessary.to. make the complaining party whole and to remove the deleterious ·effects of the discriminatory conduct
including, but not limited to reinstatement with full
seniority rights, back-pay with interest, and recompense
for any special damages sustained as a result of the
discrimination. The specified relief is only illustrative.
Thus, for example, where appropriate, the Commission should
issue broad cease and desist orders and include requirements for the posting of notices by the operator.

s. Rep. No. 95-181, above, 37, reprinted in Leg. Hist.
625.
[Emphasis added by Mid-Continent]
Mid-Continent's arguments are misdirected.
Section 105(d)
sets forth some but not all of the situations where the
Commission has jurisdiction. The expression "other appropriate
relief" in Section 105Cc> deals with the fashioning of remedies.
It does not follow that the authority to fashion such remedies
can also be used to encompass Mid-Continent's allegations.
The cases cited by Mid-Continent are not inopposite these
views.
In urging a broad construction of the statutory expression
of "other appropriate relief" Mid-Continent also relies on Clima},:
Molybdenum Co., 2 FMSHRC 2748, 2751-52 Cl980), aff'd sub nom.
Climax Molybdenum Co. v. Secretary of L~bor, 703 F.2d 447, 452
(10th Cir. 1983); Youghiogheny & Ohio Coal Co., 7 FMSHRC 200, 203
(1985) as well as Kaiser Coal Corporation 9 FMSHRC 1165 (1988).
I agree the Commission may grant declaratory relief in
appropriate circumstances. However, such appropriate relief must
necessarily relate to the contested order or citation. But
Mid-Continent cannot fuse the contest of an order with its claims
of agency abuse. It is clear that declarat~ry relief cannot be a
vehicle to enlarge jurisdiction. Colorado westmoreland,10 FMSHRC
1236 ( 1988).

Section 113(d)(l) of the Act, 30 U.S.C. § 823(d)(l) provides
as follows:
Cd)(l) An administrative law judge appointed by the
Commission to hear matters under this Act shall hear, and
make a determination upon, any proceeding instituted
before the Commission and any motion in connection therewith, assigned. to such administrative law judge by the

1802

chief administrative law judge of the Commission or by
the Commission, and shall make a decision which constitutes
his final disposition of the proceedings. The decision
of the administrative law judge of the Commission shall
become the final decision of the Commission 40 days after
its issuance unless within such period the Comission has
directed that such decision shall be reviewed by the
Commission in accordance with paragraph (2). An administrative law judge shall not be assigned to prepare a
recommended decision under this Act.
The foregoing section of the Act merely addresses the
province of the Commission's administrative law judges. This
section adds nothing to the Commission's jurisdiction.
Section 113Cd)(2)(A)(ii) of the Act, 30
CA>Cii), provides as follows:

u.s.c. § 823(d)(2)-

Cii) Petitions for discretionary review shall be filed
only upon one or more of the following grounds:
CI)

A finding or conclusion of material fact is not
supported by substantial evidence.

CII)

A necessary legal conclusion is erroneous.

{III) The decision is contrary to law or to the duly
promulgated rules or decisions of the Commission.
CIV)

A substantial question of law, policy or discretion
is involved.

CV)

A prejudicial error of procedure was committed.

The foregoing section and CA)(i) thereof mandates the
standards for the Commission's review of administrative law
judges decisions under the Act.
This section does not increase to Commission's jurisdiction.
There are many substantial questions of law, policy or discretion
involved in the various orders, citations and penalties arising
under the Act. A review of the many Commission decisions
discloses such issues.
Section llOCi) of the Act, 30
follows:

u.s.c. § 820(i), provides as

Ci) The Commission shall have authority to assess all
civil penalties provided in this Act. In assessing civil

