MAY 1986

COMMISSION DECISIONS
05-13-86
05-22-86
05-27-86
05-27-86
05-27-86
05-27-86

WEST 83-17-M
CENT 80-312-M
D
86-2
KENT 83-181-R
KENT 82-103-D

Pg.
Pg.
Pg.
Pg.
Pg.

LAKE 83-97-D

Pg. 687

KENT 85-106
PENN 85-201
KENT 86-3-D
VA
85-32-D

Pg.
Pg.
Pg.
Pg.

693

WEST 85-116-DM Pg.
LAKE 84-86-D
Pg.
PENN 84-49
Pg.
KENT 85-105
Pg.
85-40
Pg.
SE
WEST 80-489-D(B}Pg.

736
741
746
749
799
804

Allsta_te Erectors, Inc.
Four H Coal Company, Inc.
Stoney Fork Coal Company
Dorothy Mae Coal Company, Inc.
Helen Mining Company
Delta Sand & Gravel Company
Franklin Consolidated Mines, Inc.
Loukonen Brothers Stone Co.

KENT 86-1-D
VA
85-22
CENT 85-149-M
SE
86-48
KENT 86-56
SE
85-135-M
YORK 85-11-DM
CENT 86-35-M
CENT 86-50-RM
KENT 85-205
KENT 85-214
VA
85-14
PENN 85-273
WEST 85-139-M
WEST 85-144-M
WEST 85-167-M

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

806
819
823
826
833
838
841
842
846
851
853
855
857
866
869
871

Austin Power, Incorporated

CENT 86-40

Pg. 881

Magma Copper Company
Duval Corporation
Disciplinary Proceeding
Pontiki Coal Corporation
UMWA for James Rowe, et al. v.
Peabody Coal Company
Sec. Labor for James Clarke v.
T.P. Mining, Inc.

656
662
663
668
681

ADMINISTRATIVE LAW JUDGE DECISIONS
05-01-86
05-01-86
05-02-86
05-02-86
05-05-86
05-06-86
05-06-86
05-07-86
05-07-86
05-07-86
05-08-86
05-08-86
05-12-86
05-13-86
05-14-86
05-14-86
05-15-86
05-19-86
05-23-86
05-30-86
05-30-86
05-30-86
05-30-86
05-30-86
05-30-86
05-30-86

Little Sandy Coal Sales
Canon Coal Company
Gary Hensley v. Harlan Wallins Coal Co.
Sec. Labor for Earl Kennedy & Larry
Collins v. Raven Red Ash Coal Corp.
Ronald Faust v. Asamera Minerals, Inc.
Gary Goff v. Youghiogheny & Ohio Coal
United States Steel Mining Co.
Pyro Mining Company
J & C Coal Corporation
Sec. Labor for Mark Adams, et al. v.
Emery Mining Corporation
Odell Maggard v. Chaney Creek Coal Corp.
RB J Coal Company, Inc.
Pine Bluff Sand & Gravel Co.
Jim Walter Resources, Inc.
Triple B Corporation
Florida Crushed Stone Co.
James Eades v. Arundel Sand & Gravel Co.

s-s-s

696

712
733

ALJ ORDER
05-29-86

MAY

The following cases were granted for review during the month of May:
Secretary of Labor v. Wilmot Mining Company, Docket No. LAKE 85-47.
(Judge Fauver, April 3, 1986)
Secretary of Labor v. Jim Walter Resources, Docket Nos. SE 85-36-R, 85-62,
85-109, 85-123. (Judge Koutras, April 8, 1986)
Secretary of Labor v. Canon Coal Company, Docket No. PENN 85-201.
Maurer, May 1, 1986)

(Judge

Review was denied in the following cases during the month of May:
Secretary of Labor for James Clarke v. T.P. Mining Co., Docket No. LAKE 83-97-D.
(Reconsideration of Commission Decision)
UMWA on behalf of Rowe, et at. v. Peabody Coal Company, Docket No.
KENT 82-103-D, etc. (Reconsideration of Commission Decision)

COMMISSION DECISIONS

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

May 13, 1986

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)
Docket No. WEST 83-17-M

v.
MAGMA COPPER COMPANY

BEFORE:

Backley, Doyle, Lastowka and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982) ("the Mine Act").
The issue is whether Magma Copper Company("Magma") violated 30 C.F .R.
§ 57.19-128(a)(l982), a mandatory safety standard for metal and non-metallic
underground mines. The standard, which has since been revised, provided:
Mandatory.
they have:

Ropes shall not be used for hoisting when

(a) More than six broken wires in any lay;
(b) Crown wires worn to less than 65 percent of
the original diameter;
(c) A marked amount of corrosion or distortion; and
(d) A combination of similar factors individually
less severe than those above but which in
aggregate might create an unsafe condition. ll:_/)
1/
The standard was revised and redesignated in 1983 as 30 C.F.R. §
S7.19a-24, 48 Fed. Reg. 53228, 53231-32 (November 25, 1983), and was
recodified in 1985 as 30 C.F.R. § 57.19024. 50 Fed. Reg. 4082, 4119
(January 29, 1985).

656

Although Magma was cited for a violation of subsection (d) of the standard,
former Commission Administrative Law Judge Virgil E. Vail, following a
hearing on the merits, found a violation of subsection (a) and assessed
a civil penalty of $100. (The judge found that subsection (d) was too
vague to be enforced.) 6 FMSHRC 1522, 1525 (June 1984)(ALJ). We granted
Magma's petition for discretionary review and granted the American Mining
Congress' request to participate as an amicus curiae. For the reasons that
follow, we reverse.

On June 10, 1982, an inspector of the Department of Labor's Mine
Safety and Health Administration ("MSHA") conducted an inspection at
Magma's Superior Mine, a copper mine and mill located near Superior,
Arizona. The hoist in the mine 1 s No. 9 shaft was used to lower and
raise miners into and out of the mine. During an inspection of the
hoist the inspector observed broken and distorted wires in different
lays of the wire rope attached to the counterweight of the hoist
mechanism. 2/ Based on his visual inspection of the rope the inspector
believed that there were 64 broken wires within a distance of 100 feet
and that there were as many as four broken wires in one lay length. 3/
Based on his observations, the inspector determined that the wire rope
was in an unsafe condition and issued the citation alleging a violation
of section 57.19-128(d). Magma abated the alleged violation by installing
a new wire rope.
On June 15, 1982, at Magma's behest, Robert Donner, a wire rope
engineer for Bethlehem Wire Rope Company ("Bethlehem"), examined the
"worst section containing the worst rope lay." Donner testified that at
that time he found three breaks in the lay. At the hearing Donner again
examined the rope and testified that this time he observed six broken
wires. Approximately one month after the citation was issued, Magma had
a 12-foot piece of the rope which it considered to be the "worst section,"
cut off and sent to Bethlehem. An examination of the section revealed
no signs of corrosion or rust and showed that the rope maintained a
breaking strength of 350,000 pounds. (The catalogue strength of the
rope was 358,000 pounds.)
In February 1983, eight months after the issuance of the citation,
Roy 1. Jameson, an MSHA health and safety specialist, examined the wire
rope. After conducting an initial examination of the rope at the mine,
Jameson instituted a more extensive analysis at an MSHA laboratory in
Denver. The laboratory procedures involved ultrasonic cleaning of the
rope and a viewing of the rope with magnification and special lighting.
Based on that laboratory analysis, Jameson concluded that the the rope
was unsafe. Jameson stated that he found 12 broken wires in one lay
];./
The wire rope was composed of six wire strands. Each wire strand
was composed of 25 individual wires. The six wire strands surrounded a
fiber core.
3/
A lay length is defined as "the distance parallel to the axis of
the rope in which a strand makes one complete turn about the axis of the
rope." Bureau of Mines, U.S. Department of the Interior, A Dictionary
of Mining, Mineral, and Related Terms, 629 (1968).

657

length, that the rope had been "peened" and had a dry core, and that the
lay length of the wire rope had been extended. !!_/
In finding that Magma violated section 57.128(a), the judge noted
the argument of Magma's counsel that subsection (d) was too vague to be
enforced and counsel's concession that subsections (a), (b) and (c-} set
forth objective enforceable requirements. The judge agreed that subsection (d) was impermissibly vague, and stated that had he not found a
violation of subsection (a) of section 57.128 he would have vacated the
citation. The judge noted that subsection (a) clearly requires the
non-use and replacement of wire ropes with more than six broken wires in
one lay. The judge found Jameson's testimony that he observed 12 broken
wires in one lay of wire rope to be more persuasive that that of Donner,
who at the hearing testified that he could see only six broken wires.
The judge therefore concluded that "a violation of subsection (a) •••
was established as the most credible evidence shows there were more than
six broken wires in one lay of the cited wire rope on the counterweight."
6 FMSHRC at 1526.
After reviewing the record as a whole, we find that the judge's
finding of a violation of subsection (a) is not supported by substantial
evidence.
The judge's finding of a violation rests on the testimony of Jameson.
While Jameson's testimony that during his post-inspection laboratory
analysis he found 12 broken wires in one lay length was unchallenged,
the judge apparently failed to take into account other undisputed,
relevant evidence. The record as a whole clearly militates against a
conclusion that the Secretary proved that on June 10, 1982, there were
more than six broken wires in any one lay of the wire rope.
First, we note that the inspector testified without contradiction
that on June 10, 1982, he observed a maximum of only four broken wires
in any one lay. The judge did not make reference to this testimony.
The judge likewise did not make reference to the testimony of Donner
that, when he examined the worst rope
five days after the citation
was issued and the violation was cited, he was able to find only three
broken wires.
Second, the judge also did not discuss testimony concerning the
possible change in the condition of the wire rope between the date of
the citation and the time the rope was examined by Jameson, eight months
later. There is no dispute that, following the citation, the wire rope
was removed from the hoist and stored on a reel in an uncovered outdoor
storage area. During this period, it was exposed to the elements,
unwound twice from the reel and dragged along the ground. Thus, during
the eight-month interval between the issuance of the citation and Jameson's
examination of the rope, it was exposed to abnormal conditions and
additional stresses. The judge erred in not evaluating the possible
11
4/
Peening 11 is a process whereby the metal in the wire rope flattens
and the flattened metal extrudes beyond the outer edge of the rope. The
extruded metal breaks off and the wire becomes brittle. 6 FMSHRC at
1525, n.2.

658

impact of these conditions and stresses in determining the weight to be
given Jameson's testimony. The weight given to evidence of an object's
subsequent condition is dependent upon the time that has elapsed between
the initial event and the date referenced in the testimony, as well as
upon the likelihood of change during the interval. See, e.g., Manning
v. New York Telephone Co., 388 F.2d 910, 912 (2d Cir-::-T968).
Further, the techniques of laboratory analysis employed by Jameson
to detect breaks in the wire rope were not those imposed by the MSHA
standards governing inspection and maintenance of hoists. See 30 C.F.R.
§ 57.19-120 et seq. (1982). Those standards contemplated regular visual
inspection with further field testing when potential problems were
indicated or at scheduled intervals. The record indicates that Magma's
wire rope examination procedures met or exceeded applicable MSHA requirements. There is no credible evidence that under the examination procedures
imposed by the MSHA standards that the inspector found, or Magma could
have found, a violation of section 57.19-128(a) on the date of the
citation's issuance. 5/
For all of the above reasons, we conclude that the judge's finding
of a violation of 30 C.F.R. § 57.19-128(a) is not supported by substantial
evidence. 6/
Finally, we address the judge's finding that section 57.19-128(d)
is unenforceably vague. The judge stated that section 57.19-128(d) was
too vague to convey the standard of conduct required of the mine operator.
6 FMSHRC 1525-26. The judge was in error. We reiterate that the fact
that a standard is drafted in general terms does not mean that it is
void for vagueness. Many standards must be drafted broadly in order to
be adaptable to the myriad of circumstances in a mine. Kerr McGee Corp.,
3 FMSHRC 2496, 2497 (November 1981). Such a standard, like section
57.19-128(d), is not unenforceably vague when a reasonably prudent person,

5/
We are aware that the record does indicate that prior to the subject
citation being issued, replacement of the cable was under consideration,
However, there is no indication that the reason for such replacement was
because of non-compliance with the instant regulation.
6/
On review Magma also challenges the judge's post hearing sua sponte
amendment of the Secretary's complaint to assert a violation
subsection (a). Magma argues that it was prejudiced by the amendment in
that it had not been given the opportunity to fully litigate the issue.
In light of our conclusion that the judge's finding of a violation of
subsection (a) is not supported by substantial evidence, it is unnecessary
to reach this assignment of error. We note in passing, however, the
importance of compliance with Rule 15(b) of the Federal Rules of Civil
Procedure when considering such amendments and that rule's emphasis upon
the parties understanding that the unpleaded claim is, in fact, being
litigated.

659

familiar with the mining industry and the protective purpose of the
standard, would recognize the hazardous condition that the standard
seeks to prevent. Ozark-Mahoning Co., 8 FMSHRC 190, 191 (February
1986), U.S. Steel Corp., 6 FMSHRC 1908, 1910 (August 1984); U.S.
Steel Corp., 5 FMSHRC 3, 5 (January 1983); Alabama By-Produc~4 FMSHRC
2128, 2129 (December 1982).
Accordingly, the decision of the administrative law judge is reversed
and the citation is vacated. 7/

.L~/t;~

Richard V. Backley, Commissioner

Lastowka,

~~ '-nt-lL.nv

L. Clair Nelson, Commissioner

7/

Chairman Ford did not participate in the consideration or disposition

of this case.

660

Distribution
N. Douglas Grimwood, Esq.
Twitty, Sievwright & Mills
Suite 4007
2702 North Third Street
Phoenix, Arizona 85004
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Michael F. Duffy, Esq.
Henry Chajet, Esq.
American MininR Congress
Suite 300
1920 N Street, N.W.
Washington, D.C. 20036

661

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

May 22, 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

CENT 80-312-M

DUVAL CORPORATION
BEFORE:

Backley, Doyle, Lastowka and Nelson, Commissioners
ORDER

BY THE COMMISSION:
In this matter pending on review, the parties filed with the Commission on May 7, 1986, a joint motion for approval of settlement and
dismissal of the petition for discretionary review.
In the decision below, Commission Administrative Law Judge John J.
Morris concluded that respondent Duval Corporation ("Duval") had violated
30 C.F.R. § 57.19-120 (1984), and assessed a civil penalty of $395.00
for the violation. 6 FMSHRC 1359 (May 1984). The Commission subsequently
granted Duval's petition for discretionary review. The parties' dismissal
motion states that Duval sold the mining operation in question in the
latter part of 1985 and "no longer wishes to contest the decision of the
administrative law judge." According to the motion, Duval is "now
willing to pay the $395.00 penalty assessed by the judge."
We have reviewed the settlement motion in light of the record and
the statutory penalty criteria (30 U.S.C. § 820(i)), and conclude that
the settlement agreed to by the parties is appropriate. Accordingly, we
approve the settlement. 30 U.S.C. § 820(k). The joint motion is granted,
the Commission's direction for review is vacated, and this proceeding is
dismissed.

~,u,/~

y

Richard V. Hackley,

Commissio~

,A~c..:~. L~..___
~~
u/(/::,,,, /~v.

Jaunr,.
s • Lastowka. cfmmissioner
'-(
r

'. ; '

I

··-;

,..

•

'

.... l . ...__ ..... _ \..

/

·"

{

f

,__" - ·~-"+ - C'-:.'\.

L. Clair Nelson, Commissioner
1/

Chairman Ford has not participated in the consideration or disposition

of this matter.

662

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

May 27, 1986

DISCIPLINARY PROCEEDING

BEFORE:

D 86-2

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

DECISION
BY THE COMMISSION:
This inquiry is to determine whether disciplinary proceedings
arising under Commission Procedural Rule 80, 29 C.F.R. § 2700.80, are
warranted, 1/ On January 22, 1986, Commission Administrative Law Judge
Joseph B. Kennedy referred to the Commission circumstances involving an
operator's counsel that he believed warranted discipline. The circumstances arose during the contest of a civil penalty proceeding, and the
judge included the disciplinary referral in his decision on the merits

!./

Rule 80 states in part:
Standards of conduct; disciplinary proceedings.
(a) Standards of conduct. Individuals practicing before the
Commission shall conform to the standards of ethical conduct required
of practitioners in the courts of the United States.
(b) Grounds. Disciplinary proceedings may be instituted
against anyone who is practicing or has practiced before the
Commission on grounds that he has engaged in unethical or unprofessional conduct, ••• or that he has violated any provisions .of
the laws and regulations governing practice before the Commission ••••
(c) Procedure. [A) Judge or other person having knowledge of
circumstances that may warrant disciplinary proceedings against an
individual who is practicing or has practiced before the Commission,
shall forward such information, in writing, to the Commission for
action. Whenever in the discretion of the Commission, by a majority
vote of the members present and voting, the Commission determines
that the circumstances reported to it warrant disciplinary proceedings,
the Commission shall either hold a hearing and issue a decision or
refer the matter to a Judge for hearing and decision ••••

29 C.F.R. § 2700.80.

663

of the penalty case. Youghiogheny and Ohio Coal Co., 8 FMSHRC 121,
138-141 (January 1986)(ALJ). Subsequently, the Commission granted
Youghiogheny & Ohio Coal Company's ("Y&O") petition for discretionary
review of the penalty aspects of the judge's decision and severed the
disciplinary referral from the rest of the case. Our only concern here
is with the disciplinary referral.
The substance of the disciplinary referral concerns the conduct of
counsel for Y&O in the penalty case. The judge asserts that counsel
violated applicable standards of professional conduct by failing to file
post-hearing findings of fact, conclusions of law, and supporting arguments.
The judge also asserts that counsel abused the Commission's legal process
by raising frivolous arguments, ignoring applicable precedents, and by
persistently badgering the witnesses and the judge. On the grounds
explained below, we conclude that disciplinary proceedings are not
warranted.
The procedural background of the underlying penalty case serves as
a backdrop for the disciplinary referral. In assessing proposed penalties
for the two alleged violations at issue in the penalty proceeding, the
Department of Labor's Mine Safety and Health Administration (''MSHA")
elected to waive its regular penalty assessment formula contained in 30
C.F.R. § 100.3 and conduct special penalty assessments pursuant to 30
C.F.R. § 100.5. As a result of the special assessments, the Secretary
of Labor filed with the Commission a proposal for civil penalties of
$850 and $900. Y&O answered by asserting, among other things, "The
citations do not meet the criteria required in 30 C.F.R. [§] 100.5 to
allow for a special assessment." Y&O requested that the citations be
"properly assessed" under section 100.3. Y&O maintained this position
throughout the proceeding.
At the close of the hearing, the judge delivered a tentative bench
decision in which he found that the two violations had occurred and that
penalties in the amounts of $1,000 and $950 were warranted. The judge
advised the parties that after the transcript of the hearing was received,
he would issue an order requiring the parties to show cause why the
bench decision should not be adopted as a final decision. Following
this procedure, the judge subsequently adopted the bench decision and
ordered Y&O to pay the penalties that he had assessed.
Y&O sought review of the judge's decision. On review, the Commission
concluded that the judge's decision was procedurally deficient because
it violated Commission Procedural Rule 65(a), 29 C.F.R. § 2700.65(a). J:./
2/

Rule 65(a) states in part:
The [Judge's] decision shall be in writing and shall include findings
of fact, conclusions of law, and the reasons or bases for them •••• If
a· decision is announced orally from the bench, it shall be reduced
to writing .•••

29 C.F.R.

§

2700.65(a).

664

The Commission vacated the decision and remanded the matter to the judge
to enter a new decision in accordance with the Commission's rules.
Youghiogheny & Ohio Coal Co., 7 FMSHRC 1335 (September 1985). On remand,
citing Commission Procedural Rule 62, the judge ordered the parties to
file proposed findings of fact, conclusions of law, and arguments in
support thereof in order for the judge to "determine the adequacy or
inadequacy of ••• (the] findings [in the bench decisionJ and make whatever additions ••• appear necessary to meet the Commission's rules." 2_/
The Commission denied Y&O's petition for interlocutory review of
this order. Nevertheless, Y&O did not submit any proposed findings,
conclusions, or arguments. The judge then ordered Y&O to show cause why
it should not be deemed in default. Y&O did not respond. The judge
thereafter adopted his prior decision, made supplemental findings of
fact and conclusions of law regarding the civil penalty aspects of the
case, and referred to the Commission the question of whether the conduct
of Y&O's counsel warranted disciplinary action. 8 FMSHRC at 123, 138-141.
We first examine the charge that counsel failed to respond to the
judge's order to provide findings of fact, conclusions of law, and
arguments in support thereof. Y&O requested relief from the order, but
the Commission denied Y&O's request. Y&O did not file the materials
with the judge nor did it respond to the order to show cause.
In defense of counsel's failure to respond to the order to submit
materials, Y&O argues that the proposed findings, conclusions, and
arguments would have served no useful purpose in that the judge previously
had decided the case adversely to Y&O. This argument is not well taken.
Commission Procedural Rule 62 provides that a judge "may require the
submission" of materials such as those that the judge ordered Y&O to
file. Belief that an order is erroneous, unwise, or serves no useful
purpose does not excuse compliance by counsel. The proper course of
action, unless and until an order is stayed or invalidated on appeal,
is for counsel to obey. Chapman v. Pacific Telephone and Telegraph Co.,
613 F.2d 193, 197 (9th Cir. 1979). Counsel cannot choose selectively
the orders with which he will comply. Once Y&O's request for interlocutory review of the judge's order was denied, counsel was obliged to
respond.
This said, we also conclude that counsel's failure to respond in
the particular circumstances obtaining here was not so egregious as to
warrant the institution of disciplinary proceedings. Y&O and its counsel
have asserted that counsel meant no disrespect for, or contumacy toward,
the judge and have apologized for counsel's conduct. Moreover, counsel
frequently has appeared before the Commission and the failure to respond
here was apparently a first-time occurrence. Therefore, we deem it
sufficient to caution counsel against ignoring orders issued by the
Commission or its judges in the future.
3/

Rule 62, 29 C.F.R. § 2700.62, states in part:
The judge may require the submission of proposed findings of fact,
conclusions of law, and orders, together with supporting briefs.

665

Concerning the judge's further assertions that counsel engaged in
unprofessional conduct by ignoring applicable precedents and persistently
raising frivolous arguments, we note that the essence of the judge's
complaint is that counsel refused to recognize that "the Commission and
its trial judges exercise their independent judgment in applying the six
[statutory penalty] criteria and are in no way bound by the determinations
made by MSHA." 8 FMSHRC at 125. As the judge correctly states, the
Commission has held that once a penalty is contested and Commission
jurisdiction attaches, a judge's determination of the amount of the
penalty is de nova, based upon the statutory penalty criteria and the
record info"iii"ation developed in the course of the adjudication.
Sellersburg Stone Co., 5 FMSHRC 287 ("March 1983), aff'd, 736 F.2d 1147
(7th Cir. 1984); United States Steel Mining Co., Inc., 6 FMSHRC 1148
(May 1984). We, however, find that counsel's argument did not stand in
opposiJion to this well-settled principle. Rather, it was premised upon
the theory that in certain circumstances a Commission judge has the
authority to remand a proposed penalty assessment to MSHA for reassessment
under appropriate MSHA penalty regulations. As both the judge and
counsel appear to have recognized, this issue has not yet been specifically ruled upon by the Commission, We cannot conclude that counsel's
argument constituted frivolous advocacy.
We further conclude that counsel did not "[persist] in badgering
the witnesses and the trial judge." Our review of the record reveals
that counsel was properly insistent and assertive in his questioning,
but was not discourteous or abusive. Similarly, we have considered and
rejected the additional asserted bases for referral urged by the judge.
For the foregoing reasons, we conclude that disciplinary proceedings
in this matter are not warranted. Accordingly, this inquiry is terminated •

.. ?
(/

t1,
~ ~

Joyc~le, CorrnniSSiOr
,

ames A. Lastowka, Commissioner

6a._;_~~~

L. Clair Nelson, Commissioner

666

!_

Distribution
Gerald P. Duff, Esq.
Hanlon, Duff & Paleudis Co., LPA
for Youghiogheny & Ohio
46770 National Road West
St. Clairsville, Ohio 43950
Patrick M. Zohn, Esq.
Office of the Solicitor
U.S. Department of Labor
1240 -East Ninth St.
Cleveland, Ohio 44199
Robert C. Kota, Esq.
Youghiogheny & Ohio Coal Company
P.O. Box 1000
St. Clairsville, Ohio 43950
Administrative Law Judge Joseph B. Kennedy
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, VA 22041

667

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

May 27, 1986
Docket Nos. KENT 83-181-R
KENT 83-182-R
KENT 83-183-R
KENT 83-184-R
KENT 83-256
KENT 83-262

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

PONTIKI COAL CORPORATION

BEFORE:

Backley, Doyle, Lastowka and Nelson, Commissioners
DECISION

BY THE COMMISSION:
In this consolidated contest and penalty proceeding arising under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1982), the Commission granted the Secretary of Labor's petition---ror-discretionary review of a decision by Commission Administrative Law
Judge Joseph B. Kennedy. 1/ The judge's decision, reported at 6 F¥SHRC
781 (March 1984)(ALJ), confirms a prior bench decision in which he
granted a joint motion to approve a settlement. The issue presented is
whether the judge abused his authority through the manner in which he
addressed the settlement agreement and the circumstances surrounding the
issuance of the pertinent citation and orders of withdrawal. For the
reasons that follow, we conclude that the judge's decision goes beyond
the record, includes comments lacking record support, and constitutes a
serious abuse of authority. Accordingly, we strike the judge's objectionable comments and affirm his settlement approval on the narrow grounds
on which it properly rests.
I.

Factual Background
Pontiki Coal Corporation ("Pontiki"), a subsidiary of Mapco, Inc.,
operates Mine Number Two, an underground coal mine located in Martin

1/

The Commission is an independent adjudicatory agency established by
Congress to resolve legal disputes under the Mine Act. 30 U.S.C. § 823.
The Commission is not a part of and is no way connected with the Department
of Labor. Rather, the Department of Labor appears before the Commission
as a party to litigation under the Mine Act.

668

County, Kentucky. 2/ On February 28, 1983, an inspection team from the
Department of Labor's Mine Safety and Health Administration ("MSHA")
arrived at the mine in order to conduct respirable dust and ventilation
spot inspections. An MSHA inspector was assigned to check ventilation
levels at several main intake/return locations.
This inspector's notes reflect that, prior to their going underground,
Pontiki's mine foreman could not produce any record books concerning
recent preshift/onshift conveyor belt examinations. From the bottom of
the slope outby for a distance of approximately 100 feet, the inspector
observed the presence of loose coal, coal dust, and float coal dust in
the slope conveyor belt entry. The inspector noted that, among other
things, the material had accumulated on top of the conveyor belt pan to
a depth of up to 12 inches, surrounding the upper belt in many places.
The conveyor belt was operating at the time. The inspector also noted
several other violative conditions in the area, including a damaged
walkway and handrail and a conveyor belt discharge roller not provided
with a guard.
The inspection party did not proceed inby the No. 1 conveyor belt
air locks, but instead rode a man-trip down the track entry, past the
No. 4 conveyor belt, to an extension of the No. 1 conveyor belt. The
inspector's notes reflect several ventilation readings and calculations
for air flow in that vicinity. His notes show the presence of an impermissible sump pump in a return air course and the lack of a check-in/check-out
system for supervisory personnel at the mine. The inspector's notes
also show that Pontiki cleaned up the accumulation on the slope conveyor
belt.
As a result of his observations, the inspector issued several
section 104(a) citations to Pontiki for the violative conditions that he
encountered, and held a close-out conference with mine officials. He
designated the accumulation violation as significant and substantial,
but noted that the accumulation appeared to be spillage and that there
was "[v]ery little that management can do about intermittent spillage."
The inspector specified 8:30 a.m. on March 1, 1983, the next day, as the
"Termination Due" date on the citation for failure to record preshift/
onshift conveyor belt examinations.
After being issued the record-keeping citation, the two most senior
Pontiki supervisors present in the mine that day walked along the conveyor
belt lines and filled out an onshift examination report. According to
counsel for Pontiki, the report revealed conveyor belt rollers in need
of repair and accumulations of coal dust and float coal dust on the No.
1 and No. 4 conveyor belts. Based on their report, which was filed at

2/ The factual background presented in this decision is derived primarily
from the transcript of the prehearing/settlement conference held before
the administrative law judge on February 7, 1984, and the responses of
the parties to the judge's pre-trial orders of September 7, 1983, and
January 10, 1984. No evidentiary hearing was conducted. After the
Commission directed this matter for review, several unauthorized documents
were struck from the official record. 6 FMSHRC 1131 (May 1984). Those
documents have not been considered in deciding this case.

669

the end of the daytime production shift on February 28, the mine supervisor
and mine foreman halted production at the mine.
The following day, March 1, 1983, the mine foreman told employees
that there would be no production at the mine that day. He directed
several of them to clean accumulations from around the No. 1 and No. 4
conveyor belts, change old rollers, replace bottom rollers, and rock
dust the areas following cleanup operations.
At approximately 10:00 a.m. that same day, an MSHA inspection party
returned to the mine and proceeded to walk along the idled No. 1 conveyor
belt. Once past the conveyor belt air locks, they observed accumulations
of loose coal, coal dust, and float coal dust ranging in depths of up to
40 inches. These conditions existed, in varying degrees, along the
2,000-foot course of the No. 1 conveyor belt. In several places, the
coal and coal dust had accumulated until it covered the bottom rollers
and touched the bottom belt. The material ranged from very dry to only
slightly moist. The inspector issued Citation No. 2052746, a section
104(d)(l) citation, alleging a violation of 30 C.F.R. § 75.400, as a
result of observing these conditions.
At the same location, the inspector noticed 52 damaged conveyor
belt rollers, numerous places where the conveyor belt rubbed against the
roller bracket to the extent that from 1/4 - to 1/2 - inch of the bracket
had been worn away, and the bottom belt lying on the accumulated material
at several locations (in one instance for a distance of 48 feet). The
inspector issued Order No. 2052747, a section 104(d)(l) order of withdrawal,
alleging a violation of 30 C.F.R. § 75.1725, based on the unsafe condition
of this conveyor belt.
A Pontiki safety inspector asked whether the MSHA inspectors could
issue a section 107(a) imminent danger order of withdrawal instead of
initiating the section 104(d)(l) "chain." An MSHA inspector replied
that the conditions encountered were significant and substantial violations
resulting from an unwarrantable failure to comply with applicable standards,
but that there was no immediate source of ignition for the float coal
dust. The MSHA inspectors' notes quote the safety inspector as responding,
"We' 11 start the belts i f that's what it takes to get a 107 (a) order
issued." The MSHA inspectors informed him that the conveyor belt was
already under a withdrawal order.
The MSHA inspectors issued another section 104(d)(l) order of
withdrawal, Order No. 2052748, alleging a violation of 30 C.F.R.
§ 75.404, for lack of any evidence of preshift/onshift conveyor belt
examinations. 11

1_/

In a subsequent modification of this order issued on March 8, 1983, it
was noted that some earlier dates and initials were found in the No. 1
conveyor belt entry, but that no evidence could be found to indicate
that examinations were conducted between February 3 and February 27,
1983. According to the inspector, 11 to 13 production shifts were
worked during that period as evidenced by Pontiki's preshift/ onshift
record books for the two working sections involved.

670

The inspection party proceeded to walk along the idled No. 4 conveyor
belt. From the No. 4 conveyor belt drive inby for a distance of 3,800
feet they observed accumulations of loose coal, coal dust, and float
coal dust ranging in depths of up to four inches. There were numerous
piles of such material.up to 12 inches in depth. The material ranged
from wet to very dry. As a result of observing these conditions, the
inspectors issued a third section 104(d)(l) order of withdrawal, Order
No. 2052750, alleging another violation of 30 C.F.R. § 75.400~
The inspectors' notes of the close-out conference conducted that
day reflect that Dennis Jackson, Pontiki's Vice President for Operations,
stated that the inspectors "were being unfair to the company." The
notes quote Jackson as stating that "he felt [the inspectors] had 'doublebarrelled' them •.•• " The inspector who wrote this note surmised that
Jackson's feelings "were in reference to the citation on records of belt
examinations [and] citations and orders written on conditions found in
the beltline." Jackson abruptly left the conference, and the inspectors
"felt that it was best to leave at this time."
II.

Procedural History
Of the citations and orders issued during the two days of inspection,
Pontiki contested only the one citation and three orders of withdrawal
issued on March 1, 1983. The subsequently consolidated contest and
penalty proceeding was assigned to Judge Kennedy. MSHA's Office of
Assessments proposed penalties of $2,294 for the four alleged violations.
The parties submitted extensive information in response to the judge's
pretrial orders of September 7, 1983, and January 10, 1984.
On February 7, 1984,. the parties appeared before the judge for a
prehearing/settlement conference. As a basis for settlement, counsel
for the Secretary of Labor offered to reduce the penalties proposed to
$1,900 for Pontiki's admission of the violations as written, while
Pontiki offered to admit to violations but not to the section 104(d)(l)
"special findings." The judge found neither offer acceptable. At the
conclusion of the conference, the parties agreed to a settlement agreement
proposed by the judge. He issued a bench decision approving the settlement
agreement. !!_/
The written decision of March 30, 1984, confirms the prior bench
decision. Under the terms of the settlement agreement, Pontiki agreed
to pay a civil penalty of $7,500 to be allocated among the four violations
as the judge deemed appropriate. Tr. 59; 6 FMSHRC at 786. (The judge
suggested that he had "remitted" $3,000 from a previously suggested
penalty of $10,500 in exchange for a letter from the operator admonishing
the responsible individuals. Id; Tr. 58-60).
4/
In his PDR, the Secretary seems to suggest that the parties may not
actually have "moved" for such a settlement. However, the Secretary's
trial counsel not only made no objection to the "settlement" terms as
described by the judge, he indicated that the judge's recitation of the
"settlement" was "agreeable." Tr. 59-60.

671

In addition to recapitulating the settlement terms, however, the
judge's decision also set forth an extended discussion of his view of
the "facts" surrounding the issuance of the citation and orders of
withdrawal. The judge stated that because the MSHA inspectors had
"noted" Pontiki's failure to record the results of preshift/onshift
conveyor belt examinations on February 28, 1983, "this should have
alerted them to conduct a physical examination of these areas." 6
FMSHRC at 782. The judge termed the inspection sequence employed a
"dereliction" because, by only inspecting near the slope bottom before
proceeding down the track entry on a personnel carrier, the inspectors
failed to observe or cite Pontiki for "enormous" accumulations of combustible material. Id.
The judge declared:
The record strongly suggests that the reason
the inspectors were "persuaded" to tour around the
main beltline and ignore the "message" of the
omitted preshift and onshift reports was to permit
the operator to run coal for one more shift and
management to "voluntarily" idle the mine and
begin cleanup operations. Indeed, the record
shows that in return for the "advance notice" of
the "spot" inspection that did not begin in
earnest until March 1, 1983, the operator idled
its production at 3:30 p.m. on Monday, February 28
and began cleanup. The record also shows that in
return for the operator's "cooperation" the
inspectors expected to issue only 104(a) citations
but were so appalled by the conditions actually
encountered they felt compelled to issue unwarrantable failure citations and closure orders.
6 FMSHRC at 783 (footnote omitted). The judge further asserted that at
the time the MSHA inspectors issued the section 104(d)(l) citation on
March 1, they were "no longer willing to turn a blind eye to the conditions
encountered.n 6 FMSHRC at 783 n. 2. He stated that as a result of this
action, "the operator's vice president for operations ••• felt he had been
double crossed or 'double barrelled' as he put it." 6 FMSHRC at 783.
The judge was critical of MSHA, in that the agency had declined to
specially assess the violations or refer them for a determination of
whether "knowing" or "willful" violations had been committed. 6 FMSHRC
at 784-85. He condemned MSHA for its "cheaper by the dozen" policy of
lumping multiple discrete violations into one citation and three orders
of withdrawal and for the fact that the Solicitor had offered to "reward"
Pontiki for challenging the violations by "discount[ing]" his proposed
penalties. 6 FMSHRC at 784. The judge likened MSHA's lack of oversight
of the Pikeville and Paintsville district offices to the type of "callous
indifference and dereliction" at Pikeville that led to the 1976 Scotia
·
Mine disaster in which 26 people had lost their lives. 6 FMSHRC at
784-85.

672

Warming to his theme, the judge stated:
The true circumstances surrounding the truncated
inspection of the beltline on February 28 cry out
for investigation and explanation. The public is
entitled to know what occurred on that date that
later led the operator's vice president for operations to feel he had been "spun 11 or "double barreled"
by MSHA. Was there a hidden quid pro quo for the
abbreviated inspection of the beltline on February
28, and, if so, what was it? Was the abbreviated
inspection of the beltline designed to alert the
operator to the real inspection that commenced the
next day? Or was MSHA innocent to the point of
naivete? And, if so, what is the public to conclude
about MSHA's capacity to serve as a sophisticated
enforcement agency? I believe these and other
questions deserve an answer.
6 FMSHRC at 785.
The judge recommended "that this matter be referred to the inspector
general of the Department of Labor for a full and true disclosure of the
facts relating to MSHA's failure to inspect the beltlines in question on
February 28, 1983. 11 6 FMSHRC at 785. He also recommended "that this
case be referred to the MSHA's office of special investigations for a
determination of liability on the part of the operator or any [of] its
employees under sections llO(c) and/or (d) of the Act." Id. The judge
stated that he had "probable cause to believe" that Jackson knew of the
existence of the violative conditions and of their gravity prior to
February 28, 1985. Id. He stated, "[I]ronically, [this] is the same
individual whom counsel represented would take disciplinary action
against the mine foreman allegedly responsible for the violation" and,
if he did so, "it must have been done with tongue-in-cheek." Id.
In closing, the judge ordered the settlement agreement approved,
allocated the $7,500 in civil penalties equally among the four violations,
and ordered the Commission to take such action as it deemed appropriate
to refer the matter to the Assistant Secretary of Labor for Mine Safety
and Health in order to initiate the two investigations that he felt were
justified on the above facts. 6 FMSHRC at 786.

On May 8, 1984, the Commission granted the Secretary's petition for
discretionary review. According to that pleading, the Secretary took
the "unusual step" of petitioning the Commission for review of a decision
approving a settlement "because of the egregious nature of many statements
contained in that opinion and the fact that the integrity of certain
individuals has been unfairly maligned." Sec. PDR and Br. at 5. The
Commission granted the Secretary's petition and, as a result of "the
serious allegations of possible criminal misconduct by federal employees
and officials" contained in the judge's submissions, the Commission, sua
sponte, also referred the matter to the Department of Justice for
~
"appropriate action." Letter to the Attorney General from the Commission's

673

General Counsel dated May 18, 1984. Pending a resolution of its referral,
the Commission deferred any further action in this case. It was on this
ground that the Commission subsequently denied the Secretary's motion
for expedition of his appeal. Commission Order dated June 18, 1985.
After directing the case for review and making its referral to the
Department of Justice, the Commission struck a number of documents from
the official record. 6 FMSHRC 1131 (May 1984). The Commission also
struck, as not being part of the record before the judge, the affidavit
and memorandum attached to the Secretary's petition for discretionary
review. Id.
The Public Integrity Section of the Department of Justice's Criminal
Division responded conclusively to the Commission's investigative referral
by letter dated May 2, 1986. The letter states that the "allegations
made by Administrative Law Judge Joseph Kennedy about possible bribery
or the giving of advance notice of mine inspections by [MSHA] inspectors"
were subjected to a "limited inquiry to determine whether sufficient
evidence existed to initiate a full investigation •••. " The letter
concludes, "Based upon the results of that inquiry, we decided that
further criminal investigation is not warranted, and we have closed the
matter as to the allegations of bribery and advance notice,"
III.

Disposition
The Secretary argues that the judge abused his authority by addressing
in his published decision matters far beyond the scope of the proceeding
below, making numerous statements and findings unsupported by any evidence,
and venturing comments that are defamatory, derogatory, and inappropriate.
Relying on the Commission's decision in Inverness Mining Co., 5 FMSHRC
1384 (August 1983), the Secretary requests that most of the text of the
judge's decision be stricken.
Settlement of contested issues is an integral part of dispute
resolution under the Mine Act. Section llO(k) of the Act provides that
no contested proposed penalty "shall be compromised, mitigated, or
settled except with the approval of the Commission. 11 30 U.S. C. § 820 (k).
See also Commission Procedural Rule 30, 29 C.F.R. § 2700.30. In Knox
COlint:Y-stone Co., Inc., 3 FMSHRC 2478 (November 1981), the Commission
described some of the "outer boundaries" of the authority its judges
possess in settlement adjudication. While noting that a judge's oversight of the settlement process is an adjudicative function that involves
wide discretion, the Commission observed that the scope of that discretion
is not unlimited. 3 FMSHRC at 2479. The Commission stated:
Rejections [of settlement], as well as approvals,
should be based on principled reasons. Therefore,
we [have] held that if a judge's settlement
approval or rejection is "fully supported" by the
record before him, is consistent with the
statutory penalty criteria, and is not otherwise

674

improper, it will not be disturbed. In reviewing
such cases, abuses of discretion or plain errors
are not immune from reversal.
3 FMSHRC at 2480 (citations omitted).
The Commission previously has warned Judge Kennedy not to indulge
in settlement "approval" decisions roaming far beyond the limited records
typically involved in the settlement process. Inverness Mining, supra,
5 FMSHRC at 1388-89. As the Commission has stated repeatedly, if a
judge disagrees with a stipulated penalty amount or believes that any
questionable matters bearing on the violation or appropriate penalty
amount need to be clarified through trial, he is free to reject the
settlement and direct the matter for hearing. Knox County, supra, 3
FMSHRC at 2481-82; Tazco, Inc., 3 FMSHRC 1895, 1898 (August 1981). The
process followed by Judge Kennedy in the present case violated these
well-established principles.
At the close of the prehearing/settlement conference -- during
which, we emphasize, no evidentiary testimony had been developed -Judge Kennedy issued a-bench decision approving the settlement agreed to
by the parties. Tr. 59-60. According to the terms of that oral agreement,
as related by Judge Kennedy on the record, the only issues disposed of
were those contested by the parties -- namely, the violations reflected
in the citation and orders of withdrawal, the appropriate civil penalty,
and the "letter of admonition" required by the judge before he would
approve the settlement agreement. At this stage of the proceedings, it
should have been clear to Judge Kennedy that his written decision would
be limited in scope by the abbreviated dispute resolution mechanism
employed by the parties and approved by him. Instead, his subsequent
written decision addressed numerous matters beyond the scope of the
parties' settlement agreement and the scant -- and untried -- record in
this matter.
The pre-trial submissions offered in this proceeding, upon which
the judge's decision purports to rest, were made in response to the
judge's pre-trial orders. Not only do they lack the evidentiary character
of testimony and evidence offered at a hearing and subjected to the
crucible of cross-examination and trial, they also do not provide support
for any of those portions of the decision sought to be stricken by the
Secretary. The limited nature of these submissions reinforced the need
for the judge to limit himself to the confines of the issues resolved,
or fairly touched on, by the mutual consent of the parties. Inverness
Mining, 5 FMSHRC at 1388. Cf. ABC Air Freight Co. v. CAB, 391 F.2d 295,
305 (2d Cir. 1968), cert. denied, 397 U.S. 1006 (1970)-.~
We proceed to examine the judge's various objected-to pronouncements seriatim. We find all of them lacking in record support.
A.

Improper advance notice

The record reveals that during the inspection conducted on February 28,
1983, an MSHA inspector issued a citation for failure to record preshift/
onshift conveyor belt examinations. On the face of the citation, the

675

inspector specified 8:30 a.m., the next day, March 1, 1983, as the
"Termination Due" date for the record-keeping citation. The establishment of a specific due date for abatement is a statutory requirement of
the Mine Act. 30 U.S.C. § 814(a). To construe such a legal requirement
as an improper "advance notice" that an inspection will be conducted at
that time defies reason.
Among other things, the purpose of a specific abatement due date is
to put the operator on notice as to when the enforcement authority
requires the alleged violation to be corrected. Therefore, it is logical
for an operator to assume that a further inspection may be conducted on
o~ shortly after that date to ascertain that the condition, in fact, has
been corrected. Moreover, the statements of Pontiki's counsel in response
to the judge's questioning on this issue provide no basis for a finding
of advance notice. Tr. 54-55. Absent anything more in the record to
support his assertion, we conclude that the judge's insinuations of
improper advance notice lack support in the present record. Cf.
Inverness Mining, 5 FMSHRC at 1388.
B.

Bribery

Judge Kennedy queried whether there was "a hidden quid pro quo for
the abbreviated inspection of the beltline on February 28." 6FMSHRC at
785. He also asked what had led Dennis Jackson, Pontiki's Vice President
of Operations, to feel that he had been "spun," "double crossed or
'double barrelled' as he put it. 11 6 FMSHRC at 783, 785. The tone of
these "queries," which relate to possible criminal conduct, renders the
judge's statements as declarative as they are interrogative in nature.
The Secretary argues that the judge incorrectly equated the term "doublebarrelled" with the term "double-crossed."
In common parlance, the term "double-barrelled" means receiving a
measure of something that is, perhaps, in excess of that required.
Nowhere does the term "double-crossed" appear in the record. Rather,
the existing record tends to show that when Jackson used the term "doublebarrelled," he did so in the context of Pontiki's having received a
citation for failure to maintain records of preshift/onshift conveyor
belt examinations as well as a subsequent order of withdrawal for lack
of evidence that the examinations had actually been made. There is
nothing in the record affording a shred ~f support to the judge's
innuendo of bribery.
C.

Lax Enforcement

Throughout the body of his decision, the judge directly or indirectly
stated that MSHA's inspection at the Pontiki Mine Number Two constituted
lax enforcement. 6 FMSHRC at 782-86. The Secretary argues that the
judge should have notified the parties of his intention to address this
issue in the context of the citation and orders. We agree. The issue
of lax enforcement was not within the scope of the settlement agreement
and the Secretary was not given an adequate opportunity to establish a
record on this issue.

676

We also conclude that a finding of lax enforcement does not necessarily
follow from the pre-trial submissions made by the parties. It is true
that during their February 28, 1983 spot inspection, the MSHA inspection
team did not observe or cite all of the accumulations, equipment, and
inspection violations that then existed at the mine. Other violations
discovered by them were, however, cited on that date. Absent a hearing
at which their explanatory testimony could have been taken, the judge's
postulates of corruption or naivete hardly exhaust the universe of
possible explanations, and amount to no more than personal, unsupported,
damaging speculation.
D.

Accusations of criminal conduct and defamatory comments

The judge's decision contains a number of statements that the
Secretary argues are defamatory, derogatory, and inappropriate. While
fair and supported critism of MSHA or any other party appearing before
the Commission at times may be appropriate, the judge overstepped proper
bounds by stating or implying that the inspectors provided advance
notice of an inspection, intentionally ignored hazardous conditions,
arranged some type of unethical or illegal deal with Pontiki, and received
something in return for their willingness to accomodate the operator.
As our previous discussion indicates, these statements are not supported
by the extant record.
We are particularly disturbed~by the judge's allegations of advance
notice and bribery. These are federal criminal offenses. As the Commission
observed in another case involving unfounded criminal accusations by
Judge Kennedy:
Any accusation of criminal conduct is a grave
matter, not to be undertaken lightly, especially
by a jurist schooled in the law and aware of the
requirements of due process.
Belcher Mines, Inc., 7 FMSHRC at 1019, 1022 (July 1985)(emphasis in
original) •. In Belcher, the Commission held that by attacking the personal
reputations of individuals and by accusing them of criminal activity:
Judge Kennedy assumed the conflicting roles of
grand jury, prosecutor, jury, and presiding judge.
Jurisdiction over federal criminal matters resides
with the United States Department of Justice and
the federal criminal justice system. If Judge
Kennedy had reason to believe that crimes had been
committed, he should have referred the matter to
the appropriate authorities at the Department of
Justice.
7 FMSHRC at 1025.

