AUGUST 1994
CC:WC:SSI ON PECISIQNS AND ORDERS

08-01-94
08-05-94
08-05 - 94
08-16-94
08-17-94
08-25-94
08-26-94
08-30-94
08-30-94

Susquehanna - Mt. Carmel, Inc.
Boyer Ready Mix Sand & Rock
W.S. Frey Company, Inc.
Monarch Cement Company
Sec. Labor for Ronny Boswell v. National
Cement Company
Cyprus Plateau Mining Corporation
Cyprus Plateau Mining Corporation
Wyoming Fuel Company/Basin Resources
Contractors Sand & Gravel Supply

PENN 93-119
CENT 93 - 39-M
VA
93 - 59 - M
CENT 94-96-M

Pg.
Pg.
Pg.
Pg.

1587
1589
1591
1593

SE
93-48-DM
WEST 92-37 0 -R
WEST 92-371-R
WEST 92-340
WEST 93-62-M

Pg.
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1595
1604
1610
1618
1645

WEST 93-460-D
LAKE 93-217
WEST 94-120
VA
94-31-RM
KENT 93-455

Pg.
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1647
1651
1657
1659
1669

SE
94-474-DM
WEST 94-84-M
KENT 93-792

Pg. 1704
Pg. 1716
Pg. 1727

KENT 94-395-D
KENT 94-326

Pg. 1745
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LAKE 94-204-D

WEST 93-123 - M
KENT 93-337
PENN 94-132-D
WEST 94 - 317 - RM
WEVA 94-283-R

Pg.
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1750
1762
1778
1784
1787
1794

KENT 94-365-D
VA
94-18-M
KENT 94-308-R
KENT 92-303
LAKE 94-55
WEST 94-238-R
LAKE 92-199
WEST 94-21,3-M
SE
93-108
WEST 92-435-M
WEST 92-725

Pg.
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1797
1825
1832
1836
1837
1849
1853
1855
1857
1889
1906

WEVA 93-218-R
LAKE 94-155-M
WEST 94-478-M

Pg. 1919
Pg. 1924
Pg. 1926

ADMINISTRATIVE LAW JUDGE DECISIONS
08-01-94
08-04-94
08-04-94
08-04-94
08-08-94
08-05-94
08-08-94
08 - 09-94
08 - 12 - 94
08-09-94
08-09 - 94
08-15-94
08-16-94
08 - 16 - 94
08-16 - 94
08-16-94
08-17 - 94
08 - 17-94
08 - 18 - 94
08 - 19 - 94
08-19-94
08 - 24-94
08 - 29 - 94
08 - 29 - 94
08-31-94
08-31 - 94
08-31-94

Javier Sanchez v. Lion Coal Company
Apogee Coal Company/Arch of Illinois
Fort Union, Ltd.
Riverton Corporation
Manalapan Mining Company
Sec. Labor for Leslie Collins, et al.
v. Removal & Abatement Technologies
Woodring Company
Manalapan Mining Company
Sec. Labor on behalf of Frank Sisk v.
Frontier-Kemper Constructors
New Hope of Kentucky, Inc.
Sec. Labor on behalf of David Skelton v.
Peabody Coal Company
D.H. Blattner & Sons, Inc.
JBD Industrial Fuels, Inc.
Randall Patsy v. Big "B'' Mining Company
FMC Wyoming Corporation
ICI Explosives USA, Inc.
Sec. Labor on behalf of Johnny Robinson v .
Sunny Ridge Mining Company
A & L Construction, Inc.
Peabody Coal Company
Reedy Coal Company
Amax Coal Company
Thunder Basin Coal Company
Kinkaid Stone Company
Kiewit Western Company
Cross Mountain Coal, Inc.
Wallace Brothers, Inc.
Mid-Continent Resources, Inc.

ADMINI STRATIVE LAW JUDGE ORDERS
07-22-94
08-29-94
08 - 29 - 94

Madison Branch Management
Columbia Quarry Company
Chandler ' s Palos Verdes Sand & Gravel

i

AUGUST

1994

Review was granted in the following cases during the month of August:
Secretary of Labor, MSHA v. Susquehanna - Mt. Carmel, Inc., Docket No.
PENN 93-119.
(Chief Judge Merlin, unpublished Default issued November 22,
1993)
Secretary of Labor, MSHA v. RNS Services, Inc., and Mase Transportation
Company, Docket No. PENN 93-343, etc . (Judge Melick, June 27, 1994)
Secretary of Labor, MSHA v. Mechanicsville Concrete, Inc., t/a Materials
Delivery, Docket No. VA 93-145-M.
(Judge Amchan, July 7, 1994)
Secretary of Labor, MSHA v. Boyer Ready Mix Sand & Rock, Docket No. CENT 9339-M.
(Chief Judge Merlin, unpublished Default issued June 28, 1994)
1

Secretary of Labor, MSHA v. Monarch Cement Company, Docket No . CENT 94-96-M.
(Chief Judge Merlin, unpublished Default issued July 20, 1994)
Secretary of Labor, MSHA v. Contractors Sand & Gravel Supply, Inc., Docket
Nos. WEST 93-62-M, etc.
(Judge Cetti, July 21, 1994)
Review was denied in the following case during Au.gust;
Larry Swift, Mark Snyder & Randy Cunningham v. Consolidation Coal Company,
Docket No. PENN 91-1038-D.
(Judge Melick, June 30, 1994)

ii

COMMISSION DECISIONS AND ORDERS

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

August 1, 1994

SECRETARY OF LABOR
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 93-119

v.

SUSQUEHANNA - MT. CARMEL, INC.

BEFORE:

Jordan, Chairman; Backley, Doyle and Holen, Commissioners
ORPER

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. (1988). On November 22, 1993,
Chief Administrative Law Judge Paul Merlin issued an Order of Default to
Susquehanna - Mt. Carmel, Inc. ("Susquehanna") for its failure to answer the
Secretary of Labor's proposal for assessment of civil penalty or the judge's
July 27, 1993, Order to Show Cause. The judge ordered the payment of civil
penalties of $4,400.
In a letter to the judge dated May 16, 1994, Joseph Rasmus requests that
the default order against Susquehanna be set aside . Rasmus states that the
Secretary does not oppose the operator's request. Rasmus does not offer an
explanation for Susquehanna's failure to file an answer to the Secretary's
penalty proposal or to respond to the judge's Order to Show Cause.
The judge's jurisdiction over this case terminated when his decision was
issued on November 22, 1993. Commission Procedural Rule 69(b), 29 C.F.R.
§ 2700.69(b)(l993). Under the Mine Act and the Commission's procedural rules,
relief from a judge's decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2);
29 C.F.R. § 2700.70(a). Susquehanna did not file a timely petition for
discretionary review within the 30-day period and the Commission did not .§YA
sponte direct this case for review. Thus, the judge's decision became a final
decision of the Commission 40 days after its issuance. 30 U.S.C. § 823(d)(l).
Relief from a final Commission judgment or order on the basis of
inadvertence, mistake, surprise or excusable neglect is available to a party
under Fed. R. Civ. P. 60(b)(l). 29 C.F.R. § 2700.l(b)(Federal Rules of Civil

Procedure apply "so far as practicable" in the absence of applicable
Commission rules); Lloyd Log&ing. Inc .• 13 FMSHR.C 781, 782 (May 1991).

1587

It

appears from the record that · Susquehanna wishes to pursue its contest of the
alleged violations.
In the interest of justice , we reopen this proceeding and deem
Susquehanna's May 16 letter to be a request for relief from a final Commission
decision incorporating a late·filed petition for discretionary .review and
·excuse its late filing. See,~. Kelley Trucking Co., 8 FMSHRC 1867, 1868·
69 (December 1986). On the basis of the present record, however, we are
unable to evaluate the merits of Susquehanna's position. We remand the matter
to the judge, who shall determine whether default is warranted. See Hic}cory
Coal Co., 12 FMSHRC 1201, 1202 (June 1990); Cougar Coal Company. Inc., 15
FMSHRC 967, 968 (June 1993).
For the reasons set forth above, we vacate the judge's default order,
grant the petition for discretionary review, and remand for further
proceedings.

Richard V. Backley, Commissioner

~d~

J ~ A.DO)Tle; Commissfoner

Distribution

A~~n~r

Joseph H. Rasmus
Susquehanna Mt. Carmel, inc.
P.O. Box 27
200 E. Front Street
Nanticoke , PA 18634
Mark V. Swirsky, Esq.
OffQce of the Solicitor
U.S. Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

1588

FEDERAL MINE SAFETY AHO HEALTH REVIEW COMMISSION
1730 K. STREET, N.W., SIXTH FLOOR
WASHINGTON, D.C. 20006

August S, 1994

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

v.

Docket No.

CENT 93-39-M

BOYER READY MIX SAND & ROCK, INC.

Thie civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq. (1988) ("Mine Act•). On June 28,
1994, Administrative Law Judge August F. Cetti issued a Default Decision to
Boyer Ready Mix sand & Rock, Inc. ("Boyer•) for failing to answer the July 27,
1993, Prehearing Order or the judge's April 8, 1994, Order to Show Cause. The
judge assessed the civil penalty of $6168 proposed by the Secretary of Labor
(•Secretary").
On July 25, 1994, the Conunieeion received a letter from Boyer's
President, Bill Boyer, stating that he had engaged in settlement discussions
with two attorneys representing the Secretary and had agreed to settle the
cases. Mr. Boyer apparently believes that substitution of counsel by the
Secretary delayed the filing of a settlement motion with the judge, who had
issued his decision by the time the motion was filed.
The judge's jurisdiction in this matter terminated when his decision was
issued on June 28, 1994. Conunission Procedural Rule 69(b), 29 C.F.~.
§ 2700.69(b)(l993). Under the Mine Act and the Conunission's procedural
rules, relief from a judge's decision may be sought by filing a petition for
discretionary review within 30 days of its issuance.
30 u.s.c. § 823(d)(2);
29 C.F.R. § 2700.70(a). We deem Boyer's letter to be a timely filed Petition
for Discretionary Review, which we grant. ~, ~, Middle States Resources,
Inc., 10 FMSHRC 1130 (September 1988).

1589

On the basis of the present record, we are unable to evaluate the merits
of Boyer's position.
In the interest of justice, we remand this matter to the
judge, who shall determine whether default is warranted. See Hicko ry Coal
Co., 12 FMSHRC 1201, 1202 (June 1990)
For the reasons set forth above, we vacate the judge ' s default order and
remand this matter for further proceedings.

Arlene Holen, Commissioner

Distribution
Bill B. Boyer, President
Boyer Ready Mix Sand & Rock, Inc.
Rural Rt. 2, Box SlA
Hawarden, IA 51023
Susan J. Ec kert , Esq .
Office of the Solicitor
U.S. Department of Labor
1999 Broadway, Suite 1600
Denver, co 80202
Administrative Law Judge August Cetti
Federal Mine Safety & Health Review Cormnission
1244 Speer Bo ulevard, Suite 280
Denver , Colorado 80204

1590

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

August 5 , 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos. VA 93-59-M
VA 93-80-M
VA 93-89-M

W.S. FREY COMPANY, INC.

BEFORE:

Jordan, Chairman; Backley, Doyle and Holen, Conunissioners

BY THE COMMISSION:
On July 5, 1994, w.s. Frey Co., Inc. ("Frey") filed with the United
States Court of Appeals for the Fourth Circuit a petition for review of the
decision of Administrative Law Judge David F. Barbour in this matter.
(No.
94-1860); 16 FMSHRC 975 (April 1994) (ALJ) • 1 On that same day,· Frey filed with
the Conunission a Motion for Stay Pending Appeal asserting that it has
"exhausted all administrative remedies available," that it " has filed a
petition for review" with the Four th Circuit, and that it will request the
Court to set aside the judge's decision. The Secret ary has opposed Frey ' s
motion on the grounds that Frey failed to address a ny of the elements required
for a stay.
Frey's motion was made pursuant to Rule 18 of the Federal Rules of
Appellate Procedure, which provides that "(a]pplication for a stay of a
decision or order of an agency pending direct review in the court of appeals
shall ordinarily be made in the first instance to the agency." Section
106(a)(l) of the Mine Act, 30 u . s.c. § 816(a)(l), states that, upon appeal of
a final decision of the Conunission, the court of appeals shall have exclusive
jurisdiction in the proceeding at such time as the record before the
conunission is filed with the court .
Because the record has not yet been
filed, the Conunission has jurisdiction to consider Frey's motion. Secretary
on behalf of Smith v . Helen Mining co., 14 FMSHRC 1993, 1994 (December 1992).
In Secretary on behalf of Price and Vacha v. Jim Walter Resources, Inc.,
9 FMSHRC 1312 (August 1987), the Conunission held that a party seeking a stay
must satisfy the factors in Virginia Petroleum Jobbers Ass•n v. FPC, 259 F.2d
921, 925 (D.C. Cir. 1958). Those factors include: (l) likelihood of
prevailing on the merits of the appeal; (2) irreparable harm if the stay is
not granted; (3) no adverse effect on other interested parties; and (4) a
showing that the stay is in the public interest. Virginia Petroleum , 259 F.2d
at 925. The court made clear that a stay constitutes " extraordinary relief."
Id.

The Conunission did not direct review of the judge's decision and it
became a final decision of the Commission pursuant to 30 U.S.C. § 823(d)(l).

1591

Upon consideration of Frey ' s motion and the Secretary ' s opposition, we
conclude that Frey has failed to show the factors justifying stay of an agency
order pending judicial review. Accordingly, Frey's motion is denied.

Richard v. Backley, Commissioner

Arlene Holen, Commissioner

Distribution
Thomas Moore Lawson, Esq.
Hazel & Thomas, P.C.
107 N. Kent Street, 4th Floor
P.O. Box 2740
Winchester, VA 22604
Susan E . Long, Esq.
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1592

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 8TH FLOOR
WASHINGTON, O.C. 20006

August 16, 1994

CIVIL PENALTY PROCEEDING

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

Docket No. CENT 94-9 6-M

v.
MONARCH CEMENT COMPANY

This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq. (1988) ("Mine Act"). On July 20,
1994, Chief Administrative Law Judge Paul Merlin issued an Order of Default to
Monarch Cement Company ("Monarch") for failing to answer the proposal for
assessment of penalty filed by the Secretary on March 16, 1994, and the
judge's May 16, 1994, Order to Show Cause. The judge assessed the civil
penalty of $506 proposed by the Secretary.
On July 25, 1994, the Commission received a letter from Monarch,
addressed to Judge Merlin , requesting that he reconsider the Order of Default.
Attached to Monarch's letter of reconsideration were letters dated March 30,
1994, and May 20, 1994, addressed to the Commission's Washington o.c. office,
in which Monarch had responded to the penalty proposal and the Order to Show
cause, respectively.
The judge's jurisdiction in this matter terminated when his decision was
issued on July 20, 1994. Commission Procedural Rule 69(b), 29 C.F.R.
§ 2700.69(b).
Under the Mine Act and the Commission's procedural rules ,
relief from a judge's decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 u.s.c. S 823 (d)(2);
29 C.F.R. S 2700.70(a). We deem Monarch's letter to be a timely filed
Petition for Discretionary Review, which we grant. See, e.g., Middle States
Resources, Inc., 10 FMSHRC 1130 (September 1988).
on the basis of the present record, we are unable to evaluate the merits
of Monarch's position.
In the interest of justice, we remand this matter to
the judge, who shall determine whether default is warranted. see Hickory Coal
Co., 12 FMSHRC 1201, 1202 (June 1990). ,

1 59 3

For the reasons set forth above, we vacate the judge's default order and
remand this matter for further proceedings.

yce A. Doyle, Conunission

~ole~ssioner

Distribution
Kristi Floyd, Esq.
Office of the Solicitor
U.S. Department of Labor
1999 Broadway, Suite 1600
Denver, CO 80202-5716
Daniel E. Cretiz
Monarch Cement Company
P.O. Box 1000
Humboldt, KS· -66748

1594

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 9TH FLOOR
WASHINGTON, D.C. 20009

August 17, 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of RONNY BOSWELL
Docket No. SE 93-48-DM

v.

NATIONAL CEMENT COMPANY

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

DECISION

BY: Backley, Doyle and Holen, Commissioners

This discrimination proceeding, arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1·988)("Mine Act" or "Act"), presents the issue of whether
National Cement Company ("National Cement") unlawfully suspended Ronny Boswell for
three days in violation of section 105(c)(l) of the Act, 30 U.S.C. § 815(c)(l).1 Administrative
Law Judge Gary Melick dismissed the discrimination complaint filed on Boswell's behalf by
the Secretary of Labor. 15 FMSHRC 1250 (June 1993)(ALJ). The judge concluded that,
although the Secretary had established a prima facie case of discrimination, National Cement

1

Section 105(c)(l) of the Mine Act provides:
No person shall discharge or in any manner discriminate against .. . any
miner .. . 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,
or the representative of the miners at the coal or other mine of an alleged
danger or safety or health violation in a coal or other mine....

1595

had defended affirmatively by proving that it would have suspended Boswell in any event for
his unprotected activity alone. The Commission granted the Secretary's petition for
discretionary review. For the reasons stated below, we affirm the judge's ·decision.
I.
Factual and Procedural Background
Ronny Boswell operated a front-end loader at National Cement's plant in Ragland,
Alabama. On December 27, 1991, Boswell, working the night shift, carried out the required
examination of a 950 payloader before operating it. 15 FMSHRC at 1252-53. There were
two sets of lights on the front of the loader, one factory-installed set seven feet above the
ground and an additional set installed by National Cement on the cab, 12 feet above the
ground. Id. at 1253 . Boswell noticed that the bracket holding one of the lower lights was
bent, causing the beam to be misdirected, and that the other lower light was burnt out; the
upper lights were in working order. Id.; Tr. I '38-39, 48-50. He indicated in his inspection
report that the lower lights were faulty and also noted that "[t]otal disregard" by the operator
of defects in mobile equipment could lead to damage or injury. 15 FMSHRC at 1252-53; Tr.
I 38-39; G. Ex. 1.2 During the preceding 12 days, he had reported problems with the loader's
lights on nine different occasions but had operated the equipment. 15 FMSHRC at 1252-53;
G. Ex. 2.
That night, Boswell operated the 950 loader in the clay house, where overhead lighting
eliminated the need for equipment lights. Around 12:30 a.m., Rudy Hall, a temporary
foreman, talked with Boswell about his inspection report and Boswell stated that he meant
what he wrote. Hall ordered Boswell to shut down the loader and operate the only other
loader at the plant, a 540 payloader. 15 FMSHRC at 1253; Tr. I 59, 61; Tr. II 8, 48.
Boswell parked the ·950 loader in front of the break shack.
After operating the 540 loader for about 25 minutes, Boswell smelled antifreeze fumes
emanating from a leak. He reported this condition to Hall, complaining that he "couldn't
breathe." 15 FMSHRC at 1253; Tr. I 62-63, 66. Hall then instructed Boswell to return to the
950 loader, which was still parked in the break shack area; it had not been tagged out or
removed from service. 15 FMSHRC at 1256; Tr. I 66, 143-44.
Boswell refused to restart the 950 loader, telling Hall that "it's in the company safety
book that you can't start it up until the problem is fixed." 15 FMSHRC at 1253; Tr. I 66-68.
Boswell referred to National Cement's repair requirements, which were contained in a

2

The judge stated that Boswell noted defects in the loader's upper lights (15 FMSHRC at
1253), but it is evident from the record and the judge's other findings that the defects were in
the lower pair.

15 96

document entitled "National Cement Company Safety Procedures and Requirements.'' 3 15
FMSHRC at 1253; Tr. I 66-68; G. Ex. 3. Boswell also testified at hearing that he was
prohibited by the Secretary's regulations, including 30 C.F.R. § 57.14100(c), from resuming
operation of the 950 loader until it was repaired.4 Tr. I 70-73, 76, 123 ; Tr. II 169.
Boswell and Hall argued over the work assignment, and Boswell requested a safety
review by his union representative. Hall decliped to contact the representative but did call
Cedric Phillips, the company safety director, who came to the plant and examined the loader.
At Phillips' direction, the bent light bracket was straightened and Boswell replaced the bumtout light. Boswe11 then resumed operating the 950 loader and continued for the remainder of
the shift. 15 FMSHRC at 1254.
On January 13, 1992, National Cement disciplined Boswell, suspending him from
work for three days because of the events of December 27. 15 FMSHRC at 1254; G. Ex. 6.
Boswell filed a discrimination complaint with the Department of Labor's Mine Safety and
Health Administration ("MSHA") and, on October 28, 1992, the Secretary filed the present
complaint on Boswell's behalf, pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C. §
815(c)(2).
The judge found that Boswell had engaged in protected activities when he ·reported the
950 loader's defective lights in his December 27 inspection report, when he complained about
the lights on prior occasions, and when he refused to operate the 540 loader because of the
antifreeze fumes in the cab. 15 F¥SHRC at 1254-55. The judge further found that the
disciplinary action against Boswell was motivated, at least in part, by these protected
activities and, accordingly, determined that the Secretary had established a prima facie case of
discrimination. Id. at 1255 .

3

Paragraph (g) on page 4 of that document states:
Report and, if possible, repair any defects found. Do not use machine with
uncorrected safety defects which present a hazard. If the loader is unsafe and
removed from service, tag it to prohibit further use until repairs are completed.

G. Ex. 3.
4

30 C.F.R. 57.14100(c) provides:
When defects make continued operation hazardous to persons, the
defective items including self-propelled mobile equipment shall be taken out of
service and placed in a designated area posted for that purpose, or a tag or
other effective method of marking the defective items shall be used to prohibit
further use until the defects are corrected.

1597

The judge concluded, however, that National Cement affirmatively defended against
the prima facie case by proving that it would have taken the adverse action against Boswell
solely on the basis ·of his unprotected activity, i.e., his insubordination in refusing to operate
the 950 loader for reasons unrelated to safety. 15 FMSHRC at 1255-56. The judge noted
that a miner's right to refuse work under the Act must be premised on a belief that the work
involves a hazard, and he emphasized that Boswell insisted that he had no such belief or
concern. Id. at 1256. The judge rejected the Secretary's contention that a miner should be
permitted to refuse .work on the basis of a good faith, reasonable belief that the work violates
a mandatory standard. Also, assuming arguendo that the Secretary's "legal theory [was]
correct," the jud'ge determined that the evidence did not demonstrate, within the meaning of
section 57.14100(c), that the 950 loader had been removed from service. Id. The judge
concluded that Boswell had failed to meet his burden of proving a good faith, reasonable
belief that operating the loader would have violated a standard and, accordingly, he dismissed
the discrimination complaint. Id.
II.
Disposition
The principles guiding the Commission's analysis of discrimination under the Mine
Act are settled. A miner establishes a prima facie case of prohibited discrimination by
proving that he engaged in protected activity and that 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, 2797-800 (October 1980), rev'd on other grounds. sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d 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 in no part motivated by protected activity. Pasula, 2 FMSHR.C at
2799-800. If the operator cannot rebut the prima facie case in this manner, he nevertheless
may defend affirmatively by proving that he also was motivated by the miner's unprotected
activity and would have taken the adverse action in question for the unprotected activity
alone. 2 FMSHR.C at 2800; Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal
Corp. v. FMSHR.C, 813 F.2d 639, 642 (4th Cir. 1987).
The Secretary urges the Commission to recognize a miner's right under the Act to
refuse work that the miner believes would violate a mandatory standard, even when he does
not believe that the work poses a hazard. He seeks remand for analysis of the evidence under
that test. Alternatively, the Secretary argues that Boswell's refusal to restart the 950 loader
was a continuation of his prior protected activities and that the judge erred in treating the
latter conduct as unprotected. In response, National Cement contends that Boswell's refusal to
restart the 950 loader was unprotected and was separate from his protected activities. It
further asserts that, in order for Boswell's work refusal to be protected, it must have been
based on a threat to health or safety, and that a perceived violation of a mandatory standard,
by itself, is not sufficient to justify a work refusal.

1 598

The primary issue on review is whether the judge erred in finding that ·National
Cement affirmatively defended against the prima facie case by showing that Boswell's
conduct in refusing to restart the loader was unprotected and that he would have been
suspended for that unprotected activity alone. We conclude that the judge did not err.
The fundamental purpose of the Mine Act is to provide miners with more effective
protection against hazardous conditions and practices. 30 U.S .C. § 801. Section 2(a) of the
Act emphasize~ that "the first priority and concern of all in the coal or other mining industry
must be the health and safety of its most precious resource - the miner." 30 U.S.C. § 80l(a).
I

The Act grants miners the right to complain of a safety or health danger or violation,
but does not expressly grant the right to refuse to work under such circumstances.
Nevertheless, the Commission and the courts have inferred a right to refuse work in the face
of a perceived hazard. See Secretary on behalf of Cooley v. Ottawa Silica Co., 6 FMSHRC
516, 519-21 (March 1984), affd 780 F.2d 1022 (6th Cir. 1985); Paula Price v. Monterey Coal
Co., 12 FMSHRC 1505, 1514 (August l 990)(citations omitted). In order to be protected,
work refusals must be based upon the miner's "good faith, reasonable belief in a hazardous
condition." Robinette, 3 FMSHRC at 812; Gilbert v. FMSHRC, 866 F.2d 1433, 1439 (D.C.
Cir. 1989). The complaining miner has the burden of proving both the good faith and the
reasonableness of his belief that a hazard existed. Robinette, 3 FMSHRC at 807-12; Secretary
on behalf of Bush v. Union Carbide Com., 5 FMSHRC 993, 997 (June 1983). A good faith
belief "simply means honest belief that a hazard exists." Robinette, 3 FMSHRC at 810.
Miners may, under existing case law, justify a work refusal based on a violation of a standard
if that violation also involves a hazard.
To date, neither the Commission nor the Courts of Appeals have extended the right of
work refusal to encompass refusals based on violations of standards that do not involve
hazardous conditions. The Secretary's theory that the Act protects a work refusal premised on
a belief in a nonhazardous violation of a standard proposes a substantial and unwarranted
departure from the Commission's case law.
Boswell maintained throughout the hearing that he did not regard the 950 loader as
hazardous or unsafe to operate. 15 FMSHRC at 1256; Tr. I 59-60, 76-80, 91, 177-78. To
accord protection to a work refusal premised on a nonhazardous condition would go beyond
the language of section 105(c) and the basic purpose of the Act. We reject the Secretary's
suggestion that the Commission substantially extend miners' rights to refuse work under the
Act.
Even if we were to assume, arguendo, as the judge did, that a miner has a right to
refuse nonhazardous work on the basis that such work would violate a safety standard, we
agree with the judge that the Secretary failed to prove that Boswell entertained a good faith,
reasonable belief that operation of the 950 loader would have violated section 57.14100(c).
15 FMSHRC at 1256. Indeed, Boswell's belief, as it is presented in the record, would weigh

1599

against any conclusion that section 57.14100(c) was violated; that section expressly addresses
the operation of hazardous equipment and Boswell, by his own testimony, maintained that a
hazard did not exist. Further, the evidence demonstrates that the loader had no hazardous
defect and it had not been removed from service and placed in a designated area or otherwise
tagged out. We note that the Secretary did not cite the operator for a violation of section
57.14100(c). . Finally, as the judge round, it was not clear that Boswell even raised the safety
standard to Foreman Hall at the time of his work refusal. 15 FMSHRC at 1253. The
Commission h~ held that a miner's failure to communicate his safety concern to the operator
may strip a work refusal of its protection under the Act. Braithwaite v. Tri-Star Mining, 15
FMSHRC 2460: 2464-65 (December 1993).
We reject the Secretary's alternative argument that Boswell's refusal to restart the
loader was inextricably connected to his previous complaints and should share their protected
status. Although Boswell had made various complaints about the defective lights on the 950
loader, his refusal to restart the loader, according to his own statements at trial, was not based
on safety concerns. Thus, we conclude that Boswell's earlier protected activities did not
render his work refusal protected. See, generally, Cooley, 6 FMSHRC at 520-22.
Accordingly, we affirm the judge's determination that Boswell's refusal to restart the
loader was not protected and that National Cement affirmatively defended against the
Secretary's prima facie case.
Ill.

Conclusion
For the foregoing reasons, the judge's decision is affirmed.

Arlene Holen, Commissioner

1 600

Jordan, Chairman, concurring in the result:
I agree with my colleagues that the judge's decision dismissing Boswell's discrimination
complaint should be affirmed. I reach that result on the basis that substantial evidence supports
the judge's determination that Boswell did not entertain a reasonable belief that operating the 950
loader would have violated a mandatory safety standard. 1 Given that fact, I find it unnecessary
to address the issue of whether a work refusal can ever be protected under section 105(c), when
the miner has a reasonable belief that performing such work would violate a mandatory safety
standard, but does not believe the job would pose a hazard.
By its terms, the standard which Boswell purportedly thought operation of the 950 loader
would violate, 30 C.F.R. §57.14100(c), applies "[w]hen defects make continued operation
hazardous to persons ... " (emphasis supplied). Boswell repeatedly testified, however, that he
did not believe that the 950 loader presented a safety hazard. Tr. I 58-60, 76-77, 79, 85, 91, 997;
15 FMSHRC at 1256. Moreover, Boswell admitted that he had read section 57.14100 on several
occasions prior to the work refusal at issue here, and that he was familiar with the regulation .
Tr. I 71-73. In light of this testimony, there is no reason not to charge Boswell with actual
knowledge that section 57.14100 applies only when defects cause a hazard. Therefore, like my
colleagues, I agree with the judge's conclusion that Boswell did not have a reasonable, good faith
belief that operating the 950 loader would violate section 57.14100(c). Unlike the majority,
however, I would stop there, and refrain from reaching the broader question posed by the
Secretary: whether a miner has a right under the Act to refuse work that he or she reasonably
and in good faith believes would violate a mandatory standard, irrespective of the existence of
a hazard.
I also do not reach the Secretary's alternative theory that Boswell's work refusal, though
unprotected, falls under the penumbra of earlier protected activities engaged in by Boswell in
connection with his assertion of safety complaints pertaining to the 950 loader. In my view this
contention is not properly before us because it was not first addressed to the judge.
Section 113(d)(2)(A)(iii) of the Act, 30 U.S.C. §823(d)(2)(A)(iii), provides in pertinent
part: "Except for good cause shown, no assignment of error by any party shall rely on any
question of fact or law upon which the administrative law judge had not been afforded an
opportunity to pass." See also Commission Procedural Rule 70(d), 29 C.F.R. §2700.70(d). In
his post-hearing bri~f to the judge, the Secretary argued only that Boswell's refusal .to restart the
950 loader was in and of itself protected activity due to Boswell's reasonable belief that to restart

1

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

1601

that equipment would violate a mandatory safety standard. Sec. Post Trial Br. at 9. ·The
Secre~ary did not argue below, as he does on appeal, that "Boswell's refusal to restart the 950
loader was inextricably linked to ... two prior protected activities and therefore could not stand
as independent ground for adverse action." PDR at 7. In light of his failure to squarely raise
this theory before the judge, it is not surprising that the judge did not rule on the question
whether an unprotected work refusal could nevertheless fall within the ambit of earlier protected
activities because of the nexus between the protected and unprotected activities.
The Secretary's failure to raise this theory below is fatal to his request for Commission
review on this point. The Commission has previously held that the provisions of section 113 bar
Commission review of theories newly articulated on appeal. See. e.g.. Beech Fork Processing.
Inc., 14 FMSHRC 1316 (August 1992).
Accordingly, I would affirm the judge's decision based on his conclusion that "Boswell
has [not] met his burden of proving that he entertained a good faith and reasonable belief that
to operate the 950 loader would have . . . violated the cited mandatory standard."

1 602

Distribution
Susan E. Long, Esg.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, .VA 22203
Thomas F. Ompbell, Esq.
Lange, Simpson, Robinson &
Somerville
1700 First Alabarra Bank Building
Bi:rmingharn, AL 35203

Administrative Law Judge Ga:ry Melick
Federal Mine Safety and Health Review Conmission
Office of the Administrative Law Judge
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041

16 03

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

20006

August 25, 1994

CYPRUS PLATEAU :MINING CORP.
Docket Nos.

V.

WEST 92-370-R
WEST 92-485(A)

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

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

DECISION
BY THE COMMISSION:
This consolidated contest and penalty proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"),
involves a citation issued by the Department of Labor's Mine Safety and Health
Administration ("MSHA") to Cyprus Plateau Mining Corporation ("Cyprus"), alleging a
violation of 30 C.F.R. § 75. l 725(a).1 Administrative Law Judge John J. Morris upheld the
citation and concluded that the violation was the result of Cyprus's unwarrantable failure to
comply with the standard.2 15 FMSHRC 1738 (August 1993)(ALJ). Cyprus timely filed a
petition for discretionary review, challenging the judge's finding of violation and his

1

Section 75. l 725(a) states:
Mobile and stationary machinery and equipment shall be maintained in
safe operating condition and machinery or equipment in unsafe condition shall
be removed from service immediately.

2

In his decision, the judge also ruled on a citation that alleged Cyprus violated its roof
control plan. Docket No. WEST 92-371-R. The Secretary petitioned for discretionary review
of portions of the judge's decision relating to that violation. We are issuing a separate
decision on that petition. Cyprus Plateau Mining Corporation, 16 FMSHRC _,(August
26, 1994). We have denominated the two civil penalty proceedings (Docket No. WEST 92485) as (A) and (B), respectively.

1604

conclusion as to unwarrantable failure. For the reasons that follow, we affirm.
I.

Factual and Procedural Background
Cyprus operates the Star Point No. 2 Mine, an underground coal mine, in Carbon
County, Utah. On March 10, 1992, MSHA Inspector William Taylor investigated a section
103(g) complaint, 3 which alleged that on February 12 a shuttle car had been run with
inoperative service brakes. Following interviews with miners and representatives of Cyprus,
Taylor issued a citation, alleging that Cyprus violated section 75. l 725(a) by failing to
remove unsafe equipment from service. 15 FMSHRC at 1740, 1752-53.
The shuttle car in issue was a 1977 Joy model, electrically powered and weighing
over 33,000 pounds. It had a top speed of less than five miles per hour and generally
carried about ten tons of coal. The car had two seats so that the operator could face the
direction of travel. Tram pedals, one under each seat, powered the car. In order to stop,
the operator used a foot, or service, brake. An emergency brake was generally used in order
to keep the car stationary" Use of the emergency brake to stop the car resulted in a delay of
several seconds and an abrupt stop. 15 FMSHRC at 1753-54, 1755.
On February 12, 1992, Seldon Barker, one of the most experienced shuttle car
operators at the mine, was operating the shuttle car in the number 3 section. The car ran
between the face, where it was loaded by a continuous miner, and a feeder breaker, where it
dumped the coal to be loaded onto a conveyor belt. The car carried the coal 600 to 700 feet,
traveling over wet, uneven surfaces and around comers. Each trip took five to seven
minutes; the production goal was 100 trips for each ten hour shift. 15 FMSHRC at 1753-55,
1759.
As his shift progressed, Barker found that the shuttle car's service brakes were
weakening. Two hours before the end of the shift, the service brakes cea.sed functioning
altogether. Barker spoke to his foreman, Paul Downard, who had formerly been employed
as a mechanic servicing mining equipment, including shuttle cars. Barker and Downard
added hydraulic fluid to the master cylinder and then bled the brakes, but no fluid was
reaching them. Downard ordered a new master cylinder. Because obtaining and installing
the new master cylinder would have taken the remainder of the shift, Barker suggested that

3

Section 103(g), 30 U.S.C. § 813 (g) provides:
Whenever a . . . miner . . . has reasonable grounds to believe that a
violation of this Act or a mandatory health or safety standard exists ... , such
miner ... shall have a right to obtain an immediate inspection by giving notice
to the Secretary ....
..

