SEPTEMBER 1989
COMMISSION DECISIONS
09-20-89
09-25-89
09-27-89
09-29-89

Local Union 1261, UMWA v. Consolidation Coal Co.
FHC Wyoming Corporation
Flaget Fuels, Incorporated
Robert Simpson v. Kenta Energy & Roy
Dan Jackson

WEST 86-199-C
WEST 86-43-RM
KENT 89-115
KENT 83-155-D

Pg.
Pg.
Pg.
Pg.

1609
1622
1635
1638

WEST 87-86-C
SE
89-82
SE
89-91
CENT 89-16-M
VA
89-30-C
KENT 88-121-M
PENN 89-111
WEVA 88-56-R
WEVA 88-187
WEVA 89-224-D

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

1641
1670
1673
1675
1680
1682
1690
1697
1705
1740

KENT 89-99-D

Pg. 1741

LAKE 89-62-DM

Pg. 1746

ADMINISTRATIVE LAW JUDGE DECISIONS
09-01-89
09-05-89
09-05-89
09-06-89
09-06-89
09-07-89
09-07-89
09-07-89
09-07-89
09-07-89
09-11-89
09-11-89
09-12-89
09-13-89
09-13-89
09-13-89
09-14-89
09-20-89
09-20-89
09-21-89
09-21-89
09-21-89
09-21-89
09-25-89
09-25-89
09-25-89
09-26-89
09-26-89
09-27-89
09-28-89
09-28-89
09-29-89
09-29-89
09-29-89
09-29-89

Local 1769, UMWA v. Utah Power & Light Co.
Jim Walter Resources, Inc.
Drummond Company, Inc.
International Salt Company
Mike Stevens, et al. v. Chaparal Coal Co.
M.A. Walker Company, Inc.
Consol Pennsylvania Coal Company
Southern Ohio Coal Company
Southern Ohio Coal Company
Sec. Labor on behalf of Randy Varney v.
Rose Energy, Inc., Rex Fought, Robert Curtis
Sec. Labor on behalf of Russell Ratliff &
Kenneth Mullins v. Inferno Coals, Inc.
Sec. Labor on behalf of Eugene McCario v.
Three Star Drilling & Production Corp.
Jim Walter Resources, Inc.
Gary Thompson v. Island Creek Coal Co.
Vinnell Mining & Minerals Corporation
Bull Run Mining, Inc.
Southern Ohio Coal Company
George Jackson, Jr. v. Nally & Hamilton Enter.
Mid-Continent Resources, Inc.
Linda Lester v. Garden Creek Pocahontas·Co.
A.H. Smith Stone Company
Ideal Cement Company
Southern Ohio Coal Company
Donald D. Dawson v. J.T. Dyer Quarry
Cyprus Empire Corporation
Laurel Run Mining Company
Louisa Sand & Gravel Company
Consolidation Coal Company
Sec. Labor on behalf of Kevin Bureau v.
Callahan Mining Corp.
Lyon Washed Sand & Gravel
Southern Ohio Coal Company
Flaget Fuels Incorporated
Jim Walter Resources, Inc.
A.H. Smith Stone Company
Dennis R. Hildebrandt v. Hecla Mining Co.

SE
89-12
Pg. 1747
KENT 88-162-D Pg. 1751
WEST 89-22-M
Pg. 1754
WEVA 89-70
Pg. 1756
WEVA 89-81
Pg. 1758
KENT 89-75-D
Pg. 1759
WEST 89-45-R
Pg. 1760
VA
88-59-D
Pg. 1763
VA
88-44-M
Pg. 1769
WEST 88-202-M Pg. 1776
WEVA 89-87
Pg. 1789
PENN 89-198-DM Pg. 1794
WEST 88-247-R Pg. 1795
WEVA 89-57
Pg. 1815
KENT 88-206
Pg. 1820
WEVA 89-96
Pg. 1826
LAKE 89-70-DM Pg. 1831
LAKE 89-28-M
Pg. 1833
WEVA 88-349-R Pg. 1837
KENT 89-115
Pg. 1843
SE
89-70
Pg. 1844
VA
89-28-M
Pg. 1850
WEST 88-258-DM Pg. 1854

ADMINISTRATIVE LAW JUDGE ORDERS
09-01-89
09-12-89
09-20-89

Southern Ohio Coal Company
Eastern Associated Coal Corporation
Jim Walter Resources, Inc.

WEVA 88-235
WEVA 89-192
SE
89-16-R

Pg. 1863
Pg. 1868
Pg. 1871

SEPTEMBER 1989
Review was granted in the following case during the month of September:
Secretary of Labor, MSHA v. Flaget Fuels, Inc., Docket No. KENT 89-115.
(Judge Merlin, Order of Default, August 31, 1989.)
Review was denied in the following cases during the month of September:
Secretary of Labor, MSHA v. Dillingham Construction, International,
Docket Nos. SE 88-59-M, SE 89-23-M. (Judge Koutras, July 31, 1989.)
Secretary of Labor on behalf of Jack Winninghoff v. Black Pine Mining Co.,
Docket No. WEST 89-79-D. (Petition for Interlocutory Review of Judge
Cetti's August 9, 1989 Order.)
Arnold Sharp v. Big Elk Creek Coal Company, Docket No. KENT 89-70-D.
(Judge Koutras, August 22, 1989.)

COMMISSION DECISIONS

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

September 20, 1989
LOCAL UNION 1261, DISTRICT 22
UNITED MINE WORKERS OF
AMERICA (UMWA)
Docket No. WEST 86-199-C

v.
CONSOLIDATION COAL COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Conunissioners
DECISION

BY: Ford Chairman; Doyle and Nelson, Connnissioners
In this proceeding ar1s1ng under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act" or "Act"),
the primary issue is whether miners normally scheduled to work on a
particular day are entitled to compensation under the first and second
sentences of section 111 of the Mine Act, when the operator has
voluntarily closed the mine two shifts earlier for safety reasons. l/

l/

Section 111 states in part:
Entitlement of miners to full compensation
[1] If a coal or other mine or area of such mine
is closed by an order issued under section [103]
... , section [104] ... , or section [107] of this
[Act], all miners working during the shift when such
order was issued who are idled by such order shall
be entitled, regardless of the result of any review
of such order, to full compensation by the operator
at their regular rate of pay for the period they are
idled, but for not more than the balance of such
shift. [2] If such order is not terminated prior
to the next working shift, all miners on that shift
who are idled by such order shall be entitled to
full compensation by the operator at their regular
rates of pay for the period they are idled, but for

1609

The United.Mine Workers of America ("UMWA") seeks compensation from
Consolidation Coal Co. ("Consol") for 62 miners that the UMWA alleges
were idled by a withdrawal order issued pursuant to section 103(k) of
the Act. ~/ Commission Administrative Law Judge John Morris held that
the miners were entitled to compensation and granted the UMWA's
complaint. 9 FMSHRC 1799 (October 1987)(ALJ). The judge reasoned that,
although the miners were voluntarily withdrawn by Consol prior to
issuance of the section 103(k) control order, the order officially
closed the mine and idled the miners for compensation purposes.
9 FMSHRC at 1802. For the reasons explained below, we conclude that the
claimants are not entitled to compensation under the first and second
sentences of section 111 since none of the claimants were "working
not more than four hours of such shift. [3] If a
coal or other mine or area of such mine is closed by
an order issued under section [104] .•. or section
[107] of this [Act] for a failure of the operator to
comply with any mandatory health or safety
standards, all miners who are idled due to such
order shall be fully compensated after all
interested parties are given an opportunity for a
public hearing, which shall be expedited in such
cases, and after such order is final, by the
operator for lost time at their regular rates of pay
for such time as the miners are idled by such
closing, or for one week, whichever is the lesser.
[4] Whenever an operator violates or fails or
refuses to comply with any order issued under
section [103] ... , section [104[ •.. ,or section
[107] of this [Act], all miners employed at the
affected mine who would have been withdrawn from, or
prevented from entering, such mine or area thereof
as a result of such order shall be entitled to full
compensation by the operator at their regular rates
of pay, in addition to pay received for work
performed after such order was issued, for the
period beginning when such order was issued and
ending when such order is complied with, vacated, or
terminated ....
30 U.S.C. § 821 (sentence numbers added).
~/

Section 103(k), which grants the Secretary flexible authority to
issue such orders as are necessary to insure the safety of any person in
a mine in the event of an accident, states in part:
In the event of any accident occurring in a coal
or other mine, an authorized representative of the
Secretary, when present, may issue such orders as he
deems appropriate to insure the safety of any person
in the coal or other mine ...•
30 U.S.C. § 813(k). An order issued pursuant to section 103(k) is
commonly referred to as a "control order."

1610

during the shift when [the] order was issued" or were on "the next
working shift". Therefore, we reverse the judge's decision.
I.

The facts were stipulated by the parties. Briefly, Consol's Emery
Mine operates three eight hour shifts per day: the daylight shift, the
afternoon shift, and the graveyard shift. On April 16, 1986, during the
afternoon shift, Consol voluntarily removed its afternoon shift
employees from the mine because of rising gas levels. Consol informed
the miners that the mine would be closed until further notice because of
the gas levels. Immediately thereafter, Consol notified the UMWA and
officials of the Secretary of Labor's Mine Safety and Health
Administration ("MSHA") of its action. Consol also called miners
scheduled to work the graveyard and daylight shifts and advised them
that the mine would be closed until further notice. Consol paid the
afternoon shift miners for the 4-1/2 hours that they had worked on April
16 before being withdrawn. Consol did not pay any of the miners
scheduled to work on April 17 who had been notified not to report.
On the morning of April 17, MSHA personnel arrived at the mine to
investigate the conditions that had caused Consol to remove its miners.
Based on the analysis of the air samples taken by Consol, an MSHA
inspector issued a section 103(k) control order at 7:14 a.m. The order,
which did not allege that Consol had violated any mandatory safety
standards, stated in part:
Based on the results of air samples taken by the
Company ..• this mine has experienced a possible
fire, therefore, all persons has [sic] been removed
from the mine by Company order to insure their
safety and no person shall enter inby the mine
portal without modification of this order, after
consultation with appropriate persons selected from
Company officials, State officials, the miners
representative and other persons.
After the withdrawal order was issued, no miners could enter the
mine nor could mining activities resume until MSHA modified or
terminated the order. On April 20, 1986, MSHA modified the order to
allow mining to resume, and on May 16, 1986, MSHA terminated the order.
9 FMSHRC at 1800-01.
Because Consol did not pay any miners for April 17, the UMWA filed
its compensation complaint. The complaint, as amended, requested eight
hours of pay, pursuant to the first sentence of section 111 of the Act,
for each of 36 miners scheduled to work the day shift on April 17 and
four hours of pay, pursuant to the second sentence of section 111, for
each of 26 miners scheduled to work the afternoon shift on April 17.
Before the judge, Consol argued that the UMWA's complaint should
fail because it did not meet the requirements of section 111. Consol
noted that section 111 specifically provides that, if a section 103(k)
withdrawal order has been issued, those entitled to compensation are

1611

"
all miners working during the shift when such order was issued who
are idled by such order ... "and, in the event the order is not
terminated prior to" ... the next working shift, all miners on that
shift who are idled by such order
" The judge rejected Consol's
argument and focused instead upon his conclusion that the complainants
were "officially idled" by the withdrawal order. The judge stated that
he was persuaded by decisions of our predecessor, the Interior Board of
Mine Operations Appeals ("Board"), and two Commission judges holding in
sum "that an MSHA withdrawal order is more extensive in scope than a
voluntary withdrawal by the operator" and "regardless of the sequence of
events or the method by which the miners were originally withdrawn" the
withdrawal order may be the basis for compensation. 9 FMSHRC at
1802. 11 Therefore, the judge awarded compensation to the complainants.
Both Consol and the UMWA filed petitions for discretionary review,
both of which the Commission granted. Consol seeks review of the
judge's conclusion that the complainants are entitled to compensation.
The UMWA seeks review of the judge's failure to assess prejudgment
interest on the compensation he awarded.
II.

The question of the claimants' entitlement to compensation centers
around the meaning of the phrases "working during the shift when such
order was issued" in the first sentence of section 111 of the Act and
the phrase "the next working shift" in the second sentence. The
importance of the phrases as prerequisites to section 111 first and
second sentence compensation is apparent when they_are viewed in the
context of the Mine Act's overall scheme of compensation. Section 111
is remedial in nature and was intended by Congress to reduce the
economic impact on miners idled by withdrawal orders. 4/ Miners idled
as the result of specified withdrawal orders are entitled to compensation that varies in amount according to the type of withdrawal order
issued and the conduct of the operator giving rise to the order. The
first and second sentences of section 111 provide that, when an order is
issued under sections 103, 104, or 107, miners working during that shift
are entitled to full compensation for the balance of the shift during
}/
The judge cited UMWA, Dist. 31 v. Clinchfield Coal Co., 1 IBMA 33
(1971); UMWA, Loe. 1993 v. Consolidation Coal Co., 1 MSHC 1668
(1978)(ALJ Broderick); and UMWA, Loe. 2244 v. Consolidation Coal Co., 1
MHSC 1674 (1978)(ALJ Fauver) in which complainants were awarded
compensation despite the fact that they were voluntarily withdrawn by
the operator prior to the issuance of the withdrawal order upon which
compensation was based.
!:_/
The word "idled" generally has been recognized in the statutory
compensation context to include both a physical removal from the
proscribed mine or area, and a prohibition from entering the proscribed
mine or area. See UMWA, Dist. No. 31 v. Clinchfield Coal Co., 1 IBMA
33, 41 (1971); Roscoe Page v. Valley Camp Coal Co., 6 IBMA 1, 6-7
(1976); Loe. Un. 1670, Dist. 12, UMWA v. Peabody Coal Co., 1 FMSHRC
1785, 1790 (November 1979).

1612

which the ord.er is issued and, where an order has not been terminated
prior to the next working shift, miners on that shift are entitled to up
to four hours compensation. First and second sentence compensation is
commonly referred to as "shift compensation" and entitlement to shift
compensation exists even where there is no culpability on the part of
the operator for the conditions leading to the issuance of the order.
The third sentence of section 111 provides that, if an order is issued
under sections 104 or 107 "for the failure of the operator to comply
with any mandatory standard," miners are entitled to compensation for
the actual time that they are idled for up to one week. Finally, the
fourth sentence of section 111 provides that, if an operator fails to
comply with a withdrawal order issued under sections 103, 104, or 107,
miners who otherwise would have been withdrawn are entitled to full
compensation at their regular rates of pay, in addition to pay received
for work performed after issuance of the order, until such time as the
order is complied with, vacated, or terminated. This graduated scheme
of increasing compensation commensurate with increasingly serious
operator conduct reflects the limited nature of compensation and
represents a careful and deliberate balancing by Congress of the
competing interests of miners and mine operators. See Rushton Mining
Co. v. Morton, 520 F.2d 716, 721-722 (3rd Cir. 1975).
The facts of this case are not in dispute. We are called upon to
decide whether, based on those facts, the claimants are entitled to
shift compensation under the first two sentences of section 111. It is
a fundamental rule of statutory construction that "the primary
dispositive source of information is the wording of the statute itself."
Association of Bituminous Contractors v. Andrus, 581 F.2d 853, 861 (D.C,
Cir. 1978). If the meaning of that language is plain, the statute is to
be enforced according to its terms unless it can be established that
Congress clearly intended the words to have a different meaning. See,
~·· Caminetti v. United States, 242 U.S. 470, 485 (1916); Chevron,
U.S.A. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837, 842-43
(1984); Matala v. Consolidation Coal Co., 647 F.2d 427, 429-30 (4th Cir.
1981). See also Western Fuels-Utah, Inc., 11 FMSHRC 278 (March 1989),
appeal docketed, No. 89-1258 (D.C. Cir. April 20, 1989).
The meaning.of the first two sentences of section 111 is clear.
If a specified withdrawal order has been issued, "all miners working
during the shift when such order was issued who are idled by such order"
are entitled to compensation for the remainder of their shift.
(Emphasis added). If the order is not terminated prior to "the next
working shift, all miners on that shift who are idled by such order" are
entitled to compensation for up to four hours. (Emphasis added.) The
language is in nowise qualified. Thus, to be entitled to shift
compensation, a miner must either be working during the shift when the
specified order was issued and have been idled by the order or, if the
order is not terminated prior to the next working shift, must be on the
next working shift.
Here, the preconditions for entitlement to shift compensation were
not met. At the time the order was issued, no miners were working nor
had they been since the previous evening at which time Consol had
voluntarily withdrawn all miners in order to guarantee their safety.

1613

Therefore, none of those for whom compensation is claimed were "working
during the shift when ..• [the] order was issued." Further, Consol
advised miners on the other two shifts that 11 the mine is idie until
further notice. 11 9 FMSHRC at 1800. Therefore, none of those for whom
compensation is claimed were on "the next working shift." (Emphasis
added.) 21 We therefore hold that the claimants, not having met these
plainly stated prerequisites, were not eligible to be compensated.
Apart from the plain wording of the statute, there are also
practical considerations. A statute should not be construed in a way
that is foreign to common sense or its legislative purpose. Sutherland
Statutory Construction §§ 45.09, 45.12 (4th ed. 1985). As discussed,
the Mine Act involves a balancing of the interests of mine operators and
miners, with safety being the preeminent concern. Section 2 of the Mine
Act specifies at the outset that 11 the first priority and concern of all
in the coal or other mining industry must be the health and safety of
its most precious resource -- the miner," and section 2(e) adds that
11
the operators of such mines with the assistance of the miners have the
primary responsibility to prevent the existence of [unsafe and
unhealthful] conditions and practices in such mines." The Mine Act was
not intended to remove from an operator the right to withdraw miners
from a mine for safety reasons. While MSHA has the authority to order
such withdrawal, it does not have that power exclusively.
Here, the record shows immediate action on the part of a mine
operator to remove all afternoon shift employees from the mine because
of rising gas levels -- clearly a threat to the health and safety of the
miners. The wisdom of this action was attested by the action of MSHA
inspectors who, after being summoned by the operator, issued a control
order on the following morning, officially closing the mine and thereby
confirming the evacuation order issued during the previous evening by
the mine operator. Thus, apart from the fact that no miners were
present in the mine when the MSHA closure order was issued, it is
apparent that the safety first edict of section 2 was observed
conscientiously by the mine operator here and that it would be a
departure from the clear intent and purpose of the Mine Act to penalize
the operator for voluntarily idling miners for their own protection. To
impose such liability could conceivably encourage less conscientious
operators in similar circumstances to continue production, at risk to
the miners, until the MSHA inspectors arrived to issue a control order
idling the miners. We do not believe that the Mine Act was intended to
stifle such safety conscious actions by operators, as Consol took
here. §_/

21

It should be noted that the compensation claimed by the UMWA is
not for the remainder of the afternoon shift of April 16 (those actually
withdrawn and sent home by Consol) and those on the next shift due at
the mine (the graveyard shift) but rather for the day shift of April 17
(during which time the inspector arrived and issued the order) and for
the first four hours of the afternoon shift on that day.

§_/
We also note that this case does not involve an attempt to avoid
section 111 liability by withdrawing miners in anticipation of

1614

The purpose and scope of shift compensation can also be determined
by another important concern expressed by Congress in adopting section
111 in its specific terms: insulating the mine inspector from any
repercussions that might arise from his withdrawing miners and
temporarily depriving them of their livelihood. A key passage from the
Report of the Senate Committee setting forth the rationale for the
miners' compensation provision concludes by stating, "[t]his provision
will also remove any possible inhibition of the inspector in the
issuance of closure orders." Leg. Hist. at 635. This convinces us that
Congress intended. shift compensation rights to arise only when the
physical removal of miners is effectuated by the inspector himself so
that the inspector in carrying out his enforcement duties is not
inhibited or distracted by workplace considerations wholly extraneous to
the protection of miners. Here, however, the operator unilaterally and
voluntarily withdrew its own miners and notified all shifts that the
mine would be closed until further notice. Obviously, under such
circumstances, no inhibitions would have attached to the inspector's
enforcement actions taken twelve hours later when the mine was empty.
The need to insulate the inspector from any purported miner animus had
by then evaporated.
III.

The Commission has previously focused on the meaning of the term
idled 11 and has adopted the Board's interpretation (see n.4 supra) for
Mine Act compensation purposes. It has held that a miner who has been
previously withdrawn from a mine can still be 11 idled 11 by a subsequently
issued withdrawal order in the sense that the miner is barred by the
order from returning to work and that miners so idled may be entitled to
compensation.
11

We do not disavow the Commission's earlier interpretation of
"idled" and simply hold today that to be entitled to first and second
sentence compensation, miners, in addition to being idled by an order of
withdrawal, must also be working during the shift when the subject order
was issued or, if the order is not terminated prior to the next working
shift, be on that shift. Thus, in view of our disposition of this case
by resort to the plain meaning of the first two sentences of section
111, the claimants' and the judge's reliance upon UMWA, Dist. 31 v.
Clinchfield Coal Co., 1 IBMA 33 (1971) and two unreviewed administrative
law judge decisions (fn. 3, supra) is misplaced. The decisional
rationale in those cases centered on the fact that the withdrawal orders
at issue "officially idled" the miners but did not take into
consideration the meaning and effect of the phrases "working during the
shift when such order was issued" and "on [the next working] shift, 11
Indeed, in Clinchfield, first and second sentence shift compensation was
not even at issue. (The miners had already been paid shift compensation
by the operator. 1 IBMA at 36). Rather, the miners were actually
seeking the equivalent of third sentence compensation (up to one week's
withdrawal action by MSHA. Compare UMWA, Loe. 1993 v. Consolidation
Coal Co., 1 MSHC 1668 (October 1979)(ALJ). On the contrary, immediately
after taking the prudent action of withdrawing the miners, Consol
notified MSHA of the conditions it was experiencing at the mine.

1615

pay) by attempting to establish that the subject withdrawal order was
based upon a violation caused by the operator's unwarrantable failure to
comply with the standards. 7/ As discussed above, third sentence
compensation does not invol;e "working" or "working shift" prerequisites. Likewise, the Commission's decisions in Loe. U. 1889, Dist.
17 v. Westmoreland Coal Co., 8 FMSHRC 1317, 1327 (September 1986); Loe.
U. 2274, Dist. 17, UMWA v. Clinchfield Coal Co., 8 FMSHRC 1310, 1313
(September 1986); Loe. U. 1609, Dist. 2, UMWA v. Greenwich Collieries,
8 FMSHRC 1302, 1306-07 (September 1986) are all markedly distinguishable
because they involved claims for compensation under the third sentence
of section 111.
For similar reasons, we find little guidance in the Commission's
decision in Peabody Coal Co., 1 FMSHRC 1785 (November 1979), a case
arising under the 1969 Coal Act. In that case, the Commission concluded
that shift compensation was properly awarded where, as the result of
being withdrawn due to a previously issued non-compensable order, no
miners were working when the compensable withdrawal order was issued.
The Commission "disagreed" with Peabody's contention that since no
miners were actually working when the second order was issued no
compensation was due because it found that the miners were idled within
the meaning of the compensation provision at the time the order was
issued. 1 FMSHRC at 1790. Factually, the Peabody case was very
different. Miners were, in fact, working at the time the initial noncompensable withdrawal order was issued. The MSHA inspector was present
when the hazardous condition was detected and he initiated the
withdrawal action. Further, the Commission, like the Board, did not
address the language "working during the shift" nor did i t set forth its
reasons for not giving that statutory phrase its plain meaning. The
Commission appears to have based its decision solely upon the fact that
the miners were idled by issuance of the second order.
In contrast, our decision addresses the existence of the phases
"working during the shift when such order was issued" and "the next
working shift" and ascribes them their intended place in the Act's
compensation scheme. ~/ Recognition of the phrases as prerequisites for
shift compensation eliminates the roulette wheel effect that results
from basing shift compensation solely upon idlement, wherein shift
compensation is awarded to those not actually working and is based upon
the chance timing of the inspection and the order's issuance rather than
upon the claimants' actual deprivation of work. Our decision,
interpreting section 111 as written by Congress, corrects this
capricious result. To hold otherwise in the face of the words of the
first two sentences of section 111 would be to usurp the legislative

ZI

On the ground that evidence of an operator's unwarrantable failure
to comply was inadmissible in a compensation proceeding, the case was
ultimately dismissed. ALJ Decision on Remand, Docket No. HOPE 70-120
(June 4, 1971).
~/

This case does not require us to define all contours of the
meaning of "working during the shift," and we leave such questions for
future cases in which they are actually presented.

1616

function.
Accordingly, the decision of the judge is reversed.

21

~

J~~e~nun~

~~
L. Clair Nelson, Commissioner

21

In view of our reversal of the judge's decision, we need not reach
the issue raised by the UMWA of whether the judge erred in failing to
award the complainants prejudgment interest. We note, however, that
subsequent to the judge's decision the Commission held that interest may
properly be included in a compensation award and that it should include
interest accruing from the date that the compensable pay would normally
have been paid until the date that the compensation is actually
tendered. Loe. U. 2274, Dist. 28, UMWA v. Clinchfield Coal Co.,
10 FMSHRC 1493, 1500-03 (November 1988).

1617

Commissioners Backley and Lastowka, dissenting:
In its decision, the majority denies compensation under section
111 of the Mine Act to miners idled by a withdrawal order issued
pursuant to section 103(k) of the Act on the basis that the mine
operator, Consol, had itself withdrawn the miners from the mine prior to
the MSHA inspector's issuance of the withdrawal order. Because we
believe that Consol's withdrawal of the miners does not negate the
effect of the withdrawal order issued pursuant to section 103(k), we
would affirm the administrative law judge's decision awarding
compensation. Accordingly, we dissent.
The facts in this case were stipulated by the parties. On April
16, 1986, Consol discovered that the level of explosive gas was rising
behind the North seals at its Emery Mine. Out of concern for safety,
Consol withdrew its miners from the Emery Mine at 7:00 p.m. and notified
them that the mine was "idled until further notice because of the rising
gas levels." 9 FMSHRC at 1801. Consol also notified miners scheduled
to work the next two shifts that "the mine is idle until further
notice." Id. Consol further notified MSHA and the UMWA that it had
removed the miners from the mine. It is not disputed that Consol's
decision to withdraw the miners in the face of the hazard was
commendable mining practice intended to eliminate the potential of death
or serious injury in the event the gas ignited.
After conducting an investigation, the MSHA inspector issued a
withdrawal order under section 103(k) closing the mine based on the
samples taken by Consol of the air behind the seals. 1/ The withdrawal
order, issued at 7:14 a.m. on April 17, stated that the "mine has
experienced a possible fire," and referenced the fact that the miners
had been removed from the mine by Consol to insure their safety. 9
FMSHRC at 1801. The withdrawal order further prohibited any person from
entering the mine until the order was modified by MSHA. Id. Thus, the
effect of the order was to deny the miners entry into the mine until
such.time as MSHA believed that the danger had been eliminated.
There is no doubt therefore that the miners were prevented from
working because of hazardous gas levels and that the withdrawal order
was issued by the MSHA inspector to keep miners away from this danger.
The majority nevertheless denies compensation because the mine operator
had removed the miners from the hazard before the MSHA inspector arrived
to issue the withdrawal order officially closing the mine. Our
colleagues base their conclusion on the fact that, due to Consol's
previous withdrawal of its miners, there were no miners "working during

lf

Section 103(k), 30 U.S.C. § 813(k), provides:
In the event of any accident occurring in a coal or
other mine, an authorized representative of the
Secretary, when present, may issue such orders as he
deems appropriate to insure the safety of any person
in the coal or other mine ....

1618

the shift" at the time the withdrawal order was issued, and there was no
"next working shift" after the order was issued because Consol had
already advised the miners to stay home until further notice. This
reasoning, however, is contrary to well-established precedent correctly
relied upon by the judge in awarding compensation.
It has long been recognized that a withdrawal order issued by a
federal mine inspector: (1) officially closes a mine for compensation
purposes notwithstanding a voluntary withdrawal of miners by the
operator; (2) prohibits miners from reentering the mine until such time
as an MSHA inspector determines that the mine is safe; and (3)
officially idles the miners for the purposes of the compensation
provision of the Mine Act. As early as 1971, the Department of
Interior's Board of Mine Operations Appeals ("Board") held that an order
of withdrawal issued by a federal inspector not only removes miners from
a mine, but also empowers the Secretary to prohibit reentry until the
hazardous conditions have been eliminated. UMWA, Dist. 31 v.
Clinchfield Coal Co., 1 IBMA 33 (1971). In Clinchfield, an explosion
had occurred and the operator had immediately withdrawn all personnel
from the mine. Not until the following shift did a federal inspector
arrive to issue a withdrawal order. 1 IBMA at 35. In rejecting the
operator's argument that the miners had not been "idled" by the
inspector's order in light of their previous withdrawal from the mine by
the operator, the Board explained:
... an Order of Withdrawal is more extensive than the
mere withdrawal of miners
it also confers
jurisdiction ... to prohibit reentry until an
authorized representative of the Secretary
determines that' •.. imminent danger no longer
exists' ... or' ... that the violation has been
abated' .... Thus the purpose of a withdrawal order
is not only to remove the miners but also to insure
that they remain withdrawn until the conditions or
dangers have been eliminated. Regardless of the
seguence of events, or the method by which the
miners were originally withdrawn, a mine ... is
officially closed upon the issuance of [a withdrawal
order], and the miners are officially idled by such
order.
1 IBMA at 41 (emphasis added)(citations omitted).
v. Valley Camp Coal Co., 6 IBMA 1 (1976).

Accord, Roscoe Page

This Commission has also previously considered the specific issue
raised in this case and adopted the rationale of the Clinchfield
decision. In Loe. Un. 1670, Dist. 12, UMWA v. Peabody Coal Company, 1
FMSHRC 1785 (November 1979), a mine fire was discovered by the operator
and a federal inspector, who was in the mine at the time, issued a
withdrawal order pursuant to section 103 of the Federal Coal Mine Health
and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977).
Section 110 of the Coal Act did not provide for the compensation of
miners withdrawn pursuant to section 103 of that Act, but it did provide
compensation to miners "working during the shift" or "the next working

1619

shift" when an imminent danger withdrawal order was issued. After
conducting an investigation, the inspector issued such an imminent
danger order. Because of their previous withdrawal pursuant to the
section 103 withdrawal order, no miners were working "during the shift"
when the imminent danger withdrawal order was issued or on "the next
working shift." The miners who had been scheduled to work those shifts
filed for compensation under section 110 of the Coal Act.
The Commission expressly rejected the operator's argument that the
shift compensation provisions of section 110 of the Coal Act limited an
award of compensation to miners who are actually "'working during the
shift' when a withdrawal order is issued." 1 FMSHRC at 1790. The
Commission held that the operator was required to pay compensation under
the first two sentences of section 110 of the Coal Act to the ''miners
normally scheduled to work" during the shift that was idled by the
withdr~wal order despite the fact that these miners had been previously
withdrawn and were not working during the shift when such order was
issued. 1 FMSHRC 1790. The Commission further held that compensation
was also due the miners normally scheduled to work the "next working
shift" even though "the miners were notified several days beforehand not
to report for work." 1 FMSHRC at 1791. Thus, the issue raised by
Consol in the present case was, in fact, squarely addressed by the
Commission in Peabody and the construction of section 111 now adopted by
the majority was expressly rejected. Despite their insistence that
Peabody offers "little guidance" in this case (slip op. at 7), the
holding is squarely applicable and the majority here effectively
overrules Peabody.
In Loe. Un. 1889, Dist. 17, UMWA v. Westmoreland Coal Co., 8
FMSHRC 1317, 1323 (September 1986), the Commission noted that "section
111 is remedial in nature and was not intended by Congress to be
interpreted and applied narrowly." The majority here ignores this
admonition and instead narrowly interprets the phrases "working during
the shift" and."next working shift." Miners who are scheduled to work a
particular shift, but who are prevented from working as a result of a
withdrawal order, are no less idled than miners who are working in a
mine at the time a withdrawal order is issued. In both instances miners
are prevented from working by a withdrawa1 order issued by a federal
inspector as a result of hazardous conditions existing in ~he mine. In
both these circumstances, the provisions of section 111 awarding limited
compensation to idled miners were intended to be triggered. Accord,
Loe. Un. 2274, Dist. 28, UMWA v. Clinchfield Coal, 10 FMSHRC 1493
(November 1988), appeal docketed, No. 88-1873 (D.C. Cir., December 16,
1988); Loe. Un. 1609, Dist. 2, UMWA v. Greenwich Collieries, 8 FMSHRC
1302 (November 1988).
With respect to the issue of prejudgment interest on the award of
compensation, the Commission has held that prejudgment interest may
properly be awarded in compensation cases and we would remand to the
judge for consideration of this issue. Loe. Un. 2274 v. Clinchfield,
supra, 10 FMSHRC at 1500-03.

16 20

In sum, we conclude that the prerequisites for shift compensation
were met in this case because the miners were prevented from working
their shift as a result of the closure of the mine by an order of
withdrawal issued under section 103 of the Mine Act. We would affirm
the administrative law judge's award of compensation and remand for
determination of the interest due.

Distribution
Robert M. Vukas, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Mary Lu Jordan~ Esq.
Michael Dinnerstein, Esq.
Maureen Geraghty, Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge John Morris
Federal Hine Safety & Health Review Connnission
280 Colonnade Center
1244 Speer Blvd.
Denver, Colorado 80204

1621

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

September 25, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEST 86-43-RM
WEST 86-45-RM
WEST 86-110-M

v.

FMC WYOMING CORPORATION

BEFORE:

Ford, Chairman; Backley, Doyle and Lastowka, Conunissioners

DECISION

BY:

Ford, Chairman; Backley, and Lastowka, Conunissioners

At issue in this consolidated contest and civil penalty proceeding
arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seg. (1982)(the "Mine Act"), is whether FMC-Wyoming
Corporation's violation of 30 C.F.R. § 57.5002 was significant and
substantial in nature and caused by its unwarrantable failure to comply
with the mandatory safety standard. ll Also at issue is whether FMC
violated 30 C.F.R. § 57.18002 by failing to designate a "competent
person" to examine a working place at least once each shift for
conditions which may adversely affect safety or health, or by failing to
keep a record of such examinations. ~/ Conunission Administrative Law

ll

30 C.F.R. 57.5002 provides:
Dust, gas, mist, and fume surveys shall be
conducted as frequently as necessary to determine
the adequacy of control measures.

~/

30 C.F.R. § 57.18002 provides in part:
(a) A competent person designated by the operator
shall examine each working place at least once each
shift for conditions which may adversely affect
safety or health. The operator shall promptly
initiate appropriate action to correct such

1622

Judge August F. Cetti answered these questions in the negative.
10 FMSHRC 822 (June 1988)(ALJ). For the reasons explained below, we
vacate that portion of the judge's decision concerning the significant
and substantial nature of the violation of section 57.5002 and remand
the matter to the judge for further consideration. In addition, we
reverse the judge's unwarrantable failure finding and his conclusion
that FMC did not violate section 57.18002.
The material facts are not in controversy. FMC operates a trona
mine located near Green River, Sweetwater County, Wyoming. At an
adjacent plant FMC processes trona into various products. The 11 Sesqui 11
powerhouse, which is part of the processing plant, houses three turbines
that generate electricity for the plant. FMC overhauls the turbines
every five years. The No. 3 turbine was scheduled for overhaul in
November 1985, and on November 4, 1985 a work crew began to dismantle
the turbine. It took three days to remove insulation from the turbine,
and the debris lay scattered about the immediate area and on the floors
of the powerhouse for approximately two weeks while the overhaul was
completed.
To overhaul the turbine, the work crew first removed the turbine
cover. Underneath the cover was blanket-type insulation containing
asbestos. This insulation was removed in pieces and the blankets were
dropped over a handrail near the turbine for temporary storage. Next,
the crew disassembled the halves of the turbine. In order to gain
access to the bolts holding the halves together, the workers removed two
other types of insulation containing asbestos. The first layer of
insulation was mortar-like and was imbedded in chicken wire. It had to
be chipped away and the chicken wire had to be cut. As it was removed,
pieces of the insulation fell down either side of the turbine to the
ground floor of the powerhouse.
Underneath this mortar-like insulation were 11 bricks 11 of additional
insulation held in place by baling wire. The bricks were soft and
"chalky. 11 As the baling wire was cut, the bricks fell to the ground
floor of the powerhouse.
When the mortar-like insulation was being removed by· the workers,
dust was created as the workers used hammers and chisels to break up and
loosen the material. Tr. 168, 214-216, 232, 243-44. Further, when
pieces of the insulation fell to the floor more dust was created. In
addition, when members of the work crew walked through the debris, dust
was stirred up, and when the powerhouse doors were opened for
ventilation purposes, the wind created a literal "dust storm. 11 Tr. 174,
198, 233, 241. 10 FMSHRC at 824-25. Members of the work crew asked
their foreman, John Wilfong, if the insulation they were handling
contained asbestos and whether it was safe to handle. Tr. 80, 220-235,
conditions.
(b) A record that such examinations were
conducted shall be kept by the operator for a period
of one year, and shall be made available for review
by the Secretary or his authorized representative.

1623

245-246. Wilfong responded that "he didn't believe there was," (Tr. 80)
that there was "not enough to worry about," (Tr. 220) and that "there
was no problem, there was no asbestos in it." Tr. 177.
Previously FMC had analyzed the insulation. In July 1985, FMC had
determined that the blanket wrap insulation contained 90 percent
asbestos and the non-blanket wrap insulation contained 35 percent
asbestos. Pet. Exh. M-5, Tr. 278-283. The results of this analysis
were recorded in a memorandum dated July 1, 1985. The memorandum was
authored by FMC's industrial hygienist, Carl Watson, and was circulated
to FMC's supervisors, including Mike Hruska, who supervised the work
crew's foreman, John Wilfong. Pet. Exh. M-5. In an earlier memorandum
dated, June 11, 1985, Watson had reported similar results from analysis
of other samples of the insulation.
FMC did not conduct dust surveys at any time during the overhaul
of the turbine. 10 FMSHRC at 824. Nor was an FMC industrial hygienist
on hand to observe the work and to recommend protective equipment as
required by FMC's policy. J/ On November 18, 1985, FMC's industrial
hygienist, Carl Watson, visited the work area. Watson came to the
powerhouse to check on the work of another crew removing asbestoscontaining insulation from a different area of the powerhouse. When
Watson noticed the blanket insulation draped over the handrail and the
other insulation lying on the floor, he gave his opinion to the crew
foreman that the insulation could contain asbestos and that it should be
properly bagged and protective measures taken.
On November 19, 1985, an inspector of the Secretary of Labor's
Mine Safety and Health Administration ("MSHA") conducted an inspection
of the powerhouse. The inspector observed a clean-up crew at the
turbine wearing protective clothing and masks. In addition, he observed
Watson collecting samples of the insulation. The inspector collected
samples of the bagged material. Subsequent analysis of the inspector's
samples established that the insulation contained asbestos. 10 FMSHRC
at 825.

J/

An FMC memorandum dated May 17, 1985, states the following
regarding degrees of exposure to asbestos and commensurate protective
measures.
(b)
Moderate exposure. Examples would be
grinding asbestos impregnated gaskets off pipe
flanges, removing asbestos containing insulation
from boilers, pipes and turbines, removing or
installing asbestos containing packing glands,
replacing or repairing brakes or brake drums or
lining, and drilling or cutting transite pipe.
Anytime these jobs are being performed, the
Industrial Hygienist should be called to observe the
job and to recommend protective equipment.
Pet. Exh. 4 (emphasis added).

1624

On November 23, 1985, the inspector took two enforcement actions
that are contested here. The inspector issued to FMC a citation
pursuant to section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l), stating
that FMC's failure to make surveys to determine if the workers were
over-exposed to asbestos violated section 57.5002. This citation
included the inspector's findings, made pursuant to section 104(d), that
the violation was of a significant and substantial nature and resulted
from unwarrantable failure by the operator.
In addition, the inspector issued to FMC an order of withdrawal
pursuant to section 104(d)(l) of the Act alleging that FMC violated
section 57.18002. See n.2, supra. The order stated that FMC management
failed to notify the workmen that they would be working with asbestos
and that there was no record of examinations of the work area. Again,
the inspector made associated significant and substantial and
unwarrantable failure findings.
FMC contested the validity of the citation and order, the special
findings associated with the section 104(d)(l) citation, and the civil
penalties proposed by the Secretary for the alleged violations. FMC
argued that it had not violated section 57.5002, that the standard's
requirement to conduct exposure surveys "as frequently as necessary to
determine the adequacy of control measures" should be read in
conjunction with the regulatory exposure limits for contaminants. ~/
FMC asserted that because the Secretary did not establish that the
exposure limit for asbestos dust had been exceeded during the asbestos
removal operation, the Secretary had not established the violation of
section 57.5002.
FMC also argued that to prove a violation of section 57.18002 the
Secretary must establish either that no competent person inspected the
working place or that no record of the examination was made. FMC
asserted that the Secretary had proven neither.
The judge concluded that FMC had violated section 57.5002. The
judge, noting that without dust surveys having been performed while the
work was in progress there was no way to determine whether an employee
in the work area actually was overexposed to contaminants, rejected
FMC's argument that proof of a violation is conditioned on establishing
an exposure to airborne contaminants in excess of the regulatory limits.
10 FMSHRC at 826-27. The judge found that a reasonably prudent person
would have conducted dust surveys to determine what control measures
would be adequate to prevent the possible overexposure of the workers to
asbestos during the three days the maintenance crew removed the
insulation from the turbine. 10 FMSHRC at 826. The judge further
found, without explanation, that the violation was not of a significant
and substantial nature.
Regarding the inspector's unwarrantable failure finding, the judge
concluded that because FMC had a policy at the time the citations were
issued regarding asbestos identification and cleanup and because workers
~/

See 30 C.F.R. § 57.5001.

1625

in another part of the plant had taken protective measures while
removing asbestos-containing insulation, FMC was not indifferent to the
hazards of airborne asbestos and its failure to comply with section
57.5002 was due to ordinary negligence. 10 FMSHRC at 828. The judge
therefore modified the section 104(d)(l) citation to a citation issued
pursuant to section 104(a) of the Act, 39 U.S.C. § 814(a), and assessed
a civil panalty of $600 for the violation.
Finally, the judge found that FMC had not violated section
57.18002 because the Secretary failed to prove that there was no
examination of the working place by a competent person or that no
records of the examinations were made. 10 FMSHRC at 830. The judge
therefore vacated the section 104(d)(l) withdrawal order in which the
violation was alleged.
On review, the Secretary argues that the judge erred in three
respects: (1) in concluding that FMC's violation of section 57.5002 was
not of a significant and substantial nature; (2) in concluding that the
violation was not due to FMC's unwarrantable failure to comply with the
standard; and (3) in concluding that FMC did not violate section
57.18002. We consider each of these challenges in turn.

I.
A violation is properly designated as being of a significant and
substantial nature if, based on 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, 3 FMSHRC 822, 825
(April 1981); Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984). In
Consolidation Coal Co., 8 FMSHRC 890, 897-98 (June 1982), aff'd, 824
F.2d 1071 (D.C. Cir. 1987), the Commission explained that adapting the
National Gypsum/Mathies test to a violation of a mandatory health
standard results in the following formulation of the elements necessary
to support a significant and substantial finding:
(1)
The underlying violation of a mandatory
health standard; (2) a discrete health hazard -- a
measure of danger to health contributed to by the
violation; (3) a reasonable likelihood that the
health hazard contributed to will result in an
illness; and (4) a reasonable likelihood that the
illness in question will be of a reasonably serious
nature.
The administrative law judge cited the general applicability of
this test, but provided no justification for his conclusion that the
violation was not of a significant and substantial nature. Compare FMC
Wyoming Corp., 8 FMSHRC 264, 275-276 (February 1986)(ALJ Lasher)
(applying all elements of significant and substantial test to mandatory
health standard involving asbestos exposure).
Commission Procedural Rule 65, 29 C.F.R. § 2700.65, requires that
a judge's decision include findings of fact, conclusions of law, and

1626

supporting reasons. ~/ Compliance with these requirements is essential
to the fulfillment of our statutorily mandated review function. Without
some explanation and justification for conclusions reached by a judge,
we cannot effectively perform our function. See Youghiogheny & Ohio
Coal Co., 7 FMSHRC 1335 (September 1985); The Anaconda Co., 3 FMSHRC 299
(February 1981). In view of the total lack of explanation in support of
the judge's conclusion that the violation of 30 C.F.R. § 57.5002 was not
significant and substantial, we vacate the judge's decision with regard
to his significant and substantial finding and remand the matter for the
entry of a decision that accords with Commission Procedural Rule 65. In
so doing, we express no opinion regarding the merits of the significant
and substantial issue.
II.

"Unwarrantable failure" means "aggravated conduct constituting
more than ordinary negligence by a mine operator in relation to a
violation of the Act. 11
Emery Mining Corp., 9 FMSHRC 1997, 2004
(December 1987); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2015
(December 1987). In concluding that FMC did not unwarrantably fail to
comply with section 57.5002, the judge found that FMC was not
indifferent to the health hazards associated with airborne asbestos in
that it had in place at the time of issuance of the citation a policy
regarding asbestos identification and cleanup and that in another part
of the powerplant a different work crew removing asbestos-containing
insulation had protective clothing and equipment. 10 FMSHRC at 828.
These facts are overwhelmed by other evidence of record
establishing FMC's aggravated conduct regarding its failure to provide
dust surveys during the overhaul of the turbine. FMC's written asbestos
policy expressly identified the asbestos-containing nature of all three
types of insulation in the turbine being overhauled, as well as the need
to take steps to prevent workers' exposure to asbestos. Pet. Exhs. 4,
5, 6. FMC's policy specifically called for the presence of an
industrial hygienist and protective equipment when asbestos-containing
insulation was removed from a turbine. Pet. Exh. 4. During the removal
of the insulation, however, a hygienist was not present and the workers
were afforded no protection. Watson, FMC's industrial hygienist,
apparently did not become aware that insulation was being removed from
the turbine until he inadvertently observed the work on Nuvember 18, 14
days after the crew had begun dismantling the turbine.
Further, the maintenance supervisor, Mike Hruska, stated that he
~/

Procedural Rule 65 states in part:
(a) Form and content of the Judge's decision.
The judge shall make a decision that constitutes his
final disposition of the proceedings. The decision
shall be in writing and shall include findings of
fact, conclusions of law, and the reasons or bases
for them, on all the material issues of fact, law or
discretion presented by the record ....

1627

had been told by the FMC maintenance superintendent to suspect that all
insulation at the plant contained asbestos. Tr. 317; see also Pet. Exh.
M-7 ("when in doubt, assume a material to be, or contain asbestos").
Yet, Hruska ordered no surveys to be taken in the work area. In
addition, and importantly, despite the recognition by FMC of the
potential asbestos hazard associated with the removal of the insulation
from the turbine, the supervisor of the work crew, Wilfong, when asked
by a member of the crew if there was asbestos in the insulation, without
any apparent further inquiry into the legitimate and serious concerns
raised by the work crew, erroneously responded that asbestos was not
present. Tr. 220, 235, 246.
In light of the egregious nature of this evidence, we find no
substantial support for the judge's contrary conclusion that the
violation was not the result of FMC's unwarrantable failure to comply.
In fact, that FMC had a policy in place regarding asbestos identification and cleanup and that another crew in a different part of the
plant was protected while engaging in similar work, in our view
heightens, rather than excuses, FMC's lack of care with respect to this
violation. We therefore conclude that FMC exhibited aggravated conduct
exceeding more than ordinary negligence regarding the violation and the
judge's finding of no unwarrantable failure is accordingly reversed.
III.

Finally, the Secretary asserts that the judge erred in concluding
that she did not prove that FMC had violated section 57.18002. The
pertinent requirements of 30 C.F.R. § 57.18002 are three-fold:
(1) daily workplace examinations are mandated for the purpose of
identifying workplace safety or health hazards; (2) the examinations
must be made by a competent person; and (3) a record of the examinations
must be kept by the operator. The judge concluded that the Secretary
failed to prove that there was no examination of the working place by a
competent person or that no records of the examinations were made. The
judge noted that FMC had introduced into evidence an MSHA program
directive clarifying the record keeping requirements of the standard and
requiring that the record of examinations include: (a) the date and
shift; (b) the person(s) conducting the examination; and (c) the working
place examined. The directive states that "citations of violations of
this standard are to be issued only where there has been a failure to
conduct an examination of a work place or a failure to record that an
examination was done." 10 FMSHRC at 830. The judge further noted that
FMC also introduced into evidence a log of the examinations of the
powerhouse for safety or health hazards during the period of the
turbine's overhaul and that the log complied with the directive by
showing the date and shift on which the examinations were conducted and
the names of the persons conducting the examinations and the work places
examined. Id.
The Secretary contends, however, that by focusing on the directive
and the record of the examinations, the judge ignored the question of
whether the person conducting the examination was competent, and we
agree. According to the Secretary, the program directive concerns the
requirements for the recording of the examinations required by section

1628

57.18002; it does not concern the competence of the person designated to
conduct the examinations. We agree.
30 C.F.R. § 57.2 defines "competent person" as "a person having
the abilities and experience that fully qualify him to perform the duty
to which he is assigned." As with many safety and health standards,
sections 57.18002(a) and 57.2 are drafted in general terms in order to
be broadly adaptable to the varying circumstances of a mine. Kerr-McGee
Corp., 3 FMSHRC 2496,97 (November 1981). We conclude that the term
"competent person" within the meaning of sections 57.18002(a) and 57.2
must contemplate a person capable of recognizing hazards that are known
by the operator to be present in a work area or the presence of which is
predictable in the view of a reasonably prudent person familiar with the
mining industry. See~· Ozark-Mahoning Co., 8 FMSHRC 190, 191
(February 1986); U.S. Steel Corp., 6 FMSHRC 1908, 1910 (August 1984);
Compare, 29 C.F.R. § 1926.32(f). The question is whether FMC designated
such a person to examine the turbine workplace. We find the evidence
overwhelming in the record that it did not.
The hazard posed by the turbine's asbestos-containing insulation
was well known to FMC. FMC's policy stated as much. Yet, Wilbur
Hastings, the only FMC employee designated as an examiner under this
standard who testified, stated that he had not seen FMC's memorandum
regarding the presence of asbestos in turbine insulation, that he was
unaware of the presence of asbestos-containing material in the turbine,
and that he had no training in asbestos recognition. Tr. 520-23. Thus,
although FMC knew that asbestos was present in the turbine insulation it
nonetheless designated as a shift examiner a person to whom this
knowledge had not been communicated, nor had Hastings been trained to
suspect that asbestos reasonably might be present. Without this
knowledge, Hastings cannot be said to have had the ability and
experience fully qualifying him to examine the work place around the
turbine for conditions which might adversely affect safety and health.
In sum, we conclude that Hastings was not a "competent person"
within the meaning of section 57.18002(a), that substantial evidence
does not support the judge's conclusion that FMC complied with the
regulation, and that FMC, by assigning Hastings to examine the
workplace, violated the regulation.

1629

IV.
Accordingly, we vacate the judge's decision regarding the finding
that the violation of section 57.5002 did not significantly and
substantially contribute to a mine health hazard and we remand the
matter for reconsideration and entry of new findings, conclusions and
the reasons for them. In addition, we reverse the judge's conclusion
that the violation of section 57.5002 was not the result of FMC's
unwarrantable failure to comply and remand for reassessment of the
penalty. Finally, we reverse the judge's conclusion that FMC did not
violate section 57.18002 and we remand to the judge for the assessment
of an appropriate civil penalty. ~/

~~
0

~//~
~

E-J-~

Richard V. Backley, Commissioner

Commissioner

~/

Commissioner L. Clair Nelson did not participate in the
consideration of this matter.

1630

Commissioner Doyle, concurring in part and dissenting in part:
In its decision, the majority vacates the judge's finding that
the violation of section 57.5002 did not significantly and substantially contribute to a mine health hazard and remands the matter
for further analysis by the judge. I concur with that part of the
decision.
I must respectfully dissent, however, from the majority's finding
that FMC unwarrantably failed to comply with section 57.5002 because
I find substantial evidence in the record to support the judge's conclusion to the contrary. In addition, I would affirm the judge's
determination that FMC did not violate section 57.18002.
In addressing whether FMC's conduct amounted to an unwarrantable
failure to comply with section 57.5002's requirement that dust surveys
be conducted as frequently as necessary in order to determine the
adequacy of control measures, the judge took notice of and applied the
Commission's explication of that term in Emery Mining Corp., 9 FMSHRC
1997 (December 1987). The judge correctly concluded that indifference
or aggravated conduct beyond ordinary negligence must be present for a
finding of unwarrantable failure. Emery, supra, 9 FMSHRC at 2003-2004.
The judge, in rejecting a finding that unwarrantable failure
was involved, cited several considerations that led him to conclude
that FMC was not indifferent to the hazard of asbestos at its plant.
Among these considerations were the fact that FMC had shown an
awareness and attention to the hazard and had undertaken a program
for its identification and cleanup. FMC had analyzed various samples to determine where asbestos might exist, including samples of
the insulation on the turbine involved in this case.
The judge
noted that FMC's industrial hygienist had distributed to senior
management a memorandum identifying the plant's asbestos hazards.
The judge also cited the absence of knowledge on the maintenance
foreman's part of an asbestos hazard with respect to the turbine
and the lack of evidence that, had the industrial hygienist been
aware of the work being done on the turbine, the policy would not
have been implemented. 10 FMSHRC at 828. The judge weighed the
evidence presented and articulated his reasons for finding that
FMC's conduct did not reach the level of unwarrantable failure.
The Commission has· previously acknowledged that a judge's findings are not to be lightly overturned and that reversal of those
findings requires a conclusion that there is either no evidence or
dubious evidence to support the challenged findings. Secretary v.
Consolidation Coal Company, 11 FMSHRC 966 at 974, (June 1989).
In my view, the evidence cited above and relied upon by the judge
constitutes "such relevant evidence as a reasonable mind might
accept as adequate to support [the judge's] conclusion" and,
accordingly, I would affirm the judge's finding that FMC did not

1631

unwarrantably fail to comply with the standard, See Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Chaney Creek Coal
Corp. v. FMSHRC, 866 F.2d 1424, 1431 (D.C. Cir. 1989). J:./
The majority also concludes that the judge erred in finding that
FMC did not violate section 57.18002 and its requirement that a competent person examine each working place at least once each shift.
The judge based his determination on an MSHA Program Directive dated
November 20, 1979 (the "Program Directive"), that addresses the
recordkeeping requirements of the standard. The Program Directive
provides that citations were to be issued under the standard only
where there was a failure to conduct an examination or a failure
to record its occurrence. Significantly, the directive provides
that violations of the standard were not to be cited where a
hazard is already covered by another standard, thus avoiding a
situation wherein an operator is cited for the violation of a
safety standard and also cited for violation of section 57.18002,
based on the examiner's failure to identify the violative condition.
The judge found that the Secretary's Program Directive correctly interpreted the standard and that there was no failure either to make
an examination or to record the fact thereof. Thus, he concluded
that there was no violation of section 57.18002. 10 FMSHRC at 830.
Because of that conclusion, the judge did not reach the question of,
and made no findings of fact as to, the competence of any of those
charged by FMC with making the shift examinations in question.
The Secretary's Petition for Discretionary Review did not challenge the judge's determination that the Program Directive represents a correct interpretation of the standard. Neither did it
challenge his conclusion, based on that interpretation, that there
is no violation of section 57.18002 where an inspection is performed and the hazard in issue is addressed by another standard,
as it was in this case by section 57.5002. Absent a challenge by
the Secretary to these conclusions reached by the judge, I believe
that the judge's decision, based on those conclusions, must
stand. 2/

1/
The majority uses FMC's own company policy addressing the handling
of asbestos hazards as a basis for heightening the degree of care FMC
owed, thus suggesting that operators are less accountable if they do
nothing with regard to asbestos than if they attempt to identify its
presence and deal with it. I believe such an approach discourages,
rather than encourages, responsible conduct.
2/
The Commission did not order review of this determination, sua
sponte, pursuant to section 113(d) of the Hine Act, 30 U.S.C. 823"("d)
(1982).

1632

The Secretary's Petition for Discretionary Review argues only
that FMC failed to designate a competent person to examine the work
place. The majority addresses the Secretary's argument and makes
its own factual determination that a competent person was not
assigned. This finding was based, in part, on the fact that Wilbur
Hastings testified that he had no training in asbestos recognition
and it was made despite the testimony of the Secretary's own expert
witness that there is no such training and that, in many instances,
asbestos cannot be identified by visual observation alone. Tr. 1S9,
160, SSS, SS6.
When the dismantling of the turbine was begun, FMC's awareness of asbestos in the plant should have triggered testing by
means of a dust survey pursuant to section S7.S002. It did not,
and FMC was properly cited for violating section S7.S002. The
majority concludes, however, that since "FMC knew that asbestos
was present in the turbine insulation," it should have designated
only examiners who were "trained to suspect that asbestos reasonably might be present .• " (slip op. at 8) (emphasis added). The
majority's conclusion would suggest that operators could, depending
on the type and conditions of their mine, be required to train
pre-shift and on-shift examiners to recognize everything from
quartz dust to radon daughters. The Mine Act and the regulations
issued pursuant to it recognize that some hazards, such as airborne
contaminants, are not susceptible to accurate visual identification.
Rather than rely on examiners to recognize these hazards, specific
technical testings requirements are set forth. I am of the opinion
that the inability of an examiner to visually recognize those types
of hazards does not necessarily make the examiner incompetent within
the meaning of section S7.18002.
For the reasons set forth above, I would affirm the judge's
conclusions that FMC did not unwarrantably fail to comply with
section S7.S002 and that it did not violate section S7.18002.