677

In this case, the Commission itself referred Judge Kennedy's
allegations tc the Department of Justice for further proceedings.
The Department of Justice conducted a limited inquiry and ultimately
concluded that further criminal investigation was not warranted.
While the judge did not specifically name all of the individuals
accused in his decision, the fact remains that in a rural, coal-mining
region, the identity of the individuals concerned could readily be
determined. In this regard, the Secretary has asked the Commission to
take official notice of two front-page newspaper articles that appeared
in the local press as a direct result of Judge Kennedy's written decision.
We do so, and further note that the reports contain inaccurate statements
misconstruing the statutory roles of the Commission and its administrative
law judges and the limited scope of the record developed before Judge
Kennedy in this proceeding. These press reports highlight the inexcusable
damage that can be done to personal and professional reputations when
criminal accusations are disseminated in public decisions. What makes
such abuse especially egregious in this instance is the fact that Judge
Kennedy's charges and criticism lack support in the record before him.

IV.
Conclusion
The foregoing is not to say that Commission judges do not possess
considerable latitude ~comment officially on relevant matters in the
public record when the evidence before them and the circumstances warrant
appropriate comment. The record in this case discloses that the cited
violations were serious indeed. Pontiki's Mine Number Two is classified
as a gassy mine, and the cited violative conditions were cause for grave
concern. The Secretary initially proposed penalties tot~lling $2,294,
which he was prepared to compromise to $1,900. In our view, either
figure is inadequate under the circumstances, and the judge rightfully
rejected them under section llO(k). We find that the $7,500 penalty
settlement approved by the judge is supported by the record and is
consistent with the statutory penalty criteria. Had the judge contented
himself with assessing an appropriate penalty and had he limited his
comments in doing so to the record developed before him, his duties
under the Mine Act would have been discharged properly.

678

Accordingly, we conclude that Judge Kennedy's objectionable comments
discussed above lack record support and are unwarranted. As noted, the
judge's allegations of unlawful activity were referred to the proper
authorities, who concluded that prosecutorial action was unwarranted.
We affirm the judge's settlement approval on the narrow grounds on which
it properly rests, and strike all but the first sentence of the last
paragraph of his decision, which reads as follows: "Accordingly, it is
ORDERED that the settlement approved at the prehearing/settlement conference
of February 7, 1984, be, and hereby is CONFIRMED, and that the settlement
amount agreed upon and paid, $7,500, be allocated equally among the four
violations found." 5/

-L /

Richard V. Backley,

Comm~~

'2~tl.~

Joyce A. Doyle, CommiSSiOil

5/
Chairman Ford did not participate in the consideration or disposition
of this matter.

679

Distribution
Ann Rosenthal, Esq.
Barry Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Nick Carter, Esq.
Pontiki Coal Corporation
MAPCO, Inc.
2365 Harrodsburg Road
Suite B410
Lexington, Kentucky 40504
Administrative Law Judge Joseph Kennedy
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, VA 22041

680

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

May 27, 1986
UNITED MINE WORKERS OF AMERICA
(UMWA)
on behalf of JAMES ROWE, et al. ,
JERRY D. MOORE, LARRY D. KESSINGER

Docket Nos. KENT 82-103-D
KENT 82-105-D
KENT 82-106-D

v.
PEABODY COAL COMPANY
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of THOMAS L. WILLIAMS

Docket No. LAKE 83-69-D

v.
PEABODY COAL COMPANY

BEFORE:

Backley, Lastowka and Nelson, Commissioners
ORDER

BY THE COMMISSION:
The Commission concluded previously that Commission Administrative
Law Judge Joseph B. Kennedy, while presiding in the above-captioned
matter, acted improperly by: (1) engaging in a prohibited ex parte
conununication; (2) verbally abusing attorneys appearing before him; and
(3) commenting publicly on a pending proceeding. United Mine Workers
on behalf of Rowe v. Peabody Coal Co., 7 FMSHRC 1136 (August 1985). The
Commission's decision was the result of an inquiry into allegations
contained in a letter to the Commission from Francis X. Lilly, then the
Solicitor of the Department of Labor. 1/ Judge Kennedy has moved for
reconsideration of the decision. For the reasons that follow, the
motion is denied.
1/
The Commission is an independent adjudicatory agency established by
Congress to resolve legal disputes under the Federal Mine Safety and
Health Act of 1977 ("the Mine Act"), 30 U.S.C. § 823 (1982). The Commission is not a part of and is in no way connected with the Department of
Labor. Rather, the Department of Labor appears before the Commission as
a party to litigation under the Mine Act.

681

Although the factual background and procedural history of this
matter are fully described in the Commission's previous decision, we
will briefly set forth those facts pertinent to an understanding of the
present order. The Solicitor asserted that Judge Kennedy had initiated
a prohibited ex parte telephone conversation with a Department of Labor
attorney, Linda Leasure, in which they discussed the merits of the
above-captioned discrimination proceeding. The Solicitor also asserted
that the judge exhibited abusive conduct toward the Secretary's trial
counsel, Frederick W. Moncrief, and toward counsel for the United Mine
Workers of America and Peabody Coal Company at an oral argument on the
merits of the captioned proceeding. Finally, the Solicitor asserted
that Judge Kennedy had threatened Moncrief during a confrontation
between the two, occurring at the judge's office subsequent to the oral
argument. The Solicitor's letter was accompanied by affidavits from
Leasure and Moncrief and by portions of the transcript of the oral
argument.
The Commission deemed the Solicitor's letter and the accompanying
materials to be, in part, a notification of a prohibited ex parte communication and a request for appropriate action under Commission Procedural
Rule 82. 29 C.F.R. § 2700.82. 2/ The Commission served the judge and
the parties with copies of the Tetter and attachments. The Commission
also severed the allegations of judicial misconduct from the merits of
the discrimination proceedings, reassigned the merits to the Chief
Administrative Law Judge, and retained jurisdiction over the misconduct
allegations.

2/

Rule 82 states:
(a) Generally. There shall be no ex parte communication with
respect to the merits of any case not concluded, between the Commission, including any member, Judge, officer, or agent of the Commission who is employed in the decisional process, and any of the
parties or intervenors, representatives, or other interested persons.
(b) Procedure in case of violation.
(1) In the event an ex
parte communication in violation of this section occurs, the Commission or the Judge may make such orders or take such action as
fairness requires. Upon notice and hearing, the Commission may
take disciplinary action against any person who knowingly and
willfully makes or causes to be made a prohibited ex parte communication.
(2) All ex parte communications in violation of this section
shall be placed on the public record of the proceeding.
(c) Inquiries. Any inquiries concerning filing requirements,
the status of cases before the Commissioners, or docket information
shall be directed to the Office of the Executive Director of the
Commission ••••

29 C.F.R. § 2700.82.

682

In order to determine whether any improper conduct.occurred, an
inquiry was initiated by the Commission. The Commission ordered the
judge to file a complete and detailed affidavit concerning the reported
matters. The Commission also noted that the judge had been quoted in
the Lexington [Kentucky] Herald-Leader as characterizing the telephone
conversation with Ms. Leasure as a trivial incident and making critical
comments regarding Mr. Moncrief. The Commission therefore directed the
judge also to disclose in his sworn statement the substance of his
conversation with the author of the article and to state whether he had
been quoted accurately.
In response to the Commission's order, the judge moved that the
inquiry be dismissed and that the order directing the filing of his
sworn statement be stayed. The judge asserted that the inquiry was
disciplinary in nature and that the Commission had no jurisdiction to
discipline a judge. The Commission denied the judge's motion stating:
Before this Commission undertakes to discipline, or seek discipline of, an administrative
law judge it needs first to determine whether any
disciplinary action is required. The Commission
has followed, and will continue to follow, appropriate procedures in seeking to examine the
allegations of misconduct that have been raised in
this matter. If the Commission later determines
that grounds exist for forwarding this matter to
the Merit Systems Protection Board, it will do so.
[2_/]

The judge subsequently filed a sworn statement and the Commission
thereafter accepted for filing affidavits from Mr. Moncrief and Cynthia
A. Attwood, the Department of Labor's Associate Solicitor for Mine
Safety and Health. These affidavits responded to points raised in the
judge's affidavit. No further affidavits or other submissions were
filed and our decision followed.
The judge now asserts that in reaching our decision on the basis of
affidavits and without a confrontational hearing the Commission denied
him due process. He also asserts that, in any event, the Commission
lacks authority to issue a decision disciplining him and that our
decision improperly did so. We find these assertions to be without
merit.
3/
Under the Civil Service Reform Act of 1978, Pub. L. 95-454, 92
Stat. 1111 (1978), the Merit Systems Protection Board ("MSPB") hears and
decides an employing agency's complaint proposing certain designated
types of adverse action against an administrative law judge. 5 u.s.c.
§ 7521 (1982); ~also 5 C.F.R. § 1201.133 (1986).

683

The judge's argument that he was entitled to, and was denied, an
evidentiary hearing affording him the rights of confrontation and crossexamination discloses confusion and misunderstanding over the nature of
the inquiry in this matter. When a possible ex parte communication is
brought to the Commission's attention, the Commission has a legal and
ethical responsibility under its rules to investigate the matter.
Secretary of Labor on behalf of Ronnie D. Beavers v. Kitt Energy Corp.
and United Mine Workers of America, 8 FMSHRC 15 (January 1986). The
Commission also has the responsibility to investigate reported possible
instances of unethical or unprofessional conduct in connection with
Commission proceedings. When reports of such conduct are made to the
Commission an appropriate means to commence our task is to solicit sworn
statements from those who have knowledge of the alleged prohibited
conduct. Such statements can establish facts bearing upon whether the
action3 occurred and were in violation of the Commission's rules and
applicable standards of conduct. See 29 C.F.R. § 2700.BO(a), (b), and
( c) •

Through this procedure and through the submission of motions and
argument, an individual involved in such an inquiry has the right and
the opportunity to be heard. There is, however, no requirement that the
right to be heard necessarily incorporates an evidentiary hearing. When
the record and the sworn statements received are corroborative or
unrebutted as to the material issues, and establish a violation of the
Commission's rules or applicable standards of conduct, it is proper for
the Commission to enter an appropriate finding on the basis of undisputed
material facts. As we have stated this same date in Secretary of Labor
on behalf of James M. Clarke v. T.P. Mining, Inc., LAKE 83-97-D, slip
op. at 4: "Summary decision based on undisputed or unrebutted factual
allegations is a procedural course well known to the law. Due process
is process that is due under particular circumstances, and does not
invariably mandate trial-type proceedings. See, e.g., Hannah v. Larche,
363 U.S. 420, 442-43 (1960) . " Conversely, when materially conflicting
allegations exist, an evidentiary hearing may be necessary in order to
resolve the conflicts. See T.P. Mining, supra, slip op. at 2.
Our actions here are in accord with these principles. The judge
was given full opportunity to be heard, as were the other individuals
involved. The Commission solicited the judge's sworn statement. The
Commission entertained the judge's va~ious motions and supporting
argum~nts.
In concluding that the subject communication was ex parte
and prohibited; that the judge abused the attorneys appearing before
him; and that the judge's comments as reported in the Lexington
[Kentucky) Herald-Leader represented improper judicial conduct, the
Commission relied on the public record and the non-conflicting portions
of the sworn statements of the judge and other parties. 4/ 7 FMSHRC at
1140-44, 1144-46, 1147-48. On the other hand, because the sworn statements
4/
Indeed, the Commission found that the ex parte communication was
prohibited even as described by the judge alone. 7 FMSHRC at 1143.

684

of the respondents were conflicting and thus failed to reveal the precise
content of the out-of-court incident involving the judge and Mr. Moncrief,
the Commission declined to conclude that standards of professional
conduct were violated. 7 FMSHRC 1146-47.
The Commission was not required by either Commission Procedural
Rule 80 or Rule 82 to provide the judge with an evidentiary hearing.
Rule 80 sets forth standards of conduct for "individuals practicing
before the Commission" and provides procedures for determining whether
discipline is warranted for violations of those standards. A Commission
administrative law judge is not an "individual practicing before the
Commission" and, hence, Rule 80 is totally inapplicable to the conduct
herein involved. Further, Rule 82(b)(l) provides that in the event of a
prohibited ex parte communication that the Commission "may make such
orders~or take such action as fairness requiresn and that "[u]pon notice
and hearing, the Commission may take disciplinary action against any
person who knowingly and willfully makes or causes to be made a prohibited
ex parte communication." As the judge is aware the Commission has not
imposed any discipline on him. ("The Commission did not impose any
discipline in its August 5 decision •••. " Motion for Reconsideration at
2 n. 1.) As we have noted, it is the MSPB that by statute and regulation
hears and decides designated types of adverse action against an administrative law judge. All that we have done is 11 to engage in an appropriate process to determine whether discipline is warranted.n 7 FMSHRC
at 1139 n. 2.
Therefore, the judge's motion for reconsideration is denied. 5/
/)

Richard V. Backley, Commissioner

11
fl~""/ I u~
L. Clair Nelson, Commissioner
A I La~to~ Commissioner

I

5/
Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we
have been designated a panel of three members to exercise the powers of
the Commission in this matter.

685

f

Distribution
Philip G. Sunderland, Esq.
Terris & Sunderland
1121 12th St., N.W:
Washington, D.C. 20005
Cynthia Attwood, Esq.
Associate Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Michael McKown, Esq.
Peabody Coal Company
P.O. Box 373
St. Louis, Missouri 63166
Mary Lu Jordan, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005

Dennis Clark, Esq.
1100 17th St., N.W.
Suite 800
Washington, D.C. 20036
Administrative Law Judge Joseph Kennedy
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

686

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0.C. 20006

May 27, 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of JAMES M. CLARKE

v.

Docket No. LAKE 83-97-D

T.P. MINING, INC.

BEFORE:

Backley, Lastowka and Nelson, Commissioners
ORDER

BY THE COMMISSION:
The Commission concluded previously in this matter that Commission
Administrative Law Judge Joseph B. Kennedy and counsel for respondent
T.P. Mining, Inc. ("T.P. Miningt1), engaged in a prohibited ex parte
communication in violation of Commission Procedural Rule 82, 29 C.F.R.
§ 2700.82.
7 FMSHRC 1010 (July 1985). '};./ That conclusion resulted from

]j

Rule 82, entitled "Ex parte communications," provides:
(a) Generally. There shall be no ex parte communication with
respect to the merits of any case not concluded, between the
Commission, including any member, Judge, officer, or agent of the
Commission who is employed in the decisional process, and any of
the parties or intervenors, representatives, or other interested
persons.
(b) Procedure in case of violation. (1) In the event an ex
parte communication in violation of this section occurs, the
Commission or the Judge may make such orders or take such action as
fairness requires. Upon notice and hearing, the Commission may take
disciplinary action against any person who knowingly and willfully
makes or causes to be made a prohibited ex parte communication.
(2) All ex parte communications in violation of this
section .shall be placed on the public record of the proceeding.
(c) Inquiries. Any inquiries concerning filing requirements,
the status of cases before the Commissioners, or docket information
shall be directed to the Office of the Executive Director of the
Commission ••••

29 C.F.R. § 2700.82.

687

an inquiry conducted to detennine whether Rule 82 had been violated
during the course of pre-trial proceedings in this case, Through counsel,
Judge Kennedy has moved for reconsideration of the Commission decision.
For the reasons that follow, the motion for reconsideration is denied,
The thrust of the motion for reconsideration is that the judge was
entitled to, and was denied, notice of the specific charges against him
and an evidentiary hearing. This assertion evidences a misunderstanding
of the nature of this proceeding and the meaning of Rule 82. As shown
below, the judge not only had full notice of the concerns at issue in
this matter and not only received such process as was due under the
circumstances, but in addition he, through his counsel, demanded termination of the inquiry short of an evidentiary hearing.
The factual background and procedural history of this matter are
fully described in the Commission's previous decision (7 FMSHRC at
1011-14), and will not be repeated in detail here. In view of the tone
of the present motion for reconsideration, however, it bears re-emphasis
that the challenged inquiry was triggered by the judge sending an
unsolicited letter to the Commission baldly announcing that "the basis
for the settlement [of the underlying discrimination case] was fully
disclosed in a discussion between counsel for the operator and the trial
judge to which [counsel for the Secretary] was not a party." Because
the judge's statement indicated on its face that an ex parte communication
had occurred, the participants to the conversation, namely, the judge
and the operator's counsel, were ordered to submit affidavits "providing
full disclosure of the details and substance" of their conversation.
When an alleged ex parte communication is brought to the Commission's
attention, the Commission has a legal and ethical responsibility to
pursue the matter. See, e.g., Secretary of Labor on behalf of Ronnie D.
Beavers et al. v. Ki~Energy Corp., 8 FMSHRC 15 (January 1986). An
appropriate means of commencing that task is for the Commission to
examine the record of the relevant proceeding and to solicit statements
from those who may have engaged in such a communication or have knowledge
of the events at issue, in order to examine facts bearing on the question
of whether a violation of Commission rules occurred, If the results of
such a preliminary inquiry plainly disclose that no impropriety transpired,
the whole matter can then be terminated. See, e.g., Beavers, supra, 8
FMSHRC at 17-21. Conversely, when the record and the statements received
are corroborative or unrebutted as to the pertinent issues and establish
a violation, a summary conclusion that a violation occurred may be
wholly proper under Rule 82 and settled norms of due process. If materially
conflicting allegations surface, however, a hearing may be necessary.
Against this background, we turn to the judge's allegations that the
procedures followed by the Commission in this specific inquiry were
improper.

688

After the Commission received Judge Kennedy's unsolicited letter
disclosing that he had engaged in an off-the-record conversation with
counsel for one of the parties before him, the Commission solicited
affidavits from the participants to the conversation. The initial
statements received from Judge Kennedy and the operator's counsel were
extremely summary in nature. Their statements averred that on March 28, 1984,
they had engaged in a brief telephone conversation pertaining to the status
of the settlement, including whether a settlement check had been mailed
to the claimant. 7 FMSHRC at 1012-13. After the submission of these
statements, the Commission received and accepted from Michael McCord,
the Secretary of Labor's appellate counsel, a sworn statement containing
further information relevant to the March 28 telephone conversation. In
his statement, the Secretary's appellate counsel asserted that he had
reason to believe, because of conversations with the operator's counsel,
that tfie initial statements filed with the Commission did not disclose
fully the substance and the details of the March 28 telephone conversation.
The Secretary's appellate counsel alleged that the operator's counsel had
told him that the March 28 conversation included complaints by Judge Kennedy
regarding alleged misconduct by the Secretary's trial counsel and an inquiry
by Judge Kennedy as to whether the operator's counsel intended to seek a
particular document from the Secretary. 7 FMSHRC at 1013.
Because the Secretary's appellate counsel's statement suggested a
much more extensive telephone conversation than was described initially
by Judge Kennedy and the operator's counsel, and because the description
of the Secretary's appellate counsel was based on his conversation with
the operator's counsel, the Commission ordered the operator's counsel to
submit a further affidavit. In his second affidavit, received on
September 20, 1984, the operator's counsel stated that during the conversation in question, Judge Kennedy repeatedly had complained to him about
the conduct of the Secretary's trial counsel and had asked him whether
he intended to request the Secretary's investigative file -- suggesting
that such a course of action might be helpful. 7 FMSHRC at 1014. Judge
Kennedy filed no response to the affidavits of the Secretary's appellate
counsel or to the second affidavit of the operator's counsel. };_/
On October 10, 1984, after both of the now-challenged statements
had been received by the Commission, counsel for the judge requested
that the Commission close the record in this inquiry. Counsel stated:

2/
The operator's counsel apparently did not serve his second statement
upon the judge. This defect was cured when the judge obtained a copy
shortly after the statement was received by the Commission.

689

The record, which now consists of affidavits from
Judge Kennedy, [the operator's counsel] and [the
Secretary's appellate counsel], as well as a
number of letters from myself on behalf of the
Judge, is unquestionably sufficient to enable the
Commission to bring the inquiry to an end. J:./
1/
I therefore request that the Commission
formally close the record in this .•. inquiry.
In my August 24 letter to you, I indicated that I
intended to depose [the Secretary's appellate
counsel] and [the operator's counsel]. I have now
concluded that these depositions are not necessary.
Acting upon this request and because there existed no material factual
disputes, the Commission closed the record and proceeded to consider all
details and substance of the March 28 telephone conversation. On July
10, 1985, we issued our decision stating our findings and conclusions.
Only after entry of findings adverse to him did the judge belatedly
assert that he was not afforded sufficient opportunity to deny or rebut
the opposing accounts of the conversation. This argument is without
merit.
The assertion by the judge that he was not afforded sufficient
opportunity to respond is belied by his counsel's statement, which
establishes that the judge had full knowledge of the contents of the
affidavits, believed that the documents in the record were sufficient
and requested that the inquiry be closed. Furthermore, nothing had
prevented the judge from responding to the affidavits prior to making
his request that the record be closed. The judge's contention that he
lacked notice of the allegations of the ex parte communication in this
matter strains credulity and is rejected. The judge's additional claim
that he was denied an evidentiary hearing fails for the same reasons.
It was he who failed to avail himself of the opportunity to rebut the
assertions of the operator's counsel and the Secretary's appellate
counsel, and it was he who sought to close this inquiry short of a
trial.
The Commission issued its decision on the basis of the record, the
judge 1 s own statement and the unchallenged and consistent statements of
other involved invididuals. Summary decision based on undisputed or unrebutted factual allegations is a procedural course well known to the
law. Due process is the process that is due under particular circumstances, and does not invariably mandate trial-type proceedings. See,
e.g., Hannah v. Larche 363 U.S. 420, 442-43 (1960). Moreover, Commission
Rule 82 does not require a trial in all cases, but rather states that if
a violation occurs, the "Commission ••. may make such orders or take
such action as fairness requires." 29 C.F.R. § 2700.82(b). A hearing
is required only if the Commission contemplates the taking of disciplinary action. Id. The Commission has not disciplined the judge. As the