1803

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 att.empting
to achieve rapid compliance after notification of a
violation.
[Emphasis added by Mid-Contine~t]
Mid-Continent argues that this provision of the Mine Act
clearly shows that one of the purposes of the Act and the_
Commission's oversight of MSHA is to ensure that oppressive enforcement does not place an operator at the risk of being put out
of business by the instant order and MSHA's alleged abuse of
dis.cretion.
· I reject Mid-Continent's argument.
The cited portion of
Section llO(i) is clearly interwoven with the assessment of civil
penalties.
It does not form a separate basis to confer jurisdiction.
Legislative History
Mid-Continent cites extensive portions of the legislative
history of the Act ~nd observes that the reasons for creating the
Commission are contained in the legislative history.
F~r
example:
The Committee's oversight of the enforcement and administration of the mine safety laws has demonstrated that the
Department of the Interior has been seriously deficient in
past years in its enforcement and administrative responsibilities under these statutes. S. 717 is designed and
drafted to correct these deficiencies and make the enforcement of the mine safety laws more responsible to the demonstrated needs of our nation's miners and the mining
industry.
[Emphasis added by Mid-Continent]
And, explaining the function of an independent Commission:
The bill provides a right to contest orders and proposed
penalties before the Commission.
The Committee realizes that alternatives to the establishment of a new independent reviewing body exist. For
example, under the present Coal Act, review of contested
matters is an internal function of the Secretary of the
Interior who has established a Board of Mine Operations
Appeals to sepa·rate his prosecutorial and investigative
functions from his adjudicatory functions.

1804

The Committee also recognizes that there are organizational
and administrative justifications for avoiding the establishment of new administrative agencies. However, the
committee believes that the considerations favoring a
completely independent adjudicatory authority outweigh
these arguments.
The Committee believes that an independent Commission is
essential to provide administrative adjudication which
preserves due process and instills much more confidence in
the program.
[Emphasis added by Mid-Continent]

s. Rep. No. 95-181, Committee on Human Resources on s.
7187, Federal Mine Safety and Health Act of 1977, as
amended, at 8-9, 47, 95th Cong., 1st Sess. (1977).
In reporting the conference changes to what became the
1977 Mine Act, the House characterized the functions of
the Commission as follows:
The conference substitute provides for an independent
Federal Mine Safety and Health Review Commission. This
Commission is assigned all administrative review responsibilities and is also authorized to assess civil penalties.
The objective in establishing this Commission is to
separate the administrative review functions from the enforcement functions, which are retained as functions of
the Secretary. This separation is important in.providing
administrative adjudication which preserv€s due process
and installs confidence in the program.
This separation
is also important because it obviates the need for denovo review of matters in the courts, which has been a
source of great delay.
[Emphasis added by Mid-Continent]
123 Cong. Rec. H 11644 (daily ed. October 27, 1977)
(Remarks of Rep. Gaydos).
Mid-Continent argues that the legislative history of the
Mine Act also shows that it was a consistent intention of th~
Congress that the Commission be created as a check on possible
abuses of enforcement discretion by the Secretary. As the Senate
Committee explained its plan a full year before the Act was
enacted:
THE MINE SAFETY AND HEALTH REVIEW COM.MISSION
Organization of the Commission
The bill provides to an operator the right to contest any
citation, order or penalty before the Commission, which
is established under section 114 [sic] of the Act. The
1805

committee believes that an independent Commission is
essential to.provide impartial adjudication of these matters
and prbtect the constitutional rights of operators.
Although the Commission is patterned after the Occupational
Safety and Health Review Commission, the Committee believes
that the heavy caseload of that commission and the peculiar
technical matters involved with mine health and safety
problems warrant the establishment of an independent
commission.
[Emphasis added by Mid-Continent]

s. Rep. 94·-1198, Committee on Labor and Public Welfare,
Federal Mine Safety and Health Amendments Act of 1976, at
40, 94th Cong., 2nd Sess. (1976).
No doubt .the congress has oversight authority over the
administration of the Act. However, a fair reading of the
legislative history indicates that Congress did not consider
any abuse of discretion by the Secretary in the enforcement of
the Mine Act.
If it had considered that facet Congress might have vested
jurisdiction with the Commission. But, as previously observed,
the Commission's jurisdiction is limited.
Mid-Continent finally and simply asserts there is no other
forum except the Commission.
It declares the legislative history
contemplates that the Commission, and of necessity its administrative law judges, have the duty to protect the constitutional
rights of operators. In support of its position Mid-Continent
cites the legislative history as well as American Coal Co. v.
U.S. Department of ~Labor, 639 F.2d 659, 660-62 (10th Cir. 1981)~
Louisville & Nashville RR Co. v. Donovan, 713 F.2d 1243, 1245-46
(6th Cir. 1983) and Bituminous Coal Operators' Ass'n v. Marshall,
82 F.R.D. 350, 35·2 (D.C. 1979).
The cited cases. are not in opposite the views expressed in
this order.
In American Coal it was ruled the District Court
lack.ed subject matter jurisdiction. Specifically, the Court held
that an order issued by an MSHA inspector pursuant to section
103(k) was subject to review by the Commission even though the
section contains no specific reference to such review. In
American Coal the appellate Court specifically relied on that
portion of the legislative history that an operator "may appeal
to the Commission the issuance of a closure order • • . " 639 F.2d
at 661. [A 103(k) order can often result in a mine closure].
In Louisville and National RR, involving black lung
benefits, the appellate Court ruled the District Court lacked
subject matter jurisdiction where there existed a special
statutory review procedure, 713 F.2d at 1243.