.,,·
1605

he could continue operating the shuttle car if Downard notified everyone that the car was in
an unsafe condition. 15 FMSHRC at 1754-55, 1756, 1759-60.
Barker resorted to "reverse tramming" or "feathering" the tram to stop the shuttle car.
Reverse tramming involves the operator's placing his foot under the tram pedal and lifting it,
thereby reversing the shuttle car's direction. Feathering the tram involves gradually
engaging the tram pedal and then releasing it. Barker could also use the emergency brake to
stop the shuttle car. 15 FMSHRC at 1755, 1757, 1759.
Later in the shift, Barker told Shift Foreman William Burton that the brakes were
bad, that the crew had been notified, and that he was running the car "fine." Downard also
mentioned to Burton that there was a problem with the brakes. 15 FMSHRC at 1755, 1758,
1760.
While Barker was at the feeder breaker unloading the shuttle car, his foot was off the
tram pedal as he changed seats in anticipation of his return trip, and the shuttle car rolled
about three or four feet. When Barker saw that Sheldon Anderson had walked in front of the
car, he reverse trammed. Anderson, who had not been told about the bad brakes, jumped
out of the way and yelled at Barker. 15 FMSHRC at 1755, 1761.
When the brakes were repaired during the next shift, a rock, which had blocked the
flow of fluid, was found in the line from the master cylinder. Downard apologized to the
crew for not informing everyone that the car had no brakes. 15 FMSHRC at 1755, 1757.
Cyprus contested the citation. Following an evidentiary hearing, the judge determined
that Cyprus had violated section 75.1725(a). The judge further concluded that the violation
was significant and substantial and resulted from Cyprus's unwarrantable failure. 15
FMSHRC at 1760-62. The Commission granted Cyprus's petition for review of the judge's
decision and heard oral argument.
II.

Dis,position of Issues
A. Basis for Violation
Cyprus argues that the citation was improperly based on a standard that does not
specifically address shuttle car brakes. Cyprus asserts that, because there is a safeguard
criterion (30 C.F.R. § 75.1403-10(1)) applicable to brakes on haulage equipment,4 the

4

Section 75.1403-10(1) provides: "All self-propelled rubber-tired haulage equipment
should be equipped with well maintained brakes, lights, and a warning device."

1 606

Secretary can properly cite Cyprus for the defective brakes only after first issuing a
safeguard notice. Cyprus further argues that the judge committed reversible error when he
failed to address this issue. C. Br. at 16-17.
In response, the Secretary argues that his issuance of a safeguard is discretionary and
that Commission precedent requires the use of a mandatory standard in this situation. The
Secretary asserts that the judge's failure to address this issue was harmless error. Sec. Br. at
8-12.
We agree with the Secretary. The Commission has held that, in general, it is within
the Secretary's discretion "to issue mandatory standards or to issue safeguards for commonly
encountered transportation hazards." Southern Ohio Coal Co., 14 FMSHRC 1, 9 (January
1992). The Commission has noted, however, that an inspector's decision to issue a
safeguard "must be based on his consideration of the specific conditions at the particular
mine." Id. at 7. The United States Court of Appeals for the District of Columbia Circuit
has stated, 'TT]he Secretary should utilize mandatory standards for requirements of universal
application." UMWA v. Dole, 870 F.2d 662, 672 (1989).
In light of the foregoing principles, the Secretary's citation of Cyprus, based on a
standard that requires an operator to remove unsafe equipment from operation, was proper.
The hazard posed by the use of unsafe equipment does not arise from conditions specific to
particular mines and thus is not properly addressed by issuance of a safeguard. Compare
Green River Coal Co., 14 FMSHRC 43, 44-45, 48 (January 1992). The mine hazard at
issue is amenable to a mandatory stimdard of universal application. We affirm the judge's
holding that the use of a shuttle car without service brakes is unsafe within the meaning of
section 75. l 725(a), and that such equipment must be removed from service immediately. 15
FMSHRC at 1760.
We conclude that the judge, by considering the merits of the alleged violation,
implicitly rejected the argument that the Secretary should have proceeded by first issuing a
safeguard. See Asarco Minine Co., 15 FMSHRC 1303 , 1305-06 (July 1993). We reject
Cyprus's argument that, because the Commission and its judges have decided few cases
involving defective brakes under section 75.1725(a), the standard has been improperly
applied here.
B. Unwarrantable Failure

Cyprus argues that the judge's determination,... of unwarrantable failureS is not

5

The unwarrantable failure terminology is taken from section 104(d)(l), which
establishes more severe sanctions for any violation that is caused by "an unwarrantable
failure of [an] operator to comply with ... mandatory health or safety standards .... "

1607

supported by substantial evidence. It asserts that Foreman Downard conducted a reasonable
investigation into the condition of the brakes and relied on Barker's opinion that the shuttle
car could be operated, and that an unwarrantable failure determination cannot be based on
the brief conversation between Barker and Shift Foreman Burton. C. Br. at 4-15. ·The
Secretary responds that the judge's decision is supported by substantial evidence and notes
that the Cyprus foremen knew of the condition of the shuttle car brakes or had sufficient
information to warrant investigation of their condition. Sec. Br. 14-22.
In Emery Mining Corp., 9 FMSHRC 1997, 2001 (December 1987), the Commission
determined that unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. This determination was derived, in part, from the plain meaning of
"unwarrantable" ("not justifiable" or "inexcusable"), "failure" ("neglect of an assigned,
expected or appropriate action"), and "negligence" ("the failure to use such care as a
reasonably prudent and careful person would use ... characterized by 'inadvertence,'
' thoughtlessness,' and 'inattention'"). 9 FMSHRC at 2001. Unwarrantable failure is
characterized by such conduct as "reckless disregard ," "intentional misconduct,"
"indifference," or a "serious lack of reasonable care." 9 FMSHRC at 2003-04; Rochester &
Pittsburgh Coal Corp., 13 FMSHRC 189, 193-94 (February 1991). The Commission's
determination was also based on the purpose of Un\Yarrantable failure sanctions in the Mine
Act, the Act's legislative history, and judicial precedent. Emery, 9 FMSHRC at 2002-03.
The judge concluded that th~ operator was highly negligent because both Downard
and Burton were aware of the shuttle car's serious brake problem and failed to follow up
appropriately by remedying it. 15 FMSHRC at 1762. There is substantial evidence in the
record to support the judge's findings. 6 Tr. 589-90, 737, 739-40. Shift Foreman Burton
testified that Barker told him that the brakes were "bad or they were screwed up. Tr. 72122. Further, both Downard and Burton were aware that Barker had insisted that the crew be
put on notice of the shuttle car's unsafe condition. Tr. 593. See Tr. 721. Additionally,
Downard thought the problem was significant enough to require a new master cylinder. Tr.
590-91.
ti

The shuttle car should have been removed from service by either Downard or Burton
because both knew that the brakes were not operable. The judge correctly found that the
violation was due to the operator's unwarrantable failure. See Quinland Coals. Inc., 10
FMSHRC 705, 708-09 (June 1988).

6

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

1608

•;

Ill.
Conclusion
For the foregoing reasons, we affirm the judge's decision.
....

Arlene Holen, Commissioner.

1609

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

August 26, 1994

CYPRUS PLATEAU MINING
CORPORATION
Docket Nos. WEST 92-371-R
WEST 92-485(B)

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

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

DECISION

BY THE COMMISSION:
This consolidated contest and penalty proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"),
involves a citation issued by the Department of Labor's Mine Safety and Health
Administration ("MSHA ") to Cyprus Plateau Mining Corporation ("Cyprus"), alleging a
violation of 30 C.F.R. § 75.220(a)(l).1 Administrative Law Judge John J. Morris upheld
the citation but concluded that the violation was not significant and substantial ("S&S") and
was not due to Cyprus's unwarrantable failure. 2 15 FMSHRC 1738 (August 1993) (AU).

1

30 C.F.R. § 75.220(a)(l) provides:
Each mine operator shall develop and follow a roof
control plan, approved by the District Manager, that is suitable
to the prevailing geological conditions, and the mining system to
be used at the mine. Additional measures shall be taken to
protect persons if unusual hazards are encountered.

2

In his decision, the judge also ruled on a citation alleging Cyprus failed to remove
from production a shuttle car with inoperative brakes. Docket No. WEST 92-370. The
Secretary petitioned for discretionary review of portions of the judge's decision relating to
that violation. We have issued a separate decision on that petition. Cyprus Plateau Mining

1610

The Secretary timely filed a petitioh for discretionary review, which challenges the judge's
conclusions as to S&S and unwarrantable. failure. For the reasons that follow, we reverse.
I.

Factual and Procedural Background
Cyprus operates the Star Point No. 2 Mine, an underground coal mine, in Carbon
County, Utah. On or about September 13, 1991 , five or six miners working in either the
second right or third right section under the direction of Foreman Robert Powell removed
ventilation tubing from a section of the roof in the number 2 entry to avoid damaging the
tubing when a continuous miner extended a crosscut into the entry. Although the entry had
been permanently supported, the last 15 to 20 feet of the crosscut had not been roof bolted or
otherwise supported. 15 FMSHRC at 1741 ; 1743, 1748. Tr. 31-32, 136-37, 235-36; Exh.

M-2.
After the opening of the intersection, the ventilation tubing was rehung under the last
row of roof bolts closest to the newly mined area of the crosscut. While miners supported
the tubing, other miners secured it to the roof bolts with chain. The. installation took several
minutes to complete. 15 FMSHRC at 1748-49. Tr. at 107-08, 110-11, 239-40, 241-43.,
279, 303.
On March 12, 1992, MSHA Inspectors William Taylor and Dale Smith investigated a
section 103{g) complaint about the incident. 3 After interviewing several of the miners
involved, MSHA issued a citation alleging Cyprus had violated its roof control plan when,
after mining into a permanently supported entry from a crosscut, miners hung ventilation
tubing in the intersection. 15 FMSHRC at 1740-41. Exh. M-4. Section Q of Cyprus's roof
control plan stated:
UNSUPPORTED OPENINGS AT INTERSECTIONS
When a mine opening holes into a permanent!y supported entry, room or
crosscut, or when new openings are created by starting a side cut, no work
shall be done in or inby such intersection until the new opening is either
Corp. , 16 FMSHRC _ _ {August 25, 1994). We have denominated the two civil penalty
proceedings {Docket No. WEST 92-485) as {A) and {B), respectively.
3

Section 103{g), 30 U.S.C. § 813{g) provides:
Whenever a . . . miner . . . has reasonable grounds to
believe that a violation of this Act or a mandatory health or
safety standard exists, such miner . . . shall have a right to obtain
an immediate inspection by giving notice to the Secretary .. ..

1611

permanently supported, timbered off with at least one (1) row of temporary
support (posts or jacks) or at least one (1) row of permanent supports are
installed across the opening in the bolting pattern.
15 FMSHRC at 1741-42. Exh. M-3.
The intersection extended from the rib adjacent to the crosscut to the rib on the
opposite side of the entry. Thus, under Cyprus's roof control plan, even though that area
had previously been roof bolted, once the crosscut was opened up, further work in or inby
the intersection was prohibited until the new opening was supported. 15 FMSHRC at 1741,
1748. Tr. 34-38; Exh. M-2.
In response to MSHA 's citation and penalty proposal, Cyprus filed a notice of
contest. Following an evidentiary hearing, the administrative law judge held that Cyprus had
violated section 75.220(a)(l). The judge found that "work (hanging the tubing) was being
done 'inby' the intersection without the new opening being supported in any manner." 15
FMSHRC at 1748. Additionally, the judge found that there was a reasonable likelihood that,
while hanging the tubing, miners had stepped under the section of the crosscut that lacked
any support. Id. at 1749.
The judge found that the violation was not S&S, concluding that the Secretary had
failed to show a reasonable likelihood that the.hazard created by the violation would result in
an injury. The judge also found that the violation did not arise from the operator's
unwarrantable failure, noting that Foreman Powell had "a good faith belief (although
mistaken)" that some activity was permitted in the area. 15 FMSHRC at 1750-51. The
Commission granted the Secretary's petition for review.
II.

Dis.position of Issues
A. Significant and Substantial
The Secretary argues that the judge's determination that the violation ·was not S&S is
not supported by substantial evidence. He further asserts that compelling evidence shows the
inherent danger of working under unsupported roof, as well as the bad roof conditions
existent in this mine. Sec. Br. at 4-8. In response, Cyprus argues that the judge's
determination is correct, asserting that the Secretary relied on overstated evidence that
addressed general roof conditions in the mine, rather than conditions specific to the violation.
C. Reply Br. at 10-15.
The Commission is bound by the substantial evidence test when reviewing an
administrative law judge's factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(l).
"Substantial evidence" means "such relevant e".idence as a reasonable mind might accept as

1612

adequate to support the judge's conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159, 2163 (November 1989), guoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938). We are guided by the settled principle that, in reviewing the whole record, an
appellate tribunal must also consider anything in the record that "fairly detracts" from the
weight of the evidence that supports a challenged finding. Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951).
A violation is S&S4 if, based on the particular facts surrounding the violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature. Cement Division. National Gmsum Co., 3 FMSHRC 822,
825-26 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission further explained:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under National
Gypsum, the Secretary of Labor must prove: (1) the underlying
violation of a mandatory safety standard; (2) a discrete safety
hazard -- that is, a measure of danger to safety -- contributed to
by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably
serious nature. [Footnote omitted]
See also Austin Power. Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff:g, 9
FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).
Substantial evidence does not support the judge's conclusions. In determining that the
violation was not S&S, the judge concluded that the Secretary had not proven the third
element of the Mathies test. He found that the Secretary's evidence did not address the
specific roof conditions in the entry, that the inspector did not discuss roof conditions with
the miners, and that the inspectors were not present at the time of the breakthrough. 15
FMSHRC at 1750. The judge's approach to the evidence presented in support of the S&S
determination was unduly restrictive.
The Secretary's primary evidence consisted of the testimony of Inspector Taylor, who
had inspected the mine on many occasions over an eight year period and was familiar with it.
Tr. 20. He noted the generally poor condition of the mine roof, the history of roof falls, and
the particular dangers present in newly mined intersections due to the stresses placed on both
ribs and roof. Inspector Taylor noted that the crew was hurriedly attempting to complete a
4

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

1613

job before the end of the shift, when miners would be most tire.d, and that it would have
been almost impossible to complete the work without moving under the unbolted·area. Tr.
37-38, 41-45, 96-98. In addition, miners testifie.d as to the adverse condition of the mine
roof; the obstruction created by the ventilation tubing, which blocke.d their view of the roof
and the last row of roof bolts; and the likelihood that miners move.d under the unsupported
roof of the crosscut while hanging the tubing. Tr. at 114-16, 138, 142-43, 154, 157-59.
Commission case law makes clear that an MSHA inspector nee.d not be present at a mine
when a violation occurs in order to designate the violation S&S. See Nacco Mining Co., 9
FMSHRC 1541, 1546-47 (September 1987); White County Coal Corp., 9 FMSHRC 1578,
1580-82 (September 1987); Emerald Mines Corp., 9 FMSHRC 1590, 1593-95
(September 1987).
We reject Cyprus's argument that the Secretary's evidence was too generalized and
not directed at the specific place in the mine where the violation occurred. In evaluating the
presence of a hazard, the Commission has previously considered conditions on a mine-wide
basis. See Texasgulf. Inc., 10 FMSHRC 498, 503 and cases cited (April 1988)(methane
emissions). See also VP-5 Mining Co., 15 FMSHRC 1531, 1536-37 (August 1993)(friction
generate.d by roof falls as an ignition source). Viewing the record as a whole, we find that it
does not support the judge's conclusion that Cyprus's violation was not reasonably likely to
result in an injury. Accordingly, we reverse the judge's determination that the violation was
not S&S.
B. Unwarrantable Failure
The Secretary asserts that Foreman Powell "knew or should have known" that
hanging ventilation tubing under unsupporte.d roof was unsafe and prohibited under the
ventilation plan, and that, if Powell mistakenly believed that the plan permitted that activity,
his belief must be held in good faith and must be reasonable. Sec. Br. at 9-13. Cyprus
argues that a "should have known 11 standard is contrary to Commission precedent, that a
mistaken but good faith belief in an interpretation of a ventilation plan does not support an
unwarrantable determination, and that Powell properly weighe.d the miners' limited exposure
in hanging tubing versus what he believe.d to be the greater hazard miners face when they
install temporary supports. As a final point, Cyprus notes, in support of Powell's
interpretation of the roof control plan, that the sole plan approval criterion pertaining to
unsupported openings at intersections refers to "work or travel 11 ~ 30 C.F.R. § 75.222(e)),
and Cyprus's roof control plan prohibited only "work." C. Reply Br. at 15-22.
Cyprus is correct that, according to Commission precedent, a "should have known"
standard is not determinative of unwarrantable failure. Virginia Crews Coal Co., 15
FMSHRC 2103, 2107 (October 1993). In Emery Mining Corp., 9 FMSHRC 1997, 2001

1614

(December 1987), the Commission determined that unwarrantable failures is aggravated
conduct constituting more than ordinary negligence. This determination was derived, in part,
from the plain meaning of "unwarrantable" ("not justifiable" or "inexcusable"), "failure"
("neglect of an assigned, expected or appropriate action"), and "negligence" ("the failure to
use such care as a reasonably prudent and careful person would use ... characterized by
'inadvertence,' 'tho~ghtlessness/ and 'inattention"'). 9 FMSHRC at 2001. Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference" or a "serious lack of reasonable care." 9 FMSHRC at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February 1991). This determination was
also based on the purpose of the unwarrantable failure sanctions in the Mine' Act, the Act's
legislative history, and judicial precedent. Emery, 9 FMSHRC at 2002-03.
The judge found that Foreman Powell had a good faith, albeit mistaken, belief that
the roof control plan permitted some activity, including the installation in question, in or inby
the unsupported intersection. 15 FMSHRC at 1750-51. Cyprus argues that the Commission
should not review the reasonableness of Powell's interpretation of the roof control plan. See
Oral Arg. Tr. at 40, 43. We disagree; the Commission has imposed a requirement as to
reasonableness of belief in prior cases. The Commission has recognized that "if an operator
reasonably believes in good faith that the cited conduct is the safest method of compliance
with applicable regulations, even if it is in error, such conduct is not aggravated conduct
constituting more than ordinary negligence. " Southern Ohio Coal Co., 13 FMSHRC 912,
919 (June 1991), citing Utah Power and Light Co., 12 FMSHRC 965, 972 (May 1990). See
Florence Mining Co., 11 FMSHRC 747, 753-54 (May 1989). Moreover, the Commission
has used a similar approach in work refusal cases under section 105 (c), 30 U.S.C. § 815(c).
A miner's work refusal constitutes protected activity when he has a good faith belief that the
work involves a hazard and that belief is also reasonable. ~ Paula Price v. Monterey Coal
!:&..,, 12 FMSHRC 1505, 1514-15 (August 1990).
The judge erred in failing to consider the reasonableness of Powell's belief. Powell
testified that, because the plan prohibited "work" but not all activity in or inby unsupported
intersections, some activity was permitted, including preshifting, pulling bad ribs, sound
testing for bad roof, rock dusting, and establishing ventilation; mining and roof bolting were
prohibited. Tr. 245-46.
Powell's interpretation of the plan was at odds with that of Cyprus's manager of
safety and health, Richard Tucker, who was responsible for roof control training at the mine.
Tucker testified that the plan did not permit miners to go inby an unsupported intersection for
any reason. Tr. 318. The record indicates that, on prior occasions, Powell's crew generally
had not hung ventilation tubing in unsupported intersections. See Tr. 138-39. Powell's
s The unwarrantable failure terminology is taken from section 104(d)(l) of the Act, 30
U.S.C. § 814(d)(l), which establishes more severe sanctions for any violation that is caused
by "an unwarrantable failure of [an] operator to comply with ... mandatory health or safety
standards .... "

1615

inconsistent actions in applying the provision further detract from the reasonableness, as well
as the good faith, of his interpretation.
We conclude that, Powell's narrow interpretation of work, as not including the
hanging of ventilation tubing, is unreasonable. We note that his interpretation of work would
include only selected stages of the extraction process. It would exclude essential activities
that are regulated under the Act and have long been accepted as mining work.
We reject Cyprus's argument that its weighing of miners' exposure to unsupported
roof during the installation of temporary supports compared to their exposure during the task
at issue militates against a finding of unwarrantable failure. Installation of temporary roof
supports is required by Cyprus's roof control plan and is necessary for safe mining practice.

Powell's disregard of the requirements of the roof control plan in ordering miners to
work in the intersection amounted to a serious lack of reasonable care. Accordingly, we
reverse the judge's determination that the violation did not result from the operator's
unwarrantable failure.
Ill.
Conclusion
For the foregoing reasons, we reverse the judge's decision on S&S and
unwarrantability, and remand for recalculation of the civil penalty.

g -__7
..4~
.
-y
Richard V. Backley, Commissioner

1616

Distribution
R. Henry Moore, Esq .
Buchanan Ingersoll
57th Floor
600 Grant Street
Pittsburgh, PA 15219
Jerald Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge John J. Morris
Federal Mine Safety & Health Review Commission
1244 Speer Boulevard, Suite 280
Denver, CO 80204

1617

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

20006

August 30, 1994

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

Docket Nos. WEST 92-340
WEST 92-384

WYOMING FUEL COMPANY,
n/k/a BASIN RESOURCES, INC.

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

Docket No.

WEST 93-1 86

EARL WlilTE, employed by
WYOMING FUEL COMP ANY , n/k/a
BASIN RESOURCES, INC.

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

DECISION
BY: Backley, Commissioner1

This consolidated civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"). The Secretary of
Labor has charged Basin Resources, Inc. ("Basin") with two violations of 30 C.F.R. § 75.316

1

Commissioner Backley is the only Commissioner in the majority on all issues
presented.

1618

(1991 ).2 Administrative Law Judge John J. Morris concluded that Basin violated its
ventilation plan and, thus, section 75.316 by: (1) making an unauthorized, major change in its
ventilation system and (2) permitting excessive levels of methane to accumulate. 15
FMSHRC 1968, 1969-74, 1978-80 (September 1993)(ALJ). The judge also determined that
the violation involving the change to the ventilation plan was significant and substantial
("S&S") but was not the result of Basin's unwarrantable failure to comply with the standard,
and that the mine's General Manager, Earl White, had not "knowingly authorized, ordered, or
carried out" the violation within the meaning of section 1 IO(c) of the Mine Act, 30 U.S.C.
§ 820(c ). Id. at 1974-78, 1981-82. He determined that the methane violation was neither
S&S nor the result of unwarrantable failure. Id. at 1980.
For the reasons that follow; the Commission affirms in result the judge's conclusion
that Basin violated its ventilation plan by changing its ventilation system; remands the issue
of whether that violation was S&S; affirms the judge's determinations that this violation was
not the result of unwarrantable failure and that White was not personally liable for the
violation under section l lO(c); and teverses the judge's determination that the methane
accumulation violated Basin's ventilation plan.3

2

30 C.F.R. § 75.316 provided:
A ventilation system and methane and dust control plan
and revisions thereof suitable to the conditions and the mining
system of the coal mine and approved by the Secretary shall be
adopted by the operator and set out in printed form on or before
June 28, 1970. The plan shall show the type and location of
mechanical ventilation equipment installed and operated in the
mine, such additional or improved equipment as the Secretary
may require, the quantity and velocity of air reaching each
working face, and such other information as the Secretary may
require. Such plan shall be reviewed by the operator and the
Secretary at least every 6 months.

On November 16, 1992, 30 C.F.R. § 75.316 was superseded by 30 C.F.R. § 75.370,
which imposes similar requirements.
3

With respect to the ventilation change, aJl Commissioners affirm in result the judge's
finding of violation. With respect to whether that violation arose from the operator's
unwarrantable failure, Commissioners Backley, Doyle and Holen vote to affirm the judge's
determination that it did not. Commissioners Backley, Doyle and Holen also affirm the
judge's determination that White was not personally liable for the violation under section
llO(c). Chairman Jordan dissents on the unwarrantable failure and section l IO(c) issues. As
to whether the ventilation change violation was S&S, aJJ Commissioners vote to remand the
issue. Chairman Jordan and Commissioner Backley do not reach the issue of whether a final
uncontested imminent danger order can be used to establish that a violation is S&S.

1619

I.

Factual and Procedural Background
On June 1, 1991, the Golden Eagle Mine, an underground coal mine in Weston,
Colorado was purchased from Wyoming Fuel Company ("Wyoming Fuel") by Entech, Inc.,
the parent company of Basin. During that month, the Northwest No. 1 section, where
longwall mining was being conducted, experienced methane liberation problems. In order to
deal with the situation, General Man'ager Earl White decided on Sunday, June 23, to make a
major change in the air flow. Basin changed return entry No. 3 on the longwall's headgate
side to an intake entry and converted intake entries Nos. 2 and 3 on the tailgate side to return
entries.
The next morning, White telephoned Inspector Donald Jordan of the Department of
Labor's Mine Safety and Health Administration ("MSHA") and informed him of the change.
The following morning, June 25, MSHA Inspectors Jordan and Roland Phelps visited the
mine, reviewed the mine's ventilation plan, and confirmed that the plan's specified air flow in
the longwall section had been changed. Inspector Jordan issued withdrawal order No.
3244406, pursuant to section 104(d)(2) of the Act, 30 U.S.C. § 814(d)(2), alleging that, by
reversing the air flow, Basin was out of compliance with its ventilation plan, and that the
violation was S&S and the result of unwarrantable failure.4 The Secretary subsequently filed

Commissioner Doyle and Commissioner Holen would reverse the judge's determination on
that issue. In Pennsylvania Electric Co., 12 J'.MSHRC 1562, 1563-65 (August 1990), aff'd on
other grounds, 969 F.2d 1501 (3d Cir. 1992), the Commission determined that the effect of an
evenly split vote, in which at least two Commissioners would affirm a judge's decision, is to
leave the decision standing as if affirmed. No Commissioner votes to affirm the judge's S&S
determination. As a corollary to those principles, the vote of Chairman Jordan and
Commissioner Backley, closest in effect to the judge's decision, is the Commission's
disposition . All Commissioners reverse the judge's finding of violation based on the methane
accumulations. Commissioners' separate opinions follow the decision.
4

~

Order No. 3244406 states:
The methane, ventilation and dust control plan, approved
April 16, 1991 was not in compliance in the North West # 1
Long Wall, MMU 009-0 in that page 3 of this addendum shows
#3 headgate entry as a return air course. The air was redirected
on 6-23-91 in this entry and it is now an intake and in tum the
air is coursed through #1 and #2 bleeder entries toward the new
proposed exhaust shaft. At the shaft, the air is coursed to #58
crosscut of the tailgate return.

1620

.·::

a civil penalty petition against White, pursuant to section l lO(c) of the Act, alleging that
White had knowingly authorized the violation.
Later in the day on June 25, Inspectors Jordan and Phelps inspected the Northwest No.
1 section. Using handheld methane detectors, they measured methane concentrations of 4% to
5% and higher in the tailgate area, four feet outby the Kennedy stoppings at crosscuts 62 and
63, between the No. 3 and 4 tailgatr entries. 15 FMSHR.C at 1978; Tr. 35, 121-22. They
also took two bottle samples of the air, which, upon testing, showed explosive concentrations
of methane at 6.8% and 9.4%. Tr. 36-37, 123.
Based on these methane levels, the inspectors issued an imminent danger order to
Basin pursuant to section I 07(a) of the Act, 30 U.S.C. § 817(a). They also cited Basin under
section 104(a) of the Act, 30 U.S.C. § 814(a), alleging, as later modified, that the methane
concentration was an S&S violation of the ventilation plan and section 75.316.5 On June 28,
1991, MSHA approved, with some modifications, Basin's ventilation changes. Gov't Ex. M-2;
Tr. 165-66, 240-4 l, 405.
Following an evidentiary hearing, the judge concluded that, by altering the air flow
required by its plan without having obtained MSHA's prior approval, Basin had failed to
comply with its ventilation plan, thereby violating section 75.316. 15 FMSHR.C 1970-74.
The judge based his determination on a provision requiring prior approval set forth in an
MSHA cover letter, which he found was part of the ventilation plan. Id. at 1971-74. He
concluded that the violation was S&S, finding that a reasonable likelihood of injury had been
established by the uncontested imminent danger order. Id. at 1976. He further found that
the violation had not resulted from Basin's unwarrantable failure because White had a good
5

Citation No. 3244408 states:
Methane in excess of 4.0% and 5.0% was present outby
the Kennedy stoppings in xcut #62 and #63 between #3 and #4
entries in the #3 side of the NW LW Tailgate area. Also oxygen
in amounts of 17.1% was measured with hand held detectors at
least 4 ft. outby the stopping in #62 crosscut. Both samples
were collected to substantiate this citation and order. This was
the main contributing factor to the issuance of imminent danger
order #3244407....

The citation was modified on June 27, 1991, by citation No. 3244408-01:
Citation no. 3244408 issued 06/25/9 I is hereby modified to add
in part 8 that this is a violation of the methane and ventilation
and dust control plan as approved on page 37, November 15,
1990,. and to change part 9.C from a violation of 75.329 to
75.316.

1621

faith, although mistaken, belief that his actions complied with the Secretary's regulations. Id.
at 1976-78. The judge concluded that White was not personally liable under section 11 O(c)
for this violation because his conduct was not "aggravated." Id. at 1981. With regard to the
cited methane concentrations, the judge determined that the high methane levels violated the
pla:n and, thus, section 75.316. Id. at 1978-80. He concluded, however, that this methane
violation was not S&S or the result of Basin's unwarrantable failure. Id. He assessed a
penalty of $300 for the first violation and $400 for the second violation. Id. at 1982.
The Commission granted the parties' cross-petitions for discretionary review and heard
oral argument. The Secretary's petition sought review of the judge's holdings that the
ventilation change was not the result of unwarrantable failure, that White was not liable under
section l IO(c), and that the methane accumulation was not S&S or the result of unwarrantable
failure. Basin's petition sought review of the judge's determinations that the ventilation
change and the methane accumulations were violations and that the ventilation change
violation was S&S.
II.
Disposition
A. Change in Ventilation6
1. Validity of section 104(d)(2) order

As a threshold matter, Basin argues in its brief on review that the section I 04( d)(2)
order alleging a violation based on the change in the ventilation plan was procedurally
defective. Basin argues that, because the underlying section 104(d)(l) order was issued not to
Basin but to its predecessor, Wyoming Fuel, there was no "predicate" order in place and, thus,
a section I 04(d)(2) order could not properly be issued.7 The order citing the ventilation plan
6

All Commissioners affirm in result the judge's conclusion that Basin violated section
75.316 by failing to comply with the air flow requirements of its ventilation plan.
7

If an inspector finds a violation that is S&S and results from an unwarrantable failure
by the operator to comply, a citation noting those findings is issued. This citation is
commonly referred to as a "section 104(d)(l) citation" (30 U.S.C. § 814(d)(I)). Greenwich
Collieries. Div. of Pa. Mines Corp., 12 FMSHRC 940, 945 (May 1990), citing Nacco Mining
Co., 9 FMSHRC 1541, 1545 n.6 (September 1987). If, during the same inspection or a
subsequent inspection within 90 days of such citation, another violation resulting from
unwarrantable failure is found, a withdrawal order is issued under section 104(d)(l) of the
Act. This is a "predicate" order. If subsequent inspections of the mine reveal additional
unwarrantable failure violations, withdrawal orders are issued under section 104(d)(2) of the
Act until such time as an inspection of the mine discloses no further unwarrantable failure
violations. Greenwich Collieries, 12 FMSHRC at 945.

1622

violation reflects that MSHA issued the predicate section 104(d)(l) order to Wyoming Fuel on
March 21, 1991. Basin raised this issue below, but the judge did not rule on it.

-::

Basin did not raise this issue in its petition for discretionary review, nor did the
Commission direct its review sua sponte. Under the Mine Act and the Commission's
procedural rules, review is limited to the questions raised in the petition and by the
Commission sua sponte. 30 U.S.C. §§ 823(d)(2)(A)(iii) and (B); 29 C.F.R.§ 2700.70(£)
(1993). Therefore, Basin's procedural challenge is not properly before the Commission.8
2. Violation
Under section 75.31 6, which repeated the language in section 303(0) of the Mine Act,
30 U.S.C. § 863(0), an operator was required to adopt and operate under "a ventilation system
and methane and dust control plan and revisions thereof' that have been approved by the
Secretary. The judge determined that Basin violated section 75.316 because it failed to obtain
MSHA's prior approval before changing the air flow. 15 FMSHRC at 1970-74. He found
that a prior approval requirement was contained in an MSHA cover letter attached to the
mine's ventilation plan, adopted by Basin from Wyoming Fuel. Id. at 1974. Basin argues
that it had no notice that MSHA's prior approval was necessary and that it was not aware of
the cover letter. B. Br. 15-18. The Secretary responds that the cover letter was an effective
part of the plan. S. Reply Br. 8-12.

8

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

30 U.S.C. § 814(d)(2)(emphasis added).
We note that the plain language of section I 04(d)(2) addresses repeated violations at a
mine, regardless of ownership. Section 104(d)(2) lifts the probationary chain only when the mine
passes an inspection without an unwarrantable failure violation. Moreover, even if the section
104{d)(2) order were modified, the allegations of violation would survive. See Consolidation
Coal Co., 4 FMSHRC 1791 , 1794-98 (October 1982). The judge's failure to rule on Basin's
argument was harmless error.

1623

.,,.

We conclude that the cover letter, upon which the judge relied, merely reiterated to the
operator that, under section 75 .316, a ventilation plan and revisions thereof must first be
approved by MSHA. For the reasons set forth below, we reject as unreasonable the assertion
of counsel for the Secretary at oral argument that, absent the cover letter, Basin's ventilation
change would not have required prior approval. Oral Arg. Tr. 27-30.9
Once a ventilation plan is approved and adopted, its provisions and revisions are
enforceable as mandatory standards. UMW A v. Dole, 870 F.2d 662, 671 (D.C. Cir. 1989);
Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976); Freeman United Coal
Mining Co., 11 FMSHRC 161 , 164 (February 1989); Jim Walter Resources. Inc., 9 FMSHRC
903, 907 (May 1987). Basin's ventilation plan required use of the No. 3 headgate entry as a
return entry and tailgate entries No. 2 and 3 as intake entries. Gov't Ex. M-1 (ventilation
diagram labeled p. 3). There is no dispute that, on June 23, Basin converted the No. 3
headgate entry to an intake entry and the two tailgate entries to return entries. It is also
undisputed that Basin did not secure MSHA's prior approval. This unilateral, major change in
the ventilation system constituted a failure to comply with the approved plan and violated
section 75.316. We note the regulatory history of current section 75.370, the successor to
section 75.316. The preamble to section 75.370 states that MSHA's "existing practice" under
section 75.316 required prior approval of proposed major revisions. 57 Fed. Reg. 20868,
20899 (May 15, 1992). Both the Mine Act and the Secretary's regulations recognize the
potential dangers attendant upon major ventilation changes by setting forth procedures for
implementation of such changes. 30 U.S .C. § 863(u); 30 C.F.R. § 75.322 (1991), superseded
~ 30 C.F.R. § 75.324 (1992).
The Commission rejects, as did the judge, Basin's assertion that 30 C.F.R. §§ 75.308
and 75.309(a) (1991) 10 undercut any requirement of prior approval because those regulations
authorized ventilation "changes or adjustments" when methane reached 1% in face areas and
return aircourses. 15 FMSHRC at 1974. The "changes or adjustments" in those sections
referred only to "increasing the quantity of air ... or improving the di stribution of air. " 30
C.F.R. §§ 75.308-1 , 75.309-3 (1991 ). 11 As noted, White's air reversal was a major ventilation
change.