690

judge's own submission states: "The Commission did not impose any
discipline in its July 10 decision, but instead retained 'for further
consideration, the question of appropriate discipline."' The Commission
only has concluded that a prohibited ex parte communication occurred. ]_/
We conclude that the process afforded in this matter falls well
within the substantial discretion given an administrative agency in
adopting, interpreting, and applying procedural rules. See, e.g.,
American Farm Lines v. Black Ball Freight Service, 397 U.S. 5~539
(1980); Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d 447, 451
(10th Cir. 1983). Because the judge failed to offer a rebuttal at a
time appropriate and available under our procedure, and because the
matter was closed at his counsel's clear and specific request, the
judge's submission of a belated "declaration" denying the account of the
ex parte conversation sworn to by the other participants was untimely
and is~rejected.
Accordingly, the administrative law judge's motion for reconsideration
of the Commission's decision of July 10, 1985 is denied. 4/

~~~d~~/
Richard V. Backley, Commissione~\/

3/
The judge's extended reliance on the procedure set forth in Commission
Rule 80 is seriously misplaced. Rule 80 expressly sets standards of
conduct, and procedures for addressing breaches thereof, for "individuals
practicing before the Commission." A Commission administrative law
judge is not such an individual.

!!_/
Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we
have been designated a panel of three members to exercise the powers of
the Commission in this matter.

691

Distribution
Philip G. Sunderland, Esq.
Terris & Sunderland
1121 12th St., N.W.
Washington, D.C. 20005
John J. Malik, Jr., Esq.
Malik, Knapp, Kigerl & Frizzi
3381 Belmont St.
Bellaire, Ohio 43906
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Joseph B. Kennedy
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

692

ADMINISTRATIVE LAW JUDGE DECISIONS

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

May 1, 1986
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 85-106
A.C. No. ~5-l2133-03502.

v.

No. 1 Tipple or Tipple Mine

LITTLE SANDY COAL SALES,
Respondent
DECISION
Appearances:

Charles F. Merz, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner; Edgar B. Everman, President,
Little Sandy Coal Sales, Grayson, Kentucky, for
Respondent.

Before:

Judge Fauver

The Secretary of Labor brought this action for civil
penalties under section lOS(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801, et seq. Having
considered the hearing evidence and the record as a whole,
I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following:
FINDINGS OF FACT
1. At all times pertinent, Respondent operated, in
Kentucky, a coal processing facility, consisting of a scale,
scale house, parts and lubricant storage trailer and a
portable coal-processing system including coal cleaning,
screening, crushing and loading equipment with inner-connecting
conveyor belts.
The processing system was powerep by a 400volt power unit and diesel engine.
2. On May 18, 1982, Inspector R.C. Hatter inspected
Respondent's facility and determined that Respondent was not
conducting electrical tests and examinations of electrical
equipment as required by 30 C.F.R. § 77.502.
He issued
Citation 960642
(for not recording electrical inspections) ,
allowing Respondent until May 21, 1982, to comply with the
cited standard.
Because of Respondent's failure to abate

693

the cited condition, on November 8, 1982, Federal Inspector
Barry Lawson issued a withdrawal order (No. 2053102) to shut
down its operations until the outstanding citation was
complied with.
That order was terminated the next day
because of prompt compliance with the electrical standard.
3. On February 15, 1983, Inspector Hatter inspected
Respondent's facility and determined that Respondent had
failed to conduct periodic noise surveys .as required by 30
c.F.R. § 71.803. He issued Citation 9976274
(for not recording
noise inspections), which was terminated on March 15, 1983,
after timely abatement of the cited condition.
DISCUSSION WITH FURTHER FINDINGS
Respondent's failure to record periodic noise and
electrical tests was due to negligence.
Respondent contends
that the standards should not have applied to its operations
because it was a small operation, not subject to significant
changes in noise or electrical conditions. This argument is
not sound on the facts or the law. Respondent's equipment
and processes involved many variables that could change
noise or electrical conditions, rendering the required
inspections important for safety and health purposes. Also,
the law does not permit an operator to reduce or omit the
required inspections based on its opinion of the need for
such inspections.
If an operator believes that the particular
facts of its business justify a modification of the application
of self-inspection requirements, section lOl(c) of the Act
provides a procedure for petition to the Secretary to grant
a modification in appropriate cases. Respondent did not
attempt to use this procedure, but simply ignored the inspection
requirements of the Federal Regulations.
Respondent is a small business.
The violations are
serious in that the required inspections are an important
preventive safety protection of the miners. Considering all
of the criteria of section llO(i) for assessing civil penalties,
a penalty of $50 is found appropriate for the violation of
30 C.F.R. § 71.803.
Considering all the factors 0£ section
llO(i), and the greater seriousiness of the electrial
reporting violation, and the bad faith delay of achieving
compliance with that standard, a civil penalty of $150 is
found appropriate for the violation of 30 C.F.R. § 77.502.

694

CONCLUSIONS OF LAW
1. At all relevant times, Respondent's facility was a
mine within the meaning of the Act.
2. Respondent violated 30 C.F.R. § 71.803 as alleged
in Citation 9976274, and is ASSESSED a civil penalty of $50
for such violation.
3. Respondent violated 30 C.P.R. § 77.502 as alleged in
Citation 960642, and is ASSESSED a civil penalty of $150 for
such violation.
ORDER
Respondent shall pay the above civil penalties in the
total amount of $200 within 30 days of this Decision.

(_)~~
William Fauver
Administrative Law Judge
Distribution:
Charles F. Merz, Esq., Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Mr. Edgar B. Everman, President, Little Sandy Coal Sales,
P.O. Box 335, Grayson, KY 41143 (Certified Mail)
kg

695

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

May 1, 1986
CIVIL PENALTY PROCEEDING

SECRET.ARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
·
Petitioner

Docket No. PENN 85-201
A. C. No. 36-06478-03518
Pitt Gas Mine

v.
CANON COAL COMPANY,
Respondent

DECISION
Appearances:

Covette Rooney, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner;
Joseph Mack, III, Esq., Thorp, Reed & Armstrong, Pittsburgh, Pennsylvania, for
Respondent.

Before:

Judge Maurer
Statement of the Case

This case is before me upon a petition for assessment of
civil penalty under section 105(d} of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. section 801, et seq., the
"Act," in which the Secretary has charged the Canon Coal Company with five violations of the mandatory safety standards.
Prior to the commencement of taking testimony in this case,
however, the parties settled§ 104(a) citation number 2403073,
alleging a violation of 30 C.F.R. § 75.202 and proposing a
$58.00 c1vil penalty and a second§ .'104{a) citation, number
2403082, which alleged a violation of 30 C.F.R. § 75.200 and
assessed a $98.00 civil penalty. There was no reduction in
the assessed penalties proposed, and I granted·the motion to
approve settlement on the record {Tr. 9).
The remaining three alleged violations were tried
before me at a scheduled hearing on January 9, 1986, at
Pittsburga, Pennsylvania. Documentary evidence and oral
testimony were received on behalf of both parties, and both
parties have filed post-hearing briefs, including proposed
findings of fact and conclusions of law.
The general issues before me are whether the company
has violated the regulatory standards as alleged in the
petition and, if so, the appropriate civil penalty to be
assessed for the violation(s).

696

The Mandatory Standard
The mandatory standard involved in each of the three
remaining violations is 30 C.F.R. § 75.200 which provides
as follows:
Each operator shall undertake to carry out
on a continuing basis a program to improve the
roof control system of each coal mine and the
means and measures to accomplish such system.
The roof and ribs of all active underground roadways, travelways, and working places shall be
supported or otherwise controlled adequately to
protect persons from falls of the roof or ribs.
A roof control plan and revisions thereof suitable to the roof conditions and mining system of
each coal mine and approved by the Secretary shall
be adopted and set out in printed form on or before May 29, 1970. The plan shall show the type
of support and spacing approved by the Secretary.
Such plan shall be reviewed periodically, at
least every 6 months by the Secretary, taking into
consideration any falls of roof or ribs or inadequacy of support of roof or ribs. No person shall
proceed beyond the last permanent support unless
adequate temporary support is provided or unless
such temporary support is not required under the
approved roof control plan and the absence of such
support will not pose a hazard to the miners. A
copy of the plan shall be furnished to the Secretary or his authorized representative and shall be
available to the miners and their representatives.
The Cited Conditions and/or Practices
On October 9, 1984, a fatal roof fall accident occurred
at Canon Coal Company's Pitt Gas Mine. As a result of the
subsequent Federal Mine Safety and Health Administration investigation, the following cita±ions, still at 'issue, were
issued to the company.
·
Section 104(a) Citation No. 2403072 cites a violation
of 30 C.F.R. § 75.200 for the following alleged practice:
Based on evidence disclosed during the investigation of a fatal roof fall accident, the torque
was not tested on any of the roof bolts installed
in the area just outby the accident scene as required by Item No. 12 on page 7 of the safety
precautions of the approved roof control plan.

697

Paragraph No. 12 on page 7 of the approved roof control
plan states:
Immediately after the first bolt is installed
in each place and prior to installing the second
bolt, the torque shall be tested on the first bolt
and thereafter at least one roof bolt out of every
four shall be tested by a qualified person.
If any
of the bolts tested do not fall within the required
torque range, the remaining previously installed
bolts on this cycle shall be tested.
If the majority of the bolts still fall outside the required
torque range, necessary adjustments shall be made
and the required torque range obtained.
If the
required torque ranges are not obtained, supplementary support such as different length bolts
with adequate anchorage, posts, cribs, and/or
crossbars shall be installed.
The second citation still at issue in this case, § 104(a)
Citation No. 2403074, likewise cites a violation of 30 C.F.R.
§ 75.200 and states:
During the course of a fatal roof fall accident
it was revealed that in the haulage entry outby
the accident scene, temporary roof supports were
not properly installed as required by safety
precaution No. 19 in that 2 rows of jacks (2 in
each row) were installed in the unsupported area
that varied from 16 to 18 feet in width.
The
approved roof contrrol plan requires temporary
supports to be installed across the opening on
not more than 5 foot centers. This violation
did not contribute to the roof fall accident.
Paragraph No. 19(a) (2) on page 8 of the approved roof
control plan states:
19(a). Where roof falls have occurred and
at all overcast, boom hole, and other construction
s
s that require removal of mine roof material,
(e.g., by blasting, by ripping ~ith a continuousmining machine, by cutting with a cutting machine,
or other means), the roof shall be considered unsupported.
If miners are required to enter such
areas, either to travel over the fallen material,
to clean it up, or to perform other duties, the
roof shall be supported adequately. Mine management shall devise and have posted in writing at

698

the scene of such unsupported roof a plan incorporating, but not limited to, the following procedures:

*

*

*

(2)
Adequate temporary support on not more
than 5-foot centers shall be installed at the edge
of the fall where work is to be started. A minimum of four posts or jacks shall be used.
Finally, § 104(d) (1) Order No. 2403083, also citing 30
C.F.R. § 75.200 states:
During the course of a fatal roof fall accident
investigation, it was revealed that a miner was
working under inadequately supported roof along
the main track haulage 450 feet outby the No. 3
belt drive on 10-09-84. Roof, about 45 inches
thick, 6 feet long and 13 feet wide fell,
striking the miner.
Stipulations
At the hearing, the parties agreed to the following
stipulations which were accepted (Tr. 12-13):

1. The Pitt Gas Mine is owned and operated by the
Respondent, Canon Coal Company.
2.
Canon Coal Company's ~itt Gas Mine is subject to
the jurisdiction of the Federal Mine Safety and Health Act
of 1977.

3. The Administrative Law Judge has jurisdiction over
these proceedings.
4. The subject citations were properly served by a
duly authorized representative of the Secretary.of Labor
upon an agent of the Respondent( atthe dates, times, and
places stated therein, and may be admitted into evidence
for the purpose of establishing the issuance, and not for
truthfulness, or relevancy of any statements asserted therein.
5.
The assessment of a civil penalty in this proceeding will not affect the Respondent's ability to continue in
business.
6.
The appropriateness of the penalty, if any, to the
small size of the coal operator's business should be based
upon the fact that the Pitt Gas Mine's annual production

699

tonnage is one hundred twenty-one thousand eight hundred and
twenty (121,820), annual production tons, and the Canon Coal
Company's annual production tonnage is one hundred twentyone thousand eight hundred and twenty (121,820).
7. The Respondent demonstrated good faith in attaining
compliance after the issuance of the 104(a) citation.
8. The parties stipulate to the authenticity of their
exhibits, but not to their relevance, nor the truth of the
matters asserted therein.
Discussion and Analysis
Taking the citations in the order presented, I will
first deal with Citation No. 2403072, concerning the
issue of whether the torque was or was not tested on the
roof bolts just outby the accident scene as required by the
approved roof control plan.
The Secretary's first witness concerning this part of
the case was Mr. Barry Sadler, a miner employed by the Canon
Coal Company. He had been working "off and on" as a roof
bolter helper on the day of the fatal accident, assisting
Bobby Rock, the roofbolter. The job that day was to trim
low roof areas along the main track haulageway using a
Dosco mining machine.
They would first trim the roof with
the Dosco, then back the Dosco out so that a roof bolting
machine could be brought in, bolt the newly trimmed portion
of roof and so on, repeating the process.
Sadler states that they were installing four (4) foot
roof bolts on the edges and six (6) foots in the middle. As
the bolts were being installed, he asked Rock how well they
were anchoring and he (Rock} said they were anchoring "good."
Most importantly to the Secretary's case, Sadler testified that there was a torque wrench on the roofbolting machine
but he never observed him (Rock) us.ing the wrench that day.
However, he was unable to unequivocally state whether or not
he did use it. This was further clarified during crossexamination of Mr. Sadler. He agreed he had spent a considerable amount of time away from the bolter, going back
and forth to get bolts, changing bits, and getting cribs.
He had also been to lunch while others continued to bolt.
The following exchange took place at Tr. 50-51:
Q.
Okay.
working

So, you weren't observing the bolter
day, I take it?

A. No, I only seen him that one time when he
was drillin' there, and I seen that little bit
of -- it was like, was loose there, you know.

700

Q.

Okay.

A. And, I told Rocky about it. Rocky says, don't
worry about it.
He shoved the bolt up in it,
tightened it, and it just -- it went tight.
Q. So, Rocky was bolting, Steiner was bolting,
Koci, did he do any bolting?
A. Not -- I don't know who was boltin'. They
they both were supposed to have been boltin'.
Q.

Okay.

A.

But, I don't know who was boltin', though.

Q. So, it is possible, isn't it, that they,
when you weren't watching, they took a wrench out,
and
A. Could of, yeah, right.
you mean, right?

You mean torquin',

Q.

Yes.

A.

No, they did -- could have, right.

Q. So, they could have been using the wrench that
was on the
A.

Yeah.

Q.

Bolting machine, to torque the --

A.

Yes, this was --

Q.

To check the torque

A.

Yeah.

Inspector Moody also testified concerning this alleged
violation. He interviewed Mr. Sadler during the investigation subsequent to the accident. His interpretation of what
Sadler told him led him to conclude that none of the roof
bolts in the haulageway were being torqued on the day of the
accident, and the instant citation was issued on the basis
of this conversation with Sadler.
Inspector Moody had also tested the torque on the roof
bolts that were installed outby the roof fall area on the
day following the accident.
He torqued twenty-four (24)

701

roof bolts and found nine {9) below a hundred foot-pounds
of torque and fifteen (15) above a hundred foot-pounds of
torque. He concedes, however, that it would be fairly common for the torque to either lessen or increase a day after
it was installed.
In any event, he testified that the torque
tests he performed had nothing to do with his issuance of
this citation. He relied entirely on the interview with
Mr. Sadler.
The Secretary's reliance on Sadler to prove up this
violation is misplaced.
I find that the testimony of
Mr. Sadler is at best neutral. He did not see any bolts
being torqued, but nor is he able to say how many, if any,
were torqued, or that none were torqued.
There is simply
no direct evidence in this record that the pertinent provision of the roof control plan was or was not being complied with. Additionally, reading the record as a whole,
there is no reliable circumstantial evidence to resolve
this dilemma either.
In short, the Secretary has failed
to bear his burden of proof necessary to establish the
violation cited in the instant citation, and it must be
dismissed.
Curiously, the Secretary did not present any direct
evidence from the miners who actually bolted on the day in
question as to whether or not they had been complying with
the roof control plan concerning checking torque.
The second citation at issue in this case, Citation No.
2403074, concerns an alleged violation of Safety Precaution
19(a) (2) of the roof control plan.
The Secretary contends
that the temporary supports being utilized by the bolters on
the day in question were inadequate because the applicable
provision requires that temporary supports be installed on
not more than five-foot centers at the edge of the fall
where work is to be started. They were using two rows of
jacks, two per row in the unsupported area of the haulage
track entry which varied in width, but was greater than 15
feet in some places. Ergo, in.those places where the haulageway was greater than 15 feet in width, the supports were
on greater than 5 foot centers and there would therefore be
a violation of the cited standard.
The respondent, however, contends that Safety Precaution
19(a) (2) applies only where work is being performed at the
edge of a fall.
It is not contended that the work in question in this case was being performed at the edge of a fall.
The statute and the standard require the parties to
agree on a roof-control plan. Once the operator has adopted

702

and MSHA has approved the plan, its provisions are enforceable as though they were mandatory standards.
Zeigler Coal
Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976). Thus, a
question concerning the parties' intent and understanding
as expressed in an approved plan is an important one. Before
we can undertake to determine whether a plan was violated,
we first need findings as to what the plan requires.
Shamrock Coal Co., 5 FMSHRC 845, 848-52 (May 1983); Penn
Allegh Coal Co., 3 FMSHRC 2757, 2769-70 (December 1981).
Only after this is determined can those requirements be
applied to particular facts to resolve whether a violation
of the plan has occurred.
Id. The same principle applies
to the more basic question of whether a particular provision
of the plan is applicable to the situation at hand.
In this case, the paragraph in question (19(a)) begins:
"Where roof falls have occurred and at all overcast, boom
hole, and other construction sites that require removal of
mine roof material. ••• " This main paragraph goes on to
require that the roof shall be considered unsupported at
all these sites and further that if miners are required to
enter any of these enumerated areas, the roof shall be
adequately supported. Subparagraph (2) under paragraph
19(a) then specifically addresses only one of the conditions
addressed in the main paragraph, i.e., roof falls, stating
that "adequate temporary support on not more than 5-foot
centers shall-be installed at the edge of the fall where
work is to be started" (emphasis added).
The respondent argues that this requirement contained in
subparagraph (2) addresses a particular type of work site,
and there is no indication that it is intended to apply to
the other types of work sites addressed in the introductory
paragraph.
Counsel states in his brief that "[h]ad the
parties intended otherwise, they co~ld easily have so provided." I agree they could have easily drafted the requirements more concisely.
On the other hand, the Secretary's position is and
Inspector Moody testified that the term "fall" as utilized
within Safety Precaution No. 19{a) (2) e~compasses not only
roof falls with reference to the term "at the edge of the
fall," but also, falls of roof caused by the removal of roof
by blasting, ripping with a continuous mining machine, or
cutting with a cutting machine or other means at the construction site. As a practical matter, this interpretation
of the requirement is the only one that makes any sense,
reading the paragraph and its subparagraphs together in
their entirety. Therefore, I find that the provision of
the roof control plan cited in the instant citation is applicable in this case and is sufficiently definite to be
legally ~nforceable.

703

I will now turn to the facts of the alleged violation
of the cited standard. Mr. Sadler's testimony that the roof
bolting process used on October 9, 1984, utilized a total of
four (4) jacks, two jacks per row, is unrebutted and apparently uncontested.
Therefore, I find as a fact that two
rows of jacks, two jacks per row, were installed as temporary support during the roof bolting process in the haulage
entry outby the accident scene on the day of the accident.
Inspector Moody testified that he had taken measurements of the entire area that was bolted that day.
The
width of the entry according to his notes ranged from 14
feet, 10 inches to 18 feet, 6 inches. 1/ He conceded that
for those areas in which the entry was-sixteen (16) feet
wide or less, the use of the two jacks per row would have
been adequate and there was no violation. However, in those
four areas where the entry was wider than sixteen feet, the
company was in violation of the roof control plan, and on
that basis, the citation was issued.
Inspector Moody cal~
culated the width of the haulageway by measuring the distances between roof bolts placed across the haulageway and
then adding up those measurements to obtain a total width.
Since the roof bolts were not placed in exactly a straight
line across the haulageway, I understand that these measurements would be skewed to the high side. However, I find
that the essence of the Inspector's testimony, which I find
credible, is that there were four areas wider than fifteen
(15) feet bolted that day utilizing temporary supports on
centers in excess of five (5) feet in violation of the roof
control plan and I so find.
Mr. Remington, the respondent's safety director, also
testified that the width of the haulageway is anywhere from
fourteen (14) to a little over eighteen (18} feet, "depending on where you measured it up thr01:igh there. 11
Mr. James Kaczmark, the mine foreman, had examined the
roof in the haulage area that day and had found an area that
sounded "drummy ... He stated that this did not necessarily
mean bad top but you should be cautious of the top.
He
specifically told his crew to be cautious in securing the
roof and he was in the area throughout the shift. This
indicates to me that he knew or should have known that his
men were not complying with paragraph 19(a) (2) of the roof
control plan in those areas of the haulageway that were wider
than fifteen (15) feet.
His realization that caution was in
order in securing the roof should have made him even more
aware of the importance of compliance with the roof control
1/ Inspector Moody's notes reflect the following width
measurements:
15'5"; 14'10"; 15'6"; 15'0"; 16'2"; 16'11";
18 1 6 11 ; and 16'4 .. (GX-6).

704

plan.
It was readily discernible that his men were only
using two jacks per row and the operator is certainly chargeable with the knowledge of how wide the haulageway is and the
contents of the roof control plan.
I therefore find that the
operator's negligence with reference to this citation was
high.
I further find, based on the testimony of Inspector
Moody, that the gravity of the cited violation is serious
in that even though this violation had nothing to do with
the roof fall that did occur later that day, it created the
type of hazard that would be reasonably likely to result in
a roof fall and serious or fatal injuries to at least one
miner. A penalty of $79 is assessed, as proposed.
Finally, Order No. 2403083 was issued subsequent to a
fatal roof fall accident for an alleged violation of 30
C.F.R. § 75.200 (inadequately supported roof).
More specifically, it is the Secretary's position that
the roof along the left side of the haulage track rib, for
the distance of the overhanging brow, was inadequately supported in that the distances from the rib to the first roof
bolt were in excess of five feet in several instances, and
that a roof fall did in fact occur in the area which was
inadequately' supported and one miner was killed.
In order to set the scene where and when the fatal roof
fall occurred, it is necessary to go back and reiterate the
substance of what had occurred earlier that day.
On the day of the accident, the Dosco miner was
bogged down at the beginning of the shift and had to be
freed by using cribs to level it. There were places in
this haulageway that the Dosco could not be moved laterally
because it's weight and the soft ground caused it to sink
into the muddy floor.
The Dosco has an oscillating head
on it which normally would allow the 'roof to be cut down
"rib to rib," but in this instance, it would not go all the
way over to the left rib in these muddy and soft areas.
Even using cribs to level it, tqe m~ner would still sink on
the left side making it impossible to get a clean cut on the
left. As a consequence, the roof trimming left a brow along
the left rib.
Further, because the boom of the Dosco was
aimed at the left rib, as it mined it deposited debris under
the brow. Because the Dosco itself prevented bringing in
wagons to load the debris, the respondent planned to remove
it after the Dosco had passed through the area, and then
secure the brow with cribs.
The roof-trimming operation proceeded that day in a
cycle of first cutting with the Dosco, then taking the Dosco
out far enough that a roof-bolting machine could be

705

brought out from a crosscut, then bolting the trimmed portion of roof and so on until the final cut of that day.
Since that cut only involved about a foot of low roof separating two bolted areas, the Dosco was trammed inby after
the trimming was completed. James Steiner, the deceased,
and Barry Sadler were instructed to watch the miner's trailing cable until it cleared the area. At one point Steiner
observed that the cable was hung up in some debris along the
left rib, under the brow. He went to free it. As he was
attempting to free the cable, Sadler, who was approximately
eight (8) feet outby Steiner, observed the mine roof dripping. As Sadler yelled a warning, Steiner stepped out into
the haulageway where a large rock fell out of the roof,
killing him. Shortly thereafter, several feet of roof
adjacent to the space left by the rock that killed Steiner
also fell.
The respondent's position is that Steiner was killed by
a large rock that fell without warning from a roof that was
considered excellent, had stood completely unsupported
·
without falls for many years before it was bolted in 1978
and, in addition, was thoroughly bolted at the time it fell.
The Pitt Gas Mine was first opened in 1912 and worked
continuously until 1943 when it was abandoned.
The mine
was reopened in 1978, at which time the new owner bolted
the theretofore wholly unsupported haulageway. This haulageway had never had falls in the past and was considered
to be "excellent roof in both directions [from the fall]
for thousands of feet." It was composed of several inches
of roof coal under several feet of sandrock.
As hereinbefore stated, on the day of the accident,
Kaczmark had found a portion of the roof "drummy" and had
cautioned his men to be careful secur.ing the roof. At
the hearing, both he and Safety Director Mel Remington
testified that the "drumminess" in the Pitt Gas Mine was
not uncommon and was due to the gradual separation of roof
coal from the underlying rock. ."Drumminess" was. not
thought to indicate the presence of a "bad top," although
it warranted caution due to the possibility that roof coal
could fall.
Furthermore, the statements of the miners
working in the haulageway that day given to the inspectors
investigating the accident gave no indication that they
observed anything untoward about the roof prior to the
fall.
Inspector Moody testified and included in his Report
of Investigation that after the accident a slip and clay
vein was visible in the haulageway where the roof had

706

fallen.
However, he conceded that he could not determine
whether this condition was observable before the roof fell.
Respondent's Safety Director, Mr. Remington, conducted
his own after-accident investigation of the scene.
Remington inspected the rock that fell on Steiner, as well as
each roof bolt recovered from the fall site. He also took
measurements of the depth of each bolt hole that was left in
the roof following the accident.
Respondent's Exhibit No. 1
sets out the results of these measurements and depicts the
location of bolt holes in the fall area.
Remington's findings may be summarized as follows:
(1)
The rock that killed Steiner was shaped like an
elongated triangle or inverted "V" formed by the convergence of two slips.
(2)
The base of the "triangle 11 of rock was approximately 6-8 feet long and the rock was approximately 13 feet
wide and 6 feet high from the base to the apex of the
"triangle." Three bolts were almost entirely imbedded from
the base to the apex of the 11 triangle" along its width (i.e.
across the entry) protruding from 1 to 3 inches through the
apex into the solid rock above. A fourth bolt went through
the tapered edge of the rock on its left end, anchoring
approximately 50 inches into the rock above.
(3)
Twenty-nine (29) roof bolts were recovered from
the fall site of which twenty-eight (28) had been installed
that day as opposed to the 1978 bolting.

(4)
The measurement of the holes left by bolts that
either came down during the roof fall or were removed during the clean-up indicated that there had been 6-foot
bolts along the brow on the left side of the haulageway,
directly over the place where Steiner was at the time of
the accident. Because no 6-foot bolts had been installed
during the 1978 bolting of the ~aulageway, these were newly
installed roof bolts. Therefore, his· conclusion· was that
the roof directly over Steiner at the time of the accident
had been bolted that same day with 6-foot bolts.

(5)
Roof coal adhered to the base of this rock so that
all that was visible from the entry was coal top and coal
ribs.
Apropos this last finding, whether the rock that fell
out on Steiner was located at the convergence of two slips

707

as urged by the respondent or at a slip and clay vein as
testified to by Inspector Moody, there is no proof in this
record that the defect or fault was observable before the
rock fell out, killing Mr. Steiner.
There are several places in this record where, as the
respondent suggests, it is obvious that Inspectors Moody
and Swarrow are of the belief that a roof fall is in and of
itself, without more, conclusive proof that the roof was inadequately supported, and therefore a violation of 30 C.F.R.
§ 75.200 is proven.
I believe more of a showing of culpability is required.
The regulations do not impose absolute
liability on operators to be insurers of mine roofs. The
regulations do require a reasonable standard of care on the
part of mine operators to see that their miners are working
under adequately supported roof. What is adequate must
depend on all the circumstances of which the operator is
actually aware as well as those with which he is chargeable
with knowledge of.
Other than the fact that the roof fell, Inspector Moody
is of the belief that the roof was inadequately supported
because of the spacing of the bolts and the lack of bolts
along the left side of the haulageway for the distance of
the overhanging brow. More specifically, the distances from
the left-hand rib to the first roof bolt were in excess of
five (5) feet in several instances where the overhanging
brow ran along the left side of the entry.
The longest
distance was eight (8) feet, six (6) inches immediately
outby the roof fall area.
Mr. Sadler testified that this was because of the
overhanging brow and the debris located along the left rib.
He stated that they were bolting as near to the lip as they
could. Otherwise, they were bolting.on approximately four
to five foot centers. The brow itself was approximately
two (2) to three (3) feet wide.
Therefore, the measurements
between the edge of the brow and the first bolts would be aoproximately three {3) to six (6~ feet varying along its
length.
·
The respondent's evidence regarding the adequacy of the
bolting in.the roof-fall area and immediately outby the accident scene is credible and convincing. That evidence,
depicted on Respondent's Exhibit No. 1, shows the location
of 29 roof-bolt holes and their measured depth in and immediately outby the fall area. They represent twenty-nine 4
and 6 foot roof bolts installed on approximately 4-5 foot
centers throughout the area of the fall.
Twenty-eight of
them had been installed on the very day of the accident.

708

Four of ,them were in the rock that killed Steiner. Unfortunately, only one of the four went completely through the
inverted V-shaped triangular rock far enough to anchor
into the strata above.
The other three did not anchor into
the solid strata above that rock because they were put into
the apex of the inverted "V," which was approximately six
(6) feet thick. They anchored into the rock itself. The
holes of these three bolts are depicted and circled on
Exhibit No. R-1 as extending 3", l", and 2" into the mine
roof, from right to left, respectively.
The fourth bolt
(also circled in blue on R-1) went through the edge of the
rock and anchored some 50" into the strata above, but was
obviously not enough to hold the rock up by itself.
There has been no allegation that the respondent violated it's roof control plan with regard to the number of
roof bolts installed in this area or their pattern of installation. While the Secretary correctly points out that
it is not necessary to prove a violation of the roof cont+ol
plan in order to sustain a violation of 30 C.F.R. § 75.200,
the evidence must show that the operator knew or should have
known that a condition existed that required additional
support and yet it was not provided.
Inspector Robert E. Swarrow issued the instant § 104(d} (1)
order on October 10, 1984, the day after the accident. He
testified concerning that issuance at Tr. 185:
Q. Okay.
Citation?
A.

And, did you and Mr. Moody talk about this

Yes.

Q.
Did you and he agree that this Citation should
be issued?
A.

Yes.

Q.

And, upon what basis?

A.
The mine roof in that area was not adequately
supported.

Q.
In your opinion, why wasn't it adequately supported?
A.

Because the roof fell.

Q.

Any other factors?

A.

No.

709

Inspector Moody is of a like opinion.
Tr. 143-144:

He testified at

Q. Okay.
So, is i t your position that no matter
what the company did, if there is a fall you would
have an inadequately supported roof?
A.

I believe that would be a good position.

*

*

*

Q.
I didn't ask you that.
You testified that because there was a fall there, you concluded that the
roof was inadequately supported, and that's your
position?
A.

That's correct.

I have to agree with the respondent's assertion that.
these two inspectors apparently decided a day after the accident and before the investigation was fairly underway, let
alone completed, that there is a violation of 30 C.F.R.
§ 75.200 any time a roof falls.
Consequently, they apparently did not think i t necessary to investigate much farther
than documenting the fact of the roof fall itself and the
tragic death of Mr. Steiner. Most importantly, they failed
to produce any evidence to the effect that any objective
signs existed prior to the accident that would have alerted
a reasonably prudent mine operator to a condition that required roof support over and above that normally required.
In summary, the Secretary has not borne his burden of
proof to demonstrate that the area was inadequately supported considering the circumstances that the operator
either actually knew or with due dil.igence could have
ascertained prior to the accident.
For the reasons stated
herein, Order No. 2403083 is dismissed.
ORDER
Based on the foregoing facts and conclusions of law, I
enter the following order:
1.
The motion for approval of settlement concerning
Citation No. 2403073 is granted and a penalty of $58 is
assessed.
2.
The motion for approval of settlement concerning
Citation No. 2403082 is granted and a penalty of $98 is
assessed.

710

3. Citation No. 2403072 and all penalties therefor
are vacated.
4.
Citation No. 2403074 is affirmed and a penalty of
$79 is assessed.
5. Order No. 2403083 and all penalties therefor are
vacated.
Accordingly, the respondent is ORDERED TO PAY the sum
of $235 within 30 days of the date of this decision.

Maurer
trative Law Judge

Distribution:
Covette Rooney, Esq., Office of the Solicitor, U. S. Department of Labor, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Joseph Mack, III, Esq., Thorp, Reed & Armstrong, One Riverfront Center, Pittsburgh, PA 15222 (Certified Mail)

711

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

May 2, 1986

. DISCRIMINATION PROCEEDING
. Docket No. KENT 86-3-D
. MSHA Case No. BARB CD 85-59
.. No • 1 Mine

GARY HENSLEY,
Complainant
v.
HARLAN WALLINS COAL COMPANY,
Respondent

DECISION
Appearances:

Gary Hensley, Wallins, Kentucky, pro se;
Karl Forester, Esq., Forester, Forester,
Buttermore, & Turner, Harlan, Kentucky, for
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed
by the complainant Gary Hensley against the respondent pursuant to section 105(c) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 et seq. Mr. Hensley filed his
initial complaint with the Secretary of Labor, Mine Safety and
Health Administration CMSHA}. Following an investigation of
his complaint, MSHA determined that a violation of section
105(c) had not occurred, and Mr. Hensley filed his pro se complaint with the Commission. A hearing was conducted in
Duffield, Virginia.
The complainant alleges that he was discharged by the
respondent for refusing to do work in the underground mine
operated by the respondent. The complainant maintains that
he was hired as an "outside man, 11 had no prior underground
mining experience or training, and that the respondent's
request for him to work underground made him nervous.
Issue
The issue in this case is whether the complainant's
refusal to follow the instructions of mine management to do

712

work in the underground mine was protected activity under
section 105(c) of the Act.
Applicable Statutory and Regulatory Provisions
1.

30

The Federal Mine Safety and Health Act of 1977,

u.s.c. § 301 et seq.

2. Sections 105(c)(l), (2) and (3) and llOCa) and Cd)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§§ 815(c)(l), (2) and (3).
3.

Commission Rules, 29 C.F.R. § 2700.l et seq.

Procedural Matters
The hearing in this case was scheduled to begin at
9:30 a.m., on March 26, 1986, and the parties were so informed
by my notice of hearing of February 21, 1986. In view of the
fact that the complainant failed to appear at the appointed
hour, I delayed the beginning of the hearing until 9:55 a.m.,
and made an attempt to contact the complainant by telephone at
his residence but no one answered the phone. The respondent's
counsel moved to dismiss the complaint because of the failure
of the complainant to appear and prosecute his complaint.
I
reserved my ruling on the motion and closed the hearing at
10:00 a.m. After this was done, the complainant appeared, and
the hearing was reconvened at 10:10 a.m. The complainant
explained that he arrived late at the hearing because he was
looking for a witness but could not find him. I advised the
parties that I intended to proceed with the hearing, and
respondent's counsel declined my invitation to comment and did
not object (Tr. 3-9).
The record in this case reflects that the respondent was
initially represented by Counsel Rodney E. Buttermore, Jr.,
of the firm Forester, Forester, Buttermore & Turner, Harlan,
Kentucky. Mr. Buttermore filed his notice of representation
and filed all prehearing pleadings on behalf of the respondent. On Monday, March 25, 1986, the day before the hearing,
my secretary received a telephone call from Mr. Buttermore's
secretary or associate informing her that Mr. Buttermore was
out of the country, would be unable to attend the hearing,
and a continuance was requested.
I telephoned Mr. Buttermore's
office and discussed the matter with Mr. William Forester, a
member of the firm.
Mr. Forester could offer no explanation as
to why Mr. Buttermore had not informed me earlier of his departure from the country, and expressed his apologies.
I informed
Mr. Forester that I intended to proceed with the hearing as
scheduled, and he assured me that someone from his office would

713

appear to represent the respondent. Mr. Karl Forester, a
member of the firm, appeared on March 26, 1986, and represented
the respondent in this matter. Under the circumstances, I have
substituted Mr. Forester as counsel of record in this case, and
have not heard further from Mr. Buttermore. Prior to the
commencement of the hearing, Mr. Forester was afforded an opportunity to review the official file in this matter, and he did
so.
Discussion
Mr. Hensley filed his discrimination complaint with
MSHA's District 7 Office on July 25, 1985. His complaint
states as follows:
On July 13, 1985, I reported for work as
usual. The mines was going to do dead work.
When I got there (2d shift), the section boss,
Don Curtis, told me they wanted me to go inside
to help clean up, shovel and stuff like that.
I told him I was not going inside cause I had
never worked in the mine before and had never
had any training. Curtis asked me if I. wanted
to tell him to tell Jr. (Cletis Robbins), I
told him no, I'd tell him, which I did.
Robbins told me I could either go inside or go
home cause they were not running coal and had
nothing for me to do on the outside.
I told
him Okay and left.
By letter dated September 4, 1985, MSHA's district manager advised Mr. Hensley that MSHA conducted an investigation
of his complaint, and that based on its review of the information gathered during the investigation, MSHA determined that
a violation of section 105(c} of the Act had not occurred.
Mro Hensley was informed of his right to pursue the matter
further with the Commission.
By letter dated September 29, 1985, Mr. Hensley filed
his complaint with the Commission. His letter states in pertinent part as follows:
I was hired by Gus Robbins (Cletis
Robbins, Jr., brother and his boss). Gus told
me when I was hired my job was to run the end
loader and to answer the outside phone, watch
the outside belt head and grease.
I was the
outside man.

714

About 3 or 4 weeks before I was fired on
a Saturday evening on 2nd shift, Gus Robbins
asked if I had any inside training or worked
inside before. I told him no. He told me to
go get a light and hard hat and go inside.
I
did not answer him right away. One of the
workers told me if I wanted to keep my job I
better go inside the mine and work so I did.
This left no one outside that night to answer
the phone or anything.
I worked 9 or 10 hours
inside that night with the electrician.
I
came outside about 2 or 3 a.m. with one of the
ram car drivers to throw the disconnects in
with a hot stick. The power was off most of
that night inside the mines.
I thought that
was the last and only night I would have to go
inside and work.
I was not hired as an inside
coal miner. This inside mining work made me
nerves (sic) and worried me.
Testimony Presented by the Complainant
Complainant Gary Hensley testified that. on July 13, 1985,
he reported for work on the second shift and was advised by
foreman Don Curtis that Mr. Cletis Robbins wanted him to go in
the mine and work that evening. Mr. Hensley told Mr. Curtis
that he did not care to work inside the mine because he had no
underground training or experience. He reminded Mr. Curtis
that he was hired to work outside the mine answering the mine
phone or doing what was needed on the outside. Mr. Hensley
confirmed that he then spoke with Mr. Robbins and told him
that he did not care to go underground to work, and that
Mr. Robbins responded "Well, go home. You're fired" (Tr.
11-12).
Mr. Hensley stated that a month or so prior to his discharge Mr. Robbins asked him if he had any underground experience or training and that he told him that he .did not.
Mr. Hensley stated that he had not previously worked around
coal mines and that his job with the 'respondent was his first
mining job. He confirmed that he had driven a coal truck
since he was 18 years old (Tr. 12).
Mr. Hensley stated that on one prior occasion before his
discharge he did work underground at Mr. Robbins' request,
and that this was the same night that Mr. Robbins asked about
his training. Mr. Hensley stated that he worked underground
that night because he needed the job and was afraid of being
fired.
He confirmed that no coal was being mined that night

715

and that he performed "dead work," helped an electrician "a
little bit," and helped move a belt structure (Tr. 13).
Mr. Hensley· stated that he was first employed by the
respondent in May, 1985, and that he was hired as an "outside
man" earning eight dollars an hour. His last day of employment was July 13, 1985, the evening he was fired (Tr. 15).
He confirmed the accuracy of his prior statement in the complaint filed with the Commission which indicates that
Mr. Robbins told him he could either go inside the mine or go
home because the mine was not running coal that day and there
wqs nothing for him to do on the outside, and that he
(Hensley) replied "Okay" (Tr. 15-16).
Mr. Hensley confirmed that when Mr. Robbins fired him it
was done orally and he was not given anything in writing. He
stated that he was concerned about working underground even
though coal was not being mined because no one would be on
the outside to contact in the event of an emergency. He. confirmed that he voiced no objection to working underground on
the prior occasion because one of his friends told him that
if he refused, he would be fired.
He also stated that since
he had never worked underground before "I just went ahead and
went to see what it was like anyway" (Tr. 18).
Mr. Hensley stated that since his discharge he has been
employed as a tractor trailer truck driver on a part-time
basis for a friend from October, 1985, to the present (Tr.
20).
On cross-examination, Mr. Hensley stated that his last
day of employment was a Saturday, and while the mine was
closed for vacation the week before, he did not believe it
was closed for the week immediately preceding his discharge.
He confirmed that the mine was not running coal on July 13,
the day.he was fired, and that he was asked to go inside to
shovel muck (Tr. 20). He explained that he was asked to go
inside the underground mine to shovel under t~e belt line and
to clean up the trash. He was told that once he was through
·with that work, he was to ask Mr. Curtis what else was needed
to be done. He confirmed that he chose not to go inside and
work (Tr. 21).
Mr. Hensley reviewed a copy of his July 25, 1985, statement made·to MSHA, and confirmed that it does not contain a
statement that he had been fired.
He explained that he did
state that he had been fired and "They just didn't write it
on there, I guess" (Tr. 22). He stated that the following
Monday he telephoned Gus Robbins to make sure he knew about

716

Cletis Robbins firing him, and that Gus Robbins stated that
"whatever Junior says is what goes" (Tr. 23).
Mr. Hensley confirmed that at no time did he complain to
mine management or to MSHA about any danger or unsafe conditions in the mine, and that he was treated just as the other
workers at the mine were treated. He denied that when he was
hired he told Mr. Gus Robbins that he had worked "over on the
north side of Pine Mountain" (Tr. 23). He also denied that.
he told Cletis Robbins "I aint going to muck that belt" when
they had the conversation on July 13 (Tr. 23).
Mr. Hensley confirmed that he did work underground on
another occasion with Gus Robbins during vacation and that he
had forgotten about it. He stated that the work entailed
pulling a miner cable CTr. 23-24). In response to further
questions from the bench as to why he believes he has been
discriminated against by the respondent, Mr. Hensley responded
as follows (Tr. 24-27):
A. Well, the way I figured it, I was hired
for outside -- outside man. They asked me to
go underground.
I never had no training or
any experience underground.
I didn't feel I
should've been underground.

Q. The couple or three times you were underground, they weren't running coal. Right?
A.

Right.

Q. They just wanted you to go in there and
muck?
A.

Yes o

Q. Which, I understand, is kind of a nasty
job, isn't it?
A. Yeah. But I never mucked none. Both
times, I never mucked no coal both times I
went underground.

Q. What's involved? All you do is take a
shovel and shovel it?
A. Shovel under the belt and throw it up on
top of the belt.

717

Q.

How much training do you need for that?

A.

None.

I done that outside.

Q. If you did it outside, why would you be
reluctant to do it inside?
A.
The mine just scared me.
inside.

I

didn't like it

Q. Even though it was dead work and no coal
being run?
A.

Right.

Q. Did you believe, when you took the job
there, there was a possibility you'd be called
on to do work other than just outside work?
A. No, I didn't, because when Gus came down
to my house and hired me, I asked him what I
had to do. He said, "All you have to do is
run the endloader and answer the phone, take
care of what needs to be done outside."

Q. Where did you operate the endloader,
outside?
A.

Yeah.

Q.

All the time?

Ao

Yeah, backing coal back on the belt line.

Mr. Forester asked you a question about
the one time you were underground working at
the portal. The portal is the entrance to the
mine, right?
Qo

A.

Yeah.

Q.

Is that where you were working?

A.

No.

Q.

You never worked near the portal?

A.

Yeah, I shoveled coal.

718

Q.

How far into the mine did you go?

A.

I really don't know exactly, but it took
we rode back in a ram car back to where the
old miner was and stuff. I was back where the
miner was that one night I went in -- where
they had the miner and stuff.

Q.

Did you help the electrician?

A.

Yes.

Q.

Did you at any time complain to anybody
that was there? Did they have a section
foreman there?

A.

Yeah, Don Curtis.

Q.

Did you say anything to them?

A. No. No, I didn't want to get fired or
nothing, you know.
I wanted to keep working.
Respondent's Testimony
Gus Robbins, confirmed that he is the president of the
respondent coal company, and that he has 10 years of mining
experience. He described the mine as a conventional coal
mining operation using a continuous miner. The mine works
two shifts a day, and the coal is mined during the second
shift, and loaded on trucks on the day shifts. The coal is
transported to the belt line by tractors, and once out of the
mine 7 it is hauled to a processing plant by truck. The mine
has been in operation for approximately 4-1/2 years, and it
employs 20 miners.
Mr. Robbins stated that he hired Mr. Hensley in May,
1985 to replace an outside man who had quit. ~r. Robbins
stated that Mr. Hensley was previously employed as a truck
driver hauling coal from the mine, but that he was laid off.
Mr. Hensley asked him for a job, and Mr. Robbins went to his
home and hired him. Mr. Robbins stated that when he hired
Mr. Hensley, he explained that his primary job would be outside work, but made it clear to him that there would be occasions when he would be required to check the belt lirie and to
keep it clean and free of muck at the portal and mouth of the
drift. Mr. Robbins indicated that he explained the duties of
the job to Mr. Hensley, instructed him as to what would be

719

required of him, and took him to the mine and explained the
safety precautions to him <Tr. 32).
Mr. Robbins stated that during the vacation period for
the first week of July, 1985, the mine was down and did not
produce coal. However, work had to be done to clean up the
belt line, the air courses, and to generally "get the mine in
shape" to resume production after vacation. Mr. Robbins
stated that he posted a notice on the mine bulletin board
stating the work that would be required during the vacation
period, and that this work was done on the first shift.
Although Mr. Hensley normally worked the second shift, he was
asked to work the first shift to help out during the vacation
period.
Mr. Robbins stated that at the time he asked Mr. Hensley
to help out during the vacation week, he asked him if he had
prior underground experience. Mr. Hensley told him that he
"had a little time across the mountain," and Mr. Robins took
this to mean that he worked at mines at Pine Mountain.
Mr. Robbins stated that he advised Mr. Hensley that he would
be working with the vacation crew cleaning up the air courses
and helping to drag cable for a continuous miner which was
brought in to help clean up the mine. Mr. Robbins stated
that Mr. Hensley agreed to do this work and at no time complained to him about the work, or the fact that he would be
required to be underground. Mr. Robbins stated that when he
informed Mr. Hensley that he would be underground helping to
keep the cable out of the way, Mr. Hensley responded "Yeah,
no problem.
I don't care" (Tr. 35).
Mr. Robbins stated that Mr. Hensley worked for 3 days
underground during the vacation period in question, and that
he helped drag the continuous miner cable. He also was in
and out of the mine getting tools and otherwise helping
Mr. Robbins who was performing maintenance work on the
continuous-mining machine.
In addition to Mr. Robbins and
Mr. Hensley, there were three other miners and a foreman present on the first shift during the vacation work. Mr. Robbins
stated that during this period Mr. Hensley did not complain
about the work, voiced no safety or other concerns about
being underground, and in fact stated that he had no problem
in pulling the cable.
Mr. Robbins produced copies of the mine payroll records
for the vacation period in question, and he confirmed that
the records reflect that Mr. Hensley worked 30 hours that
week. Although the records do not reflect the number of days
worked, Mr. Robbins stated that he can personally confirm

720

that Mr. Hensley worked at least 3 days during this period,
and that he was in and out of the underground mine helping
him. Mr. Robbins also confirmed that no coal was mined during this time, and that the work performed by Mr. Hensley was
confined to general clean-up duties, dragging or moving a
cable, and bringing tools in and out of the mine.
Mr. Robbins stated that he was not present on Saturday,
July 13, 1985, when his brother Cletis, or "Junior," spoke
with Mr. Hensley about his refusal to muck the belt.
Mr. Robbins denied that Mr. Hensley was fired, and he stated
that had he been fired, his "time clock" work record would
have been so noted. Mr. Robbins stated that it was his
opinion that Mr. Hensley voluntarily quit his job. He confirmed that the mine work records reflect that Mr. Hensley
worked 60 hours for the week ending July 13, 1985, and that
he worked 30 hours for the week ending July 6, 1985 (Tr. 40).
In response to questions by Mr. Hensley, Mr. Robbins
confirmed that he spoke with Mr. Hensley by telephone on
Monday, July 15, and that Mr. Hensley asked him if he had
been fired. Mr. Robbins stated that he informed Mr. Hensley
that "he needed to get with Cletis Robbins. To my knowledge,
he hadn't told me anything about it if he fired anybody, and
he needed to see Cletis Robbins" (Tr. 37).
Cletis Robbins, Jr., testified that he has 10 years of
mining experience and that he is the mine superintendent. He
confirmed that he is the brother of Gus Robbins, and is known
as "Junior." He stated that he worked the first shift and
part of the second shift. Mr. Hensley worked the second
shift (Tr. 44).
Mr. Robbins stated that he was on vacation during the
first week of July, 1985, and returned the following week.
He confirmed that on Saturday, July 13, 1985, he determined
that work had to be performed underground on the belt line
while coal was not being produced, and he instructed section
foreman Don Curtis to inform Mr. Hensley that ·he would be
expected to "muck out the belt" at the portal and under the
belt as required. Mr. Robbins estimated that there was 8 to
10 tons of coal which had to be cleaned up, and the only way
to do this was to shovel or "muck it" manually.· Most of the
work was required to be done at the portal or close to it.
Mr. Robbins stated that after he advised the second shift
crew as to the work that was expected to be done, Mr. Hensley
informed him that he would not do the mucking work.
Mr. Robbins stated that he informed Mr. Hensley that this was

721

the only work available for him and that he was expected to do
it. Mr. Hensley refused, and Mr. Robbins stated that
Mr. Hensley simply "turned around and left. 11 Mr. Robbins
denied that he ever told Mr. Hensley that he was fired.
Mr. Robbins explained his conversation with Mr. Hensley as
follows (Tr. 45-46):
A. And when he came in, he told me, "I'm not
going to muck that belt." I just turned
around and told him, I said, "Well, that's all
I've got for you to do." And he said, "Well,"
he said, "That's okay," and he turned around
and left and I never seen him again.
You heard his testimony that you fired him
at that time. Did you or did you not?

Q.

A.

I never did tell him he was fired.

Now, you indicated you told him that he
would be -- or Don Curtis told him he would be
mucking the belt at the portal. What is a
portal?

Q.

Ao

That 1 s a canopy going back into the mines.

And you were talking about the belt that
carried the coal out of the mine?

Q.

A.

Yes.

Qo

How much work was there to be done there?

A"

Iid say about eight or ten tone

Q.

How was this work to be done?

A.

With a shovel, manually.

Was this location very near the entry of
the mine or the portal of the mine?

Qo

A.

Yes.

Had it been daylight at the time, could
the work have been done without even having a
light -- a cap and light?

Q.

A.

It could've been until it got dark.

722

Mr. Robbins stated that prior to July 13, he never
assigned Mr. Hensley to underground work, but that he always
mucked around the belt, answered the outside phone, and operated a loader outside. Mr. Robbins stated that these duties
were not full-time duties and that Mr. Hensley would be
expected to do other work assigned to him (Tr. 47).
In response to questions by Mr. Hensley, Mr. Robbins
confirmed that Mr. Hensley never complained about his outside
work or the belt mucking work at the portal. He conceded
that at the time Mr. Hensley refused to work on the belt on
July 13, he (Robbins) told him to "go home." Mr. Robbins
stated that the outside job vacated by Mr. Hensley was left
open for a week before someone was hired to fill the job CTr.
4 8).
Don Curtis, respondent's section foreman, testified that
he has 18 years of mining experience and is a certified .mine
foreman.
He confirmed that he was on vacation during the
mine vacation week and that he worked the second shift during
the period May through July, 1985. On Saturday, July 13,
1985, the second shift was in the process of cleaning and
dusting the underground belts and no coal was being mined.
He assigned men to clean up all along the belt line, and he
intended to assign Mr. Hensley to clean the first belt next
to the outside drift mouth of the mine. However, as soon as
he told Mr. Hensley that he was going inside the mine to clean
and muck the belt, Mr. Hensley informed him that he was not
going. He heard Mr. Hensley inform Cletis Robbins that he
would not work on the belts and Mr. Robbins told Mr. Hensley
that there was no other work to do that evening. Mr. Curtis
did not hear Mr. Robbins tell Mr. Hensley that he was fired
(Tr" 49-52).
Mr. Curtis stated that Mr. Hensley worked one prior evening underground while a section was being moved. Mr. Hensley
did not complain to him about working undergrqund on that
occasion, never complained about any safety problems, and