1806

Bituminous Coal Operators Ass'n supports the Secretary and
not Mid-Continent. As the Court noted the review of orders and
citations ar.ising under the Act are vested in the Commission, 82
F.R.D. at 352.
Mid-Continent is not without a remedy. With respect to the
orders (or citations) issued during the period of the alleged
abuse of discretior each must starid of fall on its own .merits.
If the order is held valid on the facts presented then no abuse
of discretion existed with respect to that order.
If, on the
other hand, the order is vacated any abuse of discretion that may
be involved is btired with respect to that order.
In sum, the Mine Act enabling statues do not grant the
Commission authority to determine the appropriate level of
enforcement at a particular mine.
For the reasons expressed herein I enter the following:
ORDER
1.
The motion of the Secretary to dismiss contestant's
broad allegations of alleged abuse in the enforcement of the Act
at Mid-Continent's mine is granted.
2.
If contestant desires to preserve this issue in pending
and future cases it is directed to prepare and submit an offer of
proof in relation thereof in such other cases.
3.
The parties are granted 30 days to file such post-trial
briefs as they desire as to Order No. 3077666 concerning the
alleged violation of 30 C.F.R. § 75.1704.

Judge
Distribution:
Edward Mulhall, Jr., Esq., Delaney & .Balcomb, Drawer 790,
Glenwood Springs, CO 81602
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294
/bls

1807

FED£RAl MINE SAFETY AND HEALTH REVIEW COMMISS.ION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041 ·

December 23, 1988

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

v.
ADKINS COAL CORPORATION,
Respondent

CIVIL PENALTY PROCEEDING

.

Docket No. VA 87-8
A.C. No. 44-05185-03544

:

Mine No. 1

.
ORDER

On August 4, 1988, Petitioner filed a Motion to Permit
Discovery, requesting an order permitt1ng the initiation of
discovery, pursuant to 29 .C.F.R. § 2700.55Ca), inasmuch as the
Motion was filed beyond 20 days after the filing of the Petition
for Assessment of Civil Penalty.

9n August 25, 1988, a Stay Order was issued, pursuant to
Respondent's Motion for continuance filed on Augttst 11, 1988,
which was not opposed by Petitioner, pending the filing of a
llO(c) action against certain .individuals concerning the same
subject matter as the above case. In a conference initiated .by
the undersigned with Counsel for both Parties on December 8,
1988, it was indicated that a request for hearing with regard to
the llO(c) action had been filed.
On December 15, 1988,
Respondent submitted a statement in response to Petitioner's
First Request for Production of Documents which had been filed
along w~th R~spondent's Motion on August 4, 1988.
In its Motion, Petitioner alleged that the discovery sought
is relevant, reasonably calculated to lead to the discovery of
admissible evidence, within the knowledge and custody of the
Respondent, and will assist Petitioner in the preparation for
trial.
Petitioner's First Request for Production of Documents seeks
discovery of documents contained in "the personal notebook
maintained by the mine foreman." Respondent argues that the
notebook is to be considered an attorney work product, inasmuch
as it " • • • was maintained by the mine foreman on the advise and
pursuant to instruction by Couns~l."
(sic).

1 Qno

Based upon the representations in Petitioner's Motion, which
have not been challenged by Respondent in its statement filed on
December 15, 1988, I find that good cause has been established,
and discovery may be permitted. 29 C.F.R. § 2700.SS(c), in
essence, provides that discovery includes relevant material that
is not privileged, and which is either admissible or appears
reasonably calculated to lead to the discovery of permissible
evidence. In order to eliminate surprise and allow the Parties
to prepare for trial, in general, the rules of discovery should
be broadly applied CSee Hickman v. Taylor, 329 U. S. 495 C1947)).
Although Respondent maintains that the notebook in question
should be cons1dered an attorney work product, as it was ·
maintained by the mine foreman on the advice and pursuant to
instructions by Counsel, Respondent has not alleged that the
notebook in question was maintained in preparation for trial Cc.f.
Rule 26Cb), Federal Rules of Civil Procedure). Clearly, any
notebook kept, even on the advice of Counsel, in the regular
course of the business would be outside the "work product"
protection (See cases cited in Moore's Federal Practice at
26-354, 355). Further, inasmuch, as the notebook in question
appears to be in the exclusive,control of Respondent, it would
appear that Petitioner would suffer undue hardship should
discovery not be allowed (Rule 26(b)(3), supra).
Accordingly, it is ORDERED that Petitioner'~ Motion to
permit discovery is GRANTED and Petitioner's First Request for
Production of Documents is allowed.