9

We note further that the Secretary was unable to produce the cover letter during
discovery and did not do so until the hearing. 15 FMSHRC at 1973; Tr. 362-64.
10

In 1992, sections 75 .308 and 75.309(a) were superseded by 30 C.F.R. §§ 75.323(b)(ii),
75.323(c), and 75.323(d)(2)(i), which impose similar requirements.
11

Similarly, we reject Basin's suggestion, made at oral argument, that the ventilation
change was authorized by a plan provision that mirrored 30 C.F.R. § 75 .308 (1991). Gov't
Ex. M-1 , p. 17; Oral Arg. Tr. 9-13.

1624

<'
·:

For the foregoing reasons, the Commission concludes that Basin did not comply with
its plan when it unilaterally changed the air flow and, accordingly, that Basin v.iolated section
75.316. The Commission affirms in result the judge's finding of violation.
3.

s&s 12

The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C.
§ 814(d), and refers to more serious violations. A violation is S&S if, based on the particular
facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed
to by the violation will result in an injury or illness of a reasonably serious nature. Cement
Division. National Gypsum Co., 3 FMSHRC 822, 825-26 (April 1981 ). In Mathies Coal Co.,
6 FMSHRC l (January 1984), the Commission further explained:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (I) 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 ~easonably serious nature.
Id. at 3-4; see also Austin Power. Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), affg,
9 FMSHRC 2015, 2021(December1987) (approving.Mathies criteria). An evaluation of the
reasonable likelihood of injury should be made assuming continued normal mining operations.
U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985).
The major dispute on review is the third Mathies element, a reasonable likelihood of
resulting injury. The judge, focusing solely on the somewhat speculative terms used by the
inspectors, found that the Secretary had failed to establish that element. 15 FMSHRC at
1975-76. The judge determined, however, that the uncontested imminent danger order
established a reasonable likelihood that the hazard contributed to would result in an injury.
Id. The judge's conclusion regarding the preclusive effect of the uncontested imminent danger
order fails to provide any analysis nor does it direct us to any relevant legal authority.
Basin asserts, also without providing us with any relevant legal authority, that, as a
matter of law, an uncontested imminent danger order cannot provide a basis for sustaining an

All Commissioners vote to remand the judge's S&S determination. Chairman Jordan
and Commissioner Backley do not reach the judge's determination that a final uncontested
imminent danger order established the facts alleged in that order. Commissioners Doyle and
Holen vote to reverse that holding. Accordingly, this section of the decision reflects the
rationale of Chairman Jordan and Commissioner Backley. See n.3, supra.
12

1625

S&S designation. Basin argues further that if allegations in an uncontested imminent danger
order are held to establish the S&S element of a related citation as a matter of law, "operators
would be forced to litigate imminent danger orders merely to preserve the .opportunity to
litigate a 'significant and substantial' allegation in a related citation." B. Reply Br. 5. Finally,
Basin asserts that, in any event, by the time the imminent danger order was issued on June
25, Basin had returned to use of the plan's approved ventilation scheme so that the conditions
referenced in the order could not have been linked to the earlier air reversal.
The Secretary relies, without discussion or reference to relevant citations, on the
judge's conclusion that the imminent danger order established the third step of the Mathies
test. The Secretary fails to address the policy issue raised by Basin concerning needless
litigation, and limits his S&S argument to contending that the weight of the evidence
demonstrates that Basin had not changed the air back when the high methane concentrations
were found and that, accordingly, the concentrations stemmed from the impermissible change
to the ventilation.
The Commission need not resolve in this case whether, as a general rule, an
uncontested imminent danger order may be used to establish a reasonable likelihood of injury
in a related citation. Cf. generally Ranger Fuel Cor:p., 12 FMSHRC 363, 370-73 (March
1990). Here, regardless of the fact that the inspectors issued the order, the re.cord evidence
supports a finding that a dangerous condition reasonably likely to lead to injury existed on the
afternoon of June 25. It is uncontroverted that explosive levels of methane were detected at
that time in an area containing several ignition sources. Tr. 123-24. Moreover, the Golden
Eagle Mine is a highly gassy mine liberating over 1,000,000 cubic feet of methane during a
24-hour period and is subject to five-day spot inspection pursuant to section 103(i) of the
Mine Act, 30 U.S.C. § 813(i). Tr. 25. In addition, the mine had experienced a very serious
methane explosion only five months prior to the air reversal. See 15 FMSHRC at 1978; Tr.
38-39. The judge, relying solely on the imminent danger order for his S&S findings,
overlooked all of this evidence. Accordingly, we vacate the judge's finding that the Secretary
failed to offer evidence establishing the reasonable likelihood of injury.
Under Mathies, the Secretary must show that the hazardous condition is caused by the
violation of the cited safety standard in order to make out the special finding of S&S. 'Here
· the hazardous condition involved methane accumulations. The cited violation concerned the
operator's failure to comply with the approved ventilation plan. The unanswered question is
whether the deviation from the ventilation plan caused the methane accumulations. The
judge's decision fails to address the causal link required under Mathies.
The record ·evidence linking the methane levels to the air flow change is controverted.
The inspectors testified that the explosive levels of methane that they detected resulted from
Basin's air reversal and reflected the serious hazards associated with the reversal. Tr. 35-36,
54, 123-24. Inspector Jordan testified that when he measured the methane levels on June 25,
the intake and return entries were still functioning in the altered form that General Manager
White had implemented. Tr. 374-76. Jordan's contemporaneous notes support his testimony.

1626

Id. Jordan's testimony was further supported by former mine foreman David Huey, who
testified that White's ventilation changes remained in effect until later in the week. Tr. 86-87.
White, on the other hand, maintained that, on June 25, before Inspector Jordan took the
methane measurements, Huey and another manager had already returned the intake and return
entries to the pre-June 23 configuration. Tr. 211-15.
The Commission is bound by the terms of the Mine Act to apply the substantial
evidence test when reviewing an administrative law judge's factual determinations. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). That standard of review requires that a fact finder weigh all probative
record evidence and that a reviewing body examine the fact finder's rationale in arriving at his
decision. Mid-Continent Resources. Inc., 16 FMSHRC 1218, 1222 (June 1994), citing
Universal Camera Corn. v. NLRB , 340 U.S. 474, 487-89 (1951 ). A judge must analyze and
weigh the relevant testimony, make appropriate findings, and explain the reasons for his
deci sion. Mid-Continent, 16 FMSHRC at 1222, citing Anaconda Co., 3 FMSHRC 299, 299300 (February 1981).
The judge failed to analyze any of the evidence concerning whether the methane
accumulations were, in fact, caused by the air reversal. Nor did he make a finding
concerning this issue of causality. Accordingly, we vacate the judge's conclusion that the
violation was S&S, and remand for further analysis consistent with this decision.
4. Unwarrantable Failure 13
The unwarrantable failure terminology is taken from section 104(d) of the Act and
refers to more serious conduct by an operator in connection with a violation. In Emery
Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001 . This determination was derived, in part, from the plain meaning of "unwarrantable"
("not justifiable" or "inexcusable"), "failure" ("neglect of an assigned, expected or appropriate
action"), and "negligence" (the failure to use such care as a reasonably prudent and careful
person would use, characterized by "inadvertence," "thoughtlessness," and "inattention"). Id.
Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference" or a "serious lack of reasonable care." Id. at at 2003-04;
Rochester & Pittsburgh Coal Corp., 13 FMSHRC 189, 193-94 (February 1991). This
determination was also based on the purpose of the unwarrantable failure sanctions _in the
Mine Act, the Act's legislative history, and judicial precedent. Emery, 9 FMSHRC at 200203 .

13

Commissioners Backley, Doyle and Holen vote to affirm the judge's finding that ·this
violation did not result from Basin's unwarrantable failure to comply with the standard.
Chairman Jordan votes to vacate and remand. This section of the decision is based on the
rationale of Commissioners Backley_, Doyle and Holen.

1627

In analyzing whethe·r the violation arose from Basin's unwarrantable failure, the judge
examined General Manager Earl White's conduct because it was White who decided to make
the ventilation change. The judge found that White believed that section 75.316 did not
require MSHA's prior approval of the change. 15 FMSHRC at 1976-78. The judge reasoned
that "there cannot be an unwarrantable failure resulting from a good faith, although mistaken
belief that [an operator's] actions were in compliance with regulations." Id. at 1977 (citations
omitted). The judge is correct that, under Commission caselaw, unwarrantable failure does
not result from good faith, although mistaken, belief that an operator was complying with
regulations. Florence Mining Co., 11 FMSHRC 747, 754 (May 1989).
The Secretary argues that White, as mine manager, should have known that prior
approval was required and that, according to Commission cases, Basin's conduct was
unwarrantable. S. Br. 8-11 & n.7. Citing Virginia Crews Coal Co., 15 FMSHRC 2103
(October 1993), Basin asserts that this is insufficient to establish unwarrantable failure. B. Br.
24. Basin is correct that, according to Commission precedent, a "should have known"
standard is not determinative of unwarrantable failure. Virginia Crews, 15 FMSHRC at 2107.
"Use of a 'knew or should have known' test by itself would make unwarrantable failure
indistinguishable from ordinary negligence." Id. Here, as in Virginia Crews, we reject such
an interpretation of the Commission's decision in Emerv. Id.
The Secretary objects to the judge's finding on the grounds that he should have
determined not only that White had a good faith belief but whether, under the totality of the
circumstances, that belief was reasonable. The Secretary further contends that the weight of
evidence demonstrates that White's belief was not reasonable. In response, Basin asserts that
substantial evidence supports the judge's d~termination .
The Secretary is correct that the operator's good faith belief must be reasonable under
the circumstances. Cyprus Plateau Mining Corp.. No. WEST 92-371-R, 16 FMSHRC _ ,
slip. op. at 6 {August 26, 1994); see Southern Ohio Coal Co., 13 FMSHRC 912, 919 (June
1991), citing Utah Power & Light Co., 12 FMSHRC 965, 972 (May 1990), aff'd, 951 F.2d
292 (10th Cir. 1991 ). Moreover, the Commission has used a similar approach in work refusal
cases under section 105(c) of the Mine Act, 30 U.S.C. § 815(c). A miner's work refusal
constitutes protected activity when he has a good faith belief that the work involves a hazard
and that belief is also reasonable. See Paula Price v. Monterey Coal Co., 12 FMSHRC 1505,
1515 {August 1990).
It is undisputed that, in directing the ventilation change, White was attempting to
improve the mine's ventilation. In June 1991, the Northwest No. I longwall section was
experiencing serious methane liberation problems. Following a number of unsuccessful
adjustments {Tr. 219-21, 306-07), White decided to make the reversal in order to deliver more
intake air to that section. Tr. 396. The judge found that White reasonably believed that "he
could have been cited for failing to correct the problems in the ventilation system." 15
FMSHRC at 1977.

1628

The Secretary's evidentiary objections to the judge's findings are unpersuasive. The
Secretary argues that two of White's subordinates informed him that MSHA should be notified
before making the contemplated changes. The judge found that White responded by
consulting 30 C.F.R. Part 75 and, in particular, section 75.316, but found no requirement for
such prior approval. 15 FMSHRC at 1977. Section 75.370(c), which superseded section
75.316, now explicitly requires that major changes to the ventilation system "shall be
submitted to and approved by the district manager before implementation." The earlier
standard, in effect at the time, did not contain this express requirement. Moreover, Inspector
William Denning conceded that, under the regulations in place in June 1991, there was no
guidance for mine operators as to the type of changes that could or could not be made
without prior approval. Tr. 162-63 . The Secretary's position at oral argument that, absent the
cover letter, prior approval was not required (Oral Arg. Tr. 27-30), further supports the
reasonableness of the operator's belief that, based on the language of the regulation, prior
approval was not required. The Commission does not find unreasonable White's good faith
belief that prior approval was not required.
The Secretary further asserts that White's belief was unreasonable based on Inspector
Jordan's testimony that, one week before the air reversal, he advised White that MSHA
approval was necessary for ventilation changes. The inspector stated, "We had discussed it
and, if I remember correctly, I indicated to Mr. White, whatever he did, to make sure that
approval was obtained before it was done." Tr. 53 (emphasis added). White denied
discussing a prior approval requirement with anyone from MSHA. Tr. 264. The inspector's
testimony was uncertain; it does not overcome the substantial evidence supporting the judge's
determination that White, whose testimony the judge credited, had a good faith belief that he
was complying with the regulations. 15 FMSHRC at 1977-78. The Commission has often
emphasized that a judge's credibility determinations may not be overturned lightly. E.g.
Quinland Coals. Inc., 9 FMSHRC 1614, 1618 (September 1987).
Substantial evidence supports the judge's conclusion that Basin had a good faith,
although mistaken, belief that it was complying with the Secretary's regulations when it
attempted to improve the safety of the mine's ventilation system. The judge implicitly found
that White's belief was reasonable under the circumstances and that determination also has
substantial support in the record. Accordingly, the Commission affirms the judge's
determination that Basin's conduct was not aggravated and, thus, that the violation did not
result from unwarrantable failure.
B. Section l lO(c) Liability 14
Section 110(c) of the Mine Act provides that, whenever a corporate operator violates a
Commissioners Backl~y, Doyle and Holen vote to affirm the judge's determination that
White was not liable for the violation under section l lO(c) of the Act. Chairman Jordan
votes to vacate and remand. This section of the decision is based on the rationale of
Commissioners Backley, Doyle and Holen.
14

1629

mandatory safety or health standard, any agent of the corporate operator who "knowingly
authorized, ordered, or carried out such violation" shall be subject to civil penalty. 30 U.S.C.
§ 820(c). The Commission has held that a "violation under section llO(c) involves
aggravated conduct, not ordinary negligence." BethEnergy Mines. Inc., 14 FMSHRC 1232,
1245 (August 1992).
The judge determined that the General Manager, Earl White, had not knowingly
authorized the violation. The Secretary contends that all the evidence supporting a finding
that the ventilation change resulted from Basin's unwarrantable failure also compels a
conclusion that White should be held liable under section 11 O(c). White responds that his
reasonable, good faith belief that he was acting within the regulations to improve safety
precludes a finding of section IJO(c) liability.
Substantial evidence supports the judge's conclusion that White is not liable. White's
concern in implementing the ventilation change was safety; he was attempting to rectify a
serious ventilation problem. The judge found that, although White was mistaken, he had a
good faith belief that he did not need MSHA's prior approval for the ventilation change. 15
FMSHRC at 1977. The Commission has affirmed the judge's implicit finding that White's
belief was reasonable. The Commission concludes that substantial evidence supports the
judge's determinatiorl- that White did not engage in aggravated conduct and affirms the judge's
dismissal of the section llO(c) complaint.
C. High Methane Levels 15
The second citation, as modified, alleged that Basin violated its ventilation plan in that
the mine's bleeder systems were to meet or exceed the criteria set forth in 30 C.F.R.
§ 75.316-2(e) through (i)(l991).16 See Gov't Ex. M-1 , p. 37. The judge found a violation

15

All Commissioners reverse the judge's determination of violation with respect to the
methane accumulations.
...

16

Section 75.316-2, in effect in June 1991 , provided in relevant part:
(h) The methane content of the air current in the bleeder
split at the point where such split enters any other air split
should not exceed 2.0 volume per centum.
(i) When the return aircourses from all or part of the
bleeder entries of a gob area and air other than that used to
ventilate the gob area is passing through the return aircourses,
the bleeder connectors between the return aircourses and the gob
shall be considered as bleeder entries and the concentration of
methane should not exceed 2.0 volume per centum at the
intersection of the bleeder connectors and the return aircourses.
In 1992, these provisions were superseded by 30 C.F.R. § 75.323(e).

1630

because the MSHA inspectors measured methane levels of 4% to 5% and more in the tailgate
section four feet from the Kennedy stoppings at crosscuts 62 and 63, some 60 feet from the
No. 3 return entry. 15 FMSHRC at 1978. He determined that the inspector "measured the
methane at the proper location and manner." Id. at 1980. Basin argues that MSHA measured
the methane at a location other than that required by the plan. It asserts that the readings
were taken no more than four feet outby the stoppings separating the gob from the bleeder
taps, 50 to 60 feet inby from where the measurements should have been taken, i.e., the
mixing point where the bleeder connectors intersect the return entry. The Secretary counters
that the measurements were taken at the appropriate place and that the ventilation change
caused impermissible levels of methane to accumulate in the section.
As discussed earlier, we are bound by the substantial evidence test when reviewing an
administrative law judge's factual determinations. The Commission is guided by the settled
principle that, in reviewing the record, an appellate tribunal must consider anything in the
record that "fairly detracts" from the weight of the evidence that supports a challenged
finding. Universal Camera Corp. v. NLRB , 340 U.S. at 488.
The cited plan provisions address methane levels at the intersection of bleeder
connectors and return air courses (n.16, supra). The record evidence, relied on by the judge
(15 FMSHRC at 1978), re.veals that· the inspectors measured the methane at two locations in
the bleeder connectors nearly 60 feet inby the mixing point where the connectors intersect the
return entry. The Secretary presented no evidence or argument that these locations were valid
testing points for the bleeder-return intersections. Thus, the judge's finding that the
measurements were taken at proper locations lacks substantial evidentiary support, and the
Commission reverses his determination of violation. 17

The separate opinions of Commissioners follow.

17

We do not reach the S&S and unwarrantable failure issues associated with this
violation. We note, however, that the Secretary argued on review that Basin's methane
violation was the result of unwarrantable failure, although he neither charged this nor argued
the point below. In his decision, the judge inadvertently addressed unwarrantable failure and
found that such an allegation had not been proven. ·

16 31

Commissioner Doyle and Commissioner Holen, concurring in part and dissenting in part:
We concur with the opinion in all respects except that we must respectfully dissent in
part from the rationale set forth for the determination of whether the violation based on the
ventilation change was significant and substantial ("S&S"}.
We agree with the judge that Inspector Jordan's testimony to the effect that "anything
that has the potential for serious injury or bodily harm is automatically significant and
substantial " and his further testimony that "it is only a 'guesstimate"' as to the consequences
of the violation conflict with the Commission's settled law. 15 FMSHRC at 1975. Under
Commission precedent, neither statement would support an S&S finding. Mathies Coal Co., 6
FMSHRC I, 3-4 (January 1984}.
We believe that our colleagues err in failing to reach the issue on which the judge
based his decision, i.e., that an uncontested imminent danger order, by virtue of being a final
Commission order, establishes that an imminent danger actually existed. 15 FMSHRC at
1976. They remand for further analysis of the evidence. Slip op. at 10. Although we agree
that further analysis is required, the imminent danger order issue should be decided at this
stage. The judge's ruling on the effect of the imminent danger order served as the sole basis
for his S&S finding and must be disposed of before the adequacy of the judge's analysis of
the record evidence is reached. Further, should the judge on remand again find that the
Secretary failed to establish S&S, his conclusion on the effect of the imminent danger order
would be left standing and another Commission proceeding would be required to decide that
issue.
We would reverse the judge's determination. Section 107(e)(l) of the Mine Act
provides operators with the opportunity to challenge section 107(a} imminent danger orders
within 30 days after issuance. 30 U.S .C. § 817. The finality of such orders is not referenced
in the Mine Act, except in section 111 , as a basis for compensation to miners who are idled
as a consequence. 30 U.S .C. § 821. The judge's opinion appears to be based on a theory that
the imminent danger order, as a final order of the Commission, is equivalent to a final
judgment on a litigated issue. Under this theory, Basin is prohibited, presumably under the
doctrine of either res judicata or collateral estoppel, from challenging whether an imminent
danger actually existed on June 25. We disagree that this is the effect of a final imminent
danger order.
The judge offers no legal theory or other basis for his conclusion that the allegations
set forth in a final imminent danger order can be used "in another proceeding to irrebuttably
establish those allegations. The Mine Act and Commission precedent address the finality of
an imminent danger order only in the context of compensation proceedings arising under

1632

section 111 . The doctrines of res judicata and collateral estoppel would not preclude
challenge to such a final order because those doctrines require the claim or issue to have been
previously litigated. Moreover, those doctrines have "the dual purpose of protecting litigants
from the burden of relitigating an identical issue with the same party or his privy and of
promoting judicial economy by preventing needless litigation." Parklane Hosiery Co. v.
Shore, 439 U.S. 322, 326 (1979), citing Blonder-Tongue Lab .. Inc. v. University of Ill.
Found., 402 U.S . 313, 328-329 (1971 ).
Here, neither purpose would be served. Presently, an operator has, in most instances,
no reason to contest an imminent danger order unless compensation is in issue. Penalties are
not assessed in connection with an imminent danger order. Nor are alleged violations giving
rise to an imminent danger order part of the imminent danger order itself, but rather are set
forth in other citatiorls and orders issued in connection with the dangerous condition, as was
the case here. Under the judge's logic, operators desiring to avoid a ~ se finding of
reasonable likelihood of injury, the third element of the Commission's S&S test, would need
to litigate each and every imminent danger order, irrespective of whether compensation were
in issue. Where no imminent danger was found, the reasonable likelihood allegation, which
could be based on a less dangerous and less immediate threat to safety, would still be in issue
and subject to litigation.
To the extent our colleagues' opinion suggests that Ranger Fuel Corp., 12 FMSHRC
363 (March 1990), would support the judge's' conclusion, we believe it is in error.
Slip op. at 9. Ranger is not relevant here. That case involved section 111 compensation to
miners arising from an imminent danger withdrawal order. Under section 111, limited
compensation is payable to miners irrespective of the validity of the withdrawal order but the
further compensation sought in Ranger was contingent upon the relevant order becoming
"final." 30 U.S.C. § 821 ; 12 FMSHRC at 373. The operator attempted to contest the validity
of a final imminent danger order in the compensation proceeding although, under section 111,
the challenged compensation was contingent only upon the order being final, not on the actual
existence of an imminent danger. See 30 U.S.C. § 821. The Commission denied Ranger's
challenge. 12 FMSHRC at 3 73. Here, the issue is not whether the order is final but whether
a final unlitigated imminent danger order can be used in a penalty proceeding to irrebuttably
establish that an imminent danger actually existed.
We join in vacating the judge's determination that the Secretary had failed _to offer
evidence establishing reasonable likelihood of injury. On remand, we would ask the judge for
further analysis of the record, including Inspector Denning's testimony that the ventilation
change implemented by the operator caused methane to accumulate in the tailgate as well as
his testimony that such accumulation, along with the ignition source of the longwall

16 3 3

equipment, had, in fact, created an imminent danger. Tr. at 123-24. We would also ask the
judge to resolve expressly whether !he ventilation change instituted by Mr. White remained in
effect at the time of the citation. Contrary to our colleagues' view, we would leave to the
judge the evaluation of whether an explosion five months earlier is relevant. Slip op. at 9.

1634

Chairman Jordan, concurring in part and dissenting in part:
I concur with Parts I., II. A. 1-3, and II. C. of the opinion. I cannot join my colleagues in affirming the judge's determination that the unauthorized change to the ventilation
plan was not the result of the operator's unwarrantable failure to comply with 30 C.F.R.
§ 75.316 (1991). I also dissent from the majority's section llO(c), 30 U.S.C. § 820(c),
determination.
I.
The judge decided that the allegations of unwarrantable failure should be stricken
because "the operator through its manager [Earl White] had a good faith honest belief that he
was complying with the regulations." 15 FMSHRC at 1978. I find this conclusion lacking in
two respects. First, the judge based his good faith finding on irreconcilably conflicting
credibility determinations and failed to analyze important record evidence bearing on good
faith. Second, the judge has failed to determine the reasonableness of any belief on White's
part that his actions constituted the safest way of adhering to the requirements of section
75.316. The judge's failure to analyze the reasonableness of White's belief is particularly
troublesome in light of significant record evidence that casts doubt on Basin's claim that
White reasonably believed, he did not need the approval of the Department of Labor's Mine
Safety and Health Adminis'tration ("MSHA") before reversing the air flow from the configuration set forth in the ventilation plan. Accordingly, I would vacate the judge's finding that
there was no unwarrantable failure and remand it for further consideration consistent with the
analysis contained in this opinion.

The violation occurred when White unilaterally revised the ventilation system on
Sunday, June 23, 1991 , 1 so that it deviated substantially from the ventilation plan that had
been approved by MSHA. Basin maintains that White reasonably and in good faith believed
that section 75.316 permitted him to implement the major ventilation changes that were
carried out on June 23 before obtaining MSHA's approval. The question to be determined is
whether the judge properly analyzed the twin factors of reasonableness and good faith in the
context of the circumstances confronting White at the time.
The Commission has held that "if an operator reasonably believes in good faith that
the cited conduct is the safest method of compliance with applicable regulations, even if it is
in error," the operator will not be found to have acted with the aggravated conduct necessary
to establish a finding that the conduct resulted from unwarrantable failure. Southern Ohio
Coal Co., 13 FMSHRC 912, 919 (June 1991). The Commission's requirement that the
operator demonstrate a good faith and reasonable belief that it was pursuing the safest method
of complying with applicable regulations is analogous to the Commission's doctrine that a
miner's work refusal is protected when he entertains a reasonable, good faith belief that his
assigned duties involve a hazard. Secretary on behalf of Robinette v. United Castle Coal Co.,
3 FMSHRC 803, 808-12 (April 1981).

1

All dates are 1991 .

1 635

An operator's belief that his violative conduct was the safest method of complying
with MSHA regulations must be both reasonable and held in good faith in order to establish a
defense to a charge of unwarrantable failure. Southern Ohio Coal Co., supra; see Robinette,
supra. "Good faith belief simply means honest belief'' that the conduct constitutes the safest
method of complying with applicable regulations. See Robinette, 3 FMSHRC at 810. But a
good faith belief in and of itself is not sufficient to defend against the unwarrantable failure
charge. "Good faith also implies an accompanying rule requiring validation of reasonable
belief." Id. at 811 . In the work refusal context, the Commission has held that reasonableness
"is a simple requirement that the miner's honest perception be ~ reasonable one under the
circumstances." Id. at 812 (emphasis in original). Similarly, in the llllwarrantable failure
setting, the operator's good faith belief should meet the same requirement.
A.

Bearing in mind that "in reviewing the whole record, an appellate tribunal must also
consider anything in the record that 'fairly detracts' from the weight of the evidence that
supports a challenged finding," (Asarco Mining Co., 15 FMSHRC 1303, 1307 (July 1993),
citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)), it is my view that the
judge made credibility determinations which cannot be squared with his finding that White
"had a good faith honest belief that he was complying with the regulations." 15 FMSHRC at
1978.
At the outset, I note that the good faith with which the Commission must be concerned here has nothing to do with blameworthiness or good intentions. Rather, good faith
simply means that the operator in fact entertained the belief that his course of action was
designed to safely comply with applicable regulations. The good faith requirement insures
that fraudulent or deceptive operator claims to be mistakenly acting in accordance with
MSHA regulations will not shield the operator from an unwarrantable failure finding. See
Robinette, 3 FMSHRC at 810. It is therefore irrelevant for the purposes of the good faith
inquiry whether the operator is motivated to violate a safety standard in the hope or expectation that the result will be a safer working environment. If the operator believes that he is
violating MSHA regulations, his good intentions will not translate into a good faith belief that
he is safely complying with applicable standards.
Thus, the judge did not base his finding that White acted in good faith on White's
motivation for making the ventilation change. Rather, the judge found that "White did not
believe that 30 C.F.R. § 75.316 required that he obtain prior approval from MSHA before
implementing changes in the ventilation system." 15 FMSHRC at 1977. In explaining their
agreement with the judge's unwarrantable failure finding, however, the majority finds relevant
the fact that "in directing the ventilation change, White was attempting to improve the mine's
ventilation." Slip op. at 11. This conclusion misses the mark. While I accept at face value

1636

Basin's protestations that White was motivated by a desire to improve the ventilation,2 unless
it is shown that he believed that he was complying with MSHA regulations, he cannot be
found to have acted in good faith.
The judge found White's belief that section 75.316 permitted him to change the
ventilation before getting MSHA approval to be "based on the language in the regulations and
his previous experience," and he concJuded that "this evidence is credible." 15 FMSHRC at
1977. Thus, the judge's concJusion regarding unwarrantable failure was based, at least in part,
on credibility determinations. The judge apparently credited White's testimony regarding what
White believed to be his obligations under section 75.316. The judge offered no explanation
why he found White's testimony concerning the requirements under section 75.316 to be
"credible" when, at the same time, he determined White was not telling the truth regarding the
events that led up to hi s decision to implement the ventilation change.
White's deputies, Steve Salazar and David Huey, testified that in the course of
discussing White's proposed ventilation changes, they warned him of the need to obtain prior
approval from MSHA. Tr. 63-64, 80-82. White flatly denied receiving these warnings. Tr.
240. The judge, however, credited the testimony of the deputies, concluding: "It is true that
Salazar and Huey told White prior notification was necessary." 15 FMSHRC at 1977.
According to Salazar, White responded to the warning about the need for prior approval by
stating that "he was in charge of the operation, not MSHA, and that he was going to run the
operation." Tr. 64; see also Tr. 82. This comment is hardly indicative of someone who is
attempting in good faith to ascertain his obligation under the law. Neither the judge nor my
colleagues discuss this comment, which I view as detracting mightily from the conclusion that
White was acting in good faith. Nor do they discuss the impact of White's untruthfulness
here on the judge's finding credible White's asserted belief that section 75.316 permitted
White to make major ventilation changes without prior MSHA approval.
Similarly, Inspector Jordan testified that he specifically warned White just days before
the incident that MSHA approval was required before any change to the ventilation plan could
be made. Tr. 53. Again, White denied that Jordan warned him to contact MSHA first. Tr.
264. There is no hint in the judge's decision that he even considered the differing versions of
Jordan and White, much less that he credited White over Jordan concerning this conversation,
as my colleagues imply. Slip op. at 12. Yet this evidence bears directly on whether White in

2

Indeed it is difficult to imagine a situation in which an operator would deliberately
reverse the direction of the air flow without intending to improve the ventilation. Good
intentions, however, don't always translate into safe results. Between Sunday, when White
implemented the ventilation change, arid Tuesday morning, when MSHA arrived at the mine,
the miners were working under a ventilation scheme that, while it represented White's view of
the best way to provide air to the No. 1 longwall, did not have the benefit of MSHA's review
·
and approval. Tr. 55, 208. During this time, the mine apparently experienced methane
accumulations resulting in the cessation of operations for over an hour. Tr. 329.

1637

.,

fact believed that he was complying with MSHA regulations when he made the ventilation
change.3
As the judge did not find White to be a credible witness concerning his deputies'
explicit warning that prior notification of MSHA was necessary, and because he failed to even
discuss Jordan's testimony that Jordan had specifically warned White about the requirement of
prior MSHA approval, the judge's conclusion that White's action was based on an honest good
faith belief that he was complying with section 75.316 cannot be said to be supported by
substantial evidence.

B.
Equally damaging to the judge's unwarrantable failure conclusion is his failure to
discuss the reasonableness requirement at all or reach a conclusion with respect thereto.
Because an operator seeking to avoid the unwarrantable failure sanction must establish
reasonableness in addition to good faith, the judge's conclusion that "[t]here was no unwarrantable failure bec~use the operator through its manager had a good faith honest belief that
he was complying with the regulations" is, as a matter of law, erroneous. 15 FMSHR.C at
1978. This formulation by the judge addresses only half of the two-pronged test under the
good faith reasonable ·~elief defense to unwarrantable failure.4
The language of section 75.316 casts serious doubt on the reasonableness of White's
belief that he could unilaterally deviate from the approved ventilation plan. Section 75.316
tracked section 303(0) of the Mine Act, 30 U.S.C. § 863(0), and provided in pertinent part:
A ventilation system and methane and dust control plan
and revisions thereof suitable to ·the conditions and the mining

3

Jordan testified: "We had discussed it and, if I remember correctly, I indicated to Mr.
White, whatever he' did, to make sure that approval was obtained before it "'as done." Tr. 53 .
Emphasizing the phrase "if I remember correctly," the majority characterizes Jordan's
testimony as "uncertain." Slip op. at 12. I disagree. I construe Jordan's words as a common
locution employed by witnesses on the stand, rather than as a query whether Jordan is in fact
inventing the conversation to which he himself is testifying. In any event, the point here is
that whatever I or the majority believe this phrase means, we cannot know what the judge
thought it meant, since he did not advert to Jordan's testimony at all.
4

The judge's failure to even address the reasonableness question is not cured by the
majority's finding that "[t]he judge implicitly found that White's belief was reasonable .... "
Slip op. at 12 (emphasis added). As we have already had occasion to observe in this case,
"[a] judge must analyze and weigh the relevant testimony, make appropriate findings, and
explain the reasons for his decision." Slip op. at 10, citing Mid-Continent Resources. Inc., 16
FMSHR.C 1218, 1222 (June 1994) and Anaconda Co., 3 FMSHR.C 299, 299-300 (February
1981 ).
.

1638

system of the coal mine and approved by the Secretary shall be
adopted by the operator and set out in printed form on or before
June 28, 1970. . ..
30 C.F.R. § 75.316 (emphasis added).
I fail to see how the plain language of section 75.316 supports a view that an operator
is free to deviate from its approved ventilation plan as long as that operator subsequently
informs MSHA. Indeed it would appear that by requiring an operator to adopt a ventilation
plan that is approved by the Secretary, the opposite assumption should arise: that an operator
is not free to deviate from the ventilation requirements without prior recourse to the approval
process that created them. The specific requirement that "revisions" to the plan also be "approved" by the Secretary lends further support to this view.
The judge found that when White was told about the need to inform MSHA of his
planned ventilation change, he read section 75 .316 and stated, "Show me in the book where it
says I have to notify MSHA of this change." 15 FMSHRC at 1977. White apparently took
the view that, since section 75.316 did not con~ain language explicitly prohibiting variance
from the approved ventilation plan, he was free to deviate from the plan and simply inform
MSHA about it later. My c.olleagues and the j udge below apparently consider it reasonable
that White c-0uld reach this conclusion after reading section 75.316. I decline to affirm a
judge's ruling which appears to accept as reasonable a view of the law which I find to be not
only illogical, but also contradicted by the regulatory language ~d the case law.
The case law concerning enforcement of ventilation plans undermines the reasonableness of any belief on White's part that he could unilaterally change the ventilation plan. A
manager of White's experience5 may be fairly charged with knowledge of the basic holdings
under the Mine Act, just as a miner claiming to have engaged in a protected work refusal
may be charged under certain circumstances with knowledge of the applicable safety standard.
See Secretary on behalf of Boswell v. National Cement Co .. Inc., No. SE 93-48-DM,
16 FMSHRC _ _ ,slip op. at 8 (August 17, 1994) (Chairman Jordan, concurring). It is well
established under Commission and court precedent that once a ventilation plan is approved
and adopted, its provisions and revisions are enforceable as mandatory standards. UMW A v.
Dole, 870 F.2d 662, 671 (D.C. Cir. 1989); Freeman United Coal Mining Co, 11 FMSHRC
161 , 164 (February 1989); Jim Walter Resources Inc., 9 FMSHRC 903, 907 (May 1_987). Just
as it would be unreasonable for an operator to assume that it could deviate from the requirements of a mandatory safety standard, it is equally unreasonable for an operator to assume
that it may unilaterally change its approved ventilation plan, which is enforceable as a
mandatory safety standard.