never complained that the company was discriminating against
him in any way CTr. 52-53).
Mr. Curtis stated that on July 13, he had no idea why
Mr. Hensley was reluctant to do the mucking work and that
Mr. Hensley gave him no reason.
He simply told him that he
was not going to do the work (Tr. 54).
Mr. Hensley was recalled, and he stated that after his
termination he did not speak with anyone about getting his

723

job back, and he stated that he did not wish to go back and
work underground. He stated that when he refused to work on
July 13, it was his understanding that he was asked "to go
inside and start at the portal and go all the way through."
The work would normally entail shovelling coal on the belt,
and since he usually averaged 3 hours a night shovelling coal
which had fallen off the belt at the outside portal, he did
not consider the work hard and it did not bother him. The
coal would often accumulate knee deep in that location as it
came out of the mine and he often spent three or four times a
night shovelling it (Tr. 57).
Mr. Hensley confirmed that at the time Mr. Gus Robbins
assigned mine personnel to work inside the mine during vacation he (Robbins) explained to everyone what had to be done.
Mr. Hensley explained further as follows (Tr. 58-59):
A. Yes, he explained it. He said he wanted
to pull a cable behind the miner and the man
that was there that run the miner was the day
shift foreman, and he kept me outside as much
as he could because he knew I didn't like
going inside. I stayed out one day and taped
up cable and stuff for the miner. He done
that to keep me from going inside because he
knew I didn't like going inside.

Q. But the time you went inside, did you, in
fact, take care of the cable?
A.

Yes.

Q. Do you recall Mr. Robbins' testimony about
him requiring you to go in and out to carry
tools?
A.

Yes, I carried tools to him several trips.

Q.

That did happen?

A.

Yes.

Q. So, I take it in a nutshell, your reluctance was to be underground -- regularly working' underground?
A.

No.

Q.

You didn't like that?

724

A.

No.

Q. And you feel even though you were required
to be underground at times when coal was not
being run -- when they actually were not in
production, but just bringing tools in and
out, that that caused you some problem, too?
A. Yeah.
I didn't like going in underground.
It shook me up.
I was scared of it.

Q. Well, now when you were first hired, you
heard the testimony of Mr. Robbins that he
indicated to you that most of the time, you'd
be expected to work outside, but there were
occasions when they may have to call on you to
do work -A. He never said that to me. He just told me
what I stated awhile ago about just running
the highlift and taking care of anything outside. He never mentioned anything about going
in underground.

Q. Well, let's assume you had no work outside
to do on a given day -- had that ever happened?
A. They'd break down at night sometimes and
wouldn't run no coal, and I'd just stay outside. They'd come out and get parts.
I'd get
the parts for them.

Q.

What would you be doing?

A.
I would grease, check oil and stuff.
Grease the outside belt line, fuel the highlift up.
Findings and Conclusions
In order to establish a prima facie case of discrimination under section 105(c) of the Mine Act, a complaining miner
bears the burden of production and proof to establish (1) that
he engaged in protected activity and (2) that the adverse
action complained of was motivated in any part by that activity. Secretary on behalf of Pasula v. Consolidation Coal
Company, 2 FMSHRC 2768, (1980), rev'd on other grounds sub.
nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211

125

(3d Cir. 1981); and Secretary on behalf of Robinette v. United
Castle Coal Company, 3 FMSHRC 803 (1981). Secretary on behalf
of Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842
(1984). The operator may rebut the prima facie case by showing either that no protected activity occurred or that the
adverse action was in no way motivated by protected activity.
If an operator cannot rebut the prima facie case in this manner it may nevertheless affirmatively defend by proving that
(1) it was also motivated by the miner's unprotected activities alone. The operator bears the burden of proof with
regard to the affirmative defense. Haro v. Magma Copper
Company, 4 FMSHRC 1935 (1982). The ultimate burden of persuasion does not shift from the complainant. Robinette, supra.
See also Boich v. FMSHRC, 719 F.2d 194 C6th Cir. 1983); and
nonovan v. Stafford Construction Company, No. 83-1566, D.C.
Cir. (April 20, 1984) (specifically-approving the Commission's
Fasula-Robinette test). See also NLRB v. Transportation
Management Corporation,
U.S.
, 76 L.Ed.2d 667
(1983).
One critical issue in this case is whether or not
Mr. Hensley was discharged because of his refusal to perform
work assigned to him by foreman Don Curtis and/or mine superintendent Cletis Robbins. The respondent suggests that
Mr. Hensley voluntarily quit his job and was not fired, and
Gus and Cletis Robbins testified that they never specifically
told Mr. Hensley that he had been fired.
Mr. Hensley's first
complaint to MSHA on July 13, 1985, contains no assertion
that he had been fired. Mr. Hensley's complaint letter of
September 29, 1985_, to the Commission contains a passing
reference to the purported firing.
Mr. Hensleyvs termination occurred on a Saturday. It is
clear that it came about as a result of Mr. Hensley's refusal
to work underground cleaning the belt, and after some conversation between Mr. Hensley and Cletis Robbins. Mr. Hensley's
earlier statement to MSHA is that when Mr. Robbins advised
him that there was no outside work to be done .and gave him a
choice to either go underground or go home, Mr~ Hensley
responded "o.k." and opted to go home. Mr. Robbins' testimony at the hearing is consistent with this earlier version.
However, at the hearing, Mr. Hensley testified that when he
opted to go home rather than work underground, Mr. Robbins
told him that he was fired. Mr. Hensley made no attempt to
get his job back, did not report to work on the following
Monday, but instead telephoned Gus Robbins to inquire as to
whether he knew that Cletis Robbins had fired him. Gus
Robbins' response was "whatever Junior (Cletis) says goes."
Foreman Curtis confirmed that after Mr. Hensley's work

726

refusal, Cletis Robbins told him there was no other work that
evening, and Mr. Curtis did not hear Mr. Robbins say that
Mr. Hensley had been fired.
Gus Robbins testified that when Mr. Hensley telephoned
him on Monday, July 15, Mr. Hensley asked him "Was I fired?"
(Tr. 37). Mr. Robbins stated that Cletis Robbins said nothing to him about firing Mr. Hensley, and that his work records
do not reflect that he was discharged. Cletis Robbins testified that after he told Mr. Hensley to go home, he got his
dinner bucket and went home, and he heard nothing further from
him. Mr. Robbins also testified that Mr. Hensley's job was
left open, and a week passed before it was filled.
He denied
that he hired a replacement that same weekend (Tr. 48).
After careful consideration of all of the testimony in
this case, I cannot conclude with any degree of certainty
that Mr. Hensley was in fact directly fired by mine superintendent Cletis Robbins. However, on the basis of the circumstances surrounding this incident, including Mr. Robbins'
statements and actions when he gave Mr. Hensley the option of
working underground or going home, I conclude that Mr. Hensley
was "constructively discharged" by Mr. Robbins on July 13,
1985. Given the option of working or going home, Mr. Hensley's
choice of the latter, his failure to report for work the next
available work day, and his subsequent telephone call to Gus
Robbins lead me to conclude that Mr. Hensley had reasonable
grounds for believing that he had been discharged.
It is well settled that the refusal by a miner to perform
work is protected under section lOS(c)(l) of the Act if it
results from a good faith belief that the work involves safety
hazards, and if the belief is a reasonable one. Secretary of
Labor/Fasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2 BNA
MSHC 1001 (1980), rev'd on other grounds, sub nom Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3d cir:-1981); Secretary
of Labor/Robinette v. United Castle Coal Co., 3 FMSHRC 803,
2 BNA MSHC 1213 (1981); Bradley v. Belva Coal .Co., 4 FMSHRC 982
(1982). Secretary of Labor v. Metric Constructors, Inc.,
6 FMSHRC 226 (Feb. 1984), aff'd sub 'nom., Brock v. Metric
Constructors, Inc., 3 MSHC 1865 (11th Cir. 1985). Further, the
reason for the refusal to work must be communicated to the mine
operator. Secretary of Labor/Dunmire and Estle v. Northern
Coal Co., 4 FMSHRC 126 (1982).
Although not directly stated as such, Mr. Hensley's complaint implies that his work refusal of July 13, was based on
the fact that he lacked prior underground experience and
training.
In his original written complaint to MSHA,

727

\

Mr. Hensley stated that he informed mine foreman Don Curtis
that he would not help shovel the belt and clena up underground because he lacked training and had never been in the
mine before. However, the evidence adduced in this case
reflects that prior to July 13, Mr. Hensley worked underground
in the mine on severeal occasions without voicing any objections concerning safety or lack of training.
Gus Robbins testified that he hired Mr. Hensley because
"he seemed like a pretty good guy who wanted to work" (Tr.
31). Mr. Robbins explained that he knew Mr. Hensley as a
truck driver who regularly hauled coal from the mine, and
that when he was laid off from his driver's job he (Hensley)
asked him for a job. Mr. Robbins further explained that he
went to Mr. Hensley's home to hire him, and then took him to
the mine to explain the work expected of him and to familiarize him with the mine and to explain mine safety precautions.
Gus Robbins testified further that answering the te·lephone and operating an endloader were not full-time duties,
and that Mr. Hensley was expected to do other work as
assigned, i.e., checking the belt line as it entered the mine
to insure that it was working, and mucking the belt.
Mr. Robbins confirmed that Mr. Hensley had always mucked
around the belt by the portal, and that this was part of his
job. Mr. Robbins impressed me as a credible witness, and his
testimony regarding the work expected of Mr. Hensley when he
was first hired was confirmed by Mr. Hensley's testimony that
he of ten spent 3 hours an evening shovelling and mucking the
belt area near or inside the portal and that he did not consider this to be hard work.
There is no evidence in this case that Mr. Hensley ever
communicated his fear of underground work or lack of training
to the respondent.
There is nothing in the record to support
Mr. Hensley's assertion that his failure to object to working
underground prior to July 13, was because of his fear of being
fired. As a matter of fact, Mr. Hensley's prior written complaints made no mention of this concern on his·part, and he
testified that when called upon to work underground the first
time, he did so "to see what it was like" (Tr. 18). Further,
the evidence in this case establishes that at no time during
his employment with the respondent did Mr. Hensley ever complain abo~t his asserted fear of working inside the mine.
He
filed no safety complaints with MSHA or mine management, never
expressed any concerns for his safety, and never objected to
working underground.
Mr. Hensley confirmed that he was
treated like all other miners, and there is no evidence of any
animosity towards him or mistreatment by mine management.

728

The evidence in this case establishes that at no time
was Mr. Hensley asked or required to work underground while
the mine was in production. During the vacation period
Mr. Hensley worked with Mr. Gus Robbins underground while no
coal was being mined. Mr. Robbins stated that he posted a
notice at the mine informing mine personnel of the work to be
done cleaning up the air courses, moving a miner in, and
"getting the mine in shape." Although Mr. Hensley normally
worked the second shift, which was the production shift, he
was assigned to the first shift to help do the vacation week
"dead work." Mr. Hensley confirmed that Mr. Robbins explained
what work was to be done during this time, and at no time did
he voice any safety or lack of training concerns.
Although Mr. Hensley testified that he only worked one
day underground during the vacation period, the credible testimony of Gus Robbins indicates otherwise. Mr. Robbins testified that he personally worked underground with Mr. Hensley
periodically for at least 3 days during the vacation period,
and the mine records establish that during that week
Mr. Hensley worked a total of 30 hours.
Mr. Robbins testified that during the vacation work,
Mr. Hensley help to pull the miner cable to keep it clear of
the miner which was mucking. Mr. Hensley did not object, and
instead stated that he had "no problem and didn't care."
When the miner experienced some hydraulic problems,
Mr. Hensley was in and out of the mine periodically assisting
Mr. Robbins by bringing in tools and parts as required by
Mr. Robbins while he was repairing the miner. Mr. Robbins
stated that Mr. Hensley was in and out of the mine "numerous
times" during this period, and that they were no further than
450 to 500 feet inside the mine. Mr. Hensley confirmed that
he was in and out of the mine helping Mr. Robbins, and there
is nothing to suggest that he voiced any safety or lack of
training concerns.
.

Mr. Hensley's contention that he had no prior training
and no formal underground mine training while employed by the
respondent stands unrebutted. The respondent produced no
testimony or evidence to establish that Mr. Hensley received
any formal training while in its employ. I take official
notice of MSHA's training requirements found in Part 47,
Title 30, Code of Federal Regulations, and recognize the fact
that placing an untrained miner underground may constitute a
violation of MSHA's mandatory safety or training requirements.
However, there is no evidence in this case that the respondent has ever been cited for any such violation, and there is

729

no evidence that Mr. Hensley ever requested training and was
denied it, or that he ever lodged any complaints with management concerning his lack of training.
With regard to Mr. Hensley's prior mining experience,
his assertion that he had no such experience and had always
worked as a coal haulage truck driver stands unrebutted by
the respondent. Although Gus Robbins alluded to certain
statements attributed to Mr. Hensley that he previously "had
a little bit of time across the mountain" (Tr. 35), that
statement was not further explained, and there is no credible
evidence supporting any inference or interpretation that this
statement, if made and standing along, indicates that
Mr. Hensley had prior underground mining experience.
Taken at face value, the lack of training and prior
underground experience could conceivably support an inference
that Mr. Hensley's refusal to work underground on July 13,
was out of concern for his safety. However, given the fact
that Mr. Hensley voiced no safety concerns when he refused to
work, the fact that he had previously worked underground without objections, the fact that his previous work was always
done when the mine was down and out of production and while
he was under the direct supervision of an experienced mine
foreman and mine operator, and the fact that Mr. Hensley had
never voiced any safety complaints or concerns when asked to
perform certain intermittent work underground leads me to
conclude that any claim by Mr. Hensley that his work refusal
was prompted out of concern for his safety is unsupportable.
There is no evidence in this case that the underground
work required of· Mr. Hensley exposed him to any safety
hazards. The record establishes that in each instance when
he was assigned underground work, it entailed trips in and
out of the mine bringing in tools, cleaning up the belt,
assisting in the dragging of a cable, and helping an electrician take some equipment outside.
In each instance, the mine
was not producing coal and was down for "dead work."
Mr. Hensley was apparently provided with a hard hat and cap
light, the mine operator had briefed him on safety precautions when he was first hired, and he was always under the
supervision of experienced mine personnel. Further, Mr. Gus
Robbins' unreubtted testimony, which I find credible,
reflects that when the mine was down during the vacation week
for "dead work," Mr. Robbins posted a notice on the bulletin
board announcing the work to be done, and that when he
explained this to Mr. Hensley he did not object, and stated
that he didn't care and had no problem.

730

I believe that the crux of the dispute in this case lies
in the fact that at the time he was first hired, Mr. Hensley
believed that his job would only entail work outside the mine.
His earlier complaint statements reflect his understanding
that the job would only require him to answer the telephone,
operate an endloader, and do other outside work.
In his complaint to the Commission, Mr. Hensley makes no
mention of the fact that he worked underground during the
vacation period which was testified to during the hearing.
In referring to the one prior occasion when he did work underground, Mr. Hensley alluded to the fact that he was not hired
as an inside man, and that he believed that this would be the
last and only time he would be asked to work inside the mine.
In response to questions during the hearing as to why he
believed he was discriminated against, Mr. Hensley indicated
that since he was scared of being underground and that "it
shook him up," he was reluctant to work underground on a regular basis, even during the time when the mine was out of· production and only "dead work" such as belt cleaning and mucking
was being done. Under these circumstances, I conclude that
even if he had formal training, Mr. Hensley would still be
reluctant to work underground because of his personal dislike
for the underground environment and his preference to do the
outside work for which he believed he was originally hired.
I
further conclude that Mr. Hensley's refusal to work on
July 13, was based on his belief that mine management's work
assignments requiring him to go inside the mine when it was
out of production were becoming more and more routine and that
unless he resisted, he would soon find himself performing more
work which he did not believe should be assigned to him as an
"outside man. n
In view of the foregoing findings and conclusions, I
cannot conclude that the record in this case supports a conclusion that Mr. Hensley's refusal to follow mine management's
work assignment on July 13, 1985, was based on a reasonable
good faith belief on his part that the performance of the work
would expose him to any underground safety hazards.
I further
conclude and find that Mr. Hensley's assertion that his work
refusal was prompted by his lack of training and experience is
not bona fide.
Accordingly, the complaint IS DISMISSED, and
the requested relief IS DENIED.

~~-(f~

Administrative Law Judge

731

Distribution:
Mr. Gary Hensley, Rt. 1, Box 117, Wallins, KY 40873
(Certified Mail)
Karl Forester, Esq., Forester, Forester, Buttermore & Turner,
P.S.C., P.O. Box 935, Harlan, KY 40831-0935 (Certified Mail)
/fb

732

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

May 2, 1986

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
EARL KENNEDY,
LARRY COLLINS,
Complainants

DISCRIMINATION PROCEEDING
Docket No. VA 85-32-D
MSHA Case No. NORT CD 84-7
Mine No. 1

v.
RAVEN RED ASH COAL
CORPORATION,
Respondent
AMENDED DECISION
Appearances:

Sheila K. Cronan, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Complainants;
Daniel R. Bieger, Esq., Copeland, Molinary &
Bieger, Abingdon, Virginia, for the Respondent.

Before:

Judge Koutras

By motion filed April 23, 1986, the Secretary requests that
I reconsider my decision of April 7, 1986, with respect to the
applicable interest rate to be applied to the back pay awarded
the complainants.
The Secretary states that the interest rates
for part of the back pay periods in question should be more than
the 9 percent referred to in my decision.
The Secretary seeks
leave to compute and file the necessary interest computations
to cure the minor defect in my decision.
Commission Rule 65, 29 C.F.R. § 2700.65, authorizes the
Judge to correct clerical mistakes and errors arising from
oversights or omissions in his decision.
I consider the subject
matter of the Secretary's request to fall within the rule.
Accordingly, the Secretary's motion IS GRANTED, and my decision
is amended as follows:

733

The words 11 at a rate of 9 percent until it is paid" are
deleted from lines 2 and 6, on page 40, and they are replaced
with the words 11 in accordance with the Commission-approved
formula set out in Secretary ex rel. Bailey v. Arkansas-Carbona
Co., 5 FMSHRC 2042, 2 050-2054 (Dec. , 1983) . "
1.

2.
The following new paragraph is inserted between the
second and third full paragraphs on page 40, as follows:
Complainant shall submit a statement no more
than 30 days after the date of this Amended
Decision stating the total amount of interest that
is due on the back wage award to each employee, to
the date of this Amended Decision.
Respondent
shall have 10 days from the date the statement is
submitted to reply.
3. The second full paragraph on page 40 is replaceq with
the following:
This order is not final until the exact
amount due is determined and ordered to be paid.
4.

Footnote 1 on page 40

deleted.

The Amended Decision should now read as follows:
ORDER
The respondent IS ORDERED to pay the complainant Earl
Kennedy the sum of $2,170, less any amounts normally withheld
pursuant to state and Federar-I'aw, with interest to the net
back-pay award in accordance with the Commission-approved
formula set out in Secretary ex rel. Bailey v. Arkansas-Carbona
Co., 5 FMSHRC 2042, 2050-2054 (Dec., 1983).
The respondent IS ORDERED to pay the complainant Larry
Collins the sum of $10,600 less any amounts normally withheld
pursuant to state and Federal law, with interest to the net
back-pay award in accordance with the Commission-approved
formula set out in Secretary ex rel. Bailey v. Arkansas-Carbona
Co., 5 FMSHRC 2042, 2050-2054 (Dec. 1983).
Complainant shall submit a statement no more than 30 days
after the date of this Amended Decision stating the total amount
of interest that is due on the back wage award to each employee,
to the date of this Amended Decision. Respondent shall have
10 days from the date the statement is submitted to reply.

734

This order is not final until the exact amount due is
determined and ordered to be paid.

~t:A. tfo/ia~

Administrative Law Judge

Distribution:
Sheila K. Cronan, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA 22203
(Certified Mail)
Daniel R. Bieger, Esq., Copeland, Molinary & Bieger, P.O.
Box 1296, Abingdon, VA 24210 (Certified Mail)
/fb

735

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

May 5, 1986
DISCRIMINATION PROCEEDING

RONALD A. FAUST,
Complainant

..

v.
ASAMERA MINERALS (U.S.),
INC.,
Respondent

Docket No. WEST 85-116-DM
MD 84-39
Gooseberry Mine

DECISION
Appearances:

Mr. Ronald A. Faust, Sparks, Nevada,
pro se:
Craig Haase, Esq., Haase, Harris & Morrison, Reno,
Nevada,
for Respondent.

Before:

Judge Morris

This case arose upon a complaint of discriminatory discharge
filed by the complainant with the Secretary of Labor under
section 105(c}(2) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. §et~, Cthe Act). The Secretary, after investigation, declined to prosecute the complaint. The complainant, Ronald A. Faust, then brought this proceeding directly
before this Commission as permitted under section 105Cc)(3) of
the Act.
Complainant alleges he was discharged in violation of
section 105(c)(l) of the Act. l; After notice to the parties, a
hearing was held in Reno, Nevada on March 12, 1986.
Complainant was granted leave to file a post-trial submission but no such brief nor request for any extension was
filed.
l / Section 105(c)(l) provides:
No person sha11 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
{footnote continued)

736

Review of the Case
Ronald A. Faust and Jerry Lee Moritz testified for the
complainant. At the close of the complainant's case the judge
granted respondent's motion to dismiss on the grounds that the
evidence failed to establish that complainant had been engaged in
an activity protected by the Act.
The Commission case law requires that in order to establish
a prima facie case of discrimination under section l05(c) of the
Mine Act, a complaining miner bears the burden of production and
proof to establish that (1) he engaged in protected activity, and
(2) the adverse action complained of was motivated in any part by
that activity. Secretary on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786, 2797-2800 {October 1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3rd Cir. 1981); Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator
may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was not in
any part motivated by protected activity. If an operator cannot
rebut the prima facie case in this manner it nevertheless may
defend affirmatively by proving that Cl) it was also motivated by
the miner's unprotected activities, and (2) it would have taken
the adverse action in any event for the unprotected activities
alone. The operator bears the burden of proof with regard to the
affirmative defense. Haro v. Magma Copper Co., 4 FMSHRC 1935,
1936-38 (November 1982). The ultimate burden of persuasion does
not shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20.
See also Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)1
nonovan-v. Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir.
1984)(specifically approving the Commission's Pasula-Robinette
test). The Supreme Court has approved the National Labor
Relations Board's virtually identical analysis for discrimination
cases arising under the National Labor Relations Act. NLRB v.
Transportation Management Corp., 462 U.S. 393, 397-403 (1983).
The evidence shows that Ronald A. Faust, 32 years of age,
was employed by respondent Asamera Minerals (Asamera) from

Fn. 1/ continued
representative of 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 miner, representative of miners or applicant for
employment has instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about
to testify in any 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.

737

September 29, 1983 until July 1984. He was a contract miner at
the Gooseberry mine in Storey County near Reno, Nevada {Tr.
8-10).
In September 1983 Faust with two or three partners in stope
806 mined the gold and silver ore {Tr. 10-12). Faust's initial
wage was $10.50 an hour.
It was later increased to $11 (Tr. 12).
On July 30th Faust with his partner blasted 30 holes in the
stope. The blast brought down the raise.
As a result the scram
between raises 806 and 805 was plugged off because it filled with
sand (Tr. 13-16, 20>.
In order to breath Faust reduced the air
pressure and breathed off of the air hose for about an hour, or
until the air cleared (Tr. 14). Breathing off of the air hose
caused Faust's lungs to become coated with oil (Tr. 14).
The following morning Faust went to St. Mary's Hospital
where he remained for six days. A portion of the time he was in
intensive care (Tr. 15).
After he returned home he did not return to work at Asamera.
He was fired by his manager, Tom Lambert, for blasting in the
stope (Tr. 17, 20). At no time did Faust have any conversations
with the company about such blasting but he asserts it was common
practice to remain in the stope while blasting (Tr. 18). Faust
offered several written statements by coworkers confirming his
testimony concerning blasting in the stope {Tr. 18, 19; Ex. Cl
thru CS).
Faust had never been told how he should have blasted in the
stope. On five prior occasions when he had blasted it had
cleared in 10 minutes because the ventilation had remained open
(Tro 24). Faust's supervisor obtained the blasting material; he
knew each time Faust blasted (Tr. 24, 25).
Complainant indicated that he had never told anyone at
Asamera that there was a safe or unsafe way to blast (Tr. 25).
At the hearing Faust identified and read his original
statement to MSHA (Tr. 27; Ex. C6). He basically reviewed his
statement (Tr. 27-31). The handwritten statement concluded with
several questions. They were: "why wasn't accident reported by
mine?" and "why hasn't 805 raise been maintained?" and "why
hasn't scram between 806 and 805 been maintained?" (Tr. 31; Ex.
C6).
Faust was working 40 hours a week at Asamera. After being
terminated his next employment was seven months later earning $14
an hour. He claims loss of wages for seven months at $11 an hour
(Tr. 32, 33).
Jerry Lee Moritz testified that he was Faust's partner at
the time of this incident. Moritz was also hospitalized (Tr.
34-36). He indicated that it was common practice to blast in the
stope (Tr. 31). Other companies follow different procedures:

738

the miners usually drill the holes, put in the blasting powder,
set the cha~ge and withdraw. They will return after the area has
cleared (Tr. 36, 37).
Moritz also stated that at a safety meeting a few weeks
before this incident he mentioned there was no ventilation in
stope 806. The safety man replied that the condition was caused
by the temperature of the outside air (Tr. 36, 37).
Discussion
At the close of the complainant's case respondent moved to
dismiss the complaint. After considering the exhibits and the
evidence the judge dismissed the complaint. The conclusion
reached was that the complainant had failed to offer any evidence
that he was engaged in an activity protected by the Act.
Complainant's claim against respondent rests on the
proposition that it was common practice to blast while the miner
remained in the stope. He followed this practice and, after
being injured, he was fired (Tr. 32).
Faust's evidence develops facts that are safety related and
there may be some form of discrimination in the operator's
actions. But Faust's actions were not an activity protected
under the Mine Safety Act. Accordingly, his claim of discrimination should be dismissed.
Conclusions of Law
Upon the record and the factual determinations construed
most favorably to complainant, the following conclusions of law
are entered:

lo

The Commission has jurisdiction to hear and decide this

mattero
2. Complainant failed to prove that he was engaged in an
activity protected by the Act.
3. Complainant was not discharged, for engaging in any
activity protected by section 105(c) of the Act.
ORDER

Based on the entire record and the conclusions of law,
I enter the following order:
The complaint of discrimination filed herein is dismissed
with prejudice.

~

orris
rative Law Judge
739

Distribution:
Mr. Ronald A. Faust, 30 East H Street, Sparks, NV
(Certified Mail)

89431

M. Craig Haase, Esq., Haase, Harris & Morrison, 6121 Lakeside
Drive, Suite 240, P.O. Box 70250, Reno, NV 89570-0250 (Certified
Mail)

/blc

740

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

May 6, 1986

GARY GOFF, A.K.A. GARRY GOFF, :
Complainant

v.
THE YOUGHIOGHENY AND OHIO,
COAL COMPANY,
Respondent

..
..
.

DISCRIMINATION PROCEEDING
Docket No. LAKE 84-86-D
MSHA Case No. VINC CD 84-03
Nelms No. 2 Mine

DECISION
Appearances:

Frank K. Leyshon, Esq., Leyshon & Leyshon,
Cambridge, Ohio for Complainant1
Gerald P. Duff, Esq., Hanlon, Duff & Paleudis
Co., LPA, St. Clairsville, Ohio for Respondent.

Before:

Judge Melick

This case is before me on remand by the Commission to
determine whether the Complainant, Gary Goff, was discharged
by The Youghiogheny and Ohio Coal Company (Y&O) because he
was "the subject of medical evaluation and potential transfer" under the regulatory standards set forth in 30 C.F.R.
Part 901/ and therefore in violation of section 105(c)(l) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. §
801 et. ~, the "Act.".~/ For the reasons that follow I
find that Mr. Goff was not discharged in violation of that
section of the Act.

1/

Under Part 90 a miner who has been determined by the
Secretary of Health and Human Services to have evidence of
the development of pneumoconiosis is given the opportunity to
work without loss of pay in an area of the mine where the
average concentration of respirable dust in the mine atmosphere during each shift to which that miner is exposed is
continuously maintained a~ or below 1.0 milligrams per cubic
meter of air.

~/

Section 105(c)(l) of the Act provides in part 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, • • •
in any coal or other mine • • • because such miner,
• • • is the subject of medical evaluations and
potential transfer under a standard published pursuant
to section 101 [of the Act] • • • •

741

The evidence shows that Mr. Goff began working for Y&O
in 1976 as a salaried foreman and continued working in a
supervisory capacity until his discharge on Januaiy 20, 1984.
From 1980 to early January 1984 Goff worked at the Y&O
Allison Mine primarily on the surface. The Allison Mine was
not then producing coal and was in the process of recovering
equipment and closing down following an explosion. When the
Allison Mine was closed completely in January 1984, Goff was
transfered to the Nelms No. 2 Mine, the only Y&O mine then
remaining in operation.
Nelms No. 2 is an underground mine and with the exception of the surf ace superintendant all the supervisory
employees were required to work underground. Goff was to be
a labor foreman working primarily in the outby areas of the
mine away from the face where the coal is actually extracted.
He would also be expected to work closer to the face at times
filling in for absent section foremen.
Goff testified that on his first day at the Nelms No. 2
Mine he gave Mine Manager Charles Wurscham copies of doctor's
notes and x-rays. The reports included physician's
statements that he had "borderline pneumoconiosis" and
"pneumoconiosis" and brief "Rx" notes that he should not work
"underground." Goff also told Wurscham to keep him out of
the dust. On the fourth day of his new job, Goff claims that
his chest was "tight" so he called in sick. Goff visited his
doctor that day and later called the mine advising a mine
official that he would be off "for 2 weeks or until he
recovered."
Apparently because of Goff's reluctance to work underground, the existence of inconclusive and rather summary
medical evidence, and past experience with altered doctor's
slips, Y&O then set up its own appointment on January 13,
1984, for Goff to be medically examined. According to this
exam, including x-ray interpretation by· certified "B"
Readers, Drs. Terry Elliott and Robert Altmeyer,3/ Goff did
not have pneumoconiosis. The x-rays were reported as
"essentially normal" and of an "essentially healthy chest."
Spirometry tests, measuring the breathing capacity of the
lungs, pulmonary function tests and arterial blood gas tests
were also reported as "normal."
In particular Dr. Terry Elliott stated in reference to
the January 13, 1984, examination of Goff as follows:

3/ A "B" reader is a person receiving the highest
qualifications to read x-rays for evidence of pneumoconiosis
by the National Institute of Occupational Safety and Health.

742

"Chest x-ray was within normal limits.
of pneumoconiosis was seen.

No evidence

There was no evidence of any significant respiratory or pulmonary disease physiologically.
I find no medical reasons at this time that would
prevent Mr. Goff from being able to work underground as a supervisor."
Dr. Altmeyer agreed and said:
"On the basis of the above studies, there is no
evidence of.any significant respiratory or
pulmonary disease, physiologically."
On or about January 14, 1984, Goff mailed a letter and
copies of some x-rays to the Federal Mine Safety and Health
Administration (MSHA), requesting a determination of eligibility for a "Part 90" transfer. There is no evidence however that Y&O had any knowledge of this application. Meanwhile Goff also wrote a letter to Y&O personnel manager Don
Weber on January 16, 1984, in which he asserts that he had a
note from his doctor advising that he was "unable to perform
the duties" as labor foreman due to pneumoconiosis and that
he "should be worked outside the mine do [sic] to the extent
of pneumoconiosis shown in the two x-rays" and that "until
you have a job for me that is out o.f the dust I will be off
work under doctor's advice."
On January 19 Goff, who had still not returned to work,
met with Weber and Wurscham to review the results of the most
recent medical exam. Goff was told that based upon the
medical reports he would be able to return to work and that
if he did not report for work the next day he would be fired.
Goff never did return to work as directed and was accordingly
discharged effective January 20, 1984.
In order for Mr. Goff to establish a prima facie violation of section lOSCc)(l) of the Act, he must prove by a
preponderance of the evidence that he engaged in an activity
protected by that section and that his discharge was motivated in any part by the protected activity. Secretary ex.
rel. David Pasula v. Consolidation Coal Company, 2 FMSHRC
2686 (1980), rev'd on other grounds sub, nom. Consolidation
Coal Company v. Marshall, 663 F.2d 1211 (3rd Cir. 1981). See
also Boitch v. FMSHRC, 719 F.2d 194 (6th Cir. 1983) and NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983) , - affirming burden of proof allocations similar to those in the
Fasula ·case.
In determining that Y&O was not motivated in any part in
discharging Goff by his being "the subject of medical evaluation and potential transfer" under 30 C.F.R. Part 90, I note

743

first of all the absence of any evidence that any Y&O
personnel knew, prior to his discharge, that he had filed a
Part 90 application.
In addition, although Y&O officials had
been apprised by Goff prior to his discharge of some medical
evidence that he had pneumoconiosis, that evidence was inconclusive and of questionable reliablity.
On the other hand, at the time of Goff's discharge, Y&O
had obtained the results of a current and complete medical
evaluation of Goff's condition including reports by certified
"B" Readers concluding that Goff did not have pneumoconiosis,
that his lungs were normal and that he could return to work
as a labor foreman without restriction. These conclusions
were supported ·by a battery of medical tests including
spirometry tests, pulmonary function studies and arterial
blood gas tests. Under the circumstances Y&O officials could
reasonably have given greater weight to the credible medical
evidence that Goff did not have pneumoconiosis.
It may
reasonably be inferred therefore that the Y&O officials who
discharged Goff did so under the belief that indeed he was
not then "the subject of medical evaluation and potential
transfer" under Part 90 because the best medical evidence
then available showed that he in fact did not have
pneumoconiosis.
In addition it is contrary to reason and common sense to
believe that even had it been known that Goff had applied for
Part 90 status, that Y&O would have had any reason to discharge him on that basis. Under Part 90 (30 C.F.R. § 90.1) a
qualifying miner is entitled only to transfer to a dustreduced area where the concentrations of respirable dust are
less than 1 milligram per cubic meter of air.
The miner is
not entitled to transfer if he is already working in an area
that meets these standards.
In this regard wurschum believed
that the entire Nelms No. 2 Mine complied with the Part 90
requirements.
Indeed it is not disputed that in 1984 the
average respirable dust concentration in the outby areas of
the Nelms No. 2 Mine where Goff would ordinarily be expected
to work as a labor foreman, was only 0.55 milligrams per
cubic meter. Even in the inby areas of the mine near the
faces the ~espirable dust concentration was less than the 1
milligram per cubic meter requirement.
Thus it is apparent that even had Goff become a Part 90
miner he would not have been entitled to any transfer or
change in his work assignment as a labor foreman.
Accordingly it is not reasonable to believe that Y&O would have
been motivated to disharge Goff for the reasons alleged even
had it been known that he would become eligible for Part 90
status. In other words since Part 90 status for Goff would
have had no effect on his work assignment there would have
been no reason to discharge or discriminate against him

744

because of his being "the subject of medical evaluation and
potential transfer" under Part 90.
Under the circumstances Goff has failed in his burden of
proving that Y&O was motivated in any part in discharging him
because he was "the subject of medical evaluation and
potential transfer" under the Part 90 regulatio s. His
complaint of unlawful discharge is accordingly
nied and
this proceeding dismissed.

Distribution:
Mr. Gary Goff, 57920
(Certified Mail)

Jacobsburg, OH 43933

Frank K. Leyshon, Esq., Leyshon & Leyshon, 114 Southgate
Parkway, P.O. Box 129, Cambridge, OH 43725 (Certified Mail)
Gerald P. Duff, Esq., Hanlon, Duff & Paleudis Co., LPA,
Richland Office Building, 46770 National Road West,
St.Clairsville, OH 43950 (Certified Mail)
rbg

745

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

May 6, 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.
.:
..

CIVIL PENALTY PROCEEDING
Docket No. PENN 84-49
A. C. No. 36-00970-03537
Maple Creek No. 1 Mine

v.
:

UNITED STATES STEEL MINING
COMPANY, INC.,
Respondent

.
DECISION

Appearances:

Vicki J. Shteir-Dunn, Esq., Office of the
Solicitor, U. s. Department of Labor, Arlington,
Virginia for Petitioner;
Billy M. Tennant, Esq., United States Steel
Corporation, Pittsburgh, Pennsylvania for
Respondent, United States Steel Mining Company,
Inc.

Before:

Judge Merlin

On March 28, 1986 the Commission reversed my determination
that the operator was negligent and remanded the case to me "for
recomputation of an appropriate penalty 11 • Pursuant to the Commission's decision I issued an order dated March 31, 1986
directing the parties to submit their recommendations regarding
an appropriate penalty amount on or before April 28, 1986. They
have now done so.
I originally assessed a penalty of $7,500.
The operator recommends a penalty of $150 on the ground
there was no negligence.
The Solicitor recommends a penalty of $7,500 which represents no change from what I assessed before the Commission overturned my ruling on negligence. In support of a $7,500 penalty
the Solicitor argues that the two decedents were negligent and
that their negligence is attributable to the operator. The Solicitor acknowledges that the Commission specifically held that it
could not consider this issue because it had not been raised at
the trial level. Nevertheless, the Solicitor argues that the

746

commission's view of what it could consider was wrong and that I
have "the opportunity to consider this issue." I reject the Solicitor 1 s arguments as without merit and mischievous.
I could
not now assess a penalty on the basis of decedents' negligence
(assuming there was such negligence and that it could be imputed
to the operator), because the present record does not specifically address that issue and the operator has not had an opportunity to be heard on it. Even more importantly, the Commission's remand is very specific and limited, i.e., recomputation
of an appropriate penalty in light of its decision. I am bound
by the terms of the remand as laid down by the Commission. If
the Solicitor believes the Commission's view of what it could
consider was erroneous or if the Solicitor wants a broader remand, she should have requested reconsideration by the Commission.
Presentation of these arguments at this stage constitutes nothing
more than an invitation to ignore the terms of the Commission's
remand and defy its mandate. This, of course, I cannot and will
not do. My views on the merits of this case are set forth in my
original decision. But the Commission has spoken and it has held
differently. Whatever significance an issue in a particular case
may have, the principle that a trial Judge is bound by the
holdings of his appellate tribunal is of transcending importance.
The Solicitor's argues next for a penalty "only slightly
lower" than $7,500 on the basis that even if there was no negligence, the gravity of the violation justifies such an amount.
I
reject this because it wholly fails to take account of the fact
that negligence was a crucial factor in my original assessment of
$7,5-00. As the record and the decisions at both the trial and
Commission levels demonstrate, the issue of the foreman's negligence was the reason the operator sought a hearing. Again, the
Solicitor invites me to thwart the Commission's will, an approach
I most emphatically reject.
I also reject the operator's recommendation of a $150
penalty because it does not adequately reflect the other five
statutory criteria which must be considered in addition to
negligence.
As I originally found, the violation was very serious.
{

At the hearing the parties stipulated as follows with
respect to the other criteria (Tr. 5):
(1) imposition of any
penalties herein will not affect the operator's ability to
continue in business; (2) the violation was abated 1/ in good
faith; (3) the operator's history of prior violations is average;
and (4) the operator's size is large.

!/

The court reporter failed to correctly transcribe "abated".

747

It is hereby ORDERED that a penalty of $450 be assessed
which the operator is ORDERED TO PAY within 30 days from the date
of this decision.

Chief Administrative Law Judge

Distribution:
Vicki J. Shteir-Dunn, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Louise Q. Symons, Esq., United States Steel Corporation, 600
Grant Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail)
Billy M. Tennant, Esq., United States Steel Corporation, 600
Grant Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail)
/gl

748

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

May 7, 1986

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

.: CIVIL PENALTY PROCEEDINGS
Docket No. KENT S5-105
.. A.C.
No • 15-13920-03539

v.

Docket No. KENT 85-141
A.C. No. 15-13920-03548

..
Docket No. KENT 85-142
A.C. No. 15-13920-03549
Docket No. KENT 85-159
... A.C.
No • 15-13920-03550

PYRO MINING COMPANY,
Respondent

Docket No. KENT 85-167
. A.C.
No • 15-13920-03551
.

.
:

Docket No. KENT 85-180
A.C. No. 15-13920-03554
Pyro No. 9 Wheatcroft

DECISIONS
Appearances:

Thomas A. Grooms, Esq., Office of the
Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Petitioner;
Bruce Hill, Director of Safety and Training,
Pyro Minirig Company, Sturgis, Kentucky, for
the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These civil penalty proceedings concern proposals for
assessment of civil penalties filed by the petitioner against
the respondent pursuant to section llO(a) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 820(a). The petitioner seeks civil penalty assessments against the respondent

749

for 15 alleged violations of certain mandatory safety standards found in Part 75, Title 30, Code of Federal Regulations.
The respondent filed timely answers and contests, and hearings were held in Evansville, Indiana. The parties filed no
posthearing briefs or proposed findings and conclusions, but
I have considered the oral arguments made by the parties on
the record during the hearing in the adjudication of these
matters.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

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

3.

Commission Rules, 29 C.F.R.

§

2700.l et seg.

Issues
The primary issues presented are Cl) whether the conditions or practices cited by the inspectors constitute violations of the cited mandatory standard, and (2) the appropriate
civil penalties to be assessed for the violations, taking into
account the statutory civil penalty criteria found in section
llOCi) of the Act. Additional issues raised by the parties
are disposed of in the course of these decisions.
Stipulations
The parties stipulated that the respondent is subject to
the Act, and that at all times relevant to these proceedings,
the overall coal production for the respondent's operating
company was 5,200,080 tons, and that the production for the
Pyre No. 9 Wheatcroft Mine was 1,662,825 tons. They also
stipulated that the payment of the assessed proposed civil
penalties will not adversely affect the respondent's ability
to continue in business, and that the violatio.ns were abated
in good faith.
Discussion
KENT 85-105
Section 104 Ca) "S&S" Ci ta ti on No. 25 07205, January 29,
1985, 30 C.F.R. § 75.1722: "The north conveyor belt was not
guarded on the bottom side where the No. 4 unit supply road
passed under the belt. There are exposed moving parts that
could be contacted by employees travel (sic) under the
conveyor."
~-

750

Section 104(a) "S&S" Citation No. 2507206, January 30,
1985, 30 C.F.R. § 75.400:
"Loose coal and coal dust had
accumulated in the Nos. 5, 6, and 7 return entrys (sic) and
connecting crosscuts for 100 feet outby spad No. 9+536 on the
No • 2 unit • "
Section 104(a) "S&S" Citation No. 2507208, January 31,
1985, 30 C.F.R. § 75.503:
"The loader used to load coal on
the No. 3 unit (# L23) was not maintained in a permissible
condition in that the packing glan (sic) to the right head
motor was loose.
The service wire to the left light was cut
and not insulated."
Section 104(a) "S&S" Citation No. 2507209, January 31,
1985, 30 C.F.R. § 75.313:
"The methane monitor installed on
the L23 loader used on the No. 3 unit was not maintained in
that the sensor head was stopped up with oil and dirt to the
point it would not operate."
MSHA Inspector George Newlin confirmed that he issued
the guarding citation (2507205), on the north conveyor coal
carrying belt after observing that the bottom side of the
belt had not been guarded to preclude someone from reaching
up and into the idler pinch points. The belt was 42 inches
wide and was approximately 4 to 5 feet above the roadway
which passed under it.
Supplies were stored under and near
the belt, and it was an area where men and equipment regularly passed under it. He was concerned that some one such
as a mechanic or supply person, or someone walking or riding
under it could stand up and reach into the unguarded pinch
point.
Mr. Newlin considered the belt idlers to be unguarded
pinch points, and he was also concerned that in the event the
belt broke, the whipping action could result in someone being
struck by the belt and injured. He considered the idlers and
the belt itself to be moving machine or equipment parts which
required to be guarded. The belt had been previously guarded
by metal mesh material, but it had become deteriorated and
·removed. The guard was replaced by welding steel bars to the
frame of the belt at the point where the roadway passed under
it.
On cross-examination, Mr. Newlin confirmed that he was
not aware of anyone being injured at the unguarded belt location, and he also confirmed that inspectors regularly passed
under the belt location in the past but did not cite it for
any inadequate guarding. He considered the violation to be
11
S&S" because the unguarded belt exposed miners to a hazard,

751

and he believed that the condition could reasonably likely
result in serious injuries. He did not know how long the
belt had been installed at the cited location. He confirmed
that belt idlers located at the underside of the belt were
not required to be guarded along the entire belt line, unless
the belt crossed over a roadway or travelway where men and
equipment would be present. He identified photographic
exhibit R-1 as a photograph of the belt location in question,
and confirmed that the photograph shows the guarding which
was installed to achieve abatement. He believed that miners
congregated at the location in question, and he stated that
there was a mine phone nearby, but that it was not in the
area of the unguarded belt.
David Furgerson, mine safety manager, testified that the
belt was initially installed approximately 13 to 14 months
prior to the citation and that many MSHA inspectors had
passed under it without citing it. Mr. Furgerson did not
believe that anyone passing under the belt could contact. the
idlers, but conceded that if they stood up while in a piece
of equipment they could contact it. He saw no evidence of
any prior guards, and did not believe that anyone would be
injured if the belt broke.
Section foreman James M. Hibbs testified that he is
familiar with the unguarded belt in question, and he stated
that for the 3 years he has been employed at the mine he has
never known the belt to be guarded.
Inspector Newlin confirmed that he issued a citation for
coal accumulations (2507206) on the Number 5, 6, and 7 return
entries. He described the accumulations as "grey and black
in color," ranging in depths from 0 to 8 inches, 20 feet
wide, along the crosscuts and entries. He believed that the
accumulations resulted because of a failure to properly clean
up while the mining cycle advanced, and he indicated that the
accumulations were the result of mining as the faces were
advanced. The entries in question were in neutral belt
return entries where no active mining activities were taking
place.
Mr. Newlin stated that the accumulations presented a
hazard in that they could have contributed to the enhancement
of an explosion.
In the event of any ignition of explosion
at the race, the accumulations would have contributed to the
severity of the explosion. He saw no evidence of any equipment passing through the areas in question, and confirmed
that no immediate ignition sources were present. He confirmed
that the closest mining taking place was approximately two

752

crosscuts, or 100 feet inby the location of the accumulations,
and that the face area was approximately 180 feet away.
On cross-examination, Mr. Newlin stated that he had
intended to take a dust survey, but after observing the accumulations and issuing the citation, he did not take such a
survey. He detected a negligible amount of methane present
in the cited locations, and while the area was not adequately
rock-dusted, he confirmed that he issued no citation for lack
of rock dust. He stated that the coal accumulations were
behind the section brattice line, and that no ignition sources
were present behind the brattice line. He believed that equipment could have traveled the area, and confirmed that the
brattices had been previously constructed.
Safety manager David Furgerson, confirmed that he traveled with Mr. Newlin during his inspection and he confirmed
the existence of the cited coal accumulations.
He produced a
copy of the preshift examiner's report for January 30, 1985,
and noted that no violations or hazardous conditions were
noted (exhibit R-3).
Inspector Newlin confirmed that he issued the permissibility violation (2507208), for the loader used to load coal
in the number 3 unit after finding a loose packing gland and
loose wire which had been cut on the machine. The wire was
for one of the headlights, and while it was disconnected, the
end was not insulated where it had been cut. The loader was
in operation loading coal, and he detected .2 methane present,
but this caused him no particular concern. Mr. Newlin stated
that the loader operator told him that "there was power to the
wire." Mr. Newlin stated that the loose energized wire could
come in contact with the frame of the loader and cause a spark.
The loader operator advised him that the light had come off
the machine, but that the face boss was not aware of the
condition.
Mr. Newlin stated that he cited two separate conditionsi
the loose uninsulated wire, and a loose packing gland.
He
identified a similar packing gland produced by the respondent
for demonstration purposes, and he confirmed that it was
loose by turning it with his fingers and finding that it was
not "finger tight." The purpose of the packing gland is to
keep the wires inside the machine protected from arcs or
sparks. Mr. Newlin confirmed that he issued a second citation on that same loader (No. 2507209) that same day because
the methane monitor sensor head was clogged with dirt and
oil.

753

On cross-examination, Mr. Newlin could not state where
the loader was precisely operating when he cited it. He confirmed that he made no independent determination that the
wire was energized or that it had power. He simply relied on
what the loader operator told him, but admitted that his
notes did not reflect any statement by the operator that the
wire was energized. Mr. Newlin confirmed that he did not
check the loader light fuses to determine if they had blown
out, and he stated that he would not have issued the citation
if there was no power to the light wire in question. The
wire appeared to have been cut, and the exposed end.had not
been insulated. Mr. Newlin also confirmed that he did not
check the loader electrical junction box and did not check
the wire with an OHM meter.
Safety manager David Furgerson testified that the wire
could have been cut when it came into contact with a rib. He
stated that the machine operator would not know whether there
was power to the wire after it was cut. He recalled no conversations with Mr. Newlin or anyone else about the cited
condition, and he did not know the identity of the loader
operator.
James Crowell, respondent's maintenance director, testified that the loader has two sets of lights, and that they
operate under two separate electrical circuits. He stated
that the loader can operate with one light, and that in the
event a wire or cable is cut, the fuse would blow and interrupt the power to the light. He confirmed that he did not
examine the loader in question, and conceded that a fuse may
not always blow if the light wire or cable is cut.
Inspector Newlin confirmed that he cited the loader used
on the number 3 unit after finding that the methane monitor
sensor head was gobbed with oil and dirt (2507209). He
explained that the purpose of the sensor head is to detect
the presence of methane. If methane is detected, the sensor
sends a signal to the methane monitor which registers the
amount on a signal device in the operator's cab. In his
opinion, the gobbed sensor head would prevent the proper
signal, but he conceded that he did not test the sensor head
with a predetermined mixture of methane to be absolutely sure
that it was not functioning properly because there was not
enough methane present to make comparisons, and he had no
predetermined mixtures with him at the time he observed the
condition. However, based on his visual observation of the
gobbing condition, he did not believe that the sensor head
was functional.

754

On cross-examination, Mr. Newlin confirmed that the
methane monitor test button was functional and operating
properly. He confirmed his prior observations of the gobbed
condition of the sensor head, and confirmed that the accumulated oil and dirt was cleaned out with a screwdriver after
the sensor cap was removed.
He also confirmed that the
gobbed condition was readily observable, that there was sufficient air ventilation on the unit, and that it was adequately
rock dusted. He also confirmed that there were no dangerous
methane accumulations present.
Safety manager David Furgerson testified that lt was his
belief that the methane monitor sensor head was working properly even though it was gobbed with dirt and oil. He stated
that the specific gravity of methane is .5545, and that it
will permeate oil and dirt because it is porous material. He
confirmed that the maintenance department cleaned out the
sensor head, but that it was not tested with a known mixture
of methane.
It was his view that simply because the sensor
head was dirty did not indicate that it was inoperable. He
simply did not believed that the oil and dirt was "packed in
enough" to prevent the sensor head from sending a signal to
the methane monitor.
KENT 85-141
Section 104(a) "S&S" Citation No. 2508624, April 11,
1985, 30 C.F.R. § 75.807:
The high voltage cable installed along
the north west track entry was not placed so
as to afford protection against damage from
mobile equipment in several places. Also the
cable was not guarded in at least fifteen
places where miners were required to be under
it. Supplies and tool boxes were stored under
the cable.
Section 104(a) "S&S" Citation No. 2508625·, April 11,
1985, 30 c. F. R. § 75 .130 6:
"The explosives magazine on the
No. 4 unit, I.D. No. 004 was not maintained in good condition
because the doors would not close, the magazine had been
struck by a piece of machinery."
Section 104(a) "S&S" Citation No. 2508627, April 11,
1985, 30 C.F.R. § 75.400:
"Accumulations of loose coal and
coal dust, 2 to 6 inches deep and averaging 8 foot wide was
present along the ribs of the No. 4 unit belt beginning at
the tailpiece and extending outby 150 feet."

755

Section 104(a) "S&S" Citation No. 2507611, April 12,
1985, 30 C.F.R. § 75.400: "Accumulation of float coal dust
and coal dust was observed over previous rock dusted surf aces
in the 3-A belt conveyor entry starting at the header and
extending 5 crosscuts inby (approximately 250 feet) ra~ging
in depth from 0 to 5 inches."
Section 104(a) "S&S" Citation No. 2507618, April 23,
1985, 30 C.F.R. § 75.807:
"The 7200 (volts) high voltage
cable strung across the No. 3 entry used as the haulage road
did not have a guard on it. The entry was approximately
4 feet high. Miners were required to travel under this
cable."
MSHA Inspector James E. Franks testified as to his background and experience. He confirmed that he inspected the
mine on April 11, 1985, and issued Citation No. 2508624,
after observing several locations, and at least 15 additional
locations along the track entry in question, where a high
voltage cable had not been hung or guarded to prevent damage
from equipment or from miners coming in contact with it. He
stated that supplies were stored under the cable at the locations in question, and in several places the cable was hung
so low that he believed it could be damaged by equipment which
was required to pass under it while storing and retrieving the
supplies. Mr. Franks stated that section 75.807, requires
cable protection to protect the cable from equipment damage,
and to also protect miners from coming in contact with it. He
confirmed that he issued the citation to prevent cable damage
from mobile equipment at several places, and to prevent miners
from contacting the cable when they passed under it at the