Jw.-:-~. ti. ~ tz
Commissioner

1633

Distribution
Barry F. Wisor, Esq.
Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Holtkamp, Esq.
Van Cott, Bagley, Cornwall & HcCarthy
Suite 1600
50 South Main Street
Salt Lake City, Utah 84144
Stan Loader, Staff Representative
United Steelworkers of America
District 33
P.O. Box 1315
Rock Springs, Wyoming 82902
Administrative Law Judge August Cetti
Federal Mine Safety & Health Review·Commission
280 Colonnade Center
1244 Speer Blvd.
Denver, Colorado 80204

1634

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

September 27, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 89-115

v.

FLAGET FUELS, INCORPORATED

BEFORE:

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

ORDER
--BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982). On August 31,
1989, Commission Chief Administrative Law Judge Paul Merlin issued an
Order of Default finding Flaget Fuels, Inc. ("Flaget") in default for
failure to answer the Secretary of Labor's Proposal for Assessment of
Civil Penalty and the judge's Order to Show Cause. The judge assessed a
civil penalty of $500, the amount proposed in the Secretary's penalty
proposal. On September 13, 1989, Flaget filed with the Commission a
Motion to Set Aside Default Judgment asserting that on June 19, 1989, it
had paid the Secretary's proposed penalty of $500. For t.he reasons set
forth below, we deem this motion to constitute a timely petition for
discretionary review, which we grant. We vacate the judge's default
order and remand for further proceedings.
In November 1988, an inspector of the Department of Labor's Mine
Safety and Health Administration ("MSHA") issued Flaget ten citations
pursuant to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging
violations of various surface coal mining mandatory safety standards.
In February 1989, MSHA notified Flaget that it proposed civil penalties
of $500 for the alleged violations. In March 1989, in response to this
notification, Flaget filed a "Blue Card" request for a hearing. See 29
C.F.R. §§ 2700.25 & .26. On April 10, 1989, the Secretary filed with
the Commission a Proposed Assessment of Civil Penalty, proposing
assessment of a $500 penalty and certifying that a copy of the proposal
had been mailed to the operator.

1635

Flaget did not file an answer to the Secretary's penalty proposal
within 30 days, as it was required to do in order to maintain its
contest. See 29 C.F.R. § 2700.28. However, on or about June 16, 1989,
Flaget tendered to the Secretary payment in full of the proposed penalty
of $500. On July 5, 1989, the Secretary submitted to the Commission a
Motion for Default Judgment. Although the motion states that Flaget had
tendered to the Secretary payment of the proposed $500 penalty (Motion
at 2), it nonetheless requests entry of a default judgment on the
grounds that no settlement agreement had been entered into by the
parties. On July 21, 1989, the judge issued an Order to Show Cause
directing Flaget to file its answer to the Secretary's penalty proposal
or show cause why it should not be be found in default. No response to
the show cause order was filed with the Commission.
On August 31, 1989, the judge entered an order finding Flaget in
default and ordering it to pay the penalty of $500 immediately. Neither
the judge's show cause order nor his default order acknowledges Flaget's
full payment of the proposed penalty. On September 13, 1989, Flaget
filed with the Commission its Motion to Set Aside Default Judgment,
asserting its June 16, 1989, payment of the penalty at issue.
The judge's jurisdiction in this matter terminated when ~is
default order was issued on August 31, 1989. 29 C.F.R. ) 2700.'.65(c).
Under the Mine Act and the Commission's procedural rules, once a judge's
decision has issued, relief from the decision may be sought by filing
with the Commission a petition for discretionary review within 30 days
of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). Here,
Flaget's September 13 motion seeks vacation of, and relief from, the
judge's default order and we will treat it as a timely-filed petition
for discretionary review. See, ~· L&L Gravel, 11 FMSHRC 803, 803-04
(May 1989).
It appears both from Flaget's present motion and from the
Secretary's default motion that Flaget's payment of the penalty was
tendered to MSHA prior to issuance of the judge's show cause order. 21
Under these circumstances, we vacate the judge's default order directing
Flaget to pay the $500 penalty and remand for appropriate proceedings.
Cf. L&L Gravel, supra.

*/

Under circumstances similar to those presented in this case, MSHA
informed the Commission of an apparent post-"Blue Card" payment of a
proposed penalty and the Commission judge entered a dismissal order.
See Coal Junction Coal Co., 11 FMSHRC 502, 503 (April 1989).

1636

Accordingly, upon consideration of Flaget 1 s motion, we grant its
petition for discretionary review and vacat~ the default order. This
matter is remanded to the judge for further appropriate proceedings.

~n

.<C~dvL
Corrnnissio~ )

·Richard V. Backley,

~- C-.-D-(6. ,. 1-1-~-··._.-c._C_.o_mm..........·~-~- s....ri_o_n~

_J_o_yt___L_e·-·

"(la::,~
L. Clair Nelson, Conunissioner

Distribution

Rick L. Thomas, Esq.
Stephens, Thomas & Hunt
101 East Vine Street
Fifth Floor
Lexington, Kentucky 40507
Anne T. Knauff, Esq.
U.S. Department of Labor
Office of the Solicitor
2002 Richard Jones Rd.
Suite B-201
Nashville, TN 37215
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W.
Suite 600
Washington, D.C. 20006

1637

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

20006

September 29, 1989
ROBERT SIMPSON

v.

Docket No. KENT 83-155-D

KENTA ENERGY, INC.
and
ROY DAN JACKSON

BEFORE:

Backley, Doyle, Lastowka and Nelson, Commissioners

ORDER
BY THE COMMISSION:
This discrimination proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982)(the "Mine
Act" or "Act"). Following remand from the United States Court of Appeals
for the District of Columbia Circuit, the Commission issued its final
decision on May 11, 1989, concluding, in relevant part, that respondents
Kenta Energy, Inc., and Roy Dan Jackson had discriminatorily discharged
and refused to rehire complainant Robert Simpson. 11 FMSHRC 770 (May
1989). No party filed a petition for review of this decision in the
United States courts of appeals. 30 U.S.C. § 816(a)(l). On June 16,
1989, however, counsel for Simpson filed with the Commission a Motion to
Remand, seeking remand to the Commission administrative law judge who
had presided at the hearing in this matter for purposes of determining
additional amounts of back pay and attorney's fees that counsel asserts
are owing to Simpson. No response to this motion has been filed by
respondents. For the following reasons, this proceeding is remanded to
Commission Administrative Law Judge James A. Broderick.
The relevant factual and procedural background of this matter has
been set forth in our prior decisions and need not be repeated in detail
here. Briefly, in his original decision on the merits and in a
supplemental decision with respect to remedy, Judge Broderick concluded
that Simpson had been discriminated against in violation of section
105(c)(l) of the Mine Act, 30 U.S.C. § 815(c)(l), and ordered Simpson
reinstated with back pay, interest, attorney's fees, and litigation
expenses. 6 FMSHRC 1454 (June 1984)(ALJ); 7 FMSHRC 272 (February

1638

1985)(ALJ). Specifically, in his remedial decision, the judge awarded
Simpson $36,557.29 in back pay and interest through December 17, 1984,
and, in addition, back wages at the rate of $425.60 per week with
interest, less interim earnings, from December 17, 1984, until Simpson's
reinstatement. 7 FMSHRC at 278-80, 286. Interest was to be calculated
according to the principles announced in Secretary on behalf of Bailey
v. Arkansas Carbona Co., 5 FMSHRC 2042 (December 1983). 7 FMSHRC at
278. The judge further awarded Simpson $54,462.50 in attorney's fees
and $2,616.72 in litigation expenses. 7 FMSHRC at 280-86.
In his present motion, counsel for Simpson alleges that Simpson
was never offered reinstatement by respondents and "has not yet received
any of the relief due him." Motion at 5. Counsel requests proceedings
before Judge Broderick for purposes of determining (1) the additional
amounts of back pay and interest owed Simpson for the period from
December 17, 1984, to the present, based on the formula in the judge's
remedial decision, and (2) the amount of attorney's fees due for
counsel's representation of Simpson during the review proceedings before
the Commission as well as during the appellate proceedings before the
United States Court of Appeals for the District of Columbia Circuit.
Upon consideration of the motion, we reopen this case for the
limited purpose of disposing of the present motion. This matter is
remanded to Judge Broderick for resolution of whether the attorney's
fees being sought for administrative and court appeal proceedings are
properly awardable under the Mine Act and, if so, for all appropriate
findings of fact relevant to determination of the amount to be awarded.
With respect to back pay and interest, in general, both are normally
deemed due and owing under Commission precedent until time of
reinstatement or the occurrence of an event tolling the reinstatement
obligation. See, ~' Arkansas Carbona, supra, 5 FMSHRC at 1049-55.
Counsel is advised that, given the back pay formula in the judge's
remedial order and the principles announced in Clinchf ield, infra, the
precise amounts of back pay and interest may be determined in any
tribunal of competent jurisdiction and it is not necessary to return to
the Commission for periodic updatings of these amounts if collection
difficulties are encountered. In light of our remand on the attorney's
fees issue, however, we find it appropriate also to determine at this
time the amount of additional back pay due since December 17, 1984, with
the amount of interest due thereon, calculated according to the
procedures set forth at 54 Fed. Reg. 2226 (January 19, 1989). See Loe.
U. 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (November""""'198~
pet. for review filed, No. 88-1873 (D.C. Cir. December 16, 1988).

1639

Accordingly, this proceeding is remanded to the judge. ~/

~~u44-L_

Richard V. Backley, Commissioner

~;;!,~
A:DOYle:

J~

CommiSSiOiler

L. Clair Nelson, Commissioner
Distribution
Tony Oppegard, Esq.
Stephen A. Sanders, Esq.
Appalachian Research & Defense Fund
of Kentucky, Inc.
P.O. B.ox 360
Hazard, Kentucky 4170.1
David T. Smorodin, Esq.
Steven D. Cundra, Esq.
Thompson, Hine & Flory
1920 N Street, N.W • .
Washington, D.C. 20036
Dennis D. Clark, Esq.
Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

~/

Chairman Ford did not participate in the consideration or
disposition of this matter.

1640

ADMINISTRATIVE LAW JUDGE DECISIONS

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

LOCAL 1769, DISTRICT 22,
UNITED MINE WORKERS OF
AMERICA ( UMWA),
Complainant

SEP 1 1989

COMPENSATION PROCEEDING
Docket No. WEST 87-86-C
Deer Creek Mine

v.
UTAH POWER & LIGHT COMPANY,
MINING DIVISION,
Respondent
ORDER OF DISMISSAL
Before:

Judge Morris

The United Mine Workers of America, (UMWA), complainant
herein, filed a complaint against Utah Power & Light Company,
CUP&L), seeking compensation on behalf of certain members of
Local Union 1769 by virtue of Section 111 ~/ of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et~' Cthe
"Act 11 >.
1/ "Sec. 111.
If a coal or other mine or area of such mine is
closed by an order issued under section 103, section 104, or
section 107, all miners working during the shift when such order
was issued who are idled by such order shall be entitled, regardless of the result of any review of such order, to full compensation by the operator at their regular rates of pay for the
period they are idled, but for not more than the balance of such
shift. If such order is not terminated prior to the next working
shift, all miners on that shift who are idled by such order shall
be entitled to full compensation by the operator at their regular
rates of pay for the period they are idled, but for not more than
four hours of such shift.
If a coal or other mine or area of
such mine is closed by an order issued under section 104 or
section 107 of this title for a failure of the operator to comply
with any mandatory health or safety standards, all miners who are
idled due to such order shall be fully compensated after all
interested parties are given an opportunity for a public hearing,
which shall be expedited in such cases, and after such order is
final, by the operator for lost time at their regular rates of
pay for such time as the miners are idled by such closing, or for
one week, whichever is the lesser. Whenever an operator violates
or fails or refuses to comply with any order issued under section
103, section 104, or section 107 of this Act, all miners employed
at the affected mine who would have been withdrawn from, or
prevented from entering, such mine or area thereof as a result of

1641

Issues
The issues are whether the settlement agreement entered into
between the parties should be enforced.
If so, UP&L's motion to
dismiss the complaint should be granted.
On the other hand, if UP&L's motion to dismiss is denied,
and the case goes to a hearing should the miners be required to
refund the monies UP&L paid under the terms of the settlement
agreement?

Evaluation of the Issues
After the UMWA filed its complaint herein discovery followed
and in due course the parties submitted a settlement agreement to
the judge. ~/ In accordance with the settlement agreement UP&L
paid in excess of $25,000 to various miners at the Deer Creek
Mine.
The settlement agreement included compensation for 147
miners. However, the UMWA now seeks to abrogate the agreement
and it claims that 14 ~/ miners were not included in the settlement.
'Remedies Sought
UP&L requests that the settlement agreement be enforced.
It
argues it paid the amount due under the agreement. Accordingly,
the complaint should be dismissed.
If the complaint is not dismissed, then UP&L contends that
before the settlement agreement can be rescinded the miners must
footnote #1 continued
such order shall be entitled to full compensation by the operator
at their regular rates of pay, in addition to pay received for
work performed after such order was issued, for the period
beginning when such order was issued and ending when such order
is complied with, vacated, or terminated.
The Commission shall
have authority to order compensation due under this section upon
the filing of a complaint by a miner or his representative and
after opportunity for hearing subject to section 554 of title 5,
United States Code.
11 The extended procedural history of this case is attached to
this order of dismissal.
11 The file indicates possibly 15 miners may have been involved.
(See Hanula affidavit paragraphs 16, 17).

1642

refund to UP&L the amounts paid by virtue of the settlement with
interest.
On the other hand, the UMWA argues that granting UP&L's
motion to dismiss would result in the enforcement of a settlement agreement that would erroneously exclude fifteen miners.
The UMWA states that some of the issues to be considered at
an evidentiary hearing are whether the parties reached an
agreement and whether the document as filed reflects that
agreement and, if not, what is the appropriate remedy in the
case.
The UMWA opposes UP&L's position that if the settlement
agreement is rescinded the miners must repay UP&L.
In short, the
UMWA asks that the settlement agreement be reformed to reflect
the actual agreement reached by the parties.
The UMWA claims the
actual agreement was for UP&L to pay all idled miners 50 percent
of their lost wages.
If the UMWA's position is denied then the UMWA suggests the
fifteen miners who were excluded from the settlement be allowed
to continue to prosecute their Section 111 claims.
Affidavits
The affidavits of the representatives of the parties, the
settlement agreement and certain uncontroverted evidence on file
herein are depositive of the issues.
The affidavits read as
follows:
AFFIDAVIT OF JOYCE A. HANULA ~/
Upon pain of prejury, I state the following:
I, Joyce A. Hanula, am a paralegal at the United Mine
Workers of America's (UMWA) Legal Department located at 900
15th Street, NW, Washington, DC 20005.
I have been employed
as a paralegal for the UMWA for approximately 13 years.
1. In the course of my duties, I regularly investigate
cases and prepare pleadings in matters arising under the
Federal Mine Safety and Health Act (the Act).
On several
occasions I have filed cases under section 111 of the Act
and have either litigated such cases or reached settlement
agreements.
4/ This affidavit was filed and amended by letter on April 24,
1989.

1643

2.
I prepared the UMWA's Complaint for Compensation filed
on January 27, 1987, in the above-captioned G~se.
I also
prepared the UMWA's First Set of Interrogatories to Utah
Power & Light (UP&L) filed on February 11, 1987.
3. Interrogatories 5a-c and 6a-c concerned the identity of
miners scheduled to work from November 3 to 10, 1986, the
identity of miners who reported unavailable to work during
this period and the hourly or daily rate of pay of each
miner. UP&L responded to these Interrogatories with lists
identified as Exhibits A, B, and c.
(See attached exhibits
marked Exhibit A through C).
4. Upon receipt of UP&L's answers to the Union's interrogatories, I called Tim Means, counsel for UP&L and informed
him that the photocopy of Exhibit A attached to UP&L's
answers was not legible. Mr. Means informed me that his
copy of Exhibit A was in the same condition and that he
would contact UP&L and attempt to get a clearer copy.
I
never did receive another copy of Exhibit A. Mr. Means then
referred me to Exhibit C and stated that it was the best
list to look at since it had the miners' names and hourly
rates of pay.
5. UP&L's Exhibit B is a work schedule for November 5, 6,
7, and 10, 1986, but does not cover November 3 and 4.
6. UP&L's Exhibit c is a payroll record covering the period
from November 3 to 10, 1986, which is the period of time
covered by the withdrawal order which gave rise to this
case.
7. On September 28, 1988, on the basis of the payroll
record, I sent John Scott, counsel for UP&L a list of the
names of miners employed at the Deer creek Mine in November
1986 and their daily rates of pay. I informed Mr. Scott
that "I cannot determine from the information obtained from
you through discovery what shift each miner was scheduled to
work •.• and to provide this information to me as soon as
possible in order to calculate the amount of entitlement for
miner." (See cover letter attached as Exhibit D and list
identified as Exhibit E).
8.
On September 29, 1988, Mr. Scott returned the list and
marked beside each miner's name the initial G (for graveyard
shift), D (for day shift), and A (for afternoon shift),
which represented what shift each individual worked. A
note was also attached from Mr. Scott requesting that I call

1644

him upon receipt of the list. (See attached Exhibit E). ~/
I called Mr. Scott and we discussed the list and I informed
him that the names were taken off of the payroll list and he
agreed that the payroll list was the best list from which to.
extract the names of each of the idled miners as well as
their hourly rates of pay. Mr. Scott also indicated that he
was not certain of what shifts some individuals worked and
he would check with the company and let me know.
9. A few days later Mr. Scott suggested that UP&L might
offer to settle the case by compensating only the miners who
would have been scheduled to work in the specific area
described in the Order: the 3rd South belt entry and adjacent areas. Mr. Scott said that this was only a suggestion
and not an offer. On October 6, 1988, I transmitted this
information to Robert Jennings, UMWA Health & Safety Representative in Utah, along with Exhibit E which I had
previously submitted to Mr. Scott. Mr. Jennings forwarded
the same to George Baker, President of Local Union 1769.
(See Exhibit F attached).
10. On November 9, 1988, in preparation for the December
15, 1988, hearing date, I sent Mr. Jennings a list of the
names of miners who I believed were entitled to compensation
should the Union prevail in the case.
The list included the
miners' daily rate of pay, the number of days each miner was
idled and the amount of compensation due each miner.
I
also sent Mr. Jennings a photocopy of Exhibit C.
(See Exhibit G and attached list).~/
11. Mr. Scott and I continued to discuss the list of miners
I had sent him in September and he advised me that certain
miners on my list would not be entitled to compensation,
even if the Union prevailed in its claim. He supported his
contention by directing me to UP&L's payroll list (attached
as Exhibit C) and showing me that certain miners had been
fully compensated during the period of time for which the
Union was claiming compensation. That is how the list

5/ The affidavit footnote reads:
Exhibit E as sent to Mr. Scott included only the names of the
employees and their hourly rates of pay. The handwritten information regarding daily rates of pay, number of days idled and
amount due each claimant was added after Mr. Scott indicated what
shift each miner worked.
6/ The affidavit footnote reads:
The attachment to Exhibit G as sent to Mr. Jennings did not
include my handwritten figures.

1645

attached to the Settlement Agreement (entitled Members of
Local Union 1769 Who Are Not Entitled to Compensation) was
arrived at.
(See Exhibit H). Both parties looked at the
payroll list and determined who actually worked and who
didn't during the period in question.
12.
On November 18, 1988, Mr. Scott and Ms. Chetlin came
to the UMWA headquarters to meet with Mary Lu Jordan and
myself, to discuss the case. Mr. Scott and Ms. Chetlin had
a map of the mine and explained the belt system of the Deer
Creek Mine and which areas of the mine UP&L believed were
affected by the withdrawal order. Mr. Scott then proposed
a settlement offer of compensating each idled miner one
shift of pay, which he said amounted to approximately
$20,000.
I responded by saying that the offer would not be
equitable because there were some miners who were idled for
the week whereas others o~ly lost a shift or two of pay and
that it might create problems if we paid everyone one shift.
However, I told Mr. Scott that I would present the offer to
the Local Union.
13. After the meeting with Scott and Chetlin, I called
Messrs. Jennings and Baker and informed them of UP&L's
offer. With the company's permission, the Local held a
meeting~ between shifts, at the bathhouse to discuss the
case.
It was the consensus of the Local to reject UP&L's
offer and go for everything. Mr. Baker advised me of the
Local's decision. Messrs. Baker and Jennings and I discussed a counter proposal. What we came up with was a counteroffer of paying each miner who was idled during the week of
November 3-10, 1986, one-half of what they would get if they
prevailed in the case, i.e., if a miner was idled four days
he would get paid for two days.
14. On December S, 1988, I sent Mr. Scott a letter outlining the Union's counter proposal and attaching a list
of what I believed to be the names of the miners who would
be entitled to compensation if the Union prevailed.
(See
Exhibit I). This list incorporated corrections that Mr.
Scott and I had discussed after he had received the earlier
list (Exhibit E) and compared it to the payroll list.
Exhibit I therefore had deleted certain people who had not
lost any wages and adjusted amounts of pay for others. Mr.
Scott called me and we reviewed Exhibit I while we were on
the phone, by again comparing it to the payroll record.
On
the basis of the payroll record he again pointed out that
certain individuals should be removed, and certain information regarding rates of pay, period of idlement, and
amount due should be adjusted.
I noted the requested
changes and, after ref erring to the payroll record, conf irrned my agreement while we were on the phone. (See handwritten changes to Exhibit I).

1646

15.
On December 8, 1988, Mr. Scott hand-delivered a letter
confirming UP&L's acceptance of the Union's counter
proposal. (Exhibit H}.
I signed the agreement believing
that all miners affected by the order were listed.
16.
In late December 1988, I received a call from George
Baker, President of Local Union 1769, informing me that
there were four miners who were not on the list (Exhibit H}
but who were entitled to compensation.
I called Mr. Scott
and informed him of this matter and he said "okay we will
pay these four miners but no more."
Simultaneously, George
Baker approached Dave Lauriski, management personnel at
UP&L, and told him four people had been omitted from the
list. Mr. Lauriski told Mr. Baker that he would pay them
provided he didn't come up with any other names. Mr. Baker
informed Mr. Lauriski that he would not agree to sign anything because more names could have been left off the list.
Later in the week, Mr. Baker discovered that 10 more names
had been omitted and again approached Mr. Laur iski.
Mr.
Lauriski informed Mr. Baker that he would not pay any of
them.
17.
On January 10, 1989.
I informed Mr. Scott of the
omission of the 14 miners and requested that these miners
be paid.
These miners had been mistakenly omitted from
Exhibit H because I had relied on the payroll list (Exhibit
C} to compile the list of claimants.
I had no reason to
believe the payroll list (Exhibit C} would not provide me
with all the names of people who would have been scheduled
to work during the week in question.
The list is not limited to people who received payment that week, it also
contains the names of individuals who received no payment
and were therefore idled for the week.
Moreover, in our
discussions Mr. Scott and I referred to the payroll list
to verify whether an individual should be removed as a
claimant, or to determine how much a particular individual
was owed.
In these discussions, Mr. Scott never mentioned
nor referred me to Exhibits A or B.

21

18. When I signed Exhibit H it was my understanding that
all the miners who had been idled during the time the
closure order was in effect would be compensated for one-

7/ The affidavit footnote reads:
Since I informed Mr. Scott that 14 miners were omitted from the
list, another miner informed Mr. Baker that his name was omitted
from the Settlement Agreement.
Therefore the total number of
miners omitted from the payroll list is 15 not 14. The reason
why Mr. Scott was not informed earlier of the omissions is that
the UMWA headquarters were closed for the Christmas holidays from
December 26, 1988 to January 2, 1989.

half of the lost wages claimed.
I believed UP&L was opera ting under the same assumption when we signed the agreement.
AFFIDAVIT OF JOHN T. SCOTT, III
JOHN T. SCOTT, III, having been duly sown, deposes and says:
1. I am a member of the law firm of Crowell & Moring where
I have practiced law since 1979.
2. As of June 28, 1988, I became the lawyer at Crowell &
Moring responsible for handling the above-captioned case.
3. During the course of settlement negotiations, the United
Mine Workers of America C"UMWA") was to compile a list of miner
complainants.
4.
I told Joyce Hanula of the UMWA that, in calculating the
amount of each miner's claim, the payroll list (Exhibit c to
Attachment 1 to UP&L's Brief) could be used to show which miners
had already been paid and the miners' rates of pay.
5.
Once the UMWA had complied its list, I used the payroll
list to verify that miners identified by the UMWA had not already
been paid in the normal course.
6. Aside from the statement described in Paragraph 4,
supra, I made no further representations to anyone at the UMWA
about how the data furnished in UP&L's interrogatory answers
(Attachment 1 to UP&L's Brief) should be evaluated, what the
lists of names attached to those interrogatory answers (Exhibits
A, B and C to Attachment 1 to UPL's Brief) represented, the
interrelationship of the three lists, or whether the UMWA should
rely on any one list as a basis for identifying claimants.
Further aff iant sayeth naught.
AFFIDAVIT OF THOMAS C. MEANS
THOMAS

c. MEANS, having been duly sworn, deposes and says:

1.
I am a member of the law firm of Crowell & Moring where
I have practiced law since 1978.
2.
From the time this compensation claim was filed until
June 28, 1988, I was the lawyer at Crowell & Moring responsible
for handling the above-captioned case.
3. On March 23, 1987, I served on Joyce Hanula of the
United Mine Workers of America a copy of Respondent's Answers to
Compl·ainants' First Set of Interrogatories.

1648

4.
I have reviewed Attachment 1 to UP&L's Brief in Support
of Motion to Dismiss. With the exception of the red circles
around certain names, which have been subsequently added to
illustrate the points made in the UP&L Brief, which this
affidavit accompanies, Attachment 1 is a true and correct copy of
the interrogatory responses which I served on Ms. Hanula on March
23, 1987.
5. Attachment 1 contains three separate lists of miners
which were supplied to the UMWA in response to specific
interrogatories. Beyond the terms of the interrogatory answers,
I made no further representations to anyone at the UMWA about how
the date should be evaluated, what these lists represented, the
interrelationship of these lists, or whether the UMWA should rely
on any one list as a basis for identifying claimants or
otherwise.
6. During the Spring of 1987, in a telephone conversation,
I requested Ms. Hanula to identify for me the miners whom she
claimed were entitled to compensation in order to evaluate the
claim for settlement purposes. She advised me that she would
have to consult with the Local and get back to me, but she never
did.
Further aff iant sayeth naught.
SETTLEMENT AGREEMENT
The settlement agreement is in the form of a letter from Mr.
John T. Scott, III, counsel for UP&L to Ms. Joyce Hanula,
representative of the UMWA. The letter, dated December 8, 1988,
was signed the same date by Ms. Hanula.
The letter agreement
(filed with the Commission on December 15, 1988) reads as
follows:
Dear Joyce:
This letter sets forth the terms of the agreement between
the United Mine Workers of America C"UMWA") on behalf of Local
Union 1769 and Utah Power & Light Company, Mining Division
C"UP&L") to settle and terminate this compensation proceeding.
1. Attached as Exhibit A is a list of all claimants in this
proceeding. UP&L shall pay to each listed claimant the amount of
compensation specified for that claimant.
2. UP&L shall endeavor to make the payments to claimants by
December 25, 1988, and in any event shall do so by December 31,
1988. UP&L shall deduct from the amount paid to each claimant
the amount UP&L is required by local, state or federal law and
any collective bargaining agreement to withhold from such
payment.

1649

3. Payments to the claimants shall terminate any
obligations of UP&L, and the UMWA shall, after receiving notice
from UP&L that payments have been made, immediately file a motion
with the Commission to withdraw its complaint.
4.
This agreement is entered into for purposes of settlement, in order to permit the parties to conserve resources and to
avoid the expense of protracted litigation.
UP&L's agreement to
make the specified payments does not constitute any admission of
liability to the UMWA or to any claimant under Section llt of the
Federal Mine Safety and Health Act of 1977.
If you accept these terms, please sign this letter below and
return it to me.
I will then communicate the settlement to ALJ
Morris, and advise UP&L to make the necessary arrangements to see
the miners are paid.
Sincerely,
//s// John T. Scott, III
Agreed:/s/
Date:

Joyce A. Hanula

12/8/88

Attached to the letter is a seven page list containing the
names of 147 miners who are identified by name.
Further, a daily
rate is shown for each miner as well as the days idled (ranging
from 1 to 5 days). A further column shows the amount due each
miner.
Jurisdiction
The undersigned judge has jurisdiction to consider the
issues presented herein by virtue of Sections 111 and 113Cd)(l)
of the Act, 30 u.s.c. §§ 821, 823(d)(l).
Discussion
Pending herein is UP&L's motion for the judge to reconsider
his ruling denying UP&L's motion to dismiss the compensation
complaint.
The Commission has recently restated its view that the
oversight of proposed settlements is an important aspect of the
Commission's adjudicate responsibilities under the Mine Act, and
such discretion is, in general, committed to the Commission's

1650

sound discretion.
Secretary of Labor, Mine Safety and Health
Administration CMSHA) and United Mine Workers of America v.
Birchfield Mining Company, WEVA 87-272, August 21, 1989 slip. op,
at 3.
It is apparent in this case that the dispute between the
parties arose after a settlement agreement had been executed and
after UP&L had paid the miners in accordance with the terms of
the agreement.
The UMWA argues that the parties intended that all claimants
would receive 50 cents on the dollar in settlement of the case.
In support of its position the UMWA relies on the affidavit of
Ms. Hanula and supporting exhibits.
Contrary to the UMWA's views UP&L expressly denied that any
miner was entitled to any compensation under Section 111
(Pleadings filed in the case and paragraph 4 of settlement
agreement).
According to the UMWA: the Union and UP&L realized that
there would be a factual dispute in this case as to the area of
the mine that was idled as a result of the order.
The Union
maintained that the order had the effect of idling the entire
mine, while UP&L contended that any idlement under Section 111
was limited only to the area described in the order.
UP&L's initial approach to settling the case was to offer to
pay only those miners who had been assigned to work in the area
described in the Order. (Hanula affidavit at para. 9). Upon
further discussion between the parties, however, and consideration of the payroll records, UP&L and the Union realized that
under that approach, the people who had lost little or no wages
as a result of the order would be the only ones to receive
payment.
Upon realization of that fact, the settlement discussions
shifted toward the possibility of providing some payment to all
the idled miners, no matter which area of the mine they had been
assigned. UP&L proposed paying all the affected miners one shift
of pay, which UP&L calculated would amount to approximately
$20,000. (Hanula affidavit para. 9). The Union rejected that
proposal and pointed out that paying everybody one shift would
mean that some miners would be made almost completely whole,
while some miners would receive only a small portion of the
amount of wages they had lost.
The Union proposed instead that
everyone receive 50¢ on the dollar. CHanula affidavit at para.
13 and 14).
This was agreed to by UP&L. Unfortunately, when the
parties reduced their agreement to writing they did not include
14 (or 15) of the miners who would have been scheduled to work

1651

during the period in question, but who did not work, and were
therefore entitled to a settlement.
The UMWA asserts the
omission of the miners was due to a mutual mistake in the
compilation of the list of claimants.
The UMWA argues: because the parties reached an agreement
that all the idled miners would be paid 50 cents on the dollar,
but failed to express it properly in the written document, the
appropriate remedy is for the Commission to reform the document
to express the agreement of the parties.
In support of its position the UMWA relies on Restatement,
Second, Contracts § 155, § 157, § 158, National Presto
Industries, Inc., v. United States, 338 F.2d 99 (U.S. Court of
Claims 1964, cert. denied 380 U.S. 962 (1965).
I reject the UMWA's position.
The cases relied on by the
UMWA generally involve contract cases. However, a more specific
body of law addresses settlement agreements.
such agreements can
only be rescinded if they are based on mutual mistake, Callen v.
Pennsylvania R.R., 332 U.S. 625, 630 (1948).
In this case there was no mutual mistake.
If a mistake
occurred it was unilateral on the part of Local 1769 or the UMWA.
A unilateral mistake forms no basis for a rescission.
Mid-South
Towing Co. v. Har-Win, Inc., 733 F.2d 386 (5th Cir. 1984);
Cheyenne-Arapaho Tribes of Indians v. United States, 671 F.2d
1305, (Ct. Cl 1982); In Re Sand N'Surf, Inc., 13 B.R. 384 (E.D.
Pa. 1981).
Further, there can be no mutual mistake as to the number of
miners entitled to compensation because on this issue the parties
compromised.
It has been noted by Corbin in Contracts as follows:
[W]here the parties are consciously disputing an issue and
agree upon a compromise in order to settle it, they are
making no mistake as to the matter at issue and thus settled.
There must be a mistake as to matters that were not at issue
and were not compromised in order that the settlement may be
avoidable on the grounds of mistake, 6 Corbin, Contracts
§ 1292 (1963)
Finally, compromise means that both sides make concessions
to arrive at an enforceable agreement "without regard to what the
result might, or would have been, had the parties chosen to
litigate rather than settle.
Swift Chemical Co. v. Usamex
Fertilizers, Inc., 490 F. Supp. 1343, 1355-56 (E.D. La. 1980).
The UMWA has requested that the judge hold a hearing and
order that the 14 excluded miners be compensated.

1652

Even if a misrepresentation or mutual mistake occurred then
the remedy is to rescind the settlement agreement, not rewrite it._
This is because the agreement is in effect nullified. See Midwest Petroleum Co., v. United States Department, 760 F.2d 2~
(Temp Erner. Ct. App. 1985); Saunders v. General Services Corp.,
659 F.Supp 1042 CE.D. VA. 1986).
Since UP&L has already performed its side of the agreement
it necessarily follows that the monies it paid out would have to
be returned with interest. Litigation could then be resumed over
whether any miner is entitled to compensation.
In short, the
judge cannot declare the 14 (or 15) miners must be paid without
imposing an entirely new and different settlement agreement on
UP&L.
In sum, the miners of Local 1769 cannot retain the fruits
of the settlement agreement and at the same time seek additional
compensation.
The UMWA also asserts that the scope of the hearing should
also address the issues of why UP&L failed during discovery to
disclose the names of 14 (or 15) miners excluded from the answers
to interrogatories.
A strident dispute has arisen over this issue. UP&L
vigorously asserts it properly answered the interrogatories and
it demonstrates the veracity of its position by circling the
names of said miners in its answers to interrogatories.
The judge declines to convene a hearing for an irrelevant
issue. Even if the judge assumes UP&L did not disclose the names
of all miners it is nevertheless apparent that the UMWA did not
rely on UP&L's answers to interrogatories. Specifically, in its
proper representation of Local 1769 it asked the local union
"regarding any changes, additions, etc. on the list" (See UMWA
letter and attached list of November 9, 1988 attached to this
order; same as Exhibit Gin Hanula affidavit).
Prior thereto, on October 6, 1988 the UMWA also requested
Local 1769 to verify the names of miners who worked in the 3rd
south belt entry and adjacent areas on the date in question. (See
letter of October 6, 1988 attached to this order; same as Exhibit
Fin Hanula affidavit).
Subsequently the UMWA also submitted to UP&L its list of the
individuals entitled to compensation (See letter of September 28,
1988 attached to this order; same as Exhibit D in Hanula
affidavit).
The law is clear and no citation of authorities is necessary
to establish that the courts favor compromise of disputed claims.
This case was settled when Ms. Hanula signed the settlement
agreement on December 8, 1988.

1653

~

Sanctions
UP&L asserts 8/ that the UMWA's conduct violates Commission
Rule 6, 29 C.F.R. § 2700.6. Accordingly, UP&L seeks an award of
expenses and attorneys fees in defending UMWA's baseless effort
to abrogate the settlement agreement.
UP&L's motion to impose sanctions is denied.
Mining Company, 11 FMSHRC 759 (May 1989).

See Rushton

For the reasons stated herein the following order is
appropriate:
ORDER
1. Respondent's motion to reconsider the order of May 12,
1989 (denying respondent's motion to dismiss the complaint) is
granted.
2. Upon reconsideration and for the reasons stated herein
respondent's motion to dismiss is granted.
3.

The complaint for compensation herein is dismissed.

Law Judge

Distribution:
M~ry Lu Jordan, Esq., United Mine Workers of America, 900

Fifteenth Street, N.W., Washington, D.C.

20005 (Certified Mail)

John T. Scott, III~ Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, N.W., Washington, D.C.
20004-2505 (Certified Mail)

/bls

8/ The request is contained in Footnote 6 of UP&L's brief filed
April 11, 1989.
1654

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

LOCAL UNION 1769, DISTRICT 22,
UNITED MINE WORKERS OF
AMERICA (UMWA),
Complainant

:

COMPENSATION PROCEEDING
Docket No. WEST 87-86-C
Deer Creek Mine

v.
UTAH POWER & LIGHT COMPANY,
MINING DIVISION,
Respondent
Procedural History
The UMWA filed this case on behalf of Local Union 1769 on
January 29, 1987.
A review of the history of these extended proceedings is
necessary.
This case was filed January 29, 1987.
On February 12, 1987 the UMWA filed interrogatories directed
to respondent.
On February 27, 1987, Utah Power and Light (UP&L) Company,
respondent filed it answer herein.
On March 5, 1987 the case was assigned to the presiding
judge.
On March 13, 1987 the case was scheduled for a hearing in
Denver, Colorado for April 21, 1987.
On March 25, 1987 UP&L filed answers to the UMWA
interrogatories.
On April 6, 1987 UMWA's second set of interrogatories were
filed.
On April 15, 1987 the parties filed a joint motion for a
continuance until such time as the judge ruled on two motions in
limine (not then filed).
On April 16, 1987 the hearing set for April 21, 1987 was

cancelled and the hearing was rescheduled for August 11, 1987.

1655

On May 4, 1987 UP&L filed its response to the UMWA's second
set of interrogatories.

On June 18, 1987 UMWA requested the case be stayed. In
support of the motion UMWA states that the issue controlling in
this case was pending before the Commission in Local Union 2333
v. Ranger Fuel Corporation, Docket No. WEVA 86-439-C.
On July 20, 1987 the hearing previously scheduled for August
11, 1987 was cancelled and the case was stayed pending the
issuance of the Commission decision.
On May 13, 1988, the Commission issued its decision in
Ranger Fuel Corporation.

On May 25, 1988 the presiding judge forwarded a copy of the
Commission decision to the parties and granted them 10 days to
state whether the pending case could be disposed of without a
hearing.
The parties advised the judge they needed additional time;
they were granted an additional 10 days (Order, June 9, 1988).
On June 14, 1988 the parties sought an indefinite stay until
the parties reach an agreement regarding entitlement.
On June 17, 1988 the judge denied the request for an
indefinite stay and directed the parties to advise the judge of a
convenient location for the hearing.
On June 28, 1988 UP&L requested a hearing in Price, Utah.
On July 29, 1988 UP&L moved for a summary decision.
On the
same date the judge granted UMWA 15 days to reply to UP&L's
motion.
On August 5, 1988 the UMWA responded to UP&L's motion.
On August 22, 1988 UP&L filed its reply.
On September 20, 1988 the parties moved for a continuance
(from October 13, 1988 ·to October 27, 1988).
On October 3, 1988 complainant moved for leave to file a
motion for summary decision.
On October 4, 1988 the judge denied the UMWA's motion for
leave to file for a summary decision.
On October 5, 1988 the judge rescheduled the location of the
hearing on December 15, 1988 from Denver, Colorado to Salt Lake
City, Utah.

165 0

On November 29, 1988 the parties requested that the hearing
of December 15, 1988 be rescheduled "to permit the parties to
negotiate over a specific settlement proposal currently under
consideration" CUP&L's letter of November 29, 1988).
On December 6, 1988, the judge rescheduled the hearing date
to March 1, 1989.
On December 8, 1988 the hearing of March 1, 1989 was
cancelled as the parties had reached an "amicable settlement".
Further, they were granted 15 days to file their proposed
settlement agreement.
On December 12, 1988 UP&L forwarded a copy of the proposed
settlement agreement. Under the agreement once UMWA received
notice that the miners have been paid the UMWA would move to
withdraw its complaint of discrimination.
On February 6, 1989 the judge ordered the UMWA to state
whether it had received notice in accordance with the settlement
agreement.
On February 23, 1989 UP&L moved to dismiss the complaint
filed herein.
In support of its motion UP&L states it fully complied with
the terms of the settlement agreement and paid the miners.
For its part the UMWA alleges that certain payroll records
supplied by UP&L were incomplete. UP&L disagrees. Specifically,
147 miners have been paid but UMWA now asserts that an additional
14 miners should be paid.
In its response filed March 10, 1989 to UP&L's motion to
dismiss the UMWA requests the Commission conduct an evidentiary
hearing to determine why UP&L failed during discovery to disclose
the names of miners working or scheduled to work during the idled
period.
On May 12, 1989 the presiding judge denied UP&L's motion to
dismiss the complaint and scheduled the case for a hearing on
July 11, 1989 in Price, Utah.
The judge's order further required
the parties to file certain pretrial information.
Prior to the hearing UP&L filed its motion for reconsideration and clarification of the judge's order of May 12, 1989.
UMWA, in its motion also requested a clarification of the judge's
order.
On June 13, 1989 UMWA filed a response to the UP&L motion of
May 12, 1989.
On June 13, 1989 in order that he might have sufficient time
to consider the pending issues the presiding judge cancelled the
hearing of July 11, 1989.
1657