5

White has worked in the mining industry since 1965. Tr. 244.

1639

The judge's decision fails to analyze the reasonableness of White's belief in the
context of the language of section 75.316 or the cases interpreting that standard. Moreover,
the majority's conclusion that White's interpretation of section 75.316 was reasonable conflicts
with the judge's stated view that "(i]f the Commission accepts White's theory then the
ventilation regulations would be meaningless." 15 FMSHRC at 1972. On this last point at
least the judge was on target. Obviously, if an operator were permitted to change its
approved ventilation plan at will, and notify MSHA post hoc, section 75.316's requirement
that the mine operate under a "ventilation ... plan and revisions thereof ... approved by the
Secretary" would be a nullity. I am unable to conclude that an operator who insists on acting
in accordance with a view of the law that makes the ventilation requirements "meaningless"
should be considered to entertain a reasonable belief that his conduct complies with the
ventilation regulation.
The case might be otherwise had White been faced with an emergency requiring
immediate action without the possibility of contacting MSHA. But the judge made no such
finding, and the record here certainly does not suggest this was the case. The record in fact
contains significant evidence that undercuts any claim that White was confronted with an
unexpected emergency situation which prevented him from obtaining the necessary prior
approval from MSHA.
Thus, Inspector Denning testified that the conditions prompting the air change had
developed over an extended period of time, and that proper plans could have been submitted
to and approved by MSHA. Tr. 137-38. Inspector Jordan described the problem as an
"ongoing" one that had been occurring for at least two to three weeks. Tr. 41. According to
him, White's unauthorized changes to the ventilation system converted what had been a
"borderline" problem into an "imminent danger" prompting the issuance of a withdrawal order
on the evening of Tuesday, June 25.6 Tr. 36. Basin's project engineer described the problem
as occurring "off and on from early June up to the 21st." Tr. 419. It is also clear from the
record that White did not need to fear that any increase in the severity of the problem would
go undetected. Mine Foreman Salazar explained that subsequent to an explosion which had
occurred five months earlier, employees were monitoring the area "24 hours a day" and were
working with MSHA on the ventilation in that area. Tr. 62; ~ Tr. 27. Moreover, as
counsel for Basin conceded at oral argument, there is nothing in the record that indicates
MSHA warned White that he might be cited unless he made significant changes in the
ventilation system. Oral Arg. Tr. 43.
The closest the judge comes to even hinting at the existence of an exigent situation is
his conclusion that "White felt he could have been cited for failing to correct the problems in

6

The record contains conflicting testimony about whether White's changes caused the
conditions which prompted the issuance of the imminent danger order. Because the judge
failed to reconcile the conflict and make the necessary findings of fact, the Commission has
vacated the S&S finding and remanded for additional proceedings. Slip op. at 8-10.

1640

the ventilation system." 15 FMSHRC at 1977. But the judge failed to discuss any evidence
relating to this issue, nor did he make any findings of fact which would allow us to conclude
that White's concern in this regard was in fact reasonable.7
The majority relies on the explicit requirement in section 75.370, the successor to
section 75.316, that major changes to the ventilation system must be submitted to and
approved by the MSHA district manager before implementation. Slip op. at 12. My
colleagues also cite MSHA inspector Denning's testimony to the effect that section 75.316
provided "no guidance" for mine operators as to the type of changes that could be made
without prior approval, and they point to the Secretary's position at oral argument that, absent
the cover letter, prior approval was not required. Id. On the basis of this evidence, the
majority concludes that it "does not find unreasonable White's good faith belief that prior
approval was not required." Id.

7

The judge's sole record reference to the conditions in the mine prior to the ventilation
change is a parenthetical instruction to "see Exhibit BR-I" in order to learn of "apparent
problems in the system." 15 FMSHRC at 1977. BR-I consists of a 3-page typed chronology
covering the period from June l through June 29 with 279 pages of supporting documents
including preshift, daily and on-shift reports. It is certainly not apparent from these examination reports that conditions arose which caused White to decide on Friday, June 2I, that he
must implement immediate changes. Indeed the opposite conclusion arises. For instance,
under the heading "Violation or Hazardous Condition," the preshift exam for the Northwest
longwall at 4:00 a.m. that day reports "[n]one observed." The on-shift report shows the
highest level of methane to be 0.5% and reports that the area was "safe at time of inspection."
The preshift at 1:04 p.m. on June 21 reports no hazardous conditions and the highest methane
level to be 0.5%, the same reading reported in the on-shift report for that evening. The six
examination reports dated June 22 likewise reflect methane levels well under l % (although
the chronology prepared by White inexplicably refers to a reading of I. I - 1.3% for that date).
The judge's conclusion that White feared being cited for failing to change the
ventilation system might be a refenmce to White's testimony that other regulations, such as 30
C.F.R. §§ 75.308 and 75 .309, mandate changes or adjustments when certain levels of methane
are found in specified areas of the mine. Tr. 248-49, 370. Of course, whether White actually
considered these regulations at the time he made his decision is open to question since,
according to the version of events described by White's deputies and accepted by the judge, it
would appear that White's sole reference in determining his obligation to obtain prior
authorization from MSHA was section 75.316. 15 FMSHRC at 1977. While reliance on
these other regulations might be a relevant consideration in assessing whether an operator
acted unwarrantably, the judge has made no findings which would allow us to conclude either
that White in fact relied on these regulations or that such reliance was reasonable under the
circumstances.

1641

This conclusion is unfounded. The commentary accompanying MSHA's rulemaking
indicates that MSHA viewed the prior approval requirement for major ventilation changes as a
continuation of the practice already in existence. 57 Fed. Reg. 20868, 20899 (May 15, 1992).
Moreover, while Inspector Denning may not have been able to point to exact guidelines that
spelled out the type of ventilation changes that could not be made without prior approval , he
was certain that "[a] major change, such as reversing the air in an air course, would definitely
require approval. " Tr. 173.8 Finally, the comment of Secretary's counsel that the majority
rely on to support the reasonableness of White's belief has itself been rejected as an unreasonable view of the regulation . Slip op. at 7.
Whether White could reasonably conclude he did not need MSHA's prior authorization
must be determined on the basis of the particular circumstances confronting White at the time.
In this regard, I consider it relevant that when White decided to unilaterally implement the
ventilation change, the mine in question was a gassy mine9 and only five months earlier had
experienced a major explosion which caused varying degrees of injury to eleven miners. Tr.
27, 39. Moreover, the explosion occurred in the very section of the mine, the Northwest No.
1 longwall panel, where White planned to change the ventilation design. Tr. 142-43. 10 It
seems to me these facts alone, which were not considered by the judge, would seriously
undermine the reasopableness of White's belief that no prior authorization from MSHA was
needed before implementing changes that significantly departed from the approved ventilation
plan. Here, however, we have the additional fact that White reversed the air flow in the face
of explicit warnings by his two subordinates that MSHA insisted on approving ventilation
changes at the Golden Eagle Mine prior to their implementation. Tr. 63-64, 80-82. The
judge should have considered whether White's insistence on going forward under these
circumstances, when he could have easily picked up the phone and clarified his obligations, 11

8

Before implementing a change of this magnitude, White had to idle the mine and shut
off the power; White's change was therefore a far cry from merely adjusting a line curtain or
opening a regulator, the kinds of adjustments to ventilation that Inspectors Denning and Reitz
testified were authorized by 30 C.F.R. §§ 75.308 and 75.309 and would not require prior
approval. Tr. 157, 189-90, 207-08. White himself seemed to recognize the distinction.
While he provided MSHA with post-hoc notification of his air reversal, he did not feel it
necessary to provide even such after-the-fact notification when he opened a regulator to
provide more air on the longwall. Tr. 261-62.
9

Inspector Jordan testified that the Golden Eagle Mine "is number one in the State of
Colorado for methane liberation." Tr. 26.
0

Although White took over the operation of the mine on June I, he had been at the
property on a daily basis since April 9 and during that time learned about the explosion that
occurred. Tr. 339-40.
'

11

At oral argument, counsel for the Secretary confirmed that someone from MSHA would
have been available on the weekend to handle calls. Oral Arg. Tr. 35.

1642

amounted to a willful intent to remain in the dark about what section 75.316 required. The
judge should have determined whether such action fell outside the protection of the good faith
and reasonable belief defense the Commission has articulated, and accordingly· constituted
aggravated conduct.
II.
The judge's failure to reconcile inconsistent credibility determinations, and his failure
to consider evidence which detracts from a finding that White acted reasonably and in good
faith, cause me to conclude that the judge's finding of no unwarrantable failure is not
supported by substantial evidence and should therefore be vacated and the matter remanded
for further proceedings. With respect to the Secretary's assessment of a civil penalty against
White personally pursuant to section 11 O(c) of the Mine Act, the judge merely stated, "The
evidence as to White has been previously reviewed. His conduct was not 'aggravated."' 15
FMSHRC at 1981. Because the judge's analysis of that evidence was flawed, as I have
detailed above, I would also vacate and remand the judge's section 1 lO(c) finding.

;..

16 4 3

Distribution
Robert W. Aldrich, &q.
Office of the Solicitor
U.S. Department of labor

4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Charles W. Newcom, E:sq.
Sherman & Howard, L.l.C.
633 17th Street, Suite 3000
Denver, CO 80202
Administrative Law Judge John J. Morris
Federal Mine Safety & Health Review Commission
1244 Speer Boulevard, Suite 280
Denver, Colorado 80204

·~

~··

1644

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

August 30, 199 4

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
vs.
CONTRACTORS SAND AND
GRAVEL SUPPLY, INC.

Docket Nos. WEST 93-62-M
WEST 93-406-M
WEST 93-407-M
WEST 93-463-M
WEST 93-117-M
WEST 93-141-M
WEST 93-408-M
WEST 93-409-M
WEST 93-462-M
0 R D E R

These consolidated civil penalty proceedings arise under the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq. (1988) ("Mine Act"). On July 21, 1994, Administrative Law
Judge August F. Cetti issued a Default Decision to Contractors
Sand And Gravel Supply, Inc. ("Contractors") for failing to show
cause, pursuant to an order issued on June 22, 1994, why default
should not be entered for its failure to comply with a prehearing
order. 1 The judge ordered Contractors to pay civil penalties of
$15,149 to the Secretary of Labor ("Secretary").
The judge's jurisdiction in this matter terminated when his
decision was issued on July 21, 1994. Commission Procedural Rule
69(b), 29 C.F.R. §2700.69(b) (1993). Under the Mine Act and the
Commission's Procedural Rules, relief from a judge's decision may
be sought by filing a petition for discretionary review within 30
days of its issuance. 30 U.S.C. §823(d) (2); 29 C.F.R.
§2700.70(a) • .on August 19, 1994, the Commission receiveq a
letter from Contractors stating· that it requests review of the
default decision. In the letter, Contractors states that it
understood that the proceedings in question "were to be combined

The Default Decision mistakenly refers to "the Prehearing
Order issued on May 5, 1993. 11 Slip op. at 1. -That order was
stayed by the judge on June 4, 1993, and was superseded by a
Second Prehearing Order dated April 6, 1994. The judge issued
the show cause order because of Contractors' failure to comply
with the Second Prehearing Order. Order to Show cause at 1.

1645

with . • . about 120 [other] alleged citations . • . " and that
the large number of citations issued to it suggested harrassment.
We deem Contractors' letter to be a timely filed petition
for discretionary review, which we grant. See, e.g., Middle
States Resources, Inc., 10 FMSHRC 1130 (September 1988). On the
basis of the present record, we are unable to evaluate the merits
of Contractors' position. Accordingly, we reopen this matter,
vacate the judge's default order, and remand this matter to the
judge, who shall determine whether default is warranted. See
Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990).

, Chairman

Distribution
Eric Sch0onmaker
Contractors Sand & Gravel
P.O. Box 956
Yreka, California 96097
Steven R. Desmith, Esq.
Office of the Solicitor
U.S. De?artrnent of Labor
71 Stevenson Street
Suite 1110
San Francisco, CA 94105
Administrative Law Judge August Cetti
Federal Mine Safety & Health Review Commission
1244 S?eer Boulevard, Suite 280
Denver, CO
30204

1646

ADMINISTRATIVE LAW JUDGE DECISION.S

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

AUG

1 1994

JAVIER SANCHEZ,

DISCRIMINATION PROCEEDING
Complainant
Docket No. WEST 93-460-D
DENV CD 93-05

v.
LION COAL COMPANY,
Respondent

Swanson Mine
DECISION

Appearances:

Mr. Javier Sanchez, Price, Utah, pro se;
Brian Steffensen, Esq., Salt Lake City, Utah,
for Respondent.

Before:

Judge Hodgdon

This case is before me on a complaint of discrimination
brought by Javier Sanchez against Lion Coal Company under Section
lOS(c) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 815(c). For the reasons set forth below, I find that
Mr. Sanchez did not engage in activities protected under the Act
and, therefore, was not discriminated against by Lion Coal.
Mr. Sanchez filed a discrimination complaint with the
Secretary of Labor pursuant to Section 105(c) (2) of the Act,
30 u.s.c . § 815(c) (2). The Secretary concluded that the facts
disclosed during its investigation did not constitute a violation
of Section 105(c). Mr. Sanchez then instituted this proceeding
before the Commission pursuant to Section 105(c) (3), 30 u.s.c.
§ 815 (c) (3).
The case was heard on June 14, 1994, in Green River'·
Wyoming. Mr. Sanchez testified in his own behalf. George Herne
and Anna Marie Boden testified for Lion Coal.
FINDINGS OF FACT

Mr. Sanchez was employed by Lion Coal to work in it's
Swanson Mine, located in Huntington Canyon, Utah, from October
1989 until December 31, 1992. He was seriously injured in a mine
accident in August 1991 and did not return to work until August
1992. On his return he was limited to "light duty."

1647

In September 1992, Mr. Sanchez fell off of a ladder and
aggravated a back injury. After going to the doctor he was
advised that he could not return to work until October 1, 1992 .
When he reported this to Lion Coal, he informed them that he
wished to seek a second opinion. Mr. Sanchez did not return to
the mine to go to work until March 10, 1993. At that time, he
was told that he had been terminated by the company on
December 31, 1992, and no longer worked for them.
Mr. Sanchez testified that he kept Lion Coal fully apprised
of his medical status and was surprised when they would not take
him back. To corroborate this, he submitted a telephone bill
indicating that he had called Lion Coal on November 24, 1992 .
(Comp . Ex . A. )
on the other hand, the witnesses for Lion coal testified
that they never heard from Mr. Sanchez after he told them that he
wanted to get a second opinion in October 1992. Ms. Boden, Lion
Coal's Safety Administrator, stated that she did not remember
receiving a telephone call from Mr. Sanchez on November 24, nor
did she have a~y record of it, although she normally makes a
record of all telephone calls.
Mr. Herne testified that he made the decision to terminate
Mr. Sanchez at the end of 1992 after determining that the Safety
Department had not been contacted by Mr. Sanchez since October .
He recounted that the company had learned from Workers'
Compensation that Mr. Sanchez had received temporary total
disability from November 1, 1992, until November 13, 1992, at
which time it was determined that Mr. Sanchez could return to
work.
(Resp. Ex. 2.) He stated that when Mr. Sanchez did not
return to work in December or otherwise contact the company, they
took him off of the payroll and transferred his status from
active to terminated at the end of the month.
FURTHER FINDINGS OF FACT
AND
~ONCLUSIONS OF LAW

Section lOS{c) (1) of the Act, 30 u.s.c. § 815{c){l),
provides that a miner cannot be discharged, discriminated against
or interfered with in the exercise of .his statutory rights
because: · ( 1) he "has filed or made a complaint under or related
to this Act, including a complaint • • • of an alleged danger or
safety or health violation;" (2) he "is the subject of medical
evaluations and potential transfer under a ·standard published
pu.r suant to section 101;" (3) he "has instituted or caused to be
instituted any proceeding under or related to this Act or has
testified or is about to testify in any such proceeding;" or,
(4) he has exercised "on behalf of himself or others • • • any
statutory right afforded by this Act."
·

1648

There is no doubt that Mr. Sanchez was discharged by Lion
Coal. However, in order to establish a prima facie case of
discrimination. under Section 105(c) of the Act, a complaining
miner bears the burden of establishing (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 Co., 2 FMSHRC 2768 (1980), rev'd
on other grounds sub nom. consolidation Coal Company v. Marshall ,
663 F2d. 1211 (2d Cir. 1981); 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 184 2
(1984); Secretary on behalf of Chacon v. Phelps Dodge Corp.,
3 FMSHRC 2508 {1981), rev'd on other grounds sub nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983}.
Mr. Sanchez has not established that he engaged in protected
activity. He does not maintain that he filed or made a complaint
of any dangers or safety or health violations or any other matter
under, or related to, the Act . Nor is there any evidence in the
record to indicate that he did so. There is no evidence that his
medical condition had anything to do with evaluations and
potential transfer under a standard published pursuant to
Section 101 of the Act, 30 U.S.C. § 801. The only proceeding,
under the Act, that he instituted and testified in was the
instant one, which occurred after, and as a result of, his
discharge . Finally, Mr. Sanchez does not claim to have exercised
any statutory right affo~ded him by the Act.
The record is uncontroverted that Mr. Sanchez was terminated
because he neither was present for work, nor informed Lion Coal
as to why he was not present for work, from October 1 until
December 31, 1992. In f~ct, he did not return to work until
March 1993. Giving him the benefit of every doubt, the record
still demonstrates that he could have returned to work after
November 13, 1992, and that he only contacted, or attempted to
contact, the company on November 24, 1992.
It is not, however, necessary to resolve these issues
because they clearly do not come within the four areas of
protected activities listed in the Act. I find, as have . several
Commission judges before me, that a claim of protected activity
must be based on an alleged violation of a health or safety
standard or result from some hazardous condition or practice
existing in the mine environment for which the operator is
responsible. Frye v. Pittston/Clinchfield coal co., 11 FMSHRC
187, 190 (February 1989, Judge Weisberger); Bryant v. Clinchfield
Coal Co., 4 FMSHRC 1380, 1421 (July 1982, Judge Kennedy);
Kaestner v. Colorado Westmoreland Inc., 3 FMSHRC 1994, 1996
(August 1981, Judge Boltz).

Mr. Sanchez has not met this requirement. Accordingly, I
conclude that the adverse action that Mr. Sanchez complains of
did not result from his engaging in protected activity .

1649

ORDER
It is ORDERED that the complaint filed by Javier Sanchez
against Lion Coal Company for violation of Section lOS(c) of the
Act is DISMISSED.

l{~~

Administrative Law Judge

Distribution:
Mr. Javier Sanchez, P.O. Box 1603, Price, UT
(Certified Mail)

84501

Anna Marie Boden, Safety Administrator, Lion Coal Company,
P.O. Box 6117, Rock Springs, WY 82901 (Certified Mail} Brian Steffensen, Esq., 3760 South Highland Drive, Suite 200,
Salt Lake city, . UT 84106 (Certified Mail)
/lbk

16 50

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

AUG

4 199{

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 93-217
A.C. No. 11-02790-03557
Kathleen Mine

APOGEE COAL COMPANY,
d/b/a ARCH OF ILLINOIS, '
Respondent
DECISION
Appearances:

Miguel J. Carmona, Esq., Office of the Solicitor,
Chicago, Illinois, for Petitioner;
Frenchette c. Potter, Esq., Arch Mineral
Corporation, St. Louis, Missouri, and David S.
Hemenway, Esq., St. Louis, Missouri, for
Respondent.

Before:

Judge Amchan
FACTS AND ISSUES PRESENTED

On the afternoon of February 19, 1993, Respondent conducted
a fire or escapeway drill during its A shift at the Kathleen mine
in Southern Illinois. That day the A shift worked from s:oo a . m.
to 4:00 p.m (Tr. 109-114).
During the drill all miners working
in the third, fifth, and seventh west sections walked
approximately 2,000 feet out from the working face (Tr. 55, 113).
Then two miners and the foreman from each section walked .out to
the mine surface through the primary intake air escapeway. The
rest of the crews returned to their sections (Tr. 55).
,

Although pre-shift examinations had been done of the working
sections and areas travelled by miners to reach these sections
prior to the start of the A shift at s:oo a.m., no preshift
examination was conducted in the primary intake air escapeway
(Tr. 17). However, at about 1:00 p.m., just before the escapeway
drill, Albert Dudzik, the shift manager of the A shift and a
certified person for purposes of 30 C.F.R. 75.361, ·performed a
"supplemental examination" of the primary escapeway (Tr. 111112).

1651

on March 17, 1993, MSHA received a section 103(g} complaint
regarding the lack of a preshift1 examination of the primary
escapeway on February 19 (Tr. 14 ) . The complaint was submitted
by Local 16 of the United Mine Workers of America, which
represents the employees at the Kathleen mine. The next day,
Inspector John Winstead visited the mine and interviewed
representativ~s of management and the union.
He also inspected
pre-shift examination records and fire drill records. · He then
issued citation No. 4053762
(Tr. 14-16) 1 • The citation alleged
1
a violation of 30 C.F.R. § 75.360(a}, in that "[a) planned fire
drill was conducted on two (2) shifts on 2-19-93 (8-4 and 4-12
shifts} in the 3rd west and 5th west, and a pre-shift examination
was not conducted • . . "
Section 75.360(a) requires that within 3 hours preceding the
beginning of any shift, a preshift examination shall be performed
by a certified person. Section 75.360(b) requires that the
certified person look for hazardous conditions, test for methane
and oxygen deficiency, and determine if the air is moving in its
proper direction in a number of different locations. The
locations relevant to this case are those in§ 75.360(b} (1),
"roadways, track haulageways, and other areas where persons are
scheduled to work or travel during the oncoming shift." The
issue in this case is whether the primary escapeway was an area
in which persons were scheduled to work or travel during the
8:00 a.m. - 4:00 p.m. and 4:00-11:59 shifts on February 19, 1994.
MSHA contends that a preshift examination was required of
the primary intake escapeway because the fire drills of
February 19, 1994, were scheduled or planned prior to the
beginning of the shift during which they were conducted.
Respondent contends that the decision to conduct the fire drills
on the A shift on February 19, 1994, was not made until midway
through the shift and, therefore, it was not required to conduct
a pre-shift examination. Further, Respondent contends that it
complied with MSHA's regulations by conducting a supplemental
examination pursuant to section 75.361. As to the later shift,
Respondent contends that no escapeway d.r ill was conducted in the
third and fifth west sections as alleged in the citation.
Resolution of pisputed Facts
The testimony at hearing centered primarily on whether the
escapeway or fire drill of February 19, 1994, was scheduled or
planned prior to the commencement of the A shift at 8:00 a.m.
that day. Stephen Sharp, the mine manager at Kathleen, and
1

This docket also includes citation No. 3037094 issued on
May 4, 1993, by inspector Bill Henson (Exh. J-1, stipulation #
7). At hearing Respondent withdrew its contest of the $50
penalty proposed for that citation (Tr. 131).

1652

..

Albert Dudzik, the A shift manager, testified that on Monday,
February 15, 1994, the m~ne's safety manager informed them and
other supervisory personnel that an escapeway (fire) drill had to
be performed that week (Tr. 100-02, 108-09).
Dudzik testified that he did not decide to conduct the
escapeway drill on his shift until noon on February 19 (Tr. 110111). He then conducted his examination of the primary escapeway
(Tr. 111). Upon reaching the mine surface he called his three
section foremen and instructed them to conduct the drill, which
they did almost immediately (Tr. 112-114). I find the testimony
of Mr. Sharp and Mr. Dudzik credible and find that the timing of
the drill was determined just as they stated.
However, Robert Caraway, a roof bolter on the 7th west
section on the A shift, testified that he found out about the
escapeway drill on the previous day when his foreman, Gary
Culpepper, told the section crew to pick two nonsupervisory
employees to walk to the surface during the drill (Tr. 54-57). 2
I find caraway a credible witness and find that Culpepper did
tell his crew to pick two men to walk to the mine surface with
him the following day. In so doing I find his testimony more
persuasive on this point than the testimony of Stephen Sharp .
Sharp interviewed all his supervisors and each one, including
Gary Culpepper, who did not testify at the hearing, denied that
they had announced the escapeway drill on the previous day
{Tr. 94, 103-04)
Although at first blush it appears inconsistent to credit
Caraway as well as Respondent's testimony that no decision
regarding the drill was made until the afternoon of February 19,
these accounts are not necessarily inconsistent. February 19,
1994, was a Friday. In the time period of the alleged violation,
it was apparently not uncommon for the mine to operate on ·
Saturdays (Tr. 82). However, a decision to work on Saturday was
generally not made until two days beforehand, on Thursday
(Tr. 103).
Culpepper had been told that the escapeway drill would be
performed the week of February 15-19, and may not have known
whether the mine would operate on Saturday. Even if he did know
2similar

testimony was elicited from Eugene Mccario, who
.testified that he was informed the day before the drill that it
would be conducted the next day {Tr. 63-64). McCario worked in
the 7th west section on the 4:00 p.m. to midnight· shift. The
citation does not allege a violation with regard to the 7th west
section, only the 3rd and the 5th. Although Caraway also worked
in the 7th west section, his testimony is relevant because it
suggests that the A shift foremen knew on February 18 that an
escapeway drill would be performed on the 19th.

1653

he may have guessed that Friday would be the day of· the drill. I
find the fact that Culpepper told his crew Thursday, that the
drill would be conducted on Friday, not necessarily inconsistent
with Dudzik instructing his foremen on Friday that the drill was
to be conducted that afternoon.
RESPONDENT DID NOT VIOLATE SECTION 75.360(A)

I conclude that Respondent did not violate section 75.360(a)
because prior to the commencement of the A shift, employees were
not scheduled to work or travel in the primary intake escapeway.
Therefore, no preshift examination was required. As to the B
shift, there is no evidence that a fire drill was conducted in
the third and fifth west sections on February 19, 199 3 , as
alleged in the citation.
The Secretary suggests that Respondent was avoiding its
obligations under the preshift examination regulation by waiting
until the shift began to announce the exact timing of its
escapeway drill, which had been planned the preceding Monday
(Secretary's post-trial brief, pp. 5-6). However, MSHA's
regulation regarding escapeway drills, section 75.383, does not
require that an operator determine the timing of such drills
prior to the beginning of the shift in which the drill is
conducted.
Moreover, I conclude that Respondent's conduct in this
matter is also consistent with the scheme of the Secretary's
regulations regarding workplace examinations. The regulation on
supplemental examinations, section 75.361, seems to give a mine
operator a choice. Either the operator can decide before a shift
to conduct a drill and do a preshift examination of the
escapeway, or it can decide during the shift to conduct the drill
and perform a supplemental examination of the escapeway.
There appears to be no difference with regard to safety and
health between a preshift and a supplemental examination. The
only apparent distinction in the requirements of sect~ons 75.360
and 75.361 is that a preshift examination must be recorded in a
book on the mine surface before non-certified persons enter the
inspected areas (75.360(g)), while non-certified persons may
enter an area subject to a supplemental examination without the
recording of the results of the supplemental examination, 57 Fed.
Reg. 20895 (May 15, 1992).
The preamble to MSHA's revised ventilation regulations
suggests that a supplemental examination provides the same degree

1654

of protection to miners as does a pre-shift examination. Indeed,
it raises a question as to what, if anything, was at stake in the
instant litigation 3 •
There is no need to require areas of the mine where
persons are not scheduled to work or travel to be
examined. . • the supplemental examination required by
section 75.361 permits the certified person to perform
examinations of his or her own working areas and
requires a supplemental examination to be made by a
certified person within 3 hours prior to any person's
entering any underground area in which a preshift
examination for that shift has not been made. 57 Fed.
Reg. 20893 (May 15, 1992).
In light of the fact that Respondent complied both with the
letter and spirit of the Secretary's regulations, I vacate
citation No. 4053762.
ORDER

1.

Citation No. 4053762 is VACATED.