locations where the supplies were stored. He explained that
any cable located at points where men do not regularly pass
under i t is required to be guarded by hanging it out of the
way of equipment or behind timbers, and that at places across
roadway and travelways, it is required to be guarded or covered to preclude miner contact as well as equi_pment damage.
Mr. Franks identified a piece of PCV hard plastic pipe
produced for demonstration purposes at the hearing as the
type of guarding which is acceptable to MSHA. The pipe material is cut along one side so as to facilitate it being taped
or otherw~se secured around the cable for protection. He
stated that the PCV pipe is similar to the guarding used by
the respondent.
Mr. Franks testified that in at least five or six locations the cable was lying along the side of the track on the

756

mine floor and he was concerned that scoops and battery
motors using the track entry would get into the cable and
cause damage.
Some of these locations were in areas where
the track was narrow, and the operators would be on the
"off-side," thereby increasing the possibility that a piece
of equipment would damage the cable. Most of the other 15
locations were at the end of the track where the respondent
stored blocks, boards, steel ties, and roof bolts, and he
believed that men were required to pass under the cable to
move the supplies in and out, and the chances were great that
someone would come in contact with the unprotected cable.
Mr. Franks conceded that the cable in question is inherently shielded and that it was provided with a ground check
monitoring system. A properly functioning system will deenergize the cable if it is cut or shorted out, but he believed
that such a system may not always be in proper working order.
He also believed that it was possible that someone merely
touching the cable would not suffer any harm, but on the· other
hand, if the conditions were right, it could cause fatal injuries. He confirmed that the cable at the equipment supply
locations was hung but not protected, and at the other locations it was simply lying on the mine floor.
On cross-examination, Mr. Franks stated that the section
in question was operating on a 20-hour a day production schedule, and that the supplies which were stored under the cited
cable locations were needed and used during these production
periods. He confirmed that as the mining cycle advances, the
supplies would be moved up. However, he pointed out that the
track entry had been driven approximately 1,200 feet and that
the track had been in place for about a year. He believed
the supplies in question had been stored at the cited locations for approximately.3 weeks, and that men were regularly
required to pass under the unprotected cable to retrieve and
move the supplies. He observed miners under the cable, and
also observed a motor unloading supplies under the cable. He
confirmed that he did not know the type of cable used by the
respondent and that he detected no damage to the cable at any
of the cited locations.
Mr. Franks dicussed the supply and storage system used
at the mine, and he explained MSHA's guidelines for guarding
high voltage cables. He confirmed that the type of plastic
PCV pipe used by the respondent to guard its cables is acceptable as adequate guarding material for high voltage cables.
James Crowell, respondent's maintenance director, testified that he has 15 years of experience in electronics and

757

electricity and has taught and conducted training courses in
these areas. He produced sections of cables for demonstration
purposes, and he explained that one of the cables is a standard black permissible 8,000 volt power feeder cable which is
acceptable by MSHA for use by the respondent in its mines.
However, he explained that the respondent does not use this
type of cable, but instead uses a "hypalon" cable approximately two times the diameter of the standard cable, and that
it has an insulated jacket and three electrical conductors
which are independently braided and protected by insulation.
The cable has two insulated ground wires and one insulated
ground check wire, and he described it as "the best· available
cable on the market." He stated that in the unlikely event
that the cable were run over and a massive break or cut
occurred to the insulated high voltage conductor, the cable
would deenergize and the power would cut off. He is unaware
of any incidents in which the cable has failed to function
properly.
On cross-examination, Mr. Crowell confirmed that he did
not inspect the cable which was cited by Inspector Franks,
and he stated that the cable ground monitoring system is
required to be tested and checked monthly. He believed that
under normal mine operating conditions the cable in question
is inherently safe, and that it was not reasonably likely
that someone would be injured by contacting such a cable.
Inspector Franks confirmed that he issued Citation No.
2508625 on April 11, 1985, after observing that the doors of
a mobile explosives magazine would not shut tight to afford
protection to the explosives stored inside. The doors
appeared to have bee.n struck by another piece of equipment
and he observed an indention in the doors. The doors were
warped and they could not be shut tight to the latches provided to secure the doors. He believed that the magazine had
to be moved and advanced as the mining cycle advanced, and he
was concerned that another piece of equipment could run into
it while it was being moved. With the doors opened and
unsecured, he believed that such a collision would detonate
the explosives stored inside the magazine.
Mr. Franks stated that the magazine, in its parked position at the time of the inspection, was not in the line of
fire of any shots that may have been fired. However, he
believed that it was possible for a piece of shot coal or
rock to fly into the area where the doors were not secured if
the magazine were moved to an area where shots were being
fired, and that the explosives could possibly be detonated.
If this occurred, 14 people on the section would be exposed

758

to the resulting explosion hazard. Mr. Franks discussed
prior reported nationwide incidents of powder magazine accidents, but confirmed that none have occurred at the respondent's mines.
Mr. Franks could not state how long the condition of the
doors had existed. Apart from the warped doors, he confirmed
that the magazine was otherwise properly constructed of metal
with adequate insulation inside. He did not know the type of
powder stored inside the magazine, and made no determintion
whether or not any detonator caps were also stored in the
magazine with the powder. If they were, he speculated that
they would be stored and isolated from the powder by a metal
compartment.
On cross-examination, Mr. Franks identified two photographs of a mobile explosives magazine taken by the respondent, and he confirmed that it was similar to the one he
cited. The magazine is mounted on rubber tired wheels ahd he
explained that when it is moved it moves along a track with
the wheels lowered. When it is parked, the wheels are raised
to the position shown in the photographs. He identified the
doors on the side of the magazine depicted in the photographs
as similar to the ones he cited, and he confirmed that the
overall metal construction and configuration of the magazine
was similar to the one cited.
Mr. Franks stated that under normal operating conditions,
the powder and detonators are stored separately inside the
magazine and they are separated by a 4 inch metal or steel
plate, and that apart from the doors, the cited magazine was
of substantial construction and was otherwise in compliance
with the requirements of section 75.1306.
In response to a suggestion by the respondent's representative that the respondent complied with the requirements of
section 75.1304, because it always kept its explosives or
detonators in properly constructed closed containers,
Mr. Franks stated that section 75.1304 does not apply to the
facts on which he based his citation.. He explained that section 75.1304, is intended to apply where explosives and detonators are "hand carried" by the shooter to the shot location
after he has taken them out of the magazine. He explained
further that the cited mobile magazine is not 11 carried" by
miners, but is moved or pulled about the mine on a track by
means of another piece of equipment and a cable or other
coupling device. He emphasized the fact that he cited the
violation because the damaged and warped doors rendered the
magazine less than "of substantial construction" as required

759

by cited section 75.1306. Further, the warped doors exposed
the metal interior of the magazine and did not afford protection from roof falls as required by the standard.
Mr. Franks stated that he considered the violation to be
significant and substantial because the magazine would be
moved about the mine and there was a reasonable likelihood
that it would be struck by other equipment travelling about
the unit, with resulting injuries of a serious nature.
James Hibbs, respondent's safety manager, confirmed that
the doors of the explosives magazined cited by Mr. Franks
were damaged. He stated that one of the doors was "badly
damaged" and that the other one was "not quite as bad." He
confirmed that it was impossible to securely close or latch
the doors. He confirmed that when the magazine is moved, the
wheels are down, and that in this position, it is impossible
to move the magazine with the doors opened because they would
strike the wheels.
On cross-examination, Mr. Hibbs stated that he had no
knowledge as to how the cited magazine was moved out of the
mine to achieve abatement. He confirmed that the respondent
uses a water based gel explosive powder manufactured by
Dupont, and it is known as "Tovex." He confirmed that all
explosives used in the mine are permissible, and that in.
order to have an explosion, a detonator device must be used
in conjunction with the powder. He did not believe that
powder, by itself, will explode by being struck by equipment
or rocks.
Inspector Franks confirmed that he issued Citation No.
2508627, on April 11, 1985, after observing accumulations of
loose coal and coal dust along the ribs of the No. 4 unit
belt .line for a distance of approximately 150 feet.
He
described the conditions he observed, and he stated that
active mining on the unit was taking place two to three crosscuts inby the areas where he observed the accumulations.
Mr. Franks speculated that the accumulations had existed
for 4 to 6 days, and he surmized that they either rolled off
shuttle cars which had traveled the area or had been left
there as the unit advanced. He observed some of the coal
accumulations along two of the bottom belt rollers which were
turning in the coal, and a power cable was on the coal. He
confirmed that waterlines and fire warning devices were
installed along the belt line. Although his visual observations led him to conclude that the area in question was not

760

adequately rock-dusted, he conceded that he issued no citation for lack of adequate rock dusting.
Mr. Franks stated that he considered the violation to be
"significant and substantial" because coal accumulations turning in belt rollers could cause a fire, and the presence of
the cable which he observed constituted a possible ignition
source.
On cross-examination, Mr. Franks confirmed that the
normal mining procedure in the mine is to advance one break a
day during production, and that the respondent's normal practice is to "scoop the entry" before installing the belt line.
He conceded that the accumulations could have existed for
less than 4 to 6 days.
MSHA Inspector Dennis Dati confirmed that he issued Citation No. 2507611 on April 12, 1985, after observing accumulations of float coal and coal dust across the No. 3-A belt
conveyor entry for approximately five crosscuts, or a distance
of 250 feet.
He stated that the accumulations varied in
depth, and that in some areas he could see the rock dust under
the accumulations.
He confirmed that the belt was moving, but
observed none of the accumulations turning in the belt rollers.
An electrical power box which provided power for the belt, as
well as timbers and the belt itself, were in the area of the
accumulations. He could not determine how long the accumulations had existed prior to his inspection, and he discussed
the conditions with respondent's safety manager David
Furgerson, but he made no comments.
On cross-examination, Mr. Dati stated that float coal
dust and coal dust is explosive, and "if it goes off" it is
"extremely hazardous." He did not return to the mine until
April 15, because he had other business to attend to, but
when he returned he found the conditions abated and the area
had been cleaned up and rock-dusted. He confirmed that he
did not sample the accumulations for incombustible content,
but based on his observations, he believed that any sample
would have indicated 65 percent incombustility. He stated
that the float coal dust was scattered throughout the cited
area and was present on the belt and box.
He could not
recall whether the areas were wet, but he conceded that under
normal operating conditions the belt heads would be wet. He
also conceded that the cited area was adequately rock-dusted.
Respondent's safety manager David Furgerson testified
that he was with Inspector Dati during his inspection, and he
confirmed the existence of the cited accumulations. He

761

stated that the float coal dust had accumulated on the rock
dusted surfaces. He stated that the entire area in question
was damp and that the top was leaking. He explained that
most of the area is cribbed because of a bad top condition
and that it was difficult to travel through the crosscuts
with equipment. Under the circumstances, rock dust must be
taken in on the belt and the area had to be hand dusted. The
cited areas looked white to him, and he believed the cited
accumulations had existed for possibly one prior shift or at
most 2 days.
Inspector Dati confirmed that he issued Citation
No. 2507618, on April 23, 1985, after observing an unprotected
high voltage cable hung across the No. 3 entry haulage road.
He stated that he was with respondent's safety manager James
Hibbs in a golf cart driving towards the face area, and that
they passed under the cable. The cable was not guarded in the
area where it crossed the roadway, and he believed that 8 to
10 men would regularly be required to travel under the cable.
On cross-examination, Mr. Dati stated that the haulage
road in question was the main haulage road used by scoops,
jeeps, and men on foot.
The cable was hung on J-hooks but
was not guarded by the pcv plastic pipe material normally
used by the respondent for this purpose. He observed haulage
equipment travelling the roadway, and he confirmed that it
was possible that the guarding had been knocked off. He
observed no damage to the cable, and confirmed that he saw
the guard lying by the side of the crosscut. The condition
was abated within an hour or so.
Safety manager· James Hibbs confirmed that he was with
Inspector Dati when he issued the citation. He stated that
he could see the cable from a distance as they approached it
in the golf cart, and since a curtain was hung across the
road, he could not see that the cable guard was off. He
believed the guard had recently been knocked off, and he
observed that the tape used for installing the. guard to the
cable was still present on the cable. He stated that the
unit was driving to the left off the main entry, and that the
day in question was the first production morning on the unit.
He had no reason to believe that it was necessary for anyone
to go under the cable before the unit was advanced.
On cross-examination, Mr. Hibbs conceded that men and
equipment regularly used the haul road in question, and would
pass under the cable. He believed that the cable had not
been unguarded for more than 8 hours, and he did not know how
many men were on the unit.

762

The parties agreed to incorporate by reference the prior
testimony of maintenance director James Crowell with respect
to the type of cable used by the respondent in the mine, and
the fact that it is provided with a ground check monitoring
system.
KENT 85-142
Section 104(a) "S&S" Citation No. 2507619, April 26,
1985, 30 C.F.R. § 75.807: "The 7200 high voltage cable
strung across the crosscut at spad No. 12+80 between No. 3
and No. 2 entrys' (sic) were Csic) there was evidence of
miners travelling under it did not have a guard on it."
MSHA Inspector Dennis Dati testified as to his background
and experience and he confirmed that he issued the citation in
question. He confirmed that Mr. James Hibbs, respondent's
safety representative, accompanied him during his inspec.tion.
Mr. Dati stated that he and Mr. Hibbs were travelling the
entry roadway in a golf cart and when they reached the crosscut at spad 12+80, Mr. Dati observed that the high voltage
cable which was hung across the crosscut was not provided with
a guard. Cables hung at such locations are normally guarded
by a plastic "water-pipe" type shielding which is taped over
the cable portion which crosses the crosscut.
Mr. Dati stated that he observed no one walking or driving under the cable, but he did observe "all kinds" of tire
tracks under the cable and this led him to believe that equipment had passed under it. However, he observed no foot
prints, and the tire tracks were over the rockdusted crosscut
roadway. Mr. Dati estimated that the cable was hung up
approximately 4-1/2 to 5 off the floor, and he stated that he
is 5 feet 8 inches tall and could not stand up in the area.
Mr. Dati stated that the hazard presented was the possibility of equipment running into the cable and damaging it.
He could not identify the types of equipment which may have
made the tracks, but he assumed they were made by scoops,
track buggies, jeeps, or golf carts. The cable had an outer
protective insulated jacket, but it was not otherwise protected against damage. He did not believe that a person contacting the cable could be injured, and his only concern was
over possible damage to the cable through equipment contact.
On cross-examination, Mr. Dati reiterated that the only
evidence he had to support his conclusion that men or equipment regularly passed under the cable were the tracks he

763

observed on the rockdusted roadway. He did not check the
tracks to determine the types of equipment that may have made
them, nor could he determine when the cable was hung across
the crosscut or whether the tracks were there before the cable
was advanced and hung across the crosscut. He confirmed that
there were other means of access to the places where mining
was taking place. Referring to exhibit R-6, a sketch of the
area, Mr. Dati placed the cable location in question as approximately five crosscuts outby the face, and he agreed that the
power center was advanced approximately three crosscuts as the
mining cycle advanced.
The cable was hung along the right
side
the roadway for four additional crosscuts outby the
location where it was not guarded. These additional locations
were timbered, and since the cable was behind the timbers it
was not required to be guarded at those locations.
Mr. Dati confirmed that the unguarded cable was equipped
with a ground check monitoring system which is intended to
cut off the power in the event the cable is damaged.
In response to further questions, Mr. Dati stated that
he observed no damage to the cable, and observed no knicks,
abrasions, or other evidence of cable damage. He also confirmed that he did not interview any of the equipment operators who may have passed under the cable, did not ascertain
the types of equipment operating on the section, and he did
not know the heights or other working parameters of the equipment. He believed that the only person exposed to any hazard
would be the individual who passed under the cable.
In the
event of cable damage, that person would be exposed to a possible hazard from any cable damage.
Mr. Dati stated that Mr. Hibbs offered no explanation
for the condition in question and simply agreed that the
cable needed to be guarded. A guard was installed within
20 minutes, and Mr. Dati terminated the citation.
Mr. Dati ident ied a copy of an MSHA report of investigation concerning a fatality which occurred at another mine
because of a defective low voltage cable monitoring device
and he conceded that the citation in issue in this case deals
with a high voltage cable which was not damaged.
Section foreman James Hibbs confirmed that he accompanied
Inspector Dati during his inspection, agreed that the cable
was not guarded with any additional guarding other than its
own protective insulated cable jacket, and agreed that it was
hung across the crosscut at the spad 12+80 location. He saw
no equipment or miners passing under the cable and he agreed

764

that there were equipment tracks under the cable. He believed
that it was possible that the cable was hung at the location
after the tracks were made in the roadway, and he was not
aware of any injuries sus.tained by any employees because of
damage to any of the high voltage cables.
Mr. Hibbs stated that all of the mine high voltage
cables are hung on insulated hooks and that in areas where
men or equipment regularly pass under the cables they are
protected and guarded by a hard plastic type guarding device
which is taped over the cable at those locations.
On cross-examination, Mr. Hibbs testified that the unit
was engaged in retreat mining and that mining was taking
place in the rooms to the right of the haulageway where the
cable was hung.
He marked exhibit R-6 to show where the
rooms were located and he explained what was taking place and
how the cable in question was routed to the power center. He
placed the location of the power center in an area to the
right of the roadway as shown on exhibit R-6, and he confirmed
that a guard was installed within 20 minutes in order to abate
the violation.
KENT 85-167
Section 104(d)(l) Order No. 2507503, March 21, 1985,
30 C.F.R. S 75.313:
"The methane monitor on the No. 2 unit
loader had been bridged out in the power box. Coal was being
loaded in the No. 2 heading."
MSHA Inspector George Newlin confirmed that he conducted
an inspection at the mine on March 21, 1985, and issued the
citation after finding that the loading machine methane monitor was inoperative.
He tested the monitor by activating the
test button, and when it did not deenergize the machine an
electrical mechanic was called to the scene. He discovered
that the monitor had been "bridged out" and that a wire was
disconnected.
He reconnected the wire and this rendered the
monitor operable.
Mr. Newlin stated that during an inspection the day
before the citation was issued he observed the same loader
with the same inoperative methane monitor. The machine was
idle, but the power was on. The maintenance foreman did some
troubleshooting and after removing some cover bolts, found
that the monitor had been "bridged out." He repaired it and
rendered it operable. Mr. Newlin stated that he did not
issue a citation that day because the machine was idle and he
was told that the monitor was scheduled for maintenance that

765

day. When he returned on March 21, and found the same condition, he was told by the machine operator that the monitor
had been bridged out for 3 days. Under these circumstances,
he decided to issue a section 104(d){l) order, and so informed
Douglas Whitledge, the mine foreman who was. with him on his
inspection.
Mr. Newlin stated that at the time he cited the loader
on March 21, it was loading coal and the regular production
crew was working. He believed that a methane explosion can
occur at any time underground and that a serviceable monitor
is critical in order to deenergize the loader when explosive
levels of methane are detected.
On cross-examination, Mr. Newlin confirmed that the violation was abated within 22 minutes after the monitor bridge
was removed. At that time, the monitor was "partially working," and he was told that a new one was on its way underground to replace
questionable one. Although the old one
was not completely operable, he permitted the loader to be
used, but only after instructing the operator to use a methane
spotter for periodic methane checks. He confirmed that methane monitors which have mechanical problems "may be repaired
one minute and then go out the next. 11
Mr. Newlin confirmed that he found no unusual amount of
methane present during his inspections and issued no additional citations for any hazardous ign ion sources. He
corrected his prior testimony and stated that he did issue a
104(a) citation on March 20, because of the inoperable methane monitor in question. He stated that he did not know who
bridged the monitor or why it was done. He explained that
such monitors often experience mechanical problems and speculated that it may have been bridged out to prevent the machine
from deenergizing while it was in operation and loading coal.
He reiterated that he permitted the machine to be used with a
partially repaired monitor because he knew a new replacement
was on its way and would be installed, and that a spotter
would be used. However, he did not remain on the scene until
the new monitor was actually installed.
Douglas Whitledge, mine foreman, confirmed that he was
with Inspector Newlin when he cited the methane monitor in
question, and confirmed that it had
bridged out and was
inoperative. He also confirmed that he made his methane
checks and that Mr. Newlin permitted
e partially repaired
monitor to be used on March 21, until the new one was
installed. He confirmed that Mr. Newlin did not state that
it could be used while it was bridged out, and he had no

766

knowledge as to when Mr. Newlin was first made aware of the
fact that it had been bridged out.
David Furgerson, mine safety manager, stated that he was
with Inspector Newlin on March 20, when the methane monitor
condition was first discovered. He stated that the third
shift was performing routine maintenance and discovered that
the monitor in question had been bridged out. The monitor
was repaired at that time, but he had no personal knowledge
as to the extent of the repairs or what was done to render it
serviceable.
James Crowell, maintenance director, testified that methane monitors regularly break down for various mechanical reasons and he produced a maintenance and order form indicating
that a new monitor was ordered for the one which was defective
(exhibit R-3).
KENT 85-180
Section 104(a) "S&S" Citation No. 2507175, March 11,
1985, 30 C.F.R. § 75.1300:
"Care was not taken to be sure
that all personal (sic) was (sic) clear of a shot that---wa8
f ired in the crosscut between No. 3 and No. 4 entry on No. 1
unit."
The citation was modified on March 28, 1985, as follows:
Citation No. 2507175 is hereby modified
to change the Part/Section from 75.1300 to
75.1303 and to include in the body of the citation that permissible explosives were not being
used in a permissible manor (sic) in that care
was not taken to ascertain that all persons
were in the clear, and the loader operator was
not removed from the adjoining working place
(No. 3 entry) where there was a danger of shot
blowing through.
Section 104(a) "S&S" Citation No. 2507176, March 11,
1985, 30 C.F.R. § 75.1300:
"An unintentional unconfined shot
was fired in the crosscut between No. 3 and No. 4 entry on
No. 1 unit ID 001."
MSHA Inspector Ronald Oglesby testified as to his background and experience, and he confirmed that he and another
inspector conducted an investigation of an explosion which
occurred at the mine at approximately 1:00 a.m., on March 11,

767

1985. He identified exhibit P-6 as the report of i~vestiga
tion, and he confirmed that the two citations in question
were issued as a result of his investigation of the incident.
He identified exhibit P-7 as a sketch of the area where the
incident occurred and he explained the cutting, drilling, and
shot procedures which were taking place. He also identified
exhibit P-8 as a diagram of the mine section given to him by
someone in the respondent's safety department. Mr. Oglesby
described the "explosion" as a "large blow out" from the side
of a crosscut at a location where a drill hole had been shot
through. As a result of his investigation, including the
examination of the drill hole, he concluded that an· unconfined
shot had taken place.
Mr. Oglesby confirmed that he issued Citation
No. 2507175, because the shooter failed to take care and
insure that all miners in the blast area were clear of the
shot and removed from the area. He stated that he placed the
location of loader operator Marvin Ferguson, who was injured
by the blast, by speaking with the shooter and other witnesses
during his investigation. He also spoke with Mr. Ferguson on
March 27, while he was in the hospital recuperating from burns
he received by the blast, and Mr. Ferguson told him that he
was temporarily operating a loader in the number 3 entry while
awaiting the arrival of the regular loader operator.
Mr. Ferguson confirmed that the shooter, James Bealmear, told
him that he was preparing to fire a shot and asked if he was
clear. Mr. Ferguson stated that he told Mr. Bealmear that he
was in the clear, and then proceeded to squat down with his
hands over his ears when the shot went off. After the shot,
Mr. Ferguson shouted to Mr. Bealmear, but Mr. Bealmear could
not get to him, and the face boss came to Mr. Ferguson's
rescue.
Mr. Oglesby referred to the sketch and testified that
after Mr. Bealmear loaded the shot hole, he returned to the
location shown on the sketch and fired off the shot.
Mr. Oglesby confirmed that he issued Citation No. 2507176
after determining that the shot in question was an unconfined
shot. He defined an "unconfined shot" as one which is fired
without at least 18 inches of overburden material around it.
He did not know the type of explosive used by the shooter, nor
could he determine whether any stemming was used. The appearance of the blown-out area indicated to him that the shot was
not confined, and he stated that had it been properly confined
it would not have blown out. He identified exhibit P-10 as
the results of a state investigation of the incident.

768

On cross-examination, Mr. Oglesby stated that the area
being mined was a continuous mining unit, and that coal is
not normally mined by using blasting agents of shooting and
drilling. He confirmed that it is not uncommon for coal to
be shot down between the crosscuts in order to even them up,
and that the existence of such uneven crosscuts is not
uncommon. He also confirmed that it is not illegal to make
"pop shots" by shooting one drill hole at a time.
Mr. Oglesby testified as to the distinctions between a
confined and unconfined shot, and he stated that he could not
recall seeing through to the number 4 entry from the number 3
entry. He identified exhibit P-10 as a statement made by
Mr. Ferguson on June 3, 1985, and confirmed that his accident
investigation report stated that Mr. Ferguson was not in the
direct line of fire of the shot. He also confirmed that he
issued no citations for the lack of proper shot stemming or
for the use of non-permissible shot powder.
In response to further questions, Mr. Oglesby stated
that he observed that the coal behind the shot had been fractured, and he further explained why he believed the shot was
unconfined and how the fractured coal indicated to him that
the shot could not be contained. He confirmed that
Mr. Ferguson's injuries were not the direct result of being
struck by the shot material, but that he suffered burns as
the result of dust or methane being ignited by the shot. He
also confirmed that had Mr. Ferguson been removed completely
out of the entry and area where he was working at the time of
the shot, the citations would not have been issued.
James

s. Bealmear testified that he worked for over

11 years for the Island Creek Coal Company, and has worked

for the respondent for the past 2 years. He stated that he
is a certified mine foreman by the State of Kentucky, and
that this certification qualifies him as a shot firer.
He
confirmed that he fired the shot in question between the
number 3 and 4 entries, and he stated that he loaded the drill
hole properly with two stemming devices and powder. After
loading the powder he pulled the. charge back with a wire
device to insure that it had not fallen through the drill hole
on the other side. He then stemmed the hole and had he had
any doubts that the charge had dropped or fallen through the
hole, he would have checked it. He confirmed that all of the
other drill holes were shot through except for the one which
blew out.
Mr. Bealmear stated that after loading the shot he
ordered a cutter man who was working the number 5 entry to

769

come out of the entry, and he then proceeded to the number 3
entry where he observed Mr. Ferguson. He flagged Mr. Ferguson
and warned him that he was going to fire a shot. Mr. Ferguson
responded that "he was o.k.", and after again giving the
required verbal signals, Mr. Bealmear fired off the shot from
his position shown on the sketch.
On cross-examination, Mr. Bealmear reiterated that after
warning Mr. Ferguson about the impending shot, Mr. Ferguson
told him to "go ahead, I'm o.k.". Mr. Bealmear explained
that the area marked "C" on the sketch was solid coal, and
that the "A" area had been shot. Since the drill h6les in
the area which had been shot were collapsed, he could not load
the shot from that side. He confirmed that he was familiar
with the permissibility shot firing regulatory requirements
and procedures, and indicated that the shot itself blew out
and not the coal. He confirmed that he did not know the depth
of the coal at the point where the hole was loaded, and that
he had no reason to believe that the shot would blow out.•
Although the face boss was aware that he was shooting, he did
not speak to the face boss before firing off the shot because
the boss is not expected to be in the area at all times.
Mr. Bealmear stated that he averages approximately 40
shots a day, and based on his experience as a shooter he did
not believe that there was a danger of the shot in question
blowing out at the time he set it off. He stated that the
drill hole had been shot half-way through on one side, and
that he loaded it from the other side to complete the shot.
Marvin H. Ferguson testified that he has 11 years of mining experience and that he is currently employed by the Island
Creek Coal Company. He confirmed that he was previously
employed by the respondent as a mechanic, and that on the morning of the accident he was temporarily asked to operate a
loader in the absence of the regular loader operator. He
stated that he had loaded out two or three cars of coal, but
stopped loading because additional cars had stopped coming to
the area. ae confirmed that he had parked his-loader and was
not loading at the time of the ignition in question.
Mr. Ferguson stated that he was aware of the fact that
Mr. Bealmear was going to fire a shot because he observed him
at the No. 3 entry and Mr. Bealmear warned him that he was
going to fire a shot. Mr. Ferguson stated that he told
Mr. Bealmear that he "was o.k.," and that after the initial
warning he proceeded to walk out of the entry and stopped by
the right side of the rib where he stooped down to await the
shot. He marked the spot where he was located when the shot

770

went off by an "X" on the sketch used at the hearing, and he
confirmed that Mr. Bealmear called out to him three times
with a warning prior to firing the shot.
On cross-examination, Mr. Ferguson stated that he does
not know Inspector Oglesby and could not remember speaking
with him in the hospital. He recalled speaking with someone
about the incident, and he explained that he was being
treated for burns, had undergone skin grafts, and was medicated during the 3 weeks that he spent in the hospital and
could not remember who the individual was. Mr. Ferguson
stated further that Mr. Bealmear had previously fired shots
in the mine and that on every occasion that he could recall
Mr. Bealmear always called out three warnings before firing a
shot. Mr. Ferguson also confirmed that during his employment
with the respondent he was always retrained annually in his
job tasks.
Docket No. KENT 85-159
Section 104(a) "S&S" Citation No. 2507418, issued on
March 18, 1985, cites a violation of 30 C.F.R. § 75.1403-S(g),
and the cited condition or practice states as follows:
"A
clear travelway was not provided on the 3A belt for 50 feet
starting 6 crosscuts inby the 3A header."
The citation was modified on March 20, 1985, as follows:
Citation No. 2507418 issued for a clear
travelway on the 3A belt for a distance of
50 feet, starting 6 crosscuts inby the 3A
header is modified to not require a travelway
in this area. This is due to adverse roof
conditions. This area has had a rock fall,
cribs have been installed and the top is too
bad to remove the cribs. However, the following stipulations will be followed:
Stop and
start switches shall be installed both inby
and outby the area; signs both inby and outby
the area; the belt will be stopped before
being examined; if any violations of Part 30
C.F.R. are observed, the belt will remain down
until corrections are made.
Section 104 (a) "S&S" Cita"'.:ion No. 2507612, issued on
April 16, 1985, cites a violation of 30 C.F.R. § 400, and the
cited condition or practice is stated as follows:
"Accumulations of float coal dust and coal dust was observed over previous rockdusted surf aces in the No. 4 unit belt conveyor

771

entry CI.D. 004-0) starting at the header and extending 6
crosscuts inby {approximately 300 feet) ranging in depth from
O to 6 inches."
Inspector George Newlin confirmed that he issued Citation No. 2507418 pursuant to section 75.1403-5(g) after
observing that a clear travelway was not provided on the 3-A
belt for 150 feet starting six crosscuts inby the 3-A header.
The area had been "cribbed out," and there was no way for the
belt walker to examine the belt or to do any cleaning or maintenance work on the belt because there was no 24-inch clearance on either side of the belt. Once a citation is issued
for such a condition, his supervisor has to go to the mine to
examine the area and inform the operator as to what is
required for compliance CTr. 742-743).
Mr. Newlin stated that in issuing the citation, he relied
on a previously issued safeguard notice of February 26, 1985
(exhibit P-22). The previous safeguard was issued for another
location where there was no 24-inch clearance on the beltline.
Inspector Newlin explained the effect of a previously
issued safeguard notice as follows (Tr. 779-781):
A. Under these conditions in that area. But
what I was wanting to say is, if I find another
condition at this same mine, without a travelway, even if they have gone by these rules, in
another area, I would still issue a citation.
JUDGE KOUTRAS:

Why would you do that?

A. Because these areas are something that was
set out; I mean, these stipulations was set
out for this location. And the next location,
whoever the man was that was making this judgment might make a different judgment for that
location. This doesn't give them a -- My.
original Safeguard tells them they've got ·to
have 24 inches throughout the mine.
JUDGE KOUTRAS: You mean to tell me that when
the· initial Safeguard Notice is issued because
a mine operator didn't maintain 24 inches
because of rib clearances, you give them 24,
and you give them the alternative means of
complying, the start and stop switches-A.

At that one time.

772

JUDGE KOUTRAS:
--at that one time, from that
point on the next time the mine operator comes
upon a condition where he has to build cribs,
that would reduce his travelway along the belt
line, do you mean to tell me that he's not
authorized to go ahead and put stop and start
switches in?
A.

No, sir.

JUDGE KOUTRAS: To comply with the previous
Safeguard Notice?
A.

No, sir.

JUDGE KOUTRAS:
But he has to have authorization from MSHA to do that before he does it?
A.

As far as a Safeguard Notice.

Inspector Franks was called by MSHA to further clarify
the safeguard procedure, and he explained it as follows (Tr.
782-784):
A.
If you go to a mine, and you find the conveyor belt where they don't have the 24-inch
clearance, you issue a Safeguard, providing
there's never been a Safeguard issued. We
issue a Safeguard requiring them to provide
the clearance.
The company will submit a letter or something
to the district manager. The district manager,
he's doing it, so I assume he has this authority to delegate it to somebody lower down, like
a supervisor.
Then this supervisor will go to this mine; and
he'll look at it. And the operator says,
"Boy, I've got bad top. Here, I've got water
comin' in here.
I just can't provide the
travelway."
Somebody has to make a decision, either an
inspector or supervisor looking at, too, it
nobody is pulling his leg, in other words.
And he'll decide, okay, you can not provide
the clear travelway.
But I'm going to make

773

some requirements that you are going to have
to do in addition to.
So he'll modify the
original Safeguard to this area only.
Now, I'll go back out there after everyone's
left, and I go on another conveyor. They's
already been a Safeguard issued in this mine,
and I find another condition, they don't provide the 24 inches of clearance.
I issue a
citation because there can't be but one Safeguard on that particular belt.
I refer back
to that Safeguard.
JUDGE KOUTRAS:
citation?
THE WITNESS:

Why would you issue the
Because that's the instructions.

JUDGE KOUTRAS:
Because there wasn't any clearance on either side?
A. Yes.
I refer back to that Safeguard, and
I write this citation.
I don't have the
authority to tell him, "Y.ou can go ahead and
violate the law." So I issue a citation. The
operator screams bloody murder.
"I can not
provide the clearance." So we'll go through
the same procedure again. He'll write a
letter to him. Somebody in higher authority
will come out and look at it to make the
determination.
On cross-examination, Mr. Newlin confirmed that he issued
the citation for lack of a 24-inch clearance on the cited belt
line caused by the installation of roof cribs which were put
in because of the roof conditions. He confirmed that the belt
in question was not a primary or secondary escapeway, and that
prior to the installation of the cribs there was no problem
with the belt.
He confirmed that he had previously inspected
the belt a week before on either March 14, or 15, but denied
that he required the respondent to crib out the belt for a
distance of 60 feet on both sides from rib to rib.
He stated
that "maybe I asked them to timber up the belt," and confirmed
that when he came back on March 18, he issued the citation,
and also issued another one for loose coal accumulations from
the end of the fall to the header CTr. 795-799).
Safety manager David Furgerson confirmed that the citation was issued because the timber and cribs on the beltline

774

eliminated the required 24-inch belt clearance. He confirmed
that the cited condition was not present prior to the installation of the cribs. He explained that once the respondent
determines that an entry is not "run on site like they
should," the cribs are taken down, and the belt is put back
in. Once this is done, if the roof conditions are adverse,
additional cribbing and timbers are installed, and the respondent must then apply for a waiver CTr. 800).
Mr. Furgerson stated that the area in question had
already been cribbed, and that when Mr. Newlin first observed
it he suggested that additional timbers be installed because
the area where the belt walkers were expected to travel "was
busted up. 11 The additional timbering was done on either
March 16 or 17, and when Mr. Newlin returned on March 18, he
issued the citation for lack of clearance on the belt.
Mr. Furgerson explained further as follows (Tr. 801-802):

* * * And I asked him about the citation,
which I really didn't have any trouble with
him writing because if he hadn't a wrote the
citation, then we would apply for a waiver and
another MSHA representative would have come
down and written the citation. We was going
to get the citation one way or the other.
Once we set the additional timbers in there,
whether a regular inspector finds it or
whether we find it and ask for a waiver, which
we have to do by law, we're going to get the
citation one way or the other. So I didn't
have no big problem with him that day with him
writin' it.
Mr. Furgerson explained that in situations where the
respondent cannot maintain 24-inch clearances on its belt
lines because of the installation of cribs due to adverse
roof conditions, it submits a letter to MSHA's district office
for a "waiver," and the request is normally ac.companied with a
mine map designating the affected area. The district office
will send one of its representatives to the mine to examine
the area in question. The representative will issue a citation and will then advise the respondent as to what is
required in lieu of the 24-inch required belt clearances.
MSHA may take a day or two, or possibly a week to act on the
request, and in the meantime the belt is continually used to
run coal (Tr. 804).
In the instant case, Mr. Furgerson stated that no violation existed until the respondent installed the additional

775

timbering. The timbers reduced the belt travelway, and this
prompted the issuance of the citation by Mr. Newlin (Tr. 806).
Mr. Furgerson later stated that he was not sure that
Mr. Newlin's request to install additional roof support timbers was for the location that he cited in this case (Tr.
818). MSHA's counsel made a proffer that if Mr. Newlin were
recalled, he would confirm that his prior request for roof
support was not for the same location he cited, and respondent's representative accepted this fact and stated "I have
no problem with that" (Tr. 819).
Inspector Dati testified that he conducted an inspection
on April 16, 1985, and issued Citation No. 2507612, after
finding accumulations of float coal dust and coal dust over
previously rock dusted surfaces along the No. 4 unit belt
conveyor entry along 6 crosscuts for approximately 300 feet.
He confirmed that the accumulations ranged in depth from 0 to
6 inches. He saw no belt rollers turning in coal accumulations, and he considered the belt headers to be possibl~ ignition sources.
On cross-examination, Mr. Dati stated that in certain
places he observed rock dust under the accumulations, and he
believed that the incombustible content of the rock dusted
accumulations was in compliance with the applicable standard.
He did not make any methane tests, and he saw no problems
with the belt headers which were wet. He did not know how
long the accumulations had existed prior to his inspection,
saw no one working to clean up the accumulations, and had no
indication as to when the area was to be cleaned. He believed
the violation was significant and substantial because he saw
no evidence of any attempts to clean up the accumulations, and
if the conditions were left unattended he believed that it was
reasonably likely that an ignition would occur. He confirmed
that he had no knowledge of any prior injuries or accidents in
the mine which may have resulted from similar coal
accumulations.
Findings and Conclusions
Docket No. KENT 85-105 - Fact of Violation
Citation No. 2507205
I conclude and find that the petitioner has established
by a preponderance of the credible evidence that the north
conveyor belt was not guarded on the bottom side where a
supply road passed under it. Section 75.1722 requires that
all exposed moving machine parts and belt conveyor drives,

776

heads, and tail pulleys which may be contacted by persons be
guarded to prevent persons from contacting the unguarded parts
or reaching behind the guard and becoming caught between the
belt and pulley.
In this case, the inspector was concerned that someone
could contact the belt idler pinch points by reachng in or
contacting the unguarded belt where men and equipment regularly passed under it. He was also concerned that someone
could be injured in the event the belt broke and "whipped
out" and struck someone. The evidence established that supplies were stored near the unguarded belt location where men
and equipment regularly passed under it, and the location had
been previously guarded by a metal mesh guard which had deteriorated. Respondent's safety manager conceded that someone
standing up in a piece of equipment while passing under the
unguarded belt could contact the exposed pinch points. Under
the circumstances, I find that a violation has been established and the citation IS AFFIRMED.
Citation No. 2507206
The testimony of the inspector establishes the existence
of loose coal and coal dust in the three cited entries and
crosscuts, and the respondent's safety manager, who was with
the inspector when the violation was noted and the citation
issued, confirmed the existence of the accumulations in question.
I conclude and find that a violation of section 75.400,
has been established, and the citation IS AFFIRMED.
Citation No. 2507208
The testimony of the inspector establishes that the packing gland for the cited loader motor was loose and that a
service wire for one of the headlights was cut and not insulated. Section 75.503, requires that all electrical face
equipment be maintained in permissible condition. The loose
packing gland and uninsulated cut wire rendered the loader
nonpermissible, and not in compliance with the ·requirements
of the cited standard. Respondent's safety manager did not
dispute the cited conditions, and while its maintenance director testified as to matters concerning the gravity of the
violation, he did not examine the loader and had no personal
knowledge as to the actual condition of the cited loader in
question.
I find that the petitioner has established a violation of section 75.503, and the citation IS AFFIRMED.

777

Citation No. 2507209
The evidence established that the methane monitor on the
cited loader was gobbed with oil and dirt. The citation
charges that because of this condition the monitor would not
work. The only evidence adduced by the petitioner to establish as a fact that the monitor would not work is the visual
observation of the inspector. The inspector did not test the
monitor and he testified that the methane monitor test button
located in the cab of the machine was functioning and operating properly.
Section 75.313 requires that the monitor be kept operative and properly maintained and frequently tested.
I cannot
conclude that simply because the cited monitor was gobbed
with dirt and oil that it was ipso facto inoperative. The
petitioner has the burden of establishing that the cited monitor was inoperative and the inspector conceded that a properly
administered test would have established this fact.
However,
he failed to conduct such a test, and I conclude and find that
the inspector's visual observations are insufficient to establish a violation in this case. Further, the respondent is not
charged with a failure to frequently test the monitor to determine whether it was operative and no evidence was presented to
establish that the inspector reviewed any records to determine
when the device was last tested or whether or not such tests
indicated that the monitor was inoperative. The citation IS
VACATED.
Docket No. KENT 85-141 - Fact of Violation
Citation No. 2508624
The testimony of the inspector establishes that the cited
high voltage cable was not guarded at the locations in question. The evidence also establishes that supplies were stored
under the cable at the cited locations and that in several
locations the cable was hung so low as to place it in a position of being damaged by equipment which was r.equired to pass
under it. Further, the unrebutted testimony of the inspector
establishes that men and equipment regularly passed under the
cable while storing and retrieving the supplies and that the
unguarded cable could readily be contacted by these individuals. The inspector also indicated that the cable was lying
on the mine floor at several locations.
Section 75.807 requires that all underground high voltage
cables be guarded where men regularly work or pass under them.

778

In this case, the evidence establishes that the cable in question was not guarded with the type of guarding material normally used by the respondent for this purpose.
Under the
circumstances, the citation IS AFFIRMED.
Citation No. 2508625
In his defense of Citation No. 2508625, for failure to
maintain the explosives magazine in good condition, respondent's representative suggested that Inspector Franks should
have cited mandatory section 75.1304, which requires that
explosives or detonators which are carried by persons anywhere
in the mine be in containers which are maintained in good condition and kept closed. Respondent asserted that since the
citation charges that the doors of the cited explosives magazine were not closed due to the warped condition of the doors,
and since the magazine was not kept in "good condition"
because of the damage to the doors, Mr. Franks should have
cited section 75.1304, rather than 75.1306. Respondent also
argued that a miner could "carry" the magazine in question by
pulling it with a scoop (Tr. 658-661).
The respondent's assertion that Inspector Franks should
have cited section 75.1304, is rejected.
I conclude that this
section is intended to apply in cases where explosives or detonators are hand carried in bags or containers suitable for
this purpose by the shooter to the location where he is to
fire a shot. The cited section 75.1306, requires that explosive magazines be of substantial construction with no metal
exposed on the inside. The evidence in this case clearly
establishes that the cited magazine was damaged and that the
doors were warped and could not close. Respondent's safety
manager Hibbs confirmed that this was the case. Because of
this condition, the doors could not close, and the interior
metal construction of the magazine was exposed. Under the
circumstances, I conclude and find that the magazine was not
of substantial construction and that the cited conditions
constitute a violation of section 75.1306. Aqcordingly, the
citation IS AFFIRMED.
Citation No. 2508627
The testimony of the inspector establishes the existence
of accumulations of loose coal and coal dust along the ribs
of the number four unit belt as stated in the citation and
the respondent offered no testimony or evidence to rebut this
fact.
Accordingly, I conclude and find that the petitioner
has established a violation of section 75.400 by a preponderance of the credible evidence, and the citation IS AFFIRMED.

779

Citation No. 2507611
The testimony of the inspector establishes the existence
of accumulations of coal dust and float dust along the number
3-A belt conveyor entry as described by the inspector in his
citation, and the respondent's safety manager confirmed the
existence of these accumulations. Accordingly, I conclude
and find that the petitioner has established a violation of
section 75.400 by a preponderance of the credible evidence,
and the citation IS AFFIRMED.
Citation No. 2507618
The testimony of the inspector establishes that the high
voltage cable hung across the number three entry haulage road
was not protected as required by section 75.807. The respondent's safety manager Hibbs conceded that the cable was not
guarded, but believed that no one had any reason to travel
under the cable. However, in this case, the evidence establishes that the inspector and Mr. Hibbs passed under the cable
while in a golf cart, and the inspector observed equipment
traveling the haulage road and he believed that since it was
the main haulageway men and equipment would regularly pass
under the cable.
In addition, the evidence also establishes
that the cable guard was apparently knocked off by a piece of
equipment and the inspector observed it on the mine floor
nearby the location in question. Under the circumstances, I
conclude and find that the petitioner has established a violation by a preponderance of the evidence, and the citation IS
AFFIRMED.
Docket No. KENT 85-142 - Fact of Violation
Citation No. 2507619
In this case the respondent is charged with a violation
of section 75.807, for an alleged failure to guard a high
voltage cable hung across a crosscut between the number 2 and
3 entries. The cited standard requires that such a cable be
guarded where men regularly pass under it.
Respondent's argument is that there is no evidence as to
when the cable was hung at the location where the inspector
found it, and that Inspector Dati had no knowledge as to
where mining was taking place or where the power center was
located.
Respondent's representative asserted that the testimony of Mr. Hibbs supports a strong reference that the equipment tire tracks observed by Inspector Dati were made prior

780

to the time the cable was advanced to spad 12-80, and that it
is not unusual for tire tracks to be present at crosscuts
throughout the mine at any given time.
The only evidence to support the citation is the testimony of Inspector Dati that he saw tire tracks under the
cable. Mr. Dati conceded that there were other means of
access and travelways to the area where mining was being conducted on the unit, and he candidly admitted that he had no
way of determining whether or not the tire tracks were made
prior to or after the installation of the cable in question
(Tr. 354).
Mr. Dati referred to his notes made at the time of the
inspection, but they contained no information as to the location of the power center, and he candidly conceded that he
could not remember in which entry the power unit was located,
nor could he remember where the brattice line was installed
or where the unit was operating (Tr. 356). He also could not
remember how long it took to develop the crosscuts, and he
conceded that if the unit were operating "straight ahead,"
the equipment would not have to pass under the cable (Tr.
356). Mr. Dati did not know how much time had passed prior
to the advancing of the cable to the location where he
observed it, and he confirmed that it was probably more than
one shift. He also confirmed that equipment could have
passed through other crosscuts, that the cited location was
just one of many ways for the unit to advance (Tr. 359), and
that he spoke with none of the equipment operators to determine whether they may have passed under the cable (Tr. 365).
Mr. Dati confirmed that he observed no cable damage,
abrasions, or scuff marks indicating that the cable had ever
been struck by equipment passing under it, and he confirmed
that the cable was equippped with an operative ground check
monitoring device (Tr. 371, 386).
Section 75.807, requires that high voltage cables be
covered, buried, or placed so as to afford protection against
damage, and guarded where men regularly work or pass under
them.
In support of the citation, MSHA's counsel argued that
Mr. Dati's observations of the tire tracks passing under the
cable is sufficient to establish that men regularly passed or
worked under the cable. Counsel also asserted that the evidence establishes that the cable was not guarded against
damage, and that the essence of the citation issued by Inspector Dati was the prevention of both physical damage to the
cable and injury to miners who may have come in contact with
it.

781

In the case of Secretary of Labor v. Keystone Coal
Mining Corporation, decided by Chief Merlin on December 28,
1979, 1 FMSHRC 2154, 1 MSHC 2301 C1979), Judge··Merlin vacated
a citation for an alleged violation of section 75.807, based
on his finding that the evidence established that a storage
area to which miners were going had been moved 200 feet inby
an unguarded cable before the issuance of the citation. Judge
Merlin rejected the inspector's assertion that he cited the
travelway areas where the cable was hung because he believed
men regularly worked on passed under the cable while traveling
the crosscuts to get supplies from the storage area~ Judge
Merlin accepted the testimony of the operator's safety inspector that the crosscuts were no longer supply areas because
mining had advanced 200 feet beyond the cited areas, and he
concluded that the evidence did not establish that men regularly worked or passed under the cable in question.
In the instant case, it seems clear to me that Inspector
Dati issued the citation because he believed that miners were
travelling under the unguarded cable. However, I conclude
and find that there is no credible testimony or evidence to
establish that men regularly worked or passed under the cable.
Apart from his observations of the tire tracks, after viewing
Inspector Dati on the stand, and upon careful examination of
his testimony, I am convinced that he had no idea where mining was taking place, where the power center was located, or
in which direction the unit was being driven.
In short, I
cannot conclude that there is any credible evidence to
support an inference that men or equipment passed under the
cable after it was advanced and installed at the location
where it was found by the inspector.
The evidence establishes that there were other means of
travel to the area.where men and equipment would go to reach
the area where mining was being conducted, and the testimony
of Mr. Hibbs, although somewhat confusing, convinces me that
the direction of mining and the location of t~e power center
were such as to support a conclusion that the ~ire tracks
observed by Mr. Dati were made before the cable in question
was advanced and installed. Under the circumstances, I conclude and find that MSHA has failed to establish by any credible evidence that men regularly worked or passed under the
cable in question, and that it was required to be guarded.
MSHA's contention that the cable was not otherwise protected against damage is rejected. The standard requires
guarding only in instances where men regularly work or pass
under it.
If they do not, the cable must be covered, buried,

782

or placed so as to afford protection against damage. On the
facts of this case, there is no evidence that the cable was
damaged or even scuffed or marked, and there is no evidence
that it was in any area where it would likely be damaged.
The evidence establishes that the cable was hung up approximately 4-1/2 to 5 feet off the floor, and was properly insulated. Under the circumstances, I conclude and find that the
cable was placed so as to afford it protection against damage,
and that it was in compliance with the requirements of section