--

d

LEGAL DEPARTMENT

TELEPHONE
ARE" CODE (202) 842-7200

UNITED MINE WORKERS' BUILDING
& 0 0 FIFTEENTH STREET, N. W.

~~~
.
·~21

~ooos

September 28, 1988

VIA HAND DELIVERY
John T. Scott, III, ·Esquire
C:r:owell & Moring
1001 Pennsylvania Avenue, NW
Washington, DC 20004-2505
Re~

DP.ar

Local Union 1769 v. Utah Power & L?__~

John~

I am currently attempting to gather the names of mirl"ers
who are entitled to compensation--in the above-captioned
section 111 case. Attached is a list of the names of miners
employed at the Deer Creek Mine in November, 1986, and their
daily rate of p~y.
I cannot determine from the information
obtained from you through discovery what sh:i.ft each miner
was scheduled to work. It would be helpful if you could
provide this information to me as soon as possible in order
to calculate the amount of entitlement for each miner.
Once I receive this information I will send you the Union's
complete list of each individual entitled to compensation
and the amount due.
Sincerely,

~Cs?-Joyce A. Hanula
Attachment

1658

- Exhibit D

TELEPHON£
AREA CODE (202) 842-7200

LEGAL DEPARTMENT

UNITE:.D
qQ(.)

MINE wo~~ERS
BUILDING
F'IFTE..C:N7H STHEE;:i'", N, W
0

,·~}·:c.I 1~1h1i~l1l1(·J:i~(i)\111.,..)t)~\~~

·1-r-~-.-1 ' " " ' ' .,,,, ~-c..~ .._,..~,~

-

". =::i!r>· 21

2000!0

October 6, 1988

Mr. Robert Jennings
UMWA Health & Safety Representative
P.O. Box 783
Price, UT 84501
Re:

Local Union 1769

v. UP&L

Dear Bob:
Attached is a list of the names of the miners and their
hourly rate of pay who are entitled to compensation in the
captioned case.
Please arrange to have someone from the Local
review the list for accuracy.
A hearing has· been scheduled
on December 15, 1988, in Salt Lake City, Utah.
The 107{a) Order issued on November 3, 1986, which we
are relying on in this case, idled the 3rd South belt entry
from #20 crosscut·including crosscuts and adjacent 1st Right
entry from #34 to 3rd West number 1 drive. ·As you know,
in our complaint we asked for compensation for the entire mine.
Yesterday, I spoke to UP&L's attorney who suggested that
UP&L may offer to settle'the case by compensating the miners
who worked on the 3rd South belt entry and adjacent areas as
described in the Order. This is not an offer from UP&L -it is only"a suggestion by their attorney. You should discuss
this "possibility" with the Local and let me know what they
think.
In the meantime, let me know the· names of the miners
who worked on the 3rd South belt entry and adjacent areas on
November 3, 1936. Ho?efully all their names are included on
the attached list ..

If you have questions, call.
Very truly yours,

c-\~l-\

Joyce A. Hanula
Paralegal
Attachment

I

1659

-Exhibit F

(
LOCAL UNION 1769, DISTRICT 22, UMWA
v. UTAH POWER & LIGHT CO.,
DOCKET NO. WEST 87-86-C
Employee

Daily Rate

Days Idled

Amount Due

Russell Jensen LSptT.) ~'411))123. 32

5

616.60

.?D~ .! 0

Reid Leamaster l~.\T.)

120.50

4

482.00

;;} '-f I

122.90

4

491.60

2 1/2

307.25

c...~)Ir 'f· "\

Earl Callum

Bryce Brashear l~At·°)W....) 122.90
~~:an

01J

,JJ.JS. ~c,,

! 5 3 ~3

01 i "i·e:r: ~-------r10:-J·s-------- ___ Q. __________ _a_ ___

(SAT\

Glen Nelson

Dewitt Cotner

l~~\

Harold R. Hansen (~A"fl

123.70

4

494.80

106.99

4

427.96

107.45

l

107.45

,; :...: 7 1-1' .: ~

-Bsi;ni-e Morf' is (,~)

~--1F~r~a~n~k~02:v~1~·a~tUt_i(.J>..t.OT~\~---:1~1ti4r..TB/a---·-·· . -o-· ·· -- ·

--{)-

Vernon Jensen

107.45

2

214.90

Gary Motte

114.74

4

344.22

B. Pat Allred L~"r't")

115.58

3

346.74

CS.I\\\

111.38

3

334.14

Randy Thayn

.! ! '7

/./::;

. ,_.,

'I

: I 7

:-> 7

I 0

7. I./~

Q

Mer land Jensen (..<:,r.t."\°'\ C.~""')120.00

4

480.32

Larry Smith· (..C.U..tJl

107.45

2

214.90

Marvin Thayn

109.21

2

218.42

112. 90

3

338.70

(~Or\) ~~tJ) 114. 74

3

344.22

123.70

4

494.80

Kent ovia t t

l ~}i('t')

Wi~llas Cook

Thomas Rhodes

1660

II)~_:/

17.J ,,

Amount Due

Employee

Daily Rate

Days Idled

P. Reeve Cock

120.08

0

Gerald Powe·11

104.81

4

419.24

Phillip Heaps (yt.1)~\.\Nl

123.32

4 1/2

554.94

-Melvin Larsen isA"t'").

114 .721 . -----e----_ _ _ _ _0~--··

Dennis Spensko

114.78

3

"344. 34

/ 7..J. I 7

Scott Mathis

111.38

3

334.14

/?, 7. ~.">7

Melvin Hale

123.32

3

369.96

Id 4. ~<?

Delmar Nilsen

123.32

3

369.96

Kirk Ha.nsen

114.74

2 1/2

286.85

117 ~ 9-4 - - - - __ _o__________

Melvin Johnson

p

109.21

4

436.84

120.08

2.

240.16

Gregory Powel 1 (\Al)L~\\rJ)

123.32

l

123.32

Farly c. Jones

120.92

4

483.68

Kevin Wilson

lc,l'f-T\

•, • / ,

"'-'-

~-.I.~'

'itilj 11 i p Baoa ----··- ··-· ···--- ·--1.r2·.·3-a · -- -----·--··o--------- ·--- -~ . . . . .

William Heaps

120.92

l

120.92

Jack Jone·s

123.32

4

493.28

Larey Eric~son (..~\A...l~

120.92

l

120.92

Kenneth Gunter

123.32

3

369.96

114. 78

l

114.78

George Baker

(. S~)

.Gorgo.n Lareao ( ~'\-------rz~·.12

l,D4b

dµc_ (,,J

:O:>-;.../'='
;,-' ..J. ,..,~

57.3 9

---co:r---------.:e.__

"

~

{)
Sam ..c..c.awf-·-··--·-·-or d
. _12.0_. o,a.. ..... ----·--o--------"ltl---.:...
.....
··------ ···--·····

-.J-ohn-n·i-e-Jlo.w.ti..a.r.d .. -------·- ______ J.l..'2- l.-4-·· -#---· ·--o -·

Cl

Sheron Housekeeper

505.71

112.38

-2-

1661

4 1/2

;.) ~e>

ff'

Employee

Daily Rate

Days Idled

Amount Due

William K. Farrer

123.32

4

493.28

·' ../ .;. l- 4

-Ro..bert Maki

123.32

4 l/2

554.94

~.,7

· Da.le Christensen

117.68

1

117.68

David Johnson ~)~~~)

120.88

0

0

~\ '<;uiJ)

123.32

3

369.96

James Gunter C.Sllr t")

12.0. 92

2 1/2

302.30

Thomas Holdaway

123.32

3

369.96

ti!,,...;, 9f

Sheldon Oviatt

120.92

3

362.76

I? I .3. .1"

Michael Atwood

120.92

3

362.76

Dennis Campbell l~i~l.ltJ) 124.12

2

248.24

Don Johnson L~iO{\)

124.12

.4

496.48

Charles Westbrook (}>.(.\TJ

120.88

0

Q

Stewart Foster

124.12

3

372.36

I ~c,, ii.?

Patrick Sampien

120.92

4

483.68

r; LI!

Curtis Taylor

123.32

4

493.28

Freddy Walters

120.92

4

483.68

Michael Mortensen

117.68

0

0

Monte Tucker LS~I)

117.68

0

0

William Leverton (.sm"'x.S"'-"") 117. 68

0

b

Duron Hunt·er. Jr. l.~A-"t ')

120.88

0

9

Victor Zavala

120.92

3

362.64

1&>1.3;>.

Lawrenc-e Devereaux

124.12

2

248.24

/dL/• I~

Allen Hyatt

120.92

4

483.68

dt..11.d'-I

Paul Larsen

124.12

4

496.48

JiM'·t? LJ

Larr.y Brown

-3-

1662

i...17

)l'.'.~"-1

! 81./. "J,r
;~/ 1)

I>-~. l

:; ..t'

I .. -. . J

1_)

D '-I~~ '-/

?4

! t./
d t...!{~. '.·~.

;Jt-11;? c../

Employee

Daily Rate

Days Idled

Amount Due

John Ciares

114.78

4

459.12

Lloyd Huntington~~)~~)123.32

3

369.96

James Pendelton

120.92

4

483.68

Michael Juggert

120.88

0

Steven Rowley

120.92

3

Bobby Emery

124.12

Brad Timothy

124.12

4 1/2

558.54

Daniel Black

120.92

4

483.68

Daniel Bit tick (~)~utJ)

114. 74

3

344.22

Ron Prettyman ~)~\Le)

124 .12

4

496.48

Jerry Shepher·d~'T~v..>J

123. 32

3

369.96

Kenneth Kay

106.99

3

320.97

Barrett Lemmon ('>~'(?u.,.)j

124 .12

0

Kelly Leroy L'>4~J

120.92

l

120.92

117. 14

3

3Sl.42

114.78

2

229.56

James Caye

117.68

3

470.72

Mark Winn

llS.58

4

462.30

Brent Pietce

114.74

4

4S8.96

Michael Shannon lSA'f)U\JtJ) 114. 74

4

458. 96

~de; '1~

Thomas Ka"y (.,c;.A-"1) Csv....~\

114. 74

l

114.74

57.37

Russell Lal:5rum t~) C..~u.JJ) 109.63

l

109.63

Ted Larsen

E/ ft

Randolph Winder

Tommy Dlxon

~\

~T)

Gary Stephenson

362.76
248.24

"S ~tJ)

117.68

4

470.72

l~A-t~

114.78

0

0

-4-

1663

't

'---

•

/7;} //

).f'i../. 9~
J :, •).-+?

•. :..J

It?

-~-'I

I<;'°

Employee

Daily Rate

Days Idled

Amount Due

Ferrill Wayman

114.78

0

0

( S ~}

120.88

0

0

Ivan Anderson ( '> JllrTl

.

111.38

l

111.38

Gary Ander.son

124.12

2

248.24

Jack Batt

117.68

Robert

117.68

4

470.72

J. Mower

123.32

4

493.28

Bob Olson

117.68

4

470.72

Joe Collard

117.14

4

468.56

Lennie GaI{lmon

124.12

4

496.48

111.38

1

111.38

55" f:,9

Scott Johnson

114.74

2

229.47

I I '-1-. 7~

Allen Wiswell LsA-r)~\4..,l)

120.88

0

0

112.38

2

224.76

/IJ..j.f

Brent Bai iey C~><t'f.J. "'~

120. 08

3

360.24

I ? o. i.J

Jay Oviatt

117.14

3

351.42

114.78

0

0

Billy Dase

112.38

1 1/2

168.57

!f L-/. J?

Kenneth Wil~on c~-r~~J)

117. 68

2

235.36

/17. b~

Indalesio Fruto;¢J&\

123.32

2

246.64

/c}3 3.J

Edward Barnett (.s.erT)C.~w.>)

112. 38

2

224.76

I/~. jJ'

Floyd Anderson

117.68

4

470.72

a~<;". 5 ~

John Blackham

120.92

4

483.68

Lamar Dyches

117.68

3

353.04

Kevin Tucker

Ll~welyn

James G. Go.rd on

Eugene

t S.A r)

Gri~fin

./.;! t-1. 1.)

470.72

1664

'7':;-. 7/

Daily Rate

Days Idled

Amount Due

2 1/2

302.30

112.38

1

112.38

112.38

0

0

Gerald Zabriskie cs~~) 120.92

3 1/2

423.22

J''·"'

Robert Jensen

112.38

4

449.52

ddy/· ?Co

Thomas Memmott

117.68

4

470.72

;J?:·:~e:.

Richard Richart

112.38

0

0

Jeffrey Nielson

117.68

2

235.36

Max Whiting

112.38

0

0

114.74

1

114.74

112.38

0

0

117.68

4

470.72

Richard Rigby

120.88

4

483.52

David Peterson

112.38

1

112.38

De-nnis Peterson L<:A-t)~V.t.l) 117.68

0

0

Elmer Jones

124.12

~

496.48

() ~8'..,l l/

La_rry Turner t~~f')~\.4.~)

112.38

2

224.76

I '~:) . ·-·~ ..-,,.i

Boyd Johnson O~t'{&u.1-lJ

120.88

2

241.76

Jim Malmgren L~ttrt)

120.88

2

241. 76

Darrel Butler lst4rT)

124.12

4

496.48

r}-'-1?.~J

Karl Bessey

123.32

1

123.32

~!.{,lo
t,~.Ofo

l:!:mployee

Wallace Frandse~)~vi.>) 120.92
Stan Densley.

<t

Tom Gonzales

Don Allred

c..,~ ~)

Max.Nichols

cs~)(su~}

Fred sanche:l

Gary Butler

C.sv..tJ)

124.12

1

124.12

David Monk

{.,,~f.\-T)

112.38

0

0

l 4>Pr\)

12,4 .12

2

248.24

Samuel R. Dye

-6-

1665

\._v

1·_::-1.15
5,~.. 1?

I ' 7. L',.,)j

!~

·,

::•

7

d35" .3G
d '"f
.. ..
I

7/

.,.,,

'Jb· I~

/ ,:; C) t'( ,¥
I,..) fj

;i' '1°'

/.) 1-/, IJ.

Daily Rate

Days Idled

Amount Due

120.88

l

120'. 8 8

(',,O

LI t./

Sheran Dyches

112.38

3 1/2

393.32

/ 11 (,..

Ir?

Gary Garlick

120.88

0

0

124.12

4

496.48

Kirk Chris tens en ~~T)(>..,.,')120. 92

2

241.84

Don R. Jens en CS!'cl)f..:?u.. ~\

120.92

2

241.84

IJ n ·7.).

Harold Sparks

114.78

3

344.34

I 7,J.. 17

Joel Erickson

120.92

4 1/2

544.14

d 7~. 0 7

Leslie Hammond (,~A'T~ut-)J 112.38

2

224.75

I 1.:J.. 3 i>

Guy Gordon ·Young (~A-1~1.4.J) 120.08

3

360.24

I -'?D. 1..i

David Mackay (')..trT)(S.u~)

120.88

2

241.76

1-} 0

Brady Miller

120.92

4 1/2

544.14

J 7J a7

Ronald Nunley (?~'"t"'{iu.u)

123.32

2 1/2

308.30

I':;-.-'-/ I )

Jerald Schadel

109.21

4 1/2

491.44

Don She 11 ey (SA·t") uu..~)

124.12

0

0

Arnold Moosman (SAT)Ll>ui.l) 124.12

2

248.24

Calvin Ross C>A-1') l.'>u.,..'.))

124.12

2

248.24

Kendall.Bartholomew

120.92

4 1/2

544.14

Evan Johnson (_~~T'\ C...su.....>)

120.92

0

0

David-Anderson (So.-T)

120.92

4 1/2

544.14

c)"'?~.07

Kim C{)oley

120.92

4

483.68

r:J1..11. K J

Jimmy Nay

124.12

3

372.36

lef'b >.f

Bart" Norton (..~M{sufl)

124.12

4

496.48

J '-f<f',r:J Lj

Cha.rles Olsen

124.12

4

496.48

C> &.16.) tj

Employee

[~,"J

Gary w. Olsen

Kevin Wells

(";>l.,ltJ)

-7-

'-~

I

\

\.

'
1666

; ~-? .ri I{
Jc}

o. '1)

.>f?

JL-IC -,~

) d i-/, I :;J
!~ 1..f • .l

;y.. 7.:J ;;7

Daily Rate

f;rnp 1 oyce

Days Idled

Benjamin Dicaro l~~~,J) 120.92

l

Jeffrey Anderson

124.12

Amount Due
181. 38

/9-bq

4

496.48

r;."!J..1.~ ~ .J

109.21

l

109.21

:[:..' t.r.ol

Linda Jensen

120.92

4 1/2

544.14

d 7J. lJ I

Robert Davis

120.92

3

362.76

1;f'J 3 p

Randy ~ellor l ~A\)

123.32

0

0

Keldon Mann (>A'T)(S~l'lJ

123.32

4 1/2

554.94

J77 1./7

Gary ·Boyd

123.70

4

494.82

.JLIJ.t/I

Dennis Seely LS~\}

120.92

4

483.68

:·, .' ·' I.

~~ ._ _.1

Jeffrey Farmer

124.12

2

248.24

_J ~ ~

:~

123.32

2

246.64

I··
"'I
/.l . . .

~.)

Ro.ber t Farrer (.SA-r)

123.32

2

246.64

/;}3.~~

Ralph Keele

124.12

4

496.48

,,:> t.I i' -~ ~

Curtis ( $.Ai"'\)

124.12

2

248.24

:' :J

(.,~~~)

123.32

2

246.64

'J-3 :3.)

James Holt

120.92

l

120.92

L.:.; :../ k
......

Rudy Metelko

120.92

l

120.92

Gary Birch

Kel-ly Duke

T·.

Dee Laws

C,~A\)

cc;A--r)

1/2

. ·'
......

r-

...
j
I

--·~,

;
......_

\ -

;

'---- ·'

-8-

1667

I .l

. ./I
K::J

p

·~ !..- ! u l

TELEPHONE
AREA CODE (202) a42·7200

LEGAL DEPARTMENT

UNITED

MINE

WORKERS' BUILDING

·~21

November 9, 1988

Mr. Robert Jennings
UMWA Health & Safety Representative
UMWA District 22 Office
525 East 100 South
Price. UT 84501
Re:

Local Union 1769 v. UP&L

Dear Bob:
Enclosed is a photocopy of the list of the names of
miners. his/her daily rate of pay. number of days idled
and the amount of compensation due in the
above-captioned section 111 compensation case.
I
gathered this information from the payroll records
obtained from UP&L (see enclosed photocopy of payroll
records). We are seeking compensation for the following:
Each miner who worked the s:oo a.m. to 4:00 p.m.
shift on November 3, 1986 -- 4 hours o~ compensation.
Each miner who was scheduled to work the 4:00 p.m.
to midnight shift on November 3, 1986 -- 8 hours of
compensation.
Each miner who was scheduled to work the midnight to
8:00 a.m.: 8:00 a.m. to 4:00 p.m. and 4:00 p.m. to
midnight shifts on Noveber 4. s. 6 and 7. 1986 -- 8
hours of compensation.
A hearing in this matter is scheduled on December
15, 1988. in Salt Lake City. Utah.
It is imperative
that I am contacted by the Local or you by November 21.

1668

Exhibit G

1988. rf!gu.L..iing any changes. additio.nb. etc. on the
list.
If. I am not contacted by you or the Local by
November 21. 1988. I will assume the list is accurate
and forward a copy to the company.
If you have any questions concerning the list please
contact me at (202) 842-7345.
sincerely.

~e~CQ...
Joyce A. Hanula
Paralegal
Enclosures

1669

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

September 5, 1989

.

SECRETARY OF L~..BOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCFFDTNGS
Docket No. S~ 89-82
A. C. No. 01-01401-03745

.

v.

No. 7 Mine

JIM WALTER RESOURCES, INC.,
Respondent

Docket No. SE 89-99
A. C. No. 01-01322-03735
No. 5 Mine
Docket No. SE 89-101
A. C. No. 01-00758-03737
1\l'o. 3 Mine
CONTEST PROCBBDING

JIM WALTF.R RESOURCES, INC.,
Contestant

Docket No. SE 89-45-R
Citation No. 3188139; 12/20/88

v.

No. 5 Mine

SECRETARY OF LABOR,
MINE SAFP.TY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Mine ID

01-01322

DECISION
Appearances:

William Lawson, Esq., Office of the
Solicitor, u. s. Department of Labor,
Birmingham, Alabama, for Petitioner;
Robert Stanley Morrow, Esq., Jim Walter
Resources Tnc., Birmingham, Alabama, for
Respondent/Contestant.

Before:

Judge Merlin

When the above-captioned cases came on for hearing counsel
for both parties advised that settlements had been reached.
With
the permission of the bench these settlements were placed upon
the record.
Other cases scheduled for hearing at the same time
were heard on the merits.

1670

Citation No. 3012311 was issued for a violation of 30 C.F.R.
because the projected direction of mining was not
being followed.
~he painted mark on the mine roof showing the
center of the entry was not being used resulting in some orf-site
cuts. ~he original assessment was $311 and the proposed settlement was for this amount. ~ccording to advice received at the
hearing the violation was serious and the operator was negligent.
On this basis the proposed settlement was approved.
§ 75.203(b)

Citation ~o. 3012027 was issued for a violation of 30 C.F.R.
which directs that repairs and maintenance shall not
be performed on machinery until the power is off and the machinery is blocked against motion. The original assessment was
$2,000 and the proposed settlement is for $800. At the hearing
the Solicitor advised that the longwall coordinator stepped inside a stage loader while bolts on the conveyor chain were being
tightened by a laborer. In addition, the longwall coordinator
failed in his responsibility to lock out the conveyor chain while
it was being repaired. Since the lock out device was not operative, the laborer started the conveyor chain. As a result the
longwall coordinator was caught by the chain and injured. At the
hearing the Solicitor described the circumstances in detail. In
particular, he advised that the longwall coordinator was fully
trained and that his conduct in this instance was unpredictable
and aberrational.
Accordingly, the degree of negligence attributable to the operator was far less than originally thought. The
recommended settlement was approved from the bench.
§ 75.1725(c)

Order No. 3188139 was issued for violation of 30 C.F.R.
because the operator failed adequately to support a
rib. ~s a result a miner was injured from a rib roll. ~he
original assessment was for $2,500 and the proposed settlement is
for that amount. Clearly, this violation was very serious and
the operator was negligent. I approved the recommended settlement because it is a sustantial amount suitable for the degree of
gravity and negligence involved.
In addition, I note that the
subject order which was issued under section 104(d)(l) with its
attendant sanctions, remains in effect. The operator's notice of
contest with respect to the subject order is dismissed.
§ 75.202(a)

ORDER
Accordingly, it is ORDF.RFD that the operator's notice of
contest in Docket No. SF 89-45-R is DISMISSED.

1671

It is further ORDBRF'D that the recommended settlements be
APPROVED and the operator is ORDERED 'T'O PAY the following amounts
within 30 days from the date of this decision:
Docket No.

Cication 'No.

Amount

SF 89-82
SF. 89-99
SF. 89-101
'T'otal

3012311
3188139
3012027

$ 311
$2,500
$ 800
$3,611

Paul Merlin
Chief Administrative Law Judge
Distribution:
William Lawson, Bsq., Office of the Solicitor, U. S. Department
of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL
35203
(Certified Mail)
Harold D. Rice, Fsq., Robert Stanley Morrow, F:sq., Jim Walter
Resources, Inc., Post Office Box 830079, Birmingham, AL
35283-0079
(Certified Mail)

H. Gerald Reynolds, Esq., Jim Walter Corporation, 1500
Mabry Highway, 'T'ampa, ~L 33607
(Certified Mail)
Mr. Carl W. Poe, UMWA, Route 2, Box 793, Adger, .AL
(Certified Mail)

~.Dale

35006

Willie Jean Mccrary, UMWA, Route 1, Box 369-B, Wilsonville, AL
35186
(Certified Mail)
Mr. Dan Green, Local 2368, P. O. Box 578, West Blocton, AL
(Certified Mail)

35184

Ms. Joyce Hanula, UMWA, 900 15th Street, N.W., Washington, DC
20005
(Certified Mail)
Lawrence Beeman, Director, Office of Assessments, U. s. Department of Labor, 4015 Wilson Bou~evard, Arlington, VA 22203
(Handcarried)
/gl

1672

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

20006

September 5, 1989
CIVIL PENALTY PROCEEDING

SFCRETARY OF LABOR,
MINE SAFFTY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. SE 89-91
A. C. No. Ol-00323-q3614
Chetopa Mine

v.
DRUMMOND COMPANY, INC.,
Fespondent
DECISION
Appearances:

William Lawson, Esq., Office of the Solicitor,
U. S. Department of Labor, Birmingham,
Alabama, for Petitioner.

Before:

Judge Merlin

This case is a petition for the assessment of civil penalcies filed by the Secretary under section 110 of the Federal Mine
Safety and Health Act of 1977. When the matter came on for
hearing the Solicitor advised that the parties had agreed to a
settlement of all the violations. With approval from the bench
the appearance of operator's counsel was excused and the Solicitor made the joint settlement recommendations upon the record.
Other cases were heard on the merits at the same time.
Citation No. 3015760 was issued for a violation of 30 C.F.R.
§ 75.400 because of an accumulation of loose coal dust and float

coal dust. The original assessment was $213 and the proposed
settlement was $150. Gravity was less than originally thought
because some of the cited areas were wet and the belt was touching coal in only two locations. The foregoing representations
were accepted from the bench and the settlement was approved.
Citation No. 3017898 was issued for a violation of 30 C.F.R.
§ 75.1105 because metal fire proofing was missing from the right

coal rib in a battery charging area. The original assessment was
$119 and the proposed settleme~t was $100. The ~olicitor advised
that the fire proofing had been in place previously but apparently had been inadvertently struck by a ram car which had
knocked it out of position. Gravity and negligence were less
tnan originally thought because che violation had been in existence for only a short period of time. The foregoing representations were accepted from the bench and the settlement was
approved.
1673

Citation No. 3019641 was issued for a violation of 30 C.F.R.
§ 75.400 because of an accumulation oi loose coal, coal dust and

grease on a scoop. The original assessment was $119 and the proposed settlement was for $100. ~egligence was less than
originally thought because the scoop which was subject to the
operator's regular clean up program was frequently used and indications were that the condition had not existed for any appreciable period of time. ~he foregoing representations were accepted
from the bench and the proposed settlement was approved.
Citation No. 3019642 was issued for a violation of 30 C.F.R.
75.503 because an opening in excess of .005 inches was present
in the cover plate of a main breaker panel. The original assessment was $119 and the proposed settlement was for $100. Negligence was less than originally thought because the condition had
existed for a very short period of time and resulted from the
fact that the one small bolt apparently had not been sufficiently
tightened for permissibility purposes.
~he operator has had very
few permissibility violations. '!'he foregoing representations
were accepted from the bench and the settlement was approved.
§

~he operator agreed to pay the original assessments for the
remaining two violations.
The circumstances of these violations
were explained on the record and I accepted the proffered amounts
from the bench.

In light of the foregoing the recommended settlements are
APPROVED and the operator is ORDERFO TO PAY $914 within 30 days
from the date of this order.

Paul Merlin
Chief Administrative Law Judge
Distribution:
William Lawson, Rsg., Office of the Solicitor, U. s. Department
of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL
35203
(Certified Mail)
J. Fred McDuff, Fsg., Drummond· Company, Inc., 530 Beacon Parkway
West, Birmingham, AL 35209 (Certified Mail)
Ms. Joyce Hanula, UMWA, 900 15th Street, N.W., Washington, DC
20005
(Certified Mail)
/gi

1674

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

22041

SEP 6 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRA'rION ( MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 89-16-M
A.C. No. 16-00509-05569
Avery Island Mine

v.
INTERNATIONAL SALT COMPANY,
Respondent
DECISION
Appearances:

Before:

Mary Witherow, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas for
Petitioner;
James M. Day, Esq., Cotten, Day & Selfon,
Washington, D.C. for Re3pondent.

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq., the "Act," charging the International Salt Company
(International) with one violation of the regulatory standard at
30 C.F.R. § 57.19024(d). The general issue before me is whether
International violated the cited regulatory standard and, if so,
the appropriate civil penalty to be assessed in accordance with
section llO(i) of the Act.
Citation 3270248 issued pursuant to section 104(a) of
the Act alleges a "significant and substantial" violation
and charges as follows:
The South skip rope was not removed from service at the
product:.ion shaft. A nondestructive test was conducted
on the 1 7/8 inch 6 by 27 Type H bright purple plus
extra improved plow steel flattened strand right lang
lay rope. The rope strength now showed a loss of
10 percent. The rope along its length contained pitting
showing advanced stages of corrosion and erosion between
the pits. The pits could be seen with the nake<l eye.
The type instrument:. used for the test was Model No.

1675

LMA-250 manufactured by NDT Technology.
The employees
on 3-shifts ride the North skip and the South skip rope
due to its strength loss could snap exposing personnel
to the broken rope and skip.
The cited standard provides, as relevant herein, as follows:
Unless damage or deterioration is removed by
cutoff, wire ropes shall be removed from service
when any of the following conditions occurs:
(d) Rope deterioration from corrosion ••• Ch) Loss
of more than 10 percent of rope strength as
determined by nondestructive testing.
Subsection Ch> of the above standard sets forth at
least one purportedly objective measure to determine when a
wire rope must be retired i.e. when there is a loss of more
than 10 percent of rope strength as determined by
nondestructive testing. In a nondestructive test performed
on the subject rope including the area deemed to be in the
worst condition by the Secretary, the Respondent's expert
witness, David Hall, President of Halkin Services, Inc.,
found the loss of strength in the subject rope to have been
no greater than 9.1 percent.
The Secretary's principle expert on the issue,
Dennis Poffenroth, an MSHA electronic engineer, also
performed a nondestructive test on the rope and found a
maximurn "loss of metallic cross sectional area" of 9. 7 5
percent. According to Poffenroth however the finding of
loss of metallic content cannot accurately be correlated to
determine the loss of strength in a rope.
Indeed,
according to Poffenroth, loss of strength in a wire rope
cannot, under the current state of the science, be
accurately determined by nondestructive testing. He
believed therefore that subsection Ch) did not provide a
valid standard for. wire rope testing.
In any event the Secretary does not disagree that the
subject rope did not at any point suffer a loss of strength
of as much as 10 percent.
It is apparent from the credible
evidence that since the Secretary could not prove under the
objective standard of subsection Ch> that the rope should
have been retired that she then resorted to the subjective
and essentially arbitrary provisions of subsection (d),
i.e. that the rope should be retired from service upon the
existence of "rope deterioration from corrosion."
In order to pass constitutional muster, the
to be given such a vague, indefinite and

interpret~tion

1676

uncertain regulation must appropriately be measured against
the standard of whether a reasonably prudent person
familiar with the factual circumstances surrounding the
allegedly hazardous condition, including any facts
particular to the mining industry, would recognize a hazard
warranting corrective action within the purview of the
applicable regulation. See Alabama By-Products
Corporation, 4 FMSHRC 2128 (1982).
In this case the expert
witnesses, all of whom may be considered to be reasonably
prudent persons familiar with the factual circumstances
surrounding the allegedly hazardous condition, sharply
disagreed over the extent of the alleged corrosion.
MSHA Inspector Benny Lara testified that he observed
pitting and erosion which he said was due to corrosion
between the pits on the cited South rope. MSHA expert
Dennis Poffenroth visually examined the area found to be
the worst section of the South rope through nondestructive
testing and observed pitting in .the outer surface of the
crown wires and erosion between the pits evidencing, what
he believed to .be "advanced corrosion". According to
Pof £enroth no one can safely predict when a corroded wire
rope will fail and in his opinion with the amount of
pitting he found the rope should have been removed from
service immediately.
Poffenroth also cited texts in the subject area
supporting his view that the pitting of wire ropes is a
cause for immediate ce1noval from service. He also referred
to the "Roebling Wire Rope Handbook" which at page 132
states that "where corrosion is present all the known
methods for estimating the remaining strength of a wire
cope become useless."
International's expert witnesses, not surprisingly,
disagreed with the MSHA experts. David Hall, President of
Hal~ins Services, Inc., disagreed with Poffenroth•s
conclusion that y6u could not interpolate from loss of
metallic area in a wire rope to obtain a reliable and valid
determination of loss of rope strength. He has found his
tormula foe determining loss of strength from loss of
metallic area to be reliable and valid.
According to
Hall's findings of loss of metallic area and his
computations, he found the actual maximum loss of strength
in the cited wire rope to be 9.1 percent. Hall also found
however "well established moderate corrosion" throughout
the rope and found that the corrosion was "indicative of
internal corrosion".
Hall performed his test on the rope
on June 18, 1988, and recommended on June 20, 1988, as
follows:
"due to the trend and the ELMA and loss of

1677

strength over the· past two
the ELMA and strength loss
recommended that this rope
days following this test."

tests conducted by 'Rotesco' and
depicted in this test it is
be replaced within the next 30
(See Ex~ioit R-4).

In his report and at hearing, Hall did not however
find that the subject rope met any of the retirement
criteria under 30 C.F.R. Part 57, and concluded that the
rope was in satisfactory condition at the time of the test.
Another expert witness for International, Dennis
Weaver, a graduate civil engineer ana former eruployee of
the Bethlehem Steel Wire Rope Division testified concecning
destructive tests he performed in July 1988 on a portion of
the subject rope.
In his report Weaver stated as follows:
The ultimate failure of the returned sample was
356,000 pounds. The catalog rated strength ior
new rope is 372,000 pounds. Our records show the
as--manufacturer breaking strength was 377,000
pounds. Therefore, it appears the actual loss of
strength is approximately 5.5%.
This test was allegedly performed on a section of the
wire rope deemed worst by the MSHA inspection. According
to Weaver there was only "scattered rust" on the outer
surface of the wire rope and he acknowledged that this
could have been the "moderate corrosion" that Hall had
found.
While the experts may have therefore disagreed over
the extent of rope deterioration from corrosion in this
case the Secretary did not disagree that there was no need
to then remove the subject rope from service.
Indeed I
find that the Secretary's claim of a violation in this case
is completely undermined by the fact that after Inspector
Lara issued the citation at bar (charging a violation of
the standard at 30 C.F.R. § 57.19024 which mandates that
wire ropes be removed from service under the prescribed
conditions} he nevertheless allowed the rope to remain in
service for a week thereafter.
In addition, in spite of
the regulatory requirement for the mandatory retirement of
ropes meeting the prescribed criteria another MSHA official
granted an additional wee~'s extension of time in which to
replace the cited rope. Thus the Secretary allowed the
cited cope to remain in service for two weeks after the
profferred regulation would have mandated its retirement
and in the face of her own representations that up to 30
miners were thereby exposed to the reasonable likelihood of
fatal injuries.,

1678

These actions by the Secretary are inconsistent with
her simultaneous claim that the subject rope was so
corroded that it met the criteria for immediate retirement.
At the same time these actions are consistent with the
findings of independent expert David Hall who opined that
the cited rope would not further deteriorate to meet the
regulatory retirement criteria, including the criteria
under subsection (h), for another 30 days from the date of
his test.
Under these circumstances I accord the greater
weight to the opinions of the operators' independent
experts and conclude that the subject rope did not in fact
on the date of this citation, June 16, 1988, meet the
retirement criteria under the provisions of 30
C.F.R. § 57.19024(d) or (h). Within this framework of
evidence I conclude that the Secretary has failed to
sustain her burden of proving the violation as charged and
the citation must accordingly be vacated.
ORDER
Citation No. 3270248 is vacated.

~l

I

~

Gary Mel ck

Ad~inist~ative

Judge

(703) 750-6261

Distribution:

i

"

Mary Witherow, Esq., Office of the Solfcitor, U.S.
Department of Labor, 525 Griffin Street, Suite 501, Dallas,
TX 75202 (Certified Mail)
James M. Day, Esq., Cotten, Day & Selfon, 12th Floor, 1899
L Street, N.W., Washington, D.C.
20036 (Certified Mail)
nt

1679

)

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

22041

SEP 6 1989
COMPENSATION PROCEEDING

MIKE STEVENS, ET AL.,
Complainants

:

Docket No. VA 89-30-C
v.
No. 1 Mine
CHAP ARAL COAL COMPANY, INC.,
Respondent
DECISION AND ORDER
On July 13, 1989, an Order was issued in this case
finding Respondent in default and accepting the allegations
in the Complaints herein to be true.
Subsequently on July 26
and July 31, 1989, the Complainants submitted claims of
damages with service upon Respondent.
No response has been
filed to these claims and accordingly they are accepted as
correct.
Wherefore Chaparal Coal Company is directed to pay the
following amounts of compensation to the noted miners within
30 days of the date of this decision with interest computed
in accordance with this Commission's decision in United Mine
Workers of America (UMWA) v. Clinchfield Coal Co.,
10 FMSHRC 1493 (1988):
Darrell Dotson
Curtis Perkins
Steve Mays
Johny Brewster
Marty Owens
Leo Chap1nan
-Barry Owens
Danny Clevinger
Donald Patton
Rodney Wimmer
Carl Rowe
William Byrd
Mike Stevens
Jerry Allen
Bernice Coleman
Michael A. Smith

$480.00
480.00
480.00
480.00
480.00
480.00
480.00
480.00
480.00
660.00
480.00
420.00
600.00
480.00
480.00
360.00

\
!

'

j

)
/

G~ry

Me 'ck
Administl ative
( 703) 75~ 6261

Judge
1680

Distribution:
Mr. Mike Stevens, P.O. Box 653,
(Certified Mail)

Bi~

Rock, VA

24603

Mr. ,James C. Ball, President, Chaparal Coal Company, Inc.,

Box 209, Vansant, VA

24656 (Certified Mail)

nt

1681

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

,...,.··-1

~·-.~ \_.:.
~· p

7

22041

1989
CIVIL PENALTY

SECRE·rARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRA'fION (I"1SHA),
Petitioner

PROCEEDI~G

Docket No. KENT 88-121-M
A. C. No. 15-00112-05516

v.
Docket ~o. KENT 88-123-M
A. C. No. 15-00111-05515

M. A. WALKER COMPANY, INC.,
Respondent

Docket No. KBNT 88-205-M
A. C. No. 15-00112-05520
Clover Bottom Underground
DECISION
Appearances:

Mary Sue Ray, Esq., for the Secretary of Labor;
Mr. David Riley, Office Manager, for Respondent

Befoce:

Judge Fauver

These cases were brought by the Secretary of Labor for civil
penalties under § llO(a) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 et seq.
Based upon the hearing evidence and the record as a whole, I
find that a preponderance of the substantial, reliable, and
probative evidence establishes the following Findings of Fact and
additional findings in the Discussion below.
FINDINGS OF FACT
1. At all times pertinent, Respondent opecated two
underground mines, known as the Indian Creek Undergcound Mine and
the Clover Bottom Underground Mine, which prodllced crushed
limestone sold in or substantially affecting interstate commerce.
Citation 2861521
2. This citation, issued on December 2, 1987, alleges a
violation of 30 C.F.R. § 57.12028. Respondent failed to perform
the required annual continuity and resistance tests of the mine
grounding system. The last tests performed by ~espondent at the
cited mine were on November 18, 1986.

1682

3. This was the third year that Respondent"'failed to
perform the required tests in a timely fashion. °Respondent did
not have its own grounding bed at this mine until one was
installed in 1985 by the Technical Support Unit (Tech ~upport) of
the Mine Safety and Health Administration. The testing of the
adequacy of the ground bed was performed for the operator by Tech
Support as a part of the setting up of the bed. At that time, it
was explained to the operator that the ground bed would have to
be tested on an annual basis. After this initial setup,
Respondent was cited in November 1986, for the failure to perform
the required tests on the mine's grounding system.

4. The continuity test is designed to detect any breaks in
the grounding system, to determine whether there is a continuous
path from the electrical equipment to the ground bed.
5. The resistance test measures the impedance of the ground
bed (metal rods in the earth) from one point to another. The
integrity of the ground bed may be affected by various
conditions, e.g., acids in the dirt, vehicles running over the
surface, or a broken wire. If the ground bed is broken, then in
the event of an electrical fault the current may shock any person
who touches the equipment or is standing in close proximity to
it.
Citation 2861527
6. This citation, issued on January 26, 1988, alleges a
violation of 30 C.F.R. § 57.12016. A mine foreman, Glenn Brewer,
and two mine employees were performing repair work on the primary
jaw crusher, about 100 f~et underground, without locking out the
equipment or taking other measures which would prevent the
machine from being energized without the knowledge of the men
working on it. The miners had removed some guards from the
machine. One miner was down on the conveyor belt, the other was
at the base of the crusher, and the foreman was on the landing on
top of the jaw crusher.
7. The power switch to energize or de-engergize the primary
jaw crusher was in a control building above ground. No one was
in the control building at the time. There was a lock in the
hasp of the door to the control building, but the hasp was not
closed and the lock was not fastened, nor did it give an
appearance that the building was closed to personnel. When the
mine inspector entered the building, he did not have to remove
the lock. There was power available at the control building.
8. There were start-stop swit~hes at the jaw crusher.
However, these were not a reliable means of de-energizing the
machine.

1683

Order-Citation 2861528
9. This order-citation, issued on January 26, 1988, alleges
a violation of 30 C.F.R. § 57.15002. Two employees, who were
working under the direction of the mine foreman-and in-view of
the foreman, were not wearing hard hats. Both miners were at the
primary jaw crusher, below the level where tools were located and
would be handed down. They were underground, where there was a
danger of falling rock from the roof or sides of the pillars.
Roof and pillar conditions in limestone mining change from day to
day. The protection of hard hats is basic to mining as demonstrated by the dents in miners' and mine inspectors' hard hats
caused by falling objects or bumping into objects underground.
Order-Citation 2861529
10. This order-citation, issued on January 26, 1988, alleges
a violation of 30 C.F.R. § 57.4161. An open fire heater was
burning underground on a platform at the primary jaw crusher
where two miners and mine foreman Glen Brewer were working.
The heater, which was a diesel fuel heater known as a
salamander, was on the platform of the primary jaw crusher, about
eight feet off the ground. A salamander is a metal cone-shaped
heater. The base is 18-20 inches high, and the exhaust stack is
about nine inches high. Salamanders can easily be turned over
and spread a liquid fire.
In addition, they emit a high level of
carbon monoxide which may accumulate due to the confined space
and confined ventilation underground.
11. Respondent was cited in December 1986, for having a
salamander burning underground at the primary jaw crusher. When
the citation was issued, the mine inspector discussed the
prohibition against having open flames underground with Glenn
Brewer, mine foreman. Also, before the subject order-citation
was issued, Vernon Denton, field office supervisor, MSHA, held a
conference with three representatives of Respondent: Lyle Walker,
Glenn Brewer, and Dave Riley, safety director. Mr. Den~on
explained in detail to all three individuals the prohibition
against the operation of a salamander underground.
Order-Citation 2861909
12. ~his order-citation, issued on ~pril 13, 1988, alleges
an imminent danger and violations involving the mine exhaust fan.
The mine fan was a mobile fan on a trailer base with rubber tire
wheels. The fan had eight-foot propeller type blades, driven by
a 20 horse power, 480 volt motor. The fan was sitting at ground
level. The blades were not adequately guarded. The fan was
behind a storage trailer and adjacent to the dump area of the
mine. The area was well traveled by foot traffic as indicated by
footprints around the base of the fan. ~he fan was turned on and
off daily by a miner walking up to the fan. The order-citation
contains four citations, each having No. 2861909, and identified
as No. Cl), (2), (3), or (4):

1684

Cl) This citation alleges that the fan propeller blades
were not adequately guarded, in violation of 30 C.F.R.
§ 57.14001.
The bottom five feet of the fan had a loosely
constructed wire fence material as a guard. The mesh l.n the
material was so large that someone could stick his hand through
it. The guard had deteriorated due to the vibration of the fan
and left exposed moving parts accessible to persons traveling in
the area. The fan blades were completely exposed at the top
three feet of the fan.
(2) This citation alleges that the 480 volt motor for the
fan was not grounded, in violation of 30 C.F.R. § 57.12025. The
fan had three wire circuits (three phase), and a ground wire was
not provided.
(3)
This citation alleges that the 20 horsepower motor for
the fan was not provided with a lead make-up box cover, in
violation of 30 C.F.R. § 57.12032. There was no cover plate on
the lead make-up box.
(4)
This citation alleges that there were several poorly
insulated splices in the 480 volt power cable to the fan, in
violation of 30 C.F.R. § 57.12013. The splices in the cable wete
not properly insulated, and left the three conductors exposed to
contact, damage, moisture, dust, and dirt.

Citation 286135
At the hearing, the parties moved for approval of a
settlement of this citation, with payment of the $85 penalty
originally proposed. This motion was granted, and the penalty is
included in the Order below.
DISCUSSION WITH FURTHER FINDINGS
Citation 2861521
This citation marked the third year that ~espondent failed
to perform the required continuity and resistance tests in a
timely fashion.
~he operator did not have its own grounding bed
until one was installed in 1985 by the Tech Support Unit of MSHA.
The testing of the adequacy of the ground bed was performed for
the operator by ~ech Support as a part of the setting up of the
bed. At that time, it was explained to Respondent that the
ground bed would have to be tested within a year. Despite this,
Respondent was found in violation in November 1986, for failing
to test the ground bed resistance and continuity of the grounding
system.
~t the hearing, Respondent did not consider the tests
significant (Tr. 45), despite the fact that Tech Support
instructed the operator as to the importance of maintaining a
ground bed and performing these tests annually.

1685

Failure to test the ground bed annually is a serious matter.
Even where an electrical utility company maintains its own ground
bed outside the mine, the failure of the mine operator_ to perform
these tests at the mine can result in a fatality.
Respondent was highly negligent in failing to perform the
required tests. It was given ample assistance by Tech Support in
1985, but was cited the next year for failing to conduct the
required tests. It was again found in violation in January 1988.
~espondent's history shows indifference concerning the need for
the tests and the seriousness of failing to perform them.
Considering each of the criteria for a civil penalty in
of the Act, I find that a penalty of $300 is appropriate
for this violation.

§ llOCi)

Order-Citation 2861527
The foreman and two miners were working at the primary jaw
crusher, to do repair work, but the circuit for the machine was
not locked out. Respondent's lockout procedure required that the
control room, above ground, which supplied power to the primary
jaw crusher, be locked while the machine was de-energized during
repair work. However, the control room was not locked and the
power circuit to the jaw crusher was not locked out. The foreman
knew that this was the case. Failure to de-energize and lock out
this dangerous equipment during repairs constituted aggravated
conduct which showed an "unwarrantable" failure to comply with
the safety standard. It was also a "significant and substantial"
CS and S) violation.
Considering each of the criteria for a civil penalty in
of the Act, I find that a penalty of $500 is appropriate
for this violation.

§ llOCi)

Order-Citation 2861528
The inspector observed two miners. working at the primary
jaw crusher, who were not wearing hard hats. They were working
under the direction of their foreman, Glenn Brewer. The
violation was obvious and serious. The two miners were below the
level on which tools were located, and they were underground.
There was a clear danger of being struck by falling tools or
falling rock from the mine roof or ribs. ~he need for the
protection of hard hats is basic to mining, as demonstrated by
the dents commonly seen in hard hats caused by falling objects
and bumping into objects underground. Considering the obvious
danger and the foreman's plain view of this violation,
Respondent's conduct rose to the level of an "unwarrantable"
failure to comply with the standard.

1686

Considering each of the criteria for a civil penalty in
of the Act, I find that a penalty of $500 is appropriate
for this violation.

§ llO(i)

Order-Citation 2861529
Respondent violated 30 C.F.R. § 57.4161 by having an open
flame heater burning underground. The diesel fuel heater Ca
"salamander") was on a platform at the primary jaw crusher where
two miners and their foreman, Glenn Brewer, were working. This
was a significant and substantial violation, which presented a
clear risk of a mine fire and emission of a high level of carbon
monoxide that could reasonably be expected to cause serious
injuries.
The operator was cited for this same condition a month
earlier. When issuing the previous citation, the mine inspector
discussed the prohibition against having open flames underground
with Glenn Brewer, foreman, and, before the date of the subject
order-citation (January 26, 1988), MSHA supervisor Vernon Denton
held a conference with management representatives Lyle Walker,
Glenn Brewer and Dave Riley; at the conference he explained in
detail the prohibition against operation of a salamander
underground. Respondent's rep~at of the same violation was
flagrant, and showed an unwarrantable failure to comply with the
safety standard.
Considering each of the criteria for a civil penalty in
of the Act, I fipd that a penalty of $1,000 is
appropriate for this violation.
§ llO(i)

Order-Citation 2861909
This order-citation was issued for an imminent danger and
violations involving the mine exhaust fan.
In conjunction with a
§ 107(a) order, the inspector issued four
§ 104(a) citations.
Each citation has the same number as the
order. For identification, the following citations are numbered
in the order as (1), ( 2), ( 3) , and ( 4) .
Cl) Respondent violated 30 C.F.R. § 57.14001 because the fan
blades (8-feet, propeller type blades) were not adequately
guarded and were accessible to contact by personnel. The person
turning the fan on and off was at risk of coming in contact with
the blades. This was an S and S violation, due to ordinary
negligence.
Considering each of the criteria for a civil penalty in
of the Act, I find that a penalty of $150 is appropriate
for this violation.

§ llO(i)

1687

(2) The 480 volt motor for the fan was not grounded, in
violation of 30 C.F.R. § 57.12025. This condition presented a
serious risk of electric shock. This was an S & s violation, due
to ordinary negligence.
Considering each of the criteria for a civil penalty in
of the Act, I find a penalty of $150 appropriate for
this violation.

§ llOCi>

(3) The 20 horsepower motor for the fan was not provided
with a lead make-up box cover, in violation of 30 C.F.R.
§ 57.12032.
The regulation requires that cover plates on
electrical equipment and junction boxes be kept in place at all
times except during testing or repairs. The motor was energized
and the wire connections in the box were exposed to contact,
moisture, damage, dust and dirt. This was an S and S violation,
due to ordinary negligence.
Considering each of the criteria for a civil penalty in
find that a penalty of $150 is appropriate
for this violation.

§ llO(i) of the Act, I

(4) The 480 volt cable to the fan had several improperly
insulated splices, in violation of 30 C.F.R. § 57.12013. The
splices left the conductors exposed to contact, damage, moisture,
dust, and dirt. This was an S & S violation, due to ordinary
negligence.
Conside~ing

each of the criteria for a civil penalty in
find that a penalty of $150 is appropriate
for this violation.

§ llO(i) of the ~ct, I

CONCLUSIONS OF LAW
1.

The judge has jurisdiction over these proceedings.

2. Respondent violated the safety standards as charged in
Citations and Order-Citations Nos. 2861521, 2861527, 2861528,
2861529, 2861909 and 286135.
ORDER
Respondent shall pay the above civil penalties of $2,985
within 30 days of this Decision.

r);_p;_,_ ~ 1-t-Mv 11\..
wi 11 i am Fauver

Administrative Law Judge.

1688

Distribution:
Mary Sue Ray, Bsq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
Mr. David Riley, Office Manager, M. A. Walker Company, Inc., P.O.
Box 143, McKee, KY 40447 (Certified Mail)

iz

1689

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

September 7, 1989

SECRFTARY OF LABOR,
MIN'E SAFETY .A.l\TO HE.AL'l'H
ADMINISTRATION (MSHA),
Petitioner

CIVTL PFNALTY PROCEEDING
Docket No. PFNN 89-111
A. C. ~o. 36-07230-03557

v.

Bailey Mine

CONSOL P~NNSYLVANIA COAL
COMPA'NY,
Respondent
DECISION
Appearances:

Nanci A. Hoover,

~sq.,

Office of the Solicitor,

u. S. Department of Labor, Philadelphia,

Pennsylvania, for Petitioner;
Michael R. Peelish, ~sq., Consol Pennsylvania
Coal Company, Pittsburgh, Pennsylvania, for
Respondent.
Before:

Judge Merlin

This case is a petition for the assessment of a civil
penalcy for an alleged violation tiled by the Secretary of Labor
against Consol Pennsylvania Coal Company, under the Federal Mine
Safety and Health Act of 1977, 30 U. s. C. § 820.
An evidentiary
hearing was held on July 11, 1989.
The parties have filed
post-hearing briefs.
Citation No. 3083738 dated January 4, 1989, charges a violation of 30 C.F.R. § 75.1100-2(e){2) for the following condition
or practice:
"A fire extinguisher and 240 lb of rock
dust was not provided for an electrically
operated water pump located 100 feet outby
the face of the No. 1 return entry in the 5 B
Section."
30 C.F.R. § 75.1100-2 provides in pertinent part as follows:
75.1100-2 Quantity and location of
firefighting equipment.
{a) Working sections. (1) Rach working
section of coal mines producing 300 cons or

1690

more per shift shall be provided with two
portable Eire extinguishers and 240 pounds
of rock dust in bags or other suitable
containers; waterlines shall extend to each
section loading point and be equipped with
enough £ire hose to reach each working iace
unless the section loading point is provided
with one of the following:
Ci)

'T'wo portable water cars; or

(ii)

'T'wo portable chemical cars; or

(iii)
One portable water car or one
portable chemical car, and either (a) a
portable foam-generating machine or Cb) a
portable high-pressure rock-dusting machine
fitted with at least 250 feet of hose and
supplied with at least 60 sacks of rock
dust.

*

*

*

*

Cb) Belt conveyors.
In all coal mines,
waterlines shall be installed parallel to
the entire length of belt conveyors and
shall be equipped with f irehose outlets with
valves at 300-foot intervals along each belt
conveyor and ac tailpieces.
~t least 500
teet of firehose with fittings suitable for
connection with each belt conveyor waterline
system shall be stored at strategic locations along the belt conveyor. Waterlines
may be installed in entries adjacent to the
conveyor entry belt as long as the outlets
project into the belt conveyor entry.
Cc) Haulage tracks.
Cl) In mines
producing 300 tons of coal or more per shirt
waterlines shall be installed parallel to
all haulage tracks using mechanized equipment in the track or adjacent entry and
shall excend to the loading point of each
working sectioh. Waterlines shall be
equipped with outlet valves at intervals of
not more than 500 feet, and 500 feet of
firehose with tittings suitable for connection with such waterlines shall be provided
at strategic locations. ~wo portable water
cars, readily available, may be used in lieu
of waterlines prescribed under this
paragraph.

1691

*

*

*

*

Cd) ~ransportation. ~ach track or
off-track locomotive, self-propelled
man-trip car, or personnel carrier shall be
equipped with one portable iire
extinguisher.
(e) Flectrical installations.
Cl) Two
portable fire extinguishers or one extinguisher having at least twice the minimum
capacity speciried tor a portable iire extinguisher in § 75.1100-l(e) shall be provided
at each permanent electrical installation.
(2) One portable fire extinguisher and
240 pounds or rock oust shall be provided at
eacl},, temporary electrical installation.

*

*

*

*

At the prehearing conference counsel for both parties agreed
to several stipulations which were placed on the record at the
hearing held the next day. ~hese stipulations are as follows:
Cl)
~he operator is the owner and operator of the Bailey
Mine located in Washington, Pennsylvania;
(2) ~he operator and the mine are subject to the
jurisdiction of the Federal Mine Safety and Health Act of 1977;
(3) ~he administrative law judge has jurisdiction over this
case pursuant to Section 105 of the Act;
(4)
Tn the two-year period prior to May 27, 1989, the mine
had no known violations of the standard contested in this case;
(5)

~he

size of the operator is reflected by the following

data:
Ci) ~he mine employs approximately 370
underground and service employees;
(ii) Annual production is approximately
4,659,479 tons;
Ciii)

~he

operator operates 33 mines;

(iv)
~he annual production of all the operator's
mines is approximately 49,776,000 tons.

1692

(6)
The alleged violation was abated within the required
time period;
(7)
Imposition of a penalty herein will not affect the
operator's ability to continue in business;
(8)
'T'he pump in issue was a temporary electrical
installation within the meaning of tne mandatory standard;
(9)
Firefighting equipment at the load center satisfied the
requirement of Section 75.1100-2(a), whicn is not at issue in
this case.

'T'he pertinent facts are as follows:
~he cited pump was in a
return entry several hundred reet inby che load center ("A" on
Joint ~xh. 1, ~r. 11-12).
'T'his location was on the working section but the pump was not within sight of the load center (~r.
33, 71).
'T'he pump received its power from the load center and
was used to pump water from the section which had water but was
not especially wet (Tr. 73-75).
No firefighting equipment was
located at the pump ('T'r. 18).
'T'he pump was energized (Tr. 17).
Tt is the operator's position that because the firefighting
equipment at the load center satisfied the requirements for such
equipment on the working section and because the pump was on the
working section, there was no violation.
~he operator argues
that having met its obligations under subparagraph (a) of
§ 75.1100-2 which sets forth the fireiighting equipment required
on the working section, i t need do no more.
The Secretary, on
the other hand, maintains that although the operator has satisfied subparagraph (a), it must also provide the firefighting
equipment specified by subparagraph (e) £or temporary electrical
installations.
I conclude the Secretary's position is correct.
~he parties
have agreed that the pump is a temporary electrical installation
within the meaning of the mandatory standard.
Stipulation No.
8 l/.
Moreover, the stipulation accords with general practice
and usage.
'T'hus the term "temporary installation" is defined as:

An installation made for a limited time
only, generally in the area between the
loading point and the working face, but also
in other locations where porcable or mobile
equipment is installed for a limited time.

ll

Much oE the operator's brief appears at odds with this
stipulation, into which it freely entered.
The stipulation is
binding in this case.

1693

A temporary installation is limited to a
period of six months.
BuMines. Coal-Mine
Inspectors' Manual, June 1966, pt. 3-18e,
p. 53.
Dictionary of Mining
p. 1127.

~erms,

U.

s. Bureau of Mines

(~969),

The various subparagraphs of § 75.1100-2 set forth requirements £or firefighcing equipment by location and type of machinery.
In absence 0£ evidence to the contrary, I believe the
health and saiecy purposes of the ~ct are best served by insisting that every requirement of the standard applicable by its
terms to a given situation, be tuliilled.
~he operator's witnesses agreed that except for subparagraph (a) other subparagraphs of § 75.1100-2 should be read cogether in cumulative
fashion.
~hus the mine foreman testified that if a pump such as
the one in this case were located in the belc entry, it would
have to satisfy not only subparagraph (b) regarding firefighting
equipment in a belt entry, but also subparagraph (e) with respect
to temporary electrical installations (~r. 74-75). He also
stated the same would be true with respect to a pump in a haulageway that is governed by subparagraph (c) (~r. 74-75). The
operator's foreman asserted that the dual requirements could be
imposed on temporary pumps in belt entries and haulageways
because such pumps might be iurtl1er away from firefighting equipment than they would be on a working section.
I do not find this
argument persuasive. ~he foreman himself admitted that a temporary pump on a working section could be several hundred feet from
the firefighting equipment required by subparagraph (a) (~r. 78).
Moreover, once certain subparagraphs of § 75.1100-2 are read and
applied together there is no basis in the wording or structure ot
the mandatory standard to make an exception for subparagraph (a)
so that where it applies, nothing else does.
~he MSHA Policy Manual is not binding but in appropriate
instances it may serve as a guide in interpreting a mandatory
standard. U. s. Steel, 10 FMSHRC 1138 (1988), U. S. Steel, 5
FMSHRC 3 (1983),
Alabama By-Products, 4 FMSHRC 2128 (1982).
However, the 1988 Manual, is of no use here. The manual states
that a permanent electrical installation referred to in section
(i) of subparagraph (e) is electric equipment expected to remain
in place tor a relatively long or indefinite period ot time.
Items of electric equipment considered permanent are listed and
those pieces which should not be considered permanently installed
are also identified. However, the manual does not define or
specify what equipment qualifies as a temporary electrical
installation under section (ii). The fact that something should
not be considered a permanent electrical installation does not
mean it thereby becomes a temporary installation.
It may be
neither.
I agree with the inspector's cestimony that certain
types of equipment under ordinary circumstances do not qualify as

1694

installations <~r. 45). In any event, the parties have agreed
thac the cited pump was a temporary electrical installation.
In
addition, the manual provides that firefighting equipment
required ior welding under subparagraph (g) ot § 75.1100-2 may be
satisfied by the equipment required by subparagraph (a) for the
working section.
(Solicitor's Brief p. 8).
~he manual gives no
rationale for the exemption it allows under (g). Neither the
Solicitor nor operator's counsel makes mention ot the fact that
prior to 1978 the manual allowed the same exemption for temporary
installations under (e) as for welding under (g).
Since the
mandatory standard is the same under the 1977 Act as it was under
the 1969 Act, the reason for the manual change regarding
subparagraph (e) is not apparent. 1n this respect also the
manual is deficient. However, as set torth above, the decision
in this case is based upon a schematic interpretation of the
mandatory standard.
1n light of the foregoing, I conclude there was a violation.
~he evidence shows that the absence of the required
£iref ighting equipment created the danger an individual could be
overcome by smoke or electrical shock (Tr. 20-21). However, on
the day in question methane was within permissible limits and
nothing was wrong with the pump (~r. 23, 32, 41). ~herefore, I
conclude gravity was only moderate.

The Commission has set forth specific criteria for establisning whecher or not a violation is ~ignificant and substantial.
Cement Division, National Gypsum Co., 3 FMSHRC 872 (1981),
Mathies Coal Co., 6 FMSHRC 1 (1984).
As set forth above, the
violation presented a discrete safety hazard, but the evidence
does not show a reasonable likelihood the hazard would result in
injury. ~he inspector first testified that an injury could
happen or was a possibility (Tr. 20, 22). When pressed about
"reasonable likelihood" the inspector's subsequent statement that
it was reasonably likely, is unconvincing aince he premised that
conclusion upon methane which he admitted was not at dangerous
levels, upon a defect in the pump when there was no defect, and
upon dust concerning which there was no testimony (~r. 22-24).
Tn light of the foregoing, I conclude the violation was not
significant and substantial.
~he inspector admitted that he had not previously discussed
the need for firefighting equipment at temporary pumps with the
mine foreman or the operator's safety supervisor (~r. 91). ~he
inspector said he had talked to safety ~eople who travelea with
him (~r. 91). In the prior two years no citations had been
issued cor this type of violation.
~lthough MSHA is not in any
way estopped, these circumstances do affect the degree of fault.
I conclude negligence was minimal.

1695

~he post hearing responses have been reviewed.
~o the
extent they are inconsistent with this decision they are
rejected.
~

penalty of $50 is assessed.
ORDER

It is hereby ORDFRBD that the operator pay $50 within 30
days from the date 0£ this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Nanci A. Hoover, Bsq., Office of the Solicitor, U. 8. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104
(Certified Mail)
Michael R. Peelish, Fsq., Consol Pennsylvania Coal Company,
Consol Plaza, 1800 Washington Road, Pittsburgh, PA 15241
(Certified Mail)
Michael H. Holland, Fsq., UMWA, 900 15th Street, N.W.,
Washington, DC 20005
(Certified Mail)
/gl

1696

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

22041

SEP 7
SOUTHER~

OHIO COAL COMPANY,
Contestant

CONTEST PROCEEDING

v.

Docket No. wEVA 88-56-R
Order No. 2895233; 10/21/87

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

Martinka No. 1 Mine
Mine ID 46-03805

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 88-156
A.C. No. 46-03805-03843

v.
Martinka No. 1 Mine
SOUTHERN OHIO COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

B. Anne Gwynn, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, tor the Secretary.
David M. Cohen, Esq., American Electric Power
Service Corp., Lancaster, Ohio for the Contestant/
Respondent.

Judge Maurer

These cases are before me under section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
~., (the "Act"), to challenge the legality of a section
104(d)(2) order issued to the contestant at its Martinka Ko. 1
Mine on October 21, 1987. The captioned proceedings have been
consolidated for hearing and decision because che order contested
in the contest proceeding charges a violation of a mandatory
safety standard for which the Secretary seeks a penalty in the
civil penalty proceeding.
Pursuant to notice, the ca~es ware heard in Mprgantown, West
Virginia, on March 2, 1989. The parties filed post-hearing
proposed findings of fact, conclusions of law, and briefs ~hich
llave been consideretl by rne in the course of rna:~ing this
decision.

1697

Section 104(d)(2) Order No. 2895233, which is the subject of
this proceeding, was issued by MSHA Inspector Homer W. Delovich
on October 21, 1987. The order alleges a violation of the
mandatory safety standard found at 30 C.F.R. § 75.1403 1/, and
the condition or practice alleged by the inspector to-be a
violation of that standard, which pertains to safeguards, states
as follows:
In the D-3 Longwall sections, the 24 inch clearance was
obstructed on the headgate operator's side for
approximately 120 feet along the panline and for 10
outby the section belt tailpiece; obstructing the
clearance was water, coal and coal dust mixed 6 inches
to 18 inches in depth and in this accumulations were 3
cables, coal and rocK, the accumulations existed
between the coal rib and panline. No one working on
conditions when observed, no pump provided for the
water and two men were observed performing other work
in this clearance. Condition presents a slipping and
stumbling hazard. Safeguard issued 02-03-82, Number 863963.
Safeguard No. 863963 had been issued by Inspector Delovich
on February 3, 1982. That safeguard notice provided that:
Twenty-four inch clearance was not provided along the
stage loader and chain conveyor at the headgate on the
C2 longwall section. Obstructing the 24-inch clearance
was a roof crib within 4 inches of the control station,
~arge shale roof rock walkway where persons work along
the panline ana post iaying on the floor of the clearance.
All stage loaders and panlines at headgates in
this mine shall have 24 inches of unobstructed
clearance.
STIPULATIONS
The parties stipulated to the following, which I accepted
(Tr 10-11):
1. The Administrative Law Judge has jurisdiction over these
proceedings.

1/ 30 C.F.R. § 75.1403 repeats section 314(b) of the Mine Act,
30 U.S.C. § 874(b), and states:
Other safeguards adequate, in the judgement of an
authorized representative of the Secretary [of Labor],
to minimize hazards with respect to transportation of
men and materials shall be provided.

1698

2. The Martinka No. 1 Mine is owned and operated by the
Southern Ohio Coal Company.
3. The Martinka No. 1 Mine and the Southern Ohio Coal
Company are subject to the jurisdiction of the Federal Mine
Safety & Health Act of 1977.
4.
Safeguard No. 863963 was properly served by duly
authorized representatives of the Secretary of Labor upon an
agent of the Southern Ohio Coal Company on the date, time and
place stated therein.
5. Safeguard No. 863963 had not been vacated or withdrawn
at the time Order Number 2895233 was issued.

6. Order Number 2895233 was properly served by duly
authorized representatives of the Secretary of Labor upon an
agent of the Southern Ohio Coal Company on the date, time and
place stated therein.
7. The assessment 0£ a civil penalty in this proceeding
will not affect Southern Ohio Coal Company's ability to stay in
business.

8. The annual coal production of the Martinka No. 1 Mine in
1986 was one million one hundred seventy-seven thousand three
~undred forty-seven tons.
9. There ~as no intervening clean inspection between
September 1, 1981, when Order No. 859286 was issued and
October 21, 1987, when Ord~r No. 2895233 was issued.
10. There were approximately 346 inspection days at the
Martinka No. 1 Mine in the 24 month period prior to the issuance
of Order No. 2895233.
DISCUSSION AND FINDINGS
On October 21, 1987, Inspector Delovich conducted a regular