2. Respondent is ordered to pay the $50 civil penalty which
was proposed for citation No. 3037094 within 30 days of this
decision.

~~~~
;:rtr;tur J. Amchan
Administrative Law Judge

3

Underlying the section 103(g) complaint which gave rise to
the instant citation was a dispute between Respondent and UMWA
Local 16 as to whether union employees or management employees
should perform onshift examinations (Tr. 58-59, 71-72). The
situation at the time ·of the inspection was that union employees
conducted pre-shift examinations and management employees
conducted on-shift and supplemental examinations.

1 655

Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U. s.
Department of Labor, 230 s. Dearborn st., 8th Flr. Chicago, IL
60604 (Certified Mail)
Frenchette ·c. Potter, Esq., Arch Mineral Corporation, CityPlace
One, St. Louis, MO 63141 (Certified Mail)
Davids. Hemenway, Esq., 1283 Jade Wind Circle, St. Louis, MO
63011-4224 (Certified Mail)

/jf

1656

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

AUG

4 199{

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 94-120
A.C. No. 48-01248-03520

v.

Fort Union Coal Mine
FORT UNION, LTD.
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Amchan

This case is before me upon petition for assessment of a
civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. sections 801 et seg. Petitioner
has filed a motion to approve a settlement agreement and to
dismiss the case. Respondent has informed the undersigned that
it has no objection to my approving this agreement. The terms of
the settlement are that the penalty for citation 3409185 is
reduced from $3,000 to $1,200.
I have considered the representations and documentation
submitted and I conclude that the proffered settlement is
consistent with the criteria in section llO(i) of the Act.
ORDER
WHEREFORE IT IS ORDERED that the ~otion for approval . of
settlement is GRANTED and Respondent shall pay the approved
penalty within 30 days of this decision. Upon such payment this
case is DISMISSED.

Q/1-~~t.~
;:;tt:bur J. Amchan
Administrative Law Judge
703-756-6210

16 57

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, u. s .
Department of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202
(Certified Mail)

J. Fred McDuff, Esq., Fort Union, Ltd., P.
Birmingham, AL 35202 (Certified Mail)
/jf

1658

o. Box 10246,

DDBllL llillB SAPBH UD BBALTB JtBVXD COKXISSIO•
OFFICE OF ADM INI STRATIVE LAW JLl>GES

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

AUG

RIVERTON CORPORATION,
Contestant

v.

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

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

v.

RIVERTON CORPORATION,
Responder,t

4 1994

.. CONTEST PROCEEDINGS

..
Docket No. VA 94-31-RM
. Order
No . 4288859; 12/9/93
.•. Docket No. VA 94-41-RM
. Order No.4288860; 12/ 9/93
... Quarry No. 1 Mine
.... Mine ID# 44-00101
... CIVIL PENALTY PROCEEDINGS
... Docket No. VA 94-56-M
. A.C. No. 44-00101-5541
: Docket No. VA 94-57-M
. A.C. No. 44-00101-05542
. Docket No. VA 94-58-M
. A.C. No. 44-00101-05543
.
. Docket No. VA 94-59-M
. A.C.
No. 44-00101-05544
.
No. VA 94-63-M
... A.Docket
C. No. 44-00101-05545
.. Quarry #1
PECISIONS

Appearances :

Glenn M. Loos, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner/Respondent;
Dana L. Rust, Esq., McGuire, Woods, Battle and
Boothe, Richmond, Virginia, for the Contestant/
Respondent.

Before:

Judge Koutras
1659

Statement of the Proceedings
These consolidated proceedings concern Notices of Contests
filed by the Contestant Riverton Corporation pursuant to
section 105(d) of the Federal Mine Safety and Health Act of 1977,
challenging the legality of two section l04(a) imminent danger
orders (Docket No. VA 94-31-RM and VA 94-41-RM). Docket
Nos. VA 94-56-M, VA 94-57-M, VA 94-58-M, VA 94-59-M, and
VA 94-63-M concern civil penalty proposals filed by the
petitioner MSHA against the respondent Riverton Corporation
pursuant to section llO(a) of the Act, 30 u.s.c. 820(c), seeking
civil penalty assessments for seventy-one (71), violations of
certain mandatory safety standards found in Part 56, Title 30,
Code of Federal Regulations. Hearings were held in
Charlottesville, Virginia, and the parties appeared and
participated fully therein.
Issues
The issues presented in Contest Docket Nos. VA 94-31-RM and
VA 94-41-RM, are whether the cited conditions constituted an
imminent danger and "significant and substantial" violations of
the cited mandatory safety standard.
The issues presented in the civil penalty cases include the
fact of violation, whether some of the violations were
"significant and substantial", and the appropriate civil penalty
assessments to be made for the violations.
Applicable St~tutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301 et seq.
2.

Sections 105(d), 107(a), and llO(a) of the Act.

3.

Commission Rules, 29 C.F.R.

§

2700.1, ~ seq.

Admissions and Stipulations
In its responses to certain discovery requests by MSHA's
counsel, Riverton has admitted that it is the owner and operator
of the mine at which the citations and orders in these
proceedings were issued, that its mining operations are subject
to the jurisdiction of the Mine Act, as well as the Commission
and the -presiding judge in these proceedings.

~

Discussion
In the course of the hearings the parties were afforded an
opportunity to discuss settlements of all of the contested
violations in these proceedings, and information was presented
··.

1660

with respect to the six statutory civil penalty assessment
criteria found in section llO(i) of the Act. In addition to
trial counsel, the MSHA inspector who issued all of the disputed
orders and citations, and Riverton•s manager of operations were
present in the courtroom and actively participated in the
settlement negotiations. Arguments in support of the proposed
settlement disposition of these cases were presented on the
record, and I issued bench decisions approving the disposi~ions
pursuant to Commission Rule 31, 29 C.F.R. § 2700.31. These
decisions are herein reaffirmed .
John E. Gray, Riverton Corporation's Manager of Operations,
confirmed that Riverton's mining operation at the No. 1 quarry
consists of a limestone quarry that produces material for use in
its masonry plant for the production of masonry products,
agricultural lime, and pre-mix cement products. He characterized
the operation as an "old" quarry and plant that has been in
operation for many years. He stated that the operation has an
annual production of approximately 400,000 to 600,00 tons.
MSHA's counsel asserted that MSHA's records reflect a production
of 431,797 tons for the year 1992.
MSHA Inspector James E. Goodale, who issued all of the
citations and orders in issue in these proceedings, agreed to the
age, size, and scope of Riverton•s mining operations, and he
stated that Riverton's management was cooperative and timely
abated all of the citations in good faith.
Findings and Conclusions
I conclude and find that Riverton's No. l quarry and plant
operations constitute a medium-to-large mining operation . I have
also reviewed all of the citations and abatements issued by
Inspector Goodale and I conclude and find that Riverton timely
abated all of the cited conditions in good faith within the time
fixed by the inspector, and in several instances abated the
conditions prior to the time fixed by the inspector.
With respect to Riverton's history of prior violations,
MSHA's counsel produced a computer print-out of the mine
compliance record for the period beginning in October, 1983
through March, 1994. Counsel asserted that the respondent's
history of prior violations does not warrant any penalty
assessment increases over those which have been made in these
proceedings, and upon review of the print-out I agree.
In the absence of any evidence to the contrary, I conclude
and find that the payment of the penalty assessments agreed to by
the parties in these proceedings will not adversely affect
Riverton's ability to continue in business.

1661

Docket Nos. VA 94-31-RM and VA 94-41-BM
· These dockets concern two combined Section 107(a) - 104(a)
imminent danger orders and citations initially issued on
December 9, 1993, and subsequently modified on January 19, 1994,
by MSHA Inspector James E. Goodale after he found that certain
electrical starter switches in the No. 1 and No. 4 mill starters
were not provided with overload protection as required by
mandatory safety standard 30 C.F.R . § 56.12001. The inspector
concluded that the cited conditions constituted imminent dangers
pursuant to section 107(a) of the Act .
MSHA's counsel filed motions to approve proposed settlements
of these cases. In supp,ort of the motions, counsel asserted that
after further review of the factual circumstances surrounding the
alleged violations MSHA agrees that no imminent dangers or
violations existed in these cases. In support of these
conclusions, counsel has provided a full discussion of the
circumstances presented at the time the orders were issued,
including MSHA's findings that the existing 300 amp fuses for the
equipment in question were of the correct type and capacity and
provided the required overload protectionA Under the
circumstances, MSHA has agreed that the contested orders should
be vacated. Further, MSHA's counsel asserted that appropriate
administrative action will be taken to vacate the citations and
to withdraw any proposed civ il penalty assessments based on those
citations .
After careful review and consideration of the motions and
pleadings filed in these cases, I rendered bench decisions
approving the proposed settlement disposition with respect to the
contested orders. My bench decisions are herein re-affirmed.
The orders ARE VACATED, and the contests filed by the contestant
ARE GRANTED.
Docket No . VA 94-56-M
This docket concerns twenty (20) alleged violations. The
respondent conceded the fact of violations with respect to
Citation Nos. 4288854, 4288856, 4288684, 4288685, 4288686,
4288861, 4288690, 4288691, and 4288862, and agreed to accept the
citations as issued and to pay the proposed penalty assessments.
The petitioner agreed to vacate Citation Nos. 4288855,
4288857, 4288687, 4288688, 4288689, 4288693, 4288858, and
4288682. The petitioner also agreed to delete the "S&S"
designations with respect to citation Nos. 4288681 and 4288683
and to modify the citations to non-"S&S". The petitioner amended
its proposed penalty assessments to reflect proposed penalties of
fifty-dollars ($50) for each of the citations. The respondent
agreed to accept the amended citations and to pay the amended
proposed penalty assessments .
1662

With regard to citation No. 4288692, the parties agreed to a
modification of the citation to reflect a violation of mandatory
safety standard 30 C.F.R. § 56.12032, and the respondent agreed
to accept the amended citation and to pay the proposed penalty
assessment.
Docket No·. VA 94-57-M
This docket concerns twenty (20) alleged violations.
The
respondent conceded the fact of violations with respect to
citation Nos. 4288864, 4288865, 4288867, 4288868, 4288870,
43288872, 4288873, 4288874, 4288875, 4288876, and 4288878, and
agreed to accept the citations as issued and to pay the proposed
penalty assessments.
The petitioner agreed to vacate Citation Nos. 4288863,
4288866, 4288694, 4288879, and 4288695. The petitioner also
agreed to delete the "S&S" designations with respect to Citation
Nos. 4288869, 4288877, 4288871 and to modify the citations to
non-"S&S". The petitioner also amended its proposed penalty
assessments to reflect proposed penalties of fifty-dollars ($50)
for each of the citations. The respondent agreed to accept the
amended citations and to pay the amended proposed penalty
assessments.
With regard to Citation No. 4288880, the parties agreed to a
modification of the citation to reflect a violation of mandatory
safety standard 30 C.F.R. § 56.12013, and the respondent agreed
to accept the citation, as amended, and to pay the proposed
penalty assessment.
Docket No. VA 94-58-M
This docket concerns twenty (20) alleged violations. The
respondent conceded the fact of violations with respect to
Citation Nos. 4288696, 4288697, 4288699, 4288700, 4288701,
4288702, 4288704, 4288705, 4288706, 4288709, 4288710, 4288713,
and 4288717, and agreed to accept the citations as issued and to
pay the proposed penalty assessments. The petitioner agreed to
vacate citation Nos. 4288703 and 4288707.
With regard to Citation Nos. 4288712, 4288716, 4288718,
4288719, and 428872 0 , the petitioner agreed to delete the "S&S"
designations and to modify the citations to non-"S&S". The
petitioner amended its proposed penalty assessments to reflect
proposed penalties of fifty-dollars ($50) for each of the
citations. The respondent agreed to accept the amended citations
and to pay th~ amended proposed penalty assessments.

166 3

pocket No. VA 94-59-M
This docket concerns nine (9) alleged violations. With
respect to Citation Nos. 4288721, 4288722, and 4288728, the
respondent conceded the fact of violations and the petitioner
agreed to delete the "S&S " designations and to modify the
citations to non-"S&S" . The petitioner also amended its proposed
penalty assessments to reflect proposed penalties of fifty
dollars ($50) for each of the citations , and the respondent
agreed to pay the amended proposed penalty assessments.
With regard to Citation Nos. 4288723, 4288724, 4288727 , and
4288729, the respondent conceded the fact of violations, and
agreed to accept· the citations as issued and to pay the proposed
penalty assessments. The respondent also conceded the fact of
violation with respect to Citation Nos. 4288726, and the
petitioner agreed to reduce the inspector's gravity finding to
"no likihood of injury", and the respondent agreed to pay a
reduced penalty assessment of twenty-five dollars ($25) for the
violation . The petitioner also agreed to vacate citation No.
4288725 .
pocket No . VA 94 - 63-M
This docket concerns two (2) alleged violations of mandatory
safety standard 30 C. F. R. § 56 . 15003, which 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 .
The record reflects that MSHA Inspector James E. Goodale
served secti on 104(a) "S&S" Citati on Nos. 4288773 and 4288774, on
the respondent citing violations of section 56.15003, because two
employees of Robb Electric Company were observed at the No. 4
mill area without wearing safety shoes. After further
consultation with the inspector the petitioner asserted that it
will vacate the citations served on the respondent and will take
appropriate action to cite the independent contractor. Robb
Electric for the alleged violations. A similar disposition was
made with respect to Section 104(a) "S&S" citation No. 4288866,
issued on December 9, 1993, by Inspector Goodale to the
respondent for an alleged violation of Section 56.15003, after he
observed that an employee of independent contractor Lloyd
Electric Company was not wearing safety toed shoes while at the
No. land No. 2 mill areas (Docket No. VA 94-57-M).

1664

ORDER
In view of the foregoing, IT IS ORDERED as follows:
Docket Nos. VA 94-31-RM and VA 94-41-BM
Section 107(a) Imminent Danger Order Nos. 4288859 and
4288860, issued on December 9, 1993, by MSHA Inspector James E.
Goodale ARE VACATED.
Docket No. VA 94-56-M
The following Section l04(a) citations ARE AFFIRMED, and the
respondent IS ORDERED to pay the civil penalty assessments.
Citation No.
4288854
4288856
4288684
4288685
4288686
4288861
4288690
4288691
4288862

12/8/93
12/8/93
12/9/93
12/9/93
12/9/93
12/9/93
12/9/93
12/9/93
12/9/93

30 C.F.R. Section

Assessment

56.20003(a)
56.12013
56.11002
56.l4107(a)
56.14107(a)
56.11002
56.20003(a)
56.20003(a)
56.20003(a)

$157
$50
$157
$50
$50
$157
$50
$50
$157

Section 104(a) Citation Nos. 4288855, 4288857, 4288687,
4288688, 4288689, 4288693, 4288858, and 4288682 ARE VACATED, and
the petitioner's proposed civil penalty assessments ARE DENIED
and DISMISSED.
Section 104(a) "S&S" Citation Nos. 4288681 and 4288683 ARE
MODIFIED to non-"S&S" citations, and as modified they ARE
AFFIRMED. The respondent IS ORDERED to pay civil penalty
assessments of fifty-dollars ($50) for each of the citations.
Section 104(a) non-"S&S" Citation No. 4288692, IS MODIFIED
to reflect a violation of mandatory safety standard 30 C.F.R.
§ 56.12032, and as modified IT IS AFFIRMED.
The respondent IS
ORDERED to pay a civil penalty assessment of fifty-dollars ($50)
for the violation.
Docket No. VA 94-57-M
The following section 104(a) citations ARE AFFIRMED, and the
respondent IS ORDERED to pay the civil penalty assessments .

1665

Citation No.

Date

30 C.F.R. Section

· Assessment

4288864
4288865
4288867
4288868
4288870
4288872
4288873
4288874
4288875
4288876
4288878

12/9/93
12/9/93
12/9/93
12/9/93
12/9/93
12/9/93
12/9/93
12/9/93
12/ 9/93
12/ 9/ 93
12/ 9/93

56.11001
56.11001
56.12006
56.12032
56.12013
56.12008
56.12008
56.12032
56.12013
56 . 11001
56.12032

$50
$50
$50
$50
$252
$50
$50
$50
$50
$50
$50

Section 104(a) citation Nos. 4288863, 4288866, 4288694,
4288879, and 4288695 ARE VACATED, and the petitioner's proposed
civil penalty assessments ARE DENIED AND DISMISSED.
Section 104(a) "S&S'' citation Nos. 4288869, 4288877, and
4288871 ARE MODIFIED to non-"S&S" citations, and as modified they
ARE AFFIRMED. The respondent IS ORDERED to pay civil penalty
assessments of fifty-dollars ($50) for each of the citations.
Section 104(a) non-"S&S" citation No. 4288880, IS MODIFIED
to reflect a violation of mandatory safety standard 30 C.F . R
§ 56.12013, and as modified IT IS AFFIRMED.
The respondent IS
ORDERED to pay a civil penalty assessment of fifty-dollars ($50)
for the violation.
Docket No. VA 94-58-M
The following section 104(a) citations ARE AFFIRMED, and the
respondent IS ORDERED to pay the civil penalty assessments.
Citation No.
4288696
4288697
4288699
4288700
4288701
4288702
4288704
4288705
4288706
4288709
4288710
4288713
4288717

30 C.F.R. Section
56.14109
56.14109
56.11002
56.12018
56 . 11002
56 . 20003(a)
56.12008
56 . 12013
56.11002
56 . 12032
56 . 16005
56 . 14107(a)
56.12034

12/ 14/ 93
12/ 14/ 93
12/ 14/ 93
12/ 14/ 93
12/ 14/ 93
12/ 14/ 93
12/ 14/ 93
12/ 14/ 93
12/ 14/ 93
12/ 14/ 93
12/ 15/ 93
12/ 15/ 93
12/15/93

1666

Assessment
$50
$50
$50
$50
$50
$50
$50
$50
$252
$50
$50
$204
$252

Section 104(a) Citation Nos. 4288703 and 4288707, · ARE
VACATED, and the petitioner's proposed civil penalty assessments
ARE DENIED AND DISMISSED.
Section 104(a) "S&S" Citation Nos. 4288712, 4288716,
4288718, 4288719, and 4288720 ARE MODIFIED to non-"S&S"
citations, and as modified they ARE AFFIRMED. The respondent IS
ORDERED to pay civil penalty assessments of fifty-dollars -($50)
for each of the citations.
Docket No. VA 94-59-M
The following Section 104(a) citations ARE AFFIRMED, and the
respondent IS ORDERED to pay the civil penalty assessments.
Citation No.
4288723 '
4288724
4288727

~

30 C.F.R. Section

Assessment

56.12032
56.16005
56.11001

$50
$50
$252

12/15/93
12/15/93
12/16/93

Section l04(a) "S&S" Citation Nos. 4288721, 4288722,
4288728, ARE MODIFIED to non-"S&S" citations, and as modified
they ARE AFFIRMED. The respondent IS ORDERED to pay civil
penalty assessments of fifty-dollars ($50) for each of the
citations.
The inspector's gravity finding with respect to
Section l04(a) non~"S&S" citation No. 4288726, IS MODIFIED to
reflect "no likelihood of injury", and as modified IT IS
AFFIRMED. The respondent IS ORDERED to pay a civil penalty
assessment of twenty-five dollars ($25) for the violation.
Section 104(a) "S&S" Citation No. 4288725, IS VACATED and
the petitioner's proposed civil penalty assessment IS DENIED AND
DISMISSED.
Docket No. VA 94-63-M
Section 104(a) "S&S" citation Nos. 4288773 and 4288774, ARE
VACATED, and the petitioner's proposed civil penalty assessments
ARE DENIED AND DISMISSED.
IT IS FURTHER ORDERED that the respondent shall pay the
aforementioned civil penalty assessments to the petitioner (MSHA)
within thirty (30) days of the date of these decisions and
orders, and upon receipt by MSHA, these civil penalty proceedings
ARE DISMISSED.

~~"~
Administrative Law Judge

1667

Distribution:
Dana L. Rust, Esq., McGUIRE, WOODS, BATTLE & BOOTHE, 901 East
cary Street, Richmond, VA 23219-4030 (Certified Mail)
Glenn M. Loos, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
/ml

1668

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

AUG

8 1994

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 93-455
A. c. No. 15-16318-03572

v.

Docket No. KENT 93-482
A. C. No. 15-16318-03570

MANALAPAN MINING COMPANY,
INCORPORATED,
Respondent

Docket No. KENT 93-599
15-16318-03573

A. C. No.

.
.
•

.•

:

Docket No. KENT 93-614
15-16318-03576

A. C. No.

Docket No. KENT 93-615
15-16318-03577

A. C. No.

Docket No. KENT 93-883
16-16318-03581

A. C. No.

No. 6 Mine
Docket No. KENT 93-486
15-17045-03524

A. C. No.
:

.:•
.•
:

:

No. 10 Mine
Docket No. KENT 93-613
A.C. No.
15~05423-03733

~

Docket No. KENT 93-645
A.C. No.
15-05423-03732

:

Docket No. KENT 93-646
A.C. No.
15-05423~03734

:

Mine No. 1

.
.•
••

:

Docket No. KENT 93-882
A. C. No. 15-12602-03567
Prep Plant

1669

Docket No. KENT 93-884
A. C. No. 15-16733-03546
Docket No. KENT 93-918
:

A. C. No.

15-16733-03547

Mine '#7
DECISION
Appearances:

Joseph B. Luckett, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, TN
for Petitioner
Susan c. Lawson, Esq., Buttermore, Turner, Lawson
& Boggs, P.s.c., Harlan, KY 40831 for Respondent.

Before:

Judge Weisberger
statement of the case

These cases are before me based upon Petitions for
Assessment of Civil Penalty filed by the Secretary of Labor
("Petitioner") seeking civil penalties and alleging violations by
Operator ("Respondent"), of various mandatory standards setforth
in Title 30 of the Code of Federal Regulations. Pursuant to
notice the cases where scheduled and heard on March 1, 2, and 3,
1994, and April 26-28, 1994 1 •
On March l, 1:994, at the commencement of the hearing,
Respondent withdrew the Motions it had made to compel discovery
with the exception of a motion to require production of material
excised by Respondent in the notes taken by MSHA inspector
James w. Poynter, that Petitioner had served in response to
Respondent's request. At the hearing, I ordered Petitioner to
produce the unexcised notes for an in camera examination. After
such an examination, and after hearing oral arguments, I
concluded that although the excise names of informants were
relevant, there was no need established that out weighed the
informant's privilege, especially in light of the fact that
Petitioner had served Respondent with notes of the interviews of
these informants. Hence, under Bright Coal co., 6 FMSHRC 2520
(November 1984), the motion was denied.

The parties elected to file a single brief addressing all
the cases that were heard on March 1-3 and April 26-28, 1994.
Accordingly, all the above listed docket numbers are consolidated
for purposes of issuing a decision.
1

1670

At the conclusion of the hearing, counsel for both parties
requested an opportunity to file post-hearing briefs, and the
requests were granted. The briefs were required to be filed not
later than three weeks after receipt of the transcript. The
transcript was received in the Office of the Administrative Law
Judges on April 4, 1994. On May 10, 1994, Respondent filed a
motion requesting an extension until July 15, 1994 to file its
brief. Petitioner did not file any opposition to the motion and,
on May 26, the parties were advised that Respondent's Motion ·was
granted, and the time to file briefs was extended to July 15,
1994. on July 15, 1994, in a telephone conference call convened
at the initiation of Respondent, the parties were granted a
further extension until July 19, 1994 to file their briefs. On
July 21, 1994 the parties' briefs were received.
Findings of Fact and Discussion
I.

Docket No. KENT 94-455.
A.

Citation No. 3380843.

On May 22, 1992, at approximately 5:30 p.m.,
Steve Collins was bolting from the front of a bolter on the
002 section of the No. 6 mine. He noticed smoke coming from the
bolter from the area behind him. He attempted to put the fire
out. The fire appeared to go out, but started to flame again
after a few minutes, and Collins called for help. Richard
Daniel Cohelia, Respondent's safety director, was notified
and arrived at the site at approximately 7:30 p.m.
He stated
that the area was smokey. Cohelia discussed with the superintendent various means of putting the fire out. According to
MSHA inspector James w. Poynter, who subsequently investigated
the incident, Cohelia informed him that the fire was completely
out, and the bolter was cool to the touch by 11:30 p.m.
Cohelia indicated that when he exited the mine at approximately
12:30 a.m., he realized that the fire had not been reported to
MSHA. At that time he determined not to call and wake up an
inspector, as the fire was out and there was no longer any
danger. The following morning, at approximately 9:30 a.m.,
Cohelia, after attempting to contact MSHA officials, Jim Ray and
Elmer Smith and not being able to reach them, contacted Robert
Blanton, an MSHA roof control ventilation specialist at home and
reported the .fire to him.
1

Subsequently, on May 26, 1992, MSHA Supervisory Inspector
James w. Poynter, and MSHA accident investigator Daniel Lynn
Johnson, were notified and directed to investigate the fire. on
May 29, 1992, Poynter and Johnson issued a citation alleging a
violation of 30 C.F.R. § 50.10 which, as pertinent, provides that
"If an accident occurs, an operator shall immediately contact the
MSHA District or Subdistrict Off ice having jurisdiction over its

1671

mine." {Emphasis added). 30 C.F.R. § 50.9(b) defines an
"accident," as pertinent, as "an unplanned fire not extinguished
within 30 minutes of discovery." The undisputed evidence
establishes that the fire at issue was not extinguished within 30
minutes of discovery. It also is uncontroverted that Respondent
did not contact MSHA until approximately 9:30 a.m. on May 23,
1992. Since the fire started at approximately 5:30 p.m. on May
22, and was extinguished at ·the latest at 11:30 p.m., on May 22,
and was not reported until approximately 9:30 a.m., the next
morning, I find that Respondent did not immediately notify MSHA
of a fire that was not extinguished within 30 minutes of
discovery. Hence, I conclude that Respondent did not immediately
contact MSHA upon the occurrence of an accident. I find that
Respondent did violate Section 50.10, supra.
According to Poynter, the requirement of notifying MSHA of
an accident allows MSHA to make a determination whether an
inspector should be immediately sent to the area where an
accident had occurred in order to take action to protect miners.
The fire at issue did not cause any injuries to any persons.
Respondent's employees were engaged in extinguishing the fire
until approximately 11:30 p.m. Once the fire was extinguished
there was no longer any danger, nor was there any urgency to
contact MSHA . I find Respondent was only negligent to a low
degree in connection with this violation. I find a penalty of
$100 2 is appropriate for this violation.
B.

citation No. 3380844
l.

Violation of 30 C.F.R.

§

75.400

The unreported fire on May 22, 1994 had occurred inside
a metal compa'r tment3 approximately 5 feet wide and +8 inches
deep, that was located on a bolter. According to Poynter, when
he examined the compartment on May 27, there was a significant

2

In evaluating the size of business of the operator, for
purposes of assessing a penalty .under Section llO(i) of the Act,
I note that, disregarding the conglomeration of corporations
relied on by Petitioner, the production figures for Manalapan
alone, indicate that it is a large operation. Accordingly, I
find that a penalty to be assessed for the various violations
found in this decision, infra, should not be lowered based on the
size of Respondent's operations.
3

Under normal operations, the compartment is closed.
There are a number of holes on the bottom of the compartment.

1672

.•
<

amount of ash4 and unburnt materials which appeared to .be loose
coal in the area of the electric motors and hydraulic pump. On
other areas of the bolter, he observed loose coal, coal dust,
some float coal dust, and hydraulic fluids.
Johnson, who also examined the compartment, observed a
mixture of loose coal, coal dust, and rocks, which he estimated
were 65 to 80 percent combustible. He said that most of the
material was ash. Johnson indicated further that ash looked like
pieces of burnt hose. In addition, there were burnt pieces of
coal and oil that covered some rocks. Johnson said that he
observed that the combustible material was packed on almost all
of the visible surfaces.
Larry Bush, an MSHA inspector inspected the mine on May 26,
but was not part of the investigation team. He stated that he
observed oil soaked coal dust, and "cinder like material" "around
the operator's deck of the drill." (Tr. 123, March l, 1994).
Poynter and J .o hnson issued a citation alleging a violation
of 30 C.F.R. § 75.400, which provides that coal dust and other
combustible materials "· •• shall not be permitted to accumulate
in active workings, or on electrical equipment therein."
Steve Collins, who was a roof bolter operator/crew leader on
the dates in issue, testified that some time between a month and
two weeks prior to the incident at issue, he had an occasion to
look inside the compa~tment. He indicated that he did not see
any coal dust or any oil accumulation. According to Collins,
after the fire was discovered on May 22, rock dust was spread
into the compartment.
On May 22, 1992, after the fire had been extinguished,
Michael E. Osborne, a repairman, sprayed the compartment with a
pressure hose •for about 30 minutes. He then opened the lid of
the compartment. He noticed that everything was "completely
burnt." (Tr. 163, March 1, 1994). He said that the metal
components had melted. He indicated that he did not see any oil
accumulation, coal dust, float coal dust, or pieces of coal.
Greg Perkins repaired the compartment subsequent to the
fire. 5 He stated that he did not know when he first observed the
compartment after May 22. According to Perkins, the inside of

4

According to Poynter, when coal burns it becomes ash.

5

Perkins made his observations when the bolter had been
moved to the repair shop. According to Richard Daniel Cohelia,
Respondent's Safety Director, the bolter was moved to the shop 3
or 4 days after May 26.

1673

the compartment contained ashes and hoses . He did not see any
dust, coal or puddles of oil. Perkins stated that a cable going
to a motor inside the compartment had a hole in it. He opined
that this hole was a "blowout unit" that could have caused the
fire . (Tr . 177, March 1 , 1994).
Richard Daniel Cohelia, Respondent's Safety Director,
testified that on May 26, when he examined the compartment, its
lid was off. He indicated that he observed that all the hoses6
were burnt, and there was a lot of soot by the motor . Cohelia
said that he saw ashes from the burnt hoses, but did not see any
coal dust, float coal dust, or accumulation of oil. ·
No witne.sses observed any accumulation of combustible
material prior to the fire. The testimony of eyewitness is in
conflict as to whether combustible materials were observed in the
compartment when the lid was removed after the fire. In
resolving the conflict of the testimony, I accord more weight t o
the testimony of the three inspectors Poynter, Johnson, and Bush,
rather than Respondent's witnesses, as the record does not
contain any evidence to suggest any improper motive on the part
of the inspectors. (See, Texas Industry, Inc •• 12 FMSHRC 235
(February 1990), (Judge Melick)), I thus conclude that they were
motivated solely by the desire- to fulfill their official duties.
I further do accord much weight to the responses of Respondent's
witnesses in response to leading questions from Respondent's
counsel. I accept the testimony of Petitioner's witnesses as to
their observations. I do not consider their testimony to have
been diluted by any negative inferences raised by the fact that
holes in the floor of the compartment might have caused the
accumulations to have fallen out as argued by Respondent. Also,
due to that experience, especially Johnson's experience as an
accident investigator, I accept their opinions that the materials
they observed in the compartment were the residue of burnt coal
and coal dust. Since the accumulations were observed by the
inspectors only 4 days after the fire, and since the bolter had
been removed from operation on the day of the fire, I conclude
that the observed accumulations existed in the compartment prior
to the fire. Although the inspectors did not test the
combustibility of the accumulated materials, I accept their
testimony that coal and coal dust are combustible. I thus find
that Respondent did violate Section 75 . 400 supra.

..·:

:·

:.

6

Cohelia estimated that there were 100 hoses in the
compartment. The h_o ses supply oil to the bolter.

1674

2.

Significant and Substantial

A "significant and substantial" violation is described in
Section l04(d) (l) of the Mine Act. as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard . "
30 C.F.R. § 8l4(d) (l). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Di vision,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC l, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury ,in question will be of a reasonably serious
nature.
In United States steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining co . , 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of Section 104 (d) (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 . Steel Mining Company.
Inc. , 6 FMSHRC 1573, 1574-75 (July 1984).

.·
:,..:

I have found as discussed above, that Respondent violated
Section 75.400 supra. Also, I find that the presence of
combustible material, ! . ~, the violation herein, contributed to
the fire that occurred. Although the record does not
convincingly establish the cause of . the fire, I find that

1675

presence of combustible materials did contribute to the hazard of
the fire. An injury producing event, i· g., a fire did occur.
Although no injuries resulted, I find that, due to the presence
of smoke, reasonably serious injuries were reasonably likely to
have occurred as a result of this violation. I thus conclude
that the violation was significant and substantial.
The accumulated materials at issue were located in a fully
enclosed compartment covered by a lid. It was not possible to
have observed the accumulations without the removal of the lid.
When this was last done there was no evidence of any
accumulation. I thus find that Respondent's negligence herein
was of a low degree. I find that a penalty of $100 is
appropriate for this violation.
II.

Docket No. KENT 93-599, CCitation Nos . 4241524. 4241533.
4241537 and 4241539).
A.

Citation No. 4241524.
I

On February 10, 1993, Adron Wilson, an MSHA inspector,
inspected the No. 7 belt flyte. He stated that he observed a
piece of belt attached to the No. 8 head belt roller. He
testified that the belt piece was not attached to the tail belt,
and extended to cover only half of the diameter of the tail
roller which was below the head belt roller. Wilson indicated
that the bottom of the tail belt was 2 inches above the ground,
and the top of the tail belt was 16 inches above the ground.
Wilson said that because the belt piece was not securely
attached, a person could fall onto the belt, and could come in
contact with the belt. In this connection, he indicated that two
times ~ach shift a person shoveled in the area to clean under the
belt. Wilson opined that due to vibration of the belt, coal
falls off the belt, and causes stumbling hazards in the area . He
also noted anchor pins in the area which create stumbling
hazards. Wilson said that contact with the belt roller could
cause bruises, lacerations, or broken fingers. He opined that it
is common to clean the belt when it is in operation, and hence an
injury will occur. On cross-examination, he conceded that a
person would have to stumble before there is a possibility of
contact with the belt or the ro1·1 er, and that if the belt is not
in operation there is no danger. However, he said that belt was
running when he observed it.
George Smith, a repairman who accompanied Wilson, did not
contradict the latter's testimony that the piece of belt was not
attached at .the bottom. According to Smith, to the best of his
recollection, the piece of belt material covered the entire tail
roller. He described the belt as "pretty sturdy." (Tr. 14,

1676

March 2, 1994) . He said that it was more than a quarter of inch
thick, and flexible. He opined that if one fell against the
belt, one would not come in contact with the roller.
Cohelia testified that he is not aware of any injuries at
any of Respondent's mines resulting from use of belt material as
a quard. He opined that should a shovel contact a roller, the
shovel would be kicked out due to the direction of the belt .
This testimony was not rebutted . Cohelia stated that if one fell
onto the belt, one would hit the frame of the tail piece. He
said the belt was fairly stiff, and a quarter inch to a half inch
thick.
Wilson issued a citation alleging a violation of 30 C.F.R.
75.1722(b). which provides, in essence, that quards at tail
pulleys "· • • shall extend a distance sufficient to prevent a
person from reaching behind the quard and becoming caught between
the belt and the pulley . "
§

Section 75.l722(b), does not specify the material of a
quard, nor does it .specify the specific manner in which the
guards are to be installed and secured. Section 75.l722(b) is
violated only when a guard does not extend a sufficient distance
to prevent a person from reaching behind, and being caught
between the belt and the pulley. Wilson testified that the guard
extended to a point that covered only half of the diameter of the
roller, leaving the bottom half exposed. Smith who accompanied
Wilson testified that, to the best of his recollection, the belt
material covered the tail roller. A contemporaneous drawing made
by Wilson similarly indicates that the material covered the
pulley. (GX 20).
The citation written by Wilson does not allege that the
guard covered only half the pulley. The citation reads as
follows: "A quard is not provided for the tail roller of the
No. 7 belt flight . No quard is found in the area . The tail
roller is self-cleaning type and rotates at a very fast RPM.
This is a 15 inch tail roller fully exposed. A piece of belt is
attached to the #8 head drive unit. But must be removed ·to clean
muck out from the under the head drive unit created by the belt
scraper, and tail roller leaving the person who cleans this area
fully exposed to the hazard." (sic)
Hence, it appears that the
gravemen of the allegation in t~e citation, is that the belt must
be removed when cleaning exposing the cleaner to the hazard of
contact with the tail roller. I find that the weight of the
evidence establishes that the belt material extended to the end
of the roller. Since this material was at least a quarter inch
thick, and extended to a point that covered roller, I find that
it did extend a sufficient distance to prevent a person from
reaching out .behind it and being caught between the belt and the

1 677

pulley. I thus include the Respondent did not violate Section
75.1722(b), and accordingly, Citation No. 4241524 should be
dismissed.
B.

Citation Nos. 4241533. 4241537, and 4241539.

Wilson also observed that a guard was not provided at
the tail roller for the No. 5 belt flyte. He issued a citation
(No. 4241533) alleging a violation of Section 1722(b), supra.
Wilson also issued another two citations for essentially the
same conditions, alleging significant and substantial violations
of Section 75.1722(b), supra. I accept the essentially
uncontradicted testimony of Wilson that this tail roller was not
guarded. Also, I accept the essentially uncontradipted testimony
of Wilson that the tail roller cited in Citation No. 4241537 was
partially covered by belt material, but that 6 inches on the left
side of the diameter of the roller was exposed. Similarly, I
accept the uncontradicted testimony of Wilson that the belt
covering the roller cited in Citation No. 4241539 extenqed to
cover only the .top half of the roller and left the bottom half
exposed. Essentially, the hazards associated with these
conditions are the same. 7
George Smith, a repairman employed by Respondent,
accompanied Wilson. He described the belt that covered the
rollers at issue as being pretty sturdy, and more than a quarter
of an inch thick. He opined that if one touched the belt, or
fell against it one would not come · in contact with the roller.
Smith explained that the top of the tail belt is 10 inches
above the bottom of the head belt. Also, the head· drive belt
extends laterally 2 feet beyond the tail belts.
Osborne explained that the roller is located within a frame,
and most of the frames come over the top of the roller. He
estimated that the rollers were recessed approximately 8 to 10

7

Wilson' indicated regarding the area of the tail roller
cited in Citation No. 4251533 that, 4 feet from the cited area, a
pin which extended approximately 2 inches off the floor was
located approximately 8 to 10 inches into the walk way. He said
that a chain was attached to a eyelet at the top of the pin and
extended to the belt. The pin and chains constituted tripping
hazards . Although Wilson did not indicate the presence of such
pins in proximity to the other cited rollers, Cohelia stated that
such pins which extended approximately 2 inches off the floor
were located 8 to 10 inches into the walkway, in the area of the
other cited rollers.

1678

inches. Neither Smith nor Osborne noted any hazardous· material
in the walkway adjacent to the belts. Cohelia, who has been the
safety director since 1982 when Respondent commenced its
operations indicated that there have not been any accidents
involving the tailpieces or rollers along the belt.
I

Cohelia explained that it is Respondent's policy for
employees not to clean belts when the belts are in operation, and
in general employees follow this guideline. According to Smith,
when citation numbers 4241533, 4241537, and 4241539 were issued,
the belt was not in operation.
I conclude that, although contact with the moving rollers
was not likely, given the continuation of mining operations,