75.807. In view of the foregoing findings and conclusions,
the citation IS VACATED.
Docket No. KENT 85-167 - Fact of Violation
Citation No. 2507619
The testimony of the inspector establishes that the methane monitor for the cited loader in question was bridged out
and had a disconnected wire which rendered it inoperative,
and the respondent's mine foreman Whitledge and safety manager Furgerson confirmed this fact. Further, the inspector
confirmed that when he activated the methane monitor test
button on the machine, it would not deenergize the machine.
Mandatory safety standard 75.313 requires that methane
monitors which are installed on loading machines are to be
kept in an operative condition and properly maintained. They
are also required to be tested as prescribed by MSHA. On the
facts of this case, it is clear to me that the cited methane
monitor was not maintained on an operative condition as
required by section 75.313. I conclude and find that the
petitioner has established a violation by a preponderance of
the credible testimony, and the citation IS AFFIRMED.
MSHAvs request to reopen the record in Docket No.
KENT 85-167, for additional testimony by the inspector was
denied (Tr. 820).
Docket No. KENT 85-180
Citation No. 2507175
The respondent is charged with a violation of section
75.1303 for failure to insure that loader operator Marvin
Ferguson was not in the clear when the shot was fired by
shooter Bealmear. Section 75.1303 requires that all explosives and blasting devices be used in a permissible manner.
In issuing the citation, Inspector Oglesby made reference to
the explosives permissibility requirements of 30 C.F.R.

783

§ 15.24, Section 5(b)(l6), which states as follows: "Ample
warning shall be given before shots are fired, and care shall
be taken to ascertain that all persons are in the clear. Men
shall be removed from adjoining working places when there is
a danger of a shot blowing through."

The evidence establishes that at the time the shot was
fired, Mr. Ferguson was still in the adjacent working place
but was not in the direct path of the shot which blew out.
The evidence also establishes that Mr. Ferguson received
ample verbal warnings from Mr. Bealmear, was aware. that a
shot was to be fired, and was doing no work at the time the
shot was detonated.
However, it is clear that Mr. Bealmear
did not remove Mr. Ferguson from his working place before
firing the shot.
Mr. Bealmear apparently believed that Mr. Ferguson was
safe, and he obviously relied on Mr. Ferguson's judgment
rather than his own since Mr. Ferguson indicated that he· was
out of danger. Mr. Bealmear stated that after warning
Mr. Ferguson he proceeded to the number 5 entry and "got the
cutter man out." He then proceeded to the number 3 entry and
again warned Mr. Ferguson before firing the shot (Tr. 134).
He later stated that he simply warned the cutter man and that
he came out of the entry voluntarily and that he saw him come
out of the entry. Mr. Bealmear stated that he did not know
whether he would have refused to shoot if the cutter man had
not come out of the entry, and he confirmed that he did not
believe the shot would come through (Tr. 150-151).
I fail to understand why Mr. Bealmear did not order
Mr. Ferguson out of the entry or wait to see that he was completely out before firing the shot. Mr. Ferguson indicated
that when he was initially warned he proceeded on his way out
of the entry, but stopped short at the rib after the second
warning and stooped against the rib. Under the circumstances,
I conclude and find that Mr. Bealmear failed to exercise care
in ascertaining that Mr. Ferguson was completely out of the
entry where he had been working before he fired the shot.
I
find that a violation has been established, and the citation
IS AFFIRMED.
Citation No. 2507176
Inspector Oglesby issued the citation charging a violation of section 75.1300, because he believed that the shot
fired by Mr. Bealmear was an "unconfined" shot.
Section
75.1300 prohibits the firing of such shots underground.
Mr. Oglesby defined an "unconfined shot" as one which is fired

784

without at least 18 inches of overburden material around it.
Blasting permissibility standard section 15.24, Section
5(b)(6) provides that "all blasting charges in coal shall have
a burden of at least 18 inches in all directions if the height
of the coal permits." Mr. Oglesby concluded that the shot was
unconfined by the appearance of the shot hole after it had
been fired and the fact that the shot blew out (Tr. 79). He
testified that he did not know the type of explosive used by
Mr. Bealmear and could not determine whether the shot had been
stemmed. However, he confirmed that no citations were issued
for lack of proper stemming or nonpermissible explo~ives.
Inspector Oglesby further explained that an unconfined
shot is one which has no material around the shot placed in
the borehole to confine it. He indicated that stemming is
placed around the loaded powder charge to keep it from blowing back out of the hole, and if the charge is not stemmed
the borehole "would be just like a muzzle of a gun and the
flame would shoot out the hole" (Tr. 60).
MSHA's counsel took the position that if a blowout
occurs, one can conclude that the shot was not confined, and
if a blowout does not occur, one may conclude that the shot
was confined (Tr. 61).
In this regard I take note of the
definition of a "blown-out shot 11 found in the Dictionary of
Mining, Mineral, and Related Terms, U.S. Department of the
Interior, 1968, at pg. 1004. Such a shot is defined as "a
shot which merely throws out the stemming without loosening
much of the coal." In this case, the evidence establishes
that the shot itself blew out and apparently ignited coal
dust or methane which caused the explosion resulting injuries
to Mr. Ferguson, and that none of the coal surrounding the
shot hole was disturbed or blown out.
Inspector Oblesby's conclusion that there was insufficient overburden less than 18 inches around the shot hole was
based on his assumption that sufficient overburden would have
prevented the blow-out (Tr. 68).
He also considered the fact
that the top coal appeared to be cracked and loose and that
the surrounding coal immediately behind the shot on the
number 3 entry side was broken and fractured (Tr. 68, 74).
Mr. Oglesby further explained his perception of an unconfined
shot as follows (Tr. 82-84):

Q. What is the difference between a blowout
and an unconfined shot?
A. An unconfined shot, to me, is the one that
doesn•t have any burden around it, 18 inches.

785

A blowed-out shot is one that makes a hole
that they didn't put stemming in where it
blows out.
Q. When MSHA talks about shooting unconfined
shots and adobe shots, what is the primary
purpose of their meaning of that law?
A.

What is the reason for the law?

Q. No. What is their meaning behind what an
unconfined shot is or an adobe shot is?
A.
It's to keep people from shooting unconfined shots with concussion of the shot
itself.
Q. Is there any difference between shooting a
lump of coal that has a drill hole in it and
laying a piece of powder on top of a rockfall
and shooting that?
A.

Sure.

Q.

What's the difference?

A. You have an unconfined shot where you are
putting the powder on top of the rock.
If you
drilled the piece of coal, put your powder in
it, put a stemming device in it, that's
confined.
When asked about his interview with Mr. Bealmear during
the course of his investigation, Mr. Oglesby responded as
follows (Tr. 94)~
JUDGE KOUTRAS:
Did he explain to you how he
loaded the shot?
A.

No.

JUDGE KOUTRAS:

He didn't?

A. No, just saying there was one stick of
powder in it.
JUDGE KOUTRAS:
he loaded it?

You didn't ask him about how

786

A. He told us how he loaded it, how he put
the one stick in.
JUDGE KOUTRAS:
go 18 inches?

Did he use stemming?

A.
I don't remember.
part of it.
JUDGE KOUTRAS:
A.

Did he

I don't remember that

was it confined?

I don't remember that, no, sir.

Mr. Bealmear testified that he loaded the shot hole in
question with one stick of powder, tamped the hole, and
pulled back on the wire to insure that the powder did not
drop through the hole. He confirmed that he stemmed the hole
by inserting "water dummies" behind the powder (Tr. 132-133).
He confirmed that he had spoken with certain state inspectors
when the Kentucky State Department of Mines investigated the
incident. When asked about a statement attributed to him in
the state report that he "felt the powder push through but
that he pulled in back in place" {exhibit P-10, pg. 5),
Mr. Bealmear explained that the powder did not fall through
the hole and that he simply pulled back on the wire to make
sure the powder was still sliding in the hole (Tr. 172-173,
176).
Mr. Bealmear stated that the drill hole which he loaded
had been previously drilled and shot from the other side but
did not go all the way through. He did not know the depth of
the hole and he conceded that after pulling the wire to
insure that the powder was sliding in the hole, he did not
push the powder all the way back to the end of the loose hole
(Tr. 176-178). He also conceded that he knew the coal would
shoot through but did not know that it would ignite (Tr.
178).
Ref erring to a sketch of the scene of the ·detonation,
(exhibit R-1), Mr. Bealmear conceded that his prior shot from
the number 3 entry could possibly have weakened or fractured
the coal in that area. He confirmed that the back of the
hole which he loaded from the number 4 entry side would be
the area which he had previously shot (Tr. 166). Given these
circumstances, he expected that the coal would blow through
but never expected an ignition to occur because he did not
believe that coal blowing through the hole could ignite methane or coal dust (Tr. 167).

787

After careful consideration of all of the testimony and
evidence adduced in this case, I conclude and find that it
supports a conclusion that the shot or blow out in question
was an unconfined shot in violation of section 75.1300.
The
evidence establishes that the coal strata behind the shot and
at the end of the hole which had been loaded had been fractured and loosened by a prior shot, and had failed to confine
the shot in question.
The evidence also leads me to conclude
that by failing to push the powder charge all the way to the
end of the previously drilled and shot hole, and then stemming it completely, Mr. Bealmear had no way of knowing the
distance between the charge and the end of the weakened or
loosened hole, and that this contributed to the apparent lack
of total confinement of the charge which was detonated. The
citation IS AFFIRMED.
Docket No. KENT 85-159 - Fact of Violation
Citation No. 2507418
The respondent in this case is charged with a violation
of the safeguard provisions of section 75.1403-5(g), for failure to provide a clear travelway along a conveyor belt for a
distance of 50 feet.
In issuing the citation, Inspector
Newlin relied upon a previously issued safeguard notice
(2507409) on February 26, 1985, in conjunction with MSHA
supervisory inspector George Siria (exhibit P-22). The previous notice was issued because "A clear travelway was not
maintained on the 3-C belt for 150 feet starting 450 feet
inby the 3-C header," in violation of section 75.1403-5(g),
which provides as follows:
A clear travelway at least 24 inches wide
should be provided on both sides of all belt
conveyors installed after March 30, 1970.
Where roof supports are installed within
24 inches of a belt conveyor, a clear travelway at least 24 inches wide should be provided
on the side of such support farthest from the
conveyor.
After Mr. Newlin issued his section 104(a) citation of
March 18, 1985, on the number 3-A belt, Mr. Siria modified it
on March 20, 1985, and imposed the same "stipulations" for
that belt as he had done for the number 3-C belt.
Inspector
Dati terminated the citation on April 12, 1985, after noting
that "The operator installed start and stop switches on both
inby and outby of the area and also posted signs."

788

Mr. Newlin explained that after he issued the safeguard
notice on February 26, 1985, Mr. Siria visited the mine for
the purpose of determining what was required to achieve compliance. After Mr. Siria issued his safeguard requirements
for the 3-C belt, they became applicable to any future belt
conditions of the same type found in the mine. Since he
found similar conditions on the 3-A belt on March 18, 1985,
Mr. Newlin issued section 104(a) Citation No. 2507418, because
the belt was not provided with the required travelway
clearances.
Mr. Newlin's citation was terminated by MSHA Inspector
Dennis Dati on April 12, 1985, and his termination notice
reflects that it was terminated after "The operator installed
start and stop switches both inby and outby of the area and
also posted signs."
MSHA's position is that a safeguard notice applies to
any underground location in the mine. However, any modification made to the safeguard notice would only apply to the
particular location for which it was issued and not to other
mine areas (Tr. 767-768).
In the instant case, MSHA's
counsel asserted that although the previously modified safeguard notice of February 26, 1985, eliminated the requirement
for a clear travelway at the location for which that safeguard
was issued, it did not authorize the respondent to unilaterally not provide clear travelways at other belt locations
which were required to be examined, traveled or maintained
(Tr. 747-750).
MSHA's counsel asserted that the citation issued by
Inspector Newlin in this case was issued because of the failure by the respondent to provide clear travelways of at least
24 inches along the cited beltline as required by section
75.1403-S(g). Once the citation issued, supervisory inspector Siria modified the citation for that particular location
by imposing stipulations requiring stop and start switches,
signs, and a requirement that the belt be stopped before
being examined. Once these stipulations were in place, the
safeguard, as modified by Mr. Siria, became a requirement for
that location, but the respondent was still required to maintain clear travelways at other locations in compliance with
section 75.1403-S(g) (Tr. 747-753).
Inspector Newlin explained that by requiring the respondent to adhere to the stipulations for providing a means of
access to the beltline at locations which have been cribbed
out because of adverse roof conditions, MSHA is in effect
providing the belt examiner with a "walkway," i·.§.·, the belt

789

itself, as a means of exam1n1ng the belt. Once this is done,
compliance with section 75.1403-5Cg) is achieved (Tr. 756).
MSHA's counsel conceded the fact that by cribbing out
the beltline where an adverse roof condition exists, the
respondent solved one problem, but created another, by exposing itself to a citation for not having clear travelways as
required by section 75.1403-S(g) (Tr. 757). Counsel asserted
that the safeguard provisions present unique situations in
that once MSHA is made aware of a problem, it may impose a
safeguard to address that problem.
In the instant case,
counsel pointed out that rather than requiring the respondent
to tear out the beltline and move it to another entry where
the roof conditions were better and did not require cribbing,
it imposed certain safeguard stipulations for that particular
location. However, the requirements for clear travelways at
other locations still remained in effect (Tr. 757-760).
MSHA's counsel asserted that each incident of roof cribbing which results in the effective elimination of the travelway must be individually addressed, and the mine operator may
not simply go ahead and install stop and start switches and
claim that it is in compliance. MSHA must first examine the
conditions before authorizing the implementation of alternative means of compliance, and the operator may not unilaterally take these additional steps (Tr. 760-761). Even if the
respondent in this case had installed the stop and start
switches at the place which was cited, it would still be in
violation of the clear travelway requirement of section
75.1403-S(g), because it would not have had MSHA's approval
to modify the clear travelway safeguard requirements for that
location (Tr. 762-764; 766-7fi7).
MSHA's counsel further explained the safeguard procedures
as follows (Tr. 790-791):
MR. GROOMS: The only analogy I can think of
is a form of abatement, your Honor. It's a
form of abatement that's peculiar to the issuance of Safeguards.
Issuance of Safeguards is
a peculiar thing in itself.
It's the Secretary making a judgment about what the law is
going to be in a particular mine.

*

*

*

*

*

*

*

MR. GROOMS:
It seems to me the analogy to
abatement may be right in the sense that in a

790

statutory standard they may have some alternatives to abatement. You may danger off the
area rather than repair the roof. You may
seal off the mine.
In this case you may do a
different thing by the procedures that have
been established that you don't provide a
clear way for that one spot in the mine.
Respondent's representative confirmed the procedures for
notifyng MSHA with respect to obtaining a waiver of the
requirements for maintaining belt walkway clearances as
required by section 75.1403-5(9), and he explained that as a
practical matter if the roof conditions are bad the respondent installs the cribs immediately in order to support the
roof and MSHA is later notified. He agreed that even if the
inspector in this case advised the respondent to install
cribs for roof support, such a request was not unreasonable
(Tr. 818).
The evidence adduced in this case establishes that the
cited belt conveyor travelway in question was not provided
with the clearances required by the cited safeguard standard.
The evidence also establishes that the respondent had adequate
notice as to the requirements of the previously issued safeguard and that it was aware of the procedures followed by MSHA
for issuing such safeguards at the mine. Under the circumstances, I conclude and find that the petitioner has established a violation by a preponderance of the evidence, and the
citation IS AFFIRMED.
Citation No. 2507612
The testimony of the inspector establishes the existence
of float coal dust and coal dust along the belt conveyor on
the number 4 unit. The accumulations were extensive and the
inspector saw no evidence of any clean-up efforts by the
respondent.
The respondent offered no testimony in defense
of the violation.
I conclude and find that th_e evidence
adduced by the petitioner supports a violation-of section
75.400, and the citation IS AFFIRMED.
History of Prior Violations
Exhibit P-2 is an MSHA computer print-out summar1z1ng
the respondent's compliance record for the period April 26,
1983 through April 25, 1985. That record reflects that the
respondent paid civil penalty assessments totaling $92,243
for 893 violations. Three-hundred and thirty-one of the citations are paid $20 "single penalty-non S&S" citations.

791

Thirty-eight are paid assessments for violations of the guarding requirements of section 75.1722(a), Cb) or (c); 173 for
violations of 75.400 (coal accumulations); 72 for violations
of 75.503 (permissibility); 14 for violations of 75.807 {cable
guards}; 6 for violations of 75.1306 (explosive storage); 14
for violations of 75.313 (methane monitors); and one violation
for the safeguard requirements of 75.1403-S(g}. No prior paid
violations of the blasting requirements of 75.1300 or 75.1303
are noted.
Exhibit P-1 is a computer print-out covering the respondent's history of prior violations for the period January 29,
1983 through January 28, 1985. Some of the information is
included in exhibit P-2. I have considered all of the information pertaining to the respondent's history of prior violations, and this is reflected in the penalty assessments made
by me for the violations which have been affirmed.
Size of Business and Effect of Civil Penalties on the
Respondent's Ability to Continue in Business
The parties have stipulated as to the scope of the
respondent's mining operations and agreed that the payment of
civil penalties will not adversely affect the respondent's
ability to continue in business.
I conclude that the respondent is a large mine operator and that the payment of the
assessed penalties in these proceedings will not affect its
ability to continue in business.
Good Faith Abatement
The parties stipulated that all of the conditions and
practices cited as violations in these proceedings were
abated in good faith by the respondent.
I agree, and I conclude that the respondent exercised good faith in abating the
cited violations.
Negligence
I conclude and find that all of the violations which
have been affirmed in these proceedings resulted from the
respondent's failure to exercise reasonable care to insure
compliance with the requirements of the cited mandatory standards.
I further conclude and find that the respondent knew
or should have known about the cited conditions and that its
failure to insure against such conditions constitutes ordinary negligence. With regard to Citation No. 2507176,
(Docket No. KENT 85-180), concerning the unconfined shot, the
inspector indicated that in view of the fact that the shot

792

was unintentional, the degree of negligence was considered as
low (Tr. 94-95). I agree, and adopt this as my conclusion
with respect to this violation.
Gravity
I conclude and find that all of the citations which have
been affirmed in these proceedings were serious. The
unguarded belt was in an area where miners congregated and
where a roadway passed under the belt and it presented a
hazard in that someone could have inadvertently come in contact with the unguarded belt pinch points.
The loose coal and float coal dust accumulations violations presented a fire and explosion hazard. None of the
cited accumulations had been cleaned up and the inspectors
observed no indication as to any cleanup efforts by the
respondent. Although one citation (2507206) concerned accumulations in a neutral return where active mining was not taking place, the remaining three citations (2508627, 2507611,
2507612) concerned rather extensive accumulations of loose
coal and coal dust, some of which was in contact and turning
in belt rollers, and ignition sources such as a cable and
belt headers were present. Although the evidence indicated
that one location was wet and that other locations were properly rockdusted, the fact remains that all of the cited accumulations presented a fire hazard.
In the event of a fire or
ignition, the accumulations presented a real potential for
fueling a fire or contributing to its severity.
The unguarded high voltage cable violations were at locations where men or equipment passed under them, and presented
a hazard in that miners could contact the cables and equipment could have damaged the cable.
In one instance, the evidence indicated that one of the cable guards had apparently
been knocked off by a piece of equipment.
In another, the
cable was lying on the floor at several locations. Although
the respondent established that its high voltage cables are
protected by short circuit monitoring devices and are of a
high quality, the fact remains that the failure to guard the
cable exposed it to potential damage or contact by miners.
The purpose of the guard is to prevent these occurrences, and
in the event of cable failure or an inoperative monitoring
device, miners would be exposed to a hazard.
The permissibility violation concerning the L23 loader
presented a potential shock hazard to anyone contacting the
uninsulated and cut headlight wire, and the loose packing
gland presented a hazard in that it did not serve the purpose

793

of securing the cable which passed through it. Although the
inspector did not determine whether the wire was "hot," it
may have been, and the operator had no way of knowing it when
the machine was in operation. The permissibility violation
concerning the methane monitor which had been bridged out
rendered the monitor inoperative, and when tested, it would
not deenergize the machine. In the event methane were encountered while the machine was in operation, the failure to
deenergize it would present a possible explosion or ignition
hazard.
The explosive magazine violation presented a hazard in
that the failure of the doors to close tight rendered the
magazine less than a secure storage area and exposed the
explosives to possible damage.
The unconfined shot violations resulted in an explosion
when the shot apparently ignited coal dust or methane and
injured two miners. Both miners suffered burns, and one· of
them was hospitalized with serious burn injuries. The failure to remove that miner from his working place resulted in
injury to that miner, as well as the shooter.
The safeguard violation concerning an inadequate clearance along a beltway presented a hazard in that the belt
walker was precluded from making his normal inspection of the
belt. The obstruction caused by the installation of roof
cribs prevented the examination of the belt for a distance of
50 feet, and any hazardous conditions which may have been
present would go undetected.
Significant and Substantial Violations
A "significant and substantial" violation is described
in section 104Cd)(l) of the Mine Act as a violation "of such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard." 30 C.F.R. § 814Cd)(l). A violation .is properly
designated significant and substantial "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will
result in an injury or illness, of a reasonably serious
nature." Cement Division, National Gypsum Co., 3 FMSHRC 822,
825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "signif icant and substantial" as follows:

794

In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary of Labor must prove:
Cl) the underlying
violation of a mandatory safety standard; (2)
a discrete safety hazard--that is, a measure
of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that
the hazard contributed to will result in an
injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably.
serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129, the Commission stated further as follows:
We have explained further that the third
element of the Mathies formula "requires that
the Secretary establish a reasonable likelihood that the hazard contributed to will result
in an event in which there is an injury." U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance
with the language of section 104Cd)(l), it is
the contribution of a violation to the cause
and effect of a hazard that must be significant
and substantial. U.S. Steel Mining Company,
Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
St'eel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
Incorporating by reference my gravity findings, and
applying the principles of a "significant and substantial"
violation as articulated by the Commission in the af orementioned decisions, I conclude and find that with two exceptions, (Citation No. 2507206-coal accumulations and Citation
No. 2508625-improperly maintained explosive magazine), the
remaining violations were all significant and .substantial,
and the findings by the inspectors in this regard ARE
AFFIRMED.
I conclude and find that in terms of continued normal
mining operations, the evidence presented supports a conclusion that there was a reasonable likelihood that the cited
conditions could contribute to the hazards resulting from the
violative conditions in question. These hazards are noted in
my gravity findings, i.e., contact with unguarded pinch
points, possible fire-or explosion resulting from accumulations of loose coal and coal dust, high voltage cable contact

795

by miners or damage to cables by equipment because of lack of
proper guards, shock hazard through contact with uninsulated
loader wire, inoperative methane miner on loader, injuries
resulting from the unconfined shot and failure to remove a
miner from his working place resulting in his injuries, and
the failure to provide adequate belt clearance for examination of the belt for possible hazardous conditions.
In each
of these instances, had the events noted occurred, I believe
it is reasonable to conclude that the injuries produced could
be of a reasonably serious nature.
With regard to Citation No. 2507206, the cited coal
accumulations were found in a neutral belt entry where no
active mining was taking place. The active faces had advanced
beyond the area where the accumulations were located, and the
inspector saw no evidence of any equipment passing through the
area, and he confirmed that no immediate ignition sources were
present. The inspector found negligible amounts of methane,
and issued no citations for lack of adequate rock dusting.
He
also confirmed that the closest mining taking place was two
crosscuts (100 feet) away, and that the face area was approximately 180 feet from the area where the accumulations were
present. Given these circumstances, I cannot conclude that
MSHA has presented any credible evidence to support a conclusion that there was a reasonable likelihood that an accident
or injury would occur. While I have concluded that the accumulations violation was serious, I cannot conclude that it was
significant and substantial, and the inspector's finding IS
VACATED.
With regard to Citation No. 2508625, the inspector
believed that the improperly maintained explosives magazine
violation was significant and substantial in that it was reasonably likely that it would be struck by a piece of equipment if it were to be moved about the unit. On the facts of
this case, I find this hardly unlikely. The magazine was
positioned on a track, and the photograph exhibits of a comparable magazine reflect that it is of steel construction and
mounted on wheels and protected by a steel superstructure
which surrounds the vehicle. The respondent's unrebutted
testimony is that when the magazine is moved, the wheels are
in a down position, and that in this position, it is impossible to move the magazine with the doors opened because they
would s~rike the wheels.
The inspector agreed that in its parked position, the
magazine posed no hazard. Although he alluded to a possibility of a piece of coal finding its way into the opened doors
and detonating the explosives which were stored inside, there

is absolutely no evidence of any actual or planned blasting
taking place in the area where the vehicle was parked, nor is
there any evidence that the magazine was parked in a location
which may have posed a hazard from a roof fall or other
similar incident. Under the circumstances, although I have
concluded that the violation was serious, I cannot conclude
that the petitioner has established that it was significant
and substantial. The inspector's finding in this regard IS
VACATED.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llO(i) of
the Act, the following civil penalties are assessed by me for
the violations which have been affirmed.
Docket No. KENT 85-105
Citation No.

Date

2507205
2507206
2507208

1/29/85
1/30/85
1/31/85

30 C.F.R. Section
75.1722
75.400
75.503

Assessment
$ 125
$ 150
$ 135

Docket No. KENT 85-141
Citation No.

Date

2508624
2508625
2508627
2507611
2507618

4/11/85
4/11/85
4/11/85
4/12/85
4/13/85

30 C.F.R. Section
75.807
75.1306
75.400
75. 4 0 0
75.807

Assessment
$ 125
$ 150

$ 200
$ 200
$ 150

Docket No. KENT 85-167
Citation No.

Date

2507503

3/21/85

30 C.F.R. Section
75.313

Assessment
$ 750

Docket No. KENT 85-180
Citation No.

Date

2507175
2507176

3/11/85
3/11/85

30 C.F.R. Section
75.1303
75.1300

797

Assessment
$1,000
$ 600

Docket No. KENT 85-159
Citation No.

Date

30 C.F.R. Section

Assessment

2507418
2507612

3/18/85
4/16/85

75.1403-5(g)
75.400

$ 100
$ 200

ORDER
The respondent IS ORDERED to pay the civil penalties in
the amounts shown above within thirty (30) days of the date
of these decisions.
Payment is to be made to MSHA, and upon
receipt of same, these proceedings are dismissed.
Citation No. 2507209 (Docket No. KENT 85-105), and Citation No. 2507619 (Docket No. KENT 85-142), ARE VACATED.

/'4/!l-~k
e,A\. Koulfrs~
istrative Law Judge
Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S.
Department of Labor, 280 U.S. Courthouse, 801 Broadway,
Nashville, TN 37203 (Certified Mail)
Mr. Bruce Hill, Safety Manager, Pyro Mining Company, P.O.
Box 267, Sturgis, KY 42459 (Certified Mail)
/f b

798

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

May 7, 1986
CIVIL PENALTY PROCEEDINGS

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

Docket No. SE 85-40
A.C. No. 40-02268-03527

v.

Docket No. SE 85-46
A.C. No. 40-02268-03528

J & c COAL CORPORATION, a/k/a
J C Corporation,

Pee Wee No. 1
Campbell County, TN

Respondent
DECISION
Appearances:

Charles F. Merz, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, TN, for·
Petitioner;
Mr. Stuart P. Bradley, Teasurer, J C Corporation,
Jacksboro, TN, for Respondent

Before:

Judge Fauver

The Secretary of Labor brought these actions for civil
penalties under section lOS(d) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801, et seq. Having
considered the hearing evidence and the record as a whole,
I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following:
FINDINGS OF FACT
1. At the time the citations and orders were issued,
Respondent was known as J C Corporation. Effective
January 31, 1985, the legal name was changed to J & C Coal
Corporation, reflecting the corporate name as registered
with the Tennessee Secretary of State: In accordance with
the parties' stipulation, the Respondent's name in the
caption of this case is AMENDED to be "J & C Coal Corporation,
a/k/a JC Corporation."
2. At all pertinent times, Respondent has operated an
underground coal mine in Campbell County, Tennessee, known
as Pee Wee No. 1 Mine, producing coal for sale or use in or
substantially affecting interstate commerce.

799

3. During the 24 months preceeding November, 1984, 51
citations were issued at this mine on 68 inspection days for
an average of .75 citations per inspection day.
4. On September 19, 1984, Federal Inspector James B.
Payne conducted an inspection of the Pee Wee No. 1 Mine
pursuant to§ 103(a) of the Act.
In the course of his
inspection he observed violations of the approved roof
control plan and violations involving exposed high voltage
components of the electrical system, for which he issued
Citation No. 2470944 and Order No. 2470946. He accurately
determined, under§ 104(d) (1) of the Act, that the violations
could significantly and substantially contribute to the
cause of an injury and that they were due to an unwarrantable
failure of the operator to comply with mandatory health and
safety standards.
5. On September 24, 1984, Inspector Payne again inspected
the mine and observed that the power center supplying electrical
power to the No. 3 belt drive had been located in a return
air conduit and because of an S & S violation, he issued
Order No. 2470951 under§ 104(d) (1) of the Act.
6. On November 14, 1984, Inspector Payne conducted
another inspection of the mine pursuant to§ 103(a)
the
Act and observed conditions constituting violations of
mandatory safety standards for which he issued Citation Nos.
2472496, 2472497, 2472498, 2472499 and 2472500 under§ 104(d) (1)
of the Act.
7. On November 18, 1984, Inspector Payne again inspected
the mine in accordance with§ 103(a) of the Act and observed
that the ventilation control plan was not being followed and
issued Citation No. 2475981 under§ 104(d) (1) of the Act.
8. On November 19, 1984, Inspector Payne inspected the
mine pursuant to§ 103(a) of the Act and observed that fire
sensors were not located close enough to the No. 3. belt
conveyor to be·effective.
Citation Nos. 2475962 and 2475963
were issued in accordance with the provisions of§ 104(d) (1)
of the Act.

800

9. Respondent does not dispute the observations of the
inspector as reflected in the above citations and orders nor
does it contest the inspector's findings as to the gravity
of the respective conditions. The factual allegations of
such citations and orders are incorporated herein as findings
of fact.
10. The Secretary stipulates that the conditions
giving rise to the citations and orders were promptly and in
good faith abated.
11. At the time the citations and orders were issued,
Respondent was controlled exclusively by Charles Bowlin,
President of the Corporation. On February 1, 1985, all
stock in the Respondent corporation was purchased from Mr.
Bowlin by D.M.C. Energy, Inc., wholly terminating all interests
of Mr. Bowlin in the Respondent corporation. Thereafter,
management and direction of mining operations were performed
by Charles M. Asbury and Stuart Bradley.
By the terms of
the purchase agreement D.M.C. Energy, Inc., assumed all
financial liabilities of the corporation.
12. At the time D.M.C. Energy, Inc., obtained the
stock of J & C Coal Corporation, it was then operating an
underground mine at Lickfork, Tennessee, which mine is
currently registered with MSHA reflecting D.M.C. Energy,
Inc., as the operator, mine identification No. 40-01799.
13. Upon obtaining control of the J & C Coal Corporation,
D.M.C. Energy, Inc., ordered the subject mine temporarily closed and
requested MSHA to conduct a complete inspection of the mine
for the purpose of identifying all conditions which whould
give rise to a citation if observed in the normal course of
a mine inspection. Such an inspection was conducted and
D.M.C. Energy, Inc., expended substantial funds to correct
all potentially violative conditions and to replace existing
mining equipment.
14. The mine reopened about March 1, 1985.
In the 12
months following reopening of the mine MSHA inspectors
issued 23 citations to the operator on 16 inspection days.

801

DISCUSSION WITH FURTHER FINDINGS
Respondent concedes all of the violations charged
herein, the inspector's allegations as to negligence and
gravity, and the reasonableness of the amounts of civil
penalties originally proposed by the Secretary. Its defense
is a request or claim for elimination or mitigation of the
civil penalties on the grounds of new management, new stock
ownership, large expenditures of the new owner to bring the
mine into compliance with the Act, and non-involvement by
the new owner and management with the violations found in
1984.
I find that the safety expenditures and changes by the
new management are commendable, especially when compared to
the safety record of Respondent under the prior management
in 1984. However, the new measures were needed because
Respondent under the prior management had failed to comply
with numerous mandatory safety standards of the Act and
regulations promulgated under the Act.
The safety record
after the 1984 violations is not a basis for eliminating or
reducing civil penalties for such violations. However,
considering the financial needs of Respondent, six months
will be allowed to pay the civil penalties assessed herein.
In permitting this schedule for payment, I note that
Respondent acknowledges ·its financial ability to pay Mrs.
Bowlin under the stock-sale agreement, and that civil penalties
due MSHA for the 1984 violations are a pro rata offset of
Respondent's indebtedness under such sale agreement.
Respondent is a medium-sized coal business. At the
time of the violation it was a small operator.
Its number
of miners and coal production have substantially increased
sipce the present management took over operations.
CONCLUSIONS OF LAW
1.

The Commission has jurisdiction in this proceeding.

2.
Respondent violated the sections of the Act or 30
C.F.R. as charged in the following citations and orders, for
which Respondent is ASSESSED the civil penalties shown:

802

Citation or Order

Civil Penalt;y:

2470944
2470946
2470951
2472496
2472497
2472498
2472499
2472500
2475961
2475962

$1,000
850
850
20
20
20
74
20
168
20
$3,042

Total
ORDER

WHEREFORE IT IS ORDERED that Respondent shall pay the
above civil penalties in the total amount of $3,042 in six
equal monthly payments of $507, beginning on June 1, 1986,
and becoming due on the first day of each successive month
thereafter until the total of $3,042 is paid.
/

) '/ d

.

~)

I e-L-u v e--c...
William Fauver
Administrative Law Judge

{,,.(_/~~.....;-;.-;

Distribution:
Charles F. Merz, Esq., Office of the Solicitor, U.S. Department
of Labor 280 U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Mr. Stuart P. Bradley, Treasurer, J C Coal Corporation, P.O.
Box 174, Jacksboro, TN 37757 (Certified Mail)
Mr. Charles M. Asbury, President, J C Coal Corporation,
P.O. Box 174, Jacksboro, TN 37757 (Certified Mail)
kg

803

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

May 7 / 19 8 6
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
ON BEHALF OF
MARK ADAMS, ET AL,
Complainants

Docket No. WEST 80-489-D(B)
Deseret Mine

v.
EMERY MINING CORPORATION,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Complainants;
Thomas c. Means, Esq., Crowell & Moring, Washington,
D.

c.

I

for Respondent.
Before:

Judge Morris

This case arises under the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801 et seq., and it involves the interpretation of sections 115 ancr-10S(c} of the Act.
After a hearing before the undersigned the Secretary was granted
leave to amend his complaint to add additional complainants. The
undersigned severed the amended complaint and designated all subsequent matters relating to the amended petition as "Secretary of
Labor, Mine Safety and Health Administration on Behalf of Mark Adams,
et al, Complainants, v. Emery Mining Corporation, Respondent, Docket
No.WEST 80-489-D(B}." In the interim Docket No. WEST 80-489-D(A}
was appealed to the Commission.
After considering the issues, the Commission ruled that Emery
violated section lOS(c) of the Act when, after hiring the complainants as new miners, i t nevertheless refused to compensate them
for 32 hours of training.
The miners had to obtain such training
because of respondent's hiring practices, 5 FMSHRC 1391 (1983).
Subsequently, respondent appealed the Commission decision to
the United States Court of Appeals for the Tenth Circuit where i t
was docketed as case number 83-2017.
In addition, the parties
stipulated that the instant case would be determined by the ruling
of the appellate court.
In view of the stipulation of the parties,
the undersigned stayed further proceedings in the captioned case
pending a ruling from the appellate court.

804

On January 31, 1986, the Court issued its decision. The
Court held that the Commission and its administrative law judge
erred when they found that Emery violated the Act by refusing to
pay its newly hired employees for back wages, tuition and related
expenses they had incurred in receiving 32 hours of training before
being employed by respondent.
Specifically, the Court ruled that
none of the complainants were "miners" under the Act or employed
by respondent at the time they took their training. Further, it
was the view of the Court that the statute was clear on its face.
In sum, the Court declined to enforce the Corrunission order.
Respondent thereafter filed a motion for summary judgment on
the captioned case.
The motion is within the stipulation of the
parties.
Thereafter the undersigned dissolved the stay of the instant
proceedings.
The Secretary, in his response to the motion for
sununary judgment, concurs that Emery's motion should be granted.
On the basis of the decision of the United States Court of
Appeals for the Tenth Circuit in Docket No. 83-2017, the pleadings
and the stipulation of the parties, I enter the following:
ORDER
1.

Respondent's motion for sununary judgment is granted.

2.

The discrimination complaint is dismissed.

Law Judge

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Buildin~, 1961 Stout Street, Denver, Colorado
80294
(Certified Mail)
Thomas c. Means, Esq., Crowell & Moring, 1100 Connecticut Avenue,
N.W., Washington, D.C. 20036
(Certified Mail)
/ot

805

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

May 8, 1986

ODELL MAGGARD,
Complainant

.
.
.

v.
CHANEY CREEK COAL CORPORATION,:
Respondent
:
SECRETARY OF LAB.OR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF
ODELL MAGGARD,
complainant

v.

DISCRIMINATION PROCEEDING
Docket No. KENT 86-1-D
MSHA case No. BARB CD 85-48

.
..

No. 3 Mine

.
.
..
..

Docket No. KENT 86-51-D
MSHA Case No. BARB CD 85-48

DISCRIMINATION PROCEEDING

No. 3 Mine

DOLLAR BRANCH COAL
CORPORATJON,
and
CHANEY CREEK COAL CORPORATION,:
Respondents

DECISION
Appearances:

Before:

Tony Oppegard, Esq., Appalachian Research and
Defense Fund of Kentucky, Inc., Hazard,
Kentucky, for Odell Maggard;
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville,
Tennessee, for the Secretary of Labor;
Thomas Wo Miller, Esq., and Julie Goodman,
Esq., Miller, Griffin & Marks, P.S.C.,
Lexington, Kentucky, for Respondents

Judge Melick

Background
On June 11, 1985, Odell Maggard filed a complaint with
the Department of Labor, Federal Mine Safety and Health Administration CMSHA) alleging that on January 10, 1985, he had
been discharged in violation of section 105(c)Cl) of the

806

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801,
et. ~, the 11 Act."~/ On the same date the Secretary of
Labor commenced his investigation pursuant to section
105Cc)(2) of the Act.2/ Subsequently, after the expiration
of the 90-day notification period following the receipt of
that complaint provided under section 105(c)(3) of the Act,
the Secretary advised Mr. Maggard by letter that the investigation of his complaint had not been completed and that it
had not yet been determined whether or not a violation of
section 105(c) had occurred.~/ That letter reads in part as
follows:
"[b]y the terms of the Act and the Federal Mine
Safety and Health Review Commission's procedural rules, you
have a right to file your own complaint with the Commission
because the Secretary has not completed his consideration
within 90 days."
1/

Section 105(c)(l) provides in part as follows:
"No person shall discharge • • • or cause to be discharged • • • or otherwise interfere with the exercise of the
statutory rights of any miner, . • • in any • • • mine subject to this Act because such miner, • • • has filed or made
a complaint under or related to this Act, including a complaint notifying the operator or the operator's agent, • • •
of an alleged danger or safety or health violation in any
mine • • • or because of the exercise by such miner, • • • on
behalf of himself or others of any statutory right afforded
by this Act."

~/

Section 105(c)(2) reads in part as follows:
"Any miner or applicant for employment or representative of miners who believes that he has been discharged,
interfered with, or otherwise discriminated against by any
person· in violation of this subsection may, within 60 days
after such violation occurs, file a complaint with the
Secretary alleging such discrimination. Upon receipt of such
complaint, the Secretary shall forward a copy of the complaint to the respondent and shall cause such investigation
to be made as he deems appropriate. Such investigation shall
commence within 15 days of the Secretary's receipt of the
11
complaint •.
0

0

•

~/

Section 105(c)(3) of the Act provides in part as follows:
"Within 90 days of the receipt of a complaint filed
under paragraph (2), the Secretary shall notify, in writing,
the miner, applicant for employment, or representative of
miners of his determination whether a violation has occurred.
If the Secretary, upon investigation, determines that the
provisions of this subsection have not been violated, the
complainant shall have the right, within 30 days of notice of
the Secretary's determination, to file an action in his own
behalf before the Commission, charging discrimination or
interference in violation of paragraph (l)."

807

Thereafter, on October 1, 1985, Mr. Maggard filed his
own complaint with this Commission pursuant to section
105(c)(3) and commission Rule 40(b), 29 C.F.R. § 2700.40(b).4/
on December 14, 1985, Maggard was informed by MSHA of the
secretary's determination that a violation of section 105(c)
had occurred. The Secretary thereafter on December 26, 1985,
filed his own complaint with this Commission on behalf of Mr.
Maggard against Dollar Branch Coal Corporation under section
105(c)(2) of the Act.~/
In his complaint the Secretary states that Maggard's
complaint filed October 1, 1985, under section 105(c)(3), had
been filed before the Secretary "had an opportunity to determine whether or not a violation of the Federal Mine Safety
and Health Act of 1977 had occurred" and maintains for that
reason that Maggard's complaint should now be dismissed.
Motion to Dismiss
In his motion to dismiss the Secretary argues that he
need not comply with the requirements of the Act that he make
a determination as to whether or not discrimination has
occurred within 90 days of his receipt of a complaint. He
further argues that should the aggrieved individual file his
own complaint under section 105(c)(3) after the statutory
90-day period, that case will become null and void as lacking
a jurisdictional basis if the Secretary later decides to file
a complaint of his own under section 105(c)(2).
While the Secretary has no standing to interpose a
motion to dismiss in Maggard's section 105(c)(3) case, the
Secretary's motion nevertheless raises a threshold jurisdictional question.
Indeed the Act itself does not provide
expres·s guidance as to the procedures to be fallowed by an
individual complainant under section 105(c) in the event the
Secretary does not make his decision (as to whether a violation of the Act has occurred} within the 90-day time frame
set forth under section 105(c){3).

4/

Commission Rule 40(b) reads as follows:
"A complaint of discharge, discrimination or interference under section 105(c) of the Act, may be filed by the
complaining min~r, representative of miners, or applicant for
employment if the Secretary determines that no violation has
occurred, or if the Secretary fails to make a determination
within 90 days after the miner complained to the Secretary."
~/

The Secretary amended his complaint without objection at
the commencement of hearings on January 15, 1986, to propose
a civil penalty and to include Chaney Creek Coal corporation
as a party Respondent.

808

It is clear however that Congress intended that the
miner have the right to file a complaint on his own upon the
failure of the Secretary to act within the prescribed 90-day
period. Indeed in recognition of this Congressional intent
this Commission promulgated its Rule 40Cb) under which the
aggrieved miner is specifically provided the right to file
his own complaint under these circumstances. This administrative interpretation is entitled to great weight.
Chevron, U.S.A., Inc. v. National Resources Defense Council,
104 S.Ct. 2778 (1984); Manufacturers Ass'n v. National
Resources Defense Council, 105 s. Ct. 1102 Cl985); Federal
Election Commission v. Democratic Senatorial Campaign
Committee, 102 s.ct. 38 (1981) and zenith Radio Corp v.
United States, 98 S.Ct. 2441 (1978). Such a construction is,
moreover, consistent with the liberal construction to be
accorded safety legislation. Whirlpool Corp. v. Marshall,
100 s. Ct. 883 (1980). More specifically this construction
is essential to accomplish the objective of the statute and
to avoid unjust and oppressive consequences to aggrieved
miners where the Secretary fails to act within the prescribed
time. Caminetti v. United States, 37 S. Ct. 192 Cl917).
Administrative notice may be taken of a recent case in which
the Secretary delayed almost 4 years before deciding not to
represent a miner on his 105(c) complaint.
(Dan Thompson v.
Cypress Thompson Creek, MSHA Case No. 82-27). The miner is
seriously prejudiced by such delay as witnesses move,
memories fade and documents are lost or destroyed, and may
suffer unwarranted economic hardship. Such a result is
clearly contrary to the objectives of the Act.
Under the circumstances it is clear that this judge
has jurisdiction to entertain Mr. Maggard's case (under
section 105Cc)(3) and commission Rule 40(b)) as well as the
Secretary's case brought on behalf of Mr. Maggard under
section 105Cc)(2) of the Act. The Secretary's Motion to
Dismiss is denied.
The Merits
In order to establish a prima facie violation of section 105(c)(l) of the Act, it must be proven by a preponderance of the evidence that Mr. Maggard 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 Pasula v. Consolidation Coal Coal Company, 2
FMSHRC 2786 (1980), rev'd on other grounds sub nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211 {3rd Cir.
1981). See also Boitch v. FMSHRC, 719 F.2d 194 (6th Cir.
1983) and NLRB v. Transportation Management Corp., 462 U.S.
393 {1983), affirming burden of proof allocations similar to
those in the Fasula case.

809

Complainant's Case
Until the day before his departure on January 10, 1985,
Odell Maggard had been working for the Dollar Branch Coal
Company as the off-side shuttle car driver on the 3 p.m. to
11 p.m. shift. In this capacity he was transporting coal
from the continuous miner to the feeder. As he entered the
mine on January 10, 1985, he learned from Howard "Champ"
Muncy, the second shift boss, that he was being switched from
shuttle car operator to miner-helper.
In this latter
capacity he was expected to prevent the 440 volt power cable
attached to the continuous miner from being run over by the
miner as it backed up.
According to Maggard the power cable was not in good
condition. He counted 8 temporary splices covered with tape
and observed that 1 or 2 were lying in water "smoking."
Shortly after they began cutting coal as Maggard was handling
the cable 2 to 3 feet from a "bad splice" he was shocked.
Maggard told Champ and miner operator Howard "P. J." Holland
that the cable 11 bit" him.
In response Champ merely patted
him on the back and told him to "try to make it. 11
Later that evening as Maggard was again pulling the
cable he was knocked "flat on [his] face" from electrical
shock. Maggard was unable to use his arms to get up and they
were numb for 20 minutes. Maggard says that he reported this
incident to Champ and asked if he would fix the cable. Champ
refused explaining that the miner had already been down on
the shift. Champ also refused to fill out an accident report
because Maggard had "only been juiced." Maggard then asked
Champ for alternate work and when that request was rejected
he refused to continue pulling the cable. He considered it
to be ·.n life threatening." He was then told to "pull the
cable or else." Rather than continue, Maggard chose to leave
the mine.
One of Maggard's coworker's Ronald "Spider" Talbert,
testified that around the time of Maggard's discharge he had
been relieving the regular miner-helper during lunch hours on
a regular basis. He had also worked several full shifts
pulling the cable when the regular miner-helper failed to
show up. Talbert also observed that the miner cable was not
then in good condition. The insulation was broken in several
places with "naked wires" exposed. He was reluctant to pull
the cable because he was regularly "juiced" by it at least
twice a shift. Talbert recalled that Maggard told him that
he was quitting because the cable had "juiced" him.
Another miner, Roscoe Nantz, also had occasion to pull
the miner cable during January 1985. He too observed that
the cable insulation had been cut off and taped in several
locations. He saw "naked wires" and observed that the cable

810

would smoke where it contacted the water. He had been
shocked "quite a lot." It hurt and numbed his body. He
reported these conditions to Champ but Champ told him to
"keep running it" and nothing was done to correct the problem.
Gerry Michael Coots was a roof bolter operator at the
mine until December 27, 1984. He observed that the trailing
cable on the roof bolter was also then "not in that good a
shape." The splices were "raggedy" and the tape had been
torn off exposing "bare wires." He had seen this cable smoke
where it was lying in the water and had been "juiced" while
handling the cable.
MSHA Inspector Sylus Adams, inspected the subject mine
on October 15 and 16, 1984 and on January 10 and 28, 1985.
On the latter occasion he cited a violation for a temporary
splice on the trailing cable within 25 feet of the miner.
According to Adams the trailing cable carried 480 volts and a
person could be shocked holding a wet cable even 3 to 4 feet
from a bad splice.
On his earlier inspections he did not
have occasion to check the trailing cable.
Essie "P. J." Holland was the continuous miner operator
on the evening Maggard was discharged. He observed that his
trailing cable, the one Maggard was pulling, was not in good
condition that evening. Bare copper wires were exposed and
"sticking out" and the cable was smoking where the floor was
wet. Maggard was only 10 feet away when Holland saw him get
"juiced" and knocked into a water hole.
Holland stopped the
miner to see if Maggard was alright. Champ Muncy was also
present and Maggard told both Holland and Muncy that he had
been "juiced." According to Holland, Maggard told Champ that
the cable "needed fixing" but Champ responded only that "we've
been down too long and we can't fix it now." Holland also
overheard Champ turn down Maggard's request for alternate
work. Maggard then left the section and about 5 minutes
later Hobert Turner came to help with the cable. Holland
himself had been shocked while handling the cable only 2
weeks before. He too had told Champ about being shocked and
Champ complained that the company would not give him anything
to fix it with.
MSHA electrical supervisor Henry Standafer testified
that even a pin hole in a trailing cable in a wet atmosphere
could result in fatal electrical shock up to 15 feet away.
Such a shock could also result in irregular heart beat,
slurred speach and pain in the limbs. According to Standafer
smoke from a cable splice indicates that the splice was not
properly made and that it is hotter than the rest of the
cable.

811

Respondents' Case
As previously noted Champ Muncy was shift boss on Odell
Maggard's last day. Muncy testifed that he met with the mine
superintendent before that date concerning among other things
shifting Maggard from shuttle car operator to miner-helper
and replacing him with Bryant on the shuttle car. According
to Muncy, Maggard was "slow on the car and not hauling as
much coal as the others. 11 After Bryant operated the shuttle
car production seemed to increase. Muncy conceded however
that he never checked the production records to verify
whether production had in fact improved after Bryant took
over. According to Muncy when Maggard was told of the job
switch he "didn't like it" and said he was "going to quit."
Muncy asserts that Maggard did not complain about being
shocked by the trailing cable and claims that he was not
aware of any problems with the cable. According to Muncy
there was then only one permanent splice within 25 feet of
the miner and no temporary splices in any part of the cable.
According to Muncy a newly rebuilt miner with a new
trailing cable had been brought into the mine 1-1/2 months
earlier. The cable was attached to the miner and had no
splices in it. It was the same cable in place on January 10,
and at that time it had only 2 permanent splices. Muncy also
maintains that there was no water at the face area at the
time Maggard 11 quit" although the coal was damp around the
continuous miner from the continuous miners spray.
Wayne Howard was working on the second shift on
January 10, 1985 as a bolting machine operator. According to
Howard there was no part of the face area that had an inch of
water in it. It was only "a little bit damp." According to
Howard the subject trailing cable was in good condition on
January 10, and indeed was the same cable still being used at
the time of the hearing (in January 1986). He had an opportunity to examine the trailing cable from 50 to 200 feet from
the miner since he had to hang the cable. He was not shocked
and saw no bad splices. In fact he claims he had never seen
a bad splice on the cable. Howard denied stating to Odell
Maggard on the previous Tuesday that he did not know about
the condit1on of the cable.
On January 9, 1985, Charles Bryant had been working as
a miner-helper. on January 10, he took over Odell Maggard's
job as shuttle car driver. He had been pulling the miner
cable as miner-helper for the 6 months preceding this transfer. According to Bryant the cable was "new 11 and he could
not recall ever having been shocked while handling it. He
later testified that he could not "recall" getting shocked
within 10 to 50 feet of the continuous miner on the 9th of
January. He had been wearing protective gloves and gave the
gloves to Maggard on January 10, after he was switched to the

812

miner. According to Bryant, Odell told him on his last day
that he "quit," that he "wasn't going to pull no miner cable't
and that he was not "going to work that hard." Bryant denied
that Maggard ever told him that he had been shocked. Bryant
acknowledged however that only a few days before the hearing
he told Maggard's attorney that he could not remember the
condition of the cable very well.
Caleb Napier was the outside loader man on the second
shift on January 10, and saw Odell come out of the mine late
in the shift. According to Napier, Maggard said "he quit"
because they took him off the car. Hobert Turner was setting
timber on January 10, 1985, but when Maggard left he took
over the job of pulling the cable. Maggard reportedly told
Turner that he did not like being switched to miner-helper so
he quit. Turner claims that on the ride home later that
evening Odell again said that he quit because of the change
in jobs. Turner states that he pulled the cable until the
end of the shift and did not get shocked. Turner saw no
temporary splices and noted that the cable was "very good"
and that "it looked fairly new." He saw no exposed wires in
the 30 feet of cable that he worked with that night.
Chaney Creek superintendent Darryl Napier, a certified
electrician, claims that based on the testimony of the
Respondents' witnesses it was impossible for Odell Maggard to
have been shocked as alleged. Napier was involved in the
decision to transfer Odell Maggard from shuttle car operator
because he was "slow" and did not fill up the car. He
thought Maggard was a "lazy" shuttle car operator. Napier
conceded however that he had previously told an MSHA investigator that Maggard was a "good" shuttle car driver. He
explained at hearing that he meant Maggard was a good driver
only between picking up loads of coal.
Rebuttal Evidence
In rebuttal, Holland testified that Charles Bryant had