quarterly inspection of the Martinka No. 1 Mine.
In the D-3
longwall section, he found the travelway between the panline and
the rib to be covered with water, mud, coal muck, etc. A
"quagmire" in his words.
This condition existed from 10 feet
outby the tail piece to 120 feet inby along the panline, and
ranged in depth from 6 to 18 inches.
He issued the order at bar
because of this condition, shutting down the longwall operation
and withdrawing the 3 miners who had been working in this mess.
The inspector felt this was a significant and substantial
violation because he believed it was highly likely that a miner

1699

would slip, trip or fall in the muck and if a miner fell in the
area between the panline and the rib, he could fall onto the
illoving pauline, and serious injuries would be reasonably likely
to occu.c.
The inspector also determined that this condition had
existed for two to three weeks prior to the issuance of the
instant order and at the time of .the issuance, nothing was being
done to correct this situation. The testimony of Messrs.
Kirchartz and Yost established that mine management was aware of
the condition £or the entire 2-3 weeks of its existence, and
graphically described the unpleasantness of working in these
messy conditions.
It so happens that Inspector Delovich had also issued the
underlying safeguard some five years earlier. He issued that
safeguard in the C-2 longwall section because the travelway
between the panline and the solid coal rib was obstructed by
large stone and rock and had a crib built in close proximity to
the stage loader. Miners were observed by him at that-time to be
walking through the obstructed area between the panline and the
solid coal rib because this was the only entrance to the longwall
face.
They also had to bring supplies in through this area
between the rib and the panline. His purpose in issuing this
safeguard then was to alleviate the stumbling and tripping
hazards he found and to provide for an unobstructed travelway
between the coal ribs and the stage loaders and panlines.
In a previous case involving this same contestant, Southern
Ohio Coal Co., 10 FMSHRC 963 (1988), the Commission discussed in
general terms the safeguard issue. Therein they stated at
966-67:
The Com.mission has previously had occasion to examine
the Act's safeguard provision. The Commission has
noted that the broad language of the provision
"manifests a legislative purpose to guard a0ainst all
hazards attendant upon haulage and transportation in
coal mining." Jim Walter Resources, Inc., 7 FMSHRC
493, 496 (April 1985). The Commission has observed
that while other mandatory safety and health standards
are adopted through the notice and comment rulemaking
procedures set forth in section 101 of the Act, section
314(b) extends to the Secretary an unusually broad
grant of regulatory power -- authority to create what
are, in effect, mandatory safety standards on a
mine-by-11Line basis without regard to the normal
statutory rulemaking procedures.
Southern Ohio Coal

1700

Co., supra, 7 FMSHRC at 512. The Commission also has
recognized that the exercise of this unique authority
must be bounded by a rule of interpretation more
restrained than that accordea promulgated standards.
Therefore, the Commission has held that ~ narrow-construction of the terms of a safeguard and its
intended reach is required and that a safeguard notice
must identify with specificity the nature of the hazard
at which it is directed and the remedial conduct
required by the operator to remedy such hazard.
Id.
These underlying interpretive principles strike an
appropriate balance between the Secretary's authority to
require safeguards and the operator's right to notice of
the conduct required of him.
That earlier Southern Ohio Coal Company case cited in the
above quotation is directly on point in this proceeding.
In
Southern Ohio Coal Co., 7 FMSHRC 509 (1985), the Commission held
that notices to provide safeguards must be narrowly construed.
In that case, the notice to provide safeguards referred to
"fallen rock and cement blocks" in a travelway. These solid
objects in tne travelway presented a stumbling hazard, and
depending on the amount of material present could have prevented
passage in the walkway altogether. Abatement of this condition
was accomplished by simply removing the discrete objects. The
Commission specifically opined at 7 FMSHRC 513:
[F]urther instances of physical obstructions
travelways, whether rocks, cement blocks, or
objects such as construction materials, mine
or debris would fall within the scope of the

in
other
equipment
safeguard.

The obstruction cited as a violation of the safeguard in
that instance, however, was not any of those objects.
It was
water, in combination with the clay bottom of this same Martinka
No. l mine, rock dust and mud, which did create a serious
slipping and stumbling hazard.
The holding in that case is also set out at 7 FMSHRC 513:
The alleged obstruction cited in this case, an
accumulation of water, was neither specifically
identified in the safeguard notice, suggested thereby,
nor in our opinion even contemplated by the inspector
when he issued his safeguard notice. The presence of
water in an underground coal mine is not an unusual
condition: it sometimes results from its introduction
into the mining process, but often it is caused by
natural ground conditions. The record in this case
indicates that natural water seepage was common at this

1701

mine,· particularly at the location involved. Given the
frequency of wet ground conditions in the mine, and the
basic dissimilarity between such conditions and solid
obstructions such as rocks and debris, we find that
SOCCO was not given sufficient notice ~y .the underlying
safeguard notice issued in 1978 that either wet
conditions in general or the.particular conditions
cited in 1983 by the inspector in this case would
violate the underlying safeguard notice's terms.
We do not hold that a safeguard notice pertaining to
hazardous conditions caused by wetness could not be issued.
Conditions such as those cited by the inspector here, if
hazardous, can just as readily be eliminated by issuance of
safeguard notices specifically addressing such conditions.
By taking this approacn rather than bootstrapping dissimilar
hazards into previously issued safeguard notices, the
operator's right to notice of conditions that violate the
law and subject it to penalties can be protected with no
undue infringement of the Secretary's authority or loss of
miner safety.
Returning to the instant case, in the words of the MSHA
inspector who issued it, he issued the notice to provide
safeguards in February of 1982 because SOCCO had the cited
travelway obstructed with large stones and rock and they had a
crib block built right next to the stage loader.
In October of 1987, the same inspector testified he found a
"quagmire", six to eighteen inches in depth, consisting of water,
mud, coal lumps and dust and cables running through this "muck"
in ~he cited area. He defined "muck" to be coal dust and water
mixed to a consistency where it forms a mud.
Mr. Kirchartz, a safety committee member and employee of
SOCCO at the Martinka No. 1 mine accompanied Inspector Delovich
on October 21, 1987 during his inspection and witnessed the
issuance of the order at bar as well as the conditions in the
cited area. He testified that both sides of the panline were in
a very muddy condition and that this area of the mine was a
particularly wet one.
Mr. Yost, another SOCCO employee was called and he testified
that he is a shear operator on the longwall and was knowledgeable
about the conditions in the cited area at the time the order was
issued. He described the conditions as being muddy and mucky on
both sides of the panline. He had previously complained about
the mud there.
He stated that to work in eighteen inches of mud
all day was a mess and definitely no fun.

1702

Mr. Lane, a longwall foreman at MartinKa No. 1, also
testified that he was familiar with the conditions in the area at
the time the violation was written and was present when the order
was issued. He denies that any rock or large chunks of coal were
present in this area at the time. He admits the muc~~xisted,
but denies that there were any cables laying in the muck on the
operator's side of the stage loader between the face and the
conveyor motor. The order states that there was an obstruction
on the headgate operator's side for approximately one hundred and
twenty feet along the panline and for ten feet outby the section
belt tailpiece, but the cables were only involved within the ten
feet outby the section belt tailpiece.
Mr. David Stout, a safety assistant employed by SOCCO, was
also with the inspector at the time the order was issued and was
aware of the conditions in the cited area at the time. He
observed a mixture of water, small lumps of coal, small
gravel-sized rock and clay bottom material. Most of this fine
mixture was water in his opinion. With regard to the cables at
issue herein, he testified that there were three cables coming
from the stage loader area next to the tailpiece that were looped
out of the motor, and were on the floor within the ten feet outby
the section belt tailpiece.
The cited condition was abated by a dozen miners using
buckets to put the muck onto the conveyor within the stage loader.
Shovels were tried, but were found to be ineffective because the
consistency of the material did not allow it to stay on the
shovels.
The safeguard makes no reference to mud or water or muck,
and the inspector somewhat incongruously states that if it wasn't
for the muck that was present, he would not have written the
alleged violation under th~ safeguard section of the mandatory
standar6s. He testified that in 1982 the travelway was
obstructed; there were obstructions on the floor and in his
words, "it wasn't meant to be specific what kind of obstructions".
Therefore, he issued the safeguard. Subsequently, in 1987, when
he found the "quagmire", rather then issue a new safeguard notice
to eliminate the conditions he believed to be hazardous, he
attempted to include muck within the prohibitions of the existing
safeguard which referenced only large rocks, a crib block and a
post laying on the floor.
The order at bar which he issued in this instance alleged
that the clearance was obstructed with a mixture of water, coal
and coal dust (muck) in which there were located three cables,
coal and rock. The three cables referenced in the order were
part of the longwall unit and provide power for the longwall.
These three cables were not on the mine floor between the panline

1703

and the s6lid coal block within the 120 feet next to the panline,
but rather were on the floor next to the solid coal block within
the 10 feet outby the section belt tailpiece. The ten feet outby
the section belt tailpiece, not being next to the stage loader or
panline is not included in the area covered-by the safeguard.
That effectively eliminates the cables from any further
consideration.
As far as any coal and rock that existed in the "quagmire",
I find that the consensus of the evidence is that it was very
small lumps of coal and rock along with clay or bottom material
which formed a muck, some six to eighteen inches deep.
I also
find that it was solely this muck, rather then any discrete
physical objects, that resulted in the issuance of the order at
bar.
Commission precedent, Southern Ohio Coal Co., supra, is
clear in tnis case. The safeguard must identify with specificity
the class ot obstructions prohibited. The obstruction cited by
the 1987 order in this case was essentially muck. Muck was not
mentioned in the 1982 sareguard notice that the order purportedly
relies on and no reasonable construction of the underlying
safeguard notice in this case could conceivably include it.
Accordingly, the instant order must be vacated.
ORDER
On the basis of the foregoing findings and conclusions,
SOCCO's contest IS GRANTED, Order No. 2895233 IS VACATED, and
MSHA's related civil penalty proposal IS REJECTED. The civil
penalty proceeding IS THEREFORE DISMISSED.

urer
ative Law Judge
Distribution:
David M. Cohen, Esq., American Electric Power Service Corp.,
P.O. Box 700, Lancaster, OH 43130
(Certified Mail)
B. Anne Gwynn, Esq., U.S. Departillent of Labor, Office of the
Solicitor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104
(Certified Mail)
/ml

1704

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

22041

SEP 7
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 88-187
A.C. No. 46-03805-03846
Martinka No. 1 Mine

SOUTHERN OHIO COAL COMPANY,
Respondent
DECISION
Appearances:

Therese Salus, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania,
for the Petitioner;
David M. Cohen, Esq., American Electric Power
Service Corporation, Southern Ohio Coal Company,
Lancaster, Ohio, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns civil penalty proposals filed by
the petitioner against the respondent pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820(a), seeking civil penalty assessments for two alleged
violations of certain mandatory safety standards found in
Part 75, Title 30, Code of Federal Regulations. The respondent
filed a timely answer and contest, and a hearing was held in
Morgantown, West Virginia. The parties filed posthearing briefs
and proposed findings and conclusions, and the arguments presented therein have been considered by me in the course of this
·decision.
Issues
The parties settled one of the violations, and the settlement was approved from the bench during the hearing, and my
settlement decision has been reaffirmed. With regard to the
remaining contested violation, the issues presented include the
fact of violation, the appropriate civil penalty assessment for

1705

the violation, taking into account the civil penalty criteria
found in section llO(i) of the Act, and whether or not the
inspector's S&S and unwarrantable failure findings were properly
made.
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.

30 C.F.R. § 75.1704.

3.

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

Stipulations
The parties stipulated to the following (Tr. 11-13):
1.
The respondent and the subject mine are
subject to the jurisdiction of the Act, and the
presiding judge has jurisdiction to hear and decide
this matter.
2.
The contested order was properly served on the
respondent by a duly authorized representative of the
Secretary of Labor.
3.
The alleged violation was abated by the
respondent in a timely fashion.
4.
The subject mine produced approximately
2.8 million tons of coal as of March, 1989, and the
respondent company produced approximately 12.2 annual
tons as of March, 1989.
5.
The proposed civil penalty assessment will not
affect the respondent's ability to continue in
business.
6.
The records obtained from MSHA's Office of
Assessments reflects that the respondent was issued 55
section 104(a) violations citing violations of
mandatory safety standard 30 C.F.R. § 75.1704, over the
2-year period preceding the issuance of the contested
order in issue in this case.
The respondent agreed that there is
to the section 104(d) procedural "chain"
section 104(d) citation relied on by the
subsequently issued section 104(d) order

1706

no dispute with regard
concerning the preceding
inspector to support the
(Tr. 17).

Discussion
Section 104(d) (2) Order No. 2895079, January 6, 1988,
30 C.F.R. § 75.1403-9(c).
The parties agreed to settle this alleged violation, and
they presented their oral arguments on the record in support of
the proposed settlement, and a reduction of the initial proposed
civil penalty assessment from $1,000 to $50.00.
Petitioner's counsel stated that the inspector based his
order on his belief that the respondent exhibited a high degree
of negligence in allowing a tripping hazard to exist along a
shelter hole for two to three shifts. However, counsel confirmed
that there is no credible testimony to support this conclusion
and that the order should be modified to a section 104(a) citation because the unwarrantable failure finding cannot be
supported, and there is no support for any finding that the
respondent exhibited aggravated conduct in connection with the
violation.
Counsel also asserted that the condition was not
entered in any preshift examination reports, and that the respondent immediately abated the cited condition.
Counsel confirmed
that the respondent's history of prior violations includes no
previous violations of the safeguard provisions of 30 C.F.R.
§ 75.1403-9(c), (Tr. 5-8).
Petitioner's counsel confirmed that she discussed the proposed settlement disposition with the inspector who issued the
order on many occasions, and that he agreed with it (Tr. 10).
After due consideration of the proposed settlement, it was
approved from the bench (Tr. 10). My ruling in this regard is
herein reaffirmed.
The remaining contested section 104(d) (2) Order No. 2895499,
issued on January 6, 1988, cites an alleged violation of
30 C.F.R. § 75.1704, and the condition or practice states as
follows:
Additional roof supports are needed in the intake
escapeway for the North Mine butts (031) section at
Sta. #17845 where the roof is loose, broken and some
spalling has occurred from around existing supports.
The location has been reported in the examination book
since 12/2/87 and no action has been taken to correct
this condition since being reported.
In her opening statement at the hearing, petitioner's counsel asserted that on January 6, 1988, MSHA Inspector Frank
Bowers, accompanied by UMWA Fire Boss Gary Pastorial, and the
respondent's safety representative David Stout, conducted a
regular inspection of the mine, and in the course of the inspection walked along the North Main Butts section belt into the

1707

entry. At Station No. 17845, the inspector observed a danger tag
that had been hung on or about December 2, 1987, by
Mr. Pastorial.
In the vicinity of the tag, Mr. Bowers observed
cracked and broken roof and falling roof materials on the mine
floor at the crosscut at the station in question. The condition
covered an area of approximately 16 feet long and 2 to 3 feet
wide.
Based on his observations, and the fact that the danger
tag had been placed there for more than a month prior to the
inspection, with no indication of any remedial measures taken by
the respondent to correct the conditions, the inspector issued
the section 104(d) (2) order, with special S&S findings, citing a
violation of section 75.1704.
Counsel stated further that after the inspection was concluded, the inspector went to the surface and reviewed the
respondent's weekly examination books which contained references
to the cited roof conditions since early December, 1987. This
confirmed the inspector's belief that the conditions had existed
for more than 1 month, and supports the issuance of the order
(Tr. 15-16) .
Respondent's counsel agreed that the cited conditions had
been reported in the weekly examination books since December 2,
1987. However, he asserted that the book entries repeatedly,
reflect that the area was "safe to travel" (Tr. 16).
Counsel asserted that section 75.1704, requires that at
least two separate and distinct travellable passageways be maintained in a safe condition, and since the UMWA fire boss
repeatedly noted in the book that the cited area was safe, no
violation has been established. Further, even if it were to be
determined that the cited area was unsafe, since the condition
was never reported to mine management as unsafe, the unwarrantable failure finding by the inspector is not justified (Tr. 17).
Petitioner's Testimony and Evidence
MSHA Inspector Frank Bowers, testified as to his background
and experience, and he confirmed that he issued the c0ntested
order during the course of his mine inspection on January 6, 1988
(Tr. 24). He stated that he observed that loose and broken rock
had fallen from the roof in and around the existing roof supports
in the area which had been tagged by fire boss Gary Pastorial on
December 2, 1987. Mr. Pastorial informed him that he had continued to report the condition in his examination book since that
date but could not get anything done about it (Tr. 26).
Mr. Bowers stated that the cited regulatory section 75.1704,
requires that two separate and distinct escapeways be marked and
maintained in safe condition at all times, and that one of them
must be on the intake air. He confirmed that the cited area was
on the intake escapeway, which was required to be isolated from

1708

the belt and track with permanent cinder block stoppings, and
that the track was used as the secondary escapeway. He also
confirmed that the danger tag had Mr. Pastorial's initials on it,
and the tag stated that "additional roof support needed here at
Station No. 17845" (Tr. 27).
Mr. Bowers stated that the tagged roof area was not roped
off or closed off in any way, and that the area was required to
be examined weekly. He described the loose and broken roof, and
stated that the roof materials on the floor were approximately a
foot deep and extended across the entire entry which was approximately 16 feet wide (Tr. 28).
Mr. Bowers stated that he cited section 75.1704, rather than
the roof control regulatory series under 75.200, because it is
MSHA's policy to dite roof falls in the intake escapeway under
section 75.1704 (exhibits G-3 and G-4; Tr. 29-31).
Mr. Bowers stated that roof "spalling" consists of rock that
is breaking up around the existing roof bolts and plates, leaving
the bolts and plates hanging down and no longer against the roof
top. He confirmed that he observed the roof spalling, and also
observed roof cracks approximately 2 feet wide and 16 feet long
across the entry. The fallen roof materials were on the floor
directly under the cracks, and he assumed that the conditions had
existed since December 2, 1987, the date which was on the tag
(Tr. 32). He described the sizes of the fallen materials, confirmed that the 4-1/2 to 5 foot spacing between the roof bolts
was not a problem, but that the existing roof needed additional
support "due to the roof deteriorating, broken and cracked and
falling" (Tr. 33-34).
Mr. Bowers confirmed that he observed no other problems with
the roof or the width of the escapeway, and that the materials on
the floor did not impede travel through the escapeway. He
estimated that the cited escapeway was 2,000 feet outby the
working section. He confirmed that abatement was achieved by
installing roof support posts, and that this took approximately
one-half hour to an hour, and he considered this to be prompt
(Tr. 35).
Mr. Bowers did not believe that his safety or health was in
jeopardy when he walked into the cited area and stated that "it
seemed to me it was just becoming unsafe to be traveled and the
area needed attention. They had to install additional supports.''
He confirmed that the only person in the area would be the
examiner who would be in the area once a week, and the only
others exposed to any hazard would be miners travelling through
the area in an emergency (Tr. 35).
Mr. Bowers stated that after his inspection, he travelled to
the mine surface and reviewed the weekly examination books, and

1709

he identified exhibit G-6 as copies of the examination records he
reviewed with respect to Station No. 17845, and confirmed that
from December 2, 1987 to the date of his inspection, different
fire bosses, including Mr. Pastorial, noted that the escapeway in
question needed additional roof support at the cited location
(Tr. 40-42).
Mr. Bowers stated that he was not certain why the fire
bosses noted in the examination book that "the area can be
traveled," or whether or not they believed it could be physically
traveled.
He believed that one could physically travel the area,
but was not sure whether the examiners believed that it was safe
to travel the area.
It was not clear to him what specific areas
the examiners were ref erring to since several places were
referred to in the examiner's notations (Tr. 42).
Mr. Bowers stated that he issued the unwarrantable failure
order because the roof conditions he observed were a violation
of the law, and he found that the respondent had known about the
condition because it had been reported in the weekly examination
book and took no action during this time to correct it (Tr. 44).
He identified exhibit G-7, as MSHA's new policy guidelines,
effective July 1, 1988, with respect to the issuance of unwarrantable failure orders (Tr. 45). He explained the factors he
considered in issuing the order as follows (Tr. 46-49).
A.
One here where it includes the amount of time the
violation has been left uncorrected.
Q. And in this case, what facts do you feel justified
an unwarrantable finding?
A.
I feel from January 6 through December the 2nd was
over a month was more than enough time to correct the
condition, especially when it comes to a roof.
Q.

How long did it take to correct it?

A.
Approximately a half hour to an hour, probably,
after they got the material over there.
Q.

Were special materials necessary?

A. Well, they had to bring posts over.
posts.
Q.

They set

Were they available at the site?

A.
Somewhere along in the area they've got the posts,
yes.
Q.

The next factor, what is that?

1710

A.
"Whether the hazard created by the violation is
particularly serious, thus warranting increased attention from the operator to vent or correct it."
Q. And in your opinion, what facts would support that,
if any?
A. Well, you have an area here that you're going to
use in event of an emergency for people to escape. You
may have between your weekly examination, you could
have a roof fall in the area which would then impede
the travel for these people to get through this entry
br it's possible that if a person would be walking down
through there and spalling rock would hit him, it could
cause serious injuries.
Q. Had a roof fall occurred or a more substantial fall
occurred, would the operator have known about it?
A.

In weekly examination.

Q.

Only during the weekly examination?

A. Unless someone would go down through there, chances
are they wouldn't detect it for the following week.
Q.

And what about the next factor?

A. Okay, that's "Whether the violation is repetitious
of a previous violation."
Q.

And to your knowledge, was this?

A.

Yes, it is repetitious.

Q.

How do you know that?

A.
I've issued several violations and orders at this
mine, in particular, where they had stuff in the books
and not taking action to correct it.
JUDGE KOUTRAS:
that.

The what?

I'm sorry.

I didn't hear

THE WITNESS:
I say I've issued several violations and
orders at this mine over the years, Your Honor, where
they hadn't taken action to correct, it had been left
in the books.

1711

BY MS. -SALUS:

Q. To your recollection were any of these conditions
that you observed that have been left uncorrected, did
any of them relate to intake escapeways?
A.
I can't recall if it was just on intake escapeways.
I've had some on track.
I've had some in return
entries, different areas, I'm sure possibly if I would
go back through the records, I may find some on 1704.
Q.

What about the next factor?

A.
That's "Whether the violation was a result of
deliberate activities by the operator."
Q.

Did you consider that factor?

A. No, I didn't.
I don't think there was any deliberate activities there.
Q.

What about the next one?

A. That's "Or whether the operator knew or had reason
to know that its actions violated a mandatory
standard."
Q.

And in your opinion, were the facts --

A. Well, I feel that they did know because it was
being reported in their weekly examination book which
by law the mine foreman and the superintendent or his
assistant signs it and reads this book on a daily and
weekly basis.
Mr. Bowers stated that he could have issued a section 104(a)
citation, rather than an order, but did not do so because he
found that the condition had been reported in the examination
books and the respondent knew about it. He did not b~lieve that
the condition presented an imminent danger, and if he had issued
a citation, he would have allowed the respondent an additional
day to correct the condition (Tr. 50).
Mr. Bowers stated that at the time he walked the area, he
did not believe that it was likely that the roof would fall in on
top of him, but believed that anyone making an examination in the
area would reasonably likely sustain serious injuries if pieces
of spalling roof rock were to hit him, and that he could suffer
broken bones, crushing injuries, or possible death.
He believed
that this was reasonably likely because "over the years we've had
several people that have been hurt through roof falls and rock
that's hit them and anywhere from serious injuries to death." He

1712

also believed that the deteriorated top, which was "already loose
and broken and spalling out," and the fact that the conditions
were next to an intersection which was a bigger area and where
the roof is weaker, were all factors contributing to the likelihood of a roof fall. He also considered the length of time that
the conditions had existed as increasing the likelihood of a fall
because "it's gradually going to deteriorate to where it will get
worse" (Tr. 50-51).
Mr. Bowers stated he based his "high negligence" finding on
the fact that the condition was noted in the weekly examination
books, and the mine foreman or assistant superintendent signs the
book on a daily or weekly basis, and "he sees what is there so
I'm taking that they did know the negligence was there and should
have been taken care of" (Tr. 52). When asked whether mine
management "knew" or "could have known" that the condition posed
a hazardous or dangerous condition, Mr. Bowers responded "that I
don't know whether they would or not" (Tr. 52). However, he
confirmed that he observed nothing which would lead him to conclude that any remedial action had been taken.
Mr. Bowers stated that he considered the violation to be S&S
for the following reason (Tr. 53):
A. Well, anywhere where you have bad roof conditions
where people are required to work or travel in these
areas, you have the likelihood of a person being hurt
or injured seriously in these areas from falling rock
or roof, and that's what I base that on to be
significant.
Mr. Bowers stated that the weekly examiner would be exposed
to a roof fall hazard, and although he would be aware of the
hazard, anytime he travels through the area, he would be exposed
to the hazard. Although others on the section would also be
exposed to a hazard, this would only occur if they had to use the
entry to escape from the mine in an emergency (Tr. 55).
Mr. Bowers confirmed that none of the respondent's representatives indicated that they had been aware of the cited conditions
(Tr. 53).
On cross-examination, Mr. Bowers stated that with a roof
spalling condition, the roof would come down in pieces, rather
than in a massive fall, and that the falling material may be from
1 to 3 inches in thickness. He confirmed that most of the roof
pieces he observed on the floor were broken up where they had
fallen out between and around the bolts and plates (Tr. 56-58).
Mr. Bowers stated that the examination book notations "can
be traveled" may or may not mean "safe to travel," and while this
is unclear, he believed that "anytime you have an area where you
need additional roof support it needs immediate action" (Tr. 60).

1713

He confirmed that a person would not be in the area for a. long
time, and that he issued no other violations in the intake
escapeway at the time of his inspection (Tr. 61).
Mr. Bowers stated that "If I find where it's being reported
to you and you know about it and you're not taking any action to
correct it, that to me is unwarrantable" (Tr. 62).
In response to further questions, Mr. Bowers confirmed that
he made no measurements of the fallen materials, that the roof
was 6 feet high, and that the materials will break when they hit
the ground (Tr. 64). He saw no evidence of any falls above the
roof bolts, saw no problems with the roof bolting pattern, and
did not believe that the spalling affected the effectiveness of
the bolts which were in place, except that the roof was starting
to deteriorate and needed additional support (Tr. 65).
Mr. Bowers stated that the examination books do not indicate
that the cited area was "safe to travel," and while the statements indicate that "it can be traveled," he was not sure what
the examiners meant by this statement. He did not believe that
the two statements mean the same thing, and he explained the
difference as follows (Tr. 66):
A. Well, like I said a while ago, you could go through
the area, but that does not make it safe due to this
condition that you may have throughout the area.
It
may be like I'm reading in here where they're speaking
of excessive water and one place here where it's over
his boots, I don't know whether this examiner this date
was talking about the water, but he's stating -- if the
water is over your boots and it may be that that's what
he meant, and it needs to be taken care of, but yet you
can go through it.
Mr. Bowers did not know how many posts were installed to
abate the condition, and he stated that someone walking through
the area may never see the danger tag, which he described as
"little," approximately 4 to 6 inches long, and 3 inches wide
(Tr. 69). He confirmed that the roof-control plan itself would
not require the respondent to address the spalling, loose and
broken roof condition (Tr. 71). He could not determine why
additional support was not installed sooner, and stated that
Mr. Pastorial told him that he had advised the general mine
supervisor about the condition (Tr. 72).
Mr. Bowers confirmed that MSHA's regulations do not explain
the kind of danger tag which was at the cited roof area, and do
not require such a tag. He agreed that one could interpret the
tag to mean "I can walk through this area, but I'd better be
careful" (Tr. 74). He confirmed that the tag was not an official
MSHA danger tag such as those used by inspectors to prohibit

1714

persons from walking through such an area. The tag was a company
tag, and he could not say whether it would prohibit anyone from
walking through the area (Tr. 75-76). He confirmed that the
entryway was well marked and designated with reflectors.
Joseph Gary Pastorial, confirmed that he was the union fire
boss at the time of the inspection, that his duties include the
examination of the intake escapeways and the return airways, and
that this is his full time job. He confirmed that he is required
to travel the areas in question in their entirety, once a week,
not exceeding 7 days (Tr. 78-81). He confirmed that any observed
conditions which need to be corrected are entered in the weekly
examination book.
If he observes a condition that does not
pertain to his particular area, or is not a violation, or a
hazardous condition, but has a potential to be one, he communicates it to mine management, and usually to Mr. Metz, sometimes
in writing, and sometimes verbally. He stated that this usually
happens "maybe a couple of times a month" (Tr. 82).
Mr. Pastorial stated that he accompanied Mr. Bowers during
his inspection and he confirmed that Mr. Bowers cited the "bad
place in the roof" at Station No. 17845. Mr. Pastorial also
confirmed that he had previously examined the area, and found
that the roof had cracked and had loose rock, and had deteriorated to the point where it needed additional roof support to
keep it from falling in. He tagged the area and recorded the
condition in the weekly examination book (Tr. 84). He described
the roof condition as a 3-foot "ripper" extending across the
entry for approximately 16 feet. He stated that 4 to 6 inches of
roof material had fallen from the center of the roof, and he
estimated that it was "a couple of feet long by 2 or 3 inches
thick and maybe 6, 8 inches wide." The roof was 6 to 6-1/2 feet
high, and while he did not know the weight of the fallen material, he stated that "it was visible and you had to walk over it"
(Tr. 85). He did not know the extent of the cracks, and
described them as "gagged edges" and not smooth (Tr. 86).
Mr. Pastorial confirmed that he posted the tag in December,
and wrote in the date, his initials, and noted that the area
needed additional roof support. He obtained the tag from the
mine safety department and it was the same type that is used to
"danger out" electrical equipment (Tr. 86). He described the tag
as 4 inches by 6 inches, and stated that he hung it just inby the
roof where it was deteriorated, between the working face and bad
place in the roof, and that he attached it to a roof bolt plate
(Tr. 87) .
Mr. Pastorial could not recall whether he advised anyone
about the roof conditions other than entering it in the book, and
although he does notify mine management in "a lot of instances"
verbally or by written memo, he could not recall whether he did
so in this instance (Tr. 87). Mr. Pastorial stated further that

1715

he "sometimes" talks to Mr. Metz about the need for timbers, and
while he thought he did in this case, he was not sure "so I don't
want to testify yes or no" (Tr. 88).
Mr. Pastorial identified the notation entry whicn he made in
the examination book on December 2, 1987, and he confirmed that
while he noted that the roof needed additional support, he did
not make any notation that he had dangered it off, because that
is not standard procedure, and he had never done it before (Tr.
90) .
Mr. Pastorial identified another entry which he made in the
examination book on December 9, 1987, and he confirmed that he
made a notation that the "North Main Butts Section intake
escapeway needs additional roof support at Station No. 17845,"
and that he noted that the area "can be traveled" (Tr. 90). He
explained that his notation "can be traveled" had the following
meaning (Tr. 91):
A.
It was my opinion that that area needed additional
roof support just like it needed garbage cleaned and
all those other violations corrected, but if a person
had to get down through there in an emergency, it may
or may not be safety (sic) but you could travel the
entry.
Mr. Pastorial identified two additional examination book
entries made by mine examiner Frank Latocha on December 17, and
26, 1987, where he noted "escapeway roof support at station
No. 17845" and that "intake escapeway needs additional roof
support at Station No. 17845," and in both instances, Mr. Latocha
noted that the area "can be traveled." When asked if he knew
what Mr. Latocha meant by the notations "can be traveled,"
Mr. Pastorial responded "I can't speak for Mr. Latocha, but I
.
believe it meant that people could get down through there if they.
had to" (Tr.. 92) .
Mr. Pastorial identified an examination book entry made by
mine examiner Richard Eddy on December 28, 1987, which reflects
that "escapeway needs additional roof support at Station
No. 17845 11 and that the area "can be traveled." Mr. Pastorial
stated that "I again cannot speak for Richard Eddy, but I believe
that he means that there is a violation existing in this entry,
but it can be traveled in the case of an emergency" (Tr. 93-94).
Mr. Pastorial stated that he finds nothing in the notations
made by the other mine examiners which would lead him to conclude
that they believed the area was safe to travel, and when asked
whether "safe to travel" is the same as "can be traveled,"
Mr. Pastorial responded "absolutely not," and he explained his
answer as follows (Tr. 95):

1716

A. Safe to travel means to me that there are no violations, that you could travel that area without any
problems whatsoever. Can be traveled means to me that
you can get through that entry if you have to, but the
violations, there are violations in the area that need
to be corrected as soon as possible.
Mr. Pastorial stated that every entry that he has made in
the examination books would reflect his opinion that the condition is either a hazard, or a violation, or both (Tr. 95).
However, in response to certain bench questions, he responded as
follows (Tr. 96-97):
JUDGE KOUTRAS:
I notice a couple of entries that don't
say anything. For example, Mr. Eddy made a notation
for the period ending December 19th, which is the third
page, "Grassy Run Mains intake escapeway safe to
travel." That's all he said. What's that mean? Does
that mean that he inspected that particular escapeway
and found it safe to travel?
THE WITNESS:

Which page was that, sir?

JUDGE KOUTRAS: Page 3 of the stapled fire boss books
for the week ending 12/19 on line 1. Mr. Eddy says,
"Grassy Run Mains intake escapeway safe to travel."
That's all he says.
THE WITNESS: Okay, as far as I know, if that was my
entry, that would mean that he didn't see anything
wrong there.
It was perfect. It was well rock dusted,
there was no loose roof.
JUDGE KOUTRAS: Well, why put it in there when it says
the only thing you put in there is hazards noted.
THE WITNESS: Well, you have to indicate in the book
that you traveled the area so that this is a record to
prove that you made the weekly examination of the area.
Generally, what I do now is put in the book, if I don't
find anything in the area, I just put none observed.
JUDGE KOUTRAS: So it's not true that every entry
that's made in here indicates a hazard or a violation?
She asked you a question whether every entry that's
made in these books indicates hazards or violations.
Your response was yes. That's not accurate, is it.
I
mean, if someone just puts in there like he just did?
THE WITNESS:
Yeah, technically, I guess you're right.
I didn't mean to --

1717

And, at (Tr~ 98):
JUDGE KOUTRAS:
In other words, what you're doing, the
intent of this is to bring to the attention of someone
various hazards?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS:
It might turn out that those hazards
may not be specific violations of the standards, isn't
that true?
THE WITNESS:

That's possible, yes sir.

Mr. Pastorial confirmed that except for the fire boss who is
in the area once a week, the only others in the area would be the
section crew of 10 miners and their foreman, who would have to
travel the escapeway every 90 days, and the crew who would have
to travel the area in the event of a possible disaster (Tr. 99).
He stated that he usually spends about 30 minutes inspecting the
escapeway, that it would take him less than a minute to walk
through the cited roof area, and that anyone else in the area
would take less than a minute to walk through that area (Tr.
100) .
Mr. Pastorial stated that to the best of his recollection,
the roof condition in question had deteriorated between the time
he tagged it on December 2, until the day of the inspection on
January 6, because there was more spalling and more material on
the floor.
He speculated that there was some movement or shifting of the roof which was causing the material to fall.
When
reminded of the fact that examiner Eddy's notations were consistently the same, and did not indicate any worsening conditions,
Mr. Pastorial responded "I can't speak for Mr. Eddy" (Tr. 101).
He also stated that if he believes that an area which needs
additional roof support is getting worse, he would normally tell
Mr. Metz about it, but he was not sure that he informed him about
this in this case (Tr. 102).
Mr. Pastorial confirmed that although he was in the cited
area several times he did not feel that his safety was at risk
because the roof had already fallen and was not cracking,
popping, or working, but there was an indication that it had
been, and that it took him only a couple of seconds to travel
under it (Tr. 103).
Mr. Pastorial stated that he was not sure that an accident
or injury was likely, and that it was possible that anytime a
roof has deteriorated, a fall was possible. He did not believe
that it was particularly likely that he would be injured "because
I walked under it" (Tr. 103). He confirmed that he was more
concerned that the escapeway would be blocked or would have

1718

restricted escape in an emergency, rather than the roof falling
and striking someone, and he recalled three or four instances in
his experience where roof falls have restricted an escapeway (Tr.
104). He also believed that the intersection is the weakest part
of the entry, and that a fall would likely occur at an intersection rather than in the entry itself (Tr. 106). He stated that 8
to 10 posts were set on each side of the "ripper" to provide
additional roof support, and that these materials were readily
available in the mine (Tr. 107).
On cross-examination, Mr. Pastorial stated that he did not
danger the area off, and that he uses the tag "to identify the
area and caution the people in that area." Had he dangered it
off, he would have entered this in the book and "would have
contacted Mr. Metz and had him withdraw his people" (Tr. 109).
He confirmed that he has worked with Mr. Metz for 14 years and
tries to make it a practice to see him every day (Tr. 110).
Mr. Pastorial stated that "safe to travel" means "the people
can go through there, but that doesn't mean -- there can still be
a violation in the entry." He confirmed that he has never discussed this interpretation with Mr. Metz because he has had no
occasion to do so and has never been questioned on his entries in
the examination book (Tr. 110).
In response to further questions, Mr. Pastorial stated that
roof falls are required to be reported, but that he did not
consider the cited conditions to be a roof fall (Tr. 112). He
acknowledged that he and the other examiners have used the terms
"can be traveled" and "safe to travel" in some of their examination book entries, but that he has rarely used the term "unsafe
to travel" unless there is a roof fall or deep water that impedes
travel (Tr. 112). He indicated that the phrase "can be traveled"
means "there are violations that exist in the entry, but you
could still get down through there if you have to" (Tr. 113). He
confirmed that he is reluctant to danger off every area that
needs timbering and that he uses his own judgment "on how bad or
how serious it is" (Tr. 114).
Mr. Pastorial confirmed that the examination book records
which he testified about are signed daily by Mr. Metz, the mine
foreman, and mine superintendent Wesley Hope. He commented that
"if they read them, they'll know what's in there" (Tr. 118). He
confirmed that while he did not inspect the cited area from
December 9, 1987, to the day of the inspection by Mr. Bowers, he
discovered that the area had deteriorated during the second week
that he traveled there and when he was with Mr. Bowers (Tr. 119).
Respondent's Testimony and Evidence
Dave Stout, safety assistant, confirmed that he observed a
"ripper" going across the entry at the cited intake location in

1719

question, and he described a "ripper" as an area where the roof
spalls due to shifts in the laminated shell that causes it to
break and spall out. He described the ripper as 41 inches wide,
and 8 to 12 inches deep into the roof, and extending to within
18 inches of the left-hand rib line.
He did not consider the
condition to be imminently dangerous because rippers are common
in the mine, no roof bolts were disturbed, and the bearing plates
on both sides of the ripper were "intact and tight to the top"
(Tr. 123). The spalling which he observed was between the bolts,
the roof had not been dislodged around the bolts, and there were
no gaps between the plate on the roof bolt and the roof. The
roof was broken, and there was some loose rocks within the
immediate shell inside the crevasse or the ripper. The escapeway
appeared to be travelable at the time of the inspection (Tr.
124) .
On cross-examination, Mr. Stout stated that after the order
was issued, he informed section foreman John Bevilock to withdraw
miner's from the face.
He confirmed that he had no occasion to
be in the cited area prior to the inspection. He confirmed that
he observed rock materials on the floor which had fallen from the
ripper, and that there were some big pieces of flat shale or
slate on the floor.
He also confirmed that the existing roof
bolts were not affected by the conditions, and were not disturbed
since materials fell from between the bolts and not from around
them. The bearing plates were intact and tight, against the top
(Tr. 125-127).
Mr. Stout stated that he was with Mr. Bowers when he
reviewed the examination.books, but that he (Stout) does not
review the books, and that he spends most of his time accompanying mine inspectors and taking the necessary remedial action by
contacting the appropriate foreman.
His duties do not include
the review of the examination books, and to his knowledge the
respondent took no action to remedy the cited conditions prior to
the inspection (Tr. 129). He stated that the roof on each side
of the ripper was intact and that he observed no broken roof in
these locations (Tr. 131).
John c. Bevilock, day shift supervisor, confirmed that while
the cited escapeway location was not an area that he generally
inspected during his shift, he would have to travel it every
90 days with two men. He could not recall when he was last in
the area prior to the inspection, and he stated that it was
located approximately 2,400 feet from the face area. He confirmed that the area is examined once a week by someone else, and
that he never observed the cited roof conditions during December,
1987, and no one ever advised him that additional roof support
was required in the area. He also confirmed that he never
observed the condition prior to the inspection by Mr. Bowers, and
first saw it when he was called to the area to correct the
violations (Tr. 132-134).

1720

Mr. Bevilock stated that he observed that the top had
spalled out approximately 6 to 8 inches above the top and that
"it was just a ripper running across the entry" and he did not
consider the condition to be hazardous because the roof was
supported with resin roof bolts and the bolts on each side of the
ripper had not been disturbed. He did not believe that the area
was dangerous for people to travel through in the event of an
emergency (Tr. 135).
On cross-examination, Mr. Bevilock stated that it took
approximately an hour and a half to correct the conditions, and
that support posts were available in the area. He confirmed that
he observed approximately 6 to 8 inches of loose rock which had
spalled out of the top on the floor, and he did not know how long
it had been there. He considered the condition to be safe, and
he did not feel threatened that he would be struck by falling
roof because the roof "drips and works" before it falls, and this
was not the case (Tr. 137). He had no indication as to when the
roof "last worked," or when it would "next work," and he stated
that "we usually have indications of roof falls that are major
falls that can occur before they fall." He did not consider the
fall to be major, and that small falls would normally be indicated by small pieces of roof falling or breaking at the top. He
did not observe such conditions in this case (Tr. 138).
Mr. Bevilock stated that when he observes a violation or
hazardous conditions he takes immediate corrective action if
materials and manpower are available, and if not, he records it
in the preshift examiner's book which is different from the
weekly examination book. He stated that he has no occasion to
review the weekly examination book, and although he would not
normally be assigned to correct the conditions, he did so because
his section was the nearest available production section. The
cited location is not his responsibility because he supervises
production only from the end of the track (Tr. 140).
Mr. Bevilock stated that he "sounded" the roof after he was
called to the area, and that it sounded "solid on both sides of
the ripper," and he would have been able to tell if it were
hollow and cracked {Tr. 141). He confirmed that the roof was
cracked and broken in parts, and although he sounded it on both
sides of the ripper to determine if it was hollow on either side
of the crack, he did not sound the cracked or broken area (Tr.
142) .
Mr. Bevilock stated that he observed the roof, and that the
roof bolts "looked good" and he saw no indications that any
material had fallen away from the roof bolts. The spalling took
place 6 to 8 inches inby one set of supports and 3 to 4 inches
from the other set of supports (Tr. 142).

1721

John Metz, general mine supervisor, confirmed that with the
exception of one report ending December 28, 1987, the other
examination book reports are signed with his signature at the
place indicated as "superintendent or assistant." He stated that
he countersigns approximately 30 records or books each day, and
in most cases, the records require no less than six signatures in
each book.
He countersigns about 180 documents each day, and is
required to read them all (Tr. 144-145).
Mr. Metz stated that in his view, the statement "can be
traveled" which appears in the examination books, means that the
area "can be traveled, that there's nothing there to keep a
person from going down that entry," and that "one would assume
that it would be safe to travel" (Tr. 145).
In response to questions as to whether anyone ever advised
him that the cited area was not safe to travel, Mr. Metz
responded as follows (Tr. 145-146):
Q.
Did anyone ever tell you that the area referenced
in this Order 2895499, which is in front of you as
Government Exhibit 2 was not safe to travel during
December, 1987?

A.
I can't recall that anyone specifically said it was
not safe to travel.
Q.
Or prior to, as I say, during 1988, the first
6 days of 1988, did anybody ever tell that to you?

A.

No, sir.

I can't say that they did or did not.

Q.

Does Gary Pastorial report to you?

A.

Yes, sir, he does.

Q. When it is important for work to be done as a
result of something that Mr. Pastorial has determined
during his examination, does he generally do something
more than write a line in the examination book?

A. Normally, there has been opportunity and under
normal situations when Gary encountered something in
the mine in general or specifically in the intakes and
returns that he feels needs immediate attention, in
most cases he fills me out a piece of paper or calls me
on the telephone and says, hey, you need to get jumping
on this and take care of it, and in most cases there is
some type of immediate communications.
Mr. Metz confirmed that he generally speaks with
Mr. Pastorial daily, and that if he discovers anything in the

1722

intake or returns that he believes needs immediate attention, in
most cases he will put it in writing or call him on the telephone. Mr. Metz could not recall Mr. Pastorial saying anything
to him about the cited conditions and stated that "he could have
very easily and I'd not remember it because he does give me quite
a few documents" (Tr. 146). Mr. Metz stated that he was not in
the area when the order was issued, and he could not recall being
there prior to that time (Tr. 147).
On cross-examination, Mr. Metz confirmed that he never saw
the cited roof conditions, and that "ripper's" involve movement
in the roof top but do not affect the bolt itself unless the top
moves (Tr. 148). He stated that he has known Mr. Pastorial for
15 years, and has been his supervisor in one capacity or another.
He also confirmed that Mr. Pastorial does a good job and that he
respects his judgment with respect to roof conditions and "anything else that he might tell me that needs taken care of" (Tr.
149) .
Mr. Metz confirmed that he and Mr. Pastorial have observed
conditions that he records in the books "hundreds of times," and
stated that "we don't view each thing identically.
I have to set
priorities and try to determine what is put in the book as far as
what needs to be done first, what is most important, or what is
dangerous" (Tr. 149). He also stated that he has no reason to
question Mr. Pastorial's entries in the examination books, and
that entries made by the examiners in the books are matters that
they view as necessary to be taken care of, or they know are
violations, and that as a general rule they do not make entries
that do not fall into these categories (Tr. 150).
Mr. Metz stated that while Mr. Pastorial in most cases
brings to his attention conditions that need to be taken care of
immediately, such as an imminent danger, matters which do not
need immediate attention, or which present a potential problem,
are normally documented in the appropriate book. Mr. Metz could
not recall that Mr. Pastorial directly contacted him with respect
to the cited roof conditions (Tr. 151).
Mr. Metz stated that based on his experience with the mine
top, not all roof rippers are serious.
Based on the fact that
the roof bolts in this case were intact, he would not view this
as a serious condition (Tr. 153). When asked for his reaction to
the fact that three different examiners considered that station
17845 needed additional roof support, Mr. Metz responded as
follows (Tr. 154):
A. Ma'am, at our coal mines we have over 500 miles of
entries that we have mined.
Out of these entries I
would assume that we probably have somewhere in the
vicinity of 60 miles of travelable entries.
To get
overly excited about a ripper, it just would indicate

1723

to me that there was something there that needs some
attention.
I read entries of those natures day in and
day out and again, relying on my experiences as working
at that mine, I don't always make the right decision or
the proper judgment call.
Mr. Metz confirmed that the term "ripper" is not included in
any of the book entries, and that the time to provide additional
support would be "as fast as possible," taking into consideration
the other priorities noted in the 28 to 30 books which he must
sign. He confirmed that he gave no instructions to take care of
the cited roof conditions (Tr. 155). He also confirmed that time
does not allow him to refer back to any particular book entry,
and he was aware of mandatory safety section 75.323, which
requires that hazardous conditions be corrected promptly (Tr.
157) .
In response to further questions, Mr. Metz stated that the
notations "can be travelled" indicates to him that "a person
could get down through there.
In the case that they needed to
travel, there was nothing there to totally eliminate them from
traveling that entry." If the notations had indicated "bad top,"
he would consider this to be a more serious condition, but that
none of the records indicated any bad top in the cited area. He
did not consider the reported conditions to be "bad top," and the
notations "needs additional support" describes a cure rather than
a hazard (Tr. 162). He could not recall discussing
Mr. Pastorial's entries concerning the roof with him. He also
believed that the notation "needs additional support" indicates
that the roof condition was relatively stable in the cited area
(Tr. 163) .
Mr. Pastorial was recalled by the court, and when asked why
he did not include the spalling, loose roof, and broken rock on
the ground in his entries in the books, he responded that he has
never included a description of the particular conditions in the
books because he assumes that management knows what "additional
roof support" means (Tr. 164). He also indicated that he and
Mr. Metz generally discuss the materials needed to correct a
condition and how much timber is needed, but he did not have any
note that he may have given Mr. Metz, and stated that "I don't
want to say one way or another" (Tr. 165).
Mr. Pastorial stated that if he makes a notation that additional roof support is needed, "then the top is bad," and "it
means the same thing." He stated that in the future, he will
include such information in his notations (Tr. 166).
Mr. Pastorial stated that he cannot disagree with Mr. Metz's
opinion that "can be traveled" means "its safe to travel," and he
explained his current procedure for making book entries (Tr.
166-168).

1724

Findings and Conclusions
Fact of Violation - Order No. 2895499, 30 C.F.R. § 75.1704
The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 75.1704, which requires designated
escapeways to be "maintained to insure passage at all times of
any person, including disabled persons" and "maintained in safe
condition and properly marked." The evidence establishes that
the escapeways were properly marked and identified, and that they
were passable. MSHA's assertion at page 8 of its brief that the
rocks which fell from the roof and were lying on the ground
"could have impeded escape in an emergency or by disabled miners"
is rejected.
I find no such condition or practice cited in the
order, and the inspector who issued it testified that the rock
materials on the floor would not have impeded travel along the
escapeway in question (Tr. 34). Therefore, the only issue here
is whether or not the escapeway roof area cited by the inspector
was maintained in a safe condition.
The respondent argues that even though some spalling had
taken place at the cited roof area, it was nonetheless maintained
in a safe condition.
In support of this conclusion, respondent
states that all of the witnesses testified that the roof conditions did not pose an imminent danger, and that they did not
believe that their safety was in jeopardy when they were in the
area. The respondent further points out that the roof area was
not closed by the fire boss to prohibit people from walking
there, that the roof bolts and bearing plates on either side of
the roof crack were intact, undisturbed, and snug against the
roof, and that the section supervisor who visited the area
sounded the roof on either side of the crack, and found that it
was solid and "not working."
The fact that no one considered the roof conditions to be an
imminent danger requiring the closing of the area is immaterial.
It is clear that a violative condition may be established regardless of the presence of any imminent danger or closure action by
a fire boss. With regard to the condition of the roof bolts and
bearing plates which had been installed in the roof area in
question, while there is no credible evidence to establish that
the bolts and plates had separated from the roof, the fact
remains that the roof had obviously deteriorated over time, and
spalling had recently occurred.
"Spalling" is a condition caused
by rock which is subjected to excessive tension, causing it to
break off in pieces. See: A Dictionary of Mining, Mineral, and
Related Terms, U.S. Department of the Interior, 1986 Edition, at
page 1049.
In addition to the spalling condition of the roof, the
inspector's credible testimony establishes the presence of cracks
in the roof, approximately 2 feet wide, and extending for some

1725

16 feet across the entry and next to an intersection, a 16cation
described by the inspector "as a bigger ar.ea where the roof is
weaker." The inspector believed that the roof was deteriorating,
and he characterized it as "already loose and broken and spalling
out." Although he saw no evidence of any falls above.the existing roof bolts, observed no problems with the spacing of the
bolts, and did not believe that the spalling affected the effectiveness of the roof bolts which were in place, he nonetheless
concluded that the roof was starting to deteriorate and needed
immediate additional support. Additional roof supports were in
fact installed to abate the condition.

The inspector stated that the rock which had fallen from the
roof area in question had fallen out between and around the roof
bolts and plates, and he described the sizes of the rocks as
"from small pieces, one to two inches, to three inches, maybe
thickness, to a foot or so in diameter'' (Tr. 33). Given the
approximate 6 foot high roof, the inspector indicated that the
rocks may or not break up once they hit the ground, and he
believed that any rock, which he described as slate, may weigh
"several pounds." The inspector believed that anyone struck by a
piece of spalling rock from the roof could suffer severe
injuries.
Union Fire Boss Pastorial, corroborated the inspector's
observations of the roof conditions in question, and the respondent 1 s general mine supervisor, John Metz, confirmed that he has
known Mr. Pastorial for 15 years and that he respected his judgment with respect to roof conditions. Mr. Pastorial confirmed
that when he first observed and tagged the roof area in question
on December 2, 1987, and when he visited it later, he found that
it had cracked, had loose rock, and had deteriorated to the point
where it needed additional support. He described some of the
rocks which had fallen from the "center of the roof" as 2 feet
long, 2 or 3 inches thick, and 6 to 8 inches wide, and he
observed a crack or "ripper" approximately 3 feet wide which
extended some 16 feet across the entry. Mr. Pastorial believed
that during the intervening period when he first observed the
roof, and the day of the inspection, the roof had deteriorated
further.
He observed more rock materials and evidence of further
spalling on the mine floor, and he speculated that this was the
result of some movement or shifting of the roof. He believed
that a roof fall was possible anytime deteriorated roof conditions are present, and he agreed with the inspector that a roof
fall would likely occur at an intersection because it is the
weakest part of the entry.
The inspector's observations with respect to the roof conditions are also corroborated by the respondent's safety assistant
Dave Stout. Although he characterized the crack in the roof as a
"ripper," Mr. Stout confirmed that this condition is the result
of roof spalls due to the shifting of the laminated roof shell

1726

which causes it·to break and "spall out." Mr. Stout stated that
the roof was broken, that rocks had fallen from between the
bolts, and he observed loose rocks within the immediate "ripper"
shell, and "big pieces of flat shale or slate" on the floor.
Although Mr. Stout stated that the roof on either side of the
ripper was intact and unbroken, and shift foreman Bevilock, who
went to the area after the order was issued, stated that he
sounded the roof on both sides of the ripper, he did not sound or
otherwise test the roof area which was cracked and broken,
although it was customary to do so.
Mine Supervisor Metz, who never viewed the conditions,
confirmed that the mine roof top is so unpredictable, that rocks
falling from the roof top are not uncommon occurrences {Tr. 163).
He also characterized a "ripper" as "some type of movement in the
bolt or in the top," and stated that the roof bolt itself does
not move unless the top moves {Tr. 147-148).
Foreman Bevilock, who viewed the conditions for the first
time after the order was issued, did not consider the roof to be
hazardous because "it wasn't a place that was working at the
time" {Tr. 137). He described the term "working" as movement
within the roof, and he had no idea when the roof had "last
worked" or when it would next "work." He did not consider the
rocks which had fallen to be a "major fall," and although he
confirmed that small pieces of rock falling or breaking off from
the top of the roof is an indication of "falling materials," he
did not observe any materials falling while he was there.
In my
view, the fact that Mr. Bevilock did not actually observe rocks
falling from the roof area at the precise moment he was there is
immaterial to any determination as to whether the roof had deteriorated to the point where it was not safe and posed a reasonable potential for additional "working'' and fall of additional
rock materials.
I venture a guess that if Mr. Bevilock had
observed rocks falling from the roof while he was there with the
inspector, they would have beat a hasty retreat from the area,