which necessitated movement of , the belt, it was possible that
contact could occur with either a portion of a roller that was
exposed or covered with belt material that was not secured at the
bottom tail roller . Accordingly, I find Respondent did violate
Section 75.1722(b), supra, as alleged in these citations.
The record establishes the following:
(1) it is
Respondent's policy for men to shovel under the areas in question
when the belt is not in operation; (2) the rollers in question
were approximately at knee height or lower; (3) the lack of
significant stumbling hazards specifically in the areas at issue;
(4) the available walkaway was 12 feet wide; and (5) the cited
rollers were recessed beyond the· vertical plane of the upper head
rollers, and were recessed beyond a frame covering the portion of
the top of the roller. I conclude that within this framework, it
has not been established that an injury producing event was
reasonably likely to have occurred . (See, U.S. Steel, supra).
This is especially true regarding those rollers that were
partially or fully covered by the belt material. Accordingly, I
find that it has not been established that the violation was
significant and substantial.
Larry Bush, an MSHA inspector who inspected the mine in
question in 1991 and 1992 indicated that he had received a
memorandum "from Arlington" (Tr. 148, March 2, 1994) to eliminate
fence wiring and chain link guards due to their hazards. He
agreed that he may have suggested to Respondent to use belt
material as guards and agreed that "using a belt was a pretty
good form of guarding around hea.d pieces" (Tr. 150). Also,
Cohelia's testimony was uncontradicted that he was informed by an
MSHA inspector to change the guards from fences to belt material,
and that four MSHA inspectors had observed belt material guarding
rollers, and did not issue any citations. I thus find that
Respondent was negligent to only a low degree in connection with
the violations herein. I also find that there was a low
likelihood of an injury producing event as a consequence of the

1679

cited violations. Also, based on Wilson's testimony, I find that
as a consequences of the cited violations possible ·injuries would
be limited to lacerations, bruises, or possibly broken fingers.
I find that these violations were of a low level of. gravity. I
conclude that a penalty of $20.00 is appropriate for each of
these violations.

c.

Citation No. 4241535.
1.

.

Violation of 30 C.F.R.

§

75.400

Wilson indicated that when he made his examination on
February 11 , he observed an accumulation of float coal along the
entire 1200 foot length of the No . 5 belt. He described this
float coal dust as paper thin and black. He said it extended rib
to rib in the 20 foot wide entry, and also was in the cross-cuts.
He issued a citation alleging a violation of 30 C.F.R. § 75.400
which, in essence, mandates that combustible materials shall not
be allowed to accumulate. Respondent does not contest the fact
of the violation. Based upon Wilson's testimony, I conclude that
Respondent did violate Section 75.400, supra.
2.

Significant and Substantial

Wilson testified that float coal dust is combustible, and
can explode in the presence of methane. He also noted heat
sources such as friction from a belt running across broken
rollers at the 94th cross-cut, and touching the bottom of belt
stands. He noted that in these circumstances a fire could have
occurred. Wilson also conceded that a fire was not reasonably
likely to have occurred. At the hearing, Respondent moved to
vacate Wilson's finding of significant and substantial violation.
In response thereto, Petitioner agreed that the violation was not
significant and substantial. Based on the record before me, I
conclude that a.n injury producing event, i.e., a fire or
explosion, was not reasonably likely to have occurred. I find
that the violation was not significant and substantial.
3.

Penalty

According to Wilson, employees were working on the broken
rollers to correct that condition. There is no evidence as to
how long the accumulations had been in existence. Should the
violative condition herein have resulted in coal dust being
placed in suspension, and should a fire or explosion have
occurred, the consequences could have been serious. I conclude
that due to the extent of accumulations a penalty of $s·oo is
appropriate for this violation.

1680

III. Docket No. KENT 93-614
A.

Violation of mandatory standards
l.

citation No. 4241527

On February 10, 1993, Wilson inspected the No. 7 belt.
According to Wilson , at a point 10 crosscuts inby the No. 7 headdrive, he observed that the fire sensor cable was in two separate
pieces . He indicated that an auditory and visual siqnal would
not be emitted, and the presence of a fire would not be reported.
In this connection, he issued a citation alleging a violation of
30 C.F.R . § 75 . 1103 which provides for the installation of
devices for the belts to give an automatic warning when a fire
occurs on or near the belt. Based on the testimony of Wilson
which was not contradicted or impeached, I find that the
violation has been established. 8
2.

Citation No. 4241525

Wilson also observed an accumulation of coal dust which he
said extended the ·entire 1500 foot length of the No. 7 belt
flyte. He said that the dust, which was paper thin, extended rib
to rib, was gray to black in color, and was paper thin. Wilson
said that the dust extended to the crosscut, and was dry. He
said that the belt was in operation. Wilson issued a citation
alleging a violation of 30 C.F.R. § 75.400 which, in essence,
proscribes the accumulation of combustible materials.
David Smith, a repairman, who was present at the inspection,
testified that the dust was mostly gray, and only black "here and
there . " (Tr. 127, March 3, 1994). He also did not recall seeing
any coal dust on the ribs.
I place more weight on the testimony of Wilson, based on my
observation of the witnesses' demeanor. Based on the essentially
uncontradicted testimony of Wilson, I find that it has been
established that there was an accumulation of coal dust. Thus it
has been established there was a violation of 30 c.F.R. § 75.400.

8

Respondent argues that Section 75.1103 supra, was not
violated, as it does not address·· or require that the fire sensor
system be in a workable condition. I reject this interpretation
as being unduly restrictive as it disregards, the well
established principle that the mandatory standards are to be
interpreted to ensure safe working conditions for miners
(Westmoreland Coal Company v. fMSHBC, 606 F2d 417, 419-420 (4th
Cir. 1979)). Hence, the requirement to install a sensor cable
includes the requirement that the cable function properly.

1 681

3 • . Citation No. 4241531
Wilson stated that in the No. 7 belt he saw 20 rollers that
were not rolling. He indicated that most of these were located
in consecutive order, and were on the bottom of the belt. He
said the .b elt was in operation, and he saw evidence that the belt
was rubbing the vertical stands. Wilson touched these stands,
and detected heat. His testimony regarding the stuck rollers was
not contradicted or impeached. Based upon this testimony, I find
that Respondent did violate Section 75.1725, supra.
4.

Citation No. 424152 8

Wilson stated that he observed black coal dust, 1/8 of inch
thick, on top of the No. 7 belt starter box. This box was
approximately 4 feet long, 30 inches wide, and 30 inches high.
It contained various electrical components which were energized.
Wilson also observed float coal dust that was at a depth of l / 8
of an inch inside the starter box. According to Wilson, the dust
was on the electric circuits, and wiring. He indicated that the
electrical components inside the starter box produce an
electrical arc when they make and break contact in their normal
operation. Wilson said that the starter box was within 6 or 7
feet of the No. 7 belt head.
Wilson issued a citation alleging a violation of Section
75.400, supra.
Smith testified that he did not see any arcing. He also
indicated that there was rock dust beneath the coal dust. He
opined that there was not enough of an accumulation to go into
suspension, or to cause an ignition. Cohelia opined that dust in
a box will not ignite until the electric coil in the box is red
hot.
I find that Smith's testimony is insufficient to rebut
Wilson's testimony as to his observations. I also find that the
testimony of Respondent's witnesses is not sufficient to rebut
Wilson's testimony concerning the presence of combustible
materials i.~, materials capable of being combusted. On the
basis of his testimony, I find that Respondent did violate
Section 75.400 as alleged.
5.

Citation No. 4238729

Wilson continued his inspection and observed that there was
no guard guarding the 15 inch diameter tail roller for the No. 6
belt flyte which abuts the No. 7 belt. He stated that the belt
was in operation. He issued a citation alleging a violation of
Section 75.1722(a), supra. Wilson's testimony that the 15 inch

1682

diameter roller was exposed was not cont~adicted or impeached. I
find that Respondent did violate Section 75.1722(a) as alleged.
6.

Citation No. 4241529
I

Wilson had the deluge spray system manually tested, and
found that at the No . 7 head drive it did not operate . He issued
a citation alleging a violation of 30 C.F.R. § 75.1101-1. Based
on the testimony of Wilson that was not contradicted or
impeached, I find that a violation of Section 75.llOl-l did occur
as alleged .
7.

Citation No . 4241530

Wilson next observed that a wire leading to a light bulb
was loosely wrapped on the 110 volt tap of the transformer
located inside the starter box . He said that normally wires
attached to this tap are secured by a screw. According to
Wilson, loose wires generate heat and an electrical arc. He
testified that he had observed an arc the size of the point of a
ball-point pen. He also observed coal dust all over the inside
of the box, and on the ,wire at issue up to the edge of its
insulation. Wilson issued a citation alleging a violation of 30
C.F.R. § 75.514 which provides that electrical connections shall
be "mechanically and electrically efficient and suitable
connectors shall be used." (Emphasis added)
Smith indicated that he did not see an arc. I find Smith's
_testimony insufficient to rebut the testimony of Wilson whom I
find credible on this point, based on my observations of his
demeanor. Also, there is no evidence that Smith and Wilson were
looking at the same place at the same time Wilson observed the
arc. I find, based on Wilson's testimony, that Respondent did
violate Section 75.514 as alleged, as the wire connecting to the
starter box was loosely wrapped, and not secured by a "suitable
connector."

a.

Citation No . 4241532

Lastly, Wilson observed that a shaft was protruding about 11
inches from the roller at the No. 7 head drive. He said that the
circumference of the shaft had a.groove cut out of it
approximately one quarter of an inch, by a quarter of an inch.
The groove extended back to the roller. According to Wilson, the
shaft was not guarded. He was concerned that if a person's
clothes contacted the rotating shaft a serious injury could
result.

1683

Smith, who was present, indicated that a guard was
approximately 12 to 14 inches away to left of the shaft, and was
in place at that point. However, he did not contradict or
impeach the testimony of Wilson that the shaft was not quarded.
I thus find, based on Wilson's testimony, that Respondent did
violate Section 75.l722(a) supra as alleged.
B.

Imminent Danger Withdrawal Order (Order No. 4241526)

According to Wilson, based on all these above 8 conditions
he issued a written l07(a) withdrawal order. 9 He explained that
all of the conditions were in very close proximity, and they all
posed hazards. He said that the hazards were obvious, and he
felt there was a lot of danger to himself and miners. He said
that a lot of the hazards were inter-connected but that "all" the
conditions "in general" formed the basis for the 107(a) order.
(Tr. 54) He said that taken alone, the presence of dust, and the
non-functioning rollers did not constitute an imminent danger.
Section 107(a) of the Act provides as follows:
If, upon any inspection or investigation of a coal or
other mine which is subject to this [Act], an
authorized representative of the Secretary finds that
an imminent danger exists, such representative shall
determine the extent of the area of such mine
throughout which the danger exists, and issue an order
requiring the operator of such mine to cause all
persons, except those referred to in Section [104(c)],
to be withdrawn from, and to be prohibited from ·
entering, such area until an authorized representative
of the Secretary determines that such imminent danger
and the conditions or practices which caused such
imminent danger no longer exists.

9

According to Wilson, after he observed the broken
sensor cable (infra, III(A) (1)) '·· the dust accumulation in the No .
7 belt flyte, drive (infra, III (A)(2)), the dust in the starter
box (infra, III(A) (4)), the broken rollers (infra, III(A) (3)),
and also observed that the tail r .o ller was not quarded, he "made
the determination at that time that a lot of work needed to be
done here before I could allow any coal miner to come back
through that area" (Tr. 60, March 3, 1994). On that basis, at
approximately 8:55 p.m . , he orally issued a Section 107(a)
withdrawal order.

1684

The term "imminent danger" is defined in Section 3(j) of the
Act to mean " · • • the existence of any condition or practice in
a coal or other mine which could reasonably be expected to cause
death or serious physical harm before such condition or practice
can be abated." 30 u.s.c. § 802(j) .
To ~upport a finding of imminent danger, the inspector must
find that the hazardous condition has a reasonable potential to
cause death or serious injury within a short period of time. An
inspector abuses his discretion when he orders the immediate
withdrawal of a mine under Section 107(a) in circumstances where
there is not an imminent threat to miners . Utah Power & Light
Co., 13 FMSHRC 1617 (1991).
As the Commission has recently stated:
[A]n inspector must be accorded considerable discretion
in determining whether an imminent danger exists
because an inspector must act with dispatch to
eliminate conditions that create an imminent danger .
Clearly, the inspector is in a precarious position. He
is entrusted with the safety of miners• lives, and he
must ensure that the statute is enforced for the
protection of these lives. His total concern is the
safety of life and limb • • • • We must support the
findings and the decisions of the inspector unless
there is evidence that he has abused his discretion or
authority . [Citation omitted.] Wyoming Fuel Co . , 14
FMSHRC 1282, 1291.
Although, the conditions present herein did present discrete
hazards, and some were inter-connected, there is a lack of
evidence that these conditions, either singularly or in
combination had a reasonable potential to cause death or serious
injury within a short period of time. (See, Utah Power & Light,
supra). Wilson testified regarding the dangers of these
conditions, and their proximity to each other, but did not at all
opine or setforth any observations regarding any time element. I
thus find that the record presents insufficient evidence of any
conditions having a reasonable potential to cause death or
serious injury within a sort period of time. I thus find that
Section l07(a) withdrawal order was not properly issued, and
should be dismissed.

1685

c.

Whether the cited conditions were significant and
substantial .
l.

Citation Nos. 4238729 and 4241532.

Regarding Citation No. 4238729 (lack of guard on tail
rollers), Wilson's testimony did not set forth with any degree of
specificity the specific conditions which would make likely the
occurrence of an injury producing event, i·!h, i nadvertent
contact with the exposed rotating roller. Accordingly, I find
this violation was not significant and substantial. For
essentially the same reason, I find the violative condition cited
in Citation No. 4241532 (Shaft not guarded) was not significant
and substantial.
2.

citation Nos. 4241525, 10 4241527 11 4241528 12
4241531 1 3 ,

4241530

14

,

4241529

15

Each of these citation's taken singularly and in
combination, contribute to the hazard of a fire, or the
propagation of a fire . In evaluating whether a fire was
reasonably likely to have occurred, I note the existence of the
following conditions: (1) the extent of the accumulation of dust
in the No. 7 belt flyte; (2) the accumulation of dust in the
starter box in combination with the occurrence of arcing, and a
loose wire which generates heat; and (3) the presence of 20
rollers that did not function, producing function and heat on the
vertical stands of the belt. I conclude that with the
continuation of the normal mining operations, given the presence
of fuel for a fire i.e., coal dust, and numerous actual sources
of ignition, a fire or explosion was a reasonably likely to have
occurred. Thus, the violations cited were all significant and
substantial.

1

° Coal dust along the belt flyte.

11

Broken fire sensor cable.

12

coal dust in the starter box.

13

Belt rollers not rolling.

14

Loosely wrapped wire in starter box.

15

Inoperative deluge spray system.

1686

D.

Penalty

The record does establish how long the above cited
conditions had been in existence . Cohelia's testimony tends to
establish that Respondent's employees were in the process of
cleaning another area. I find Respondent's negligence to have
been moderate in connection with all these citations. I find,
considering the factors set forth in Section llO(i) of the Act,
that the following penalties, are appropriate for the following
Citation Nos. : 4241525 - $5,000; 4241527 - $2,200; 4241528 $2 , 100; 4241530 - $2,400; 4241531 $2,200; 4241529 - $2,300;
4241532 - $100; 4238729 - $10 0 .
IV.

Docket No. KENT 93-48 6 . (Citation Nos. 3164670 and 3164679 )

Elmer Thomas, an MSHA inspector, inspected Respondent's
Manalapan #10 Mine on January 28, 1993. He observed that one of
the permanent stoppings located at the 20th crosscut, was
missing. The stoppings are designed to separate the belt entry
from the adjacent return entry. He issued a citation (No .
3164670) alleging a violation of 30 C.F.R. § 75.352 which
prov ides as follows: "Entries used as return air courses shall be
separated from belt haulage entries by permanent ventilation
controls." Respondent has conceded the fact of the v i olation.
Based on the testimony of Thomas, and Respondent's concession, I
find that Respondent did violate Section 75.352, supra.
On February 3, 1993, Thomas observed that in the No. 1 belt
line, there was another stopping that was out, and another one
was partially torn at the 13 or 14th crosscut. Thomas issued
another citation (No. 3164679 ) alleging another violation of
Section 75.3 52, supra . Respondent has not contested the facts of
this v iolation, and based upon the testimony of Thomas, I find
that Respondent did violate Section 75 . 352, supra •.
In essence, Thomas opined that because there was a bad roof
in the section in question, especially in the No. 1 belt line,
and the roof had already fallen in some parts, it was reasonably
likely that, over time, a roof fall would have occurred knocking
out stoppings, and separating the belt entry from the adjacent
intake e ntry . In this ev ent, not all the air traveling up the
intake entry to ventilate the face would have reached the face,
as some of it would have short circuited and entered the belt
entry throug~ the portion of the permanent stoppings that had
been knocked down by a roof fall. Thomas was concerned that
since testing results obtained after his inspection indicated the
presence of 1/10 of 1% of methane, methane could have accumulated
in the area in question, since it was more than a mile deep.
Should methane had been accumulated in explosive concentrations,
and not have been swept away from the face due to air having been
short circuited from the intake entry to the belt ~ntry, the

1687

methane would had been exposed to ignition sources at the face
such as the miner, bolter, scoop and charger. In addition, he
indicated that the belt line contained other ignition sources
such as non-permissible starters, motors, and electric cables.
In order for a violation to be significant and substantial,
it must be established that there was a "· •• measure of danger
to safety contributed to by the violation:" (Mathies Coal
Company, 6 FMSHRC 1, at 3) (January 1984) (Emphasis added}. The
hazards that were the subject of the concern of Thomas are those
associated with an accidental removal of a stopping between the
cited belt entries and the intake entry. In contrast, the cited
violative conditions were stoppings that were missing between the
belt entries and the return entry. There is an absence of any
nexus between the cited violations and the hazards testified to
by Thomas. I conclude that Petitioner has failed to esta.b lish
that there was any danger to safety that was contributed to by
the violative conditions cited·. Accordingly, I find that it has
not been established that the violations were significant and
substantial. 16
According to Thomas, J. D. Skidmore told him that the
stopping that was missing at the 20th crosscut in the belt entry,
had been taken down intentionally, in order for a 'scoop to pass
through the area. Skidmore was not called to testify. In
contrast, Johnny Helton, the assistant to the superintendent at
the subject mine, testified that the first indication that he had
that the stoppings at issue were missing on January 28, the date
of the inspection. He also indicated that he was told that the
stopping, which were cited by Thomas as having been missing on
February 3, had been crushed either by a roof fall, or from a
heave of the floor. There is no evidence as to how long the
stoppings had been missing in the No. 1 belt line before they
were observed and cited by Thomas. Within this framework, I
conclude that Respondent was moderately negligent in connection
with the violations cited herein.
I find that a penalty of $200
is appropriate for each of the cited violations.

16

At the hearing, at the conclusion of petitioner's case
Respondent made a motion for the entry of judgment in its favor
on the issue of significant and substantial. A decision was
reserved on this motion, and it is presently granted for the
reasons stated above.

1638

v.

Docket No. KENT 93-613
A.

Citation No. 3164651.

MSHA inspector Roger Pace, testified that while inspecting
the subject mines on April 6, 1993, he noted that a fire curtain
at the tail piece of the belt in the belt entry at the 006
section was lying on the ground. He cited Respondent for
violating 30 C.F.R. § 75.370(a) (1), which in essence requires it
to comply with its ventilation system and methane and dust
control plan ("ventilation plan"). The ventilation plan, as
pertinent, requires the placement of a fire curtain in the belt
entry 2 to 3 crosscuts out by the face. Based on the testimony
of Pace, wh~ch was not contradicted or impeached, I conclude that
Respondent did violate its plan, and accordingly there was a
violation herein of Section 75.370(a) (l), supra.
According to _Pace, if the fire curtain, which is flame
retardant, is not ~n place, air from the belt entry would no
longer be prevented from going inby to the face. He indicated
that there were various ignition sources present in the belt
entry such as cables, starter boxes, power units, and bottom
rollers which could freeze and cause friction. In the event of a
fire caused by one of these ignition sources, in the absence of
the fire curtain at issue, smoke could go to the face where eight
men worked, and serious fatal injuries due to smoke inhalation
could result. However, the record fails to establish the
existence of any specific conditions relating to the potential
ignition sources that would have rendered it reasonably likely
for a fire to have occurred. Accordingly, I conclude that it has
not been established that, as result of the violation herein, an
injury-producing event, i.g., a fire, was reasonably likely to
have occurred (c.f., Mathies, supra). Accordingly, I find that
the violation was not significant and substantial. There is no
evidence in the record to base any finding as to what caused the
fire curtain to have fallen to the floor, and when this occurred.
I thus conclude that Respondent's negligence was no more .than
moderate. I find that a pen~lty of $200 is appropriate for this
violation.
B.

Citation No. 3164652.

Pace issued another citation alleging a violation of the
ventilation plan, based upon his observation that a regulator,
used to allow belt air to enter the adjacent return entry, was
not in place. Respondent did not contradict or impeach this
testimony, I find that the ventilation plan requires such a
regulator, and since it was missing, Respondent was in violation
of the ventilation plan and hence did violate Section
75.370(a) (1).

1639

Essentially, Pace opined that the violation herein was
significant and substantial. He reasoned that, in the event of a
fire outby the missing regulator, smoke could travel inby to the
face where eight men are located. However, due to the absence of
any proof that any equipment or other potential ignition source
was in such a condition as to render the event of an ignition
reasonably likely to have occurred, I concluded that the
violation was not significant and substantial. There is no
evidence before me as to the amount of time that elapsed between
the regulator not being in place, and the inspection at issue.
Nor is there any evidence as to indicate why the regulator was
not in place. I find that a penalty of $200 is appropriate for
this violation.

c.

Citation No . 3164653 .

According to Pace, the water pressure on the sprays on
the miner on .the 006 section on April 6, 1993 was only 100 pounds
per square inch, (psi) whereas the "ventilation plan" calls for
120 psi. Respondent did not contradict or impeach Pace's
testimony in these regards. Hence, inasmuch as the water
pressure was less than mandated by the plan, it is concluded that
Respondent did violate the ventilation plan . Hence Section
75.370(a) (1) was violated.
Pace indicated that he observed dust from the miner drifting
outby to the miner operator. He indicated that, with continued
operation, there was a chance the operator and other persons
would breathe a large amount of respirable dust, and suffer
injuries to their lungs. There is no evidence that the amount of
dust to which the miner operator was being exposed, was in
violation of any mandatory standard. Also, it is noted that the
sprays were operating with water pressure at 100 psi. There is
no evidence that the 20 psi deficit in water pressure from that
called for by the ventilation plan, caused any significant
increase in dust exposure to the operator of the miner, or his
helper . I conclude that the violation under these circumstances
was not significant and substantial.
Petitioner did not contradict or impeach the testimony of
Helton that it is not possible by a visual examination to detect
the difference between water sprays operating with 110 psi,
rather than 120 psi. As such, the violation herein cannot be
found to have been easily observable . I thus find Respondent's
negligence to have been only moderate. I conclude that a penalty
of $150 is appropriate.

1690

..
:~

VI.

Docket No. KENT 93-646
A.

Citation No. 3164716
1.

Violation of 30 C.F.R.

§

75.1101

Jim Langley, an MSHA inspector, inspected Respondent No. l
mine on February 22, 1993. Langley issued a citation to
Respondent because he had observed that the 006 section belt
drive was not provided with a deluge fire suppression system in
violation of 30 C.F.R . § 75.1101. In essence, Section 75.1101
mandates the installation of deluge water sprays at the main, and
secondary belt-conveyor drives. Respondent did not rebut or
impeach Langley's testimony regarding the facts of the violation.
Accordingly I find that Respondent did violate Section 75.1101,
supra.
2.

Unwarrantable failure.

According to Langley, Helton told him that the belt had been
in operation for three weeks. Helton did not impeach or
contradict this testimony. He stated that when the belt was set
up, there was a notation put in the maintenance report to install
the deluge system. He indicated that the maintenance foreman
works for him, but that he (Helton) is not responsible for seeing
that the maintenance shift installs the deluge system. He said
that he had thought that the deluge system had been installed.
Since the belt had been in operation for three weeks without a
deluge system, and there are no facts adduced by Respondent to
mitigate its conduct in not having had a system installed, I
conclude that the violation herein was the result of Respondent's
unwarrantable failure (See Emery Mining Corp., 9 FMSHRC 1997,
2004 (1987)).
B.

Order No. 3164717.

Langley testified, in essence, that on February 22, 1993, he
also observed black coal dust at the head drive of the ''F" belt .
He said that the dust was on the floor and both ribs, and
extended for 26 crosscuts. He indicated that the accumulations
extended the full width of the 18 to 20 foot wide entry, and into
the crosscuts. He also indicated that there was float dust on
the belt. Langley indicated that it is likely that areas of the
accumulations were wet. He also noted that the area was rock
dusted.
Helton, who was present, testified that the belt in section
was wet, and that the coal that was being run from the face was
wet. He opined that the coal that spilled off the belt would be

1691

wet. Helton said, in essence, that the material that was "gobbed
off" at the head drive "was a wet mud-like build up" (Tr. 155,
April 26, 1994). He opined that the likelihood· of the
accumulation catching on fire when wet would be a lot less than
if it was dry . However, he indicated that he agreed there was a
violation.
Cohelia opined that wet coal is not combustible.
Langley, in rebuttal opined that even though coal dust is
rock dusted, if there would be an explosion the coal dust would
be "kicked up" in the air, (Tr. 167, April 26, 1994) and could
still explode . He also indicated that wet coal dust will still
ignite and burn.
Langley issued an order .alleging a violation of 30 C. F.R.
75 . 400 which, in essence, provides that coal dust, loose coal
and other combustible materials shall not be permitted to
accumulate in active workings.
§

Based on the testimony of Langley, I conclude that
Respondent did violate Section 75.400. Langley opined that the
violation was the result of Respondent's unwarrantable failure,
because of the amount of the accumulations. He also indicated
that prior to citing the area in question, he had examined three
other belts, and cited them for having accumulations of float
dust. The record does not contain any evidence as to how long
the accumulations at issue had existed prior to the order that
was issued by Langley. In the absence of any such evidence, I
find that it has not been established that there was any
aggravated conduct on the part of Respondent. I thus find that
it has not been established that the violation herein resulted
from Respondent's unwarrantable failure.

c.

Significant and Substantial !Citation No. 3164716. and
Order No. 3164717).

According to Langley, the violations cited in Citation No.
3164716 and Order No. 3164717, were both significant and
substantial due to the presence of possible ignition sources such
as the belt drives, rollers, belt boxes, cables, drive rollers
and bottom rollers. He also took cognizance of the quantity of
the accumulated float dust and loose coal, the present of float
dust in the starter box, the lack of the deluge system, the
absence of a sensor line, and the absence of a fire hose at the
belt drive. Also, he indicated that the breakers and contactors
create an arc whenever the belt is turned on, an event that
occurs at least twice a day. However, on cross-examination he
indicated that the arc produced would not be sufficient to make a
fire. Although they were potential fire sources present, there

1692

is no evidence to predicate a conclusion that these sources were
in such a physical condition as to render an ignition or
explosion reasonably likely to have occurred. Hence, in the
absence of evidence of a reasonably likelihood of an injury
producing event, i.~., a fire or explosion, I conclude that it
has not been establish that these violations are significant and
substantial . I find that a penalty of $2,000 is appropriate for
the violation of Section 75.1101, supra, and a penalty of $500 is
appropriate for the violation of Section 75.400, supra.
VII.

Docket No. KENT 93-615, (Citation No. 9885267).

On February 22, 1993, Roger Pace issued a citation alleging
<; violation of 30 C.F.R. § 70.101 based upon the testing of
respirable dust in the mechanized mining unit which indicated a
concentration of 1.8 milligrams per cubic meter of air (GX 44
AP 17 ) . Respondent did not rebut or impeach the testing
results. Section 70.101, supra provides, in essence, that "When
the respirable dust in the mine atmosphere of the active workings
contains more than 5 percent quartz, the operator shall
continuously maintain the average concentration of respirable
dust in the mine atmosphere during each shift to which each miner
in the active workings is exposed at or below a concentration of
respirable dust, expressed in milligrams per cubic meter of air
as measured with an approved sampling device and in terms of an
equivalent concentration determined in accordance with § 70.206
(Approved sampling devices ; equivalent concentrations), computed
by dividing the percent of quartz into the number 10."
According to Langley, applying this formula to the cited section,
the percentage of quartz found divided into 10 led to a dust
standard of 1.3 milligrams per cubic meter. Cohelia indicated,
in essence, that the cited section had been under the reduced
dust standard of Section 70.101 supra, for 3 or 4 years.
Pursuant to Section 70.101, supra, as applied to the area cited,
once it is revealed that the presence of quartz is more than 5
percent of the respirable dust, the operator shall continuously
maintain quartz below 1.3. Since the concentration of quartz
found on testing exceeded this standard, I find that Respondent
violated Section 70 . 101 supra.
At issue is whether the violation was significant and
substantial. Following the dictates of the commission in
....c....o~n=s.....o-"!'l...i=d=a.....t~i...o.. ,.n. . . .,.C=o=a=l:.. .,--;:C:;.;:o=m:;,o;;p:;.;:a=n-v, a FM~HRC a9 o, a9 9 ( 19 a 6) , I find that
the violation herein, i.~., respirable dust in excess of the

The exhibits admitted in evidence at the hearing on
April 26-28, 1994, will be referred to with the suffix "AP" to
distinguished them from the exhibits admitted at the hearing on
March 1-3, 1994.
17

1693

standards setforth in Section 70.lOl, supra, raises a presumption
that the violation was significant and substantial. Respondent
did not proffer any evidence that miners in the cited section
were not in fact exposed to the hazards posed by excessive
concentration of respirable dust. (See, Consolidation Coal,
supra, at 899). Hence, I find that the presumption that the
violation was significant and substantial has not been rebutted.
I find that a penalty of $5,2 00 is appropriate.
VIII.

Docke t No. KENT 93-482
A.

Citation No. 278747 0 .

During 'an inspection on December 29 , 1992, Langley observed
that in the MMU 001 section, six doors leading to an escapeway
were not marked with any sign. Respondent did not contradict or
impeach the testimony of Langley. Based upon his testimony, I
find that the Respondent did violate Section 75.333(c) (2) as
cited by Langley in the citation that he issued.
Cohelia testified that, j ust prior to the effective date of
Section 75.333(c) (2) he had ordered 500 signs, and installed
them. He indicated that sometime subsequent to November 19,
1992, he placed another order for the signs. He indicated that,
prior to the promulgation of the regulation at issue, there was
some dispute as to where the signs were to be placed. He said
that at one time he was told that arrows were needed along with a
sign indicating "man door", but that later he was told that only
arrows were needed. Nick Wright, a crew leader who was with the
inspector on December 29, indicated that the doors at issue were
readily observable, and that more signs had been ordered. Based
on the testimony of Respondents' witnesses, I find that
Respondent's negligence is mitigated somewhat. I find that a
penalty of $100 is appropriate.
B.

Citation No. 2787471

On December 29, 1992, Langley cited Respondent f~r being in
violation of its ventilation plan which requires a water spray at
both bridge conveyors with a minimum pressure of 50 psi.
According to Langley, the MMU 001 section was producing coal at
the time. A continuous miner was cutting coal, and dumping it on
a bridge conveyor ("bridge"). lje observed that the water spray
was not operating at this bridge. Respondent has not
contradicted or impeached. this testimony. On the basis of
Langley's testimony, I find that Respondent was in violation of
its ventilation plan, and hence it did violate Section
75.370(a) (1), supra.

1694

The continuous miner at issue was equipped with a scrubber
to control dust. In addition, the miner was equipped with
approximately 30 water sprays to control dust. These were
operating at 140 psi which exceeds the ventilation plan
requirement of 100 psi. The operator of the bridge was located
in intake air approximately 5 feet outby the spray.
Also, in
the entry at issue, dust produced at the face from the mining
process is vented down a return entry (located to the left,
looking inby, of the entry in question). The velocity of the air
at the face was more than required. Within this context, I
conclude that the violation was not significant and substanti al.
(See, U.S. Steel).
The lack of functioning sprays on the bridge was apparent.
However, there is no evidence as to how long this condition had
been in existence before it was cited by Langley. In this
connection, Nick Wright, who accompanied Langley, testified that
when he and Langley first came on the section and went to the
face, no coal was being produced. I find that a penalty of $300
is appropriate.

c.

Citation ·No. 2787473

According to Langley, on December 30, 1992 in the No. 1
entry in the 002 section 9 or 10 cuts, 20 feet wide and
approximately 52 to 60 feet long, had been cut into in a section
that had already been pillared out. He indicated that Respondent
should have had a plan showing how water was going to be pumped
out of the pillared area. Also, there should have been a plan
allowing for drilling into the area of the cuts. He indicated
that Cohelia told him that they did not have a plan. Cohelia did
not rebut or contradict Langley's testimony . Langley issued a
citation alleging a violation of 30 C.F.R. § 75.389(a) (1) which
requires that an operator shall develop and follow a plan for
mining into areas penetrated by bore holes. Based on the
testimony of Langley I find that Respondent did violate Section
75.389(a) (1).
Cohelia testified that it was unclear to him what MSHA
wanted an operator 'to place in a plan, as the mandatory standard
was relatively new, having been promulgated on May 15, 1992. 18
Cohelia testified that he attended an MSHA question and answer
session on the plan. He said that the officials present did not
answers questions regarding what had to be placed in the plan.
They said these officials told him that they would get back to

18

In this connection Langley indicated that compliance with
this section was extended to November 16, 1992.

1695

him, but they did not get back to him before the citation at
issue was issued. I thus find that Respondent's negligence
herein was very low, and assess a penalty of $10.

o.

Citation No. 3380767

On March 19, 1992, Johnnie Smith, an MSHA inspector
inspected Respondent's Mine No. 6. He observed a personnel
carrier. This is a self-powered vehicle that travel.a on rails.
It is used to transport two miners under ground. The vehicle was
equipped with two headlight bulbs at one end, and one bulb at the
other end . None of these headlight bulbs worked. He· issued a
safeguard requiring as follows: "All self-propelled trackmounted personnel vehicle be equipped with headlights or its
equivalent" (sic). He indicated that he issued the safeguard to
provide for the observation of hazards such as the loose shale
roof, and the high voltage cable that was hung approximately 6
feet from the bottom rail. He indicated that the mine had a
history of the floor rolling and pitching. He was concerned that
if a vehicle broke down in a dip, and did not have any
headlights, another vehicle travelling on same track could hit
it. He also was concerned with the need to observe the loose
shale roof to determine whether it needed scaling. He indicated
that the height of the mine was approximately 4 feet. I find
that the safeguard was properly written, and validly issued.
On January ll, 1993, Wilson inspected the same mine. He
observed a self-propelled track mounted personnel carrier that
did not have any headlights on one end of the vehicle. This side
of the vehicle is the front-end when the vehicle travels outby.
Based on the testimony of Wilson that was not contradicted or
·rebutted, I conclude that Respondent did violate the safeguard,
and hence Respondent did violate Section 75.l403-6(a)(2).
Wilson indicated that the shale roof was loose. 19 In
essence, he stated that he had , observed it falling out between
the roof bolts. He said that the mine floor was uneven and there
was swags throughout. Also he noted that the tracks were
slippery, and there was foot traffic in the area. He . said that
there was close clearance of the vehicle in the area .where there
was cr.ibbing. He was concerned that, in the absence of a
headlight, i:t would not have been possible to clos.e ly observe the
roof conditions from the carrier. when travelling outby. He
opined that a proper determination could not have been made as to