m~

A~sberger

Administrative Law Judge
(703) 756-6210

Distribution:
Charles Jackson, Esq., Office of the Solicitor, u. S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Charlie R. Jessee, Esq., Compton & Jessee, P.C., 180 East Main
Street, Abingdon, VA 24210 (Certified Mail)
dcp

1809

FED·ERAL Ml~:E SAFETY AND HEALTH REVIE~ COMMISSION
OFFfCE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC 271988

.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF
DAVID S. HAYNES
Applicant
v.

DISCRIMINATION PROCEEDING
Docket No. WEVA 89-31-D
MORG CD 88-18

..

Mine No. 6

DECONDOR COAL COMPANY, INC.,
Respondent
ORDER OF TEMPORARY REINSTATEMENT
Appearances:

Mary K. Spencer, Esq., Office of the Solicitor,
U. s. Department of Labor, Arlington, Virginia;
David Morrison, Esq., Harry P. Waddell, Esq.,
Steptoe & Johnson, Clarksburg, West Virginia.

Before:

Judge Weisberger

I.
On November 2, 1988, the Secretary, on behalf of David S.
Haynes, filed an Application for Temporary Reinstatement,
alleging, in essence, that the complaint of discharge filed by
Hayne.s was not frivolous. On November 14, 1988, Respondent filed
a statement alleging that there was reasonable cause for the discharge of the Applicant, and alleging further that the Applicant
cannot be temporarily reinstated to his former position " • • . as
the job is no longer available." In its Statement, Respondent
also requested a hearing.
On Novenber 15, 1988, the undersigned arranged a telephone
conference call between Counsel for Applicant and Respondent's
President in order to arrange a hearing date. At that time
Respondent advised that it would be represented by Counsel.
On
November 17, 1988, in a conference telephone call with the undersigned and Counsel for both Parties, it was agreed that the
Parties would confer for the purpose of discussing settlement,
and in the event that no settlement would .be reached, the matter
was set.for hearing on December 7, 1988, in Clarksburg,
W~st Virginia.
The matter was not settled, and was subsequently
heard on December 7, 1988. At the hearing, the Applicant waived

, Q,"

his right to have a hearing within 10 days following receipt by
the Chief Judge of the Request for Hearing. At the hearing,
David Stanley Haynes, the Applicant, testified on his own behalf,
and Jack Duane Hovatter, Johnriy Paul Williams, and James Edward
Martin testified for Respondent. At the conclusion of ·the
hearing, Counsel for Applicant indicated she desired to file a
Post Hearing Brief and the Applicant waived his right to have an
Order issued in this matter within 5 days following the close of
the hearing. It was ordered that Briefs were to be filed by
Express Mail on December 16, 1988. Briefs were filed on
December 19, 1988.
II.
The Applicant had filed a Complaint of Discrimination dated
August 1, 1988, alleging, in essence, tha!: on July 19, 1988, as
shift foreman, he removed his men from working in the area
designated by John Williams, the mine foreman, on the ground that
the conditions therein were hazardous. The complaint further
alleges that on July 20, 1988, Haynes explained to Williams that,
in· essence, he did not cut in the area as instructed, due to the
nature of the conditions therein, and Williams in turn fired him.
Haynes, in essence, testified that he was employed by
Respondent from May 14, 1988 to July 20, 1988, as the second
shift (afternoon) foreman and miner helper. It was the testimony
of Haynes that prior to commencing the shift on July 19, 1988,
Williams 'told him, in essence, to set a water pump in the 3R back
cut area as there was a lot of water which had accumulated, and
then to mine the area as many times as he could. Haynes indicated that in the process of loading coal, the shuttle car cable,
~hich he described as being in poor shape, was in mud and water
and kept knocking out the power on the outside. He said that the
pump was not working inasmuch as there was much mud in the dip,
and it kept clogging up. He said that he was concerned about the
danger to one of the miners of accidental electrocution. He indicated that such an accident could occur if a miner would come in
contact with a transformer during the time the power was knocked
out, a.nd then remain in contact when the power was turned back on.
Accordingly, Haynes stopped mining in the area and removed his
men. He said that at the end of his shift he left a note for
Williams to repair the cable and also indicated that the power
kept knocking out.
Haynes indicated that at the beginning of the day shift the
following day, Williams called him and asked him why he did not
cut the 3R back cut, and Haynes explained that he tried, but that
the power kept knocking out, and he was concerned that someone
would get hurt, so he took the men out. Haynes said that in
response Williams told him that he was finished and to get his
clothes.