and the inspector would have issued an imminent danger order.
Section 75.1704 contains two basic requirements with respect
to escapeways. The first requirement is that an escapeway be
maintained to insure passage of miners at all times.
The evidence in this case reflects that the escapeway was passable and
could be travelled, and that there were no physical obstructions
to prevent miners from using it in an emergency. The rock materials which had fallen from the roof did not block the escapeway,
and the inspector confirmed that this would not have impeded
travel.
The second requirement found in section 75.1704 is that
escapeways be maintained in a safe condition. While it is true
that the area was not dangered off, and the witnesses all indicated that they did not believe their safety was in jeopardy

1727

while they were in the area during the inspection, the fact
remains that the roof was deteriorating and was apparently shifting and taking weight, resulting in spalling and the breaking of
rocks from around the roof bolts and plates. The roof also
contained a "ripper" or crack which had not been tested or otherwise supported with timbers, and the credible testimony of the
fire boss Pastorial establishes that additional rocks had fallen,
and that the roof had deteriorated further from the time he first
noted it and the time of the inspection. Under all of these
circumstances, and given the existing roof conditions found by
the inspector at the time of his inspection, I conclude and find
that the roof area at the cited Station No. 17845, was not maintained in a safe condition as required by section 75.1704.
I
further conclude and find that a violation of this standard has
been established by a preponderance of the credible testimony and
evidence, and the inspector's finding in this regard IS AFFIRMED.
Significant and Substantial Violations
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum the Secretary of Labor must
prove:
(1) the underlying violation of a mandetory
safety standard; (2) a discrete safety hazard--that is,
a measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
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

1728

is an injury." U.S. 'Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized.that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
The respondent argues that the violation was not significant
and substantial, and in support of this conclusion it cites the
testimony of the witnesses who were of the opinion that their
safety was not in danger in the roof area in question.
It also
cites the testimony of fire boss Pastorial who indicated that
while it was possible, he did not feel that it was particularly
likely that he could have been injured, and his testimony that he
saw no reason for closing the area and only put the tag up to
caution people to be careful, but would have closed the area if
it were "a more dangerous situation." Respondent also cited the
fact that the weekly examination books did not indicate that the
roof condition had gotten progressively worse, and the testimony
by the section foreman and Mr. Pastorial that the roof was not
"popping or cracking," thus indicating that the condition did. not
pose an immediate danger.
The respondent discounts the inspector's testimony that he
considered the violation to be significant and substantial
because a fire boss could be hit by pieces of spalling rock while
he walked in the area, and takes the position that such an occurrence was not reasonably likely because the weekly mine examiner,
the only person who would have travelled the area, other than an
inspector, was aware of the condition and would only be in the
area "a few seconds a week." With regard to any miners using the
escapeway in the unlikely event of a mine disaster, respondent
asserts that they only would have been in the roof area "for less
than a minute."
With regard to Mr. Pastorial's testimony, while it is true
that he did not believe he was exposed to a roof fall hazard, his
testimony was qualified and must be considered in context. His
belief that he was not exposed to any hazard was based on the
fact that rock had already fallen, that the roof was not "working" when he passed under it for a few seconds, and that the roof
had not fallen on him. He went on to state that "it could have
fell on me," and the fact that it did not "doesn't mean that it

1729

couldn't have fell in between the time I did the examination and
the next week" (Tr. 103). As for the inspector's testimony that
a weekly examiner would have been aware of the condition, he
further explained that notwithstanding this fact, a hazard
exposure still existed "anytime you travel through" the area, and
that the section work crew consisting of approximately 10 miners
would be exposed to the hazard in the event they had to use the
escapeway in an emergency (Tr. 54).
The Commission has taken note of the fact that mine roofs
are inherently dangerous and that even good roof can fall without
warning. Consolidation Coal Company, 6 FMSHRC 34, 37 (January
1984).
It has also stressed the fact that roof falls remain the
leading cause of death in underground mines, Eastover Mining Co.,
4 FMSHRC 1207, 1211 & n. 8 (July 1982); Halfway Incorporated,
8 FMSHRC 8, 13 (January 1986); Consolidation Coal Company, supra.
In the Consolidation Coal Company case, supra, the
Commission affirmed my "S&S" finding concerning an over-wide roof
bolting pattern which had existed along a supply track for a
period of 6-months, and stated that "[T]he fact that no one was
injured during that period does not ipso facto establish that
there was not a reasonable likelihood of a roof fall."
In U.S. Steel Mining Company, Inc., 6 FMSHRC 1369, 1376 (May
1984), Judge Melick found that a hazardous roof condition was
significant and substantial notwithstanding testimony from a mine
foreman that it was unlikely that the roof would fall "right
away," and his belief that the condition was not unsafe because
he and the inspector were under the roof while taking certain
measurements.
In RB J Coal Company, Inc., 8 FMSHRC 819, 820
(May 1986), Judge Melick cited Mathies Coal Company, 6 FMSHRC 1
(1984), in support of his finding that a hazardous roof condition
constituted a significant and substantial violation even in the
absence of an "immediate hazard."
In Halfway Incorporated, supra, the Commission upheld a
significant and substantial finding concerning a roof area which
had not been supported with supplemental support, and ruled that
a reasonable likelihood of injury existed despite the fact that
miners were not directly exposed to the hazard at the precise
moment of the inspection.
In that case, the Commission stated as
follows at 8 FMSHRC 12:
[T]he fact that a miner may not be directly exposed to
a safety hazard at the precise moment that an inspector
issues a citation is not determinative of whether a
reasonable likelihood for injury existed. The operative time frame for making that determination must take
into account not only the pendency of the violative
condition prior to the citation, but also continued

1730

normal mining operations.
National Gypsum, supra,
3 FMSHRC at 825; U.S. Steel Mining Co., Inc., 6 FMSHRC
1573, 1574 (July 1984).
In the instant case, although Mr. Pastorial indicated that
he was concerned that a roof fall may have impeded the exit of
miners down the escapeway, and that roof falls have occurred on
three or four occasions in escapeways resulting in the restriction of the escapeway, he was also aware of prior instances where
miners have been injured by rocks falling from the roof.
He also
believed that since the intersection is the weakest part of the
entry, any roof fall would likely occur at such a location.
Inspector Bowers testified that it was reasonably likely
that anyone struck by a piece of spalling or falling rock would
suffer serious injures, and that during his experience as an
inspector, he was aware of serious injuries and death resulting
from people being struck by falling rocks.
In making his significant and substantial finding, he confirmed that he considered
the fact that the roof had deteriorated, and that it was loose,
broken, and spalling. He also considered the fact that the cited
roof area was located next to an intersection which was larger
than the entry, and where the roof would be weaker, and the fact
that the existence of the deteriorating roof conditions during
the time period prior to his inspection increased the likelihood
of further deterioration and worsening of the condition (Tr. 51).
As noted earlier, mine supervisor Metz confirmed that the mine
roof top is so unpredictable that rocks falling from the top are
not uncommon occurrences, and that the existence of a roof
"ripper" indicates that there is some type of movement in the
roof bolt or the top.
After careful consideration of all of the testimony and
evidence adduced in this case, I agree with the inspector's
significant and substantial finding.
I conclude and find that
the cited roof conditions, which clearly establish that the roof
was deteriorating to the point where rocks had spalled or fallen
from between the existing roof supports and/or from the "ripper"
or crack which extended across the entry at the intersection in
question, posed a discrete roof or rock fall hazard.
I further
conclude and find that the hazard contributed to by this hazardous roof condition would likely result in an injury, and that
anyone struck by rock falling from the roof for an approximate
distance of 6 to 6-1/2 feet, which was the approximate height of
the roof area in question, would likely suffer injuries of a
reasonably serious nature. Accordingly, the inspector's significant and substantial finding with respect to the violation in
question IS AFFIRMED.

1731

The Unwarrantable Failure Issue
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows at
295-96:
In light of the foregoing, we hold that an inspector should find that a violation of any mandatory
standard was caused by an unwarrantable failure to
comply with such standard if he determines that the
operator involved has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have known
existed or which it failed to abate because of a lack
of due diligence, or because of indifference or lack of
reasonable care.
In several recent decisions concerning the interpretation
and application of the term "unwarrantable failure," the
Commission further refined and explained this term, and concluded
that it means "aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of
the Act." Energy Mining Corporation, 9 FMSHRC 1997 (December
1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December
1987); Secretary of Labor v. Rushton Mining Company, 10 FMSHRC
249 (March 1988). Referring to its prior holding in the Emery
Mining case, the Commission stated as follows in Youghiogheny &
Ohio, at 9 FMSHRC 2010:
We stated that whereas negligence is conduct that
is "inadvertent," "thoughtless" or "inattentive,"
unwarrantable conduct is conduct that is described as
"not justifiable" or "inexcusable." Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more that ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the Act's enforcement scheme.
In Emery Mining, the Commission explained the meaning of the
phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:
We first determine the ordinary meaning of the
phrase "unwarrantable failure."
"Unwarrantable" is
defined as "not justifiable" or "inexcusable."
"Failure" is defined as "neglect of an assigned,
expected, or appropriate action." Webster's Third New
International Dictionary (Unabridged) 2514, 814 (1971)
("Webster's"). Comparatively, negligence is the
failure to use such care as a reasonably prudent and
careful person would use and is characterized by
"inadvertence," "thoughtlessness," and "inattention."

1732

Black's Law Dictionary 930-31 (5th ed. 1979). Conduct
that is not justifiable and inexcusable is the result
of more than inadvertence, thoughtlessness, or
inattention. * * *
The issue here is whether or not the respondent's failure to
address the roof conditions in the cited escapeway location
constituted aggravated conduct exceeding ordinary negligence.
Inspector Bowers made a finding that the violation was the result
of "high negligence," but did not result from any "deliberate
activity" by the respondent. He confirmed that he based his
negligence finding on the fact that the roof condition had been
noted in the weekly examination books which are required to be
read and signed by the mine foreman and superintendent. He also
confirmed that his unwarrantable failure order was consistent
with MSHA's recently published guidelines which became effective
on July 1, 1988, after the order was issued. These guidelines
are found in MSHA Program Policy Manual, Volume I, Section 104,
pg. 6, (exhibit G-7), which state in relevant part as follows:

*

*

*

*

*

*

*

Factors to look for when making an unwarrantablefail ure-to-comply determination include the amount of
time the violation has been left uncorrected, whether
the hazard created by the violation is particularly
serious thus warranting increased attention from the
operator to prevent or correct it, whether the violation is repetitious of a previous violation, whether
the violation was a result of deliberate activity by
the operator, or whether the operator knew or had
reason to know that its action(s) violated a mandatory
standard. Citations and orders should clearly document
the facts relied upon by the inspector in making the
determination. Any one of the circumstances above may
constitute sufficient grounds for an unwarrantable
failure citation or order.
Mr. Bowers reviewed the aforementioned "factors" which he
believed justified the unwarrantable failure order. Since the
condition had existed and had been noted in the examination books
for over a month from December 2, 1987, to January 6, 1988, he
believed that the respondent had more than enough time to take
corrective action, and he noted that abatement was achieved
within one-half hour to an hour after the available timbers were
brought to the area (Tr. 47).
Mr. Bowers stated that he also considered the fact that a
roof fall could have occurred during the intervals in the weekly
examinations, and in the event of such a fall, it could have
impeded travel through the entry, and that it was possible that
anyone walking through the area could be struck by a spalling

1733

rock and suffer injuries ~Tr. 47). He also considered the fact
that the violation was repetitious, and he explained that he had
previously issued several violations and orders at the mine
because of uncorrected conditions which had been noted in the
mine examination books. He was not certain that any of these
prior citations or orders related to intake escapeways, but did
recall that some of them were issued for uncorrected conditions
in the track, return entries, and other different areas of the
mine (Tr. 47-48).
Mr. Bowers concluded that the respondent "knew or should
have known that its actions violated a mandatory standard"
because the roof condition had been reported in the mine examination books which are required to be read and signed by the mine
foreman or superintendent (Tr. 49). He confirmed that while he
could have issued a section 104(a) citation, and allowed the
respondent at least 1 day to correct the conditions, he did not
do so because the condition had been noted in the books and the
respondent knew about it. He did not believe that the condition
constituted an imminent danger because "I didn't feel that it was
imminent at the time that I seen it" (Tr. 49). When asked
whether or not the respondent "knew or could have known that the
condition posed a hazard or presented a dangerous condition,
Mr. Bowers responded "That I don't know whether they would or
not" (Tr. 52).
Fire boss Pastorial testified that his usual practice after
observing further deterioration in a roof area which he had
previously noted in the examination books as requiring additional
support is to speak with the mine foreman and superintendent and
ask them to take care of the matter, or write a note to Metz (Tr.
102, 108). Mr. Pastorial could not recall that he did this and I
find no credible evidence to support any conclusion that he
personally contacted mine management and apprised them of the
fact that the roof area which he had previously tagged and
observed had deteriorated further.
In hindsight, Mr. Pastorial
commented that "when it went over a week or two weeks, I should
have contacted MSHA and told them that I have a place that needs
timbered and I can't get management to timber it and I didn't do
that" (Tr. 117).
Mr. Pastorial confirmed that it was not his usual practice
to describe the specific roof conditions requiring additional
support when he makes such an examination book entry because he
assumes that mine management understands the meaning of a notation "needs additional roof support." He explained that he and
superintendent Metz generally discuss the logistical arrangements
and roof support materials required to correct such a recorded
roof condition, but he could not document that this was done in
this case (Tr. 165). He stated further that "If I indicate in
that book that it needs additional roof support, then the top is
bad. Why would I put in there that it needs additional roof

1734

support if the top wasn't bad? To me that means the same thing"
(Tr. 166). When asked whether he disagreed with Mr. Metz' conclusion that an examination book entry "can be traveled" means
that "it is safe to travel," Mr. Pastorial responded "No. If
that's the way he feels and that's how he understands, that's his
opinion and I can't disagree with that" (Tr. 166).
Mine Supervisor Metz confirmed that he did not view the roof
conditions at the time the order was issued, and he could not
recall being in the area prior to the inspection. He also could
not recall whether anyone specifically told him that the area was
not safe to travel, or whether he ever personally discussed the
condition with Mr. Pastorial. Mr. Metz was of the opinion that
the phrase "can be traveled," which appeared as notations by the
fire bosses in the mine examination books, meant that there was
nothing to prevent anyone from travelling the escapeway, and he
assumed that the phrase also meant "safe to travel." In commenting on the notations made by three fire bosses in the examination
books that the cited location required additional roof support,
Mr. Metz alluded to the many entries in the mine and the fact
that he reviews many such notations on a day-to-day basis. He
conceded, however, that a notation "needs additional roof
support" would indicate to him "that there was something there
that needs some attention." He explained that given the priorities dictated by notations in the 28 to 30 examination books
which he must sign, corrective action to provide the additional
roof support would be taken "as fast as possible," taking into
account "other priorities" and his mining experience. He
candidly conceded that he does not always make the right decision
in addressing such matters.
When asked about any affirmative steps he would normally
take in response to an examination book entry that a roof area
"needs additional roof support," Mr. Metz stated that he has had
occasion to speak with Mr. Pastorial in such instances in order
to seek clarification or to determine whether the condition
needed to be addressed immediately, or whether it could "wait a
week or ten days," but he could not recall doing that in this
case (Tr. 163). Mr. Metz confirmed that as a norma~ practice,
the entries made in the mine examination books by Mr. Pastorial
and the other fire bosses with respect to any mine conditions
only relate to conditions that they view as necessary to be taken
care of, or conditions which they know are violations, or may
present potential problems, and that as a general rule, they do
not make entries which do not fall within these categories (Tr.
150-151) .
Mr. Metz conceded that he was familiar with mandatory standard 30 C.F.R. § 75.323, which requires that any hazardous conditions noted in the daily and weekly mine examination books be
corrected promptly. The respondent's defense to the unwarrantable failure order is based on its assertion that Mr. Metz had no

1735

reason to believe that the "needs additional roof support" notations made by the fire bosses in the examination books indicated
a hazardous roof condition requiring immediate attention, and
that based on the fact that all of the witnesses agreed that the
notations "can be traveled" were unclear, it was not unreasonable
for Mr. Metz to believe or conclude that the escapeway was safe
to travel, and that the roof area in question was not hazardous,
and did not require further immediate attention.
Copies of the mine examination books concerning the escapeway examinations conducted by three different fire bosses during
the period December 2, 1987, to January 4, 1988, contain notations that additional roof support was required at the North
Mains butts intake escapeway Station No. 17845, the identical
location cited by the inspector in the contested order. The
first notation was made by Mr. Pastorial on December 2, 1987, and
subsequent identical notations were made by fire bosses Latocha
and Eddy on December 8, 20, and 28, 1987, and January 4, 1988.
All of the examination book pages on which these entries appear
are signed by Mr. Metz. Mr. Metz confirmed that he is required
to read or review all of these records, and he confirmed that he
signed each of the pages in question. When asked whether he
reviewed the specific pages in question, Mr. Metz responded that
he was required to "read and countersign all books" (Tr. 145).
Although he alluded to the fact that he is required to review
approximately 180 examination book entries each day, I nonetheless conclude that Mr. Metz had actual or constructive notice of
the conditions noted in the books by the fire bosses.
I also
find and conclude that from December 2, 1987, the day the roof
condition was initially noted and tagged by Mr. Pastorial, until
January 8, 1988, the day the order was issued, Mr. Metz was aware
of the fact that the cited roof area was in need of additional
roof support.
With regard to the hazardous nature of the cited roof area,
I have concluded and found that the conditions were unsafe, and
that the violation was significant and substantial.
I take
particular note of the fact that Mr. Metz' opinions and conclusions concerning the hazardous nature of the roof area in question were based on his after-the-fact evaluations of the terms
"needs additional roof support" and "can be traveled" as they
appear in the examination books. Mr. Metz confirmed that he did
not observe the conditions at the time the order was issued, and
he had no recollection that he visited the area or viewed the
conditions at any time prior to the issuance of the order.
Although Mr. Metz indicated that he had 19 years of underground
mining experience, he conceded that he does not always make the
right decision, and since he did not view the roof conditions in
question, I have serious doubts that he had any factual basis for
making any informed judgement decision as to the actual hazards
presented by the prevailing roof conditions without the benefit
of personally observing the conditions. Under the circumstances,

1736

I have given little weight to his suggestions that the cited roof
conditions were not hazardous.
Although Mr. Metz was of the opinion that roof "rippers" are
nothing "to get overly excited about" because they are common
occurrences in the mine, he nonetheless conceded that such a
condition would indicate to him that the roof required attention,
and that the existence of such a condition indicates some type of
movement of the roof top. Coupled with his admission that the
roof is unpredictable, that rocks falling from the roof are not
uncommon in the mine, and his knowledge that fire bosses normally
do not make examination books entries unless they believe a
violation has occurred, or the condition noted presented a potential problem, I have difficulty comprehending why Mr. Metz failed
to at least visit the roof area in question at some time during
the 30-day period that the condition existed prior to the inspection and issuance of the order, why he failed to take timely
follow-up action to insure that the roof was provided with additional support, or why he failed to timely seek out Mr. Pastorial
to discuss the matter with him.
Although Mr. Metz stated that he would normally take corrective action "as fast as possible" when reviewing examination
books entries which indicate that additional roof support was
required in any area of the mine, he explained that any decision
as to when such action would be taken would be based on "other
priorities." Since he failed to elaborate further, or to explain
what these other priorities may have been, I find nothing that
may serve to mitigate Mr. Metz' failure to address the roof
conditions in a more timely manner.
MSHA's assertions that the violation was repetitious is
unsupported by any credible evidence, and I have given it little
weight. Although the computer print-out detailing the respondent's prior history of violations reflects 55 prior section
104(a) citations for violations of section 75.1704, none of these
violations were unwarrantable failure orders, and since none of
the citations were produced, the facts and circumstances
surrounding these violations were not forthcoming.
With regard
to the inspector's testimony that he had previously issued citations and orders to the respondent for recorded conditions that
had been left uncorrected, no further details were forthcoming
from the inspector, and the facts and circumstances connected
with these allegations are not known.
After careful consideration of all of the testimony and
evidence in this case, I conclude and find that the inspector's
high negligence and unwarrantable failure findings were justified.
I further conclude and find that the passage of 30 days
from the time the roof conditions were initially noted in the
examination book until the order was issued, without any action

1737

whatsoever ·being taken by the respondent to address those· conditions, was an inordinate amount of time, and that Mr. Metz'
failure to act was less than what would reasonably be expected
from a mine supervisor, and that his failure to act was
inexcusable and constituted a lack of due diligence and failure
to take reasonable care. Under the circumstances, the inspector's unwarrantable failure finding IS AFFIRMED, and the contested order IS LIKEWISE AFFIRMED.
Size of Business and Effect of civil Penaltv Assessment on the
Respondent's Ability to Continue in Business
Based on the stipulations by the parties, I conclude and
find that the respondent is a large mine operator and that the
civil penalty assessments for the violations in question will not
adversely affect the respondent's ability to continue in
business.
History of Prior Violations
The respondent's history of prior violations, as reflected
by an MSHA computer print-out, reflects that for the period
January 1, 1986 through December 31, 1988, the respondent paid
$346,794, for 1,592 violations issued at the Martinka No. 1 Mine.
One-Thousand five-hundred and fifty (1,550), of these paid violations were for violations found to be significant and substantial
(S&S), and fifty-five (55) were for violations of mandatory
safety standard 30 C.F.R. § 75.1704. For an operation of its
size, the respondent does not have a very good compliance record,
particularly with respect to the escapeway requirements found in
section 75.1704. Although I have given little weight to these
prior violations for purposes of my unwarrantable failure finding, I have considered them for purposes of the civil penalty
assessment which I have made for the contested violation which
has been affirmed.
Good Faith Compliance
The parties have stipulated that the violation was abated in
good faith by the respondent, and I conclude and find that the
respondent timely abated the violation in good faith after
receiving notice of the violation.
Negligence
On the basis of my unwarrantable failure findings and conclusions, which are herein incorporated by reference, I conclude
and find that the violation resulted from a high degree of negligence, and an unwarrantable failure by the respondent to comply
with the requirements of the cited standard.

1738

Gravity
In view of my "S&S" findings and conclusions with respect to
the contested order, I conclude and find that the violation was
serious.
Civil Penalty Assessment
On the basis of the foregoing findings and conclusions, and
taking into account the requirements of section llO(i) of the
Act, I conclude and find that a civil penalty assessment in the
amount of $2,000, is reasonable and appropriate for a violation
of mandatory safety standard 30 C.F.R. § 75.1704, as stated in
section 104(d) (2) Order No. 2895499, January 6, 1988.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment
in the amount of $2,000, for the aforemention violation of
30 C.F.R. § 75.1704, and a civil penalty assessment in the amount
of $50, in settlement of the modified section 104(a) Citation
No. 2895079, 30 C.F.R. § 75.1403-9(c), January 6, 1988. Payment
of these civil penalty assessments shall be made to MSHA within
thirty (30) days of the date of this decision and order, and upon
receipt of payment, this proceeding is dismissed.

C!
~/~
~f'ge
/ /?/'J,,£

A. Koutras
Administrative Law Judge

Distribution:
Therese Salus, Esq., Office of the Solicitor, U.S. Department of
Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
David M. Cohen, Esq., American Electric Power Service
Corporation, Southern Ohio Coal Company, P.O. Box 700, Lancaster,
OH 43130-0700 (Certified Mail)
/fb

1739

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

22041

1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRA'rION (MSHA),
ON BEHALF OF RANDY VARNEY,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEVA 89-224-D
Hope CD 89-6

v.
Mine No. 1
ROSE ENERGY, INC.,
REX FOUGHT, ROBERT CURTIS,
Respondents
DECISION APPROVING SETTLEMENT
On August 9, 1989, the Secretary filed a Motion to Approve
Settlement. This Motion indicates that the above matter has been
settled by the Parties.
I have read the Settlement and Release
attached to the Motion, and find it fairly disposes 0£ the issues
herein. Accordingly, the Secretary's Motion is GRANTED.
It is ORDERED that the Parties shall abide by all the terms
of the Settlement Agreement dated July 26, 1989, and attached to
the Secretary's Motion To Approve Settlement.
It is further
ORDERED that the above case be DISMISSED with prejudice.

Distribution:
Robert S. Wilson, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA
22203
(Certified Mail)
Rose Energy, Inc., Route 6, Box 1797, Williamson, WV
(Cect.i.fied Mail)
Mr. Rex Fought, Route 6, Box 1797, Williamson, WV
Mr. Robert Curtis, Box 334, Switzer, WV

/ml

1740

25647

25661

25661

(Certified Mail)

(Certified !'1ail)

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

22041

SEP 11 i989
DISCRIMINATION PROCEEDINGS

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
RUSSELL RATLIFF, and
KENNETH MULLINS,
Complainants

Docket No. KENT 89-99-D
MSHA Case No. PIKE CD 89-03
Docket No. KENT 89-107-D
MSHA Case No. PIKE CD 89-03
MSHA Case No. PIKE CD 89-05

v.
INFERNO COALS, INC.,
Respondent

No. H-8 Mine

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 89-200
A.C. No. 15-11529-03521

v.
Mine H-8
INFERNO COALS INC.,
Respondent
DECISIONS APPROVING SETTLEMENTS
Before:

Judge Koutras
statement of the Proceedings

These consolidated proceedings concern a complaint of
alleged discrimination filed by MSHA on behalf of the complainants against the respondent pursuant to section 105(c) of the
Federal Mine Safety and Health Act of 1977. The complaint
alleged that the respondent discharged miners Russell Ratliff and
Kenneth Mullins on or about December 22, 1988, for voicing their
safety concerns to their supervisor about working alone on their
roof-bolting machines under what they regarded as unstable roof
conditions. MSHA subsequently amended its discrimination complaint to include a request for an assessment of a civil penalty
in the amount of $1,800, for an alleged violation of section
105(c) in connection with the alleged discriminatory discharge of
both complaining miners, and it also filed the captioned civil

1741

penalty proceeding seeking a civil penalty assessment in the
amount of $500, for the respondent's alleged discharge of·
Mr. Ratliff subsequent to his reinstatement in compliance with an
Order of Temporary Reinstatement which I issued on April 4, 1989
(Docket No. KENT 89-99-D).
The respondent filed timely answers denying any discriminatory actions on its part, and the cases were consolidated for
hearing in Pikeville, Kentucky. The hearing was subsequently
continued due .to a medical emergency of one of the parties, and
it was rescheduled for September 11-14, 1989. However, on
September 5, 1989, counsel for the parties advised me that they
agreed to settle the dispute, and on September 7, 1989, they
filed a joint motion seeking approval of their proposed settlement.
Included in the motion is the settlement agreement entered
into by the parties, and it has been signed and executed by both
counsel, the respondent's president, and both complaining miners.
The relevant terms of the settlement are as follows:
1. Inferno agrees to pay Mullins the sum of five
thousand dollars ($5,000.00) which sum represents
payment of all claims, including lost wages in the
amount of $4,840.00, employee benefits, and medical
expenses. By accepting $5,000.00, Mullins agrees that
Inferno will not have to offer reinstatement to him.
2.
Inferno agrees to pay Ratliff the sum of
ten thousand dollars ($10,000.00) which sum represents
payment of all claims, including lost wages in the
amount of $5,720.00, employee benefits, and medical
expenses.
By accepting $10,000.00, Ratliff agrees that
Inferno will not have to offer reinstatement to him.
3. The records maintained by Inferno in Mullins'
and Ratliff's personnel and company files shall be
completely expunged of all information relating to the
matters being litigated herein.
4.
In the event that Inferno is contacted by a
prospective employer of either Mullins or Ratliff at
any time in the future, Inferno, its owners, officers,
agents, and those acting in concert with them shall not
give Mullins or Ratliff a negative or unfavorable
reference regarding their job performance while
employed by Inferno. When contacted by a prospective
employer of either Mullins or Ratliff, Inferno, its
owners, officers and agents, and those acting in
concert with them shall give such prospective employer
only their job title(s) and dates of employment.
5.
Inferno will provide signed letters on its
corporate stationery to Ratliff and Mullins which shall

1742

state the dates of each miner's employment, the jobs
performed for Inferno, the training each received, and
that they had no unauthorized absences from work. The
letters will state further that Ratliff was laid off as
part of a general workforce layoff which was necessitated by adverse economic conditions. This general
workforce layoff was necessitated by economic factors
affecting this mine. Further, the letter for Mullins
will state that he left the employment of Inferno when
he found other employment.
6.
Inferno will not be required to offer employment and/or reinstatement to either Mullins or Ratliff
at any time in the future.
7.
In light of the difficulties and contingencies
necessarily attendant to the litigation of the subject
cases, the signatories to this Motion agree that the
proposed settlement of this case is appropriate and
fair under the circumstances.
8. By entering into this agreement, Inferno does
not admit that Inferno violated Section 105(c) of the
Act or violated the Temporary Reinstatement Order
issued on April 4, 1989, or any other provision of the
Act.
9.
It is the parties' belief that approval of
this settlement is in the public's interest and will
further the intent and purpose of the Federal Mine
Safety and Health Act of 1977.
With regard to the proposed settlement of the civil penalty
case, including MSHA's civil penalty proposal filed as part of
its amended discrimination complaint, MSHA's counsel has provided
information concerning the six statutory civil penalty criteria
found in section llO(i) of the Act, and a discussion and disclosure as to the circumstances on which its civil penalty
assessment proposals are based. ·
I take note of the fact that the respondent disputed the
allegation that it had discharged the miners in violation of the
Act, and took the position that the complaining miners voluntarily left their jobs. With regard to the alleged failure by
the respondent to comply with my reinstatement order concerning
Mr. Ratliff, I take note of the fact that the inspector issued
the citation on April 26, 1989, upon instructions by his supervisor after apparently receiving information that Mr. Ratliff had
again been discharged on April 25, 1989. The information provided by the parties as part of their motion reflects that the
mine superintendent advised the inspector that Mr. Ratliff had

1743

not been discharged, and that he had quit his job on April 25,
1989, returned to work the next day, April 26, 1988, and voluntarily left the mine again that day. On April 27, 1989, during
the course of a regular inspection of the mine, the inspector
observed that Mr. Ratliff was again at work underground, and he
terminated the citation which he had issued the day before.
Included with the proposed settlement disposition of the
discrimination complaint is a proposed settlement of the civil
penalty assessment initially filed and proposed by MSHA for the
alleged violation of section 105(c) of the Act, and the alleged
violation by the respondent for allegedly discharging Mr. Ratliff
following his reinstatement in compliance with my reinstatement
order. The respondent has agreed to pay a civil penalty assessment of $100 in settlement of the former alleged violation, and a
civil penalty assessment of $50 for the latter alleged violation.
Conclusion
After careful consideration of the settlement terms and
conditions executed by the parties and the complaining miners in
this proceeding, I conclude and find that it is a reasonable
resolution of the complaint filed by MSHA on behalf of the
miners.
It seems clear to me that all parties are in accord with
the agreed upon settlement disposition of the dispute, and I see
no reason why it should not be approved. With regard to the
proposed settlement of the civil penalty proceeding, I conclude
and find that it is reasonable and in the public interest, and I
find ~o reason for not approving it.
ORDER
The joint motion IS GRANTED, and the proposed settlements
ARE APPROVED.
The respondent IS ORDERED to fully comply forthwith with the terms of the settlement, and it is expected to
immediately pay to Mr. Mullins and Mr. Ratliff the agreed upon
monetary settlements of their claims. The respondent IS FURTHER
ORDERED to pay to MSHA civil penalty assessments in the amount of
$150 in satisfaction of the alleged violations in question, and
payment of the penalties is to be made within thirty (30) days of
the date of these decisions and order. Upon receipt of payment
by the complaining miners and MSHA, these proceedings are
dismissed.

/

/. _/
.,,,

-

~~

if <.Yf/l,t:<;:;
-

.

/ .· '/l '/-•11.(·
G~orge jlL Koutras

.

/

/,f'

P Admin.:iktrative Law Judge

1744

..V

Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
Charles J. Baird, Esq., Baird and Baird, P.S.C., 415 Second
Street, P.O. Box 351, Pikeville, KY 41501 (Certified Mail)
Bernard F. Burdzinski II, Burdzinski and Burdzinski, 368 Nutt
Road, Spring Valley, OH 45370 (Certified Mail)
/fb

1745

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

SEP 111989
. DISCRIMINATION PROCEEDING
SECRETARY OF LABOR, MSHA,
.
on behalf of
EUGENE McCARIO,
Complainants

Docket No. LAKE 89-62-DM

v.

MD 88-08

THREE STAR DRILLING &
PRODUCTION CORPORATION,
Respondent

.

D.A.D. Well No. l

DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

The parties have moved for approval of a settlement
agreement and dismissal of this case. I have considered the
representations and documentation submitted and I conclude
that the proffered settlement is consistent with the purposes
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seg.
ORDER
WHEREFORE IT IS ORDERED that the motion for approval of
settlement is GRANTED and this proceeding is DISMISSED.

'!JJU....:.
--::r~"~
William Fauver
Administrative Law Judge
Distribution Certified Mail:
Rafael Alvarez, Office of the Solicitor, U. S. Department of
Labor, 230 South Dearborn Street, Chicago, IL 60604
(Certified Mail)
James B. Wham, Esq., Wham & Wham, 212 East Broadway, P.O. Box
549, Centralia, IL 62801 (Certified Mail)
iz

1746

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

22041

SEP 12 1989
CIVIL PENALTY PROCEEDINGS

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

Docket No. SE 89-12
A.C. No. 01-01247-03817
Docket No. SE 89-32
A.C. No. 01-01247-03828

JIM WALTER RESOURCES,
INCORPORATED,
Respondent

No. 4 Mine
DECISION

Appearances:

Before:

William Lawson, Esq., Office of the Solicitor, U.S.
Department of Labor, Birmingham, Alabama, for
Petitioner;
Harold D. Rice, Esq., Robert Stanley Morrow, Esq.,
Jim Walter Resources, Inc., Birmingham, Alabama,
for Respondent.

Judge Maurer

These cases are before me upon petitions for assessment of
civil penalty under Section 104{d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801, et~., {the Act).
Pursuant to notice, a hearing was held in Birmingham,
Alabama, on May 9, 1989. Prior to the commencement of testimony
at the hearing, the parties advised me that they had a proposed
settlement of one of the three citations at issue. Citation No.
9984577 was originally assessed at $241 for a violation of
30 C.F.R. § 70.lOO{a). A reduction in penalty to $50 is proposed
for that respirable dust violation because further investigation
revealed that the exposed employees were wearing personal
protective equipment {respirators). In light of that additional
information, MSHA agreed to delete the significant and
substantial CS&S) characterization of the violation. I have
considered the representations submitted by motion on the record
in this case, and have concluded that the proffered settlement is
appropriate under the statutory criteria set forth in Section
llO(i) of the Act. I so approved the petitioner's motion from
the bench at the hearing. Pursuant to the Rules of Practice
before this Commission, this written decision confirms the bench
decision 1 rendered at the hearing, approving the partial
settlement of this case.

1747

The aforementioned partial settlement did not include
Citation Nos. 3010179 or 3187766 which both allege identical
violations of 30 C.F.R. § 75.1718 and propose a civil penalty of
$20 each. Two different inspectors issued the above two
citations, and in order to avoid having to call the second
inspector to testify to essentially an identical fact situation,
the parties agreed to actually try only Citation No. 3010179.
They agreed that whatever that outcome should be, would also
control the result concerning Citation No. 3187766.
STIPULATIONS
The parties stipulated to the following, which I accepted
(Tr. 19-20):
1. Jim Walter
the subject mine.

~esources,

Inc. is the owner and operator of

2. The operator and the mine are subject to the
jurisdiction of the Federal Mine Safety and Health Act of 1977.
3. The Administrative Law Judge has jurisdiction to hear
this case.
4. The Inspector who issued the citation was a duly
authorized representative of the Secretary.
5. A true and correct copy of the subject citation was
properly served upon the operator.
6. The copy of the subject citation is authentic and may be
adinitted into evidence for the purpose of establishing its
issuance, but not for the purpose of establishing truthfulness or
relevance of any statements found therein.
7. Imposition of a penalty will not affect this operator's
ability to continue in business.
8.

The operator's history of prior violations is average.

9.

The operator is large in size.

10.

The operator abated the violation in good faith.
DISCUSSION AND FINDINGS

Citation No. 3010179 sets forth the subject condition as
follows:
Potable drinking water was not provided for the active
No. 2 Longwall Section.

1748

The Citation charges a violation of 30 C.F.R. ·§ 75.1718
which provides:
An adequate supply of potable water shall be provided
for drinking purposes in the active workings of the
mine, and such water shall be carried, stored, and
otherwise protected in sanitary containers.
Mr. David McAteer testified that he is a UMWA safety
committeeman at the No. 4 mine. On the day of the inspection
that culminated in the issuance of the instant citation, he told
Inspector Meredith that they were having problems getting the
company to provide potable water on the sections and asked for
his help.
Inspector Meredith testified that he issued the citation at
bar on August 4, 1988, when he did not find a container of any
kind with potable drinking water on the No. 2 longwall section.
At the time he was outby the section in the area where they keep
the emergency sled, emergency supplies, first aid equipment, and
nor~ally, their potable drinking water.
The inspector further
testified (Tr. 32, 38-9):
I asked Mr. Fillibaum, who is the evening shift
assistant mine foreman at that time, if he knew where
any potable water was, because there wasn't any on the
sled. And Mr. Fillibaum, if I recall, he said, "Well,
you know everybody brings their water." And I says,
"~o, I don't know that, but you're going to have to
provide water here," because this is normally where
they have it, is on the emergency sled.
I asked him where the potable drinking water was they
were supposed to provide and he said, "We don't have
any up here. We'll have to get some sent in from the
outside."
Mr. John Fillibaum testiEied on behalf of the operator. He
stated that in his opinion there was an adequate supply of
potable drinking water on the section, because each miner carries
his own drink of choice.
I find that the preponderance of the evidence demonstrates
that there was not an adequate supply of potable drinking water
on the No. 2 longwall section as charged by the Secretary.
The regulation speaks of an "adequate" supply of drinking
water. This incorporates a requirement that the water be readily
available to the miners and I believe that the regulation also
contemplates that the water be provided by the operator. It is
not sufficient compliance to shift this regulatory burden to the
individual miner to furnish his own water, even if, as a
practical matter, most miners do furnish their own personal
drinks.

1749

On this basis, I conclude that a violation existed, and I
have considered the statutory criteria set forth in Section
llOCi) of the Act for determining the appropriate penalty for
this violation. Under the facts and circumstances present in
this record, I find that the $20 penalty proposed by the
Secretary is the appropriate penalty for the viol3tion.
By
agreement of the parties, I make the same findings with regard to
Citation No. 3187766.
ORDER
Accordingly, it is ORDERED that Citation ~os. 9984577,
3010179 and 3187766 are AFFIRMED. ~he allegation in Citation
~o. 9984577 that the violation was significant ana substantial is
stricken.
It is further ORDERED that the following civil penalties are
assessed:
Citation No.

Penalty

9984577
3010179
3187766

$50
$20
$20

It is further ORDERED that the operator pay $90 within 30
days from the date of this decision as civil penalties for the
violations found herein.

Distribution:
William Lawson, Esq., U.S. Department of Labor, Office of the
Solicitor, Suite 201, 2015 Second Avenue North, Birmingham,
~L 35203
(Certified Mail)
Barold D. Rice, Esq., Robert Stanley Morrow, Esq., Jim Walter
Resources, Inc., Post Office Box 830079, Birmingham, AL
35283-0079
(Certified Mail)
/ml

1750

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

GARY ·rHOMPSON,

22041

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. KENT 88-162-D
MADI CD 88-05

ISLAND CREEK COAL COMPANY,
Respondent

No. 11 Mine
DECISION

Before:

Judge Maurer

On February 11, 1988, the Complainant, Gary Thompson, filed
a complaint of discrimination under section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~·
(hereinafcer referred to as the "Act") with the Secretary of
Labor, Mine Safety and Health Administration (MSHA) against the
Island Creek Coal Company.
That complaint was denied by MSHA and
Mr. ·rhompson thereafter filed a complaint of discr imina ti on wi t~1
the Commission on his own behalf under section 105(c)(3) 0£ the
Act. Mr. Thompson alleges that he was discriminated against in
violation of section 105(c) of the Act because he was discharged
on February 8, 1988, by Island Creek Coal Company for failing to
report to work on February 3, 1988 and later submitting an
admittedly invalid doctor's excuse for his absence. He had been
working up until that time under the terms of a Last Chance
Agreement because of excessive absenteeism. Mr. Thompson admits
that he was actually absent on February 3, 1988 due to a personal
bankruptcy proceeding, but asserts that another employee used on
invalid doctor's excuse but was not fired.
Island Creek Coal Company, by counsel, has moved to dismiss
the subject. complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure for failure to state a claim upon which
relief can be granted under section 105(c) of the Act. On
August 14, 1989, an ORDER TO SHOW CAUSE was issued by the
und2rsigned wherein the complainant. was ordered. to show cause
within fifteen (15) days as to why this proceeding should not be
dismissed for "failure to state a claim for which relief can be
granted under section 105(c)(l) of the Act." There has been no
response received to date.
For the purposes of ruling on Island Creek Coal Company's
motion to dismiss, the well pleaded material allegations of the
complaint are taken as admit.ted.
2A Moore's Federal Practice

1751

~12.08.

A complaint should not be dismissed for insufficiency
unless it appears to a certainty that the complainant is entitled
to no relief under any state of facts which could be proved in
support of a claim. Pleadings are, moreover, to be liberally
construed and mere vagueness or lack 0£ detail is not grounds for
a motion to dismiss. Id.
Section 105(c}(l) of the Act provides as follows:
No person shall discharge or in any manner
discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner,
representative of miners or applicant for employment in
any coal or other mine subject to this Act because such
miner, representative of miners or applicant for
employment has filed or made a complaint under or
related to this Act, including a complaint notifying
the operator or the operator's agent, or the
representative of the miners at the coal or other mine
of an alleged danger or safety or health violation in a
coal or other mine or because such miner,
representative of miners or applicant for employment is
the subject of medical evaluations and potential
transfer under a standard published pursuant to
3ection 101 or because such representative of miners or
applicant for employment has instituted or caused to be
instituted any proceedings under or related to this Act
or has testified or is about to testify in any such
proceeding, or because of the exercise oy such miner,
representative of miners or applicant for employment on
behalf of himself or others of any statutory right
afforded by this Act.
In order to establish a prima facie violation of
section 105(c)(l) the complainant must prove that he engaged in
an activity protected by that section and that his discharge was
motivated in any part by that protected activity. Secretary ex.
rel. David Fasula v. Consolidation Coal Company, 2 FMSHRC 2786
(1980) rev'd on other grounds sub nom, Consolidation Coal Company
v. Secretary, 633 F 2d. i211(3rd Cir. 1981). In this case,
Mr. Thompson asserts t~at he was discharged for using an invalid
doctor's excuse to cover up an absence from work while another
person was known by management to have done the same thing and
was not discharged. Assuming that this allegation is true, it is
clearly not sucficient to create a claim under section 105{c)(l)
of the Act. That section does not provide a remedy for what the
complainant perceives to be "discrimination" but what is in
reality, at best, untairnes~ or inequitable treatment; it that
conauct on the part oi the operator was not caused in any part by

1752

an activity protected by the Act. Violating the operator's
personnel regulations is not activity protected by the Act.
Therefore, I find that the complaint herein fails to state a
claim for which relief can be granted under section 105(c)(l) of
the Act, and this case is therefore dismissed.

Distribution:
Mr. Gary Thompson, Route 2, Box 253, Madisonville, KY
(Certified Mail)

42431

Stephen X. Munger, Esq., Jackson, Lewis, Schnitzler & Krupman,
2400 Preachtree Center, Harris Tower, 233 Peachtree Street, N.E.,
Atlanta, GA 30303-1509 (Certified Mail)
/ml

1753

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

Sf P 13 i989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 89-22-M
A.C. No. 04-03008-05515

v •.

Oro Grande

VINNELL MINING AND MINERALS
CORPORATION,
Respondent
DECISION
Appearances:

Dane C. Dauphine, Esq., Office of the Solicitor,

u.s. Department of Labor, Los Angeles, California,
for Petitioner;
D. McRae, General Manager, Vinnell Mining &
Minerals Corporation, El Monte, California,
pro se.

Before:

Judge Lasher

Subsequent to hearing the parties reached an amicable
resolution of all matters in dispute.
Upon Petitioner's motion for approval of a proposed settlement of the 5 violations involved, and the same .appearing proper
and fully supported in the record, the settlement is approved.
The terms of the settlement are as follows:
Citation No.
3291321
3291322
3293718
3293718
3293720

Original
Proposed Penalty
$ 46.00
63.00
63.00
20.00
20.00

Settlement
Amount
$ 46.00
63.00
20.00
20.00
20.00

Respondent, if it has not previously done so, is ordered to
pay to the Secretary of Labor within 30 days from the date hereof
the sum of $169.00 as and for the penalties agreed on and here
assessed.
.~
-#h-7'/
//~~,,.~/4· ye~";( ,,;:7 '

Michael A. Lasher, Jr.
Administrative Law Judge

1754

Distribution:
Dane C. Dauphine, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 3247 Federal Building, 300 N. Los Angeles Street,
Los Angeles, CA 90012 (Certified Mail)
Mr. D. McRae, General Manager, Vinnell Mining & Minerals Corp.,
3380 Flair Drive, Suite 236, El Monte, CA 91731 (Certified Mail)

/bls

1755

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

22041

SEP 13 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 89-70
A.C. No. 46-04266-03543

v.
Meredith Mine
BULL RUN MINING, INCORPORATED,
Respondent
DECISION
Appearances:

Before:

Carol B. Feinberg, Esq., U.S. Department of Labor,
Office of the Solicitor, Arlington, Virginia, for
Petitioner.

Judge Maurer
STATEMENT OF THE CASE

This proceeding concerns a proposal for assessment of civil
penalty filed by the petitioner against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 820(a), seeking a civil penalty assessment of
$450 for an alleged violation of the mandatory safety standards
found in 30 C.F.R. Part 75.
The respondent contested the violation and requested a
hearing.
Pursuant to notice, a hearing was convened in
Morgantown, West Virginia, on June 30, 1989, 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.
The record in this case indicates that a Notice of Hearing
dated May 2, 1989, setting this case down for hearing in
Morgantown, West Virginia, on June 30,1989, was received by the
respondent on May 4, 1989.
Subsequently, because the respondent had continued to ignore
the petitioner's discovery requests, I issued an Order to Show
Cause on June 9, 1989, to the respondent to show cause why it
should not be held in default for its failure to comply with my
discovery orders of April 25, 1989.

1756

Respondent has never replied to the above Show Cause Order,
nor did any representative of respondent appear at the designated
time and place for the hearing of this case.
The hearing proceeded in the respondent's absence. The
petitioner put in her prima facie case through the testimony of
Inspector Phillips and moved for a decision affirming the order
at bar and the proposed civil penalty by default.
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. Moreover, I find that the
issuance of yet another Show Cause Order would be a futile
gesture.
Accordingly, I find that the respondent is in default and
the penalty of $450 proposed by the Secretary in this case must
be paid within 30 days of the date of this decision.

urer~

rative Law Judge
Distribution:
Carol B. Feinberg, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Mr. Kevin A. Mayor, Superintendent, Bull Run Mining Company,
Inc., 2607 Cranberry Square, Morgantown, WV 26505
(Certified
Mail)
/ml

1757

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

SEP J ·' 1

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA . 22041

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 89-81
A.C. No. 46-03805-3886

v.
Martinka No. 1 Mine
SOUTHERN OHIO COAL CO.,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Before:

Mark Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Secretary; Rebecca J. Zuleski, Esq.,
Furbee, Amos, Webb & Critchfield, Morgantown,
West Virginia, for SOCCO.

Judge Broderick

~he above case was called for hearing in Morgantown,
West Virginia, on August 22, 1989.
The Secretary moved on
the record for approval of a settlement agreed to between
the parties.
The docket contains a single alleged violation
originally assessed at $311.
The parties propose to reduce
the penalty to $50.
Counsel for the Secretary stated that
the gravity of the violation, and the operator's negligence
were less than originally believed.
I have considered the
motion in the light of the criteria in section llO(i) of the
Act and conclude that it should be approved.

Accordingly, the settlement is APPROVED and Respondent
is ORDERED TO PAY the sum of $50 within 30 days of the date
of this order.
f~

7 AA,n 5
vr
II'<

A

,

·)

/J.--l,
,

i,

/

/

i.·''};_ , U'jt
.

, '---

James A. Broderick
Administrative Law Judge
Distribution:
Mark Malecki, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Rebecca J. Zuleski, Esq., Furbee, Amos, Webb & Critchfield,
5000 Hampton Center, Suite 4, Morgantown, WV 26505 (Certified Mail)
slk

1758

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

22041

SEP 2 0 1983
GEORGE JACKSON, JR.,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. KENT 89-75-D

NALLY AND HAMILTON
ENTERPRISES, INC.,
Respondent

BARB CD 89-03

ORDER OF DISMISSAL
The Parties having jointly moved the Administrative Law
Judge to permit the Complainant to withdraw his Complaint of
Discrimination in this case and to dismiss this case with
prejudice and the Administrative Law Judge being fully advised
does hereby ORDER as follows:
1. The Complaint of Discrimination filed by Complainant
in this action be and is hereby WITHDRAWN.
2.

This case be and is hereby DISMISSED with prejudice.

AL_

Avram Weisberger
Administrative Law Judge
Distribution:
R. Scott Madden, Esq., 116 Lawyer Street, Manchester, KY
40962 {Certified Mail)
Lloyd R. Edens, Esq., Cline & Edens, Post Office Drawer 2220,
Middlesboro, KY 40965 {Certified Mail)
dcp

1759

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

SEP 2 0 1989

CONTEST PROCEEDINGS

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

Docket No. WEST 89-45-R
Order No.3226175; 11/4/88

v.

Docket No. WEST 89-46-R
Order No. 3223764; 11/10/88

MID-CONTINENT RESOURCES, INC.,:
Respondent

Dutch Creek Mine
Mine ID 05-00301

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 89-143
A.C. No. 05-00301-03690

v.

Docket No. WEST 89-175
A.C. No. 05-00301-03700

MID-CONTINENT RESOURCES, INC.,:
Respondent

Dutch Creek Mine

DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Respondent/Petitioner;
Edward Mulhall, Jr., Esq., Delaney & Balcomb,
Glenwood Springs, Colorado,
for Contestant/Respondent.

Before:

Judge Cetti

The above captioned contest proceedings and their related
civil penalty proceedings are consolidated for purpose of
decision.
At the Glenwood Springs hearings of December 15, 16, 17,
1988, the parties presented extensive docmuentary evidence and
three days of testimony from numerous witnesses. A portion of
the case was continued for further hearing. Prior to the
continued hearing the parties negotiated proposed settlements of
the cases.
The parties have now filed a joint motion requesting
approval of the proposed settlements.
The settlement agreements
provides that petitioner amend the proposed penalties in civil
proceedings Docket Nos. WEST 89-143 and WEST 89-175 as shown

1760

below and Mid-Continent withdraw its Notice of Contest to all
citations and orders contained in Docket Nos. WEST 89-45-R and
WEST 89-46-R.
Docket No. WEST 89-143
Citation/Order No.
3226053
3226176 (89-45-R)
Docket No. WEST 89-175
2931141
3226628
3226175 (89-45-R)
3223765 (89-46-R)
3223771
2876864 (89-46-R)

Proposed Penalty
$ 259.00
590.00
$1,400.00
1,300.00
1,300.00
1,400.00
1,500.00
1,200.00

Amended
Proposed Penalty
$ 155.40
354.00
840.00
780.00
780.00
840.00
900.00
720.00

In support of the proposed settlement disposition of these
cases, the petitioner has submitted information pertaining to the
six statutory civil penalty criteria found in Section llOCi) of
the Act.
In addition, the petitioner has submitted a discussion
and disclosure as to the facts and circumstances surrounding the
issuance of the citations and orders in question, and a reasonable justification of the reduction of the original proposed
civil penalty assessments.
Conclusion
After careful review and consideration of the pleadings,
arguments, and submissions in support of the motion to approve
the proposed settlement of this case, I conclude and find that
the proposed settlement disposition is reasonable, appropriate,
and in the public interest.
Accordingly, pursuant to 29 C.F.R.
§ 2700.30 the motion is GRANTED, and the settlement is APPROVED.
ORDER
1. Contest proceedings in Docket Nos. WEST 89-45-R and WEST
89-46-R are vacated.
2.
Respondent is ORDERED to pay civil penalties in the
settlement amounts shown above in satisfaction of the citations
and orders in question in the amount of $509.00 on or before
April 1, 1990 for the penalties assessed in Docket WEST 89-143
and in the amount of $4,860.00 on or before July 1, 1990 for the
penalties assessment in Docket WEST 89-175.

Augu
F. Cetti
Administrative Law Judge

1761

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail)
Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.O. Drawer 790,
Glenwood Springs, CO 81602 (Certified Mail)
/bls

1762

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

22041

SEP 211989
LINDA LESTER,
Complainant
v.
GARDEN CREEK POCAHONTAS CO.,
Respondent

DISCRIMINATION PROCEEDING
Docket No. VA 88-59-D
Pocahontas No. 6 Mine
DECISION

Appearances:

Before:

Susan Oglebay, Esq., Oglebay & Graham, Damascus,
Virginia, for Complainant; Donald D. Anderson,
McGuire, Woods, Battle & Boothe, Richmond,
Virginia, for Respondent.

Judge Broderick

STATEMENT OF THE CASE
Complainant contends that she was removed from her temporary
roof bolting job and returned to the job of general inside
laborer, because of safety complaints to her safety committeeman
and a Federal inspector. She did not lose time from work, but
claims lost wages measured by the difference in pay between the
roof bolting job and the general inside laborer job from
May 18, 1988 until May 1989 when she became a permanent roof
bolter, except for the period between August 1988 and February
1989, when she was out of work because of an employment-related
injury. Respondent concedes that complainant made a protected
safety complaint. It denies that she was subjected to adverse
action because of the safety complaint. Pursuant to notice, the
case was called for hearing in Abingdon, Virginia, on
July 18, 1989. Linda Lester, Kenneth Lester, John Woolford and
Ray Lester testified on behalf of Complainant. George King, Torn
Meade and Ronald D. Coleman testified on behalf of Respondent.
Both parties were given the opportunity to file post-hearing
briefs. Respondent filed such a brief; Complainant did not.
Based on the entire record, and considering the contentions of
the parties, I make the following decision.
FINDINGS OF FACT
Respondent, Garden Creek Pocahontas Co. (Garden Creek), is
the owner and operator of an underground coal mine in Oakwood,
Virginia, known as the Pocahontas No. 6 Mine. Complainant Lester

1763

is employed at the subject mine as a miner. She has worked at
the mine since February 1981. Her jobs included general inside
laborer, miner helper, scoop operator, roof bolter, apprentice
electrician, and beltman. She worked as a roof bolter in
November 1981, and in May 1983 for periods of time not disclosed
in this record.
As of April 22, 1988, she was employed as a
general inside laborer.
In April 1988, Garden Creek was doing construction work to
set up a new miner section. This involved cutting in a rock
area, and necessitated bolting the rock roof. One permanent roof
bolter, Tom.~y Proffett, was on the rock crew and a temporary roof
bolter was assigned to work with him. After so~e days, the Union
requested that the job be posted, and filled in accordance with
the existing collective bargaining contract. A prior grievance
settlement at the subject mine required the company to post a job
vacancy whenever a temporary job existed for seven days or more.
Garden Creek told the Union officials that the rock bolting
project would be completed in a few days, but the Union wanted it
posted anyway. Garden Creek agreed but informed the Union that
"as soon as the project is completed this job will be eliminated."
(Tr. 94)
On April 22, 1988, a notice of Temporary Vacancy for the
position of roof bolter was posted. (R-Ex. A) The name D. Smith
was written on the notice. Smith was a permanent roof bolter
working on a coal-producing section, and had been one since 1981.
He was off work because of an injury since June 1987. In June
1987, the mine was doing truss bolting which required six roof
boltars on the day shift. In early 1988, the mine began using
the super bolt system and phased out the truss bolting.
In the
super bolt system, only four roof bolters were required on the
full-time day shift. Complainant was awarded the posted job on
April 29, 1988. She began working on the new job on May 9, 1988,
but was paid as a roof bolter beginning May 2, 1988. Complainant
assumed that she was temporarily filling the job of Donnie Smith.
Garden Creek intended that she was filling a temporary position
doing rock bolting until the rock project was completed. On
May 9, Complainant told her foreman that she was supposed to work
on the coal producing section as Donnie Smith had done, rather
than on rock work. She filed a grievance which management
denied.

1764

On May 10, 1988, Complainant was told by her foreman, Ronald
Coleman, that she would have to begin installing bolts herself
without the assistance of the other roof bolter. She protested