whether scaling was necessary. Langley expressed his concern

19

Wri9ht indicated that the roof needs to be scaled
regularly.

1696

that in the absence of headlights, the vehicle in question could
have collided with another vehicle travelling on the same track,
inasmuch as operators customarily signals each other with
headlights. Also, he indicated that it would be harder for
pedestrians to see the vehicle, if it did not have any
headlights.
Wright who was with the inspector, indicated that he did not
have any problems seeing when he traveled outby in the carrier in
question. Neither Wright, nor Michael E. Osborne, who have
worked in the cited area for approximately 3 years, were aware of
anyone being hit by roof falling on a carrier. Osborne opined
that in the absence of a headlight, it is still possible to see .
Cohelia indicated that in the absence of headlights, the operator
of the vehicle can signal to an oncoming vehicle with bells, or
with his cap light. In addition, he indicated that it is
possible to hear the vehicle from a long distance. Also, Wilson
indicated the area was well rock dusted which increases
illumination.
I accept the . testimony proffered by Wilson regarding the
roof and floor conditions in the entry in question. In the
context of this testimony, and considering the hazards associated
with the lack of headlights, I find that the violation was
significant and substantial. (See, U.S. Steel, supra). I find
that a penalty of $900 is appropriate.
IX.

Docket No. KENT 93-918 (Citation No. 4257585).
A.

Citation No. 4257585

On June 7, 1993, inspector Roger Pace inspected Respondent's
No. 7 mine . He observed a total of 13 employees travelling into
the mine on two man-trips . He said that these employees were not
using safety· glasses. He indicated that the man-trip is open on
the top. According to Pace, the slate roof continually scales
and falls. He opined that it was likely for a person in the open
man-trip to have been hit by falling particles from the roof. He
said that some of the very thin scales that fall off the roof
could cause an eye injury resulting in the loss of an eye. Pace
issued a citation alleging a violation of 30 C~F.R. 75.1720(a),
which in essence provides miners are required to wear faceshields or goggles "· •• when other hazards to the eyes exist
from flying particles. "'
Allen Johnson, who has been the mine foreman at the subject
mine since September 1990, indicated that he is not aware of any
eye injuries caused by failure to wear safety glasses.

1697

Based on the testimony of Pace that was not contradicted or
rebutted, I find that the miners were riding in a open man-trip
without wearing safety goggles. I also find that they were
subjected to a hazard of being hit in the eyes by scales falling
off the roof. I thus conclude that it has been established that
Respondent violated Section 75.1720(a) .
Pace opined that, in essence, because of the scales
continually falling from the roof, a miner in the open man-trip
not wearing glasses could be hit in an eye by these scales. I
conclude that such an injury was reasonably likely to have
occurred. I conclude that the violation was significant and
substantial.
According to Pace, the fact that 13 employees were not
wearing safety goggles was readily apparent. Johnson indicated
that if he had observed the miners without wearing goggles, he
would have been reminded them to wear glasses. In this
connection, he indicated that only three of the miners in the
man-trips could not produce their glasses . He said that glasses
are issued to all miners, and r~placements are available. At the
time the citation was issued neither man-trip provided a
supervisor. Cohelia indicated that in the annual training,
miners are told of the importance of wearing glasses. In these
circumstances, I conclude that the violation herein resulted from
only a low degree of negligence on the part of Respondent.
However an eye injury as a result of the violation .herein, is of
a high level of gravity. I find that a penalty of $350 is
appropriate .
B.

Citation No. 4257457

According to Langley, on June 15, 1993, he observed an
exposed pinch-point on the "D" belt head drive roller. He
indicated that the 2 foot diameter roller was 3 feet above the
ground, and that a guard covered only part of the roller.
According to Langley, the belt was in operation. He opined that
due to the inadequate guard, a person's arm could get caught in
the pinch-point. He indicated that the unguarded roller was on
the narrow side of the belt. He opined that persons are required
to work on the narrow side in order to rock dust the belt, and to
service the head drive. He estimated that there was
approximately 3 to 4 feet between the roller and the wall on the
narrow side. He said that the roller was turning at high
revolution per minute. He explained that a person could fall on
the pinch point, or his clothing could get caught on the pins
that stick out of the belt. He issued a citation alleging a
violation of 30 C.F . R. § 75 . 1722(a) supra.

1698

Johnson, who was with the inspector, testified that it is
normal practice for persons to walk on the wide side. ' He
explained that normally persons toss rock dust under the roller
from the wide side to the narrow side. He indicated that miners
shovel from the wide side, as there is no room on the narrow
side. He also indicated that the rollers on the narrow side are
serviced from the wide side . He said that the mine floor in the
area had only some irregularity caused by the continuous miner,
and he did not recall seeing any stumbling hazards. He also
indicated that he has been working in the mine since September
1990, and no one has slipped or fallen on the narrow side of the
belt and gotten caught in the b~lt.
I find, based upon the testimony of Langley, that because
the pinch point of the roller was exposed, that a person may have
inadvertently contacted the pinch point, and an injury might have
resulted. Thus, I find that it has been established that
Respondent did violate Section 75.1722{a).
However, I find that due to the absence of any significant
stumbling hazard in the area, and the relevantly low height of
the exposed pinch point, it has not been established that the
violation was significant and substantial. I find that a penalty
of $100 is appropriate.

c.

Citation No. 4257459

According to Langley, on June 15, 1993 he observed a belt
starting box for the "D" belt. He indicated that a cable
supplying power to the starting box entered the box through a
round hole. He indicated that the box was metal, and there was
nothing between the cable and the hole. He said that the outer
surface of the cable was skinned back at the point where the
cable entered the box .
He said that the leads were resting on
the metal part of the hole. Langley issued a citation alleging a
violation of 30 C.F.R. § 75.515 which provides as follows:
"Cables shall enter metal frames of motors, slice boxes, and
electric compartments only through proper fittings. When
insulated wires other than cables pass through metal fra~es, the
holes shall be substantially bushed with insulating bushings."
(Emphasis added . )
Johnson, who was with the inspector testified that at the
point where the cable entered the metal hole, it was completely
insulated. However, there was no contradiction or impeachment of
the inspector's testimony that there were not any improper
fittings at the point where the cable entered the box.
Accordingly, I find that Respondent did violate Section 75.515
supra .

1699

Langley indicated that the belt drive was only 2 to 3 feet
away. He opined that vibration from the belt drive could cause
the thin metal2 0 of the box to cut into the leads causing the
box to become energized. Should this occur, and should a person
then come in contact with the box, an electrical shock, burns, or
death could result. He termed the condition obvious.
According to Johnson, at the point that the cable entered
the hole, it was covered with a thick rubber outer insulation
which he esti'mated as being between a quarter and half inch
thick.
Wilson opined that contactors inside the box open and close,
causing vibration. However, neither Wilson nor Langley testified
that they observed or felt any vibration in the starter box. Nor
is there any other evidence in the record that the starter box
actually vibrated. There is insufficient evidence in the record
to base a finding that the box vibrated. 21 Considering all the
above, I find that the violation was not significant and
substantial. I find that a penalty of $200 is appropriate.
X.

Docket No. · !{ENT 93-884
A.

citation No. 3835998

on June 28, 1993, MSHA inspector Elmer Thomas, inspected
Respondent's No. 7 mine. He asked the operator of a John Deer
front-end loader where the fire extinguisher was located.
According to Thomas, the operator looked, "and there wasn't one."
(Tr. 353, April 27, 1994). Thomas issued a citation alleging a
violation of 30 C.F.R. § 77.ll09(c) (1) which provides that frontend loaders shall be equipped with at least one portable fire
extinguisher. Respondent did not contradict or impeach the
testimony of Thomas. Accordingly, based upon Thomas' testimony,
I find that Respondent did violate Section 77.ll09(c)(l), supra.

20

Langley indicated that the edge of the hole through which
the cable entered the box was approximately the thickness of a
dime ·.
21

Since I find that there is insufficient evidence that the
box vibrates, the case at bar is distinguished from U.S. Steel
Mining Corporation, 7 FMSHRC 327 (1985) relied on by Petitioner.
In u.s. Steel, supra, the Commission's finding of a violation
therein of Section 75.515, supra, was based on the fact, inter
~' that the pump through which the cited wire passed vibrated,
and the vibration was "constant" (U.S. steel, supra, at 329).

1700

Thomas opined that the violation was significant and
substantial. He said that the front-end loader was in operation
when he observed it loading a truck. He said that there were
battery wires in the same area as oil hoses and the . brake lines.
He indicated that engine and hydraulic oil, and brake fluid, are
all combustible. He concluded that in the case of a fire,
considering the absence of a fire extinguisher, an accident
producing injury was reasonably likely to have occurred.
I find that it has not been established that an injury
producing event i.~., a fire was reasonably likely to have
occurred. The record establishes the presence of only potential
fire ignition sources. I thus find that it has not been
established that the violation was significant and substantial.
(See, U.S. Steel, supra).
According to Thomas, the operator of the front-end loader
told him that he did not check to see if it contained an
extinguisher. I thus find that Respondent was moderately
negligent regarding this violation. I find that a penalty of
$400 is appropriate.
B.

Order No. 4238749

On April 20, 1993, Wilson inspected the 707 section of
Respondent's No. 7 Mine. At the time, no coal was being
produced. Four miners, Jim Br~ssfield, Greg Perkins,
Ovie Penix, and Corneilus Simpson were present, repairing a
bolter. Simpson and Penix were certified to perform preshift
examinations, however, they did not perform any preshift
examination that morning. Nor did anyone else perform a preshift
examination of the area where the men were working. Wilson
issued an Order alleging a violation of 30 C.F.R. § 75.360{a)
which provides, as pertinent, as follows: "Within 3 hours
preceding the beginning of any shift and before anyone on the
oncoming shift, • • • enters any underground area of the mine, a
certified person designated by the operator shall make a preshift
examination." The record establishes that there was no
examination made prior to the time Brassfield, Perkins, Penix and
Simpson went underground . Accordingly, I find Respondent
violated Section 75.360(a), supra.
According to Wilson, since there was no pre-shift
examination, the miners who were· in the section were exposed to
unknown hazards such as the possibility of the existence of
methane, the possible lack of oxygen, and adverse roof
conditions. In this connection, Langley testified that the roof
in the mine has a tendency to fall, and several roof falls have
occurred.

1701

Right after Wilson cited Respondent, the area ·at issue was
inspected by Allen Johnson, and no hazardous conditions were
observed. No facts have been adduced to predicate a finding that
an injury producing event was reasonably likely to have occurred
as a result of the failure to conduct the pre-shift examination.
Within the context of this record, I conclude that it has not
been established that the violation was significant and
substantial. 22
Simpson testified that he was not instructed to do any preshift examination. He indicated that if he enters an area of the
mine by himself, he then pre-shifts that area. In this instance,
he indicated that because he and the rest of the crew were late
entering the mine, he thought that Allen Johnson had done the
pre-shift examination . Johnson testified that since Simpson was
certified to make inspections, he assumed that Simpson had done
the pre-shift examination that morning. Johnson testified that
had he known that the inspection was not done, he would have done
it himself . Within this framework, I find that Respondent's
conduct herein .was more than ordinary negligence, and constituted
aggravated conduct. (See, Emery, supra ) ). I find that a penalty
of $3,000 is appropriate.
XI.

Settlements

At the hearings, motions were made to approve
settlements that the parties agreed to regarding the following
citations/ orders: 4241521, 3000263, 2787458, 4257455, 4257456,
4257922, 4257926, 9885301, 4257454, 4257938, 3835999, 4248402,
2793750, 2793751, 2793752, 4239200, 4257401, 3000239.
A
reduction in penalty from $19,724 to $9168 is proposed. I have
considered the representations and documentation submitted in
these cases, and I conclude that the proffered settlements are
appropriate under the criteria set forth in Section llO(i) of the
Act.

22

I chose not to follow Emerald Mines Corp., 7 FMSHRC 437,
(March 25, 1985) (Judge Broderick), relied on by Petitioner. The
key issue for resolution is whether Petitioner established that
an injury producing event was reasonably likely to have occurred
as a result of the failure to examine the area. There are no
facts in the record to base a finding that Petitioner met this
burden.

1702

The motions for approval of the settlements are GRANTED.
ORDER

It is ordered as follows:
1.

The following citations/ orders are to be amended to
indicated violations. They are not significant and
substantial: 4241535, 4238729, 4241532, 3164651,
3164652, 3164653, 3~64716, 3164717, 2787471, 4257457,
4257459, 3835998, and 4238749.

2.

Order No. 3164717 be amended to indicate that the
violation cited was not the result of the Operator's
unwarrantable failure.

3.

Citation Numbers 4241524 and 4257589 (vacated by
Petitioner) are to be DISMISSED.

4.

Respondent shall, within 30 days of this decision, pay
a total civil penalty of $40,338 •

.£ . ~
Avram Weisberger
Administrative Law Judge
(703) 756-6215

Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Susan c. Lawson, Esq., Buttermore, TUrner, Lawson & Boggs,
P.s.c., 111 s. First street, P.O. Box 935, Harlan, KY 40831
(Certified Mail)
/efw

170 3

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

August 5, 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,

:

TEMPORARY REINSTATEMENT
PROCEEDINGS

on behalf of LESLIE COLLINS,
Complainant

Docket No. SE 94-474-DM
SE MD 94-05

on behalf of LAWRENCE L. DUKES,
Complainant

Docket No. SE 94-475-DM
SE MD 94-0 6
:

on behalf of RAYMOND SAPP,
·complainant
on behalf of DAVID M. WILSON,
Complainant

Docket No. SE 94-477-DM
SE MD 94-09

.

v.

Docket No . SE 94-476-DM
SE MD 94-08

Plant No. 1
Mine ID 09-00111-RG2

REMOVAL & ABATEMENT
TECHNOLOGIES, INC.,
Respondent
DECISION
Appearances:

Before:

James Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia
for the secretary of Labor;
Stephen E. Shepard, Esq., Augusta, Georgia,
for the Respondent .

Judge Melick

These consolidated cases are . before me upon the request for
hearing filed by Removal & Abatement Technologies, Inc., (RATI)
under section lOS(c) (2) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801 et. seq., the "Act" and under Commission
Rule 45(c), 29 C.F.R. 2700.45(c), to contest the Secretary of

1704

Labor's application for Temporary Reinstatement on behalf of
Leslie Collins, Lawrence L. Dukes, Raymond Sapp and David M.
Wilson . 1
·
The proceedings are governed by Commission Rule 45(d), 29
C.F.R. § 2700.45(d). That rule provides as follows:
"The scope of a hearing on an application for temporary
reinstatement is limited to a determination as to whether
the miners' complaint was frivolously brought. The burden
of proof shall be upon the Secretary to establish that the
complaint was not frivolously brought. In support of his
application for temporary reinstatement, the Secretary may
limit his presentation to the testimony of the complainant.
The respondent shall have an opportunity to cross-examine
any witnesses called by the Secretary and may present
testimony and documentary evidence in support of its
position that the complaint was frivolously brought."
This scheme of procedural protections, including the
statutory standard of proof provided by section 105(c) (2) of the
Act, to an employer in temporary reinstatement proceedings far
exceeds the minimum requirements of due process as articulated by
the Supreme Court in Brock v. Roadway Express, Inc., 481 U.S. 252
(1087). See JlIB v. FMSHRC, 920 F.2d 738 (11th Cir . 1990).

1

The substantive statutory framework for discrimination
complaints is set forth in section 105(c) (1) of the Act. That
section provides as follows:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against
or otherwise interfere with the exercise of the statutory rights
of any miner, representative of miners or applicant for
·
employment in any coal or other mine subject to this Act because
such miner, representative of miners or applicant for employment
has filed or made a complaint under or related to this Act,
including a complaint notifying .the operator or the operator's
agent, or the representative of 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 has instituted or caused to be
instituted any proceeding under or related to this Act or has
testified or is about to testify in any such proceeding, or
because of the exercise by such miner, representative of miners
or applicant for employment on behalf of himself or others of any
statutory right afforded by this Act.

1705

The standard of review in these proceedings is therefore
entirely different from that applicable to a trial ·on the merits
of the complaint. As stated by the court in JWR, supra. at
page 747.
The legislative history of the Act defines the 'not
frivolously brought standard' as indicating whether a
miner's complaint appears to have merit' - an interpretation
that is strikingly similar to a reasonable cause standard.
[Citation omitted]. In a similar context involving the
propriety of agency actions seeking temporary relief, the
former 5th Circuit construed the 'reasonable cause to
believe' standard as meaning whether an agency's 'theories
of law and fact are not insubstantial or frivolous." See
Boire v . Pilot Freight Carriers. Inc., 515 F.2d 1185, 1189
(5th Cir 1975) cert denied, 426 U.S. 934, 96 s. ct . 2646, 49
L.Ed 2d 385 (1976).
Jurisdiction
As a preli.~inary matter, respondent maintains that the
Secretary is without jurisdiction under the Act to enforce the
temporary reinstatement provisions of section 105(c) in the cases
at bar. It is undisputed, however, that during relevant times
RATI was an independent contractor (under verbal contract with
Dublin Industries which in turn was under contract with the mine
operator of the Kaolin processing facility at issue, ECC
International) performing the services of removing asbestos
roofing panels from the filter building at the subject plant in
Sandersvillej Georgia.
It is further undisputed that ECC International (ECCI) then
operated Kaolin clay mines in the vicinity of this processing
facility and utilized the subject facility in the work of
preparing the Kaolin clay for various commercial uses. In
particular, the filter building at issue was used to separate
impurities from the Kaolin mine product. It is further
undisputed that the subject Kaolin processing plant has been
operated by ECCI under the jurisdiction of the Act and has
accordingly been assigned a mine identification number by the
Department of Labor's Mine Safety and Health Administration
(MSHA). There should be no ques~ion that Kaolin clay is a
mineral since the term "embraces all inprganic and organic
susbtances [sic] that are extracted from the earth for use by
man". A Dictionary of ·Mining. Mineral. and Related Terms, U. S.
Department of the Interior, 1968 .
Under section 3(h)(l) of the Act, "coal or other mine"
includes "lands ••• . structures, facilities, equipment ••• used
in, or to be used in, the milling of such minerals . [i.e.
extracted in non-liquid form] or the work of preparing coal or
other minerals •• • • "Under section 3(d) of the Act the term

1706

i;

"operator" is defined as "any owner, lessee, or other person who
operates, controls, or supervises a coal or other mine or any
independent contractor performing services or construction at
such mine . . • "
Respondent appears to claim that its contacts with the
mining industry were so minimal as to exclude its activities as
an independent contractor from jurisdiction under the Act. In
this regard John Hewitt, Secretary-Treasurer of RATI testified
that its work at the ECCI processing plant on November 30, 1993
represented less than one half of one percent of its total man
hours of work. It also appears that RAT! had worked for 3 days
at the ECCI Kaolin clay processing facility up to the time of the
Complainants' discharge and was then working its fourth day.
There is, however, no limitation set forth in the Act
restricting jurisdiction based upon the frequency or duration of
an independent contractor's mine activities. Indeed, in Otis
Elevator Company v. Secretary of . Labor and FMSHRC, 921 F.2d 1285
(D.C. Cir. 1990), the court held that in section 3(d) of the Act
the "phrase 'any independent contractor performing services ...
at [a] mine' means just that". The court "did not confront ••.
whether there is any point at which an independent contractor's
contact with a mine is so infrequent, or de minimis, that it
would be difficult to conclude that services were being performed
since (Otis] conceded that it was performing limited but
necessary services at the mine" (921 F.2d at 1290 n. 3). Otis
had a contract to service the shaft elevators at a mine.
In Lang Brothers. Inc., 14 FMSHRC 413 (1991)• Lang Brothers
had an annual contract to clean and plug gas well sites for
Consolidatiot) Coal Company "to ensure that natural gas does not
seep through the well into a mining area and create a safety
hazard." 14 FMSHRC 414. In holding that Lang Brothers was an
"operator,": the Commission stated:
Lang's work at the well sites ..• was integrally
related to Consol's extraction of coal. Cf. Carolina
Stalite, 734 F.2d at 1551. The sole purpose of Lang's
cleaning and plugging contract with Consol was to
facilitate Consol's extraction of underground coal. 14
FMSHRC at 418.
The Commission did not adopt the restrictive interpretation of
Old Dominion Power Company v. Secretary of Labor and FMSHRC, 772
F.2d 92 (4th Cir. 1985) (implying that an independent contractor
must have a "continuing presence at the mine" to be an ."operator"
under the Act). Rather, it held that the de minimis standard may
be measured by the significance of the contractor's presence at
the mine, as well as the duration or frequency of its presence.
The Commission noted that even though Lang's actual presence at

1707

the mine to clean and plug wells was for a short period its
activity was an integral part of Consol's extraction process.
In Bulk Transportation Services, Inc., 13 FMSHRC 1354
(1991), the contractor had a contract with a coal mine operator
to transport coal from the mine to a generating station 40 miles
away. The Commission noted that Bulk had a substantial pres ence
at the mine -- "[T]here is a constant flow of truck drivers in
and out •• • four to five days a week" -- 13 FMSHRC at 1359 -- but
it focused on the significance of Bulk's activities to the
extraction process in determining that Bulk was an operator
subject to the Mine Act. "Given the undisputed fact that Bulk
was Beth Energy's exclusive coal hauler between Mine No. 33 and
the generating station, and given the quantities of coal hauled
by Bulk, we agree with the judge that Bulk's servi ces in hauling
coal were essential and closely related to the extraction
process." 13 FMSHRC at 1359.
While, as noted, the Act does not, on its face, condition
the jurisdiction of independent contractors upon their relation
to the extraction process or upon the duration or frequency of
their contact with a mine, even _assuming, arguendo, that the
present Commission nevertheless would require evaluation of such
factors, the activities of respondent herein would meet those
tests. It is undisputed that respondent herein was at the ECCI
preparation plant facility for four consecutive days on a project
that was as of that date yet incomplete. During that period it
maintained a work crew consisting of a foreman and at least six
men working full time at the removal of an asbestos laden roof of
the filter building.
It is undisputed, moreover, that these roof panels had
deteriorated and presumably, therefore, constituted a hazard to
the ECCI miners working in the filter plant from both asbestos
fibers and the possibility of injury from such deteriorated roof
panels falling. It is also clear that the processing that
occurred within the subject filter building was essential to the
commercial use of the Kaolin clay product. Within the filter
building and beneath the deteriorating roof were centrifuge
machines, rotary drum filters and sand grinders with motors and
gears. It may reasonably be inferred that RATI's presence at the
subject mine using its expertise in handling asbestos to remove
the deteriorating asbestos panels prevented the interruption of
the processing of the mine product. The presence of RATI was,
therefore, significant and r 'e lated to the processing of a mineral
and its continual presence for at least four consecutive days was
of such duration as to warrant a finding that such presence meets
the various tests previously utilized by the Commission. Under
the circumstances, the jurisdictional prerequisites described in
prior Commission decisions have been met in these cases. In any
event, the test of ·jurisdiction in these Temporary Reinstatement
Proceedings, as with other issues presented in these cases, is

1 708

whether there is "reasonable cause to believe" that the Secretary
has jurisdiction under the Act. That standard is clearly met
herein.
The Merits
Under its contract, RATI was to remove asbestos-laden roof
panels varying in size from 5 1 to 9 feet long by 3 to 4 feet wide
from the ECCI filter building. The subject roof was 40 feet
above ground at the eves rising to 45 to 50 feet above ground at
its peak. Beneath the roof were centrifuge machines, rotary drum
filters, and sand grinders with motors and gears on top. Where
there was no machinery, there was bare concrete floor. It is
undisputed that the roof panels were deteriorated· and unsafe to
walk upon and as the panels were removed there were increasing
areas exposing open space between support beams.
RATI commenced work at the subject plant on November 30,
1993. On December 3, 1993 a six man crew began work around 7:00
a.m. supervised by Foreman Rick Greene . The panel fasteners had,
for the most part, .already been removed during the previous two
days and the work of removing the panels was to begin at this
time. Bennie Bryan, ECCI construction supervisor, had
previously supplied safety harnesses, fall arresters (with 20
foot retractable cables attached) and 250 to 300 feet of steel
safety cable with turnbuckles to Glen Shriver of Dublin
Industries for the use of the RATI employees working on the roof.
According to Bryan, RATI Foreman Rick Greene was aware that these
safety devices had been provided. Bryan testified that the steel
cable, which was the responsibility of Dublin Industries to
install, was not used and necessary anchor points were never
welded into place .
Bryan testified that on one occasion early in the morning of
December 3 he saw Foreman Greene on the roof without his safety
belt attached and warned him about working without being secured.
He then also observed two of work crew on the roof wearing their
safety belts but he could not then tell whether those belts had
been properly ~ied off.
Complainant Lawrence Dukes testified that he had worked for
RATI for 6 years prior to December 3. He had prior experience
working on roofs and working with safety belts. Using
photographs of the work scene taken on December 4 Dukes described
the area. The area depicted in the photograph identified as
Government Exhibit 3 shows the roof area with some roof panels
still in place in the left side of the photograph, an area with
some panels removed in the center of the photograph and, to the
right, what is known as a "walkboard". Dukes described the scene
depicted in the photograph identified as Government Exhibit 4 as
the end of one of the walkboards not tied down. According to

1 709

Dukes, this condition also existed at the time of the crew's work
refusal on December 3.
Dukes testified that on the first day at the ECCI job site
on Novembe~ 30 the RATI employees received safety training and
unloaded their work materials but performed no work on the roof.
On December 1 and 2 they worked on the roof but only removing the
nut and bolt fasteners on the panels. In performing this work
they were able to attach their safety belts with their threefoot-long lanyards onto a walkboard placed parallel with the
roof. The short lanyards did not interfere with this work.
According to Dukes, they began removing the panels on
December 3 . Wilson and Walker initially removed the panels and
passed those panels to Hayes and Sapp. Hayes and Sapp would then
walk to the peak of the roof with the panels, down the other side
and hand the panels to Dukes who then lowered them to the ground
with a rope adjacent to the catwalk ladder. {See Government
Exhibit 6). According to Dukes, only two safety harnesses were
then made available to the six crewmen. These harnesses were
distinguishable from the safety belts used by the remainder of
the crew in' that they offered greater support and were provided
with fall arresters attached to a retractable 20 foot cable.
These fall arresters work similar to an automobile seat belt in
that upon a .sudden movement or fall the arrester grabs hold and
prevents further movement while at the same time provides a
retractable cable enabling work up to 20 feet from the tie off
point. These harnesses were, provided to Wilson and Walker
because, according to Foreman Rick Greene, they were performing
the most dangerous work in removing the panels while exposed to
the open roof area. Because of Wilson's large size he was,
however, unable to use the full harness and, therefore, used only
his safety belt with a fall arrester attached. According to
Wilson he later transferred this harness and the fall arrester to
"Nathaniel" {presumably Nathaniel Dukes) who later substituted
for Wilson in the particularly dangerous work
removing the
panels.

of

At that time Wilson, along with the other three crew members
on the roof were dragging the panels to the roof peak and down
the other side to be lowered to the ground. According to their
testimony, their safety belts and short three-foot-long lanyards
could not be tied off to anything that would permit them to
continue performing their assigned work. According to the
complainants the only thing they could tie their lanyards into
was the walkboards but with only a three foot lanyard it would
then be impossible to transport the panels in accordance with
their assigned duties. According to Dukes, they would be "locked
down" onto the walkboard and would be unable to move except for
short distances and could not handle the large panels. Since
there was nothing for those employees to tie onto, they were
walking about the roof area transporting the panels without their

1710

safety belts secured. They were, accordingly, exposed to the
hazard of falling through the open space where the panels had
been removed, through one of the deterio~ated panels, or off the
edge of the roof.
According to Dukes, following the removal of some of the
panels the work crew returned to the ground for their 9:00 a.m.
break. At that time they told Foreman Rick Greene that it was
unsafe to work on the roof without the steel cable {earlier
provided by Bryan but not installed} to hook onto. Around this
time RAT! field superintendent James Bellamy arrived at the
worksite and was told by all of the work crew that the roof was
unsafe since there was no way to tie off their safety lines.
According to Dukes, Bellamy went onto the roof himself and
returned telling the crew that the roof was safe and that if we
wanted our jobs "you better get your asses back onto the roof".
When the crew continued to refuse to return to the roof, Bellamy
reportedly stated that "if you don't go back on the roof, you're
quitting". When the crew continued their work refusal they
returned with Bellamy to the RAT! offices in Augusta to meet with
company president Ernest Half. Apparently not then able to meet
with Hall they were told to return later that day to pick up
their checks.
The crew later returned to Hall's offices around 4:00 p.m.
and were handed. their checks in an envelope, which also contained
termination slips. Apparently a heated meeting thereafter
followed between the work crew and Bellamy and Hall. They wanted
to know why they were terminated. According to Dukes they told
Hall that they had no way to tie off with their safety belts.
Hall apparently responded that they had what they needed to work
with and that they were being dismissed for refusing to do their
job. Dukes recalled that during this meeting Carl Walker, one of
the work crew, asked for more pay and Hall responded that he had
already promised him more pay. According to Dukes, there was no
other discussion about pay.
Dukes has had no disciplinary problems in his previous 6
years with the company. He had previously worked on roofs for
RAT! but been provided with a tie-off similar to the steel cable
which was available but not used in this case. Dukes further
testified that the white rope appearing in photographs Government
Exhibits 7 and 8 could not safely be used to tie onto because it
was not strong enough. It was used only as a device to warn
people from accidently walking off the edge of the roof.
According to ECCI construction supervisor Bennie Bryan, the rope
was only one-half inch to five eighths inch thick.
Bryan corroborated the testimony of Dukes in essential
respects. Bryan testified that on the morning of December 3 all
four of the complainants reported to him that it was unsafe to
work "up there on the roof" and that Rick Greene would not do

1711

anything about it. Bryan further testified that one of the group
approached him around 8:35 that morning and also told him that
they were having problems and that it was unsafe to work on the
roof. He had no prior complaints from the crew. Following these
complaints Bryan approached RATI Foreman Rick Greene. Greene
responded that there was nothing unsafe and that the only thing
they wanted was more money. Subsequently, after Greene met with
his field superintendent James Bellamy, Greene told Bryan that he
was taking his crew back to Augusta and that he was having
trouble with them. It was Bryan's opinion that the steel cable
should have been used to enable the work crew to tie onto. It
was the "proper way to do it".
Another one of the complainants, David Wilson, testified
that he had worked for RATI for over three years as an asbestos
worker removing asbestos and roofing materials. He corroborated
the testimony of Dukes and Bryan in essential respects. He
clarified that on December 1 and 2 while they were removing the
bolt fasteners from the panels they used three walkboards
vertically up the roof and one walkboard horizontally across the
roof. With this system they could slide along the horizontal
walkboard with their safety belts attached. Wilson further
explained that on December 3 as they began removing the panels
they had only one walkboard in a vertical position as depicted in
photograph Government Exhibit 3. Initially Wilson had a fall
arrester attached to his safety belt while he was lifting the
panels and passing them to the next man on the walkboard. Later
he gave his arrester to another crewman who was prying the panels
loose and Wilson was then dragging panels up the roof as they
were handed to him and passing them on to Sapp and Collins on the
other side of the roof. At that time there was nothing onto
which to attach his safety belt. Likewise when he passed the
panels over to Sapp and Collins on the other side they had
nothing to tie onto. Wilson further testified that during the
course of their work that morning he stepped on an unsecured
walkboard which moved, causing Sapp to almost fall. According to
Wilson only three of the eight walkboards had been tied down.
According to Wilson, when they returned to the g~ound on
their break, Dukes told Foreman Greene that the roof was unsafe
and asked him that he would appreciate it if they would put the
cable up. In addition, when field superintendent Bellamy showed
up he was told that the roof was unsafe and that they needed the
cable. Bellamy thereafter checked the roof and told the crew
that it looked fine to him. They were told that if they wanted
their jobs to get their "asses" on the roof. Wilson denies that
he had asked for any increased pay. Wilson also corroborates
Dukes that in the meeting at 4:00 p.m. with Hall they told him
t~at "all he had to do was put up the safety cable and the job
would be finished." Wilson had never previously been
disciplined.

1712

Complainant Leslie Collins had worked as an asbestos worker
for RATI for approximately 6 months prior to December 3, 1993.
Collins corroborates the testimony of the previous witnesses in
essential respects and noted that while he was working on the
roof on December 3 he too had nothing to tie his safety belt onto
while he was working. The panels were handed to him by others
and he lowered the panels by rope to the floor below. He also
maintains that Foreman Greene observed him from the ground below
working without being tied off. Collins admits that he had been
suspended by RATI for 30 days in a disciplinary action. He
maintains that he did not ask for more pay .
Complainant Raymond Sapp also corroborates the other
complainants in essential respects. He had worked for three
years as of December 3 for RATI and had never previously been
disciplined. During the morning of December 3 he and Hayes were
carrying the panels to Dukes and Collins. They would walk up the
walkboards with the panels in hand but had nothing to t _i e their
safety belts onto. At one time he almost fell off the building
when another worker stepped on the same unsecured walkboard on
which he was standing. Sapp also maintains that he never asked
for more pay.
I find the testimony of the complainants to be credible.
That testimony is also corroborated in critical respects by the
testimony of ECCI construction supervisor Bennie Bryan and,
indeed, by RATI Foreman Ricky Greene. on the basis of that
testimony and evaluating that testimony under the principles
governing analysis of discrimination cases under the Act I
conclude that the complaints herein were not frivolously brought
and the applications for temporary reinstatement must, therefore,
be granted.
The principles governing analysis of a discrimination
case under the Act are well settled. A miner establishes a prima
facie case of prohibited discrimination by proving that he
engaged in protected activity and that 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, 2797-800 (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 (1981). The operator may rebut the
prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by
protected activity. Pasula, 2 FMSHRC at 2799-800. If the
operator cannot rebut the prima facie case in this manner, it
nevertheless may defenq affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected
activity alone. Pasula, 2 FMSHRC at 2800; Robinette, 3 FMSHRC at

1713

817-18; see also Eastern Assoc, Coal Corp. v. United Castle Coal
Co., 813 F.2~ 639, 642 (4th Cir. 1987).
A miner's refusal to perform work is protected under the
Mine Act if it is based upon a reasonable, good faith belief that
the work involves a hazard. Robinette, 3 FMSHRC at 808-12;
Conatser v~ Red Flame Coal Co. 1, 11 FMSHRC 12, 17 (1989);
see also Simpson v. FMSHRC, 842 F.2d 453, 458 (D.C. Cir. 1988).
In considering whether a miner's fear was reasonable in terms of
a hazard, the perception of the hazard must be viewed from the
mine•s perspective at the time of the work refusal. Secretary of
Labor on behalf of PLratt v. River Hurricane Coal Co., 5 FMSHRC
1529 (1983); Haro v. Magma Copper Co., 4 FMSHRC 1935 (1982). To
be accorded the protection of the Mine Act, the miner need not
objectively prove that an actual hazard existed. Secretary of
Labor on behalf of Hogan & Ventura v. Emerald Mines Corp., 8
FMSHRC 1066 (1986); Secretary of Labor on behalf of Cooley v.
Ottawa Silica Co., 6 FMSHRC 516 (1984).
The Commission has also held that: "Proper communication of
a perceived hazard is an integral component of a protected work
refusal, and responsibility for the communication of a belief in
a hazard underlying a work refusal lies with the miner."
Conatser 11 FMSHRC at 17, citing Dillard Smith v. Reco, Inc., 9
FMSHRC 992, 995-96 (1987). "[T]he communication requirement is
intended to avoid situations in which the operator at the time of
a refusal is forced to divine the miner's motivations for
refusing work." Smith, 9 FMSHRC at 995. The miner's failure to