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Section 105(c)(2) of the Federal Mine Safety and Health Act
of 1977 (The Act), in essence, provides that if the Secretary
finds that a complaint of discrimination " • • • was not frivolously brought," the Commission upon application of the Secretary,
" • • • shall order the immediate reinstatement of the miner
• • • ." 29 C.F.R. § 2700.44(c) provides, ln essence, that at a
hearing concerning an application for temporary reinstatement, the
burden of proof is on the Secretary to establish that the complaint
"is not frivolously brought."
It is the position of the Respondent that the Applicant cannot prevail in any action alleging a violation of section 105(c)
of the Act, inasmuch as he failed to communicate to management
his concern about hazardous working conditions -on July 19, 1988.
In this connection it is noted that Haynes did not communicate to
any of his superiors on July 19, 1988, any of his safety concerns.
Respondent thus argues that since Applicant cannot ultimately
prevail in any section lOS(c) action, it must be found that it
has not been established that the complaint was not frivolously
brought. I do not find inerit to Respondent's argument. The
legislative history of the Federal Mine Safety and Health Act of
1977, indicates that the language creating the right of a miner
to be reinstated temporarily where his complaint of discrimination was not "frivolously brought," was first inserted in the
Senate's version (S.717, 95th Congress, 1st Session 1977). The
Report. on the Senate Bill from the Committee on Human Resources
CS. Rep. No. 95-181, 95th Cong., 1st Sess. (1977), in explaining
the provisions of the Bill, indicates that the Secretary shall
seek an Order of the Commission for temporary reinstatement when
it determines that the complaint " • • . appears to have
·merit·. • •
"
(Reprinted in Legislative History of the Federal
Mine Safety and Health Act of 1977, at 624 (1978) ).
[Hereinafter
cited as 1977 Legislative History.] There is no further discussion in the legislative.history of the Act of the meaning Congress
iritended to place on the term "was not frivolously brought."
Clearly Congress.intended this term to encompass its usual
accepted meaning. In this connection, I note that Webster's New
Collegiate Dictionary (1979 edition) defines frivolous as "l: of
little weight or importance • • • ." The testimony of Haynes,
not rebutted by Respondent, tends to establish that the complaint
was brought to protest his being fired after he took action based
on his perception of various safety hazards.
I do find that in
order to prevail, Applicant must establish no more than proving
that his complaint is not of little weight or importance.
Congress in enacting section 105(c)(2), supra, did not choose to
use the term "substantial likelihood" of prevailing, which it used
in section 105(b)(2)(B) as a precondition to the granting of