been his regular miner-helper and indeed had complained to
him as well as to "Champ" (Muncy) about being shocked on
occasions prior to January 10, 1985. Hobart Turner also
complained to Holland about the cable "juicing" him after
Odell Maggard had left the mine.
Jerry Maggard (Odell Maggard's cousin) was working the
second shift on January 10, 1985, as the right side shuttle
car driver. Although he testified that he could not then
remember the events occuring a year ago, he conceded meeting
the night before with government attorney, W. F. Taylor at
which time he said that he saw Odell throw the cable down and
jump.
In addition, Jerry Maggard then told Taylor that Odell

813

said that he was leaving because he was juiced, that the
cable would "just eat you up" and that every one on the
section knew that the cable was "in real bad shape. 11 Jerry
Maggard told Taylor that he would like to come in and testify
for Odell but he could not "cut off his head."
Odell Maggard was recalled as a witness and testified
that at the meeting on January 10, 1986, Jerry Maggard told
him that he saw (Odell> get shocked but that he (Jerry> could
not testify for him because they did him a favor giving him a
lay-off so that he could become eligible for unemployment
compensation. Odell also denied saying anything about
quitting because he had been taken off the shuttle car.
Odell Maggard also stated that Wayne Howard had told him only
a few days bef or~ these hearings that he could not remember
the condition of the cable.

w. F. Taylor, an attorney with the U.S. Department of
Labor, also testified in rebuttal. Taylor had spoken with
Jerry Maggard the previous evening in the presence of Odell
Maggard and his attorney. Taylor related his conversation
with Jerry as follows:
"As I presented my credentials to Mr. Jerry
Maggard, I told him I needed to speak with him
about the discharge of Mr. Odell Maggard at the
Chaney Creek mine, the White Oak mine. Mr. Jerry
Maggard stated to me at that point that he
couldn't help my any. Without any other questions being asked, he then told me that he
remembered seeing Odell Maggard getting shocked.
I asked him what he was doing at the time that he
observed • • • Odell Maggard getting shocked, and
·he said that he was driving the right side
shuttle car and that he was near the area where
Odell Maggard was pulling the trailing cable. I
asked Jerry Maggard how he could determine that
Odell Maggard had been shocked. He stated to me
that he could see him as he was • • • picking up
and pulling on the trailing cable, that he threw
it down and he threw his arms back and he jumped,
and [Jerry] took that to indicate that [Odell]
had received a shock. Mr. Jerry Maggard also
told me that a few minutes later Mr. Odell
Maggard approached him and asked him for the keys
to his Scout and that Odell Maggard at that point
told him he was leaving • • • He asked him why
he was leaving, and [Odell] stated that he was
leaving because he had been juiced by the cable."

814

"I asked him if he had • • • ever handled the
trailing cable and he stated that he had, and I
asked him if he had received shocks, and he told
me that he had, that the trailing cable would
just eat you up."
Jerry Maggard also told Taylor that he would "like to
come in and testify" for Odell, but that he "couldn't cut off
his own head to do it," that "he knew the condition of the
cable" and that "everyone on the section knew that the cable
was in • • . real bad shape."
Evaluation of the Evidence
Witness credibility is critical to resolution of this
case. In this regard, I find the Complainant and his supporting witnesses to be the more credible and accordingly I
find that he has proven that his discharge was based solely
on his refusal to work because of a reasonable and good faith
belief that to continue working would have been hazardous.
See Miller v. FMSHRC, 687 F.2d 194 (7th Cir. 1982); Robinette
v. United Castle Coal Co., 3 FMSHRC 803 (1981).
Significantly the Complainant's testimony that he was
thrown to the mine floor by an electrical shock from the continuous miner's trailing cable was fully corroborated by P.J.
Holland, the continuous miner operator, who witnessed the
event. In addition, the Complainant's testimony that he was
also shocked by this cable prior to the severe shock which
precipitated his work refusal was confirmed by the out-ofcourt statement of Jerry Maggard.
Four other miners, namely P.J. Holland, Ronald Tolbert,
Roscoe. Nantz, and Jerry Maggard also attested to the dangerous condition of this cable in that they had all been
shocked by the same cable at or near the time of the Complainant 1 s discharge. Respondents attempted to discredit Tolbert
and Nantz through the testimony of Charles Bryant, who stated
that he had never been replaced as the miner-helper prior to
January 10th. Bryant's testimony, in this regard was however
directly contradicted by the miner operator Holland, and even
by foreman Muncy, another of the Respondent's witnesses.
Muncy and Holland both testified that Bryant was replaced as
the miner-helper nearly every day during the lunch break.
Bryant's testimony is therefore without credibility in itself.
Finally, I find no reason or motivation for these laid-off
miners not to testify truthfully that they had been shocked
by the trailing cable.
The testimony concerning the condition of the trailing
cable and electrical shock suffered by those handling it is
also indirectly corroborated by the MSHA electrical expert
Henry Standafer. Standafer stated without contradiction that
a miner could suffer electrical shock while handling a wet
815

trailing cable having only a "pinhole" or defective insulation or splices. Respondent's own witnesses acknowledged
that the area around the miner was damp from water sprays.
Within the framework of this evidence I find that Odell
Maggard did indeed suf
serious electrical shock while
handling the trailing cable as alleged.
The conversation between Maggard and Muncy at the time
of Maggard's work refusal on January 10th is also in dispute.
Maggard states that he told Muncy he had been shocked, that
he asked Muncy to fill out an accident report and to repair
the cable, and then asked to be assigned to other work when
Muncy refused to stop production to repair the cable.
Maggard denied mentioning to Muncy the fact that he had been
taken off the shuttle car. Muncy, on the other hand, claimed
that Maggard did not tell him he had been shocked, and did
not ask that an accident report be completed. Rather, Muncy
claimed that Maggard was simply mad because he had been
reassigned as the miner-helper.
I find Maggard's version of this conversation the more
credible. The only other witness to this conversation was
P.J. Holland, the miner operator, and Holland's testimony
supports Maggard. Holland heard Maggard ask Muncy to repair
the cable and Muncy's refusal because the section had been
"down too long." Holland also heard Maggard ask Muncy if he
had "anything else for him to do." The testimony of both
Maggard and Holland that Muncy said the section had been
"down too long" is also consistent with the circumstances
surrounding Maggard's work refusal. Since the mine had not
been running coal for the first 3 hours of the shift it may
reasonably be inf erred that Muncy would have been particularly resistant to any further delays in production at that
time.·.
In addition, it is not realistic to believe that Maggard
would leave a good paying job if Muncy had told him, as Muncy
claims, that he would only have to pull the miner cable for a
couple of days until he was reassigned to another position.
This is particularly true since the job switch involved no
cut in pay. Maggard had also previously been removed from
his shuttle car for 2 hours on January 9th, but did not then
quit his jo~.
Maggard was no stranger to the miner-helper position
since he had pulled the trailing cable about 15 times as a
substitute prior to January 10th. Thus when Maggard was
reassigned at the beginning of the shift on January 10th he
knew what to expect. He nevertheless worked about half a
shift prior to his work refusal. Hobert Turner, a witness
for Respondent also testified that Maggard did not complain
to Muncy when he was given the new job assignment at the

816

beginning of the shift on January 10th. It is therefore
highly unlikely that Maggard would have quit his job in the
middle of a shift but for some extraordinary reason such as
unsafe working conditions.
Other critical aspects of Respondent's case also lack
credibility such as the testimony of current employees
Charles Bryant and Hobert Turner. These employees pulled the
continuous miner cable directly before and after Maggard's
work refusal. Particularly noteworthy is Bryant's testimony
about his alleged conversation with Maggard on January 10th
and his allegations concerning the condition of the trailing
cable. Contrary to his testimony at hearing Bryant had previously expressed a complete lack of knowledge about the case
to an MSHA investigator, and had also stated that he could
not remember the condition of the trailing cable on the day
in question. Three of Bryant's former co-workers, Holland,
Nantz and Coots also testified that they had heard Bryant
complain about the condition of the trailing cable while he
was the miner-helper. Under the circumstances I can give but
little weight to Bryant's testimony.
Wayne Howard's testimony about the condition of the
trailing cable on January 10th is similarly discredited
because of his statement to Maggard 2 days earlier that he
could not remember the condition of the cable because it was
"too far back" in time. The failure of Respondents to have
identified these two witnesses until the day before the
hearing and in violation of the prehearing order also
suggests, under the circumstances, an attempt to protect them
from pretrial scrutiny and anticipated inconsistent testimony.
Hobert Turner, presently a foreman for Respondent Chaney
Creek;. also described the trailing cable as being in good
condition on January 10th. However, P.J. Holland, who worked
with Turner that night, testified that Turner was also
shocked by the cable after replacing Maggard as the miner
helper. While Respondents argue that the same trailing cable
handled by Maggard on January 10th was found by Inspector
Adams on January 28th to be in good condition there was ample
time during this 18-day interval for repair of the improper
splices. In this regard the MSHA electrical inspector testified that a temporary splice can be converted into a permanent splice in only about an hour. Thus all of the "bad
splices" present on January 10th could have been repaired by
January 28th.
Respondents also attack the Complainant's credibility
based on his admission that he testified untruthfully at his
deposition about his conversation with Jerry Maggard prior to
leaving the mine on January 10th. Maggard did however
correct this false testimony while still at the deposition,
and he testified consistently with that corrected testimony

817

at the hearing. Maggard's explanation for this testimony
that his cousion had asked him "to keep him out of it," is
understandable considering the hostility and loss of memory
exhibited by Jerry Maggard when called to testify in this
matter.
Under the circumstances I find that the Complainant has
met his burden of proving that he was discharged by Chaney
Creek Coal Corporation on January 10, 1985, in violation of
section 105(c) of the Act. Accordingly Chaney Creek Coal
Corporation and Dollar Branch Coal Corporation are directed
to reinstate the Complainant, Odell Maggard, to his former or
similar position (at the same rate of pay) held prior to his
discharge on January 10, 1985. These cases will accordingly
be set for further hearings on the amount of damages, costs
and attorney's fees to be awarded the Complainant and a final
decision will not be issued until these matters are
determined.
Civil Penalty
The unlawful discharge found in this case was serious in
that it would be expected to have had a chilling effect on
the exercise of protected rights by those miners exposed to
hazardous conditions. Respondent's foreman, Champ Muncy, was
also negligent in denying the Complainant alternate work in
the face of clearly hazardous conditions.
In assessing a
penalty herein I also have considered that the operators are
small in size, and have no reported history of violations of
section 105(c). Accordingly, I find that a civil penalty of
$1,000 is appropriate. A corresponding order in this regard
will be issued when the final decision is rendered in these
proceedings.

Distribution:
Tony Oppegard, Esq., Appalachian Rese rch & Defense Fund of
Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified
Mail)
Thomas W. Miller, Esq., Miller, Griffin & Marks, 700 Security
Trust Building, Lexington, KY 40507 (Certified Mail)
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
rbg

818

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

22041

May 8, 1986

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

.
.
..

CIVIL PENALTY PROCEEDING
Docket No. VA 85-22
A.C. No. 44-05594-03571

v.
RB J COAL COMPANY, INC.,
Respondent

.

No. 1 Mine

DECISION
Appearances:

Craig w. Hukill, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner1
Raymond Jackson, RBJ Coal Company, Inc.,
Mavisdale, Virginia, for Respondent.

Before:

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. ~, the "Act," for two violations of
regulatory standards. The general issues before me are
whether RBJ Coal Company, Inc. CRBJ) violated the cited
regulatory standards and, if so, whether those violations
were of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety or
health hazard i.e. whether the violations were "significant
and substantial." If violations are found it will also be
necessary to determine the appropriate civil penalty to be
assessed in accordance with section llO(i) of the Act.
Citation No. 2281585 alleges a ~significant and substantial" viol~tion of the operator's roof control plan under the
standard at 30 C.F.R. § 75.200 and charges as follows:
On 002 section the 8 breaker timbers in the No. 6
entry for the No. 5 pillar were "stretched" by
being set on 2 or more sections of crib blocks or
timber butts. There were other timbers visible in
the pillar line that had been set in a similar
fashion. The timbers were easily moved by hand.
It is not disputed that the roof control plan requires
that "posts shall be installed tight on solid footing and
[that] not more than two wooden wedges shall be used to

819

install a post." During a spot inspection at the RBJ No. 1
Mine on February 4, 1985, Inspector Larry Stanley of the
Federal Mine Safety and Health Administration (MSHA) found
all of the eight breaker timbers used in the No. 6 entry for
the No. 5 pillar to be unstable and not on solid footing.
The timbers used were estimated to be only 5 feet long under
a roof that was from 6 feet to nearly 8 feet high. Various
material was used to supplement their height. At least three
of the timbers were supplemented with timber butts only 4 to
6 inches in diameter and one of the timbers had footers made
of 3 pieces of timber butts. Most of the eight timbers were
also supplemented with more than two wedges and one with six
wedges.
RBJ president Raymond Jackson conceded that three of the
posts were not set on solid footing. Two of these were set
on timber butts and one was on gob. Although he never saw
the timbers while they were in place, Jackson was told by his
foreman, Steve Larson, that the remaining five timbers were
on solid footing.
Jackson did not dispute however that more
than two wedges were used on more than half of the eight
timbers cited. Under the circumstances the violation is
proven as charged.
According to Inspector Stanley the hazard presented by
these "stretched" timbers was quite serious. Timbers properly
placed and on solid footing provide a break-off point during
retreat mining protecting the miners outby from falling roof.
Without stable timbers Stanley believed that it would be
likely for the roof in the gob area to continue breaking
beyond the timbers thereby endangering the work crew.
According to Stanley the continuous miner operator, his
helper and the ram car operator would likely be working in
the endangered area thereby being exposed to fatal injuries
from a roof fall.
Jackson maintained that there was no "immediate danger"
presented by the "stretched" timbers because there were also
roof bolts in the cited entry. I find more credible however
the reasoned opinion of Inspector Stanley that during the
retreat mining process the roof bolts would not prevent
sections of roof from falling. According to Stanley the
pillars on which the "beam" created by the roof bolts depend
for support are removed during retreat mining and therefore
the entire "beam" would be expected to fall.
Thus while no
"immediate hazard" may have existed there was nevertheless a
serious and "significant and substantial" hazard. See
Secretary v. Mathies Coal Company, 6 FMSHRC 1 (1984-)-.- I also
find that the violation was caused by the negligence of the
mine operator. Jackson himself acknowledged that his foreman
should have known that support timbers cannot be set on
timber butts or gob and the use of an excessive number of
wedges was in clear violation of the roof control plan.

820

Order No. 2281586 also alleges a "significant and substantial" violation of the roof control plan under the
standard at 30 C.F.R. § 75-200. The order charges as follow:
The approved roof control plan for 002 section,
full pillar recovery, was not being followed in
that the No. 5 pillar had been "slabbed" from the
No. 6 entry, cutting left with approximately 3
lifts or runs taken. Only one timber, set on crib
blocks, had been set for the second lift.
It is not diputed that the applicable roof control plan
requires that the righthand wing of a pillar that has been
split during retreat mining must be mined from the split and
not from the entry to the right of that pillar.
(See Government Exhibit Nos. 7 and 3 page 23).
It is further undisputed
that on February 4, 1985, the continuous miner was cutting
into the righthand wing of the cited pillar from the entry to
the right.
According to Inspector Stanley this was a particularly
unsafe procedure because the controls of the continuous miner
require its operator to be seated on the right side of the
machine. Thus if he is cutting the right wing from the left
side he is in the immediate proximity to the unstable and
unsafe gob line. Stanley also observed that timbers had not
yet been placed in the split and the roof was breaking up.
Indeed some of the roof had already fallen including sections
up to a foot thick. Stanley opined that under the circumstances a roof fall was highly likely in the cited area and
such a fall would likely result in disabling or fatal
injuries to the continous miner operator, his helper and/or
the ram car operator. Under the circumstances the violation
was serious and "significant and substantial." Mathies,
supra.
Jackson conceded that the roof conditions in the
vicinity of the alleged violation were not good because of
the number of "slips" present. Indeed a continous miner had
just recently been covered by a roof fall.
Jackson acknowledged moreover that the mine foreman on the preceding evening
shift had made the conscious decision to change the procedures set forth in the roof control plan because they had
encountered dangerous roof conditions.
If conditions were so
dangerous however the pillar could have been abandoned or an
approved modification to the roof control plan obtained.
Indeed the evidence shows that an approved modification was
obtained shortly after the order was issued. Under the circumstances however it is clear that the violation herein was
intentional and, of course, thereby caused by the negligence
of the mine operator.

821

In assessing the penalties for these violations I have
also considered that the mine operator is small in size and
that the violations herein were abated in a good faith and
timely manner.
I also note however, that the operator had
been cited 35 times for violations of the standard at issue
herein over the the 2 year period preceding the issuance of
the citation and order at bar. This record evidences a
serious lack of concern for roof control. Under the circumstances I find penalties of $500 and $800, respectively, for
Citation No. 2281585 and Order No. 2281586 to be appropriate.
Order
RBJ Coal Company, Inc., is hereby directed to pay civil
penalties of $1,300 within 30 days of the date f this
decision.

Gary M
Admini

I

Disbribution:

Craig W. Hukill, Esq., U.S. Department o
the Solicitor, 4015 Wilson Blvd., Arling
(Certified Mail)

Labor, ff ice of
n, VA 22203

Raymond Jackson, President, RBJ Coal Company, Inc., Box 16,
Mavisdale, VA 24527 (Certified Mail)
rbg

822

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

May 12, 1986

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 85-149-M
A.C. No. 03-00506-05502
Sandhog Dredge

PINE BLUFF SAND & GRAVEL
COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding 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 c
1 penalty assessment in the amount of $2,000, for
an alleged violation of mandatory safety standard 30 C.F.R.
§ 56.15-5.
The respondent contested the alleged violation and
the case was docketed for a hearing on the merits. However,
the parties have now filed a motion pursuant to Commission
Rule 30, 29 C.F.R. § 2700.30, seeking approval of a proposed
settlement of the case. The settlement requires the respondent
to pay a civil penalty assessment of $1,000 for the violation
in question.
Discussion
The section 104(a) citation issued in this case was in
connection with a fatality which occurred when a foreman climbed
to the top of a dredge pilot house to measure a pipe and lost
his footing and fell 22 feet to his death.
The foreman did not
have a safety belt or line, and the cited section 56.15-5,
requires that such safety devices be worn where there is a
danger of falling.

823

In support of the settlement proposal, the respondent has
submitted an affidavit asserting that the accident victim was
an experienced supervisor and shop foreman with 10 years of
experience in the boat and barge building and maintenance
business before coming to work for the respondent in 1984.
Respondent states that the foreman had a very good prior safety
and training background, attended weekly safety meetings, and
helped to orientate new employees with a company safety manual
entitled "Barge Construction Safety Code."
The respondent further states that while in its employ,
the foreman attended monthly safety meetings, and as a supervisor with several years of experience in safety training,
should have known when it was appropriate to wear a safety belt
and safety line.
The respondent takes issue with MSHA's
special assessment and narrative statement that "safety belts
and lines were not available on the dredge nor at the shore
property." The respondent's affidavit reflects that a safety
belt and safety line were hung on a wall in plain view in a
room next to the off
that the foreman had occupied for
several months in the shop. The respondent has submitted a
photo_graph to support its contention that the safety belt and
line were stored only a few feet from the foreman's office.
The respondent maintains that it has an excellent safety
record, and it has submitted copies of some of its safety rules
and minutes of its safety meetings.
The respondent also points
out that two dredge inspections conducted by MSHA in September,
1983, and on August 30, 1984, a few months before the accident,
resulted in no violations being found.
The petitioner confirms that at the time of the assessment
the respondent had no previous assessed violations during the
preceding 24 months, and the information in the record reflects
that the respondent is a small sand and gravel operator with an
annual production of 9,324 tons.
I take note of the fact that
at the time the citation was issued, the inspector believed
that the respondent's negligence was "moderate." However, this
finding was later modified to
lect "low negligence.''
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 and in the
public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30,
the motion IS GRANTED, and the settlement IS APPROVED.

824

ORDER
The respondent IS ORDERED to pay a civil penalty in the
amount of $1,000, for the violation in question, and payment
is to be made to MSHA within thirty (30) days of the date
this decision and order. Upon receipt of payment, this case
is dismissed.

N~ C!l.~·

~{;/". Koutr~"""l.A

Admini strati ve Law Judge

Distribution:
Max A. Wernick, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(certified Mail)
John D. Davis, Esq., Ramsay, Cox, Lile, Bridgforth, Gilbert,
Harrelson & Starling, 11th Floor1Simmons First National
Building, P.O. Box 8509, Pine Bluff, AR 71611-8509
(Certified Mail}
/fb

825

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

May 13, 1986

CIVIL PENALTY PROCEEDINGS

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

Docket No. SE 86-48
A.C. No. 01-01247-03692

v.
Docket No. SE 86-55

JIM WALTER RESOURCES, INC.,
Respondent

.

A.c. No. 01-01247-03698

JIM WALTER RESOURCES, INC.,
Contestant

..

CONTEST PROCEEDINGS

v.

.

Docket No. SE 86-13-R
Order No. 2605577; 10/29/85

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

Docket No. SE 86-14-R
Order No. 2605598; 10/29/85
Docket No. SE 86-16-R
Order No. 2605676; 11/7/85
:

Docket No. SE 86-17-R
Order No. 2605679; 11/14/85
No. 4 Mine

DECISION
Appearances:

Harold D. Rice, Esq., and R. Stanley Morrow,
Esq., Jim Walter Resources, Inc., Birmingham,
Alabama for Contestant;
George D. Palmer, Esq., and William Lawson,
Esq., Office of the Solicitor, U.S. Department
of Labor, Birmingham, Alabama, for Respondent.

Before: Judge Melick
These consolidated cases are before me under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 8.01 et ~, the "Act," to challenge the issuance by
the Secretary of Labor of six citations and withdrawal orders
to Jim Walter Resources, Inc., (Jim Walter) and for review of
civil penalties proposed by the Secretary, for the violations
alleged therein. At hearing the parties proposed to settle
all but two of the withdrawal orders. The contested orders,
Order Nos. 2605598 and 2605676 issued under section 104(d)(2)

826

of the Act, were thereafter the subject of evidentiary
hearings.~/
Jim Walter acknowledges the violations cited in these
orders and that the requisite underlying section 104(d)(l)
orders were pending before any clean inspection had been
completed. The validity of the orders and the issues before
me are thus limited to whether the violations were caused by
an "unwarrantable failure" of the operator to comply with the
cited standard and the amount of civil penalty to be assessed
in accordance with section llO(i) of the Act. See footnote 1
supra.
Order No. 2605598 charges a violation of the standard at
30 C.F.R. § 75.316 and states as follows:
"The current approved Ventilation System and
Methane and Dust Control Plan was not being
complied with in the cross-cut to the right of
survey station 6498 located in the No. 2 entry on
the No. 13 section in that only 10,920 cubic feet
of air per minute was measured at the inby end of
the line curtain. The approved plan required
18,000 cubic feet of air per minute while coal is
being cut mined or loaded. Coal was being cut in
the face of the entry."

1/

Section 104(d)(2) provides as follows:
"
a withdrawal order with respect to any area in a
coal or other mine has been issued pursuant to paragraph (1),
a withdrawal order shall promptly be issued by an authorized
representative of the Secretary who finds upon any subsequent
inspection the existence in such mine of violations similar
to those that resulted in the issuance of the withdrawal
order under paragraph (1) until such time as an inspection of
such mine discloses no similar violations. Following an
inspection of such mine which discloses no similar violations, the provisions of paragrpah Cl) shall again be applicable to that mine."
Section 104(d)(l) provides as follows:
"If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation
given to the operator under this Act."

827

It is not disputed that MSHA Inspector Ona Jones was in
the cited area during the course of his inspection on
October 23, and 24, 1985 and on both occasions had informed
representatives of management that there was insufficient air
to mine coal at the faces of the No. 1 and 2 entries. These
mine officials told Jones that they would "get it fixed."
Jones returned to the section on October 29, when he
learned that coal was being mined. Upon his arrival he saw
the continuous miner backing out of the face.
It had "gassed
out" after encountering an excess of 1% methane. A methane
check with a methanometer on an extended probe showed 5.1%
methane on the off curtain side and 1.7% on the other side.
The miner operator told Jones that they had also "gassed out"
earlier that shift but they had hung a wing curtain and
cleared the methane. The shift had begun at 11:00 p.m. on
the 28th and it was then 1:41 a.m.
Section foreman Steve Goldman told Jones that he
measured 18,000 cfm (cubic feet per minute) when he brought
the miner into the face.
It is stipulated that 18,000 cfm
was the minimum air volume required by the ventilation plan
at the inby end of the line curtain while coal is being cut,
mined or loaded.
Inspector Jones' determination of "unwarrantable
failure" was based upon the amount of work he thought would
have to be done to bring the ventilation up to the 18,000 cfm
requirement. It is not disputed that the gap in the line
curtain along the roof line (4 to 5 feet long and up to 1
foot high) found when the order was issued had existed since
October 23rd. This is the same condition Jones reported to
management on October 23rd and October 24th. Air was leaking
through that gap and across the top of the line curtain in 3
or 4 areas where the curtain had slackened up to 4 inches
from the roof.
In one area the line curtain was hanging 8 to
12 inches from the roof along a horizontal distance of
approximately 3 feet.
In addition, the "run-through-drop" Ca 20 foot-wide
passageway through the line curtain) was just hanging
"side-by-side." This also had to be sealed with line
curtain to prevent excessive air leakage in the abatement
process: Finally, Jones found an area of air leakage located
12 feet inby the jack in which the curtain had bowed into the
rib. Additional jacks had to be inserted to prevent this
bowing effect and this correction alone increased the ventilation to 14,805 cfm. Once the line curtain was pulled to the
roof and the run-through-drop was sealed the ventilation
improved to 19,902 cfm. It was Jones' opinion that the
section foreman should at least have seen the bow in the line
curtain which in itself seriously restricted the air flow.

828

In Ziegler Coal Company, 7 IBMA 280 (1977) the Interior
Board of Mine Operations Appeals interpreted the term
"unwarrantable failure" as follows:
"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 operator involved has failed to abate
the conditions or practices constituting such violation, conditions or practices the operator new or
should have known existed or which it failured to
abate because of lack of due diligence, or because
of indifferance or lack of reasonable care."
The Commission has concurred with the Board's definition
to the extent that an unwarrantable failure to comply may be
proven by a showing that the violative condition or practice
was not corrected or remedied, prior to the issuance of a
citation or order, because of indifference, willful intent,
or serious lack of reasonable care. United States Steel
Corporation v. Secretary of Labor, 6 FMSHRC 1423 at 1437
(1984).
Within this framework I must agree with the "unwarrantable failure" determination by Inspector Jones. Jones had
clearly warned Jim Walter's management some 5 days before the
instant violation of serious defects in its ventilation of
the cited section.
Indeed one of the defects causing leakage
of ventilation on the date of the violation had on two prior
occasions, been pointed out to Jim Walter management by
Jones.
In addition, on the same shift in which the violation
herein was cited, and only a short time before, the section
had "gassed out".
In other words the methane level had then
exceeded 1% and the continuous miner was removed from the
face and shut down. This problem should have triggered a
complete corrective response by the section foreman including
an air reading. This was particularly important because the
section foreman acknowleged that he had obtained only the
bare minimum 18,000 cfm of ventilation at the commencement of
his shift and should therefore have been on notice that the
slightest impediment to the ventilation system would have
caused the section to fall below that minimum. Thus when the
line curtain developed a bow into the rib the section foreman
should have taken immediate action to assure proper ventilation. Under the circumstances the violative condition was
not corrected or remedied prior to the issuance of the order
at bar because of indifference, willful intent, or serious
lack of reasonable care. The violation was therefore caused
by the "unwarrantable failure" of the operator to comply with
the law. For the same reasons I find that the mine operator
was negligent.

829

The violation also presented a serious hazard.
It is
undisputed that if the ventilation remained insuff icent,
methane could rapidly build-up to explosive levels in the
face area and ignition sources such as the bits on the continuous miner could generate sparks thereby causing an
ignition or an explosion. The hazard was particular grave
under the circumstances because of the large amounts of
methane liberated at this mine i.e, 30 million cubic feet in
each 24 hour period.
Indeed, according to MSHA supervisory
mining engineer, William Meadows, the No. 4 Mine was in the
top 5% in total face liberation of methane of all mines in
the country. Under the circumstances serious injuries were
reasonably likely to occur. The violation was accordingly
"significant and substantial". Secretary v. Mathies Coal
Co., 6 FMSHRC 1 (1984).
Order No. 2605676 also alleges a violation of the mine
ventilation plan under the standard at 30 C.F.R. § 75.316.
The order charges as follows:
"The current approved Ventilation Methane and Dust
Control Plan was not being complied with on the No.
8 section (008-0) in that only 25,600 cubic feet of
air per minute was measured in the last open crosscut on the right side. The plan requires air in
the last open cross-cut be maintained at a minimum
of 30,000 cfm on each coal producing split."
MSHA inspector Judy McCormick was inspecting the No. 8
section of the No. 4 Mine in the early morning hours of
November 7, 1985, when she noticed a temporary stopping in
bad repair.
It appeared that they were "losing air" through
the stopping. She found only 25,600 cfm of air in the last
open cross-cut on the right side where 30,000 cfm was
required. McCormick also found 2 slits in the line curtain
18 inches high and 1 foot apart which were allowing air to
escape. She also noted that the curtain was neither flush
against the rib nor attached properly at the roof.
At the time McCormick issued her order, coal was not
being produced and little methane was present. She observed
however that if mining had resumed in the faces or if coal
was loaded there could have been a problem. She also noted
that equipment and miners were available to resume operations
in those entries at any time. With insufficent ventilation
McCormick opined that methane could build up and, should
equipment subsequently enter the section, ignitions could
occur leading to fire or explosions.
McCormick alleged that the violation was caused by
"unwarrantable failure" because she believed the foreman
should have seen that the temporary stopping was not adequate

830

to prevent air leakage. The stopping was in the track entry
where the foreman passes. McCormick conceded however that
the preshift report for the cited section showed a volume of
37,520 cfm and that she could not determine how much air was
leaking through the temporary stopping. She also acknowleded
that significant variations in air readings taken at the same
time and location are not unusual.
Within this framework of evidence I do not find "unwarrantable failure." The undisputed evidence shows that before
the commencement of the shift at issue, some 2-1/2 hours
before this violation, the air volume was 7,520 cfm greater
than required.
It appears moreover that that reading was
taken at a time· when the temporary stopping was in the same
condition as found by Inspector McCormick.
In the absence of
any obvious and significant changes in the ventilation system
the section foreman could reasonably have expected that the
air volume would continue to be above the minimum even 2-1/2
hours later. It cannot therefore be concluded that the
foreman should have known of the violative condition before
the issuance of the order at bar. For the same reasons I
find the operator chargeable with but little negligence.
I do find however that this violative condition did
present a serious and "significant and substantial" hazard.
Mathies, supra. It is undisputed that low air volumes may
lead to less ventilation at face areas which, in turn, would
permit the accumulation of methane to explosive levels.
Under the circumstances it would be reasonable to expect that
mining would have continued in the cited areas thereby
bringing ignition sources within close proximity to the
methane.
Ignition sources such as the ripper heads of the
continuous miner striking rock could lead to methane ignitions· and/or explosions and accordingly serious burn injuries
and/or fatalities from fire or explosions. Accordingly,
Order No. 260567~ is modified to a citation under section
104(a) of the Act and the "significant and substantial"
findings relating thereto are affirmed.' In assessing civil
penalties in these proceedings I have also considered that
the operator is medium in size and has a moderate history of
violations~
I also note that all of th~ violative conditions
were abated in a timely manner.
ORDER
Order No. 2605598 is affirmed as a section 104(d)(2)
order with "significant and substantial" findings.
Order No.
2605676 is modified to a citation under section 104(a) of the
Act and the "significant and substantial" findings associated
therewith are affirmed. Civil penalties of $350 {Civil
Penalty Docket No. SE 86-55) and $175 (Civil Penalty Docket
No. SE 86-48) are hereby assessed for these orders, respectively ctnd must be paid within 30 days of the date of this

831

decision. The associated Contest Proceedings, Docket Nos. SE
86-14-R and SE 86-16-R, are dismissed.
SETTLEMENT PROPOSAL
The Secretary has also moved for approval of a settlement agreement as to the citations and orders remaining under
Civil Penalty, Docket No. SE 86-48. A reduction in penalties
from $2,100 to $1,400 was proposed.
I have considered the
representations and documentation submitted and I conclude
that the proffered settlement is appropriate under the
criteria set forth in Section llO(i) of the Act.
ORDER
WHEREFORE, the motion for approval of settlement is
GRANTED, and it is ORDERED that in addition to the amounts
previously noted Respondent pay the proposed penalties of
$1,400 within 30 days of this order. The associated Contest
Proceedings Docket Nos. SE 86-13-R and SE 86 17-R are
dismissed.

Gary Me
Administ
Distribution:

/

Harold D. Rice, Esq., and R. Stanleyl orrow, Esq., Jim Walter
Resources, Inc. P.O. Box C-79, Birmingham, AL 35283
(Certified Mail)

H. Gerald Reynolds, Esq., Jim Walter Corporation, 1500 North
Dale Mabry Highway, Tampa, FL 33607 (Certified Mail>
George D. Palmer, Esq., Office of the Solicitor, U.S. Department of Labor, 2015 Second Avenue, North, Suite 201,
Birmingham, AL 35203 (Certified Mail)
rbg

832

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

May 14, 1986

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

CIVIL PENALTY PROCEEDING

.

Docket No. KENT 86-56
A.C. No. 15-10516-03508

:

No. 1 Surface Mine
TRIPLE B CORPORATION,
Respondent
DECISION
Appearances:

Theresa Ball, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee
for Petitioner;
Gary A. Branham, Triple B. Corporation,
Prestonsburg, Kentucky for Respondent.

Before:

Judge Melick

This case is before me upon the petition for civil
penalty filed the Secretary of Labor pursuant to section
105(d) of the Federal Mine Safety and Health Act of 197/, 30
U.S.C. § 801 et. ~, the "Act," charging the Triple B
Corporation (Triple B) with five violations of regulatory
standards. The issues before me are whether Triple B has
conunitted the violations as alleged and if so whether those
violations were of such nature as could have significantly
and substantially contributed to the cause and effect of a
coal or other mine safety or health hazard, i.e., whether the
violations were "significant and substantial". If violations
are found it will also be necessary to determine the
appropriate civil penalty to be assessed in accordance with
the criteria set forth in section llO{i) of the Act.
Citation No. 2302122 alleges "significant and substantial" violations of the standard at 30 C.F.R. § 77.1605(b)
and charges as follows:
The DM 800 Mack Grease, Oil and Fuel Truck is not
equipped with an adequate braking system. Upon
testing of the braking system the foot brakes are
weak and the truck is not equipped with a parking
brake
The cited standard requires that "mobile equipment • • •
be equipped with adequate brakes, and all trucks . • • also
be equipped with parking brakes."
833

Inspector Andrew Reed, Jr. of the Federal Mine Safety
and Health Administration CMSHA), was performing an inspection of the Triple B surface mine on October 30, 1985, when
he found the cited Mack truck with no parking brake. The
essential shoe and drum were missing. Reed acknowledged that
the truck also had a dump brake but that system would be
effective as a parking brake for only 5 to 10 minutes. It is
not disputed that this truck would be parked whi
servicing
other vehi
s and, without a parking brake, could roll into
pedestrians causing fatal injuries.
Under the circumstances
I find that the violation was serious and "significant and
substantial". Secretary v. Mathies Coal Company, 6 FMSHRC 1
(1984).
The operator was also negligent in not having the
required parking brake. Since the shoe and drum had been
missing and the brake was not functioning at all, it is the
type of violation that should have been easily discovered
during the course of the required inspections of the vehicle
whether those inspections were performed by supervisory personnel, by the truck driver, or by some other employee. Even
if the inspections were performed by the truck driver or
other nonsupervisory personnel the fact that this obvious
defect was not reported and corrected shows negligent
training and/or supervision.
The citation alleges a second violation of the same
standard for defects in the primary braking system.l/
According to Inspector Reed the brakes were weak and the
stopping time was delayed. Triple B president Gary Branham,
admitted the violation but denied that it was 11 signif icant
and substantial." There is no evidence as to the length of
any alleged delay or how far the brakes deviated from the
accepted norm.
In light of the admission I find that the
violation is proven as charged but in the absence of more
specific evidence I cannot determine whether the violation
was "significant and substantial".
In addition because of the lack of specific evidence
concerning the alleged "delay" in the functoning of the
primary braking system I can not determine whether the violation was one which should have been known to either management or the truck driver and therefore I am unable to attribute any negligence to the operator. Consistent with these
findings I note that the violation was easily abated by a
simple adjustment to the braking system.
~/

The mine operator did not object to the multiple charging
in one citation.

834

Citaticn No. 2302123 alleges a "significant and substantial" violation of the standard at 30 C.F.R. § 77.1606(c) and
charges as follows:
An equipment defect affecting safety is present on
the DM 800 Mack Grease, Oil and Fuel Truck which
has not been corrected prior to the truck's use.
The steering wheel has excessive play and the right
side tie rod end is worn out.
The cited standard requires that equipment defects
affecting safety shall be corrected before the equipment is
used.
According to the undisputed testimony of Inspector Reed
there was "excessive play in the steering" which made
handling of the vehicle difficult and likely that the driver
would lose control. Under the circumstances an accident was
reasonably likely resulting in disabling or fatal injuries
to the driver. The violation was caused by a defective tie
rod on the right side. While the evidence is again sparse I
find it to be sufficient to support Inspector Reed's conclusions that the admitted violation was indeed "significant
and substantial" and serious. Mathies, supra.
I also find that the defective tie rod and the excessive
play in the steering were defects of such a nature as should
have been discovered and corrected during the course of
pre-shift inspections of the vehicle and during its use early
on the shift. The failure to have reported and/or corrected
this condition again demonstrates operator negligence in
employee training and supervision.
Citation No. 2302124 alleges a "significant and substantial" violation of the standard at 30 C.F.R. § 77.410 and
charges as follows:
The reverse alarm is inoperative on the DM 800 Mack
Grease, Oil and Fuel Truck.
The cited standard requires that 11 mobile equipment such
as trucks • . • shall be equipped wi'th an adequate automatic
warning device which shall give an audible alarm when such
equipment is put in reverse."
According to Inspector Reea the cited vehicle would be
operated in reverse in the vicinity of pedestrian traffic
thereby presenting a serious and "significant and substantial" hazard of disabling or fatal injuries to such personnel.
The truck driver himself is able to hear whether or not the
alarm is functioning and therefore clearly should have known

835

of the violation. The mine operator is again chargeable with
negligent training and supervision for the failure of its
employees to report and/or correct this condition.
Citation No. 2302125 alleges another "significant and
substantial" violation of the standard at 30 C.F.R. §
77.1605(b) and charges as follows:
The International 350 Rock Haulage Truck is not
equipped with an adequate braking system upon
testing. The parking brake is found to be
inoperative.
It is not disputed that with·the subject parking brake
engaged there was not even a delay or restriction of movement
with the truck on a "slight" grade. According to Inspector
Reed the truck could therefore "roll off during the course of
the day when they park for dinner, park for servicing or park
at the end of the day" and cause "crushing injuries" to
pedestrians in its path. The violation was accordingly
serious and "significant and substantial." Mathies, supra.
Since the parking brake was not functioning at all it was
clearly due to operator negligence in the training and/or
supervision of its employees in failing to have such a
condition reported and/or corrected.
Citation No. 2302126 also alleges "significant and
substantial" violations of the standard at 30 C.F.R. §
77.1606Cc) and charges as follows:
Equipment defects affecting safety are present on
the International 350 Rock Haulage Truck which have
not been corrected prior to use of the truck. In
that Cl) three of the rear view mirrors (two
provided on each side of the truck) are cracked and
cause a broken and/or distorted view of rearward
visibility. (2) The pins and/or bushings in the
stationary ends of both steering jacks are badly
worn and cause excessive play in the steering
system and difficult handling.
Again the violations are not disputed but only the
"significant and substantial" findings and the amount of
penalty related thereto. According to Inspector Reed the
condition of the rear view mirrors was reasonably likely to
cause the truck to back into pedestrians or back over the
highwall thereby causing disabling or fatal injuries. This
evidence is undisputed and I find it sufficient to support
the "significant and substantial" findings and a determination that the violation was serious.
It is undisputed that the worn-out pins and bushings and
the broken bushing caused excessive play in the steering

836

thereby causing extremely difficult handling and control of
the truck. Reed observed the truck in operation and noted
that the driver was having difficulty keeping it on the road.
Reed opined without contradiction that the condition was
therefore reasonably likely to cause the truck to strike
other vehicles or leave the road thereby causing serious
disabling and/or fatal injuries. The violation was accordingly "significant and substantial" and serious. Mathies,
supra.
Reed observed that the cited conditions would have
developed over several weeks or months and accordingly should
have been discovered during the company's inspection process.
The inspection process, a management responsiblity, was
therefore deficient showing a negligent lack of supervision
and/or training. The violation was accordingly the result of
operator negligence.
In determining the amount of penalties I am assessing in
this case I have given great weight to the fact that the mine
operator is relatively small in size, has only a minor
history of reported violations, and abated the violative
condition in a timely manner. Within this framework the
following penalties are deemed appropriate:
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

2302122
2302123
2302124
2302125
2302126
Total

$ 50
$ 50
$ 50
$ 50
$ 50
$250

ORDER
The Triple B Corporation is hereby
penalties of $250 within 30 days of the

to pay civil
this decision.

Distribution:
Theresa Ball, Esq., Office of the S
of Labor, 280 U.S. Courthouse, 801
TN 37203 (Certified Mail)

u. . Department
Nashville,

Gary A. Branham, President, Triple B. Corporation, PO Box
428, Prestonsburg, KY 41653 (Certified Mail)
rbg

837

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

May 14, 1986

CIVIL PENALTY PROCEEDING

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

Docket No. SE 85-135-M
A.C. No. 08-00024-05512

v.
Brooksville Gay Quarry
FLORIDA CRUSHED STONE
COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Koutras
Statement

the Case

This is a civil penalty proceeding 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 in the amount of $6,257, for
five alleged violations of certain mandatory safety standards
found in Part 56, Title 30, Code of Federal Regulations.
The respondent filed a timely answer and contest, and the
case was scheduled for hearing in Tampa, Florida, on May 13,
1986. However, the parties filed a motion pursuant to
Commission Rule 30, 29 C.F.R. § 2700.30, seeking approval of a
settlement of the case. The citations, initial assessments, and
the proposed settlement amounts are as follows:
Citation No.

Date

30 C.F.R.
Section

Assessment

Settlement

2384726
2384728
2384729
2384875
2384876

3/27/85
3/27/85
3/27/85
7/23/85
7/23/85

56.3003
56.3005
56.18028(b)
56.20003(a)
56.12032

$6,000
$ 126
20
$
20
$
91
$

$3,000
$ 126
$
20
20
$
$
91

838

Discussion
The respondent has agreed to pay the full amount of the
proposed civil penalty assessments for four of the citations
in question. With respect to Citation No. 2384726, the record
reflects that it was issued when a section of a pit wall
collapsed, partially covering a power shovel and resulting in
the death of the shovel operator.
The inspector who issued the
citation alleged that the height of the pit bench was 60 feet,
and he believed that this height was excessive for the equipment being used. The cited safety standard provides in pertinent part that "the width and height of benches shall be
governed by the type of equipment to be used and the operation
to be performed."
With regard to the respondent's negligence for the citation
in question, the respondent represents that (1) it had regular
inspections of the highwall; (2) these inspections were designed,
inter alia, to uncover potential hazards such as that wh~ch lead
to the failure of the wall and to ensure that the width and
heights of any benches was appropriate for the equipment being
used and the operation being performed; (3) the wall had been
inspected four times during the 9-hour period preceding the
accident including one inspection only 2 hours prior to the
accident; and (4) there were no rockslides or falling rocks
noted in the 24-hours prior to the accident. MSHA has no information contrary to these representations.
Respondent represents that the defect in the highwall leading to the wall's failure was not reasonably discoverable by
inspection by qualified persons. MSHA is aware of no condition
which was visible prior to the accident which would have indicated the existence of the condition which lead to the wall's
failure.
Further, the respondent represents that, at the time
of the accident, the power shovel loading rock at the base of
the wall was backed away from the pit wall approximately 20 feet,
and the shovel cab was not rotated. MSHA has no information
contrary to these representations.
The parties agree that respondent is chargeable with only
a low degree of negligence with respect to Citation No. 2384876
in that the cited condition was the result of the accidental
failure to reinstall a single cover over an electrical switch,
contrary to the otherwise uniform procedures of the respondent.
As to the gravity of the violations alleged in Citation
Nos. 2384726, 2384728 and 2384876, the parties agree that if
an injury were to result from the conditions, such injury would
likely be serious or fatal and would likely affect one person.

839

The parties agree that Citation Nos. 2384729 and 2384875
were properly classified as "single penalty" citations in that
they were not reasonably likely to result in a reasonably
serious injury, and the respondent demonstrated little
negligence.
The parties agree that the respondent is a medium to large
mine operator subject to the Act, and that the civil penalties
in quest~on will not affect its ability to continue in business.
They also agree that the respondent demonstrated good faith by
terminating all of the alleged violations within the times
prescribed, and that during the period March, 1983 through
July, 1985, the respondent was assessed for eight violations
excluding timely paid single penalty assessments.
The parties
also agree that approval of the proposed settlement is in the
public interest and will further the intent and purpose of the
Act.
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 and in the
public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30,
the motion IS GRANTED, and the settlement IS APPROVED.
ORDER
Respondent IS ORDERED to pay civil penalties in the settlement amounts shown above in satisfaction of the citations in
question within thirty (30) days of the date of this decision
and order, and upon receipt of payment by the petitioner, this
proceeding is DISMISSED.

~./AfL
cf/~
/~~e
;£. Koutras
Administrative Law Judge

Distribution:
Larry A. Auerbach, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 339, 1371 Peachtree Street, N.E., Atlanta, GA
30367 (Certif~ed Mail)
William B. deMeza, Esq., Holland & Knight, Post Office Box 1669,
Bradenton, FL 33506 (Certified Mail)
/fb

840

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

22041

May 15, 1986

JAMES G. EADES,
Complainant

v.

.
..

DISCRIMINATION PROCEEDING
Docket No. YORK 85-11-DM
MSHA Case No. MD 85-30

ARUNDEL SAND & GRAVEL CO.,
Respondent
ORDER OF DISMISSAL
Appearances:

James G. Eades, Aberdeen, Maryland, Pro se;
Randal J. Schultz, Arundel Sand & Gravel Co.,
Baltimore, Maryland, for Respondent.

Before:

Judge Melick

At hearings on May 6, 1986, the Co lainant requested to
withdraw his Complaint herein. Under t~ circumstances of
this case the request was granted
conf ir
Commission Rule 11, 29 C.F.R. § 27

'

'

I

Judge

Distribution:
Mr. James G. Eades, 1232 s. Philadelphia Boulevard, Aberdeen,
MD 21204 (Certified Mail)
Mr. Randal J. Schultz, Director of Personnel, Arundel Sand &
Gravel Co., 110 West Road, Baltimore, MD 21204 (Certified
Mail)
rbg

841

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

May 19, 1986

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

.
..

CIVIL PENALTY PROCEEDING
Docket No. CENT 86-35-M
A.C. No. 23-00192-05502

v.
S-S-S Quarry & Mill (Pike)
S-S-S INCORPORATED,
Respondent
DECISION
Appearances:

Eliehue c. Brunson, Esq., Office of the
Solicitor, U.S. Department of Labor, Kansas
City, Missouri for Petitioner;
John M. Mcilroy, Sr., Esq., Mcilroy and Millan,
Bowling Green, Missouri for Respondent.

Before:

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.Co § 801 et. ~, the "Act," charging one regulatory
violation against S-S-S Incorporated (S-S-S), in connection
with the death of miner· Brad Hobbs on July 30, 1985.
The issues before me are whether s-s-s has committed the
violation as alleged and if so whether that violation was of
such a nature as could have significantly and substantially
contributed to the cause and effect of a coal or other mine
safety or health hazard, i.e., whether the violation was
"significant and substantial." If a violation is found it
will also be necessary to determine the appropriate civil
penalty to be assessed in accordance with the criteria set
forth in section llO(i) of the Act.
The one citation at issue,' No. 2392700, alleges a
"significant and substantial" violation of the standard at 30
C.F.R. § 56.16009 and charges as fgllows:
l"

On 7/30/85 a fatal accident occured when a laborer
was struck by a falling suspended load. He was
struck by the load as he had put himself in an

842

exposed position directly under the elevated load.
The suspended load in this case was a roll of 42"
conveyor belt.
The cited standard states that "persons shall stay clear
of suspended loads."
The events leading to the death of employee Brad Hobbs
are not in dispute. Hobbs had just been released from
military service and had been working for s-s-s as a laborer
for only 3 weeks when the accident occurred. Quarry manager
and S-S-S president Gerald Smith told senior employee Steve
Luebreicht to take Hobbs and another employee Robert Osborne
and show them how to replace a worn conveyor belt. Neither
Hobbs nor Osborne had done this before. Smith also told
crane operator William Swarnes of the plans to change the
belt and that Steve Luebreicht would tell him when he was
needed with the crane. Smith did not directly supervise the
'elt change and was not present when the accident occurred.
Steve Luebreicht acknowledged that for purposes of
changing the belt he was the "team leader." When Luebreicht
arrived at the conveyor Hobbs and Osborne, along with the new
belt and a pipe, were already there. They ran the pipe
through the center of the rolled belt, passed a chain through
the clevis attached to the crane cable and wrapped the chain
around each end of the pipe. The crane operator raised the
new belt into position as Luebreicht guided him with arm
signals, then locked the roll in position and left the scene.
The rolled belt was binding against the chain and was
difficult to unravel. Luebreicht had twice before rigged
belts for replacement but those belts were smaller and the
chain did not bind on the belt as it did now. The three men
continued tugging at the end of the belt hanging above them
to thread it into the conveyor. Hobbs was standing on the
conveyor when the belt suddenly fell striking all three and
killing Hobbs.
Osborne testified that in replacing the belt he was
taking directions from the more experienced Luebreicht.
According to Osborne it was d ficult to pull the belt and
they found it necessary to go beneath the roll in order to
rig it properly. Suddenly Osborne felt a slack in the belt,
looked up and saw the belt roll falling. Osborne acknowledged that he had never been trained and had no experience in
changing conveyor belts. However he had once been told by
Wayne Smith (President Gerry Smith's father) not to go
beneath any load. He nevertheless went under the belt on
this occasion because he thought it was necessary.

843

Howard Lucas an MSHA supervisory mine inspector testified that the use of a chain in the described manner and
particularly a chain not fastened at either end of the pipe.
nor at the clevis, was contrary to accepted safe industry
practice. Because the chain was not
tened at either end
of the pi
nor at the clevis the roll could easily shift
position, the chain slip off and the roll
11. Lu~as
observed that the manner in which the roll was jammed against
the chain made it necessary for all three of
miners to
pull on it. He also observed that in order for all three to
obtain the best grip on the belt it was necessary for one of
the men to stand on the conveyor beneath the suspended roll
where Hobbs was standing.
Within this framework of evidence it is clear that the
violation did occur as alleged and was "significant and
substantial'' and serious. Secretary v. Mathies Coal Company,
6 FMSHRC 1 (1984). The violation was also the result of
operator negligence. Although S-S-S president Gerry Smith
testified that he had showed Hobbs only a week before the
fatal accident how to stay out from under a suspended load at
another location on the mine site and two other s-s-s
employees had on one occasion overheard Wayne Smith tell
Hobbs not to stand beneath a raised loader bucket, it is
clear that the fatal accident herein was the result of
negligent supervision and inadequate training. Neither Hobbs
nor Osborne had ever had any training or experience with the
assigned task. Moreover the group 1
and only experienced employee present, Steve Luebreicht, not only failed to
warn these two miners about going beneath the suspended belt
but indeed gave implicit acceptance to the violation by
placing himself beneath the suspended belt roll in their
presence. Thus while Luebreicht may not have given direct
orders to Hobbs and Osborne to place themselves beneath the
suspended belt rollr he was nevertheless negligent by
omission" The negligent supervision by Luebreicht is also