that the height of the area would require her to climb on to the
roof bolter canopy and that she was afraid that she would be
injured. She asked to have the safety committeeman and the
Federal inspector who was at the mine, assess the safety of her
work. The inspector told Complainant that he would not tell her
the job was safe but that he could not see any other way that it
could be done. So far as the record shows, no citations or
orders were issued concerning the performance of the work.
On the following day, May 11, Coleman called Complainant
aside and told her that she should either do her work or withdraw
from the job. He told her that her roof bolting partner had
complained that he was doing her work as well as his own.
Coleman also told her that she was causing problems in talking to
the safety committeeman and the inspector. After this
conversation, Complainant became upset. She left work, and was
taken to a hospital for what was diagnosed as hyperventilation.
She returned on Friday, May 13, and was assigned to a belt crew.
She continued working on the belt the following Monday and
Tuesday, May 16 and 17, and on May 18 was told that the roof
bolting job had been discontinued. She was paid as a roof bolter
through May 18, 1988. The mine superintendent testified that the
work was completed on May 16, but Coillplainant was not informed of
this until May 18. The Superintendent was aware of Complainant's
safety complaints to the safety committeeman and the inspector.
Complainant's foreman Coleman was not involved in the decision to
eliminate or discontinue her job.
In about March 1989, the mine added a third section crew to
the day shift. Complainant bid for and was awarded the job of
permanent roof bolter in April or May 1989. She has continued on
that job to the date of the hearing.
ISSUES

1. Whether the tempocary roof bolter position was
discontinued and Complainant was removed from that position
because she made safety complaints to her safety cornmi ':.tt~eman and
a federal inspector?
2.

If so, to what remedies is Complainant entitled?

1765

CONCLUSIONS OF LAW
Respondent is subject to the provisions of the Federal Mine
Safety and Health Act of 1977 (the Act) in the operation of the
subject mine. Complainant is a miner protected under section
105(c) of the Act.
Under the Act, a complaining miner can establish a prima
facie case of discrimination by proving that she engaged in
protected activity and that the adverse action complained of was
motivated in any part by that activity. Secretary/Fasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (1980), rev'd on other
grounds sub. nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3rd Cir. 1981); Robinette v. United Castle Coal Co., 3
FMSHRC 803 (1981). The operator may rebut the prima facie case
by showing either that no protected activity occurred or that the
adverse action was not motivated in any part by protected
activity.
If the operator cannot rebut the prima facie case in
this manner, it may nevertheless defend affirmatively by proving
that the adverse action was also motivated by other factors than
the protected activity and that it would have taken the adverse
action for these factors in any event. Robinette, supra.
I

The parties agree that Complainant made safety complaints to
a safety committeeman and a Federal inspector, and that these
Complaints constitute activity protected under the Act.
II
The action taken by Respondent in removing Complainant from
the position of roof bolter on May 18, 1988, which resulted in a
loss of pay, constituted adverse action.
III

The evidence establishes that Complainant's foreman Coleman
reprimanded her for making safety complaints protected under the
Act. The crucial issue is whether the safety complaints were in
any way related to the adverse action described above. Coleman
testified that he was not involved in the decision to eliminate
the roof bolter position. I accept his testimony as credible.

1766

The Superintendent, George King, did make the decision to
eliminate the position when the rock work was completed. King
was aware of the fact that Complainant had made safety related
complaints to the committeeman and the inspector. He testified,
however, that this awareness was not related to the elimination
of the roof bolting job. He testified that, in accordance with
his agreement with the Union, when he was informed by the mine
foreman that the rock project was completed, he told the foreman
to inform Complainant that the job was eliminated. I accept the
testimony of King as credible and consistent with the other
evidence in the record.
I conclude therefore that the adverse
action suffered by Co~plainant was not in any way related to her
protected safety complaints. The testimony of John Woolford and
Ray Lester concerning their bolting activities after
Complainant's temporary position was eliminated was explained by
King and Coleman as related to clean up work or coal face bolting
unrelated to the rock project.
I accept their explanation as
credible.
Further, I conclude that even if Complainant established a
prima facie case of discrimination, the operator has established
that the adverse action was motivated by unprotected factors,
namely, the completion of the rock project, and that it would
have taken the adverse action for these factors alone.
Therefore, Complainant has failed to establish that
Respondent discriminated against her in violation of the
provisions of section 105(c) of the Act.
ORDER
Based on the above findings of fact and conclusions of law,
ORDr~RED that Coinplainant' s complaint of discrimination is
DISMISSED.

I'r IS

,

' . /./A 1 ' ,·

//v"vflV........J

(
J

.

At·;;
t .. i
r·
- •""- -'-' . . ___
(//.

1 :. -z.:(,"i~, ,f/J. ..:; '(
~ 1

James A. Brodel'.'ick
Administrative Law Judge

1767

Distribution:
Susan D. Oglebay, Esq., Oglebay & Harrison, P.O. Box 760, Beaver
Dam Avenue, Damascus, VA 24236 (Certified Mail)
Donald D. Anderson, Esq., McGuire, Woods, Battle & Boothe, One
James Center, Richmond, VA. 23219 (Certified Mail)
slk

1768

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

September 21, 1989

CIVTL

OF LABOR,
MINE SAFETY ANO H~ALTH
ADMINISTRATION (MSHA),
Petitioner

S~CRPTARY

PENAL~Y

PROCBBDINGS

Docket No. VA 88-44-M
A. C. No. 44-03995-05509

v.
Culpepper Plant
A. H. SMITH

COMPANY,
Respondent

S~ONF

Docket No. YORK 89-24-M
A. C. No. 18-00275-05517
Branchville Plant
Docket No. YORK 89-35-M
A. C. No. 18-00481-05507
Brandywine Mine
Docket No. YORK 89-36-M
A. C. No. 18-00293-05504
Clinton Mine
Docket No. YORK 89-40-M
A. C. No. 18-00275-05520
Docket No. YORK 89-43-M
A. C. No. 18-00275-05518
Docket No. YORK 89-44-M
A. C. ~o. 18-00275-05519
Branchville Plant
DECISION
Appearances:

Jack~. Strausman, Bsq., Office of the
Solicitor, U. s. Department of Labor,
Arlington, Virginia, for Petitioner;
Lisa M. Wolff, A. H. Smith Stone Company,
for Respondent.

Before:

Judge Merlin

1769

When the above-captioned cases came on for hearin~
counsel for both parc1es advised that secclements had been
reached. With the permission of the bench these settlements
were placed upon the record.
Other cases scheduled £Or
hearing at the same time were heard on the merits.
VA 88-44-M
This case involves four violations which were originally
assessed ac $362 and the operacor agreed to pay the original
assessments in iull. ~he circumstances of these violations
were explained on the record and I accepted the profiered
amounts from the bench.
YORK

89-24-M

~his case involves twenty violations which were originally assessed at $1,499. ~he proposed settlement is tor
$1,460.

Citation No. 3247135 was issued for a violation of
30 c.w.R. § 56.14107(a) because the guard for the secondary
crusher was inadequate. ~he penalty was originally assessed
ac $79 and the proposed settlement is for $40. ~he ~olicitor
represents that the penalty reduction is warranted because
gravity is less than originally thougnt. ~he Solicitor
advises that a guard had been in place which had a small
opening ten inches above the floor as originally designed and
installed. Due to the closeness of the opening to the floor
and to the size of the opening, the probability of injury was
less than originally thought. ~he foregoing representations
were accepted £ram the bench and the proposed settlement was
approved.
~he operator agreed to pay the original assessments
for the remaining nineteen violations involved in this case.
~he circumstances of these violations were explained on the
record and I accepted the proffered amounts from the bench.

YORK

89-35-M

This case involves two violations which were originally
assessed at $170. The proposed settlement is for $124.
Citation No. 3247111 was issued for a violation of 30
§ 56.12036 because fuse tongs were not available for
removing and replacing electrical fuses.
The penalty was
originally assessed at $79 and the proposed settlement is for
$60. ~he Solicitor represents that the penalty reduction is
warranted because negligence is less than originally thought.
This condition had not been cited in previous inspections and
the violation was abated in good taith.
The foregoing repreC.~.R.

1770

sentations were accepted from the bench and the proposed
settlement was approved.
Citation No. 3247113 was issued for a violation of 30
C.F.R. § 56.20001 because the inspector found evidence that
alcohol was being consumed on mine property. The penalty was
originally assessed at $91 and the proposed settlement is for
$64. ~he Solicitor represents that the penalty reduction is
warranted because negligence is less than originally thought.
~he Secretary has agreed to aajust the assessment of negligence from moderate to low due to representations by the
operator that there have not been problems with employees
drinking on the property previous to the time this bottle was
discovered.
Also there was no other evidence known to the
operator of alcohol-related problems. ~he foregoing representations were accepted from the bench and the proposed
settlement was approved.
YORK 89-36-M
~his case involves six violations which were originally
assessed at $399.
~he proposed settlement is for $289.

Citation No. 3246014 was issued tor a violation of
30 C.F.R. § 56.14112(b) because the v-belt drive on the
gravel shaker screen was not adequately guarded. ~he penalty
was originally assessed at $63 and the proposed settlement is
for $44. ~he Solicitor represents that the penalty reduction
is warranted because negligence is less than originally
thought. The guard was present, but, it did not extend the
entire distance. The foregoing representations were accepted
from the bench and the proposed settlement was approved.
Citation No. 3247104 was issued for a violation of 30
C.F.R. § 56.14132(a) because the automatic reverse back-up
alarm on a loader was inoperative. The penalty was originally assessed at $79 and the proposed settlement is tor $65.
The Solicitor represents that the penalty reduction is warranted because gravity is less than originally thought.
Because the loader would not be moving fast, the seriousness of any injury was slightly less. The foregoing representations were accepted £rom the bench and the proposed
settlement was approved.
Citation No. 3247106 was issued for a violation of 30
C.F.R. § 56.14103(c)(2) because a window on the left side of
a loader haa been removed and a piece of solid metal had been
used to replace it. The penalty was originally assessed at
$79 and the proposed settlement is for $50. The Solicitor
represents that the penalty reduction is warranted because
gravity is less than originally thought.
The loader was not
moving fast.
The foregoing representations were accepced
from the bench and the proposed settlement was approved.

1771

Citation ~o. 3247108 was issued for a violation of 30
§ 56.12036 because £use tongs were no~ available for
removal and replacement of fuses.
'T'he penalty was originally
assessed at $79 and the proposed settlement is for $50.
'T'he Rolicitor represents that the penalty reduction is
warranted because negligence is less than originally thought.
'T'his condicion had not been cited in previous inspections.
'T'he foregoing representations were accepted from the bench
and the proposed settlement was approved.
c.~.R.

Citation No. 3247110 was issued for a violation of 30
C.F.R. § 56.12016 because an employee was standing on a conveyor belt that had not been locked out to keep it from being
inadvertently energized. Locks for locking out the equipment
were not available. 'T'he penalty was originally assessed at
$79 and the proposed settlement is for $50. 'T'he Solicitor
represents that the penalty reduction is warranted because
gravity is less than originally chought.
'T'he employee was at
the low end of the belt which was not very high off the
ground.
'T'he foregoing representations were accepted irom the
bench and the proposed settlement was approved.
~he operator agreed to pay the original assessment for
the remaining violation involved in this case. 'T'he circumstances of the violation were explained on the record and T
accepted the proffered amount from the bench.

YORK 89-40-M
'T'his case involves two violations which were originally
assessed at $1,700. 'T'he proposed settlement is for $950.
Citation ~o. 3246302 was issued for a violacion of 30
§ 56.14001 because a conveyor belt was not provided
with a guard on the tail pulley.
An employee was observed
working in the area and exposed to the hazard.
'T'he penalty
was originally assessed ac $500 and the proposed settlement
is for $250.
'T'he ~olicitor represents that the penalty
reduction is warranted because negligence is less than
originally thought. 'T'he Solicitor accepted the operator's
representacion that the guard l1ad been removed ior cleaning
and had not been immediately replaced.
'T'he foregoing representations were accepted irom the bench and the proposed
settlement was approved.
C.~.R

Order No. 3247101 was issued for a violation of 30
§ 56.18006 because new workers had not been indoctrinated in che safety rules and in safe work procedures. 'T'his
information was given to the inspector both from supervisors
and from an interpreter who interpreted for Hispanic
employees.
'T'he penalty was originally assessed at $1,200 and
the proposed settlement is for $700.
'T'he ~olicitor
C.P.~.

1772

represents that the penalty reduction is warranted because
gravity is less than originally thought.
Only 5 employees,
instead of 9 as originally determined by the inspector, were
affected.
'T'he foregoing representations were accepted irom
the bench and the proposed settlement which is a substantial
amount was approved.

YORK 89-43-M
This case involves twenty violations which were originally assessed at $2,897.
'T'he proposed settlement is for
$2,102.
'T'he Solicitor has advised that Citation nos. 3246731,
3246736, 3247100, and 3247138 which were originally assessed
at $157, $119, $400, $119 respectively were, vacated by M~HA
on August 10, 1989, as being issued in error.
The operator has agreed to pay the original assessments
for the sixteen remaining violations involved in this case.
The circumstances of these violations were explained on the
record and I accepted the proffered amounts from the bench.

YORK 89-44-M
This case involves one violation which was originally
assessed at $20 and the operator has agreed to pay the
original assessment in full.
'T'he circumstances of this violation were explained on the record and I accepted the
proffered amount from the bench.

ORDFR
In light of the foregoing the recommended settlements
are APPROVFD and the operator is ORDBRFD ~O P~Y the following
amounts within 30 days from the date of this decision.

VA 88-44-M
Ci ta ti on No.

Amount

2851999
2852000
2852603
2852604

$
$
$
$
$

79
79
85
119
362

$
$
$
$

20
147
20
20

'T'o tal

YORK 89-24-M
3246407
3246303
3246729
3246730

1773

3246826
3246827
3246831
3247082
3247083
3247084
3247085
3247088
3247134
3247135
3247136
3247137
3247140
3246830
3247095
3247096

105
105
20
79
$
79
$
20
$
20
$
79
$ 157
$
40
$
79
$
20
20
$
$ 105
$ 147
$ 178
$1,460
$
$
$
$

rrotal
YORK 89-35-M
3247111
3247113

$

60
64
124

$
$
$
$
$
$
$

44
65
50
20
60
50
289

$
$
$

250
700
950

$
$

20
20

$

$

rr:'otal
YORK 89-36-M
3246014
3247104
3247106
3247107
3247108
3247110

'T'otal
YORK 89-40-M
3246302
3247101

'T'otal
YORK 89-43-M
3246727
3246728
3246731
3246732
3246733
3246734
3246735
3246736
3246739
3246740

Vl\CA'T'FD

$
$
$
$

20
119
178
136

VACA'T?l<'D

$
$

1774

119
119

$
$
$
$
$

420
157
119
119
119
$
225
VACATF.D
VACA'T'l<'D
$ 192
$
20
$2,102

3246824
3246828
3247081
3247086
3247087
3247090
3247100
3247138
3247139
3246829
'T'otal
YORK 89-44-M
3247099

$

Grand rrotal

20

$5,307

Paul Merlin
Chief ~drninistrative Law Judge
Distribution:
Jack~. ~trausman, Fsq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, ~rlington, VA
22203
(Certified Mail)

Ms. Lisa M. Wolff, Director Safety, A. H. Smith ~tone
Company( 9101 Railroad Avenue, Branchville, MD 20740
(Certified Mail)
/gl

1775

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

SEP 211989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner

v.
IDEAL CEMENT COMPANY,
Respondent

CIVIL PENALTY PROCEEDING

.

Docket No. WEST 88-202-M
A.C. No. 24-00014-05513
Trident Plant & Quarry

.
DECISION

Appearances:

I

I

Before:

Robert Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
James J. Gonzales, Esq., Holland & Hart,
Denver, Colorado;
for Respondent.

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration CMSHA}, charged respondent, Ideal Cement
Company, (hereafter "Ideal"}, with violating a safety regulation' promulgated under the Federal Mine Safety and Health Act,
30 u.s.c. § 801 et~., (the Act}.
After notice to the parties a hearing on the merits was held
in ~elena, Montana.
At the hearing the parties agreed the Commission has jurisdiction to hear the case (Tr. 389}.
The parties submitted post-trial briefs in support of their
positions.
Summary of the Evidence
MSHA's Evidence
This case involves the death of miner Thomas E. Bertagnolli
that occurred on October 19, 1987, while he was operating a
front-end loader. The witnesses at times referred to the loader

1776

as a Bobcat and at other times as a Uniloader.
alleges a violation of 30 C.F.R. § 56.9002. ~/

The citation

MSHA's witnesses were Vincent J. Schafer, Stephen M. Carey,
Stephen L. Livingood, Archie Huenergardt, Marvin Doornbos,
Stanley Veltkamp, Robert E. Stinson, Eric Shanholtz and Darrell
Woodbeck.
Bert Todd, Gary Huls, William Fairhurst and Arlene Sherman
testified for respondent.
VINCENT J. SCHAFER has been employed by Ideal as a maintenance man for ten years and he was familiar with the Uniloader.
Fifty percent of the workers at the plant have operated the
equipment.
The Uniloader was equipped with a seat belt and ROPS, 2/ but
it was necessary to modify the ROPS so the equipment could fit
in the kiln. 3/ In addition, narrower wheels had also been installed.
The Uniloader, equipped with side screens, has been operated
by the witness without the side screens since before October 1987.
He did not consider it unsafe to operate without side screens.
The bucket affixed to the equipment takes ten seconds from its
lowest setting to an upright position.
Schafer also installed a shield on the front of the loader.
The shield consisted of i-inch plywood.
This prevented the kiln
bricks from falling into it.
In October 1987 Schafer would enter
the equipment by climbing over the plywood. He did not consider
it safe to exit the Bobcat to the rear.

ll

The regulation allegedly violated here provides as follows:
Equipment defects affecting safety
shall be corrected before the equipment· is used.

~/

Roll-over protective structure.

11

The kiln is 300 feet long.
The loader is 12 feet long by 3!
to 4 feet wide with the bucket attached.

1777

When the loader operator exits the equipment he lowers the
arms and turns off the equipment. He then removes the bungee
cord holding the plywood shield. The plywood makes the equipment
more safe as compared to less safe.
On October 19th a cylinder popped on the loader.
A new
cylinder was not available so it was replaced by an old one.
On
the same date he had difficulty operating the loader. He turned
it off because the ignition key had been broken off.
At the close of his shift he met Bertagnolli coming up the
steps.
He told Bertagnolli to be careful. He made this statement because it was a dangerous piece of equipment. But after
he had repaired it the loader was all right.
STEPHEN CAREY, a heavy equipment operator, is familiar with
the loader and he has operated it inside the kiln.
He was a
heavy equipment operator for over 11 years. When Bertignolli
was killed he was operating the loader without side screens; he
had not been required to remove the screens.
However, Carey did
kiln work with the side screens attached. When not in use the
screens are stored in a garage.
Carey considered himself a better loader operator than most.
He had installed the plywood in the front.
The loader is easier to operate with a bucket than with the
jackhammer attachment.
(The jackhammer attachment is used to
knock down bricks in the kiln).
Bertagnolli had sufficient training to operate the loader.
STEPHEN LIVINGOOD, a maintenance man, indicated the
left-hand lever on the loader would catch.
The machine would
move forward on its own although it was set in neutral gear.
Livingood did not learn to compensate for the "creep". He did
not ask for additional training and he had the authority to "red
tag" any equipment he considered defective.
The screens interfere with side vision to the rear.
Since
he couldn't see the rear tire he could not keep the loader on the
ramp of the kiln.
Livingood did not see Bertagnolli's accident but he found
him lying on the side of the kiln up against the wall.
There
were no side screens on the loader.
Tom said the "God-damn
Bobcat crushed him."

1778

Bertagnolli expired during the 32-mile ambulance ride to the
hospital.
ARCHIE HUENERGARDT, an electrician, has picked up and moved
sacks of cement with the loader bucket. He had never used the
jackhammer attachment and he had operated the equipment without
the screens attached.
Huenergardt stayed by the telephone and did not directly
participate in Bertagnolli's rescue.
MARV DOORNBOS had been ordered to work the area at the front
of the kiln on the night of the accident.
He saw Bertagnolli getting ready to run the loader.
was a front shield but no side shields on the loader.

There

It appeared to the witness that Bertagnolli was having
trouble knocking out the first row of bricks.
They appeared to
resist the effort being made to break them loose.
Bertagnolli was working about 40 feet past the entrance
of the kiln.
Doornbos went into the control room to get a welding helmet.
When someone said Bertagnolli had been hurt, he returned to the
kiln and found Bertagnolli standing up and leaning over. He was
holding his side. Bertagnolli said something about the "damn
Bobcat."
STANLEY VELTKAMP, a maintenance man, worked in the same
area as Bertagnolli. He observed that Bertagnolli was apparently
having difficulty knocking out the bricks in the kiln with the
jackhammer.
When the machine idled down, Veltkamp, looking in the
direction of the loader( saw Bertagnolli leaning out the right
side of the equipment. ~/ In addition, he was "all over" the
arms and the cylinder of the loader. Bertagnolli, who was
buckled in by his seat belt, then moved back into the seat, shut
off the air to the jackhammer and crawled out the left side.
The arms of the loader were down.

!/

At the hearing Veltkamp did not remember that he saw
Bertagnolli leaning out the right side of the Bobcat. However,
on this point I credit his past recollection, i.e., his written
statement of the facts given to by MSHA on the date of the
accident (Ex. P-21).

1779

As he staggered down the kiln Veltkamp rushed to him.
Bertagnolli said he had been crushed.
ROBERT STINSON, a person experienced in mining, issues
safety citations.and conducts health investigations for the
State of Montana.
On October 20, 1987, he went to the Ideal plant when he
learned that a man had been crushed by a loader.
That evening he and Dr. Bertagnolli, father of the victim
and a medical doctor, discussed the accident. The doctor indicated there was a mark across his son's back two inches wide
as well as two parallel marks across his front down through the
liver area. Dr. Bertagnolli said his son had been crushed
through the liver and aorta and had "bled out."
During his investigation, Inspector Stinson observed
employees enter and exit the loader. Several employees entered
over the rear and another entered over the lifting arms. He did
not see any enter at the front.
The ROPS had been altered by cutting and rewelding four
posts. There were two bolts missing in each arm.
On the left
wheel there was a hose that caused a hindrance to one of the
controls. The side screens were missing.
When the jackhammer was raised the plate would block the
view of the chipper point.
Mr. Stinson identified various photographs taken at the
scene of the accident. He also expressed his opinion that if
the side shields had been in place Bertagnolli would not have
been injured.
The guard shields are specifically designed to
prevent workers from getting into the arms of the loader.
In
the inspector's opinion the accident would have been prevented
by using a different type of machine or by using side screens.
In Mr. Stinson's view, Bertagnolli was killed when the arms
of the loader caught him.
The arms could have been going up or
coming down.
The specification sheet from the manufacturer shows the
1835 Case Uniloader with the side shields in place.

1780

ERIC SHANHOLTZ, an MSHA inspector, cited the operator on
December 7, 1983, for failing to have a ROPS structure on a
front-end loader.
This citation was not contested and it was
terminated the following day (Ex. P-26}.
DARRELL WOODBECK, an MSHA inspector for 14 years, is a
person experienced in mining.
On the issue of prior history Mr. Woodbeck identified
citations issued to Ideal in the previous two years (Ex. P-27}.
Mr. Woodbeck took part in the inspection. He also concluded that side shields would have prevented the miner from
placing himself in a position where he could be injured.
As a result of his inspection at the work site Woodbeck
issued Citation No. 2649413. He also determined that the operator's negligence was moderate. He believed that Bertagnolli was
crushed between the lifting arms of the bucket and the top of the
rollover protection.
Inspector Woodbeck considered that the removal of the side
screens was a violation of MSHA regulations.
Mr. Woodbeck also considered this was an S&S violation.
Respondent's Evidence
BERT TODD, a person experienced in operating small equipment, has supervised and trained Ideal employees in the use of
such equipment.
The Uniloader, equipped with a jackhammer on the bucket,
knocks brick out of the kiln.
Between 1984 and 1987 Todd has seen the equipment being
operated without side screens. He has seen employees using the
equipment without screens while MSHA inspectors were present.
But he was not aware of any citations being previously issued
for the absence of such screens.
The absence of screens had
never been previously discussed with MSHA inspectors.
Todd trained Bertagnolli in the operation of the Uniloader.
He was taught to exit the machine to the front and he observed
Bertagnolli following his instructions.
The loader was purchased with side screens. They prevent rocks from falling on the operator. Also they keep the
operator's arms within the loader while he is operating it.

1781

GARY HULS, Ideal's production supervisor, accompanied an
MSHA inspector in September 1987. On that occasion Tom Meyers
was operating the loader cleaning up spills with the bucket.
The inspector leaned into the loader but made no comments about
the absence of side screens.
Ideal has a policy of red-tagging any unsafe e::iuipment.
The employees learn this policy from training and the company
handbook.
WILLIAM DOUGLAS FAIRHURST, a mill supervisor, has also
served as a heavy equipment operator.
The safety handbook
discusses all mobile e::iuipment.
It generally directs employees
to enter the equipment through the front.
After he enters the
loader the operator sits down and buckles his seat belt. When he
exits the equipment he leaves with the arms lowered.
The loader
involved in this accident did not have any side screens attached.
It is the loader operator's decision whether or not he should
use side screens.
In the afternoon before Bertagnolli's accident, the left
arm of the loader had to be changed.
The safety manual also states that guards shall not be
removed except when making repairs, cleaning, dressing, oiling
or adjusting the equipment.
In such circumstances such repairs
can only be made by authorized personnel when the machines are
stopped.
ARLENE SHERMAN, a person educated and experienced in safety,
is the Personnel and Industrial Relations Administrator at the
Trident Plant. She is responsible for all plant safety.
Until 1986 the Trident Plant worked 4000 days without a
lost-time injury.
This is the best safety record of all of
Ideal's plants in North America.
The company previously received an award when it reached 3000 consecutive days without
a lost-time accident (Ex. R-7).
The company's policy, both written and in practice, is that
if an employee detects a hazard he can red-tag any equipment and
refuse to operate it. An employee, without any retaliation, can
also refuse to operate any equipment he believes is hazardous.
Company policy also requires employees to wear seat belts
when they are operating equipment.
A citation received by the company in 1983 related to ROPS
on a loader (Ex. P-26). Side screens had nothing to do with that
citation and they were not mentioned.

1782

The company prepared the MSHA form and the Workman's
Compensation forms for this case.
However, there were no eyewitnesses to the accident.
Company representatives can only
speculate as to how the accident occurred. But they are testing
several theories: Bertagnolli was crushed when the side arms came
down or when the arms were going up.
In experimenting (with the
machine) another employee placed his upper body over the side arm
of the loader but he wasn't able to do this while wearing his
seat belt.
Employees at times entered the loader through the back.
During the operation of the equipment Ms. Sherman did not observe
anything that she considered to be a defect. Before the machine
was put back in operation the side screens were reinstalled.
In the company's opinion MSHA's evaluation of negligence was
too high in view of the investigation and the company's past
record.
The company had no information indicating the loader
should not be operated without side screens in place.
Further,
the company did not have Exhibit P-25 CJ.I. Case specifications·
re ROPS canopy) at the time of the accident.
The gross sales of the Trident Plant exceeded $1,000,000
last year.
However, the company is presently in a severe debt
situation. About three years ago the company was close to
bankruptcy.
ERIC SHANHOLTZ was called as a rebuttal witness by the
Secretary. He testified that he had not been told by anyone
at the plant that some unnamed safety inspector had stated
the company did not have to use ROPS in certain positions and
operations.
Inspector Shanholtz requested the ROPS be reinstalled. They were also ret~rned with the side shields.
Discussion
A fatality in a case, in and of itself, does not by its
mere occurrence prove a violation of the regulation, Lone Star
Industries, Inc., 3 FMSHRC 2526, 2529, 2530 (1981); Texas
Industries, Incorporated, 4 FMSHRC 352 (1982).
The law is clear that a safety regulation that imposes
civil penalties for its violation must give an employer fair
warning of the conduct it prohibits or requires and must further
provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents.

1783

Diamond Roofing v. Occupational Safety and Health Review
Commission, 528 F.2d 645, 649-650 (5th Cir. 1976); Diebold,
Inc. v. Marshall, 585 F.2d 1327, 1335-1336 (6th Cir. 1978);
LOngview Refining Co. v. Shore, 554 F.2d 1006, 1114 (Temp.
Erner. Ct. App. 1977) cert. denied, 434 U.S. 836 (1977).
A review of the record here indicates Ideal could not
have anticipated that MSHA would require side screens on the
equipment.
It is true that when the Uniloader was purchased
it had side screens.
It is also uncontroverted that it was
left to the discretion of employees whether to use such screens.
However, the Commission has specifically rejected a per se rule
that an equipment defect automatically arises "when equipment
is not maintained in the manner in which it is received from
the manufacturer," Allied Chemical Corporation, 6 FMSHRC 1854,
1857 (footnote 3).
A majority of the cases dealing with § 56.9002 and related
parallel regulations deal with factual situations where the
defect affecting safety is affixed to the equipment. For
example, see Allied Products Company, 2 FMSHRC 2517 (1980)
(Fauver, J.) (front end loader leaking hydraulic fluid and not
repaired); Grove Stone and Sand Company, 2 FMSHRC 1261 (1980)
(Steffy, J.) (back-up alarm ruled not defective); Ideal Basic
Industries, Cement Division, 2 FMSHRC 1352 (1980) (Koutras, J.)
(hydraulic coupling inoperable); Eastern Associated Coal Corporation, 1 FMSHRC 1472 (Commission) (inoperable parking brake on
a jitney); Massey Sand and Rock Company, 3 FMSHRC 2132 (1981)
(Vail, J.) (emergency brake on front-end loader defective and
leaking hydraulic fluid); Evansville Materials, Inc., 3 FMSHRC
704 (1981) (Fauver, J.) (leaks in braking system of front-end
loader that could have been detected from audible hissing sounds
lasting one or two seconds); FMC Corporation, 4 FMSHRC 1818
(1982) (Morris, J.) (idler arm, ball joint and tie rods of pickup truck were loose; linkage, which was loose, showed excessive
wear); United States Steel Corporation, 5 FMSHRC 322 (1983),
(Koutras, J.) (brakes defective since they would no~ hold truck
on level incline); Walsenburg Sand and Gravel Company, Inc.,
8 FMSHRC 451 (1986) (Carlson, J.) (leaking differential fluid
from brakes; on conflicting evidence it was held that brake's
effectiveness was not impaired).
However, it is not an absolute requirement that the defect
be on the equipment. In Allied Chemical Corporation, supra,
at 1858, the Commission held a violation existed where there

1784

were two missing bolts in chocks. However, the distinction is
that in Allied Chemical the missing bolts affected the integrity
of a roof support system.
In contrast, in the case at bar, there is no evidence that
the lack of side screens adversely affected the operation of
the Uniloader, rendered it defective, inadequate, or presented
functional problems in its operation as a loader.
In short, respondent was not on notice that MSHA would
require side screens on the loader.
It is a fundamental
principle of due process that regulations which purport to
govern conduct must give an adequate warning of what they
command or forbid, Diebold, 585 F.2d at 1335.
If MSHA had issued a prior notice requiring the use of
side screens then it would have remedied the deficiency in the
regulation's present coverage. Such prior notice could have
been given by a safeguard or an interpretive bulletin.
To like
effect, ~Peabody Coal Company, 3 FMSHRC 392 (1981) (Kennedy,
J.). However, the record here does not disclose that Ideal was
on notice of a requirement that side screens must be used.
The Secretary's post-trial brief points to the fact that
respondent violated the identical regulation contested here in
Ideal Basic Industries, Cement Division, 3 FMSHRC 843 (1981).
The Secretary's argument is misdirected.
The cited
Commission case involved a violation of the same regulation.
However, the defect was an observable defective hydraulic
coupling.
In the instant case there was no defective side
screens, observable or otherwise. In short, the 1981 Commission decision would not put Ideal on notice that side
screens were required on its Uniloader.
To reiterate, no
evidence has been presented in this case that would cause me
to conclude that the side screens were in any way defective.
Further, the absence of such screens did not affect the integrity of the Uniloader.
The Secretary also relies on the testimony of witness
Schafer to the effect that he warned Bertagnolli "to be careful
with it." This warning came on October 19, 1987, the night
Bertagnolli was killed. Schafer also described the Uniloader
in these terms:
It's just a dangerous piece of equipment
from word one.
It's probably one of the
most dangerous pieces of equipment we have
out here.
(Tr. 46).

1785

The Secretary follows with a condemnation of the company
in failing to train and guard its employees in the operation
of this "dangerous 11 loader.
I reject the Secretary's view of the evidence.
In actuality, Schafer is referring to his repair of the cylinder arm
during the day shift. After the cylinder was repaired he
didn't notice anything that needed to be repaired on the loader
(Tr. 50). He also ran it for two or three hours until quitting
time.
It was operating normally and as he expected it to operate (Tr. 51). This was the same piece of equipment Bertagnolli
used (Tr. 55). If there had been a defect of some sort on the
Uniloader he would have mentioned it to Bertagnolli (Tr. 63).
When he heard about the accident he thought it might have had
something to do with the malfunction of the cylinder but he
checked.
The cylinder had not malfunctioned (Tr. 66). Schafer
did not think it was unsafe to operate the Uniloader without
side screens (Tr. 68).
The record does not develop any reasons for Schafer's
apparently gratuitous statement relied on by the Secretary.
In view of his clear factual statements to the contrary,
I do not find his statements about "dangerous" equipment to
be credible.
As an aside, the Secretary would have the judge conclude
that at least Schafer thought the Uniloader was dangerous.
But Schaf er himself operated it without screens 11 every once
in awhile".
He also operated it without screens on the shift
prior to Bertagnolli's accident (Tr. 40, 41, 88).
The Secretary also contends that the Uniloader operators
had the option of using the side screens.
Further, she argues
the lack of guards violates the company's safety manual.
The
manual provides "guards shall not be removed except for making
repairs •••• " (Ex. P-29, p. 9).
The Secretary's arguments are rejected.
The evidence
required to sustain this citation is whether the company had
reasonable notice of MSHA's requirements that side screens
were to be installed on this equipment.
The Secretary also focuses on the evidence relating to the
lowered ROPS, the make-shift plywood screen, the probability

1786

that Bertagnolli leaned out and was crushed by the arms, the
improvised jackhammer, and, in general, the restricted work
area.
It is apparent that none of the above conditions would
cause Ideal to believe that MSHA would require side screens.
Inspector Stinson and Woodbeck clearly adhered to the
views that the absence of side screens caused Bertagnolli's
death. But such testimony is an after-the-fact evaluation.
If it was so obvious after the fatality then it could have
been readily observed and their installation required by MSHA
before the fatality.
In support of her position that the absence of equipment such as side shields adversely affected safety within
the meaning of the regulation, the Secretary relies on
Jacguays Mining Corporation, 5 FMSHRC 788 (1983) (Morris, J.);
Allied Products Company, 2 FMSHRC 2517 (1980) (Fauver, J.);
Allied Chemical Corporation, 6 FMSHRC 1854 (1984) (Commission);
United States Steel Corporation, 6 FMSHRC 1423 (1984) (Commission); FMC Corporation, 4 FMSHRC 496 (1982) (Broderick, J.).
The cases relied on by the Secretary are not controlling.
In Jacguays Mining Corporation, a Gardner-Denver mucking machine
did not have a step plate normally used by miners to stand on
to operate the machine. However, Jacguays has no precedential
value since the issue of due process was not raised as a defense.
In Allied Products Company, an oil leak existed in a Bobcat.
This condition affected the Bobcat's steering.
In short, there
was a defect on the equipment which affected its safety. Such
defects are within the scope of § 56.9002.
Allied Chemical Corporation, has been previously discussed.
I further recognize the Commission's statements in the case
that "[i]n both ordinary and mining industry usage, a "defect" is
a fault, a deficiency, or a condition impairing the usefulness of
an object or a part", Allied Chemical, 6 FMSHRC at 1857. However,
as previously noted, in Allied Chemical the missing bolts in two
chocks affected the integrity of the roof support system. In the
instant case the safety of the Uniloader itself was not affected
by the absence of the side screens.

1787

In United States steel Corporation, the defect consisted
of failed brakes and disconnected drive shafts. Again, the
Commission reiterated its view "that use of a piece of equipment containing a defective component that could be used and
which, if used, could affect safety, constitutes a violation
of 30 C.F.R. § 56.9-2" (now the present regulation), 6 FMSHRC
at 1834.
In FMC Corporation, a front leaf spring was disconnected
from a shackle because of a missing bolt. The described condition of the spring shackle could affect the driver's ability
to steer and stop the vehicle.
In the case Judge Broderick
concluded that a violation of § 57.9-2 occurred.
The cited case
again involved a situation where the defect was on the equipment
and such de_fect, in turn, affected the safety of the equipment.
In sum, none of the cases relied on by the Secretary support
her position.
Inasmuch as the respondent was not on notice that side
screens were required on its Uniloader, it follows that the
citation should be vacated. Accordingly, it is not necessary
to consider the remaining issues in the case.
For the foregoing reasons I enter the following:
ORDER
Citation No. 2649413 and all proposed penalties therefore
are vacated.

Law Judge
Distribution:
Robert Murphy, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80204 (Certified Mail)
James J. Gonzales, Esq., Holland & Hart, 555 Seventeenth Street,
Suite 2900, P.O. Box 8749, Denver, CO 80201
(Certified Mail)
/ot

1788

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

f°"' ;-· ;-..
....

\~.

\_i

V"-..;

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

22041

211989
CIVIL PENALTY PROCEEDING
Docket No. WEVA 89-87
A.C. No. 46-03805-03887

v.
SOUTHERN OHIO

COAL co. I
Respondent

Martinka No. 1 Mine

DECISION
Appearances:

Before:

Mark Malecki, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the
Secretary of Labor (Secretary); Rebecca J. Zuleski,
Esq., Furbee, Amos, Webb & Critchfield, Morgantown,
West Virginia, for Southern Ohio Coal Co. (SOCCO)

Judge Broderick

STATEMENT OF THE CASE
The Secretary filed a Petition for the assessment of civil
penalties for three alleged violations of mandatory safety
standards promulgated under the Federal Mine Safety and Health
Act of 1977 (Act). Pursuant to notice, the case was called for
hearing on August 22, 1989, in Morgantown, West Virginia. At the
hearing, the Secretary moved for the approval of an agreed upon
settlement with respect to two violations, namely those charged
in orders 3117591 and 3117599. Both citations changed violations
of 30 C.F.R. § 75.303. Both were designated as unwarrantable
failure violations and each was assessed at ~650. The motion
proposes that Respondent pay $650 for each violation, but that
the unwarrantable failure finding be withdrawn and the 104(d)(2)
orders be modified to 104(a) citations. The basis for the
modification is the difficulty in proving that the operator was
aware of the locations of the violative conditions in the mine.
I stated on the record that I would approve the settlement. In
the hearing on the remaining alleged violation, Terry Palmer and
Raymond Glaspell testified on behalf of the Secretary. Dan
Conaway and Douglas McQuaid testified on behalf of SOCCO. The
parties waived their right to file posthearing briefs and argued
their positions on the record.
I have considered the entire
record and the contentions of the parties, on the basis of which
I make the following decision.

1789

subject order, of which 20 were violations of 30 C.F.R. § 75.316.
This history is not such that penalties otherwise appropriate
should be increased because of it.
ISSUES
1. Whether the evidence establishes a violation of the
approved ventilation plan and therefore of 30 C.F.R. § 75.316?
2.
If a violation is established, was it significant and
substantial?
3.
If a violation is establi3hed, was it caused by SOCCO's
unwarrantable failure to comply with the standard?
4.
If a violation is established, what is the appropriate
penalty?
CONCLUSIONS OF LAW
SOCCO is 3ubject to the provisions of the Act in the
operation of the subject mine, and I have jurisdiction over the
parties and subject matter oi tnis proceeding.
The evid8nce clearly establishes that SOCCO was not in
compliance with its approved ventilation plan on
October 12, 1988, in that it did not have coinpleted permanent
stoppings called for in the plan in crosscuts No. 3 and No. 4
outby the £ace, at the time the contested order was issued.
Therefore a violation of 30 C.F.R. § 75.316 is established.

A violation is properly designated as significant and
substantial if there is a reasonable likelihood that the hazard
contributed to by the violation will result in an injury or
illness of a reasonably serious nature.
Cement Division,
National Gypsum Co., 3 FMSHRC 822 (1981); Mathies Coal Co., 6
FMSHRC 1 (1984); U.S. Steel Mining Company, Inc., 7 FMSHRC 1125
(1985).
The in3pector was of the opinion that the violation was
significant and substantial because it would result in a tendency
to lose air from the intake aircourse, and because methane has
been found in this section.
However, the evidence shows that the
air velocity was adequate and methane was negligible at the time
the order was issued. The stoppings had been conatructed and the
absence of plaster on the stoppings would, according to SOCCO
production engineer McQuaid, not cause any 3ignificant
interruption in ventilation.
I conclude that the Secretary has
not established that there was a reasonable likelihood that the
hazard contributed to by the violation would result in inJury.
~he violation was not properly designated as significant and
substantial.

1790

FI~DINGS

OF FACT

SOCCO is the owner and operator of an underground coal mine
in Marion County, West Virginia, known as the Martinka No. 1 Mine.
Three shifts were working at the mine as of October 12, 1988, tne
day shift being a maintenance shift, and the other two being
pcoduction shifts.
Federal mine inspector Terry Palmer conducted a ventilation
technical inspection of the subject mine on October 12, 1988. He
entered the mine at the beginning of the aternoon shift, and
proceeded to the 1 North section after terminating previously
issued violations in the 3 West section. At about 7:00 p.m. he
issued order 2944386 charging a violation of 30 C.F.R. § 75.316
because the approved ventilation plan was not being complied with.
The ventilation plan required that permanent stoppings be
maintained to and including the third crosscut outby the face.
The miner was operating in the No. 2 entry and coal was being
produced. The first crosscut outby was open, the second had a
check curtain and the third and fourth had stoppings constructed
of block, but were not plastered as the plan required.
Plastering work had begun on the No. 4 crosscut stopping at the
time the order was issued, but no plastering had been done on the
No. 3 crosscut stopping. The section foreman told the inspector
that the two stoppings were con~tructed on the afternoon shift
the previous day.
The midnight shift (a production shift) and
the day shift (a maintenance shift) intervened before the
inspection began.
The ventilation on the section was measured at 10,272 cubic
feet per minute on the left return, and 22,344 cubic feet on the
rignt return. This was in excess of tne minimum requirement of
9,000 cubic feet per minute.
A methane re~ding Ghowed .1 percent
in the right return, and .2 percent in the left return.
The condition was abateu by finishing the plastering of the
two stoppings and the order ~as terminated at 7:30 p.m. on
October 12, 1988.
The production records (call out sheets dnd map) indicate
that the section had advanced to the point where a permanent
stoppings were required in the No. 3 and No. 4 crosscut on or
about the midnight shift on October 10, 1983 and on or about the
midnight 5hi£t on October 11, 1988.
Respondent is a large operator and the subject mine is a
large mine. The history of prior violations show~ 958 paid
violations during the 24 month3 prior tu the is3uance of the

1791

A finding that a violation resulted from unwarrantable
failure to comply with the standard is established if the
evidence shows "aggravated conduct, constituting more than
ordinary negligence, by a mine operator in relation to a
violation of the Act." Emery Mining Corp., 9 FMSHRC 1997, 2004
(1987).
The evidence shows that SOCCO had partially completed the
required stoppings. It also shows that seven or eight shifts,
including four or five production shifts had occurred after the
first stopping was required. The failure to plaster the
stoppings was evident, and should have been observed by foremen
on each intervening shift. The plastering could have been
completed by a crew of three in 15 or 20 minutes. I conclude
that the violation resulted from SOCCO's aggravated conduct
constituting more than ordinary negligence. The violation was
properly designated as significant and substantial.
Based on the above conclusions, I further conclude that the
violation was moderately serious and was caused by a high degree
of negligence. Under the criteria in section llO(i) of the Act,
an appropriate penalty for the violation is $400.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
(1) Order 3117591 is modified to a 104(a) citation, and the
designation of unwarrantable failure is removed:
(2) Order 3117599 is modified to a 104(a) citation, and
designation of unwarrantable failure is removed.
(3) Order 2944386 is modified to remove the designation of
significant and substantial and, as modified, is AFFIRMED
including the designation of unwarrantable failure.
(4) Within 30 days of the date of this decision SOCO shall
pay the following civil penalties:

1792

CITATION OR ORDER

PENALTY

3117591
3117599
2944386

$650
650
400
$1700

TOTAL

t

•·

,.,

H~§ _,~l~~v(k,v~e/t{

James A. Broderick
Administrative Law Judge

Distribution:
Mark Malecki, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 {Certified
Mail)
Rebecca J. Zuleski, Esq., Furbee, Amos, Webb & Critchfield, Suite
4, 5000 Hampton Center, Morgantown, WV 26505 (Certified Mail)
slk

1793

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

20006

SEP 2:5 i989

Ul~CRIMINATION

DONALD D. DAWSON,

complainant

PROCEEDING

Docket No. PENN 89-198-DM
MD 89-01

v.
J.T. DYER QUARRY,
Respondent
ORDER OF DISMISSAL
Be tore:

Judge Merlin

On May 16, 1989, you tiled with this Commission a complaint
of discrimination under section lOS(c) of the Federal Mine
Safety and Health Act 1977. On July 18, 1989, a show cause
order was issued directing you to provide information regarding
your complaint or show good reason for your failure to do
so.
The show cause was mailed to you certified mail, return
receipt requested and the file contains the receipt card
indicating you received the show cause order. You have
however, not responded and complied with the show cause
order.
Accordingly, this case is DISMISSED.

_.....

\ ~ ()

----"""',-~

Paul Merlin
Chiet Administrative Law Judge

Distribution:
Donald D. Dawson, R.D. # 1, Box 333, Elverson, PA 1Y520 (Certified
Mail)
J.T. Dyer Quarry, P.O. Box 118,Birds Bero, PA 19508 (Certified
Mail)
Office of Special Investigations, MSHA-Metal, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
/sc

1794

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204
.• .

~-

,r,

">· ~~- ~ .:

.

'~) r~
!. '

~-

CONTEST PROCEEDINGS

CYPRUS EMPIRE CORPORATION,
Contestant

Docket No. WEST 88-247-R
Order No. 3225477; 3/4/88

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

..

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

.

v.
CYPRUS EMPIRE CORPORATION,
Respondent

Eagle No. 5 Mine
Mine ID 05-01370

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 89-13
A.C. No. 05-01370-03580
Eagle No. 5 Mine

.

.

DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
For Petitioner/Respondent;
R. Henry Moore, Esq., Buchanan Ingersoll, P.C.,
Pittsburgh, Pennsylvania,
For Contestant/Respondent.

Before:

Judge Morris

These consolidated contest and civil penalty proceedings
are before me pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seg., (the
"Act"> •
Contestant/Respondent Cyprus Empire Corporation (hereafter "Empire"), challenges the issuance by the Secretary
of a citation and order involving the regulatory standard at
30 C.F.R. § 70.100.
After notice to the parties a hearing on the merits was
held in Denver, Colorado. The parties filed post-trial briefs.

1795

Summary of the Cases
On March 4, 1988, MSHA issued Citation Number 9996225
under section 104(a) of the Act alleging a violation of 30 C.F.R.
§ 70.100.

On May 23, 1988, MSHA issued Order No. 3225447 under section
104(b) of the Act. The order caused the production of coal to
cease in the longwall section of the mine.
Citation No. 9996225 reads as follows:
Based on the results of five valid dust
samples collected by the operator, the
average concentration of respirable dust
in the working environment of the designated occupation, code 044 in mechanized
mining unit 001-0 was 2.2 milligrams
which exceeded the applicable limit of
2.0 milligrams. See attached computer
printout dated March 1, 1988. Management
will take corrective actions to lower .the
respirable dust and then sample each production shift until five valid samples
are taken and submitted to the Pittsburgh
Respirable Dust Processing Laboratory.
Approved respiratory equipment shall be
made available to all persons working in
the area.
Order No. 3225447 reads as follows:
Based on the latest block of 5 samples
received, the average concentration of
respirable dust was 2.9 milligrams per
cubic meter of air on MMU 001-0.
The
concentration has increased from 2.2
milligrams to 2.9 milligrams since the
issuance of the citation. The operator's
present approved respirable dust control
plan has been unsuccessful in reducing
the respirable dust concentrations.
Production of coal from this section
shall immediately close.

1796

The regulation allegedly violated provides, in part, as
follows:
§

70.100

Respirable dust standards

(a)
Each operator shall continuously
maintain the average concentration of
respirable dust in the mine atmosphere
during each shift to which each miner
in the active workings of each mine is
exposed at or below 2.0 milligrams of
respirable dust per cubic meter of air
as measured with an approved sampling
device and in terms of an equivalent
concentration determined in accordance
with § 70.206 (Approved sampling devices;
equivalent concentrations).
Stipulations
At the commencement of the hearing the parties stipulated
as follows:
1.

The Eagle No. 5 mine is owned and operated by Empire.

2.
The Administrative Law Judge has jurisdiction over these
proceedings. Both Empire and the Eagle No. 5 mine are subject
to the jurisdiction of the Federal Mine Safety and Health Act of
1977.
3. The annual production of the Eagle No. 5 mine is approximately 1.7 million tons and the parties have agreed that Empire
is a large operator.
4. The subject Order, Citation, modifications thereto and
termination were properly served by a duly authorized representative of the Secretary of Labor upon agents of Cyprus Empire
on the dates stated therein and may be admitted into evidence for
the purpose of establishing their issuance and not for the truthfulness or relevancy of any statements inserted therein.
5. The imposition of a penalty by the Administrative Law
Judge will not affect Empire's ability to continue in business.
Empire does not stipulate that the imposition of any penalty is
appropriate.

1797

summary of the Evidence
Lewis Raymond and Phillip Gibson testified for the
Secretary.
LOUIS D. RAYMOND has been with MSHA for 27 years. He is
the Branch Chief 1/ of the Pittsburgh Lab. The facility, with
a capacity to process up to 500 to 600 samples per day, primarily
weighs respirable coal dust.
It also handles data transmission.
The weighing branch of the lab has prepared an informational report in booklet form showing the entire proceedings of the
dust samples (Ex. P-20).
Coal mine operators are obliged to sample for respirable
dust and to submit five valid samples every two months.
The
samples themselves are taken by attaching a cassette in the
breaking zone of a miner.
The normal sampling time is 480
minutes which is based on an eight-hour day.
The sample may be invalidated by MSHA if the data card
is improperly filled out. The card itself lists certain information such as the cassette number, the mine I.D., the mine
name, the date of the sample, the sampling time, the tonnage
of that production shift, the type of sample, the MMU number
and the occupational code, the certified person and the initial
weight of the cassette.
When the samples are received at the lab a certified person
takes them to a separate area.
The ceiling tape and plug are
then removed.
The inner portion (capsule) of the cassette is
removed with a forceps and the material is placed in trays. ~/
The capsules themselves are then desiccated by being placed
in a four-foot vacuum drier for 15 minutes. This procedure removes the surface moisture.
If heat was us~d it would have a
tendency to drive off the inherent moisture in the coal.
The
vacuum changes the water to a vapor and withdraws it.
After 15 minutes the samples are removed and are permitted
to acclimate in the air for one hour.
The lab environment is
controlled at 72 degrees and 50 percent humidity.

1/ Chief, Weighing Branch, Dust Division, Pittsburgh Health
Technology Center.
~/

See Figure 3A and 3B of Exhibit P-20.

1798

The cassettes are automatically weighed (See figure 5
of Exhibit P-20). A small printed-out sticker is attached.
Generally the lab weighs 300 samples a day. ~/ Any excessive
cassettes are weighed manually.
Automatic weighing is more
precise than manual weighing.
All data cards are stamped and sequentially numbered.
Every
sample received is weighed as it is received. The computer
selects the first five samples received to determine the average
weight. Additional samples are voided as excess (Tr. 72-73).
Exhibit P-18, a computer printout, illustrates how the
samples are listed by the computer in the order of the date
received by the computer. Certain codes indicate why a sample
was voided or was not used.
The lab maintains a quality control over its weighing
system: under the system, one cassette out of eight is weighed
twice.
If the two weighs do not agree the last eight must be
reweighed.
The lab also checks the quality of the cassette samples
for stability and they are compared to MSHA's weight.
If any
cassette does not agree within one milligram, then the entire
day's production must be reweighed.
MSHA technicians in the
field also reweigh filters and send in reports. There is also
a program to determine whether the information received is
correctly entered into the computer.
The main variable is .1 mg/m3; the lab records to the
nearest .1 mg/m3.
The method of desiccation used by the lab has been in place
since 1970. The method used to weigh samples is an accepted
scientific method of doing so and has been studied at this lab
by the U.S. Bureau of Standards.
The data cards are removed after the results are recorded.
The sample then goes to the data transmission room.
In turn,
the data goes to the MSHA computer room in Denver.
Mr. Raymond discussed at length the various codes used by
the lab to designate the disposition of various samples.

ll

The correct measure of coal dust concentration is ! mg/m3.
Occasionally, the shorthand of ! mg is used.

1799

After the reports are generated they go to the operator
and the MSHA field off ice. Citations are issued when the reports
indicate concentrations above 2.0 mg/m3. The operator keeps its
own sample sheets and records the results as they are received
from MSHA.
Since coal is usually wetted during the mining process,
the samples are dried or desiccated to be certain that the excess
moisture is removed from the samples.
(Excess moisture could
establish excessive respirable coal dust).
The lab process
removes excess moisture but allows inherent moisture to remain.
Any sample that appears to have excess moisture is marked as
a contaminated sample and not tested by the lab. Also, any
sample that contains oversized particles is marked as contaminated.
The MSHA lab has determined that 15 minutes is the
amount of time to completely dry samples in the desiccator.
Empire requested information regarding its samples and the
lab responded (Exhibits P-19, Ex. 27).
Empire expressed concern
about excess moisture (16% to 40% moisture content).
With Empire's inquiry in mind, Mr. Raymond conducted a study
to see if the lab's procedure was adequate.
Empire had marked
some cassettes as containing excessive moisture. The lab treated
them further, using several approaches.
One approach was a heating process to heat the samples for
one hour at 105 degrees F. Prior to heating the samples, the
lab heated these blank samples to study the effect.
They then
heated the 11 samples.
The blank samples lost .06 milligrams
(as indicated on page 2 of Mr. Raymond's memo, Exhibit P-19.)
The memo lists the weights of the blanks and the samples after
vacuum desiccation and again after heating for one hour.
The
differences in the samples was negligible.
The eleven samples from Empire, marked "excess moisture",
were heated for one hour and returned to the room.
The
weight difference was .07 mg/m3 and the standard deviation
was .08 mg/m3.
Mr. Raymond concluded the weight difference
was not significant as it was only plus or minus .1 mg/m3.
(See Exhibit P-19).
By these tests Mr. Raymond concluded the moisture was
being adequately removed by the MSHA vacuum system.
This is
particularly true since any weight differences are entered as
"truncated". For example, if the cassette weighs 2.19 m:1 it
is entered as 2.1.
The truncation of weights is to avoid any

1800

plus or minus errors. The lab does not normally perform this
additional heat treatment but the method had been used by
Empire at its lab.
In Mr. Raymond's opinion vacuum desiccation is an accurate
way of removing moisture.
An additional experiment confirmed Mr. Raymond's opinion:
he retrieved a dust sample cassette and placed a 20 mg drop of
water on it. This is 10 to 20 times the normal weight differential.
The cassette was then treated normally in the vacuum
and re-evaluated.
It was found the cassette had returned to
its initial weight.
An additional experiment he conducted involved the use
of 24 samples and a lot of water. The samples were initially
weighed without vacuuming and then heated for in excess of
16 hours at 50 degrees F.
It was found that only two of the
24 filters had an additional .1 mg weight.
In short, the results
were within the plus-minus .1 mg accuracy factor.
Mr. Raymond expressed the opinion that the lab uses
scientific methods.
Further, the vacuum process is accurate
to a degree of scientific certainty.
PHILLIP R. GIBSON, JR. is an MSHA inspector experienced
in mining. Mr. Gibson issued the failure to abate order at the
Eagle No. 5 mine on May 23, 1988 (Exhibit P-9).
MSHA Inspector Grant McDonald had written the original
citation on March 4, 1988.
Inspector McDonald is in charge of
the respirable dust program for Eagle No. 5 underground coal
mine.
The abatement date on the original citation was extended
several times.
Inspector Gibson wrote the contested order on May 23, 1988.
The order was written without an on-site inspection.
The computer printout indicated high concentrations of respirable dust
were being generated.
The average concentration was going up
instead of down.
In view of the upward movement of the concentrations Inspector Gibson declined to grant any further extension
of the abatement date.
After he wrote the 104(b) order Inspector Gibson went underground and placed the closure order on the shear. The shear was
tagged to indicate it was the main source generating the dust.

1801

Overexposure to coal dust, a serious hazard, can cause black
lung disease, also called pneumoconiosis.
On May 24th Inspector Gibson was advised by his superior
that the company was in compliance. He then checked and saw that
the perimeters of the revised dust plan were in place (as per
Ex. P-10). He then allowed mining to be resumed.
The termination was based in part on Exhibit P-13, the computer printout
showing that the concentrations for the MMU in the longwall were
at or below the 2.0 mg/m3 concentration required by the regulation.
In cross-examination Inspector Gibson indicates he is essentially a safety inspector.
Further, excessive dust is controlled
by trial and error methods. Because the coal dust was increasing
the inspector refused to grant a further extension. The concentration rose from 2.2 to 2.9 ng/m3.
The inspector didn't look for inconsistencies in the
sampling and he didn't have earlier printouts to be used as a
comparison.
Empire's Evidence
Robert Stalter, Samuel Cario and James Dodd testified for
Empire.
ROBERT STALTER, a person experienced in m1n1ng, serves as
Empire's superintendent of safety and loss control.
Mr. Stalter described how the respirable coal dust pumps
are calibrated and how the dust samples are taken. Basically,
the pumps are attached to the miners and left running until the
miner leaves his job site.
When the sampling is completed the MSHA cards are filled out
and the cassettes are forwarded to MSHA within 24 hours.
Mr. Stalter is familiar with various sampling procedures
and the protection provided for the longwall operators.
All
shear operators prefer and wear AIRSTREAM helmets. Such MSHA
approved helmets filter the air before it enters the face piece.
The use of such a helmet alleviates the hazard from respirable
dust.
Affidavits at the hearing indicated the operators were
all wearing helmets when they were sampled (Exhibit E-8 through
E-14).
The shear operators pref er the AIRSTREAM because it is a
full-face piece. The witness has seen only one shear operator

1802

without an AIRSTREAM helmet. MSHA's approval of the helmet has
its limitations: some shear operators chew tobacco and they must
lift the face shield to spit.
Empire now samples its miners for respirable coal dust.
The in-house sampling is then verified by a nearby lab known as
CT&E, which has duplicated the MSHA lab. CT&E gives Empire the
initial weight and the company determines the concentrations.
Mr. Stalter agrees excessive coal dust is a hazard; however,
he believes 2.0 mg. is not excessive.
Mr. Stalter's work duties include taking and testing
samples.
MSHA samples were taken at the tailgate because the highest
concentration was at that location. The longwall is 750 feet
long.
SAMUEL L. CARIO, a person experienced in mining, is Empire's
longwall coordinator. Mr. Carie received the citation from
Inspector McDonald.