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temporary relief from modification of an Order issued under
section 104(c). Hence, Applicant does not have the burden of
establishing here a likelihood of prevailing in any section lOSCc)
action.
Respondent thus cannot defeat Applicant's case by
establishing that he would not prevail in a _105 (c) action.
Also, inasmuch as the scope of the hearing was limited, pursuant to 29 C.F.R § 2700.44(c), to the issue of whether the
complaint was frivolously brought, it is possible that the ·issue
of notice to Respondent of the hazardous conditions, was not
fully litigate_d. Nontheless, I observed the demeanor of both
witnesses and found Haynes more credible in his testimony that,
in the note to Williams, that he left at the end of the shift on
July 19, 1988, he informed the latter to repair the cable, and
also stated that the power kept knocking out. Also, Williams
indicated that Haynes had told him in the telephone call Williams
made to him on the morning of July 20, that the power was going
out and the cable of the buggy was smoking. For all these reasons, I conclude that the Applicant has established that the
complaint herein was "not frivolously brought."
III.
Pursuant to section 105Cc)(2), supra, once it has been established that a complaint has not been frivolously-brought, the
"immediate reinstatement" of the miner shall be ordered pending
final order on the complaint.
It is Respondent's position that
had Haynes not been fired on July 20, he would have been part of
an economic lay off on July 30, 1988, and thus should not be reinstat~d, as it would put him in a better position then he would
have been in had he not been discharged.
In this connection,
Jack Duane Hovatter, Respondent's superintendent and its
secretary/treasurer, who owns the company with his two brothers,
indicated that,. in general, the R.espondent was losing money in
1988. He said.that in the second quarter of 1988 it lost $39,000,
and in the third quarter of 1988 it made a profit of $10. Accord.lngly, in approximately March 1988, the midnight shift was
eliminated, and two employees were laid off. He said that for
about a year he and his brothers talked about eliminating the
afternoon shift. Hovatter said that about July 1, 1988, it was
decided to end that shift by July 30, 1988. He indicated that the
lay off was accelerated to July 20, 1988, when Haynes, a shift
foreman was fired and it was determined to be imp.cactical to hire
another shift foreman for less then 2 weeks until the contemplated
lay off on July 31. Accordingly, on July 20, 1988, the afternoon
shift was eliminated, and four 5nployees were laid off and never
recalled. The remaining five employees of the shift were transferred to the day shift. He indicated that Vernon Stone was
transferred and not laid off because he was a miner operator, and
his transfer allowed Williams, who had been working as a miner

1813

operator on the day shift, to concentrate on his duties as a shift
foreman. He also said that Danny Stone was transferred as he was
a certified electrician, and there was only one electrician on the
day shift and thus he could serve as a backup. Also, he said that
Roger Haskill was transferred because he had experience running a
bolter for 9 or 10 months. He also indicated that Charles Lucas
was transferred because he had experience as a buggy operator,
miner helper, and bolter operator, so he could replace other
.miners operating such equipment if they were absent from work.
Further, he indicated that Gary Gerdridas was transferred as he
was an EMT (Emergency Medical Technician), and inasmuch as the da.Y
section now had· more than seven employees an EMT was required. It
was his testimony, in essence, that Haynes would have been laid
off July 31, and not transferred to the day section as he did not
have any experience to qualify him for a position with the day
shift.
In this connection, he noted that the day shift already
had a foreman, and he was not aware of Haynes' other work experience aside from the fact that he knew that he ran a miner for 1
day. I find Hovatter's testimony credible and conclude had Haynes
not been fired on July 20, 1988, he would have been laid off on
July 31, 1988, along with other members of his shift, and not
reassigned to the day shift.
Based upon a review of the legislative history of the Act, it
appears it was the intent of Congress in providing for temporary
reinstatement where a complaint of discrimination is not frivolously brought, to protect miners from the adverse and chilling
effect of loss of employment while discrimination charges are
being investigated.
(1977 Legislative History at 625, 1330,
1362. ) Inasmuch as Haynes' job was eliminated due to a lay off
hecessitated by business reasons, I agree with Respondent that to
have Haynes reinstated to his former job would put him in a
better position then .he would have been in had he not been fired.
To grant such a benefit would be a windfall to Haynes and would
clearly go beyond Congressional intent. However, I find the
testimony of Haynes credible that he was hired originally as a
miner's helper, and on a daily basis spelled the miner's operator
at lunch time. I also find credible Haynes' testimony elicited
upon cross-examination that from 1970 to 1975 he operated a roof
bolter, shuttle car, and miner operator at a~other mine. Thus, I
find that section 105Cc>C2), supra, and section 2700.44, supra,
will be effectuated by requiring Respondent to r-einstF.l.te Haynes
immediately, once it has a position avail3.ble as shift foreman,
roof bolter, miner operator, or shuttle car operator.

1814

ORDER
It is hereby ORDERED that Respondent reinstate Applicant,
immediately upon the availability of a position as either shift
foreman, roof bolter, miner operator, or shu.t_tle car operator.
It is further ORDERED that the. reinstatement shall remain in
effect pending a final order by the Commission upon Applicant's
Complaint of Discrimination.

Avram Weisberger
Administrative Law Judge
Distribution:
Mary K. Spencer, Esq., Office of the Solicitor, u. s. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
David Morrison, Esq., Steptoe & Johnson, P. 0 •. Box 2190,
Clarksburg, VVV 26302 (Certified Mail)
dcp

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