chargeable to the operator since he was the task leader and
agent designated by President Smith. The inadequate training
of Hobbs and Osborne to safely perform the assigned task also
warrants an independent finding of operator negligence.
In assessi~g a penalty for the violation herein I have
so considered that the operator was of moderate size and
that the violation was approprately abated. There is no
evidence of any history of violations at the subject mine.
I
have also considered that the operator has already paid a
civil penalty of $5,000 for the improper rigging
the belt
roll -- the proximate cause of the fatal accident. Thus
although the instant citation charges a separate violation I
am considering the incident as a whole for purposes of an
appropriate civil penalty.

844

ORDER
S-S-S Incorporated is hereby directed to
penalty of $1,000 within 30 days o the date

ay a civil
this decision.

Distribution:
Eliehue C. Brunson, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 2106, 911 Walnut Street, Kansas
City, MO 641U6 (Certified Mail)
John M. Mcilroy, Sr., Esq., Mcilroy and Millan, 220 West
Church Street, Bowling Green, MO 63334 (Certified Mail)
rbg

845

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

MAY 231986

CONTEST PROCEEDINGS

ALLSTATE ERECTORS, INC.,
Contestant

Docket No. CENT 86-50-RM
Citation No. 2661028;
1/21/86

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

Docket No. CENT 86-51-RM
Order No. 2661030;
1/22/86
DECISION

Appearances:

Before:

L. G. Clinton, Jr., Esq., L.G. Clinton Jr. and
Associates, Houston, Texas, for Contestant·.
Max Wernick, Esq., Office of the Solicitor, U.S.
Department of Labor, Dallas, Texas, for
Respondent.

Judge Broderick

STATEMENT OF THE CASE
Contestant Allstate Erectors, Inc. (Allstate} challenges
the validity of a citation issued January 21, 1986 7 charging a
violation of 30 C.F~R. § 56.15-3r and a subsequent withdrawal
order isued January 22i 1986 for failure to abate the condition
alleged in the citation. Pursuant to notice, the case was
heard in Dallasr Texas, on March lOv 1986. Jimmy L. Jonesv a
Federal mine inspector testified pn behalf of Respondent the
Secretary of Labor (Secretary). Bernard 0. Harold and Frank
Clayton Wamble tetif ied on behalf. of Allstate.
Both parties
have filed post hearing briefs. Based on the entire record,
and considering the contentions of the parties, I make the
following decision.
FINDINGS OF FACT
Allstate was an independent contractor performing work on
January 21 and 22, 1986 in the Dallas Quarry and Plant for
General Portland, Inc. Kt the plant, limestone is quarried,
crushed and milled into cement. Allstate was fabricating a
handrail which was to be installed on a work platform
constructed above a kiln in the plant. At about 3:15 p.m. on
January 21, two employees of Allstate were working on the

846

handrail, one welding a flange to the handrail, the other
grinding with a hand-held grinder. The rail contained vertical
sections 4 to 5 feet long and horizontal sections 12 to 15 feet
long. The entire assembly weighed over 50 pounds. The flange
being welded to the rail weighed about 12 pounds, and the
grinder weighed about 12 pounds. The work was being performed
on a flat concrete surface.
At about 3:15 p.m. on January 21, 1986, Federal Mine
Inspector Jimmy L. Jones issued Citation No. 2661028, alleging
a violation of 30 C.F.R. § 56.15-3 because "a welder was
observed fabricating sections of handrail while wearing leather
work shoes without steel toes. Another employee was working in
the area using a hand held surface grinder."
Allstate admits that the employee in question was not
wearing shoes with steel toes, but there is a dispute as to the
kind of shoes he was wearing. Allstate contends that he was
wearing "sturdy work shoes, 11 and submitted a photograph
(contestant's Ex. 1) of the welder's lower legs with boots
above the ankle. The photograph was taken at some time between
January 21 and March 10, 1986. The inspector testified that
the photograph did not show the boots worn by the welder on
January 21. He stated that the top of the boots worn by the
welder were soft and that he could see the outline of the toes
through the leather. The welder was not called as a witness,
nor was the person who took the photograph. I accept the
testimony of the inspector, and find as· a fact that the welder
was wearing soft-toed leather shoes on January 21, 1986.
The citation established a termination time of 7:00 a.m.,
January 22, 1986. The inspector told the foreman Bill Harold
that the employees were exposed to hazards to the toes and
would have to have steel-toed shoes when they reported to work
the following day. The inspector.returned to the plant on
January 22, and at about 9: 00 a .m·~ observed the same Allstate
welder working on a section of pipe, welding a flange to the
end of the pipe. The pipe was 10 to ·12 inches in diameter, and
approximately 20 feet long; it was mounted on rollers on top of
work horses so that it could be rolled while the welding was
being done. The welder was wearing ~he same shoes as on the
previous day. The Allstate foreman told the inspector that he
had discussed the matter with his supervisor, and was told that
steel toed shoes were not required. The inspector issued
withdrawal order 2661030 at 9:00 a.m., January 22, 1986
requiring Allstate to have its employees provided with steel
toed shoes. The order stated that "employee was not provided
with suitable footwear in that he was wearing soft toed leather
shoes. The foreman was instructed that the employees had to
wear steel toed shoes." The employees were withdrawn and steel

847

toed shoes were provided, and the citation and order were
terminated at 10:00 a.m., January 22, 1986.
REGULATORY PROVISION
30 C.F.R. § 56.15-3 provides as follows:
All persons shall wear suitable protective footwear when in or around an area of a mine or plant where
a hazard exists which could cause an injury to the feet.
ISSUES
1. Does the evidence establish the existence on
January 21, 1986 of a hazard in the area of the plant involved
herein which could cause an injury to the feet?
2.
If so, were the employees in question wearing
suitable protective footwear?
3. If a violation was established on January 21, 1986,
was it abated within the time fixed in the citation?
CONCLUSIONS OF LAW
I.

JURISDICTION

Allstate was at all times pertinent to this case an
independent contractor performing services at a mine, and was
therefore an operator subject to the provisions of the Federal
Mine Safety and Health Act of 1977 (the Act).
I have
jurisdiction over the parties and subject matter of this
proceeding.
II.

EXISTENCE OF HAZARD TO.THE FEET

On January 21, 1986, Allstate's employees were working
with a section of handrail, weighing over 50 pounds. A flange
weighing about 12 pounds was being welded to the rail. A hand
held grinder weighing about 12 pounds was being used to grind
slag from welded areas of the rail. The rail was to be moved
to the kiln location. It is thus apparent that the rail, the
flange, and the grinder could have been dropped or otherwise
come in car.tact with the employee's feet, causing injury. In
addition, the same employees had been working on the kiln
handling sections of plate steel, and doing other work
involving heavy pipe. I conclude that the evidence establishes
that Allstate's employees were working in an area of the mine
where a hazard existed which could cause an injury to their
feet.

848

III.

SUITABLE PROTECTIVE FOOTWEAR

I have found as a fact that the miner in question was
wearing soft toed leather boots and that the outline of his
toes could be seen through the top of the boot.
It is very
clear, and I conclude, that the boots were not suitable
protective footwear. Therefore, a violation of 30 C.F.R.
§ 56.15-3 was established on January 21, 1986.
The citation
charges that the miner was wearing leather work shoes without
steel toes. The standard does not specifically require steel
toed footwear, but only suitable protective footwear, and it is
certainly conceivable that there are kinds of suitable
protective footwear which do not have steel toes.
Nevertheless, the evidence shows a clear violation of the
standard, and the overly specific wording of the citation does
not affect its validity. The citation was properly issued and
should be affirmed.
IV.

ABATEMENT

Allstate was given approximately 15 hours (until 7 a.m.
the following day) to abate the violation. The reasonableness
of the time for abatement was not challenged. At about 9:00
a.m. on January 22, 1986, the inspector found the same employee
"not provided with suitable footwear in that he was wearing
soft toed leather shoes • • • " the evidence establishes that in
fact he was wearing the same shoes he wore on the previous day.
Because the violation was not abated, an order of withdrawal
was issued under section 104(b) of the Act. The order
contained the language quoted above and added "the foreman was
instructed that the employees had to wear steel toed shoes."
As I indicated previously, the standard does not require steel
toed shoes. However, the employee in qustion was not wearing
suitable protective footwear, and.therefore the violation was
not abated. The order was properly issued and should be
affirmed. See Secretary v. Middle Kentucky Construction Co.,
Inc., 2 FMSHRC 1137 (ALJ 1980}.
ORDE~

Based on the above findings of fact and conclusions of
law, IT IS ORDERED:
1. That the notice of contest filed contesting citation
2661028 issued January 21, 1986 is DENIED.
2.

Citation 2661028 issued January 21, 1986 is AFFIRMED.

849

3. The notice of contest filed contesting withdrawal
order 2661030 issued January 22, 1986 is DENIED.
4. Withdrawal order 2661030 issued January 22, 1986 is
AFFIRMED.

j

d/vvL£-s /~f3"odtA.7,ek
James A. Broderick
Administrative Law Judge

Distribution:

L. G. Clinton, Jr., Esq., L. G. Clinton, Jr. and Associates,
5300 Memorial, Suite 470, Houston, TX 77007 (Certified Mail)
Max Wernick, Esq., U.S. Department of Labor, Office of the
Solicitor, 555 Griffin Square Bldg., Dallas, TX 75202
(Certified Mail)
slk

850

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

May 30, 1986

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

CIVIL PENTALTY PRO~EEDINGS

.

v.

Docket No. KENT 85-205
A. C. No. 15-03120-03520

.

FOUR H COAL COMPANY, INC.,
Respondent

Mine No. IE68, Orkney

DECISION
Appearances:

Carole M. Fernandez, Esq., Office of the
Solicitor, U. S. Department of Labor, Nashville,
Tennessee, for Petitioner;
Mr. J. Byron Hamilton, Operator, McDowell,
Kentucky, for Respondent

Before:

Judge Kennedy

These matters came on for a decision after hearing in
Hazard, Kentucky, on May 21, 1986. At that time, the parties
proposed settlement of the two violations charged by payment of
the following penalties:
CITATION/ORDER

AMOUNT

2467260
2467346

$ 50.00
500.00
$550.00

Based on an independent evaluati,on and de novo review of
the circumstances, as proffered in the parties' prehearing
submissions and in the evidence adduced at the hearing, the
trial judge found the settlement proposed was in accord with
the purposes and policy of the Act.

851

Accordingly, it is ORDERED that the settlement be, and
hereby is, APPROVED.
It is FURTHER ORDERED that the operator
pay the amount of the settlement agreed upon, $550, within 60
days from the date of issuance o this order and that subject
to payment the captioned matter e DISMISSED.

Distribution:
Carole M. Fernandez, Esq., Office of the Solicitor, u. S.
Department of Labor, 280 U. S. Courthouse, 801 Broadway,
Nashville, TN 37203 CCertifjed Mail)
Mr. J. Byron Hamilton, Secy~Treasurer, Four H Coal Company,
Inc., P. o. Box 290, McDowell, KY 41647 (Certified Mail)
dcp

852

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

May 30, 1986

..
.

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

CIVIL PENTALTY PROCEEDINGS
Docket No. KENT 85-214
A. C. No. 15-09655-03516

v.
Docket No. KENT 85-217
A. C. No. 15-09655-03517

:·

STONEY FORK COAL COMPANY
Respondent

.
.
.

Stoney No. 1 Mine

DECISION
Appearances:

Carole M. Fernandez, Esq., Office of the
Solicitor, u. s. Department of Labor, Nashville,
Tennessee, for Petitioner;
Mr. Rodney L. Partin, Operator, Cumberland,
Kentucky, for Respondent

Before:

Judge Kennedy

These matters came on for a decision after hearing in
Hazard, Kentucky, on May 20, 1986. At that time, the parties
proposed settlement of the eight violations charged by payment
of the following penalties:
CITATION

AMOUNT

2196110
2196112
2196114
2196143
2196144
2196122
2196141
2195771

$ 90.00
35.00
75.00
20.00
20.00
50.00
20.00
20.00
$330.00

Based on an independent evaluation and de novo review of
the circumstances, as proffered in the parties' prehearing
submissions and in the evidence adduced at the hearing, the
trial judge found the settlement proposed was in accord with
the purposes and policy of the Act.

853

Accordingly, it is ORDERED that the settlement be, and
hereby is, APPROVED. It is FURTHER ORDERED that the operator
pay the amount of the settlement agreed upon, $330, on or
before Tuesday, June 10, 1986, an
hat subject to payment the
captioned matters be DISMISSED.

Judge
Distribution:
Carole M. Fernandez, Esq., Office of the Solicitor, u. S.
Department of Labor, 280 U, S. Courthouse, 801 Broadway,
Nashville, TN 37203 (Certified Mail}
Mr. Rodney L. Partin, Stoney Fork Coal Company, P.
Cumberland, KY 40823 (Certified Mail}
dcp

854

o. Box 520,

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

May 30, 1986
CIVIL PENALTY PROCEEDING

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

Docket No. VA 85-14
A. C. No. 44-01904-03535

v.

Docket No. VA 85-25
A. C. No. 44-01904-03540

DOROTHY MAE COAL CO., INC.,
Respondent

No. 16 Mine

DEFAULT DECISION
Before:

Judge Maurer

On May 12, 1986, a show cause order was issued in the
subject proceedings giving respondent until ten {10) days ·
thereafter to provide some explanation as to why it should
not be defaulted
failing to comply with my April 9,
1986, order compelling answers to the petitioner's interrogatories.
Petitioner's interrogatories, which I find to be reasonable in number and in nature, were served upon the respondent on February 28, 1986. On March 28, 1986, petitioner moved for an order to compel answers.
On April 9, 1986,
I issued an order compelling answers to those interrogatories,
which order directed respondent to serve responses "immediately" upon the petitioner. On April 22, 1986, petitioner
still had no answers to his interrogatories and thus filed
the instant motion for a default judgment.
Respondent, for its part, has failed to
either
the answers to the interrogatories, -an explanation for not
filing those answers, or a response to the petitioner's
motion for default judgment and_ is accordingly deemed to
have wa~ved its right to a hearing.· The propo
civil
penalties shall
be made the final order of the
Commission.
WHEREFORE IT IS ORDERED that respondent pay the Secretary's proposed civil penalties in the amount of $7,260
within 30 days of this decision.

R& ~!!fa

PMAMr

Administrative Law Judge

855

Distribution:
Mary K. Spencer, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
James Harman, Operator, Dorothy Mae Coal Co., Inc., P. O.
Box 467, Keen Mountain, VA 24624 (Certified Mail)

856

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

May 30, 1986
CIVIL PENALTY PROCEEDING

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

Dock~t No. PENN 85-273
A. C. No. 36-00926-03594

Homer City Mine

v.
HELEN MINING COMPANY,
Respondent.

DECISION
Appearances:

James E. Culp, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner;
Ronald B. ·Johnson, Esq., Recht & Johnson,
Wheeling, West Virginia, for.Respondent.

Before:

Judge Maurer
Statement of the Case

This case is before me upon a petition for assessment of
civil penalties under section lOS(d) of the Federal Mine Safety
and Health Act bf 1977, 30 u.s.c. section 801, et seq., the
"Act,".iµ which the Secretary charges the HelenMinrrlg Company with two violations of the mandatory standard at 30
C.F.R. § "7S.308. The general issues before me are whether
the company-.has violated the regulatory standarq as alleged·
in the petition and, if so, the appropriate civil pe~alty to
be assessed· for the violation(s). ·Although counsel for the
respondent, by his Answer, seemed to be seeking a ruling on
whether these orders were valid or not, I note that neither
has been contested. ·Moreover, in a civil penalty case, the
validity of the order is not considered to be an issue.
Pontiki Coal Corp., 1 FMSHRC 1476 (1979).
The hearing was held as rescheduled on February 6, 1986,
at Pittsburgh, Pennsylvania.
Documentary evidence and oral
testimony was received from both parties. Additionally, the
parties have both filed post-hearing proposed findings and
conclusions~ and the arguments presented therein have been
considered by me in the course of this decision.

857

The Mandatory Standard
Section 7~.308 of the mandatory standard, 30 C.F.R.
§ 75.308, provides as follows:
If at any time the air at any working place,
when tested at a point not less than 12 inches
from the roof, face, or rib, contains 1.0 volume
per centum or more of methane, changes o-r adjustments shall be"made at once in the ventilation
in such mine so that such air shall contain less
than 1.0 volume per centum of methane.· While such
changes or adjustments are underway and until they
have been achieved, power to electric ·face equipment ·located ±n such place shall be cut off, no
other-work shall be permitted in such place, and
due precautions shall be carried out under the
direction of the operator or his agent so as not
to endanger other areas of the mine.
If at any
time ·such air cpntains 1.5 volume per centumor
more of methane, all persons, except those referred
to in section l04(d) of the Act, shall be withdrawn
from the area of the mine ·endangered thereby to a
safe area, and all electric power shall be cut off
from the endangered area of the mine, until the air
in such working place shall contain le·ss than 1. 0
volume per centum of methane.
The Cited Conditions or Practices
Section 104 (d) (2) Order No.· 2407973 cites a violation of
30 C.F.R. ~ 75.308 for the following alleged condition or
practice:
Suitable precautions were not taken by the section foreman Ste~e Kasperik i~ muddy run right
side 06.9-0 section. An accumulation of'. methane
in excess of 1% was discovered in.the· crosscut
five to four entry. Air being used to ventilate
this .face traveled downwind to the crosscut six
to five entry where the 1206 Jeffrey miner was
energized and be~ng .used to load coal. Methane
reading at the face of this crosscut 6 to 5 did
not exceed .4%
methane.
Section 104 (d) (2) Order No. 24079·74 likewise cites a
violation of 30 C.F.R. § 75.308 and states:
The ventilating air at the face of crosscut five
to 4 entry contained in excess of 1.5% methane.
The section foreman was Steve Kasperik. Multiple

858

methane examinations were made at·the face with
three separate and approved methane detectors
indidating methane in excess of L 5%. ·The power
was not deenergized to the muddy run sections
right and left side· 001-0 and 069::-:-0.
Information supplied by the .persons of the muddy run
right side crew indicate the foreman was aware
the condition existed and did rtot deenergize the
sections power. Methane examinations had been
made by at least two men of the crew and als.o
the foreman.
A Fletcher twi'n boom bolter was
present at the face.
Power was deenergized
only to the bolter.
Stipulations
At the hearing, the parties agreed to the following
stipulations, which were accepted (Tr.· 5-6):
1. The Homer City Mine is owned by the respondent,
Helen Mining Company.
2.
The Homer City Mine is subject to the jurisdiction
of the Federal Mine Safety and Hea1th Act of 1977.
3.
The undersigned administrative law judge has jurisdiction over these proceedings.
4.
The subject orders, terminations, modifications,
and notices were properly served.by duly authorized representatives of the Secretary df Labor, on an agent of the
respon.dent at. the dates, times, and places stated therein,
and may be a.dmi tted into· evidence for purposes of establishing their issuance and not for the truthfulnes~ or
relevance of any statement therein •.
5.
The alleged violations were abated in a timely
fashion.
6.
Respondent's annuai ,production is two million,
nine hundred ~nd seventy-four thousand, nine hundred and
four {2,974,~04) production tons annually:
The· subject mine
has one million, forty-six thousand, three hundred and
twenty-eight '(l,046,328) annual production tons.
7.
Respondent had ~wenty-four assessed violations in
the two-month ·period prior to the issuance of the orders
herein in which it operated the Homer City Mine.

859

Discussion and Analysis
Ronald Rhoades is a miner employed by the He.len Mining
Comp<;tny. He testified that on February 25, 1985, he was
assigned to work as a roof bolter in number five entry of the
Muddy Run Right Side at the Homer City Mine • . Ed Hank.:i,.nson,·
who also testified in this proceeding, was assigned to be his
helper on.that shift. Opon their arrival at the roof-bolting
machine, located at "A" on GX-6, Rhoades took a methane check
with a CSA.digital type detector, and got a -reading of between 1. 7 and L 9 percent methane. · He immediately cut the
power off at the -roof-l;>olting machine, sent someone back to
turn tne power off at the power center, sent for the foreman,
and began.to make corrections in the line.brattice to get
rid of the methane.·. Mr. Hankinson, in the meantime, was
taking other·readings, both with the same detector Rhoades
had used as well as.the detector off a continuous miner
located in tile.crosscut, six to five.
He also obtained
methane-levei readings of 1.7 to 1.9 percent with both
detectors.
The foreman for the entire Muddy Run area on that
shi , both the Left and Right Sides, was Mr. Steve Kasperik,
who likewise testified in this·proceeding.
He arrived in
the area approximately twenty minutes to a half hour later •.
Upon his arrival he.took a methane reading. What that reading was is in serious contention in this case. The Secretary contends. that it di~closed a methane level of nearly
2 percent. .The respondent's position is that it was 1. 3%.
The importance of the· issue being that a reading of 1.5 percent or greatei brings the last sentence of section 75.308
into effect.
The resolution of this factual issue turns on the credibility of the miner witnesses and that of the for~man, Mr.
Kasperik, aswell .. as the totality of the circumstances
surrounding the incident on the date fn question.
Rhoades
and Hankinson
stified that they had obtained several
readings qt' 1.7 to 1. 9 percent methane levels in number five
entry and had so informed Kasperik.· - Rhoades
so
stified
that Kasperik himself took a methane reading· in number five
entry and stated that "you guys got upwards of 2 percent'' or
words to that
feet.
Significantly, Mr. Kasperik does not
deny making this statement, even though he later maintained
that the reading was 1.3%. Further, a comparison of the
subsequent actions of Rhoades and 'Kasperik lends credence to·
Rhoades.
Rhoades expeditiously "went public." He contacted
MSHA the following day in an
fort to.have what he considered to
a serious mine safety concern addressed by someone in offibialdom.
KasPerik, on the other hand, did not
record a methane reading in the pre-shi
and·on-shi
examination book, but rather entered the word "none" under

860

hazardous conditions.
"forgot" to put it ih
entry the next day.

He admits this was a mistake, but he
book. He made the appropriate

th~

Additionally, according to the testimony of Inspectors
Collingsworth. and Burkey, Mr. Kasperik was very reticent
during the meeting held oh February 26, 1985, concerning-the
incident of the previous day.
They both testified that they
repeatedly questioned him about what his initial methanelevel reading had been before he finally stated it had been
1.3 percent. Also, they both testified that he had no
explanatidn for his failure to make the required entry in
the mine records.
For &ll ·of the above reasons, I find as a fact that
'there was a methane level of 1.7 to 1.9 percent present in·
number five entry as testified to .by Rhoades and Hankinson
and that Kasperik as a representative and agent of the
respondent was aware of it.at the time that it existed.
Mr,. Kasperik took per:nonal charge
supervising the
dissipation of the methane accumulation. He determined that
the methane was coming from· a "bleeder"· in the upper left
corner·of the cross-cut in a difficult spot to ventilate.
He order_ed the canvas tightened up and .rearranged in working
place number five on RX-1 to' better ventilate that corner.
He took several methane-level readings-downstream of the
"bleeder," extend.ing over to and beyond working place number
six on RX--·l ·in the adjacent entry. The methane-level readings he obfained in these areas were generally .3%.
It
should be noted here that tne operator of the continuous
mining machine in entry number six also took methane-level
readings .downstream of working place number five, including
working place number six.
His readings did not ex.ceed • 4%
in any of those locations.
In general, Mr. Kasperik was
following a written company policy (RX-2) for action to be
taken when a methane level is detected in the range of 1 to
1. 5 percent.
That written company policy (RX-2) also contains instructions concerning what to do if a 1.5% methane level
is detected.
As ·r have .found as a fact that the methane
level was in excess of 1. 5% that is the portion of Respondent's Exhibit No .. 2 that is more relevant to this case •
. That portion of the policy mandates,~inter alia, that
machinery·in that working place be de-energized, that power
to the section be de-energized and that all men not involved in eliminating gas should be withdrawn ·from the
face area. Under the state.of facts as I have found them
to be, Mr. ·Kasperik's actions were inco"nsistent with company
policy as well as with the requirements of the mandatory
standard.

861

It is undisputed and I find as a fact that.no power to
Muddy Run Right
Left. Side was ever de-energized except
that to the roof-bolting machine in number five entry during the entire incident at .issue.

or

I further find as a fact that while-the methane level
was in excess of i.5% in number five entry, Kasperik ordered
the continuous miner operator and his helper as·well as a
shuttle car operator to perform clean-up operations in
number six entry of Muddy Run Right Side.
Rhoades testified
that he irome·diately objected. · He stated at Tr. 15:
I que~tioned him at that time, whether what he
was doing, what he suggested they do was right.
He said, yes, he. said, the problem we have here
affect~ this area, this place, this working place
right here.
I ·said, well we got, you know, we
got better than a percent and a half, ·two percent
of. gas almost.- He said,· the·problem that you have
here is within, or in this entry and this working
place.·· He says, those guys can go over there, get
that place cleaned up and get that miner moved.
It is- also undisputed that this mine's ventilation
system moves.the air from number five entry through number
six entry of Muddy Run Right Side.
•rhe inspectors who
testified at ·'the hearing consistently stated that. the only
way to get rid of the methane accumulation in number five
entry was to improve ventilation, which was being done under
the direction -of fo.reman· Kasperik.
However, they testified
that you· have.to i;:ake precautions when you move an accumulation in excess of 1.5 percent methane so as not to pass
that body .of gas over any potential ignition sources, and
any operation of energized mining equ:lpment may obviously
create potential ignition sources. ·
Further, the regulations require that you withdraw all
persons and cut off all power from the endangered area of
the mine, until the air "at any working place" contains less
than 1 percent methane. "It is not contended that this was
done and in fact it was not done.
Respondent's first line of defense in this case is
that there never was a stable reading in excess of 1.5%
that management was aware of at. the time it existed.
As
noted above; I have rejected that argument and found the
facts to·be dtherwise. Next, respondent notes that Kasperik
prudently decided not to mine any coal with the continuous
mining machin(j:! in working place number six as a precaution
and the only activity that ~ook place in either number five

862

or number six.entry other than the readings and making corrections to the ventilation system was that the continuous
mining machi:r:ie was u::fo<?._ to pick up loose coal laying on the
bottom in.working place number six. Only enough loose coal
to fill one shutt
car half.-way was picked up.
Further,
respondent notes that even- this activity was not carried out
until it had been ascertained that the methane-levels at
working place rn.il.mber five had not moved beyond that point
and the methane2...level was only .3 to .4% downstream and into
working place number si~.
I find this to be credible evi-dence, unrebutted·by the Secretary. However, it falls short
of compliance with 30 C.F .. R. § 75.308.
The last sentence of that section of the mandatory
standard states_that "[i]f at any time such air (the air
at any wo.rking place) contains L 5 volume per centum 'or· more
of methane, all persons, except those referred to in section
104 (d) of the Act (i.e. , those involved in eliminating· the··
hazard) , shall be withdrawn from the area of the mine enda.ngered thereby to
safe area, and all electric power shall
be cut off ·.~rom the endangered area of the mine, until the
air in such working place (i.e., working place number· five
on RX-1) shall contain less than 1.0 volume per centum of
methane."
[Emphasis and parentheticals added].

a

The only issue left at this point in the analysis then
is to define_ the endangered a~ea of the mine.
On this point
I accept as credible.the testimony of Inspectors Burkey arid
Sparvieri that the endangered area of the mi-ne within the
meaning of § 75.308 was the Muddy Run Right and Left Sides
because even though the gas ·problem existed in number five
entry of Muddy Run Right Side, Muddy Run Left Side is only
separated by a ventilation curtain.
Therefore, I conclude that ~espondent did violate 30
C.F.R. § 75.308 by failing to de-energize the endangered
area of the mine and withdraw the miners from same when
the methane level in number five entry of Muddy Run Right
Side was in excess of 1.5 percent~
Order No. 2407974 is
affirmed.
An appropriate civil penalty must also be assessed if
a violatidn.is found and a determination rnust.b~ made as
to whether that violation was "significant and substantial."
See generally the Commission decisions in National Gypsum'
Co., 3 FMSHRC 822 (1981) and Mathies Coal Co., 6 FMSHRC 1
TI984) for the applied definition of 11 significant and
substantial."
I find that the respondent's failure to de-energize
the Muddy Rury sections and withdraw the miners and indeed

863

to operate the continuous miner in number six entry of Muddy
Run Right Side while the methane level was in excess of 1.5%
in the adjacent entry subjected the exposed miners to an
increased danger of methane ignition or explosion which
could have resulted in fatal or permanently disabling injuries to them. Further, in this regard, I note that this
mine is classifi.ed as a gassy mine, producing two and a half
million cubic feet of methane in a twenty-four hour period.
Accordingly, I find that the violation is "significant and
substantial." I also find that there is a high degree of
gravity associated with the violation, that is, the occurrence of the event against which the.cited standard is directed was "reasonably likely."
Under the criteria enumerated in section llO(i) of
the Act, I have considered the stipulations of the parties
concerning the operator's violation history,
ze
the
operator's business, and the fact that the violation was
abated in a timely fashion.
Further, I find that the
respondent, through and by its management representative,
Mr. Kasperik, had actual knowledge of the violation at the
time it existed. Therefore, I find that the respondent is
chargeable with a high degree of negligence.
I have already stated my findings with regard to gravity, supra.
Therefore, considering all of the statutory factors, I
conclude that a penalty of $1,500 is appropriate.
My decision with regard to Order No. 2407973 requires
a short legal analysis and involves making a conclusion of
law. The language of 30 C.F.R. § 75.308 requires certain
action when the air at any working place contains 1.0% or
more of methane.
If at any time that air contains 1.5%-0r
more of methane, all that is required for a 1.0% concentration is still required, plus additional action is now
required.
~~
The action required to be taken for methane levels in
excess of 1.5%, but which was not taken, and for which I
have already found a violation of section 75.308 and affirmed Order No. 2407974, would include de-energizing the
continuous miner in working place number six, which is the
activity complained of in Order No. 2407973. Therefore,
I concur with the respondent's argument that the violation
written up in Order No. 2407973 is included within and is
duplicative of the violation found to exist in Order No.
2407974. Therefore, I find as a matter of law that Order
No. 2407973 alleges a lesser included violation of the
identical standard and is hereby vacated and dismissed.

864

ORDER
Order No. 2407974 is AFFIRMED and the respondent is
ORDERED to pay a civil penalty in the amount of $1,500
within 30 days of the date of this decision.
Order No.
2407973 is VACATED and DISMISSED.

Distribution:
James E. Culp, Esq., Office of the So citor, U. s. Department
of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified
Mail)
Ronald B. Johnson, Esq., Recht & Johnson, 3000 Boury Center,
Wheeling, WV 26003 (Certified Mail)

yh

865

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COlFAX AVENUE. SUITE 400
DENVER, COLORADO

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

May 3 Q / 19 8 6
CIVIL PENALTY PROCEEDINGS
80204

Docket No. iVEST 85-139-M
A.C. No. 05-00967-05504
Docket No. WEST 85-145-M
A.C. No. 05-00967-05505

v.

Docket No. WEST 85-155-M
A.C. No. 05-00967-05506

DELTA SAND AND GRAVEL
COMPANY,
Respondent

Docket No. WEST 86-64-M
A.C. No. 05-00967-05507
Delta Sand Pit No. 1
DECISION

Appearances:

James Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Jack Starner, President, Delta Sand and Gravel
Company, Delta, Colorado,
for Respondent.

Before:

Judge Carlson

These four consolidated cases came regularly on for hearing
at Grand Junction, Colorado on May 1, 1986. At the outset of
the hearing the parties announced that they had reached a settlement that morning which, if approved, would resolve all matters
in dispute.
The terms of the proposed settlement are as follows:
In docket number WEST 85-139-M, which embraces seven citations, the Secretary moves to amend the proposed penalty for
citation number 2355215 from $36.00 to $20.00. He further moves
to withdraw citations numbered 2355212 and 2355211 on grounds of
insufficient evidence to prove the violations alleged.
Respondent, conditioned upon the granting of the Secretary's
motions, agrees to pay the originally proposed $20.00 penalties
for citations numbered 2355214, 2355216, 2355218 and 2355283, as
well as the amended $20.00 penalty for citation number 2355215.
It also agrees to withdraw its notice of contest to the citations
which are to be affirmed.

866

In docket number WEST 85-145-M, which consists of a
single citation, number 2355282, respondent agrees to pay
the $20.00 penalty originally proposed. It further moves
to withdraw its notice of contest to the citation.
Docket number WEST 85-155-M also consists of a single
citation, number 2355284, together with an order, number
2355285. The file indicates that the inspector issued the
citation on May 22, 1985, under section 103{a) of the Act
for respondent's failure to allow entry for purposes of
inspection. Later that same morning the inspector
sued
withdrawal order number 2355285 for respondent's failure to
abate the citation. The texts of the order declares that
the order ''replaces" the citation. The Secretary's petition
and the assessment sheet, however, refer to the citation
only in proposing a penalty of $150.00. For consistency's
sake, then, only the citation will be dealt with in the
decision.
The Secretary moves to amend the proposed penalty from
$150.00 to $20.00. The Secretary urges this reduction on
grounds that the inspection was in fact a follow-up. The
wife of respondent's president refused to allow the inspector
into the mine because her husband was not on the premises
and he, not she, had been present at the original inspection.
Respondent agrees to pay the amended $20.00 penalty,
and moves to withdraw his notice of contest.
Docket number WEST 86-64-M includes a single citation,
number 2355213. The Secretary moves to amend the proposed
citation from $36.00 to $20.00. In return, the respondent
agrees to pay the amended amount and to withdraw its notice
of contest.
Based upon the representations of the parties at the
hearing and the contents of the files, I conclude that the
settlement agreement should be approved in all respects.
Accordingly, it is ORDERED that citations numbered 2355215,
2355214, 2355216, 2355218, 2355283; 2355282, 2355284 and 2355213
are affirmed, whereas citations numbered 2355211 and 2355212
are vacated.
It is further ORDERED that respondent shall pay
to the Secretary of Labor a total civil penalty of $160.00
within 40 days of the date of this decision.

ohn A. Carlson
Administrative Law Judge

867

Distribution:
James Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
Colorado 80294
(Certified Mail)
Mr. Jack Starner, President, Delta Sand and Gravel Company,
P.O. Box 103, Delta, Colorado 81416
(Certified Mail)

/ot

863

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W COLFAX AVENUE. SUITE 400
DENVER. COtORADO

80204

Ml\Y ~~ 01986

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEAL'l'H
ADMINIS'I'RA'I'ION (MSHA) I

Docket No. WEST 85-144-.M

Petitioner

A.C. No. 05-00630-05519

v.

Franklin 73 Mine

FRANKLIN CONSOLIDATED
MINES I

INC. ,

Respondent
DECISION
Appearances:

Robert J. Lesnick, Esq., Office of the
Solicitor, U.S. Department of Labor, Denver,
Colorado,
for Petitioner;
No appearance on behalf of Respondent.

Before:

Judge Carlson

Pursuant to notice, a hearing on the mer
in this
civil penalty proceeding was convened on February 21, 1986,
in Denver, Colorado at 10:45 a.m. No appearance was made by
or on behalf of the respondent mine operator. At 10:55 a.m.,
counsel for the Secretary of Labor moved for an order of default affirming the citations and imposing the proposed
penalties. The motion was taken under advisement and the
hearing was adjourned (Tr. 4-5).
On February 21, 1986, this judge ordered respondent to
show cause why a default should not be entered. The operator,
in response, indicated that its former mine superintendent,
who had intended to represent the company "failed to remember
the date.
Respondent entered the appearance of its corporate
president and asked that a new hearing date be scheduled.
11

The default was denied and a hearing was set for April 9,
Prior to that date, however, the parties notified this
judge that a settlement agreement had been reached. They have
now submitted a joint motion to approve a settlement agreement.
The terms of the agreement provide that the respondent shall pay
the $405.00 civil penalty originally proposed by the Secretary
and shall withdraw its contest to such penalty.
1986.

I conclude that the penalty should be approved in all
respects.

869

Accordingly, the settlement agreement is ORDERED
approved and the attendant motions are granted. Respondent
is ORDERED to pay to the Secretary of Labor a civil penalty
of $405.00 within 40 days of the date of this decision.

A. Carlson
Administrative Law Judge

Distribution:
Robert J. Lesnick, Esq. and Margaret A. Miller, Esq.,
Office of the Solicitor, U.S. Department of Labor, 1585
Federal Building, 1961 Stout Street, Denver, Colorado 80294
(Certified Mail)
George Otten, President, Franklin Consolidated Mines, Inc.,
P.O. Box 508, Idaho Springs, Colorado 80452
(Certified Mail)

/ot
870

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

May 30, 1986
SECRETARY OF LABOR,
MINE SAF.ETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS

v.

Docket No. WEST 85-168-M
A.C. No. 05-00862-05502

Docket No. WEST 85-167-M
A.C. No. 05-00862-05501

LOUKONEN BROS. STONE CO.,
Respondent

Loukonen Bros. Silica Quarry
DECISION

Appearances:

Robert J. Lesnick, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Leonard Loukonen, Loukonen Brothers Stone, Company,
Lyons, Colorado,
pro se, for Respondent.

Before:

Judge Carlson

This consolidated case, heard under the provisions of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (the Act), arose out of inspections on July 11 and July-r2,
1985, at respondent's silica pit near Lyons, Colorado. On those
dates, Lyle Marti, a federal mine inspector issued 16 citations
for alleged violations of various mandatory safety standards
promulgated by the Secretary of Labor pursuant to the Act.
The
respondent, Loukonen Bros. Stone Co., contested the Secretary's
petition for imposition of civil penalties.
The case was heard
in Denver, Colorado, with both parties presenting evidence. Both
parties waived the filing of briefs or other post-hearing submissions.
GENERAL BACKGROUNQ
The undisputed evidence shows that respondent's mine is an
open pit silica rock mining and processing operation. The rock
is extracted by blasting and is then crushed on-site, after which
it is sold to the cement industry. The enterprise is quite small.
A partnership, its usual workforce is but three miners. These
men alternate between mining the rock and running the crushing
operation. Most of the citations in this consolidated proceeding
were aimed at equipment used in the crushing activities.

871

The business of the mine tends to be seasonal with little
work done in the winter months. The partnership had operated the
site since 1969.
Mr. Marti, the Secretary's inspector, in addition to
carrying out the ordinary duties of a mine inspector, is
certified as an electrical inspector. He testified concerning
all the alleged violations. Mr. Leonard Loukonen, one of the
partner's in respondent's enterprise, represented respondent.
Mr. Loukonen testified only briefly. He limited his remarks
almost exclusively to background information concerning the mine,
and to a brief explanation concerning the alleged electrical
violations.
In this latter regard, he testified that mine
management had relied upon the expertise of the manufacturers and
contractors who originally supplied the electrical equipment and
systems.
Mr. Loukonen did not avail himself of his right to cross
examine the inspector, the Secretary's sole witness. Neither did
he present any testimony in an attempt to rebut the Secretary's
evidence regarding the existence of the alleged violations. The
respondent, that is to say, was content to remain silent concerning the alleged violations, while putting the Secretary to
his proofs.
JURISDICTION
To show that respondent's business activities "affected
commerce" within the meaning of the Act, the Secretary presented
testimony that much of the mining equipment used by respondent
was manufactured outside the State of Colorado. The testimony
was unrebutted.
I conclude that respondent's activities affected
commerce.
REVIEW AND DISCUSSION OF THE
EVIDENCE RELATING TO ALLEGED VIOLATIONS
Citation No. 2358724
Inspector Marti, during his inspection of the Loukonen
operation, observed that respondent was using a front-end loader
to carry dy~amite. Workers had placed the dynamite in the metal
bucket of the loader. The metal of which the bucket was
constructed was not insulated by nonconductive materials.
The inspector concluded that use of the bucket in this
fashion violated the mandatory safety standard published at 30
C.F.R. § 56.6047. That standard provides:
Vehicles used to transport explosives, other than
blasting agents, shall have substantially constructed

872

bodies, no sparking metal exposed in the cargo space,
and shall be equipped with suitable sides and tail gates;
explosives shall not be piled higher than the side or
end enclosures.
The undisputed evidence shows that the alleged violation
occurred.
citation No. 2358725
The carrying of dynamite in respondent's loader also gave
rise to another alleged violation. The inspector noted that the
loader displayed no warning signs to signify that it was carrying
explosives. He cited respondent for failure to comply with the
mandatory safety standard published at 30 C.F.R. § 56.6043. That
standard provides:
Vehicles containing explosives or detonators shall be
posted with proper warning signs.
The undisputed evidence shows that the alleged violation
occurred.
Citation No. 2358726
During his inspection the inspector saw uncovered nail heads
in the interior of the explosives magazine at respondent's pit.
A part of the construction of the magazine, the nails had not
been countersunk, and had not been filled over with nonconductive
material.
He believed the exposed metal nails were violative of
the mandatory safety standard published at 30 C.F.R. § 56.6020.
That standard, as pertinent here, provides:
Magazines shall be (f) made
non-sparking materials on the inside, including floors .•••
Inspector Marti maintained that the nail heads could conduct
static electricity or a nearby discharge of lightning into the
magazine enclosure. Approximately eight cases of dynamite were
in the magazine at the time of the inspection.
The undisputed evidence shows that the alleged violation
occurred.
Citation No. 2358727
When Inspector Marti examined the primary crusher at
respondent's pit, he observed what he believed were deficiencies
in the wooden platform attached to the west side of the crusher.
He cited these deficiencies as a violation of the mandatory
safety standards published at 30 C.F.R. § 56.11027. That
standard provides:

873

Scaffolds and working platforms shall be of substantial
construction and provided with handrails and maintain
in good condition. Floor boards shall be laid properly
and the scaffolds and working platforms shall not be
overloaded. Working platforms shall be provided with
toeboards when necessary.
Specifically, according to the inspector's testimony, the
platform consisted of a single 2 x 8 inch wooden plank. The
plank was approximately 6 feet above the ground. The violative
condition, in the inspector's view, was that the handrails could
not be effective to prevent falls because they were spaced out
laterally from the edges of the planking six to eight inches.
Thus, should a worker make a misstep, he could easily fall
between the handrail and the edge of the plank (Tr. 40-41).
I must conclude that the undisputed testimony established
the violation.
Citation No. 2358728
On the opposite side of the same primary crusher the
inspector saw another inadequate platform. This one was 6 to 8
above the ground and gave workers access to the hopper bin
for maintenance purposes.
Inspector Marti testified that a part
of the platform was constructed of metal screen; the remainder
consisted of a deteriorating 2 x 8 inch wooden plank. The plank,
the inspector maintained, was not of the "substantial construction" required for platforms by 30 C.F.R. § 56.11027. Also,
the handrails were again so placed that a worker could easily
fall through the space between the outside edge of the plank and
the inside edge of the rail. The metal screen was also inadequate for a platform, according to the inspector, because it was
too light and weako
§

The uncontested evidence shows a violation of 30 C.F.R.
56.11027.

Citation No. 2358729
On the
t side of respondent's secondary crusher the
inspector noted that an electrical control panel located 8 feet
above the ground was provided with no safe means of access. He
testified that in the event of an emergency, a worker would have
to climb up the frame of the machine to reach the disconnect
switch or the other electrical components. He therefore cited
respondent for violating the mandatory safety standard published
at 30 C.F.R. § 56.11001. That standard provides:
Safe means of access shall be provided and maintained
to all working places.
The uncontested evidence shows a violation of the standard.

874

Citation No. 2358730
This citation, too, concerns an alleged falling hazard. The
inspector testified that steps leading from the primary crusher
engine workdeck to the primary crusher workdeck were not provided
with handrails.
He cited this condition as a violation of 30
C.F.R. § 56.1102. That standard provides:
Crossovers, elevated walkways, elevated ramps, and stairways shall be of substantial construction provided with
handrails, and maintained in good condition. Where
necessary, toeboards shall be provided.
The steps in question varied from 6 to 8 feet above the
ground.
The uncontested evidence shows a violation of the cited
standard.
Citation No. 2358731
Inspector Marti testified that the working deck and
travelway around the primary crusher engine had unprotected
openings large enough for a worker's foot to fall through. The
holes, he stated, could cause sprains or broken bones. He
believed that this condition violated the mandatory safety
standard published at 30 C.F.R. § 56.11012. That standard
provides:
Openings above, below, or near travelways through which
persons or materials may fall shall be protected by
railings, barriers, or covers. Where it is impractical
to install such protective devices, adequate warning
signals shall be installed.
The evidence shows that the standard was violated as
alleged.
Citation No. 2358732
According to the inspector, the guard for a flywheel and its
belt and chain drive on the east side of the primary crusher was
of insubstantial construction and did not fully cover pinch
points. Specifically, the guard had been broken loose and bent
so that it no longer performed its proper function.
The bottom
of the flywheel in question was about 5 feet above the ground.
In terms of the hazard presented, the inspector's chief concern
was that a worker climbing a nearby ladder on the crusher frame
could slip and catch a hand or arm in the incompletely guarded
pinch-point. He cited the defective guard as a violation of the
mandatory safety standard cited at 30 C.F.R. § 56.14007. That
standard provides:

875

Guards shall be of substantial construction and properly
maintained.
The evidence establishes that respondent violated the cited
standard.
Citation No. 2358733
Inspector Marti noted that the drive shaft furnishing power
to the crus
s was incompletely guarded. The large shaft,
situated some 3 feet above the ground, was guarded on both sides
and above, but not below. Marti testified that should the
universal joint on the shaft break while the shaft was turning at
high revolutions, the lack
guarding on the far side could
allow the shaft to drop and whip about violently. This whipping
action, he maintained, could fragment the incomplete guard and
hurl the fragments considerable distances. The inspector cited
the lack of a guard completely surrounding the shaft as a
violation of the mandatory safety standard published at 30 C.F.R.
§ 56.14007. That standard proivdes:
Guards shall be of substantial construction and properly
maintained.
The evidence establishes that respondent violated the cited
standard as alleged.
Citation No. 2358734
Inspector Marti examined the generator and engine that
supplied electrical power to the secondary crusher and conveyor
at respondent's pit. In the course of his examination he found
that the 480 volt system lacked a record of testing for a proper
ground to earth. Grounding to earth is necessary, the inspector
testified, to insure that the
ses or circuit breakers in the
control panels operate properly. Otherwise, should a motor short
out, a worker touching a piece of equipment can become a conductor and suffer an electrical shock. The inspector testifi
that Leonard Loukonen acknowledged to him that the
fectiveness
of the ground to earth had not been tested annually or otherwise.
Marti ci
the record keeping failure as a violation of the
mandatory safety standard published at 30 C.F.R. § 56.12028.
That stand~rd provides:
Continuity and resistance of grounding systems shall
be tested immediately after installation, repair, and
modification; and annually thereafter. A record of the
resistance measured during the most recent tests shall
be made available on a request by the Secretary or his
duly authorized representative.

876

The evidence shows that the testing and recording standard
was violated as alleged.
Citation No. 2358735
This citation also alleges a violation of an electrical
standard.
According to the inspector, there was no ground wire
in the metal-enclosed electrical cable providing power to the 440
volt motors serving the secondary crusher. He testified that a
fourth wire was necessary to meet the requirements of the
grounding standard published at 30 C.F.R. § 56.12025. That
standard provides:
All metal enclosing or encasing electrical circuits
shall be grounded or provided with equivalent protection.
This requirement does not apply to battery-operated
equipment.
"Equivalent protection," as used in the standard, can only
mean a ground fault circuit interrupter within the system, the
inspector testified. The system had no such device.
The uncontested evidence shows that the respondent violated
the cited standard.
Citation No. 2358736
This citation charges a violation of 30 C.F.R. § 56.12025,
the same standard cited in the citation discussed immediately
above. The inspector testified that eight metal electrical
enclosure boxes mounted on the secondary crusher were not
grounded, nor were they served by a ground fault circuit interrupter.
The undisputed evidence establishes a violation.
Citation No. 2358737
Inspector Marti noted a guarding defect on respondent's
secondary crusher. Specifically, he noted that at the end of the
discharge belt the belt and pulley presented an unguarded
pinch-point. Ordinarily, he testified, this pinch-point would be
10 to 12 feet above ground level and would off er no hazard to
workers. Because of a buildup of materials below the pinchpoint, however, the miners could conceivably be caught up in the
pinch-point. The new ground level created by the pile of
materials was but 5 feet below the belt and pulley.
The inspector cited this condition as a violation of the
mandatory safety standard published at 30 C.F.R. § 56.14001.
That standard provides:

877

Gears; sprockets; chains; drive, head, tail, and takeup
pulleys; flywheels; couplings; shafts; sawblades; fan
inlets; and similar exposed moving machine parts which
may cause injury to persons, shall be guarded.
The evidence establishes the violation.
Citation No. 2358738
This citation alleges an electrical violation. According to
the inspector, the metal cover plate intended to cover a splice
box on the 440 volt generator set was missing. The box contains
the terminals which connect the generator to the power cable.
The inspector's chief concern was that rodents would enter the
box (situated only 6 inches above the ground) and cause electrical shorts by gnawing away insulating materials.
He therefore cited respondent for violating the mandatory
safety standard published at 30 C.F.R. § 56.12032. That standard
provides:
Inspection and cover plates on electrical equipment and
junction boxes shall be kept in place at all times except during testing or repairs.
The evidence shows that the violation occurred.
Citation No. 2358739
This citation also concerns the lack of a cover plate in
violation of 30 C.F.R. § 56.12032. Inspector Marti testified
that the main disconnect box on the secondary crusher had two
uncovered openings on its left side, allowing access to rodents,
dirt and dust. Each of these could cause an electrical fault.
The uncontested evidence establishes a violation of the
cited standard.
PENALTIES
The Secretary proposes a $20.00 civil penalty for each violation. Section llOCi> of the Act requires the Commission, in
penalty determinations, to consider the operator's size, its
negligence, its good faith in seeking rapid compliance, its
history of prior violations, the effect of monetary penalties on
its ability to remain in business, and the gravity of the violations.
Most of these statutory elements strongly favor the
respondent. The pit operation was quite small. A maximum of
three employees worked there, alternating between extraction and
crushing duties. The evidence shows that respondent had no
history of prior violations under the Act. The respondent's representative acknowledge that payment of the proposed penalties
would not affect the partnership's ability to remain in business.

878

Concerning the gravity of the violations, the evidence was
essentially the same for all the crushing equipment violations.
In each instance, the possibility of employee injury was present.
The locations of both the mechanical and electrical defects were
such, however, that the likelihood of a worker's actually coming
into contact with them was not great. Moreover, as the Secretary's inspector and counsel both noted, there was no employee
exposure on the date of inspection since the crushing operation
was shut down.
Similarly, because most of the cited defects were
in obscure locations the respondent's negligence was not high.
In each instance I find it to have been in the low-to-moderate
range. The severity and negligence involved in the explosives
violations are judged to rank about equally with the crusher
infractions. The consequences of an accidental detonation could
be severe; the likelihood of such an event, however, was very
low.
On balance, I conclude that a modest penalty is in order for
all violations. Based upon the record, an appropriate civil
penalty for each violation is determined to be $20.00.
CONCLUSIONS OF LAW
Based upon the entire record herein, and in accordance with
the factual determinations contained in the narrative portion of
this decision, the following conclusions of law are made:
(1)
matter.

The Commission has the jurisdiction to decide this

(2) The respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.6047 as alleged in Citation No.
2358724.
(3) The respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.6043 as alleged in Citation No.
2358725.
(4) The respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.6020 as alleged in Citation No.
2358726.
( 5 ) The respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.11027 as alleged in Citation No.
2358727.
The respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.11027 as alleged in Citation No.
2358728.
( 6)

( 7) The respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.11001 as alleged in Citation No.
2358729.

879

(8) The respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.1102 as alleged in Citation No.
2358730.
(9)
The respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.11012 as alleged in Citation No.
2358731.

(10)
The respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.14007 as alleged in Citation No.
2358732.
Cll) The respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.14007 as alleged in Citation No.
2358733.
(12) The respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.12028 as alleged in Citation No.
2358734.

(13> The respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.12025 as alleged in Citation No.
2358735.
(14) The respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.12025 as alleged in Citation No.
2358736.
(15) The respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.14001 as alleged in Citation No.
2358737.
(16)
The respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.12032 as alleged in Citation No.
2358738.

(17> The respondent violated the mandatory safety standard
published at 30 C.F.R. § 56.12032 as alleged in Citation No.
2358739.
(18) The reasonable and appropriate civil penalty of each of
the violations affirmed above is $20.00.
ORDER
Accord~ngly, all citations in this consolidated matter are
ORDERED affirmed; and respondent Loukonen Bros. Stone Company is
ORDERED to pay to the Secretary of Labor a total civil penalty of
$320.00 within 30 days of the date of this decision.

/'lk~

,;~~- Carlson
,~

/

Administrative Law Judge

880

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

{703) 756-6232
May 29, 1986

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 86-40
A.C. No. 41-01192-03503

v.
Big Brown Strip
AUSTIN POWER, INCORPORATED,
Respondent
AUSTIN POWER, INCORPORATED,
Contestant

v.

CONTEST PROCEEDINGS
Docket No. CENT 86-59-R
Citation No. 2339411; 8/20/85

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

Docket No. CENT 86-60-R
Citation No. 2339412; 8/20/85
Docket No. CENT 86-61-R
Citation No. 2339413; 8/20/85
Big Brown Strip
ORDER

By motion filed May 13, 1986, the Secretary seeks to amend
Citation No. 2339413, to allege in. the alternative· either a
violation of 30 C.F.R. § 77.205(e), or a violation of 30 C.F.R.
§ 77.404(a}.
Austin Power opposes the motion on the ground
that the Secretary's attempt to modify the citation is untimely
and will prejudice Austin Pow.er' s _trial preparation.
Administrative pleadings may be liberally construed and
easily amended, National Realty and Construction Company v.
Occupational Safety and Health Review Commission 489 F.2d 1257
(D.C. Cir. 1973), Secretary of Labor v. United States Steel
Corporation, 6 FMSHRC 1908, 1916 (August 1984). Further, I am
not convinced that Austin Power has been prejudiced by the
proposed amendment.
The factual basis for the issuance of the
citation is the "condition or practice" stated by the inspector

881

on the face of the citation served on Austin Power, and MSHA
has the burden of proof. Austin Power will have a full opportunity to cross-examine MSHA's witnesses at the hearing and is
free to present its evidence to rebut the charges.
Austin Power's opposition to the motion IS DENIED, and the
Secretary's motion to amend the citation to charge alternative
alleged violations IS GRANTED.

~/~~~tfti/~~

~

Cffge T- KoutPaf'2A
dministrative Law Judge

Distribution:
Robert Fitz, Esq., Office of the Solicitor, U.S. Department of
Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Mr. Steven R. Mccown, Esq., Jenkens & Gilchrist, 2200 Interfirst
One, Dallas, TX 75202 (Certified Mail)
/fb

882