The inspector suggested the company take a
second set of samples.
In order to reduce the dust Mr. Carie studied changes at the
shear.
The final decision involved the use of belting.
Empire
obtained several extensions from MSHA.
On the 20th Empire began to develop a plan (Ex. 21). The
plan, submitted to MSHA on the 23rd, provided for the installation of a curtain on the third shield and an additional spray on
the shear.
The changes were not tested before the failure to
abate order.
After the 104Cd) order company representatives met
with MSHA personnel in Denver. MSHA declined to approve the plan
until additional changes were made. MSHA finally approved the
plan (Ex. E-23).
Mr. Carie could not evaluate the effect of the required
changes. But MSHA officials issued their approval. Before the
company could resume production, MSHA's approval 4/ and the dust
plan had to be physically returned to the mine site (Ex. E-2 3) •
Empire's program requires the shear operators to wear
AIRSTREAM helmets. Spare helmets are kept on the section.
Production is shutdown if helmets are not available.

~/

As required by 30 C.F.R. § 75.316.

1803

JAMES B. DODD, Empire's Superintendent of Mining, develops
methane ventilation and dust control plans.
The witness submitted an amendment to the dust control and ventilation plan to
MSHA (Ex. E-23). Originally the witness believed they would have
time to develop a plan before a failure to abate order would
issue.
MSHA thought the company's initial proposal was inadequate.
Empire agreed to MSHA's counter-proposal to increase the sprays
and the psi pressure.
After MSHA's approval the plan was carried back to the mine
at Craig, Colorado.
The implementation of the changes was not successful. MSHA
was advised and on the 25th a new plan was submitted. MSHA
approved the revised plan (Ex. E-25).
There were so many changes it was difficult to see the contribution of each change.
Correspondence from Empire to MSHA's representative, John
M. DeMichiei 5/ addresses the issues of moisture in the cassettes
and the requirement of numerous controls without being able to
test the results (Ex. E-27).
The dust control in the longwall is not an exact science and
dust problems are solved by trial and error.
Further Findings and Evaluation of the Evidence
Certain threshold issues here involve whether MSHA properly
selected Empire's respirable dust standards for sampling;
further, whether MSHA adequately dried the respirable dust
samples and, finally, whether the citation and order were
properly issued under section 104(a) and 104(b) of the Act.
The uncontroverted evidence shows that in February 1988
Empire submitted seven respirable dust samples of the longwall
shearer operator on the tailgate side to MSHA in compliance with
30 CFR § 70.100.

~/

MSHA District Manager, Denver, Colorado.

1804

Section 70.207 requires each operator to submit five respirable dust samples to MSHA.
However, it is the usual industry
practice to submit seven samples to avoid not having submitted
enough if any samples are voided (Ex. E-5).
The results of the samples as submitted were determined by
MSHA to be as follows:
MRE
Cassette
Date
CEguivalent Concentration)
46024406
46024205
46024403
46024231
46024209
46024254
46024225

2-12-88
2-16-88
2-17-88
2-18-88
2-18-88
2-22-88
2-23-88

3.0 mg/m3
2.1 lD9' /m3
2.2 mg/m3
0.4 mg/m3
2.5 mg/m3
1. 0 mg/m3
3.3 mg/m3

( P-2 ) •

On March 1, 1988, MSHA sent Empire an "Advisory of Excessive
Dust." The advisory stated that cassette number 46024209 had
been voided for insufficient production (Ex. P-2).
The advisory
did not list the sample for February 22, 1988, which showed a
concentration of 1.0 mg/m3 (Ex. E-2, P-18).
If the February 22 sample, rather than the later February 23
sample, had been included in MSHA's calculations the average concentration would have been 1.7 mg/m3.
On this basis the concentration would be within the limits of the regulation
(Tr. 94-5,
Ex • E- 2 , P-18 ) •
On March 4, 1988, MSHA Inspector Grant McDonald issued
Citation No. 9996225 pursuant to section 104(a) of the Act for
a violation of the respirable dust standard <Ex. P-1).
The citation directed Empire to sample each production shift
until five valid samples were taken and submitted to MSHA.
After the citation was issued Empire raised with MSHA the
absence of the February 22 sample.
(Empire did not know of the
exact concentration of the February 22 sample until the hearing
(Tr. 160, Ex. E-5, P-18)).
The Secretary's standard concerning collection of the
samples is contained in 30 C.F.R. § 70.207.
It provides, in
part, as follows:
Designated occupation samples shall
be collected on consecutive normal production shifts each of which is worked
on consecutive days.

1805

The thrust of Empire's argument is that if MSHA had based
its calculations on consecutive production shifts then the
February 22, 1988, sampling would take precedence over the later
sampling. Given such a sequence, Empire would have been in
compliance with the regulation.
I reject Empire's position. MSHA's lab expert Raymond
indicated the samples, if otherwise valid, are stamped and
weighed in the sequence they are received.
Cassettes in excess
of the required five are automatically rejected from the computer's calculations.
The operator benefits from being able
to submit seven samples, two in excess of the required five.
Accordingly, Empire's actions created the situation and Empire
cannot complain of MSHA's unbiased approach, a first-come
first-weighed basis.
I appreciate the situation:
the February 22 sample was
not used for the initial set of results because it reached the
computer after the February 23 sample. At the same time it
cannot be used for abatement because it was received before the
citation was issued.
However, as noted, the paradox was caused
by Empire's submission of excessive samples.
It was not caused
by MSHA's approach to weighing the samples.
Empire further contends that MSHA failed to properly dry
the samples.
Empire's evidence that MSHA's procedures were inadequate
arises mainly from the fact that the Occupational Safety and
Health Administration (OSHA) requires respirable dust standards
to be dried for 24 hours (Ex. E-30).
In contrast, MSHA only
dries the samples at its weighing branch for 15 minutes.
On this credibility issue I credit the testimony of MSHA's
expert Raymond.
Mr. Raymond indicated the surface moisture is removed
when the cassettes are placed in a four-foot vacuum drier for
15 minutes. Several quality controls of MSHA's procedures exist
in its lab.
When Empire complained that excessive moisture was not
being properly dried from its cassettes, Mr. Raymond conducted
several experiments. The summary of the evidence sets forth in
detail Mr. Raymond's testimony.
Expert testimony is commonly
given greater weight than lay testimony, U.S. Steel Corporation
v. OSHRC, 537 F.2d 780, 783 (3rd Cir. 1976). In this case I
find the expert testimony of Mr. Raymond to be credible and
persuasive.

1806

Empire's evidence of OSHA's filter weighing procedures arise
from Empire's Exhibit E-30, the OSHA Industrial Hygiene Technical
Manual.
On page II OSHA requires, in part, that it is necessary
to "desiccate all filters at least 24 hours before pre-sample and
post-sample weighing."
I do not find OSHA's procedures to be controlling or persuasive.
There is no reason to remove inherent moisture in
respirable coal dust because when the standard was set it took
in account such moisture. OSHA also tests a broader number of
substances than respirable coal dust.
Hence, by desiccating for
an hour it may be attempting to break down the substances for
further chemical testing.
In addition, there is no evidence
here showing the similarities, or differences, between the
filters themselves.
Further, as indicated, I credit the testimony of Mr. Raymond
when he concluded that the method used at the MSHA lab in Pittsburgh is a valid scientific approach.
At the hearing, Empire's evidence established the company
took samples to its own lab known as CT&E.
At this lab the
company obtained different results as compared to the MSHA lab.
I reject Empire's evidence because the Empire samples were
taken of the headgate operator on the longwall while MSHA's
samples were taken of the tailgate operator.
An additional threshold issue is whether the citation and
order herein were properly issued under section 104(a) and 104(b)
of the Act.
Section 104(a), under which the citation herein was issued,
provides as follows:
Sec. 104.Ca) If, upon inspection or investigation, the Secretary or his authorized representative believes that an operator of a coal
or other mine subject to this Act has.violated
this Act, or any mandatory health or safety
standard, rule, order, or regulation promulgated
pursuant to this Act, he shall, with reasonable
promptness, issue a citation to the operator.
Each citation shall be in writing and shall
describe with particularity the nature of the
violation, including a reference to the provision of the Act, standard, rule, regulation,

1807

or order alleged to have been violated.
In
addition, the citation shall fix a reasonable
time for the abatement of the violation.
The
requirement for the issuance of a citation with
reasonable promptness shall not be a jurisdictional prerequisite to the enforcement of any
provision of this Act.
Section 104(b), under which the order herein was issued,
provides as follows:
(b) If, upon any follow-up inspection of a coal
or other mine, an authorized representative
of the Secretary finds (1) that a violation
described in a citation issued pursuant to subsection (a) has not been totally abated within
the period of time as originally fixed therin
or as subsequently extended, and (2) that the
period of time for the abatement should not be
further extended, he shall determine the extent
of the area affected by the violation and shall
promptly issue an order requiring the operator
of such mine or his agent to immediately cause
all persons, except those persons referred to
in subsection (c), to be withdrawn from, and
to be prohibited from entering, such area until
an authorized representative of the Secretary
determines that such violation has been abated.
Section 104(f), which Empire claims to be the relevant enforcement section of the Act, provides:
(f)
If, based upon samples taken, analyzed,
and recorded pursuant to section 202(a), or
samples taken during an inspection by an
authorized representative of the Secretary,
the applicable limit on the concentration of
respirable dust required to be maintainea
under this Act is exceeded and thereby violated, the Secretary or his authorized representative shall issue a citation fixing a
reasonable time for the abatement of the
violation. During such time, the operator
of the mine shall cause samples described in
section 202(a) to be taken of the affected
area during each production shift.
If, upon
the expiration of the period of time as originally fixed or subsequently extended, the

1808

Secretary or his authorized representative
finds that the period of time should not be
further extended, he shall determine the extent of the area affected by the violation
and shall promptly issue an order requiring
the operator of such mine or his agent to
cause immediately all persons, except those
referred to in subsection Cc), to be withdrawn from, and to be prohibited from entering, such area until the Secretary or his
authorized representative has reason to believe, based on actions taken by the operator,
that such limit will be complied with upon
the resumption of production in such mine.
As soon as possible after an order is issued,
the Secretary, upon request of the operator,
shall dispatch to the mine involved a person,
or team of persons, to the extent such persons
are available, who are knowledgeable in the
methods and means of controlling and reducing
respirable dust.
Such person or team of persons shall remain at the mine involved for
such time as they shall deem appropriate to
assist the operator in reducing respirable
dust concentrations. While at the mine, such
persons may require the operator to take such
actions as they deem appropriate to insure
the health of any person in the coal or other
mine.
The Commission has generally considered the overall enforcement scheme of the Act. Nacco Mining Company, 9 FMSHRC 1541
(1987) Cement Division, National Gypsum Company, 3 FMSHRC 822,
828 (1981).
In reviewing the structure of the Act the Commission
noted that it provides "for increasingly severe sanctions for
increasingly serious violations or operator behavior." Sections
104(a) and llO(a) provide that the violation of any mandatory
standard requires the issuance of a citation and assessment of
a monetary civil penalty. Under section 104Cb) and llO(b), if
the operator does not correct the violation within the prescribed period, the more severe sanctions of a withdrawal order
is required, and a greater civil penalty is assessed. Under
section 104Cd), if an inspector finds a violation and also finds
that the violation is of a significant and substantial nature and

1809

has resulted from the operator's unwarrantable failure to comply
with the standard, a citation noting those findings is issued.
Section 104(d) citations carry enforcement consequences potentially more severe than "section 104(b)" sanctions.
If further
unwarrantable failure violations occur within 90 days of the
citations issued under 104Cd), unwarrantable failure withdrawal
orders are triggered.
Issuance of the withdrawal orders does
not cease until an inspection of the mine discloses that no unwarrantable failure violations exist.
Only section 104(a) of the Act authorizes the issuance of
a citation.
such a citation may include any violation of a regulation or of the Act itself.
In view of the established case
law, it is apparent that MSHA properly issued its citation under
section 104(a). For the reasons previously stated, it further
properly issued its withdrawal order under section 104(b).
In her citation in the instant case the Secretary could
have alleged a violation of section 104(f) of the Act but instead
she alleged a violation of her regulation, 30 C.F.R. § 70.100.
Empire claims that MSHA's enforcement of the respirable dust
standard deprived the company of certain remedies provided under
Section 104(f). Specifically involved is a matter of assistance
by MSHA to the operator.
On this point Empire relies on that
portion of section 104(f) which provides that:
As soon as possible after an order [of
withdrawal] is issued, the Secretary,
upon request of the operator, shall dispatch to the mine involved a person,
or team of persons, to the extent such
persons are available, who are knowledgeable in the methods and mean of controlling and reducing respirable dust.
Such person or team of persons shall remain at the mine involved for such time
as they shall deem appropriate to assist
the operator in reducing respirable dust
concentrations. (Emphasis added)
I agree with Empire that the requirements of the Secretary's
regulaton must be read in conjunction with section 104(f) of
the Act.
It is a clearly established principle of statutory
construction that specific language in one provision controls
over general language in another provision. General Electric
Company v. Occupational Safety and Health Review Commission,
583 F.2d 61, 65 (2nd Cir. 1978); American Telephone & Telegraph
Co. v. FCC, 487 F.2d 865, 877, n. 26 (2d Cir. 1973); Sutherland
Stat. Const.§ 47, 17-20, (4th Ed).

1810

The issue then evolves whether Empire triggered the obliga~
tion of MSHA to furnish assistance to deal with the respirable
dust concentrations.
I conclude the record does not support
Empire's claim.
The conversation about assistance from~ MSHA is
totally lacking in any reference to the statutory requirements
of section 104(f) (Tr. 120-121, 220-223).
But in any event the
request was made on May 20, 1988 and the 104(b) failure to abate
order was issued on May 23, 1988 (Ex. P-9).
The obligation to furnish assistance under 104(f) can arise
only after an order of withdrawal had been issued to Empire.
Since Empire raises the lack of assistance from MSHA to
defeat the citation it is obliged to prove that it fits the
statutory requirements.
It has not done so.
Empire further contends that if a violation exists it should
not be designated significant and substantial.
Empire's view that the violation was not S&S is based on
the Commission's decision in Consolidation Coal Company, 8 FMSHRC
890 (1986), aff'd 824 F.2d 1071 (D.C. Cir. 1987). In support of
its position Empire relies on the following portions of the
Commission decision:
We also find repeated observations in the
legislative history that a respirable dust
standard at or below 2.2 mg/m3 would produce
no danger of miner's developing disability
disease.
8 FMSHRC at 897.
The Commission also commented as follows:
With regard to its ultimate decision to adopt
a 2.0 mg/m3 respirable dust standard, Congress
recognized that in a dust environment below
approximately 2.2 mg/m3, there would be virtually no probability of a miner's contracting
complicated coal worker's pneumoconiosis, even
after 35 years of exposure at that level.
H. Rep. No. 563, supra, at 18, reprinted in
1969 Legis. Hist. 1197-98. The legislative
also reflects awareness that a standard at or
below 2.2. mg/m3 would produce no danger of
miners developing disability disease.
Id~
1969 Legis. Hist. 1277. 8 FMSHRC at 89~

1811

The Commission has also noted that 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." 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., supra
In Mathies Coal Company, 6 FMSHRC 1, 3-4 (January 1984),
the Commission further explained its interpretation of the term
"significant and substantial" as follows:
In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove:
Cl) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard--that is, a measure of
danger to saf ety--contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
In view of case law as enumerated by the Commission it is
apparent that Citation 9996225 was erroneously designated as an
S&S violation.
This designation should be stricken: the evidence
indicates the respirable dust concentration was 2.2 mg/m3.
such
a concentration fails to establish elements (3) and (4) of the
Mathis Coal formula.
Empire also argues that it provided personal protective
equipment to its miners and, further, it contends section 104Cf)
does not designate a respirable dust violation as S&S.
Since the
allegations concerning S&S are to be stricken, it is unnecessary
to consider these additional issues.
Empire also argues the 104(b) order was improperly issued
because Inspector Gibson made no investigation; further, an
extended abatement time would not endanger the health and safety
of the miners and, in addition, the inspector failed to consider
the difficulty of abating the condition.
These arguments are rejected.
Inspector Gibson relied
on the report from MSHA's lab in Pittsburgh.
This constituted

1812

a sufficient investigation particularly where the respirable
coal dust concentrations are rising rather than falling. In
support of its position, Empire cites McCoy Elkhorn Coal Corporation, 2 FMSHRC 3196, 3207 (1980) (Steffy, J.); U.S.Steel
Corp., 2 FMSHRC 1515, 1520 (1980) (Stewart, J.); David Cabrera,
Inc., 2 FMSHRC 338, 341 (1980); (Merlin, J.); Old Ben Coal Co.,
~BMA 292 (1976); and Consolidation Coal Company, 2 FMSHRC 2665,
2667 (1980) (Merlin, J.); Reliable Coal Corp., 1 IBMA 97, 113
(1972); Freeman Coal Mining Corp, 1 IBMA 1, 27,(1970); Consolidation Coal Company, 2 FMSHRC 2665, 2667-8 (Merlin, J.); Consolidation Coal Company, 1 FMSHRC 1638, 1640-1 (Broderick, J.);
Consolidation Coal Company, 4 FMSHRC 747, 752 (1982) (Koutras,
J.); Youghiogheny and Ohio Coal Company, 8 FMSHRC 330, 339
(Maurer, J. ) •
The above cases do not cause me to conclude that Inspector
Gibson abused his discretion.
There had already been a number
of extensions to the original abatement date as noted, infra.
Further, the dust concentrations were obviously rising.
Empire states it was diligent in attempting achievement.
I conclude otherwise.
The initial citation was issued on March 4, 1988, based on
samples taken in February 1988. An abatement date of March 28
was set. New samples taken March 28 indicated Empire remained
out of compliance.
The abatement date was further extended to
April 22, 1988. A few days before April 22 the inspector had
difficulty sampling and an extension of the abatement date was
allowed until May 14. By May 14 additional sampling showed a
significant increase, to an average concentration of 2.9 mg/m3
Finally, the 104(b) order was issued some 80 days after the
initial citation. At about this point in time Empire acted
and presented its amended dust plan to MSHA.
The changes made
by the company were not expensive and they took approximately
four hours to be put into place (Tr. 215).
On the foregoing
evidence,! am unable to conclude that Empire acted diligently.
In sum, this violative condition should have been remedied
before 80 days had expired.
Civil Penalty
The statutory criteria to access a civil penalty is contained in section llO(i) of the Act.
The criterion of gravity and negligence have already been
discussed in the context of the S&S findings and in the failure
to abate findings.

1813

The parties have stipulated that Empire is a large operator
and that imposition of a penalty will not affect its ability to
continue in business. The operator's history is favorable to
Empire: it paid 126 violations in the previous two years.
Four
violations of this specific regulation were paid in that period.
On balance, I de6n that a civil penalty of $100 is appropriate.
For the foregoing reasons I enter the following:
ORDER
1. The contest filed by Cyprus Empire Corporation in
WEST 88-247-R is dismissed.
2.
The designation of Citation No. 9996225 as a significant
and substantial violation is stricken.
3. Citation No. 9996225, as amended, is affirmed and a
civil penalty of $100 is assessed.

Law Judge

Distribution:
R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 600 Grant Street,
58th Floor, Pittsburgh, PA 15219
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294
/ot
1814

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

,. . 't

!

1,·\ I .

22041

{

j

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 89-57
A. C. No. 46-02~45-03621

v.
Portal No. 1
LAUREL RUN MINING COMPANY,
Respondent
DECISION
Appearances:

Nanci A. Hoover, Esq., Office of the Solicitor,
U.S. Department of Labor, for the Secretary;
Marshall S. Peace, Esq., for Respondent.

Before:

Judge Fauver

The Secretary of Labor brought this case for a civil penalty
for an alleged violation of a safety standard, under § llO(a) ot
the Federal Mine Safety and Health Act oE 1977, 30 U.S.C. § 801
et seq.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Findings of Fact
and additional findings in the Discussion below:
FINDINGS OF FACT
1. The parties have stipulated that Respondent's Portal
No. l Mine is subject to the Act.
2.
Prior to June 20, 1988, a two-mile overland belt
conveyor at the mine was owned and operated by Debee Power
Company and was treated by the United States Department of Labor
as being subject to the jurisdiction of its Occupational Safecy
and Health Administration, rather than it3 Mine Safety and Health
Administration.
3.

On June 20, 1988, the owner3hip and opecation of the
ove~land belt were taken over by Respondent without a stoppage of
the belt operation. Under the Department of Labor's guidelines,
the belt became subject to the jurisdiction of MSHA instead of
OSHA on that date.
Becau3e of this change, Respondent requested

1815

MSHA i:.o conduct a "compliance assistance inspection" (or
"courtesy inspection") of the overland belt. Such an
inspection, also known as a "compliance assistance visit" (CAV),
is intended to assist an operator who is starting up new
equipment oc a new process, by pointing out conditions that
require correction to comply with mine safety or health standards.
On such visits, MSHA does not issue penalty citations, but
points out conditions that would be cited as violations in an
ordinary inspection.
4.
Before it began operation of the overland belt on June
20, 1988, Respondent did not conduct an electrical inspection of
i:.he belt.
5. An MSHA team conducted a CAV at the mine on June 23,
1988, to inspect the overland belt. They found and pointed out
numerous conditions that would have been cited as violations in a
regular inspection, including the observation that, under 30
C.F.R. § 77.502, Respondent had been required to conduct a
complete electrical inspection of the overland belt before it
began operation of the belt on June 20, 1988, and that, since it
had failed to do so, Respondent was required to conduct such an
electrical examination immediately, and to make and keep a record
of. it. MSHA personnel also advised Respondent that t~e other
s~ecif ic conditions found by MSHA should be abated in a timely
manner, and that in any future inspection any violative
conditions would be cited as violations.
6. On June 29, 1988, MSHA In.:;pector Michael .Kalich, who had
been part of the MSHA CAV on June 23, 1988, inspected the
overland belt and found that a complete alectrical examination of
the belt had still not been conducted and recorded by Respondent.
Based upon that finding, be issued§ 102(j)(2) Order 3107213
charging a violation of 30 C.F.R. § 77.502, alleging that the
violation was "significant and sub~tantial" and was due to an
"unwarrantable" failure to co1nply with the standard.
7.
MSHA Inspectors Michael Kalich and Wayne Fetty, both
electrical inspectors from MSHA's Morgan~own District Office,
Charles Wotring, a mine inspector from MSHA's Oakla~d Field
Off ice, and Barry Ryan, a supervisor fro~ the Oakland Field
Office, conducted the CAV on June 23, 1988. They found and
pointed out Eifteen different electrical deficiencies on the
overland belt, in addition to a number of other unsafe conditions
on the belt, which would have been cited as violations if this
had been a regular inspection.
8.
At the conclusion of the CAV on June 23, 1988, a
close-out conference was held. The problems noted were gone over
and discussed with mine management and union representatives.
It was emphasized by the MSHA electrical inspectors that a
complete electrical exa1ninacion of the overland belt was required
by 30 C.F.R. § 77.502. They pointed out that part of the reaaon

1816

that this failure was deemed important to MSHA was the existence
of the many electrical and other unsafe conditions on the
overland belt. Respondent was also told that the complete
electrical examination, which should have been performed upon
takeover of the belt, had to be done immediately, and that all
the other items noted must be corrected in a timely fashion.
No
particular date was given for the return inspection, but it was
made clear by the MSHA personnel that enforcement citations and
orders would be issued if violative conditions were found during
the next inspection.
9. On June 29, 1988, Inspector Kalich returned for a normal
spot inspection. He found that a complete electrical examination
had still not been made of the overland belt. Only four or the
items previously noted on June 23, 1988, had been corrected.
Inspector Kalich issued six citations and one order for the
conditions he found to be violations of safety standards. The
or<ler charged a violation of 30 C.F.R. § 77.502.
DISCUSSION WITH FURTHER FINDINGS
Section 77.502 provides that:
Electric equipment shall be frequently examined,
tested, and properly maintained by a qualified person
to assure safe operating conditions. When a potentially
dangerous condition is found on electric equipment, such
equipffient shall be removed from service until such
condition is corcected. A record of such examinations
shall be kept.
Subsections of this standard provide further clarification of
what is required:
§ 77.502-1 defines who is a qualified person,
and§ 77.502-2 states that the required examinations and tests
"shall be conducted at least monthly."
Respondent contends that it ~as in ita initial ''month" of
responsibility for the overland belt and therefore had until the
end of tne month, i.e., June 30, to complete the examination.
The Secretary contends that the regulation requires a complete
electrical examination before starting up a new (or newly
acquired) conveyor belt system.
I find that Respondent's interpretation is not a logical
position. Upon the takeover or start up of newly acquired
equipment, the operator must be in compliance with the laws and
regulations.
There is no grace period applicable in this type of
situation. The purpose of the Mine Act anj it3 implementing
regulations is to ensure the safe working conditions of those who
work in the mining industry. To allow an operator a month in
which to came i11 compliance with safety standards while the
equipment is ~eing operated would th~art the strong public policy
behind the Act. The Secretary's requirement that an operator

1817

conduct a complete electrical examination upon takeover of a
conveyor belt is a logical and reasonable interpretation of
§ 77.502.
Respondent argues that there i3 no requirement for a
complete electrical examination. This reading of the regulation
is not a reasonable interpretation.
If the regulation did not
require a complete examination, the purpose behind the
examination would be thwarted.
Section 77.502 states that an
electrical examination shall be conducted to "assure safe
operating conditions." If the examination is not complete, there
can be no reasonable assurance that the equipment is safe.
The Secretary presented uncontradicted expert opinion
testimony that this violation was "significant and substantial."
This violation presented many risks to the rninacs' safety.
Without an adequate electrical examination and the required
tests, operation of the belt could result in an overload, a short
circuit, overheating, or a fire causing serious injuries or even
iatalities.
In addition, the Secretary presented uncontradicted expert
opinion testimony that the violation was an "unwarrantacle"
failure to comply with the safety standard.
In order to make a
finding of an unwarrantable violation, aggravated conduct
constitutin3 more than ordinary negligence must be shown. Emery
Mining Corporation v. Secretary, 9 FMSHRC 1997 (1987). The
operator was clearly more than just negligent in this case. On
June 23, 1988, MSHA personnel observed the absence of the
required electrical examination, explained what haa to be done,
and stated that it should be done immediately.
However, six days
later, on JQne 29, 1988, Inspector Kalich found that a complete
electrical examination had still not been made and the belt
system was operating with numerous safety violations.
In view of
the clear prior notice by MSHA, the operator's subsequent
operation of the belt without a complete examination constituted
an unwarrantable failure to comply with§ 77.502.
Considering each of the criteria for a civil penalty in
llO(i) of the Act, I find that a penalty of $500 is appropriate
for this violation.

§

CONCLUSIONS OF LAW

1.

The judge has jurisdiction over this proceeding.

2. Respondent violated 30 C.F.R. § 77.502 as alleged in
Order 3107213.
ORDER
Respondent shall pay the above civil penalty of $500 within
30 days of this Decision.

1818

Q;J_t.;__
:r~--~
William Fauver
Administrative Law Judge
Distribution:
Nanci Hoover, Esq., Office of the Solicitor, U.S. Departillent of
Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
Marahall Peace, Esq., Laurel Run Mining Company, 250 W. Main
Street, P.O. Box 11430, Lexin~ton, KY 40575 (Certified Mail)

iz

1819

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

/

22041

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 88-206
A. C. No. 15-12672-03510

v.
River Dredge
LOUISA SAND AND GRAVEL,
COMPANY, INC.,
Respondent
DECISION
Appearances:

T. Knauff, Esq., Office of the Solicitor,
U.S. Department of Labor, for the Secretary;

~nne

Mr. Gene A. Wilson, Louisa, KY, for Respondent.
Before:

Judge Fauver

This proceeding was brought by the Secretary of Labor for
civil penalties for alleged violations of safety standards, under
§ 110 (a) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq.
The case involves two citations. At the hearing the parties
moved for approval of a settlement of Citation 2773586, for a
civil penalty of $20. The settlement was approved, and the
amount is included in the Order below.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Findings of Fact
and additional findings in the Discussion below:
FINDINGS OF FACT
1. Respondent and its predecessors-in-interest have
operated a river dredging operation year-round on the Big Sandy
River, near Louisa, Kentucky, for more than eight years.
Legal
Identity Forms filed with the Mine Safety and Health
~dministration show that the operation was called Gene A. Wilson
Enterprises on December 22, 1980, the name was changed to Rivco
Oredging Corporation on ~ovember 28, 1983, and changed again on

1820

February 1, 1988, to Louisa Sand and Gravel Company, Inc. 1/
Despite the name changes, the Federal rn nwnber has been the same
since its inception, and there is a clear continuity of
successors-in-interest at this dredging site.
2. The Big Sandy River is the boundary between Kentucky and
West Virginia. Respondent dredges sand, coal and debris from the
river bottom to its processing plant on the Kentucky shore.
Interstate sales and distribution of coal are regular.
3. At all relevant times, near the center of Louisa's
operations, between the preparation plant and the garage, there
was a 3,000-gallon fuel tank used to fuel Respondent's vehicles.
An electrical box on a utility pol2 was next to the tank. A #10
wire ran from the pole to a fuel pump near the tank.
4. During an electrical spot inspection on June 21, 1988,
Federal Mine Inspector Thomas E. Goodman, an electrical
inspector, observed that proper overload or short-circuit
protection was not provided for the #10 wire, which transmitted
110/220 volt single-phase power to the plugs on the utility pole
and beyond to the fuel pump. The #10 wire was connected to a
220-amp circuit breaker. The inspector believed that, in the
event of a fault in the electrical current, the wire probably
would have burned with a high danger of a fuel explosion at the
tank. He issued Citation 2769952, under§ 104(a) of the Act,
charging a violation of 30 C.F.R. § 77.506, which provides:
Automatic circuit-breaking devices or
fuses of the correct type and capacity shall
be installed so as to protect all electric
equipment and circuits against short circuit
and overloads.
DISCUSSION WITH FURTHER FINDINGS
Respondent has challenged the jurisdiction of MSHA's
Division of Coal Mine Safety and Health, and the characterization
of its dredging operation as a "mine." It contends that,
although it is subject to the Act, its operations should come
under the Metal/~onmetal Mining regulations (30 C.F.R. Part 56)
instead of the Coal Mining regulations (Part 77), and it should
be investigated by MSHA's Division of Metal and ~onmetal Mine
Safety and Health, and not the Coal Mine Division.

1/ To conform to the evidence as to the correct corporate name,
the name of Respondent in this Decision and in the caption is
changed to read "Louisa Sand and Gravel Company, Inc."

1821

The Act has a broad definition of a "coal or other mirie" as
follows (30 U.S.C. § 802):
(h) (1) "coal or other mine" means (A)
an area of land from which minerals are
extracted in nonliquid form or, if in liquid
form, are extracted with workers underground,
(B) private ways and roads appurtenant to
such areas, and (C) lands, excavations,
underground passageways, shafts, slopes,
tunnels and workings, structures, facilities,
equipment, machines, tools or other property
including impoundments, retention dams, and
tailings ponds, on the surface or
underground, used in, or to be used in, or
resulting from, the work of extracting such
minerals from their natural deposits in
nonliquid form, or if in liquid form, with
workers underground, or used in, or to be
used in,
the milling of such minerals or the
work of preparing coal or other minerals, and
includes custom coal preparation facilities.
In making a determination of what constitutes
minimal milling for purposes of this Act,
the Secretary shall give due consideration to
the convenience of administration resulting
from the delegation to one ~ssistant
Secretary of all authority with respect to
the health and safety of miners employed at
one physical establishment;
(2) For purposes of titles II, III, and
IV, "coal mine" means an 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 bitQminous 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 custrnn coal
~reparation facilities * * *·
Respondent acknowledges that most of what it sells is coal
and that at all times relevant it did not sell the sand dredged
from the river.
Six to eight per cent of what is dredged from
the .river is coal and "the remainder is sand and other debris and
stuff" (Tr. 137-138).

1822

In Marshall v. Stoudt's Ferry Preparation Co., 602 F. 2d 589
(3rd Cir. 1979), the court held that the process of separating
from dredged refuse a burnable product "akin" to coal, sold as a
low-grade fuel, came within the Act's definition of "mining." A
fortiori, Respondent's work of dredging material from a river and
separating coal for sale is "mining" within the meaning of the
~ct.
As the court stated, the legislative history of the Act
shows that "what is to be considered a mine and to be regulated
under the Act is to be given the broadest possible interpretation
and • • • doubts [are] to be resolved in favor of inclusion of a
facility within the coverage of the Act." 602 F. 2d at 592.
Respondent does not dispute that its dredging business is
engaged in commerce and is therefore subject to the Act.
If
contends, hbwever, that it is mining sand, and the coal dredged
is only an incidental product. It relies upon the decision in
Kanawha Dregding and Minerals Co., Ltd. v. U.S., 47 CCH Federal
Excise Tax Reports 7045 (U.S.D.C. S.D. WV 1987), holding that a
coal dredging operation was not subject to the Black Lung Excise
Tax Law and regulations. The law involved in that case imposed
an excise tax on "coal sold by the producer from mines in the
United States at the rate of [$1.00] per ton in the case of coal
from underground mines" and "(50] cents per ton in the case of
coal from surface mines." The court found that the coal dredged
had spilled into the river in the transportation of coal produced
by other companies, that the required tax on the coal had already
been paid by the original coal producers, and that the dredging
company therefore was not a "'producer' of coal from a mine
within the meaning of the Black Lung Bxcise Tax Law and
regulations • •
" That case is not relevant to the question
of jurisdiction in this proceeding.
The same issue involved here was raised by ~espondent in an
opinion request to MSHA before the instant citation was issued.
1n a letter to Respondent dated February 11, 1987 (a copy of
which is attached to the Secretary's posthearing brief), MSHA
stated that Respondent's selling of clean coal processed fro1n
material removed from the river is sufficient to bring its
operation under the jurisdiction. of MSHA's Coal Mine Division
rather than its Division of Metal and Nonmetal Mine Safety and
Health.
On September 8, 1988, in a civil penalty case against
Respondent's predecessor-in-interest (Rivco Dredging
Corporation), Commission Judge Maurer held that its dredging and
preparation operations were covered by the Act. Judge Maurer
declined to rule on the company's contention that the operations
should be investigated ~Y MSR~'s Division of Metal and Nonmetal
Safety and Health instead of its Division of Coal Mine Safety and
Health.
I hold that (1) Respondent's dredging and preparation
operations are covered by the ~ct and (2) such operations are

1823

subject to 30 C.F.R. Part 77. It follows from this that MSHA's
Division of Coal Mine Safety and Health is an appropriate agency
to conduct safety and health inspections of Respondent's
operations.
Gene A. Wilson testified that he had notice of a problem
with the wiring to the fuel tank in 1986, when MSHA's Field
Off ice Supervisor Wayne Wefenstette inspected the area and told
him, "I want thi~ cord off the ground. I want you to put it in
[a] conduit • • • • Somebody could get electrically shocked here."
Tr.38. The wire was put into a conduit.
Mr. Wefenstette testified that he conducted a courtesy
inspection 2/ of Respondent's operations in the summer of 1986~
that he is not qualified to do an MSHA electrical inspection (Tr.
7>; that he checked only the "outside areas" of electrical
installations, not the circuit breakers (Tr. 7), and that he does
not recall observing the electrical pump wire during his courtesy
inspection (Tr. 54), or talking to Mr. Wilson about wiring to a
fuel tank (Tr. 35). Mr. Wefenstette also stated that, had he
seen the extension cord lying in the dirt with a plug nearby, he
would have advised the operator that the cord should have been
off the ground and in a conduit.
Respondent contends that putting the electric cord into a
conduit and getting it off the ground was done to comply with an
MSHA directive and that MSHA should not be penalized for the
the absence of a proper circuit breaker discovered in a later
inspection.
Protection of the cord by a conduit is unrelated to the
safety requirements for an appropriately-sized circuit breaker.
The two situations are covered by different sections of the Code
of Federal Regulations. I reject Respondent's contention that a
nonelectrical inspector's courtesy advice about the need for a
conduit excused Respondent from having a certified electrician
ensure that the circuit breaker was the right size for the wire
to the fuel pump.
I find that the violation was due to moderate n~gligence.
I
also find that it was a substantial and significant violation.
The use of an excessive circuit breaker created a serious risk of
an electric shock or fire causing serious injuries, with a
reasonable likelihood that such injuries would occur if mining
operations continued without abatement of the viol~tion.
2/ A courtesy inspection, also known as a compliance assistance
CCAV), is like a regular MSHA inspection, but enforcement
citations are not issued. Instead, the inspector informally
advises to the operator of any conditions he observes that
require correction to comply with safety or health standards.

~isit

1824

An updated compliance history of this mining operation
(marked as an update of Government Exhibit 2) shows delinquent
civil penalties of $488 out of total assessments of $1,547 in the
two-year period before the subject citation.
If the non-payment
record is accurate, Respondent is responsible for these
delinquencies either as the named operator or as a successor-ininterest and the delinquencies would be considered as part of
Respondent's compliance history.
However, Respondent's attorney
states in a letter of September 11, 1989, that "all citations
have been taken care of" and "Wo citation penalties are known to
be outstanding." This representation has not been rebutted by
the Secretary. Therefore, it is presllined there are no
delinquencies of penalties due.
Considering all of the criteria for a civil penalty in
of the ~ct, I find that a penalty of $130 is appropriate
for the violation found herein.

§ llO(i)

CONCLUSIOWS OF LAW
1.

The judge has jurisdiction over this proceeding.

2.
Respondent violated§ 77.506 as alleged in Citation
2769952.
3.
Respondent violated§ 77.204 as alleged in Citation
2773586.
ORDER
Respondent shall pay the above civil penalties of $150
within 30 days of this Decision.

~~
~~vtA...
William Fauver
Administrative Law Judge
Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
Gene~.

Wilson, ~resident, Louisa Sand and Gravel Company, Inc.,
101 Madison Street, Louisa, KY 41230 (Certified Mail)

iz

1825

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

20006

September 26, 1989

CIVIL

SFCRF'J:'J.\RY OF LABOR,
MI~F.

SAFF.'I'Y AND HFJ.\LTH
(MSHA),
Pet:itioner

P~NALTY

~ROCE~DINGS

Docket No. WEVA 89-96
A. C. No. 46-01453-03841

ADMINISTRA~ION

v.

Humphrey No. 7 Mine

CONSOLIDATION COAL CO~PANY,
Respondent

Docket No. WFVA 89-159
A. C. No. 46-01968-03800

.

Blacksville No. 2 Mine

.

Docket No. W~VA 89-162
A. C. No. 46-01318-03872
Docket No. WEVA 89-170
A. C. ~o. 46-01318-03873
Docket No. ~VA 89-171
A. C. No. 46-01318-03877
Robinson Run No. 95 Mine
Docket No. WFVA 89-183
A. C. No. 46-01453-03848
Humphrey No. 7 Mine
D"F.'CISION

Appearances:

Ronald Gurka, Rsq., Office of the
Solicitor, U. s. Department of Labor,
Arlington, Virginia, for Petitioner:
Michael R. Peelish, ~sq., Consolidation
Coal Company, Pittsburgh, Pennsylvania for
Respondent.

Before:

Judge Merlin

When the above-captioned cases came on for hearing
counsel for both parties advised that settlements had been
reached.
With the permission of the bench these settlements
were placed upon the record.
Other cases scheduled for
hearing at the same time were heard on the merits.

1826

WEVA 89-96
~his case involves eight violations which were originally assessed at $ 6, 65 0.
'l'he proposed set:. tlement is for
$5,800.

Order ~o. 3106712 was issued for a violation of
30 C.F.~. § 75.208 because a visible warning sign or a physical barrier was not installed t:.o impede travel beyond permanent roof supports in the face areas of a section.
~he
penalty was originally assessed at $850 and the proposed
set:.tlement is for $700.
~he Solicitor represents that the
penalty reduction is warranted because negligence is somewhat
less t:.han originally thought.
~he parties agree t:.hat there
was a dispute about how this standard was to be interpreted.
~he foregoing representations were accept:.ed trom the bench
and the proposed settlement was approved.
Order No. 3113111 was issued for a violation of
30 C.F.R. § 75.400 because loose coal, coal dust and float
coal float were permitted to accumulate in twelve different
locations in the in take air escapeway.
The penalty was
originally assessed at $850 and the proposed settlement is
for $650.
~he Solicitor represents that the penalty
reduction is warranted because negligence is less than
originally thought. Although there had been an inspection,
there was not conclusive proof that the operator knew the
extent of this condition immediately prior to the order being
issued. The foregoing representations were accepted from the
bench and the proposed settlement was approved.
Order ~os. 3113118 and 3113119 were issued for violations of 30 C.F.R. § 75.1403-9(c) because shelter holes
were not being maintained free of obstructions~
The
penalties were originally assessed at:. $750 each and the proposed settlement for each is $500.
~he Solicitor represents
that the penalty. reductions are warranted because gravity is
less than originally thought. Only one miner would be
affected and the hole probably· could protect:. him. ~lso the
track was straight so there would be increased warning.
The
foregoing representations were accepted from the bench and
the proposed settlements were approved.
The operator has agreed to pay the original assessments
for the remaining four violations involved in this case.
The
circumstances of these violations were explained on the
record and I accepted the proffered amounts from the bench.
WEVA 89-159
This case involves one violation which was originally
assessed at $850 and the operator has agreed to pay the
original assessment in full.
The circumstances of chis vio-

1827.

lation were explained on the record and T accepted the
proffered amount from the bench.
WEVA 89-162

This case involves two violations which were originally
assessed at $2,100. The proposed settlement is for $1,850.
Order No. 2943933 was issued for a violation of
30 C.F.~. § 75.400 because combustible material was permitted
to accumulate at a belt starter box.
~he penalty was
originally assessed at $1,000 and the proposed settlement is
for $750. The Solicitor represents that the penalty reduction is warranted because negligence is less than originally
thought.
This condition existed for only a short time before
the order was issued.
~he foregoing representations were
accepted from the bench and the proposed settlement was
approved.
~he operator has agreed to pay the original assessment
of the $1,100 for the other violation involved in this case.
~he circumstances of the violation were explained on the
record and T accepted the proffered amount from the bench.

WFVA 89-170
~his case involves two violations which were originally
assessed at $1,900. The proposed settlement is for $1,300.

Order No. 3119763 was issued for a violation of
30 C.F.R. § 75.303 because an inadequate preshift examination
was performed on a bleeder section construction area.
The
penalty was originally assessed at $900 and the proposed
settlement is for $700.
The Solicitor represents that the
penalty reduction is warranted because negligence is less
than originally thought. The company was uncertain whether a
preshift examination was required because this was a construction area.
The foregoing representations were accepted from
the bench and the proposed settlement was approved.
Order No. 3119498 was issued for a violation of
30 c.~.~. § 75.400 because combustible material was allowed
to accumulate on a longwall section.
~he penalty was originally assessed at $1,000 and the proposed settlement is for
$600.
~he Solicitor represents that the penalty reduction is
warranted because negligence is less than originally thought.
~his condition existed for only a short time before the order
was issued.
~he foregoing representations were accepted from
the bench and the proposed settlement was approved.

1828

WEVA 89-171
This case involves one violation which was originally
assessed at $1,100. The proposed settlement is for $700.
Order No. 2944262 was issued for a violation of
30 C.F.R. § 75.400 because combustible material was allowed
to accumulate in a section.
~he Solicitor represents that
the penalty reduction is warranted because negligence is less
than originally thought.
~here is some dispute, depending on
where samples were taken, as to whether the area was adequately rock dusted. The foregoing representations were accepted
from the bench and the proposed settlement was approved.
WBVA 89-183
~his case involves one violation which was originally
assessed at $206 and the operator has agreed to pay the
original assessment in full.
"?he circumstances of this violation were explained on che record and I accepted the
proffered amount from the bench.

ORDER

In light of the foregoing the recommended settlements
are APPROVFD and the operator is ORD~R~D 'I'O PAY the following
amounts within 30 days from the date of this decision.
WEVA 89-96
Citation No.

Amount

3106712
3113111
3113114
3113115
3113116
3113117
3113118
3113119

$ 700
$ 650
$1,000
$ 850
$ 750
$ 850
$ 500
$ 500
$5,800

Total
WRVA 89-159
3100883

$

850

WEVA 89-162
2944067
2943933

$1,100
$ 750
$1,850

Total
WEVA 89-170

3119763

$

1829

700

$ 600
$1,300

3119498
'T'otal
WFVA 89-171
2944262

$

700

$

206

WT"VA 89-183
2943993
Grand

$10,706

~otal

Paul Merlin
Chief Administracive Law Judge
Distribution:
Gurka, ~sq., Page H. Jackson, ~sq., ,Jack Strausman,
Office of the Solicitor, U. ~. Department of Labor,
4015 Wilson Boulevard, Room 516, Arlington, V~ 22203
(Certified Mail)
~onald

~sq.,

Michael q. Peelish, ~sq., Consolidation Coal Company, Consol
Plaza, 1800 Washington l?.oad, Pittsburgh, PA. 15241
(Certified Mail)
Robert Strapp, Fsq., General Counsel, UMWA, 900 15th Street,
Washington, DC 20005
(Certified Mail)

~.w.,

/gl

1830

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

22041

SEP 2 71989
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF KEVIN BUREAU,
Complainant

Docket No. LAKE 89-70-DM
MD 87-46

v.
Ropes Gold Mine
CALLAHAN MINING CORP.,
Respondent
DECISION APPROVING SETTLEMENT
AND DISMISSING PROCEEDING
Before:

Judge Broderick

On September 25, 1989, the Secretary filed a motion to
dismiss this proceeding and to approve a settlement between
the parties. Kevin Bureau was discharged by Respondent on
July 1, 1989. He has worked for several other employers
since that date and is presently employed. He does not
wish to be reinstated to his former position or any other
position with Respondent.
The settlement agreement provides that Respondent will
pay Bureau the sum of $20,000; that it will not discriminate
against any employee who asserts rights under section lOS(c)
of the Act; that it will post a notice at the mine for 30 days
to that effect; that none of Bureau's personnel records refer
to the incidents of June 30, 1987 and July 1, 1987, leading
to his discharge. The Secretary withdraws her ptition for
a civil penalty.
I have considered the motion in the light of the
purposes of section lOS(c) of the Act and conclude that the
motion should be granted and the settlement approved.
Accordingly, the settlement is APPROVED, the motion is
GRANTED and this proceeding -is DISMISSED.

r'

-/tz James
"v-:? ..~/;_, .. _,ck ..•
E
A. Broderick
__ . : / , f l : ' : °

1
"

J

·

,

,•

, L.-~·-?"';.
/7
,
/_.!''

t

.:

Administrative Law Judge

1831

Distribution:
Miguel J. Carmona, Esq., U.S. Department of Labor, Office of
the Solicitor, ~30 S. uearborn St., Chicago, IL 60604 (Certified
Mail)
Ronald D. Keefe, Esq., Kendricks, Bordeau, Adamini, Keefe,
Smith & Girard, P.C., 128 W. Spring Street, Marquette, MI
49855 (Certified Mail)
slk

1832

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
ADMINSI'rRA'rION .(MSHA)'
Petitioner

v.
LYON WASHED SAND AND GRAVEL,
Respondent

..
.
..

CIVIL PENALTY PROCEEDING
Docket No. LAKE 89-28-M
A.C. No. 21-00562-05502
Lyon Washed S&G

DBCISION
Appearances:

Before:

Miguel J. Carmona, ~sq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois, for
the Secretary of Labor (Secretary); Ted Anderson,
Owner, for Lyon Washed Sand and Gravel (Lyon).

Judge Broderick

STATEMENT OF THE CASE
The Secretary seeks civil penalties for five alleged
violations by Lyon of mandatory safety standards. Pursuant to
notice, the case was called for hearing in Marshall, Minnesota,
on September 6, 1989. Michael Roderman testified on behalf of
the Secretary. Ted Anderson testified on behalf of Lyon. The
parties waived their right to file posthearing briefs, and each
argued its case on the record. Based on the entire record and
considering the contentions of the parties, I make the following
decision.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Lyon is the owner and operator of a sand and gravel pit in
Lyon County, Minnesota. The mine is a small mine, employing
approximately four persons and producing approximately 60 to 80
thousand tons of gravel per. year. During the two years prior to
the violations alleged here, Lyon had no paid violations of
mandatory standards.
Three of the violations charged involve the failure to have
cover plates on electrical equipment; the other two involve
inadequate splices in power cables. All violations were abated
promptly in good faith.

1833

COVER PLATES
30 C.F.R. § 56.12032 provides as follows:
Inspection and cover plates on electrical equipment and
junction boxes shall be kept in place at all times
except during testing or repairs.
On July 7, 1988, Federal mine inspector Michael ~oderman
issued citation 3078987 during a regular inspection of the
subject mine. The citation charged that the door to an
electrical control cabinet was left open, exposing 480 volt
electrical circuits. The cabinet was in a trailer but access to
it was not restricted. Neither testing nor repairs were being
performed at the time.
I conclude that a violation of the
standard was established. It was moderately serious and, since
it was known or should have been known to Lyon, it was the result
of negligence. Based on the criteria in section llOCi) of the
Act, 1 conclude that $75 is an appropriate penalty for the
violation.
On the same day the inspector issued Citation 3078988
because a cover plate was missing from a 480 volt stoker conveyor
motor. the motor was in a small metal box, about 5 or 6 inches
square. Electrical connections were exposed. the motor was
about 8 feet above a walkway and therefore employee exposure was
limited. Ted Anderson testified that the cover plate was
left off to dry the motor out, because 90 percent of motor
failures are caused by moisture. I conclude that the evidence
establishes a violation of the standard. Because of the location
of the motor it was not serious and was not caused by negligence.
An appropriate penalty for the violation is $20.
On the same day the inspector issued citation 3078989
because a cover plate on a rock picker motor was left off. 480
volt electrical wires were protruding from the junction box. The
motor was about 10 feet above the ground and was unilkely to be
contacted by persons. I conclude that a violation of the
standard was established, that it was not serious, but was the
result of Lyon's negligence. $30 is an appropriate penalty for
the violation.
PERMANENT SPLICES
30 C.F.R. § 56.12013 provides:
Permanent splices and repairs made in power cables,
including the ground conductor where provided, shall
be:

1834

(a) mechanically strong with electrical conductivity as
near as possible to that of the original;
(b) insulated to a degree at least equal to that of the
original, and sealed to exclude moisture; and

(c) provided with damage protection as near as possible
to that of the original, including good bonding to the
outer jacket.
On July 7, 1988, Inspector Roderman issued citation 3078990
because a 480 volt power cable feeding the rock picker motor had
a splice made with wire nuts, not sealed to prevent moisture.
The splice was not mechanically strong, was not insulated to
a degree equal to that of the original, and was not bonded to the
outer jacket. The cable was subject to vibration and was in an
area where it could be contacted by persons, and a serious, even
a fatal injury could result. I conclude that a violation of the
standard was established. It was moderately serious and was the
result of Lyon's negligence. I conclude that $100 is an
appropriate penalty for the violation.
On the same day the inspector issued citation 3078991
because a splice in a 480 volt cable leading to an electrical
motor junction box about 12 inches from the box was made with
wire nuts, not sealed to prevent moisture. The splice was not
mechanically strong, was not insulated to a degree equal to that
of the original, and was not bonded to the outer jacket. Because
of its location, it was not normally accessible to persons, and
was unlikely to cause injury. I conclude that a violation of the
standard was established. It was not serious, but was caused by
negligence. $20 is an appropriate penalty for the violation.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Citations 3078987, 3078988, 3078989, 3078990 and 3078991
are AFFIRMED.
2. Within 30 days of the date of this decision Lyon Washed
Sand and Gravel shall pay the.following penalties:
CITATION

PENALTY

3078987
3078988
3078989

$ 75
20
30

1835

3078990
3078991

100
20
$245

?

J

{l:1U--5

~(l:f,,--vcl-v/"/ ~

James A. Broderick
Administrative Law Judge

Distribution:
Miguel J. Carmona, Esq., U.S. Department of Labor, Office of the
Solicitor, 230 s. Dearborn Street, Chicago, IL 60604 (Certified
Mail)
Mr,. Ted Anderson, Owner, Lyon Washed Sand and Gravel, 703 South
Bend Avenue, Marshall~ MN 56258 (Certified Mail and Regular Mail)

slk

1836

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

22041

SEP 2 8 1989
CONTEST PROCEEDING

SOUTHERN OHIO COAL COMPANY,
Contestant

v.

Docket No. WEVA 88-349-R
Order No. 3105926; 8/2/88
Martinka No. 1 Mine
Mine ID 46-03805
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'rRATION (MSHA)
Petitioner

Docket No. WEVA 89-10
A. C. No. 46-03805-03876

v.
Martinka No. 1 Mine
SOUTHERN OHIO COAL COMPANY,
Respondent
DECISION
Appearances:

David M. Cohen, Esq., American Electric Power
Service Corporation, Lancaster, Ohio, for the
Secretary;
Thomas A. Brown, Esq., Office of the Solicitor,
U. S. Department of Labor, Philadelphia,
Pennsylvania, for the Respondent.

Before:

Judge Weisberger

Statement of the Case
In these consolidated cases, the Secretary (Petitioner)
seeks a civil penalty for an alleged violation of the Operator
(Respondent) of 30 C.F.R. § 75.1003-1. Pursuant to notice, these
cases were heard in Morgantown, West Virginia, on May 31, 1989.
At the hearing, Homer Delovich·and Albert Kirtchartz testified
for Petitioner, and Fred Rundle, III, and Dewey Ice testified for
Respondent.
Proposed Findings of Fact and Briefs were filed by
Petitioner and Respondent on September 7 and 8, 1989, respectively.
Stipulations
1. The Administrative Law Judge had jurisdiction over this
proceeding.

1837

2. The Martinka No. 1 Mine of Southern Ohio Coal Com.pany is
atf iliated with the American Electric Power Service Corporation.
3. Martinka No. 1 Mine and the Southern Ohio Coal Company
are subject to the jurisdiction of the Federal Mine Safety and
Health Act of 1977.
4. Order ~o. 3105926 was properly served by a duly authorized representative of the Secretary of Labor upon the agent or
the respondent on the date, time and at the place stated therein.
5. Copies of the Order No. 3105926 are authentic and may be
admitted into evidence tor the purpo~e of establishing the
issuance.
6. The Assessment of civil penalty for this proceeding will
not affect the Respondent's ability to continue in business.
7. The annual coal production of the Marcinka No. 1 Mine
was 2,872,018 tons for 1988.
8. There was no intervening inspection prior to the issuance
of the August 2, 1988 Order No. 3105926. The printout of the civil
penalty complaint reflects the Secretary of Labor's history of
violations of the Martinka No. 1 Mine.
9. There were approximately 934 inspection days of the
Martinka No. 1 Mine in the 24 month period prior to the issuance
of Order No. 3105926.
Findings of Fact and Discussion

I.
During the weekend of July 29 - 30, 1988, two flat cars containing a 1000 foot section of belting were placed in the 13 left
track chute, after'having been transported two miles from the
surface of the mine on July 28, 1988. On August 1, 1988, Homer
Delovich, an MSHA Inspector, performed an inspection of
Respondent's Martinka No. 1 Mine in response to a request that
has been filed for a section 103(g) inspection, alleging that the
height of the loaded belting·was 57 inches above the track rail.
Delovich testified that on August 1, he measured the distance
between the track rail and the trolley wire, which was suspended
from the roof by hangers. At five locations at the 13 left
switch and outby and inby that location, the distance was between
56 1/2 and 54 inches. On August 2, 1988, Delovich continued his
inspection in the first shift (12:00 p.m. to 8:00 a.m.), and
in1icated that, using a tape measure, he measured the distance

1838

from the track rail to the top of the belting at its highest
point. This distance was 57 inches.
Albert Kirtchartz, a plant
1nechanic for Respondent, who accompanied Delovich as a member of
the Safety Committee of the Local Union, indicated that he agreed
with Delovich's measurements of the distance between the track
and the trolley wire. Dewey Ice, Respondent's Accident
Prevention Officer, essentially agreed that the belting in the
flat cars was 57 inches hign, and the trolley wire was 56 or
56 1/2 inches. Delovich issued a section 104(d)(2) Order
alleging a violation of 30 C.F.R. § 75.1003-1 which provides as
follows:
"Adequate precaution shall be taken to insure that
equipment being moved along haulageways will not come in contact
with trolley wires or trolley feeder wires."
Respondent, in essence, argues that the belting in question
is not "equipment" within the purview of section 75.1003-1, supra.
Webster's New Collegiate Dictionary, 1979 edition, defines equipment, as pertinent, as "2a: the set of articles or physical
resources serving to equip a person or thing; as (1):
the implements used in an operation or activity . • .
" Accordingly,
inasmuch as the testimony indicates that the belting is used to
transport materials in Respondent's mining operation, it is clear
that it comes within the definition of "equipment," and thus is
within the purview of section 75.1003-1, suora. According to the
uncontradicted testimony of Ice, as depicted in SOCO Exhibit 2,
the trolley wire was 5 to 7 inches beyond the track in the direction of the rib; the flat car extended 18 inches beyond the track
toward the rib; and the belting was 19 inches "inside the most
outside part of the car" (Tr. 106). Thus, the wire was at least
5 to 7 inches removed from the belt in a horizontal direction.
Ice further indicated that he had not observed the belting
shifting from side to side while it was being transported.
However, the evidence unequivocally establishes that the height
of the belting exceeded that of the trolley wire, and ~ce indicated, in essence, that, due to the shifting of the track, the
distance between the flat car and the trolley wire could be
further decreased. As testified to by Delovich and Kirtchartz,
and not contradicted by Respondent's witnesses, should the
belting come in contact with the trolley wire, it could cause a
hanger to come loose, thus knocking the trolley wire down,
creating a fire hazard. Respondent argues that the fact that the
belting was transported over two miles, on July 28, without any
problems, establishes that ·adequate precaution had been taken.
Although the two mile trio, on July 28, might have been
fortuitous, the record falls to indicate that Respondent took any

1839

precaution prior to the transporting of the belting to insure
that it would not come in contact with the wires.~/ Accordingly,
I find that Respondent herein did violate section 75.1003-1,
supra.
II.
In essence, it was Delovich's testimony that the violation
herein should be considered significant and substantial, inasmuch
as the height of the belting exceeded that of the trolley wire,
and " • • • that it did come in contact and the continuance of
this practice with this piece of equipment, eventually lead to an
accident" (Tr. 39).
(sic). He was asked to indicate the hazards
of this condition, and he indicated that damage of the trolley
wire "· • • leads to a fire or electrical shock to the persons
working" (Tr. 39). In its brief, Petitioner cites the testimony
of Kirtchartz who indicated that if material is loaded above the
end of the cars it "could" contact the trolley wire (Tr. 74).
Petitioner also cites the te3timony of Ice and Fred Rundle, III,
~eapondent's midnight shift supervisor, who indicated that if the
belting is high enough to contact the trolley wires, there exists
the possibility of a hazard. Although ~his testimony tends to
establish that the hazard of contact with the trolley wire could
occur, it does not establish that such a hazard was reasonably
likely to occur.~/ As such, I £ind that the violation herein was
not significant and subscantial (See, Consolidation Coal Company,
6 FMSHRC 189, at 180, 193 (February 1984)); Mathies coal Co.,
6 FMSHRC 1 (January 1984)).
III.
According to the testi~ony of Delovich, when he investigated
the section 103(g) complaints an August 1, 1988, he interviewed
Bill Lucas and Danny Wade, who were the motormen who moved the
belting on July 28, 1988, from outside the mine, a distance of
2 miles to the 13 left track chute. In essence, he indicated

!I In its brief, ~espondent argues that adequate precautions were

taken inasmuch as Rundle, the shift supervisor, indicated that
when belting is transported the tail motorman's job is to see if
the belting shifts. Rundle indicated that in the event the
belting would shift, the motorman would stop the cars and lighten
the belt. The record does ·not· establish that the miners who
actually transported the belting in question were specifically
told of their duties to continuously monitor the belting to
insure that it would not contact the trolley wire.
I find that
Rundle's testimony is insufficient to establish that "adequate''
pr2cautions were taken.
2/

In concluding that the hazard of contact of the belting with
I accorded considerable weight to the uncontradicted testimony of Ice that the
belting was at least 5 to 7 inches removed from the trolley wire
in a horizontal plane.

~he trolley wira was not reasonably likely,

1840

that the latter told him that the day shift motormen, Rudy Baker
and Larry Stafford, had questioned the height of the belting, and
their foremen Steve Shaffer had told them not to move the belting.
None of the sources interviewed by Delovich testified. Further,
the record is not clear as to the source of Delovich's testimony
witn regard to conversations Baker and Stafford had with their
foreman with regard to the height of the belting. Accordingly, I
do not find this testimony sufficiently reliable to support a
finding that Respondent's managers, prior to the transporting of
the belting, knew that it was too high. Delovich testified that
Lucas and Wade had told him that when transporting the belting on
July 28, they may have knocked out a trolley wire hanger. However, in a report of his investigation, Government Exhibit 3, he
indicated that Lucas and Wade told him that in transporting the
belting they " • • • did not observed (sic) or no happenings if
the belting touched the trolley wire."
(sic).
I place more
weight on Delovich's version of the conversation with Lucas and
Wade as contained in the report of the investigation, rather than
on his testimony, as the investigation report was written the
same day or a day after his interview of Lucas and Wade. Rundle
indicated that the belting was bound down in the flat car to keep
it from shifting, and he asked Lucas and Wade if they had any
problems transporting the belting, and they indicated that they
did not.
Also, I note, that the testimony of Ice has not been
contradicted which establishes as discussed above, infra, II,
that the belting was approximately 5 to 7 inches horizontally
removed from the trolley wire. Thus, based on all of the above,
I conclude that it has not been established that the violation
herein was the result of Respondent's "unwarrantable failure," ~s
it has not been established that it acted with any aggravated
conduct of a degree higher than mere negligence.
(See, Emery
Mining Corp., 9 FMSHRC 1997 (1987)).
In assessing a penalty herein, I find the violation herein
to be of only a moderate degree of gravity, and find that
Respondent herein acted with only a low degree of negligence.
I
have also taken into account the remaining factors set forth in
section llOCi> of the Act as stipulated to by the Parties.
Based
upon all of the above, I conclude that a penalty herein of $200
is appropriate for the violation of section 75.1003-1, supra.
ORDER
The Respondent shall, within 30 days of this Decision, pay
$200 as a civil penalty for the violation found herein.

1841

It is further ORDERED that Order No. 3105926 be AMENDED to a
Section 104(a) citation, and to reflect th~ fact that the cited
violation was not significant and substantial

L~

Administrative Law Judge
Distribution:
David M. Cohen, Esq., American Electric Power Service Corporation,
161 West Main Street, P. O. Box 700, Lancaster, OH 43130 (Certified
Mail)
Thomas A. Brown, Esq., Office of the Solicitor, u. s. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
dcp

1842

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

September 29, 1989
SFCRP.'T'A RY OF LABOR,
MIN~

CIVIL PFNAL'l'Y

PROCF~DING

SAFF'l'Y AND HEAL~H
Docket ~o. KBNT 89-115
A. C. No. 15-15180-03506

.l\.DMI1'HS'T'RATTON (MSHA),

Petitioner

v.
};Jo. 2 Mine
F~AGE'T'

FUELS INCORPORATED,
Respondent
ORDER OF DISMISSAL

Before:

,Judge Merlin

~he order of default having been vacated, this case is
hereby DISMISSFD.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Anne 'T'. Knauff, Bsq., Office of the Solicitor, u. s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Washville, 'J'T\l'
37215
(Certified Mail)
Rick L. Thomas, P.sq., Flaget "Fuels, Inc., 1364 Devonport Drive,
Suite 3, Lexington, KY 40504
(Certified Mail)
/gl

1843

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

September 29, 1989

Sl<'CRE,.T'A RY 01'.i' LABOR,
MIN~ SAFF'T'Y.A~D HEALTH
ADMINISTRATION (MSHA),

CIVIL

PF~AL'rY

PROCBBDING

Docket No. SB 89-70
A. C. ~o. 01-01401-03743

Petitioner

v.
No. 7 N!ine
JIM

WAL'T'~R

RBSOURCl<'S, INC.,
Respondent
DECISION

Appearances:

William Lawson, Bsq., Office of che Solicitor,
U. s. Department of Labor, Birmingham,
Alabama, for Petitioner;
Robert ~tanley Morrow, l<'sq., Jim Walter
Resources, Tnc., Birmingham, Alabama, for
Respondent.

Before:

Judge Merlin

'T'his case is a petition for the assessment of civil
penalties filed by the Secrecary of Labor against Jim Walter
~esources, Inc., under the Federal Mine Safety and Health Act
ot 1977, 30 u.s~c. § 820.
A hearing was held on August 24,
1989, and post-hearing briefs now have been filed.
~t

issue in this case is Citation No. 3187963, dated
28, 1988, issued pursuant to section 104(d)(l) of
the Act, 30 u.s.c. § 814(d)(l), and charging a violation of
30 c.~.R. § 75.2~0 for the following condition or practice:

~ovember

"'T'he current Roof Control Plan was not
being followed on the No. 5 section in that
the face of the crosscut being cut from !'1 o. 2
entry to ~o. 1 entry had been mined trom 23
feet 3 inches to 29 feet 6 inches from che
last row of permanent roof 3Upports, or until
the crosscut holed through into the No. 1
entry.
'T'he controls of the continuous mining
machine in use on this section measured
20 teet 3 inci1es tram tl1e cutting t1ead.
'T'his
shows that tne continuous miner opera tor was
Erom three (3) reec to nine (9) teec chree
(3) inches inby the last row of coot bolts
during this cut.
'T'he current qoof Control
Plan states thac controls of the continuous

1844

mining machine or loading machine shall not
advance inby the last row of roof bolts
except with approved extended cut plan (pages
13 note 1, page 14, note, 1, page 15, page 16
note 1 page 1 7 note 1) • A.n approved extended
cut plan is not in force at this mine ac chis
time.
~his is the second violation of this
type since November 10, 1988, indicating that
this problem may be a practice and indicating
that the mining machine operator, helper and
section foreman are not fully aware of the
serious consequences that may result trorn
working under unsupported roof."
Also in issue is Order No. 3187964 dated November 28, 1988,
issued pursuant to section 104(d)(l) of the Act, supra, and
charging a violation of 30 C.F.R. § 75.220 for the following
condition or practice:
"The current Roof Control Plan was not
being followed on the No. 5 section in that
the face of the crosscut being cut from No. 2
entry to No. 3 entry had been mined up to
23 feet 6 inches inby the last row of
permanent roof supports.
~he controls of the
continuous miner measured 20 feet 3 inches
trom the cutting head.
~his shows that the
continuous miner operator was up to 3 feet 3
inches inby the last row of roof bolts during
this cut.
~he current Roof Control Plan
states that controls of the continuous miner
or loading machine shall not advance inby the
last row of roof bolts except with an
approved extended cue plan (pages 13-18 note
1). ~n approved extended cut plan is not in
force at this mine at this time.
~his is the
third v~olation of this type since
November 10, 1988 and the second such violation observed on this shift on No. 5 section.
~his strongly indicates that this may
be a practice on chis section.
~his also
shows a lack of awareness to the hazards
involved in working under unsupported root by
the miner operator, helper and section
foreman."
At a pre-hearing conference che parties agreed to the
following stipulations.

(1)

The operator is the owner and operator of the subject

mine;

1845

(2)
'T'he operator and the mine are subject to the
jurisdiction of the Federal Mine Safety and Health Act of 1977;
(3)

'T'he administrative law judge has jurisdiction of this

case;
(4)
~he inspector who issued the subject citation and order
was a duly authorized representative of the Secretary;
(5)
True and correct copies of the subject citation and
order were properly served upon the operator;
(6)
Copies of the subject citation and order and
' admitted into
terminations thereof are authentic and may be
evidence for purposes of establishing their issuance, but not for
the purpose of establishing the truthfulness or relevancy of any
statements asserted therein, except as agreed to by stipulation;
(7)

~e

operator is large in size;

(8)
Payment of any penalty herein will not affect the
operator's ability to continue in business;
(9)
The roof control plan in effect on November 28, 1988,
requires that the controls of a continuous mining machine shall
not be advanced inby the last row of roof bolts;
ClO)
~he conditions described on the face of Citation
No. 3187963 are accepted as written therein and constitute a violation oi the operator's roof control plan pursuant to
30 C.F.~. § 75.220;
Cll)
The conditions described on the face of Order
No. 3187964 are accepted as written therein and constitute a violation oi tne operator's roof control plan pursuant to 30 C.F.R.
§ 75.220;
(12) Citation No. 3187963 and Order No. 3187964 are properly
characterized as significant and substantial violations;
Cl3) During the 24-month period prior to the issuance of the
citation and order in this case, i . e . , Wovember 28, 1988, the
operator was issued 21 104(a) citations, and two 104(d)(2) orders
for violations of its approved roof control plan.
~he

foregoing stipulations were accepted (Tr. 8).

'T'he opera tor having stipulated to the existence of the violations and to their being significant and substantial, the
parties agreed at the pre-hearing that the issues to be determined in this matter are the existence of unwarrantable failure
in the subject citation and order, and the appropriate amount of
civil penalties c~r. 8).

1846

'T'he Commission has defined unwarrantable failure as "aggravated conduct constituting more than ordinary negligence."
Fmery Mining Corporation, 9 FMSHRC 1997, 2001 (December 1987),
Youghiogheny and Ohio Coal Company, 9 FMSHRC 2007, (December
19 8 7) .
~ou thern Ohio Coal Company, 10 FMSHRC 138 (February
1988); Quinlanct Coals, Inc., 10 FMSHRC 705 (June 1988).
The
existence of unwarrantable failure may be adjudicated in these
proceedings. Quinland Coals, Inc., 9 FM.S!1RC 1614 (September
1987).
'T'he inspector testified that the excess cuc which was from 3
feet to 9 feet 3 inches, cited in the citation, was visibly
oovious and that it would have taken about l! i1ours to make that
cuc (rrr. 28). According to che inspector, ic is che practice of
che operator's section foreman to be in the area where coal is
being mined ('T'r. 36, 38).
Tt was the inspeccor's opinion that
the section foreman was in the cited area for at least a portion
of che time when the excess cut was made and that he had co have
known of it (Tr. 36, 38). Four to six cars of coal were taken
from the excessive porcion of the cut (Tr. 45).
'T'he cue was so
excessively deep that it penetrated through the crosscut to the
next entry wnere the boles in that entry made it clear that the
cut had gone much too far (Tr. 42-44). Finally, a citation had
been issued for the same type or violation a few weeks previously
CMSF.A Fxh. 7, Tr. 71). The inspector's testimony is
·
uncontradicted and t accept it.
That roof falls are the leading cause of fatalities and
injuries in underground mining, has long been recognized.
See
most recently, U.M.W. v. Dole, 870 F.2d 662 CD.C. Cir. 1989).
Compliance with the roof control plan is therefore, a critical
priority.
In Youghiogheny and Ohio Coal Company, supra, the Commission in upholding a finding of unwarrantable iailure, held
that the section foreman is responsible for compliance with the
roof control plan and that in discharging this responsibility he
is held to a deman.ding standard of care in safety matters.
In
che instant case che section £6reman fell iar short of what reasonably could have been required of him.
The extent of the cut,
the length of time taken to make it, and its visible nature
demonstrate conduct 0£ a most aggravated nature. After
consideration of the foregoing circumstances, T conclude that
under applicable Commission criteria unwarrantable failure was
present here.
rrhe finding of unwarrantable failure in Citation
No. 3187963 is Affirmed.
The second excessive cut which was cited in Order
3187964 was noc as deep as the tirsc one, but according to
che inspector the foreman would have seen it any time after the
continuous miner operator went beyond the last roof supports
(Tr. 40). Up to four cars of coal were involved in che excessive
portion of this cut (Tr. 46-47). Moreover the second cut was
made immediately after che one cited in the citation (Tr. 49).
~o.

1847

When the inspector saw both cuts he concluded that the roof
control plan did not mean as much to the operator as it should
have c~r. 49).
The Commission's decision in Youghiogheny and
Ohio Coal Company, cited supra, also is in point here.
Tn that
case the Commission noted the judge's finding that the inspector
had cited the operator for the same violation three days previously, 9 FMSHRC at 2010.
Tnsofar as the element of time is
concerned, the back-to-back cuts here are even more compelling.
I believe the second cu~ constituted the kind and degree of
conduct the Commission has identified as aggravated. Accordingly, it must be found that unwarrantable failure was present
here also.
,,,he finding of unwarrantable failure in Order ~lo.
3187964 is AFFIRMED.
Based upon the circumstances set forth herein, I find the
operator guilty of a high degree of negligence in both
instances and that botn violations were very serious.
~he remaining criteria in section llO(i} are covered by the stipulations.
The post-hearing briefs filed by the parties have been
received.
~o the extent they are inconsistent with this
decision, they are rejected.
ORDl<'R

In light of the foregoing it is O~DF:R~D that the findings of
unwarrantable failure in Citation ~o. 3187963 and Order
No. 3187964 be AFFIRMBD.
It is further ORDFRFD that a penalty of $1,200 be
for Citation No. 3187963.

ASSPSS~O

It is further ORDFRF.D that a penalty of $1,600 be ASSFSSFO
for Order No. 3187964.
It is further O~DRRED that the operator PAY the foregoing
amounts within 30 ·days from the date ot this decision.

Paul Merlin
Chief Administrative Law Judge
Discribution:
William Lawson, Fsq., Office of the ~olicitor, U. s. Department
of Labor, ~u1te 201, 2015 Second Avenue North, Birm1ngha1n, AL
35203
(Certified Mail}

1848

Robert Stanley Morrow, Fsq., Harold n. Rice, F.sq., Jim Walter
Resources, Inc., Post Otfice Box 830079, Birmingham, AL
35283-0079
(Certified Mail)
Ms. Joyce Hanula, Legal ~ssistant, UMWA., 900 15th Sr.reet:, N.W.,
Washington, DC 20005
(Certified Mail)

/gl

18'49

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

September 29, 1989

OF LABOR,
MINE SAFETY A~D HP.AL'!'H
ADMINISTRATION, CMSHA)
Petitioner

SFCRR~ARY

Docket No. VA 89-28-M
c. ~o. 44-02965-05518

~-

T_,ouisa Plant

v.
~.

CIVIL PFNA L'J'Y PROCFF.'Oil\!G

H. SMTTH S'J'ONB COMPANY,
~espondent

DECISION

Appearances:

Jack Strausman, Bsq., Office of the Solicitor,

u. s. Department of Labor, Arlington, Virginia,
for -Petitioner;
Lisa M. Wolff, Representative for A. H. Smith
Stone Company, Branchville, Maryland, for
Respondent.

Before:

Judge Merlin

This case is a petition for the assessment of a civil
penalty filed by the Secretary of Labor against A. H. Smith
Stone Company pursuant to the Federal ~ine Safety and Health
~ct of 1977.
~n evidentiary hearing was held on August 30,
1989, and post-hearing briefs have been filed.
Order ~o. 3045441 dated July 17, 1988, alleges a
violation of 30 C.?.R. § 56.14006 for the following
condition:
"'!'his is an order of withdrawal, the
employee shoveling under the £eede£ shaker
under the #1 jaw crusher shall be withdrawn
immediately.
'T'he employee was ahoveling
within a foot of the unguarded V-belt drive
and drive motor 0£ the shocker feeder.
'!'his
is an imminent danger situation."
30 C.F.R. § 56.14006 provides as follows:
~xcept when testing the machinery,
guards shall be securely in place while
machinery is being operated.

1850

At the hearing the parties agreed to the following
stipulations ('T'r. 5-6):

(1)

the operator is the owner and operator of the
subject mine;
(2)
the operator and mine are subject to the ~ederal Mine
Safety and Health Act of 1977;
(3)

~he

administrative law judge has jurisdiction of this

case;
(4)
the inspector who issued the subject order was a duly
authorized representative 0£ the Secretary;
(5)
a true and correct copy of the order was served upon
the operator;
(6)
a copy of the subject 6rder is authentic and may be
admitted into evidence for the purpose of establishing its
issuance, but not for the purpose of establishing the truthfulness or relevancy of any statements asserted therein;

(7)

the alleged violation was abated in good faith;

(8)
the his~ory oi prior violations is as set forth in the
Solicitor's prehearing statement;
(9)
the operator's size is as set forth in the ~olicitor's
prehearing statement.

'T'he inspector testified that when he arrived, the plant was
running (Tr. 11). He saw and heard material being dumped into
the feeder hoppers for the crushers and then coming off at the
end of the conveyor belts (Tr. 11-12). After greeting the foreman who was sitting on a front end loader, the inspector turnea
and saw an employee shoveling at an unguarded belt (Tr. 13).
This belt ran from the pulley on the motor to the pulley on the
shaker {Tr. 16, MSHA F.xhs. 4-6).
There was no guard on the drive
or on the pulleys (Tr. 28) .
'T'he employee who was shoveling was
within one foot of the unguarded drive (Tr. 14).
The jaw crusher
was above his head and the shaker feeder was in front of him
(Tr. 27).
~he foregoing testimony is uncontradicted and I accept
it.
The inspector further stated that the belt was not being
tested.
Be explained that testing of this belt is done by
running the belt for 10 minutes with a small amount of material

1851

on it ('T'r. 33, 42-43). Unlike a conveyor belt which carries
material, the V-bel t in this case only drives machinery
('T'r. 70-71).
Tn addition, no one told the inspector the belt was
being tes-ced and from his seat on the front-end loader the foreman was too far away to have observed whether the belt was
operating properly ('T'r. 33-35, 41-42, 59). Finally, if -cesting
were being done, an employee would not have been assigned to do
the normal work of shoveling so close to the unguarded belt drive
('T'r. 33, 41-421.
T accept this uncontradicted testimony and
based upon it find that the belt was not being tested.
In light of the roregoing I conclude a violated existed.
~s already set forth, the B~ployee was shoveling one foot
away from the unguarded belt which was running.
I accept the
inspector's description of the floor as slippery due to the
presence of dust, water, oil and grease ('T'r. 36).
'T'he inspector stated that if an employee were caught in the belt he could
lose his t ingers, hand, arm or life ( 'T'r. 3 7) • Under the circumstances the violation presents the discrete safety hazard of
slipping and becoming caught. Because of the proximity of the
employee to the moving, unguarded belt a reasonable likelihood
existed that the feared hazard of becoming caught in the
machinery would occur. ~nd as set forth above, if an injury
resulted it would be of a serious nature.
Accordingly, under
Commission criteria the violation was significant and substantial.
Mathies Coal Co., 6 FMSHRC 1 (1984), Consolidation Coal Company,
6 FMSHRC 34 (1984). For the same reasons t find the violation
was very serious indeed. l/

According to the inspector, the foreman on the front end
loader saw the employee shoveling near the unguarded belt
< 'T'r. 38) .
'T'he foreman therefore was guilty or a high degree of

ll

'T'he violation was cited in a 107(a) imminent danger withdrawal order/104(a~ citation.
The operator has not contested the
order. However, the record demonstrates that the inspector was
correct in issuing it. Cf. Freeman Coal Mining co., 2 IBMA 197,
212 (1973) aff'd, 504 F.2d 741 (7th Cir. 1974); Fastern Associated Coal Corp., 2 tBMA 128 (1973) ati'd, Fastern Associated
Coal Corp. v. Interior Board of Mine Operations Appeals, et al.,
491 F.2d 277 (4th Cir. 1974); Cyprus Fmpire Corporation, 11
FMSHRC 368, 374-376 (1989).

1852

negligence and his negligence is imputable to the operator.
Southern Ohio Coal Company, 4 FMSHRC 1459 (1982) l/.
~he remaining llOCi) criteria are covered by the
stipulations of the parties.
~he post-hearing briefs filed by the parties have been
reviewed.
~o the extent they are inconsistent with this
decision, they are.rejected.

ORDER
~o.

In light of the foregoing it is ORDF.RED that Order/Citation
3045441 be AFFIRMED.
It is further ORDERFD that a penalty of $1,250 be ASSFSSF.D.

It is further ORDFRF.D that the operator PAY $1,250 within 30
days from the date of this decision.

Chief Administrative I.aw Judge
2/
As set forth herein, the testimony of the inspector, who was
the only witness to testify, was undisputed.
~t the hearing che
operator's representative moved for a continuance and requested a
subpoena because the foreman was not present to testify
C~r. 72-73).
However, the notice of pre-hearing and hearing was
issued more than two months in advance 0£ the hearing, and in her
prehearing statement t:he representative identified the foreman as
the operator's witness who would testify at the hearing. At che
hearing the representative did not know why the foreman, who is
still in t:he operator's employ, did no~ appear ('T'r. 74).
Her
belated request for a continuance and subpoena was untimely and
unt ounded and as such, it was denied from the bench ( 'T'r. 7 4) •
Distribution:
Jack~. Strausman, Fsq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA
22203
(Certiiied Mail)

Ms. Lisa M. Wolff, Director of Safety/Government Affairs, A. H.
~mith ~tone Company, 9101 qailroad Avenue, Branchville, MD
20740
(Certified Mail)
/gl

1853

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

SEP 2 9

DISCRIMINATION PROCEEDING

DENNIS R. HILDERBRANDT,
Complainant

Docket No. WEST 88-258-DM
MD 87-37

v.

Republic Unit

HECLA MINING COMPANY,
Respondent

DECISION
Appearances:

Theresa D. Thompson, Esq., Maxey Law Offices,
Spokane, Washington,
for Complainant;
Fred M. Gibler, Esq., Evans, Keane, Koontz, Boyd,
and Ripley, Kellogg, Idaho,
for Respondent.

Before:

Judge Cetti

This case is before me upon the complaint by Dennis R.
Hilderbrant under section 105{c){3) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et seg., the "Act",
alleging that he was constructively discharged by Hecla Mining
Company, {Hecla) on April 17, 1987 in violation of section
105(c)(l) of the Act.~/
!/Section 105{c)(l) of the Act provides as follows:
No person shall discharge or in any manner discriminate against
or cause to be discharged or cause discrimination against or
otherwise interfere with the exercise of the statutory rights of
any miner, representative of miners or applicant for employment
in any coal other mine subject to this Act because such miner
representative of miners or applicant for employment, has filed
or made a complaint under or related to this Act, including a
complaint notifying the operator or the operator's agent, or the
representative of the miners at the coal or other mine of an
alleged danger or safety or health violation in a coal or other
mine or because such miner, representative of miners or applicant
for employment is the subject of medical evaluations and
potential transfer under a standard published pursuant to section
101 or because such representative of miners or applicant for
employment has instituted or caused to be instituted any proceedings under or related to this Act or has testified or is
about to testify in any such proceeding, or because of the
exercise by such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory right
afforded by this Act.

1854

Statement of the Case
Complainant Dennis Hilderbrandt filed a complaint with the
Commission under Section 105(c) of the Act on September 21, 1987,
alleging in essence that he quit working in the mine on April 17,
1987 because he believed that his health and safety were
endangered by his work assignment.
Complainant alleges he was
constructively discharged.
He complains that his employer the,
Hecla Mining Company, treated him in a discriminatory manner in
retaliation for his having engaged in protective activities.
He
also alleges that working conditions in the mine were so
intolerable he had no alterative but to quit.
Complainant seeks
reinstatement, back pay, attorneys fees and any other allowable
compensation that the Commission may order.
The parties have filed post-hearing briefs and proposed
findings and conclusions of law.
At the hearing the parties
presented oral and documentary evidence and seven stipulations as
follows:
Stipulated Facts
1.
The employee, Dennis R. Hildebrandt, worked for Hecla
Mining Company since 1981 when Hecla acquired the mine from Mr.
Hildebrandt's previous employer. Mr. Hildebrandt worked in the
Republic mine for several years until April 17, 1987.
Mr.
Hildebrandt worked as an underground miner with his partner,
Clarence E. Heideman.
2.
On April 3, 1987, Mr. Hildebrandt and his partner worked
the graveyard shift and at the conclusion of the shift, he
received a disciplinary notice for insufficient work during the
shift.
3. During that shift, Mr. Hildebrandt and his partner
encountered difficulties including (a) necessary equipment was
not at the work site (b) smoke and gas at the unventilated work
site, and (c) two separate groups of misfires (unblasted
explosives in drilled holes).
4. Mr. Hildebrandt made a written hazardous condition
complaint to MSHA alleging violations of mandatory MSHA standards
during the April 3, 1987 shift.
5.
A federal investigator inspected the mine, spoke with a
number of persons and issued two citations for violations of MSHA
mandatory standards.
6.
On April 16, 1987, Mr. Hildebrandt was again working the
graveyard shift with his partner.
Following this shift, he was
advised that he was not making sufficient work progress at his
work station.
1855

7.
Later that same day, April 17, 1987, Mr. Hildebrandt
advised Hecla that he was quitting work for Hecla.
Based upon the hearing evidence and the record as a whole, I
find that preponderance of the substantial, reliable and
probative evidence establishes the following:
Findings and Conclusions
The complainant Hilderbrandt, commenced work for Hecla
Mining Company (Hecla) at its Republic Unit mine near Republic,
Washington, in 1981 when Hecla acquired it from prior owners.
Hilderbrandt had approximately 13 1/2 years experience as a miner
at the mine.
On April 17, 1987, Hilderbrandt terminated his
employment with Hecla.
Hilderbrandt alleges he was discriminated against because of
his status or perceived status by Hecla as a union operative,
because he was safety representative and because he made
safety-related complaints to the company and to the Mine Safety
and Health Administration between April 3 and April 17, 1987.
Hilderbrandt contends that because of such activity on his part
he was assigned to work in an area of the mine which was unsafe
and in which he could not earn a production bonus.
He claims
that as a result, he was compelled to terminate his employment.
Hecla denies that Hilderbrandt was disciplined for engaging
in protected activity.
It is Hecla's position that he
voluntarily quit his job. Based upon the preponderance of the
evidence and the record as a whole I find that Hilderbrant was
not disciplined for engaging in protected activity that he
voluntarily quit his job on April 17, 1987 and suffered· no adverse action that was motivated in any part by protected activity.
In 1983 Hilderbrandt was elected safety representative for
purposes of the Mine Safety and Health Act.
Hilderbrandt's claim
that he was discriminated against because of his status as safety
representative is, however, based primarily upon events occurring
between April 3 and April 17, 1987 (Tr. 165).
It is Hilderbrandt's position that Ae made safety complaints regarding his
work areas in the mine to MSHA and to Hecla as the safety
representative.
Conflicting evidence was presented by Hilderbrandt on the
issue regarding his claim of discrimination for Union activities.
Hilderbrandt testified at the hearing that he was not a supporter
of the union during a certification election in May 1987, but he
believed that Hecla thought he was a union supporter (Tr. 169).
Hilderbrandt presented other evidence in which he stated that he
was a supporter of the union certification in the May 1987
election.
In Exhibit 11, pages 10 and 11, Hilderbrandt told the

1856

MSHA special investigator investigating his discrimination claim
that he was "one of the biggest supporters" of the union.
The three individuals Hilderbrandt claims were responsible
for forcing him to terminate his employment were Mine
Superintendent Tom Graham, Supervisor Bill Greenland, and Mine
Manager Doug Wollant. None of these three individuals had any
involvement with union certification matters (Tr. 390). Mr.
Greenland and Mr. Wollant had only arrived at the Republic Union
approximately one month before Mr. Hilderbrandt terminated his
employment (Tr. 170). Mr. Graham had arrived only shortly before
the union certification election in 1987 (Tr. 360). No evidence
other than Hilderbrandt's suspicion was presented to show that
these three individuals or anyone else from Hecla believed
Hilderbrandt was involved with union activities.
Commencing approximately the middle of March 1987,
Hilderbrandt and his partner, Clarence Heideman, began work in an
area of the mine known as the GP3 drift (Tr. 456). This was an
old area of the mine the company intended to use for future
mining operations.
In preparation for mining and development
activities, it was necessary to rehabilitate the GP3 drift (Tr.
4 54) •
Hilderbrandt was a contract or "gypo" miner.
This designation means the miner has the opportunity to earn a bonus based
on work performed over and above his hourly rate, which is
commonly known as "day's pay." The bonus is paid when mining or
development work begins. During the rehabilitation phase, the
employee is paid at his "day's pay" rate (Tr. 454).
On the graveyard shift which commenced at 11 p.m. on Friday,
April 3, 1987, Hilderbrandt and his partner were required to work
in a area of the mine that was different from the GP3 drift in
which they previously worked. Prior to going underground for the
shift, Mr. Greenland, as Hilderbrandt's supervisor, instructed
Hilderbrandt and his partner that their duties were to level off
the muck pile which resulted from the prior crews blasting and to
begin rock bolting the mined out area (Tr. 255).
When Hilderbrandt and his partner arrived at the underground
work site, it became obvious that, as a result of lack of
necessary equipment and smoke caused by the prior shift's blasting activities, they would not be able to accomplish the work
originally assigned (Tr. 258).
Upon encountering these conditions, Hilderbrandt and his
partner were instructed by their supervisor Mr. Greenland to
begin setting up equipment for the next shift, which would have
entailed placing rock bolts, mats, and wire in the area and to
transport a slusher and bucket to the area (Tr. 262). They

1857

failed to perform these tasks by the end of the shift.
This
work, had it been completed, would have taken approximately two
hours (Tr. 269, 461-462).
Hilderbrandt complained during the shift to Greenland about
the gassy conditions in the mine. He was not, however, required
to work in the gassy conditions (Tr. 186). The mine had a gas or
smoke problems.
These conditions were the subject of frequent
complaints by the miners and management personnel. MSHA was
aware of the problem and was working with Hecla to correct the
problem (Tr. 396).
At the conclusion of the Friday, April 3 graveyard shift,
Supervisor Greenland informed Hilderbrandt he intended to suspend
him for two days for failing to perform adequate work during that
shift (Tr. 274). Hilderbrandt requested a conference with the
mine superintendent, Mr. Graham, and Graham was called to the
work site.
Following a conference between Mr. Greenland and Mr.
Graham, Graham ordered that Hilderbrandt not be suspended but
instead that he be issued a Step 2 Employee Improvement Act
Report CEIAR) (Tr. 275-276).
The Employee Improvement Action Report CEIAR) Step 2 did not
result in any loss of work or pay to Hilderbrandt (Tr. 277).
Under Hecla's progressive system of discipline, it would have
been necessary for Hilderbrandt to receive a similar report for
similar conduct during the next six-month period before he could
have been disciplined.
If he received no similar EIAR for three
months, it would be reduced to a Step 1 Coral warning>, and if he
received no EIAR for six months, the EIAR Step 2 would be removed
(Tr. 279-280). Hilderbrandt worked the graveyard shift on April
4, 1987, in the same area of the mine as on April 3, 1987, but
never worked in that area of the mine again.
Commencing with his next-scheduled shift on April 5, 1987,
Hilderbrandt returned to work in the GP3 drift doing the
identical rehabilitation work he had been performing before April
3, 1987 (Tr. 369). He continued to work in this area of the mine
CGP3 drift) until he voluntarily terminated his employment on
April 17, 1987 (Tr. 369-370).
During the week of April 5, 1987, Hilderbrandt made a
telephone call to the Mine Safety and Health Administration
reporting safety complaints with regard to conditions he
encountered on April 3, 1987 graveyard shift (Tr. 90). Specifically, he claimed that smokey conditions existed in the mine and
that misfires were not refired during the shift. As a result of
the telephone call, MSHA investigated and issued two citations one for the April 3rd failure to fire the misfires and one for
the April 3rd failure to monitor smoke in the mine.

1858

During the period from April 3 through April 17,
Hilderbrandt and his partner were doing the same work as members
of the opposite crews on other shifts in the same area of the
mine (Tr. 457-462).
On the shift which began at 11:00 p.m. on April 16, 1987,
and continued over to the morning of April 17, Hilderbrandt and
his partner had completed the rehabilitation work in the GP3 area
and began development work (Tr. 455). Commencing with that
shift, Hilderbrandt began to earn a production bonus, which is
reflected on Hilderbrandt's Exhibit 16.
Mine Superintendent Graham had expected Hilderbrandt and his
partner to be able to complete a cycle once they completed their
rehabilitation efforts and began extending the drift (Tr. 376).
During the initial mining stages in the GP3 drift Hilderbrandt
and his partner were unable to complete a full cycle (Tr.
377-378).
This was primarily because of muddy conditions in the
area. Mr. Graham had instructed Mr. Greenland that if a full
cycle was not completed he wanted to see Hilderbrandt and his
partner to discuss the situation (Tr. 377). Accordingly, at the
end of shift on the morning of April 17, Graham, Greenland, and
Wollant met with Hilderbrandt and his partner.
There was a
discussion, the content of which is in dispute. Hilderbrandt
claims that he stated he could not work safely and at the same
time perform the amount of work required by Mr. Graham.
Graham
and Greenland, on the other hand, testified that Hilderbrandt
made no complaints relating to safety.
They testified that
Hilderbrandt complained that because of the muddy conditions in
the mine he could not complete a cycle.
I credit the testimony
of Graham and Greenland.
At the end of the conversation, Greenland asked Hilderbrandt if he could commit to a half cycle.
Hilderbrandt replied that with another 20 - 30 feet of rehabilitation work it might be possible (Tr. 121).
Hilderbrandt received no discipline for his work performance
during the shift of April 16, 1987, and in fact received no
disciplinary action after the April 3, 1987 EIAR (Tr. 388-389).
After the meeting with Hilderbrandt on the morning of April
17, 1987, Mine Superintendent Graham went to the GP3 drift where
Hilderbrandt had been working to experience the working
conditions first hand to determine what amount of work could be
performed.
He concluded that because of the muddy conditions in
the drift he had expected too much work from his employees (Tr.
384).
During the afternoon of April 17, 1987, Hilderbrandt and his
partner returned to the mine (Tr. 385). When Hilderbrandt

1859

returned, Mine Superintendent Graham informed him that he owed
him an apology regarding the amount of work which could be
completed (Tr. 387). Hilderbrandt denies such a conversation.
He testified that the only conversation was Hilderbrandt
informing Graham that he (Hilderbrandt) quit.
Other evidence
submitted by Hilderbrandt supports the truth and accuracy of
Graham's testimony of what was said at the meeting.
In
Hilderbrandt's Exhibit 11, page 9, Hilderbrandt informed the MSHA
investigator investigating his discrimination claim that Graham
stated as follows: "You guys are right.
I apologize at this time
for riding you so hard". Ed Sinner, another supervisor, overheard this conversation (Tr. 466). Although Graham apologized,
Hilderbrandt quit without giving Graham the opportunity to explain what he intended to do with respect to Hilderbrandt's work
area in the future.
Hilderbrandt terminated his employment on April 17, 1987.
He took no steps to inform the Mine Safety and Health Administration of the alleged unsafe conditions in the mine, and he did
not, as safety representative, take any steps to protect opposite
crews of what he contends he felt was an unsafe condition.
Since he terminated his employment on April 17, 1987,
Hilderbrandt has not requested employment with Hecla.
He
testified that he could not work there under the present management CTr. 143).
The Mine Safety and Health Act, 30 u.s.c. 815(c), prohibits
an employer from discriminating against a miner for engaging in
protected activity.
In a discrimination case, the burden of proof is upon the
complainant to show that Cl) he engaged in protected activity and
(2) that adverse action was taken against him which was motivated
in any part by the protected activity.
The operator may rebut
the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by
protected activity.
If an operator cannot rebut the prima facie
case in this manner, it may defend affirmatively by proving that
it also was motivated by the miner•s unprotected activity and
would have taken the adverse action for the unprotected activity
alone.
A constructive discharge can occur under the provisions of
section 105Cc> of the Act. For a miner to sustain his claim of a
constructive discharge, he must show that the operator created or
maintained conditions so intolerable that a reasonable miner
would have felt compelled to resign.
Hilderbrandt failed to do
this.

1860

With respect to the events of April 3, 1987, Hilderbrandt
engaged in protected activity in making safety complaints.
Hilderbrandt's complaints about the smokey conditions were not
unique to him. Many employees complained about smoke in the
mine, and MSHA was aware of the condition. Hilderbrandt was not
required to work in the smokey area of the mine. Hecla
reasonably determined that an insufficient amount of work was
performed by Hilderbrandt during his April 3rd work shift.
It is
concluded that the operator had valid nondiscriminatory reasons
for issuing the April 3rd Employee Improvement Action Report
which cost Hilderbrandt neither time nor money.
The complaints made by Hilderbrandt to the Mine Safety and
Health Administration during the week of April 5, 1987,
constitute protected activity, and if Hilderbrandt had made
safety complaints to management on April 17, 1987, such
complaints would also be protected activity. However protected
activity in and of itself is not actionable.
It is necessary for
the miner to show that adverse action resulted in some part from
that protected activity to establish a prima facie case~
Hilderbrandt has failed to establish a prima facie case, since he
has not shown that any adverse action was taken against him which
in any part was motivated by his protected activity.
Hilderbrandt's claim that because of the events of April 3
through April 17, 1987, he was forced to work in undesirable area
of the mine at which he could not earn a production bonus are not
supported by the facts.
Hilderbrandt worked in the same area
(GP3 drift) before April 3, 1987, as well as afterward doing
theidentical work for the identical pay. Moreover, his Exhibit
16 shows that he was able to earn a production bonus. No adverse
action was taken against him for engaging in protected activity.
Even if Hilderbrandt believed conditions in the mine or the
GP3 drift, where he worked before and after April 3rd and 4th
were so intolerable that he could no longer safely work there,
his belief was not reasonable.
The objective evidence, including
the fact that he took no steps to protect miners on the opposite
shift, which he had an affirmative duty to do as safety
representative, the fact he did not report to MSHA any alleged
unsafe conditions of the GP3 drift where he worked and the fact
other miners worked under identical conditions, and did not feel
compelled to resign, tend to show that Hilderbrandt did not have
a good faith reasonable belief that the work was unsafe or
unhealthful and I so find.
Moreover, an employer is only
required to provide a reasonable option. Although Graham on the
afternoon of April 17, 1987 apologized for his high work
expectations, Hilderbrandt without further discussion quit his
job. He failed to report back to work and did not ever seek
employment with Hecla again.

1861

Hilderbrandt was not discriminated ag~inst in violation of
section 105(c) of the Act. He was not subjected to a discriminatory constructive discharge.
The preponderance of the evidence
does not establish that Hecla created or maintained conditions so
intolerable that a reasonable miner would have felt compelled to
resign. Accordingly, Hilderbrandt's claim is denied.
ORDER
Based on the above findings of fact and conclusions of law
IT IS ORDERED that the complaint of discrimination filed herein
is DISMISSED.

~~:Jr~
t F. Cett1
istrative Law Judge

Distribution:
Theresa D. Thompson, Esq., Maxey Law Offices, West 1303 Broadway,
Spokane, WA 99201 (Certified Mail)
Fred M. Gibler, Esq., Evans, Keane, Koontz, Boyd & Ripley, 111
Main Street, P.O. Box 659, Kellogg, ID 83837 (Certified Mail)

/bls

1862

ADMINISTRATIVE LAW JUDGE ORDERS

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

22041

September 1, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 88-235
A. C. No. 46-03805-03854

v.
Martinka No. 1 Mine
SOUTHERN OHIO COAL COMPANY,
Respondent
ORDER DENYING MOTION FOR SUMMARY DECISION
Statement of the Case
On February 17, 1988, Respondent was served with Order
No. 2895699 which alleged as followd:
"The 24 inches of
unobstructed clearance is not being provided over the E2 track
overcast where the long run coal conveyer belt cross's, (sic) due
to no steps provided to cross safely over, concrete blocKs, empty
can being used on the inby side and a wooden pallet on outby side
with broKen runners being used to climb top of the overcast,
creating a tripping, stumble or falling hazard. One person
slipped while trying to cross this overcast on 2/16/88 also this
has been reported for steps since 2/15/88. Safeguard issued
5/8/87 no. 2699584."
Safeguard No. 2699584, which was issued on May 8, 1987, and
which was referred to in Order No. 2895699, provides as follows:
"The clearance space along the vacuum breaker
located near the top of the hill is restricted with
loose rock. This creates a tripping or stumbling
hazard.
This is a notice to provide safeguards requiring
that all vacuum breakers, similar equipment and where
miners are required to work or travel to complete their
duties, shall be provided no less than 24 inches of
unobstructed clearancspace."
On June 13, 1988, Petitioner filed a Petition for Assessment
of Civil Penalty, and Respondent filed its Answer on September 19,
1988. A Prenearing Order was issued on September 26, 1988,
directing the Parties to confer for the purpose of discussing
settlement. The Parties advised that the case could not be
settled, and pursuant to notice the case was set for hearing on

1863

June 7 - 8, 1989. On May 18, 1989, in a telephone conference call
with the undersigned initiated by Counsel for both Parties, it was
indicated by Counsel that the case might be settled or submitted on
stipulated facts or a motion for summary decision. Counsel
accordingly requested that the hearing set for June 7 -- 8 be
adjourned. The request was granted and tne hearing previously set
was adjourned.
On June 28, 1989, Respondent filed a Motion for Summary
Decision, and Petitioner filed its Response on July 31, 1989.
Discussion
In order to prevail in its Motion, Respondent has the burden
of establishing, pursuant 29 C.F.R. § 2700.64(b), that,
considering the entire record, there is no genuine issue of any
material fact and that it is entitled to summary judgment as a
matter of law.
I

Respondent has advanced a number of argurnen~s in support of
this Motion.
It first argues that the safeguard herein is
invalid as it is of general applicability.
In essence,
Respondent refers to the language of the safeguard requiring an
unobstructed clearance space of not less than 24 inches with
regard to "vacuum breakers," and "where miners are required to
work or travel to complete their duties," and argues that all
mines have areas where miners are required to work. Respondent
also refers to Petitioner's admission that breakers are common in
underground mines.
In order to prevail, and to justify a holding that the
safeguard herein is invalid, Respondent must establish that there
are no material facts at issue disputing its assertions that the
safeguard is of general applicability.
In order to resolve this
issue an inquiry must initially be made as to whethec there is
any genuine issue ~s to the circumstances under which the
underlying safeguard was issued, and the existence of or need for
similar safeguards at other mines.
(See Southern Ohio Coal
Company, 10 FMSHRC 963, at 966, 967 (1988)).
Peticioner in its
response to Respondent's request for admissions, has specifically
denied that the hazard of not having steps to the cross over at
the overcast, was not greater at the subject mine then at other
mines on the ground that the subject mine" . • . is known to have
a greater a1nount of water seeping into the entries on the mine
floor and equipment, thereoy increasing the likelihood of slip,
trip, and fall hazards." Respondent argues that the issue of the
presence of water at the subject mine is not material on the
ground ti1at water is common in mines. Respondent also argues
~hat the original safeguard was not issued because of any
water accumulation.

1864

The initial sentence of the original safeguard indicates
essentially that a "clearance space" along th~ vacuum breaker was
restricted with loose rock thus creating a tripping or stumbling
hazard.
Nonetheless, I conclude that it would be unduly harsh at
this juncture to deprive Petitioner of the opportunit~-to present
evidence on the issue of the extent if any, of any water
accumulation at the subject mine, and whether this was a factor
peculiar to the subject mine which provided a hazard which the
original safeguard ~as intended to cure.
'
II

In essence, it is Respondent's position, in the alternative,
that if the safeguard in question is accorded a narrow
construction, it does not encompass the conditions set forth in
the Order.
In this connection Respondent maintains that an
overcast is clearly not a vacuum brea~er, which was admitted to
be an electrical device approximately 19 feet in length,
72 inches or more in width and 34 inches height. Respondent also
argues that an overcast is manifestly not "similar equipment" as
ref erred to in the safeguard which would relate to other
electrical devices of the same approximate size as the breaker.
Further, Respondent argues that the phrase in the safeguard
"where miners are required to work or travel to complete their
duties," cannot refer to all areas of the mine, but is to be
limited to requiring 24 inches of clearance only in situations
where vacuum breakers or similar pieces of equipment are placed
in areas where miners are required to work or travel.
Petitioner, on the other hand, has argued that there is a genuine
issue as to whether a track overcast is "similar equipment" as
envisioned by the safeguard. In this connection, Petitioner
essentially indicates that the inspector who issued the safeguard
in question will testify that the breaker in the safeguard and
"inter alia" overcast present tripping or stumbling hazards
unless they provide no less 24 inches of unobstructed clearance
space. While it is clear that safeguards should be given a
strict construction (See Southern Ohio Coal Company, 7 FMSHRC 509
(1985); Jim Walter Resources, Incorporated, 7 FMStlRC 493), it is
premature to dispose of this issue presently without affording
the Petitioner the opportunity to present evidence as to the
applicability oi the original safeguard to the cited condition.~/

1/

In this connection, I note that the record presently does not

~ontain any evidence to a physical description of the o~ercast in

question.
location.

Nor is there adequate evidence of its use and

1865

III
Respondent next argues, in the alternative, that the
safeguard should be declared to be invalid as it does not clearly
set forth the conduct required by Respondent in order -for it to
comply with the safeguard. In this connection it argues that the
phrase "similar equipment" is "indeterminately vague."
Respondent also argues that the reference in the safeguard to
areas where men are required to work or travel "compounds the
problem of determining what the safeguard is addressing."
Respondent is correct that under established case law, a
safeguard is invalid if it does not identify with specificity the
nature of the hazard at which it is directed and the conduct
required of the Operator to remedy such hazard.
(Southern Ohio,
supra, at 512). However, Petitioner indicates that it intends
to call at an evidentiary hearing the inspector who issued the
underlying safeguard, and the inspector who issued the subject
104(d)(2) Order. Petitioner argues that the question as to
whether the Respondent was on notice that the overcast was
required to be maintained free of debris when miners regularly
traveled over the overcast, is a issue that requires the taking
of testimony with regard to conditions present at the overcast as
well as the testimony of the inspector who issued the safeguard.
In general, Petitioner has the burden of establishing a
prima facie case of a violation.
(Miller Mining Company
Incorporated v. Federal Mine and Health Review Commission, 713
F.2nd 487 (9th Cir. 1983. See also, Old Ben Coal Corporation v.
IBMA, 523 F.2nd 25, 39 (7th Cir. 1975)). As such, Petitioner
has the burden of establishing all elements of the Order
including the validity of the underlying safeguard. Therefore, I
find that it would be unfair at the juncture to deprive
Petitioner of the opportunity to adduce evidence on the issue of
whether the safeguard was suf £iciently clear to have put the
Respondent on notice that the alleged violative condition with
regard to the overcast fell within the safeguard's prohibition.
IV
Lastly, Respondent argues, in the alternative, that the
subject safeguard should be deemed invalid as it is inconsistent
with the intent of section 314 of the Federal Mine Saiety and
Health Act of 1977 (the Act).
In this connection, Respondent
argues, in essence, that the authority to issue safeguards,
contained in section 314Cb), suora, pertains to componentci of
mecnanical devices similar to those enu~erated in section 314(a),
whereas in contrast the subject safeguard pertains to clearance
nexc to an item of equipment.
Petitioner, in it3 response to
Respondent's Motion, indicates essentially that its position on
this issue is predicated upon its argument that ''Congress
intended that individual inspectors would have broad autnority to
issue safeguards addressing hazards encounter~d by miners
entering into, traveling in, and exiting mines." Petitioner's
Response does not allege that there is any genuine is3ue as to
any material fact with regard to this issue.
1866

The safeguard at issue was based on 30 C.F.R. § 75.1403, but
not on any of the criteria set forth in 30 C.F.R. § 75.1403-1
through§§ 75.1403.11.
(Respondent's First Set of Admission~,
Request No. 7, admitted by Petitioner). The language in section
75.1403 is the same as that contained in section 314(b} of the
Act. This section provides as follows:
"Other safeguards
adequate, in the judgment of an authorized representative of the
Secretary, to minimize hazards with respect to transportation of
men and materials shall be provided."
(Emphasis added.)
The safeguard at issue requires that breakers, similar
equipment "and where miners are required to work or travel" shall
be pro~ided with proper clearance. Respondent, in Section II of
its Memorandum asserts that the safeguard should be read as
requiring proper clearance for breakers and similar equipment
when these items are located where miners work and travel.
Should the safeguard by accorded this interpretation it would
appear to regulate the clearance next to an item in a mine. As
such, it would not regulate transportation, and would be beyond
the grant of authority contained in section 314(b), supra.
Respondent, is the Party moving for Summary Decision, and as
such has the burden of establishing its right to a summary
decision. I find Respondent has not met this burden. The
safeguard is somewhat ambiguous, but, on its face, relates to
areas where miners travel, and thus might be within the grant of
authority, set forth in section 314(b), supra, to issue
safeguards relating to transportation of men and materials. At
this stage of the proceedings, I can not conclude as a matter of
law, that Respondent's interpretation of the safeguard is correct.
Petitioner shall be allowed to present evidence on this issue.
Therefore, for all the above reasons, Respondent's Motion
for Summary Decision is not allowed.
ORDER
It is ORDERED that Respondent's Motion for
is DENIED.

Avram Weisberger
Administrative La~
< 703)

756-62.Lu

1867

Sui~ary

Jud~e

Decision

<

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

22041

SEP 12 1989
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 89-192
A. C. No. 46-01456-03825

v.
Docket No. WEVA 89-199
A. C. No. 46-01456-03824

EASTERN ASSOCIATED COAL
CORPORATION,
Respondent

Federal No. 2 Mine
ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY DECISION
On January 26, 1989, a Federal Mine Safety and Health
Insoector issued Resoondent two section 104(d)(2) orders in conjun~tion with two se~tion 107Ca) orders (issued under sections
104 and 107 of the Federal Mine Safety and Health Act of 1977
(The Act)). On August 18, 1989, Respondent filed a Motion for
Summary Decision and Memorandum in Support there.:>£, and on
September 5, 1989, Petitioner filed its Reply.
Respondent's Motion is predicated upon its assertion tnat as
a matter of law, only a 104(a) Citation may be issued in conjunction with a 107(a) imminent danger ordec. Respondent argues that
the plain language of section 107(a), supra, allows for only the
issuance of a citation under section 104(a), supra, and that the
is.suance of a 104 ( d) ( 2) ceder is i1nproper. Respondent by
implication, refers to the following language fcom section
107(a), supra:
"The issuance of an order under this silbsection
shall not preclude the issuance of a citation under section 104
or the proposing of a penalty under section 110." Respondent
argues that, inasmuch as section 104 distinguishes between ordec
and citation, had Congress intended orders to be included in
section 107(a), supra, it would have so stated.
The legislative histocy of the Act does not contain any
statement or discussion celevant as to whether the language in
section 107(a), supra! was intended to pceclude the is3uance of a
section 104(d) order._/ Thus, I have no basi3 to conclude, as
l; The relevant legislative history cited by Respondent at
pages 4 - 5 of its Memorandum merely reiterates the statutory
language.

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argued by Respondent, that by explicitly not precluding the issuance of a citation under section 104(a), supra, Congress intended
thereby to preclude the issuance of a section 104(d) order. Such
a construction is not supported by the legislative history of the
Act, nor does a plain reading of the language of section 107(a),
supra, unequivocally dictate such a construction.
I do not find any support for Respondent's argument that it
is "obvious" that the language of section 104, supra, is intended
to be mutually exclusive of section 107(a), supra. There is no
language in section 104(d)(2), supra, which makes reference to
section 107(a), supra. Nor is there support for Respondent's
position in any legislative history of the Act.
I do not find
merit in Respondent's argument that inasmuch as section
104(d)(l), citations may be issued only where there is no
imminent danger, it follows that similarly a section 104(d)(2)
order may not be issued in conjunction with a section 107(a)
order. Section 104(d)(l), supra, as pertinent, provides if an
inspector f inas a violation ot a mandatory health or safety
standards and " • . • if he also finds that, while the conditions
created by such violation cto not cause imminent danqer, such
violation is ot such nature as could significantly and
subscantially contribute to the cause of etiect ot a coal or
other mine safety or health hazard, and it he tinds such
violation to be caused by an unwarrantable failure of such operator
to comply with such mandatory health or safety standards, he shall
include sucn finding in any citation given to the operator under
this Act."
<Empnasis added). I find this language insufficient to
base a conclusion that Congress intended that a section 104(d)(2)
order may not be issued in conjunction with a section 107(a) order.
A reading of the plain language of section 104(d}(l) and (2)
indicates that, as as set forth in Petitioner's M~~ocandum:
[I]f an inspector finds a violation constituting an
unwarrantable failure on the part of the operator
within ninety days after the issuance of a Section
104(d)(l) cit~tion, the inspector "shall" issue an
withdrawal order under Section 104(d)(l). Thereafter,
the inspector "shall" issue a Section 104(d)(2) order
for each violation found similar to the violation found
in the Section 104(d)(l} order if the new violation
also constitutes an unwarrantable failure on the part
of the operator. This "chain" continues until a
complete inspection of the mine reveals no further
unwarrantable violations.
I find, accordingly, that, as argued by Petitioner, ir
Respondent's interpretation of the Act is adopted, it will result
in the frustration of the statutory scheme embodied in section
104(d}(l) and (2), supra, as an inspector would be prevented from
issuing orders required by section 104, suora. As correctly
argued by Petitioner in its Memorandum, ''It the Section 104(d)(l)

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or (2) order(s) constitutes an imminent danger, or a portion of
an imminent danger, then the inspector is forced to choose which
portion ot the scatute he will not enforce. He can issue the
Section 107(a) oraer or the order(s) under Section 104(d), but
not both. An interpretation forcing such a decision, which could
result in the unjustified release of an operator from the Section
104(d) "chain" or the unjustified failure to issue an imminent
danger order when such a danger exists, cannot be justified."
Thus, for all these reasons, I conclude that, as a matter of
law, it is not true that only a 104(a) citation may be issued in
conjunction with a 107(a) order. Hence, I find it has not been
established, that, as a matter of law, the section 104(d)(2)
order herein was improperly issued, and should be amended to a
section 104(a) citation.
ORDER
It is ORDERED that Respondent's Motion for Surrunary Decision
is DENIED.

/J

£~."'" r~~

Avram Weisberger
Administrative Law Judge
(703) 756-6210
Distribution:
Glenn M. Loos, Esq., Office of the Solicitor, U. S. Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Eugene P. Schmittgens, Jr., Esq., Michael A. Kafoury, Esq.,
Eastern Associated Coal Corporation, P. O. Box 373, St. Louis, MO
63166 (Certified M~il)
dcp

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

22041

September 20, 1989

JIM WALTER RESOURCES, INC.,
Contestant

CONTEST PROCEEDINGS

Docket No. SE 89-16-R
Citation No. 3012039; 10/25/88

v.
SECRETARY OF LABOR,
MINE SAFE'l'Y AND HEAL'fH
ADMINISTRATION CMSHA),
Respondent

No. 3 ~line
Mine I.D.

SECRETARY OF LABOR,
MINE SAFE"I'Y AND HEALTH
ADMilHS'rRA'rION (MSHA),
Petitioner

CIVIL PENALrY PROCEEDINGS

* 01-00758

Docket No. SE 89-42
A.C. No. 01-00758-03732

v.
No. 3 Mine
JIM WALTER RESOURCES, INC.,
Respondent
DECISION
AND
ORDER DENYING
MOTION TO DISMISS

Before:

Judge Melick

By oral motion at hearings in these consolidated cases
and by subsequent written motion the Secretary of Labor moved
to dismiss the "Notice of Contest". The Secretary argues in
her motion that m~ne operator Jim Walter Resources, Inc.,
(Jim Walter) cannot obtain review of the Secretary's decision
denying a modification to a ventilation plan for the reason
that the proposed modification is also the subject of another
mandatory standard.
The pleadings show that on September 29, 1988, Jim
Walter submitted for the Secretary's review a supplement to
its ventilation plan in which it stated as follows:
"a
ventilation change of 25,000 cfm or greatec of any section
split will be considered a major air change and the change
will be made according to 75.322." The Secret-3.ry through the
Mine Safety and Health Administration (MSHA) did not approve
the request and Jim ~alter thereafter informed MSHA that it

1871

no longer adopted its existing ventilation plan under 30
C.F.R. § 75.316. MSHA thereafter issued a citation alleging
a violation 0£ that standard. The violation was abated when
Jim Walter readopted its prior approved plan without
incorporating the requested change.
Section 303Co> of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq., the "Act," requires, in
relevant part, that a mine operator must adopt a ventilation
plan which has been approved by the Secretary. These
provisions are restated in the regulatory standard at 30
C.F.R. § 75.316 under which the subject citation was issued.
In this case it appears that Jim Walter is seeking through
modification of its ventilation plan to obtain clarification
and objectivity in the application of the regulatory standard
at 30 C.F.R. § 75.322. The latter standard provides that
"changes in ventilation which materially affect the main air
current or any split thereof and which may affect the safety
of persons in the coal mine shall be made only when the mine
is idle."
As Jim Walter noted in its Brief it is apparent that
ehis regulatory standard was written with the understanding
that ventilation changes which mat materially affect the main
air current in one mine may not have the same effect in
another mine. As Jim Walter turther observes, whether a
change in air quantity of, tor example, 9,000 cfm, has a
material effect will depend upon the particular mine's layout
and conditions, as well as upon the ventilation plan it
adopts for meeting the requirement of the AcL.
Jim Walter alleges in this case that it performed
studies of changes in ventilation in the subject No. 3 Mine
and that the resulting data demonstrated that ventilation
changes of up to 25,000 cfm had no material affect upon the
main air current or any split thereof, because of the
particular ventilation syst~n and manner of ventilating that
mine. Jim Walter·maintains that the data obtained was
submitted to MSHA by letter dated January 19, 1988, and that
it requested a determination by MSHA that such a change (of
up to 25,000 cfm) was not a major change at the subject mine.
MSHA responded to the request by letter dated
February 11, 1988, which stated in part as follows:
The National Coal Mine Health and Safety Inspection
Manual for underground coal mine states, in part,
that any ventilation change in whicn any split of
aic is increased or decreased by an amount equal to
or in excess of 9,000 cfm is considered a major

1872

change. Historically, this 9,000 cfm limit has
been established for about 17 years; therefore this
request is denied.
Subsequently Jim Walter submitted a revision to its
approved ventilatio~ plan pursuant to 30 C.F.R. § 75.316
stating that because of the particular ventilation system
utilized at this particular mine, ventilation changes of up
to 25,000 cfm would be made while the No. 3 Mine was still
operating. MSHA refused to approve the change. Jim Walter,
nevertheless briefly adopted this change thus leading to the
issuance of the citation by MSHA and the readoption of the
prior approved plan.
In her Motion to Dismiss the Secretary argues that
Jim Walter is impermissibly attempting to expand the scope of
its ventilation plan in this case in that ventilation plans
may not infringe upon subject matter which could have been
readily dealt with in mandatory standards of universal
application" citing Zeigler Coal Company v. Kleppe, 536 F.2d
398 at 407 (D.C. Cir. 1976).
In the instant case Jim Walter maintains that it has
generated data which indicate that changes in ventilation of
up to 25,000 cfm can be made at its No. 3 mine while the mine
is operating since such changes do not materially affect the
main air current. Whether or not the allegation may
subsequently be proven in this case the issue is clearly mine
specific in that it concerns the particular conditions at the
Jim Walter No. 3 mine and is not a matter which can be dealt
with by a single mandatory standard applicable to all mines.
The Secretary's argument herein is accordingly without merit.
The Secretary also appears to claim in this case that
because of the existence of another regulatory standard, 30
C.F.R. § 75.322, the subject matter of that standard cannot
be the subject of any portion of Jim Walter's ventilation
plan. This argume.nt is without legal support and is likewise
rejected. Under the circumstances the Secret ry's Motion to
Dismiss is denied.

G~ry
lick:
I
Admintl trative aw Judge
M.'

( 703) \ 56-6261

I

'

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1874

*U.S.COUERNMENT PRiNTINC orrICE:1989-241-155104760