communicate his safety concern denies the operator an opportunity
to address the perceived danger and, if permitted, would have the
effect of requiring the Commission to presume tha~ the operator
would have done nothing to address the miner's concern. Id.
Thus, a failure to meet the communication requirement may strip a
work refusal of its protection under the Act. Finally, the
Commission has held that the "communication of a safety concern
•must be evaluated not only in terms of the specific words used,
but also in terms of the circumstances within which the words are
used .••• '" Conatser, 11 FMSHRC at 17, quoting Secretary on
behalf of Hogan and Ventura v. Emerald Mines Corp., 8 . FMSHRC
1066, 1074 (1986), aff'd mem., 829 F.2d 31 (3d Circ. 1987).
Within the above framework of law and considering the
credible testimony of t~e Complainants and its corroboration I
find that the Secretary has clearly met his burden of proving
that the four complaints herein were not frivolously brought. In
reaching these conclusions I have not disregarded the argument of
Respondent that the only issue raised by Complainants was one of
money, i.e., that they wanted $1.00 an hour wage increase to
continue working. However, I c~n give this argument but little
weight, not only in light of the credible testimony of the
Complainants themselves but considering the testimony of RATI
Foreman Rick Greene.

1714

'

Greene acknowledged that the Complainants in fact · did raise
with him the issue of dangerous conditions on the roof. Greene
testified that he in fact thereafter went onto the roof himself
to inspect the conditions but concluded that it was not unsafe
and thereafter did nothing to address the complaints. Of course,
if the work refusal was, in fact, based solely on a demand for
higher pay as Respondent argues, there would have been no reason
for Greene to have proceeded back onto the roof to make his own
safety evaluation after the work crew expressed its work refusal.
The Complainants' testimony is significantly corroborated also by
the disinterested testimony of ECCI construction supervisor
Bennie Bryan, to whom the Complainants also raised the issue of
safety and, in conversations with Greene, was told by Greene that
"he was having a problem getting his people to work on top of
roofs because they (workers) thought it was unsafe to work on top
of roofs." (Respondent's Exhibit 1).
ORDER

Removal and Abatements Technologies, Inc. is hereby directed
to immediately reinstate Leslie Collins, Lawrence L. Dukes,
Raymond Sapp and David M. Wilson to the positions that they held
immediately prior to "compensation status" or to a similar
position at the same rate of pay and benefits and with the same,
or equivalent, duties assigned to them.

elick
strative
756-6261

Judge

Distribution:
James B. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Suite 400,
Arlington, VA 22203 (Certified Mail)
Stephen E. Shepard, Attorney at Law, 505 courthouse Lane,
Augusta, GA 30901 (Certified Mail)

\jf

1715

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

AUG 8 1994·
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
WOODRING COMPANY,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 94-84-M
A.C. No. 24-01873-05504

.

Docket No. WEST 94-131-M
A.C No. 24-01873-05505

DECJ:Sl:ON

Appearances:

Kristi Floyd, Esq., Office of the Solicitor, u.
Department of Labor, Denver, Colorado, for
Petitioner;
Mark L. Stermitz, Esq., Warden, Christiansen,
Johnson, & Berg, Kalispell, Montana, for
Respondent.

Before:

Judge Amchan

s.

Overview of the Case
Earl Woodring is th~ sole proprietor of Respondent. He
works intermittently crushing rock at two sites near Kalispell,
Montana, and sells it to his sons, who are in the road
construction business, and a few other people (Tr. 6, 251-52,
293). He generally works alone but in late July, 1993 he hired
-an employee, Joseph Hartley, to assist him in preparations for a
move from his Batavia Lane site to his other work loc~tion on
Blackmore Lane (Tr. 250-56).
On the afternoon of July 27, 1993, MSHA Inspector Ronald
Goldade drove by Respondent's Batavia Lane worksite and noticed
that the crusher was operating (Tr. 199, 307). He returned the
next morning to conduct an inspection. Respondent had to crush a
certain quantity of rock in order to extricate its crusher from
the Batavia site to move it (Tr. 256, 295). Despite working 8
hours on the July 28, Respondent had to continue crushing rock at
the site on July 29 and 30, before it could move its equipment
(Tr. 316).
By the end of the inspection, Goldade had issued Respondent
17 citations, many for failure to guard or adequately guard a
1716

number of pulleys, drive shafts, and pinch points. The issue
with regard to most of these citations is whether there was
sufficient miner exposure to these unguarded or insufficiently
guarded areas to mandate guarding under MSHA standards. MSHA
proposed a civil penalty totalling $1,389 for the alleged
violations. I affirm most of the citations and assess civil
penalties totalling $818.
The individual citations
Citation 4331562 : Inspector Goldade observed the tail
pulley to the crusher feed conveyor system which was completely
unguarded (Tr. 14-15, Exhibits 2a-2c). This pulley was 2 feet
above ground· level and was adjacent to a narrow walkway (Tr. 15,
18). A guard had been in place over the pulley prior to July 28.
Mr. Woodring apparently removed the guard on the morning of July
28 to remove mud and debris from the conveyor and did not replace
it (Tr. 259-60). Mr . Hartley was observed by the inspector in
all areas around the crusher, including near the cited tail
pulley (Tr. 15-16, 210).
Goldade issued citation No. 4331562 to Respondent alleging a
significant and substantial violation of 30 C.F.R. § 56.14112(b).
That standard requires that guards be securely in place while
machinery is operated. Contact with the unguarded pulley was
reasonably likely in that a person could trip or fall on the
rubble in the walkway and touch the pulley while reaching out to
break his fall (Tr. 21). In the event of such an accident, it is
reasonably likely that one would incur a disabling injury to his
finger or hand (Tr. 21). '
The fact that Respondent had guarded this pulley prior to
July 28, suggests that it recognized that guarding was required.
Even if that were not the case, the possibility that an employee
may trip or fall into an unguarded moving machine part is
sufficient to mandate guarding under MSHA standards, even if the
unguarded moving machine part is not in an area in which
employees normally perform work Brighton Sand & Gravel, 13 FMSHRC
127 (ALJ January 1991).
I find that the Secretary has established the violation as
alleged, although it may have been more appropriately cited under
section 56.14107(a), the provision requiring the- guarding of
moving machine parts. I also find that the violation was
significant and substantial ("S&S") .
To establish an "S&S" violation the Secretary must show 1) a
violation of a mandatory safety standard; 2) a discrete safety
hazard; 3) a reasonable likelihood that the hazard contributed to
will result in an injury in the course of continued normal mining
operations; and 4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature, Mathies Coal

1717

Company, 6 FMSHRC l (January 1984); U. s. Steel Mining co •. Inc.,
6 FMSHRC 1573 (July 1984). These elements have been established
with regard to citation No. 4331562 .
I assess a $111 penalty, the same as that proposed by the
Secretary. I conclude that Respondent' s negligence, in failing
to replace a guard when it planned to operate the crusher, and
the gravity of the injury that would likely occur if the
unguarded pulley was contacted, warr ant such a penalty. This
penalty is consistent with the other section llO(i) penalty
criteria. Respondent has stipulated that the tota l proposed
penalty will not compromise its ability to stay in business
(Tr . 5). Woodring's prior history of violations (Exh. P-1), its
size, and good faith in abating the viola tion, do not make such a
penalty inappropriate.
Citation No. 4331563 : On the primary crusher feed
conveyor, Inspector Goldade observed a guard over a pulley and
drive shaft which was hinged on one side and not a ffi xed to the
other side so that it could be lifted up to lubricate the shaft
(Tr. 22-26, 2~3, Exh . 3a, 3b).
The citation was issued pursuant to section 56.14112(b),
which requires guards to be securely in place while machinery is
being operated. I vacate this c i tation because I conclude that
the guard was securely in place. Contact with the drive shaft
could not occur accidently. The moving machine part could be
exposed only if an employee purposely lifted the guard (Tr. 29).
In the past MSHA accepted hinged guards (Tr. 31-32) .
However, its policy changed with regard to such guards due to
injuries incurred by miners moving these guards . MSHA policy
changes are not binding on the Commission or the regulated
community, See e . g., King Knob Coa l Company, 3 FMSHRC 1417
(June 1981) . As the standard does not by its express terms
prohibit hinged guards, and MSHA at one time interpreted its
standard to allow them, a change in this substantive requirement
can only be made through notice and comment rulemaking.
Citation No. 4331569: This citation alleges that the guard
on the under conveyor system on the primary jaw crusher was not
provided with a means to secure the guard in place in that the
guard was constructed with hinges; The last sentence of the
citation states, "The guard provided adequate coverage of the
tail pulley area but must be secured in place during operation."
At hearing the Secretary introduced photographic exhibit P-9
in support of the ,a lleged violation. Inspector Goldade testified
that material build-up had pushed the guard away from the
conveyor frame, exposing the pulley (Tr. 34-36) .
Nothing in the
citation itself, however, indicates that the pulley cited was
exposed. The essence of the violation described in the citation

1 713

is that the guard was of a hinged construction. Given this
apparent discrepancy, I am not persuaded that Exhibit P-9 depicts
the condition described in citation No. 4331S69.
As with citation No. 4331S63, I do not believe that the
Secretary can prohibit the use of a hinged guard under section
S6.14112(b) without rulemaking. I, therefore, vacate citation
No. 4331S69.
Citation No. 4331564: Inspector Goldade observed the bull
wheel drive to the jaw crusher in motion (Tr. 39-42). Although
most of this wheel was guarded, the bottom two feet, which was 4
feet 10 inches above the ground was not (Tr. 42-49, exhibits P-4,
4b). Goldade .concluded that the wheel had spokes bepause he
could see through it (Tr. 212). Mr. Woodring, however, testified
that the wheel was solid (Tr. 26S-66), which would clearly make
it less dangerous. Given the fact that Exhibit P-4 makes it
appear that the wheel was solid, I credit Mr. Woodring's
testimony .
·
Their remains the issues of whether there was sufficient
exposure to the wheel and whether a solid wheel can cause injury,
thus, requiring guarding under section S6.14107(a). In this
regard I credit the testimony of the inspector that contact with
the wheel was possible if an employee tripped or fell (Tr. 49)
and conclude that an employee could sustain a minor injury, such
as a burn (Tr. 301-02). I, therefore, affirm the citation and
assess a $2S civil penalty--given the low gravity and negligence
of Respondent.
Citation No. 4331S65: In one area of the crusher there was
a 3 1/2 foot high stairway leading to an elevated platform (Tr.
52, Exh. P-Sa). Inspector Goldade observed Mr. Hartley used this
stairway and platform (Tr . 216) . Underneath this platform and
stairway was an unguarded drive shaft with protruding bolts, 3
feet above the ground, and nearby was an unguarded set of trunion
wheels rotating in the opposite direction of a large roto vater
drum (Tr. S0-59, 68, Exh Sa-Sc).
The preponderance of the evidence is that the roto vater
drum rotated upwards which made injury by getting caught between
the drum and the trunion wheels unlikely (Tr. 267). Although I
find that this violation is not "S&S", the potential hazard is
sufficient to affirm a violation under the standard.
Similarly, although the drive shaft could be contacted by an
employee who fell or tripped in his normal route of travel, such
an accident was unlikely because the drive shaft was underneath
the elevated walkway. I, therefore, find this also to be non
"S&S" and assess a $25 civil penalty for this citation.

1719

Citation No. 4331567: At the end of the crushing process,
the green stacker conveyor expels the crushed rock onto a
stockpile (Tr. 70). On this conveyor the head pulley was
completely unguarded and the tail pulley was partially guarded
(Tr. 70, 76, Exh. 7c). The head pulley area had a protruding
shaft as well .as an unguarded chain drive (Exhs. 7a and 7b).
As to the tail pulley, which was 18 inches above the ground
and accessible to employees, Respondent concedes that the guard
did not extend forward sufficiently to protect the protruding
shaft from contact (Tr. 310-311). on this basis alone I affirm
this citation as an "S&S" violation with regard to the tail
pulley.
With respect to the head pulley, the parties disagree as to
whether it was within 7 feet of the ground. If it was more than
7 feet above the ground it did not have to be guarded under
section 56 . 14107. Inspector Goldade testified that he held a
tape from the ground directly below to the head pulley and
measured a distance of 4 feet (Tr. 72 , 85). Respondent contends
that the pulley was at least 8 feet above the ground and the
point from which Goldade measured is not directly below the
pulley (Tr. 269-272, Exhs. 7a and 7b) . Because Mr. Woodring did
not take measurements himself on the day of the inspection, I
credit the testimony of Mr. Goldade and find an "S&S" violation
with regard to the head pulley area.
The shaft and chain drive were completely unguarded and it
is reasonably likely that in the normal course of mining
operations an employee could contact these hazards and sustain a
serious injury.
Given the criteria in section llO(i),
particularly the negligence and gravity of Respondent, I assess
the $111 civil penalty proposed by the Secretary.
Citation No. 4331568: Next to a 16-inch wide walkway on the
crusher, Inspector Goldade observed a head pulley drive shaft
that was guarded on the side but not on the top (Tr. 87-99, 22024, Exh. P-8b). He issued a citation alleging a violation of
section 56.14107(a) because he was concerned that an employee
might slip or fall and accidently reach behind the guard and
contact the universal joint of the drive shaft (Tr. 223-24).
I conclude that there was sufficient exposure to the hazard
to affirm a violation but that it . was not reasonably likely that
someone would contact this shaft. I, therefore, affirm the
violation as a non-significant and substantial violation. As I
also think the need for a guard on the shaft was not obvious, I
consider Respondent's degree of negligence to be very low. I
assess a $25 civil penalty for the violation.
Citation No. 4331571: At the secondary crusher system,
Inspector· Goldade found a pulley and drive shaft that were

1720

exposed because part of the guard covering them had been cut away
(Tr. 101-105, 227-228, Exhs. lOa and lOb). If an employee
slipped or fell while walking through this area they could
contact either the pulley or the drive shaft, although they would
have to reach up under the guard to touch the drive shaft
(Tr. 228).
Given the fact that an employee who slipped would be kept
away from the shaft and pulley by the upper portion of the guard
that remained, I conclude that injury was not reasonably likely
and affirm this citation as a non-significant and substantial
violation. Also considering Respondent's negligence in not
extending the guard as low, I assess a $25 civil penalty for this
violation.
citation No. 4331566: This citation was issued pursuant to
section 56.11002 because two elevated walkways and a staircase
were not provided with railings (Tr. 108-116, Exhs. Sa & Sb, 6a &
6b). One of the walkways and the staircase were located over the
unguarded shaft and near the trunion wheels discussed with
reference to citation No. 4331565. The handrails in this area
had been removed by Respondent the previous day in preparation
for moving the crusher (Tr. 277). Given the fact that work other
than breaking down the crushing machine continued at the site on
the day of the inspection, the impending move is not a mitigating
circumstance.
'
The other walkway without handrails was 8 feet above ground
level and, therefore, a fall from it was reasonably likely to
result in serious injury (Tr. 109-110, 116). I affirm the
citation as a significant and substantial violation and assess a
$75 penalty, which I deem appropriate giving particular
consideration to what I believe is the moderate gravity of the
violation.
Citation No. 4331572: Inspector Goldade cited. Respondent
for failure to make available to MSHA records of his daily
examinations of the workplace for hazardous conditions pursuant
to section 56.18002(b). Goldade testified that he asked .
Mr. Woodring for the records and that Woodring said he didn't
have any (Tr. 119). Mr. Woodring testified that he does maintain
such records but couldn't produce them on July 28 because he had
sent them to his other worksite in anticipation for his move
(Tr. 278).
If Respondent made such records, kept them at a different
location, and offered to make them available to the Secretary, I
would vacate the citation. Section 56.18002(b), unlike section
50.40, for example, does not require that the subject records be
kept at the mine site. I, therefore, conclude that, if
Respondent made the records and kept them at another site, it
would not necessarily violate the instant regulation.

1721

However, I affirm this citation. Respondent is required to
make an examination of the worksite every day and make a record
of it . Woodring worked at the Batavia Lane site ori July 27 and
there is no evidence that would lead me to believe that if an
examination was made on the 27th that the record made of it was
sent that evening or the following morning to the other worksite .
I find that, at least for July 27, Respondent violated the cited
regulation in failing to keep a record of its workplace
examination and making it available to the Secretary. I assess a
$25 civil penalty.
Citation No . 4331573 :
Respondent was cited for failure to
have adequate first aid supplies, including stretchers and a
blanket, pursuant to section 56.15001. Although Mr. Goldade's
testimony suggests that Respondent had no first aid supplies on
site, I credit Mr. Woodring's testimony that he had all the
required items except for the stretchers and blanket (Tr. 124,
278-29).
Nevertheless, the standard requires that stretchers and
blankets be kept convenient to working areas. Therefore, a
violation of th~ regulation has been established. I assess a $25
civil penalty for this violation.
Citation No. 4331574 : Inspector Goldade observed a
compressed oxygen and a compressed acetylene cylinder in the back
of a pick-up truck at the site. The valves of these cylinders
were not covered (Tr. 127-131). He, thus, cited Respondent for a
violation of section 56.16006, which requires that such valves be
covered while being transported or stored.
Mr. Woodring testified that he used these cylinders on
July 28 for about a half-hour to weld a guard (Tr. 279, 311-12).
This raises the issue of what is "stored" within the meaning of
the regulation. In FMC Corporation, 6 FMSHRC 1566, 1569 (July
1984), the Commission held that the word "storage" includes
short-term storage, Also see Phelps Dodge Corporation, 6 FMSHRC
1930 (ALJ, August 1984). I conclude that when Respondent
finished using the cylinders in this case they were "stored"
within the meaning of the regulation. There is nothing in the
record to indicate that Respondent had an imminent need or
intention to reuse the cylinders. I, therefore, affirm the
violation and assess a $25 civil penalty.
Citations No . 4331720 and No . 4331561: On July 28, Mr.
Woodring operated a front end loader at the worksite which did
not have an operational reverse signal alarm and which was not
equipped with a seat belt (Tr. 133-147, 244, 280-81). The loader
had been used at the worksite for several days but the alarm
apparently worked prior to July 28 (Tr. 147, 280-81).

1722

With regard to the reverse signal alarm, Inspector Goldade
cited Respondent for a significant and substantial violation of
30 c. F. R. 56.14132(a). The parties disagree as to how many
people were exposed to the hazard of being hit by the front end
loader while it was being operated in reverse. Mr. Woodring
contends that only he and Mr. Hartley were at the worksite on
July 28 (Tr. 280-81) . The inspector insists that he observed
several trucks come to the site to be loaded by Mr. Woodring and
that the drivers got out of their trucks and walked around
(Tr. 137-38). I credit the testimony of Inspector Goldade on
this point.
When pressed on his recollection, Mr. Woodring
admitted that, while he did not remember any trucks coming to the
site that day, he was not be sure (Tr. 280-84).
I conclude that injury was reasonably likely and was likely
to be serious. I, therefore, affirm an "S&S" violation with
regard to the reverse signal alarm and assess a $100 penalty in
view of the gravity of the violation and Mr. Woodring•s awareness
of the violation.
The absence of the seat belt is undisputed. Apparently,
Mr. Woodring, Respondent's owner, was the only person exposed to
a hazard due to this violation. An individual or individuals who
own a mine are "miners" within the meaning of the Act,
30 u.s.c. § 802(g), Marshall v. Kraynak, 604 F.2d 231 (3d Cir.
1979). Thus, the fact that only Mr. W9odring was exposed to the
violation is no impediment to affirming the citation.
I also have no difficulty in finding this violation to be
significant and substantial. Vehicle accidents are common at
mines and similar worksites . The absence of a seat belt is
reasonably likely to result in an injury of a serious nature.
The Secretary proposed a $136 civil penalty for this
violation. I assess a $75 penalty in part because on this record
it appears that only Respondent's owner was exposed to the
hazards created by the violation. I would consider Respondent's
negligence to be much greater and would assess a mY£h larger
penalty if the record indicated that an employee was assigned to
use equipment which Respondent knew was not equipped with a
required safety device.
Citation No. 4331570: Inspector Goldade looked inside a van
in which Respondent stored flammable and combustible greases and
oils. He saw no sign prohibiting smoking or open flames
(Tr. 148-151). Goldade, therefore, issued Respondent a citation
alleging a violation of section 56.4101, which provides that,
"[r]eadily visible signs prohibiting smoking and open flames
shall be posted wh~re a fire or explosion hazard exists."
Mr. Woodring testified that ther~ were signs on the outside
doors of the truck which prohibited smoking (Tr. 285-87). He

1723

concedes that they did not mention open flames (Tr. 287). While
Goldade recalls that there were no signs on the outside of the
van, his testimony reveals sufficient uncertainty that I credit
Mr. Woodring (Tr. 149).
The requisite signs on the .outside of the vehicle would
appear to satisfy the standard if the doors to the van were kept
closed when the greases and oils were not being used. However,
since there was admittedly no sign prohibiting open flames I
affirm the violation.
I assess a $10 civil penalty because I consider the gravity
and negligence for this violation to be very low. The presence
of a no smoking sign should have been sufficient to alert a
reasonable person that open flames would be hazardous in the back
of the van as well.
Citation No. 4331575: During the inspection Goldade sampled
the noise exposure of miner Joseph Hartley and Mr. Woodring (Tr.
153-162, Exh. P-15). Woodring•s exposure was well under the
permissible exposure limit (PEL) in section 56.5050(a) of 90 dba
averaged over an 8-hour shift . However, Hartley was exposed to
677% of the PEL, or average of 103 dba (Tr. 158-59, Exh. G-15). 1
This violation was cited as non-significant and substantial
because Mr. Hartley was wearing earplugs which would reduce the
noise reaching his inner ear by 31 dba--if he was wearing them
properly (Tr. 163, citation 4331575, block 8). A violation is
established because there is a feasible engineering control by
which Mr. Hartley's noise exposure could have been brought within
the limits of the standard. That control is an insulated, airconditioned crusher control booth, which is used by many other
operators (Tr. 163-64).
I conclude that the inspector's unrebutted testimony that
such booths are employed on many crushers establishes the
feasibility of this control method under existing Commission
precedent, Callanan Industries, Inc . , 5 FMSHRC 1900
(November 1983) . Given the fact that Mr. Hartley was wearing ear
protection and that the evidence indicates that normally

1

Respondent at page 8 of its post-trial brief suggests that
MSHA's noise exposure calculation is flawed because it did not
account for the fact that Mr. Woodring and Mr. Hartley took a
lunch break at the site or that the machinery was off for about
an hour due to a mechanical breakdown. Actually, sampling during
these periods is to the operator's benefit as the relatively
lower noise exposure of the lunch break and repair period
produces a lower time-weighted average for the whole day (Tr.
238-40).

1724

Mr. Woodring did not employ anyone who would be exposed to
excessive noise levels, I assess a civil penalty of $25.
Citation No. 4331733: 2 During the inspection samples were
taken of the respirable dust exposure of Mr. Woodring and Mr.
Hartley (Tr. 182). The samples taken by Mr. Goldade were
analyzed by MSHA's laboratory in Denver, Colorado and were
determined to consist of ap~roximately 24% silica (Tr. 176).
MSHA's regulation, at 30 C.F.R. § 56.5001, incorporates by
reference the threshold limit values (TLVs) adopted by the
American Conference of Governmental Industrial Hygienists in
1973. Given 24% silica the TLV allows exposure to an 8-hour time
weighted average of 37 milligrams of respirable dust per cubic
meter of air (Tr. 176-78). Mr. Hartley was exposed to 95
milligrams (Tr. 173-74, 178, Exh. G-16).
This violation was characterized as significant and
substantial because Mr. Hartley wore only a paper dust mask,
which would be virtually useless in protecting him from the
effects of respirable silica (Tr. 187, 235). Exposure to
excessive amounts of respirable dust containing silica is
reasonably likely to contribute to the development of serious
respirable disease (Tr. 185-87), and is presumed to be "S&S",
Twentymile Coal Company, 15 FMSHRC 941 (June 1993).
The citation also charged a violation of section 56.5005 for
failure to implement feasible engineering controls. The record
establishes that the type of control booth discussed with
reference to the noise violation is such a feasible engineering
control (Tr. 188-89). I, therefore, affirm the citation with
regard to both of the standards cited.
I assess a $136 civil penalty for this citation, as proposed
by the Secretary of Labor. The gravity of the violation warrants
such a penalty, as does Respondent's negligence.
Virtually all
crushing operations encounter some silica and one in this
business should be aware that they are likely to be in violation
of these standards if they do not implement engineering controls
(Tr. 194-96) 3

2This citation is incorrectly described as number 4331437 at
Tr. 169. Additionally the term "error factor" used in discussing
this citation was incorrectly transcribed as "ai~ factor" at
Tr. 181.
3

However, at Respondent's other worksite at Blackmore Lane
near Columbia Falls, Montana, little dust is generated because
the ground is frozen year-round (Tr. 317-18).

1725

ORDER

The following penalties shall be paid for the citations
listed below within 30 days· of this decision:
Citati on

Penalty

4331562
4331564
433156 5
4331566
4331567
4331568
4331571
4331 572
433157 3
43315 74
4 33 1720
433156 1
4331570
433157 5
4 3 3173 3

$111
$ 25
$ 25
$ 75
$111
$ 25
$ 25
$ 25
$ 25
$ 25
$100
$ 75
$ 10
$ 25
$136

Total:

$818

Citations No . 4331563 and No. 4331569 and the corresponding
proposed penalties are vacated .

Art r J. Amchan
Administrative Law Judge

Distribution:
Kristi Floyd, Esq., Office of the Solicitor, u. ·s . Department of
Labor, 1999 Broadway, Suite # 1600, Denver, co 80202-5716
(Certified Mail)
Mark L. Stermitz, Esq., Warden, Christiansen, Johnson, & Berg,
P.O. Box 3038, Kalispell, MT 59903-3038 (Certified Mail)

/jf

1726

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FAUS CHURCH, VIRGINIA 2204 1

AUG

9 1994

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 93-792
A. c. No. 15-05423-03738

v.

Docket No. KENT 93-821
A. C. No. 15-05423-03737

MANALAPAN MINING COMPANY, INC.,
Respondent

Docket No. KENT 93-823
A. C. No. 15-05423-03736
Docket No. KENT 93-824
A. C. No. 15-05423-03739
Docket No. KENT 94-106
A. C. No. 15-05423-03742

..
..
.
.
..
.
..
.
.:
.

Docket No. KENT 93-793
A. C. No. 15-16318-03579
Docket No. KENT 93-794
A. C. No. 15-16318-03580
Docket No. K.ENT 93-888
A. C. No. 15-16318-03582
Docket No. KENT 94-19
A. C. No. 15-16318-03584
Docket No. KENT 94-46
A. C. No. 15-16318-03585

.:

Mine No. 6

:
:

Docket No. KENT 93-825
A. C. No. 15-16733-03544

.
...
:
:

.
1 7 27

Mine No. 1

Docket No. KENT 93-919
A. C. No. 15-16733-03548
Docket No. KENT 93-920
A. C. No. 15-16733-03549

:

Docket No. KENT 93-921
A. C. No. 15-16733-03550

:

Docket No. KENT 93-993
A. C. No. 15-16733-03551

:

:

Docket No. KENT 94-47
A. C. No. 15-16733-03552
Mine No. 7
Docket No. KENT 93-795
A. C. No. 15-17016-03530
Mine No. 8

DECISION

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor,
u. s . Department of Labor, Nashville, Tennessee,
for the Secretary;
Susan c. Lawson, Esq., Buttermore, Turner, Lawson &
Boggs, P.s.c., Harlan, K~ntucky, for Respondent .
Before:

Judge Maurer

In these consolidated cases, the Secretary of Labor
(Secretary) has filed petitions for assessment of civil
penalties, alleging violations by the Manalapan Mining Company,
Inc., (Manalapan) of various and sundry mandatory standards set
forth in Part 30 of the Code of Federal Regulations. Pursuant to
notice, these cases were heard before me on March 15-16, 1994,
and May 17-18, 1994, in London, Kentucky . The parties filed
posthearing briefs and proposed findings of fact and conclusions
of law on July 1, 1994, which I have duly considered in writing
this decision.
During the course of the trial of these cases ang even
subsequent thereto, the parties have discussed and negotiated
settlements concerning most of the citations contained in these
17 dockets. I will deal with and dispose of those settled
citations in this decision as well as decide the remaining issues
concerning the still contested citations, in order, by docket
number.
In addition to the a~guments presented on the record in
support of the proposed settlements, the parties also presented
information concerning the six statutory civil penalty criteria
found in section 110(i) of the Act. After careful review and
consideration of the pleadings, arguments, and submissions in
support of the proposed settlements, and pursuant to Commission
Rule 31, 29 C.F.R. S 2700.31, I rendered bench decisions
1728

approving the proposed settlements . Upon further revi·e w of the
entire record, I conclude and find that the settlement
dispositions which have been previously approved are reasonable
and in the public interest, and my bench decisions are herein
reaffirmed .
Docket No. KENT 93-792
CITATION NO.
38359 ~ 1

3835992
3835993

DATE

30 C.F.R.
SECTION

5/24/93
5/24/93
5/24/93

75.400
75.364(b) (2)
75.203(e) (1)

ASSESSMENT
$1155
1155
690

SETTLEMENT

$

690

$

TOTAL

so•
so•

790

• Citation modified to delete "S&S" special findings.
Docket No . KENT 9 3 -793

.

CITATION NO.
4239192
4239193
9885298

DATE

30 C.F.R.
SECTION

ASSESSMENT

5/12/93
5/12/93
5/18/93

75.1725(a)
75.1725(a)
70.207(a)

$ 690
690
595

SETTLEMENT
$

345
345
595

$. 1285

TOTAL
Docket No. KENT 93-794
CITATION NO.

DATE

30 C.F.R.
SECTION

ASSESSMENT

3836066

6/7/93

75.362(d)

$1019

SETTLEMENT
$

so•

* Citation modified to delete "S&S" special findings.
Docket No. KENT 93-795
CITATION NO.

DATE

30 C.F·.R.
SECTION

ASSESSMENT

9885286
· 99952s9

4/9/93
4/9/93

70.lOO(a)
70. 208 (a) ,

$ 506
900

TOTAL

1729

SETTLEMENT

$

506
900

$ 1406

Docket No. KENT 93-821
The parties have agreed to settle four of the eleven
citations included in this docket as follows:
CITATION NO.
4239218
3835986
3835988
3835990

DATE

30 C.F.R.
SECTION

5 / 17 / 93
5 / 19/ 93
5/19 / 93
5/19/93

75.516
75 .1101-3
75 . 1100-2(b)
75.1101

ASSESSMENT
$ 431

SETTLEMENT
$

431
431
431

so•

431.
50*
50*

* Citation modified to delete "S&S" special findings.
Seven citations remain to be decided in this docket which
were tried before me and were subsequently briefed by the
parties. Citation No. 4239291 alleges a "significant and
substantial" violation of the standard found at 30 C.F.R.
§ 75.400 and charges as follows:
Loose coal and float coal dust has been allowed to
accumulate inside the power center on the 006 section.
Manalapan admits the violation of 30 C.F.R. S 75.400 (see
proposed conclusions of law), but disputes the "significant and
substantial" special finding in this instance.
'

A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard . "
30 C.F.R. S 814(d) (1). A violation is properly designated
significant and substantial "if based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature . " Cement Division.
National Gypsum co., 3 FMSHRC 825 (April 1981).
In Mathies Coal co . , 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and .substantial" as follows :
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety

1730

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 Uni t 'ed States Steel Mining Company. Inc. , 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula · "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury . "
u. s . Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d}(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 . Steel Mining Company. Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
Inspector Thomas testified that the accumulations were black
in color and were on all of the electrical components in the
power center and on the bottom of the power center, which was
activated. He opined that any electrical arc could ignite the
accumulations . He therefore reasoned that it was reasonably
likely that the power center could explode, and at least one
miner could be expected to suffer burns or other reasonably
serious injuries as a result.
Inspector Thomas has personally had a previous bad
experience with this type of violative condition in that a .power
center once exploded when he was working nearby and he was
hospitalized for 4 to 5 days after the incident.
Mr. Gluck also testified that float coal dust is volatile
matter which will burn when ignited. He further opined that the
presence of float coal dust inside a power center on and near
energized electrical components presents a clear danger. There
are numerous potential ignition sources, such as a heat rise, or
a malfunction causing a short circuit or a break down of an
electrical component could cause an electrical arc. Insulators
sometimes will break down due to atmospheric conditions, and
these can cause an electrical arc. Mr. Gluck also testified that
power centers have been known to melt down or malfunction and
catch on fire. He testified that the lowest temperature of an
electrical arc would be around 1150 to 1200 degrees Fahrenheit .
A temperature of only 900 degrees Fahrenheit will ignite float
coal dust.

1731

Finally, Mr . Gluck testified that when turning the power on
or off a power center which uses a knife blade system could
result in an electrical arc at the knife blade switches. The act
of putting a breaker in could also result in an electrical arc.
Inspector Thomas testified that the power would have to be turned
off on the power center to move it, and he stated that the power
center is moved about every 2 or 3 days to pull it closer to the
working face. It would then be turned back on .
Mr. Fred Kelly, who testified on behalf of Manalapan, agreed
that there is a danger of arcing and sparking when the power
center is turned on or off, tiut he opines that it would be
outside the power center and away from the accumulated float coal
dust inside. He also testified that there could be arcing when
the disconnect switch at the power center is activated. This
arcing would admittedly be inside the power center but
16 to 20 inches above the floor, where in his opinion, at least,
it would be improbable for the loose coal or float coal dust to
come into contact with it and thereby cause an ignition. But, I
note here that Mr. Kelly did not observe the float coal dust
accumulations cited by the inspector •.

In my opinion, the Mathies test has been met. The record is
replete with testimony from various witnesses that electrical
arcs and sparking can and do occur inside the power center and
although the respondent's witnesses minimized the risks, they
generally agreed that the arcing and sparking is possible. The
potential ignition sources combined with the accumulations of
loose coal and float coal dust found inside the power center is
sufficient, in my opinion, to make this an "S&S" violation .
·
Therefore, I conclude that there was a reasonable likelihood
that the hazard contributed to by the violation herein would
result in an injury-producing event. Accordingly, I conclude
that it has been established that the violation herein was
significant and substantial and serious.
Upon careful consideration of all of the statutory criteria
in section llO(i) of the Act, including the Manalapan Mining
Company, Inc . •s own production figures, making it a "large"
operator in its own right, I assess a civil penalty of $450 .
Citation No. 42392'20 alleges a "significant and substantial"
violation of the standard found at 30 c.F.R. S 77.1605(k) and
charges as follows:
Berms were not provided on the access
road to the surge impoundment.
On May 17, 1993, Inspector Thomas and another inspector
observed two cars coming across the elevated road to the left of
the ponds at what he describes as a high rate of speed. He was
1732

unable, however, to state what speed that was. The inspector
claimed that if the driver lost control of his vehicle, he could
reasonably be expected to go qff either side of the road and be
involved in a serious accident, resulting in at least broken
bones.
The road is admittedly not provided with berms, but is
usually blocked by wire ropes. The road is not wide enough to
put berms on and stil l allow the necessary access to dip the
ponds due to the width of the required equipment for that
operation . That is why the road is blocked and the company has
advised the miners not to use it.
In my opinion, whe n they do drive on it, it is a violation,
and could in the proper circumstances, be a signi ficant and
substantial violation. It is up to the company to keep their
employees off of it. A failure to do so will result in the
assessment of civ il penalties.
Roy Ellis, a foreman for Manalapan, testified that the road
could not be traveled at an unsafe or high rate of speed due to
the nature of the road, and Inspector Thomas admitted that the
road in question was in better shape than the road the miners
normally travel because it is used infrequently.
Giving Manalapan the benefit of the doubt on a close issue,
I conclude that the Secretary has failed to prove by a
preponderance of the evidence that this was a significant and
substantial violation. The citation will be so modified.
Reading the record as a whole and considering that this was
the second such incident in as many months, I am going to assess
a civil penalty of $100 for the violation found herein.
Citation Nos. 3835982, 3835984, 3835985, 3835987, and
3835989 were all issued on May 19, 1993, by Inspector Elmer
Thomas. All allege violations of 30 C.F.R. § 75.400 in the
vicinity of various belt lines in the No ~ 1 Mine.
Citation No. 3835982 was issued on the A belt at the No. 1
Mine. This is the first belt as the mine is entered. Inspector
Thomas testified that he observed accumulations of float coal
dust and loose coal under and alongside the belt for a distance
of approximately 150 feet. The accumulations were black in color
and from paper thin to 3 or 4 inches in depth. The belt was
running when the violation was observed, and the belt was not
trained. This means that the belt was not running evenly, that
the metal splices of the belt were hitting the bottom stands of
the belt, creating metal to metal contact which could cause
sparking.

1733

Manalapan does not dispute the violation, but does contest
the "significant and substantial" special finding . I will treat
the "S&S" issue for all five of these "accumulations" citations
together at the end of this section.
Citation No. 3835984 was issued on the B belt at the No. 1
Mine. This belt dumps on the A belt. Inspector Thomas observed
accumulations of float coal dust and loose coal extending from
the head drive the entire length of the belt to the tail roller.
The accumulations extended from the track , under the belt, to the
rib side, a distance of approximately 12 feet. The accumulations
were black in color and more extensive than those found at the
A belt, from paper thin to perhaps a couple of inches thick at
different locations .
Manalapan likewise does not dispute the fact of this
violation, but does contest the "S&S" special finding.
citation No. 3835985 was issued on the c belt at the No. 1
Mine. The c belt dumps on the tail roller of the B belt. The
citation was issued because the belt control box for the c head
drive was full of float coal dust. This control box is about
2 feet wide and approximately 10 to 12 feet long. It is located
approximately 5 to 6 feet from the belt. It supplies electricity
to the drive motors on the belt, and contains various electrical
conductors and electrical connections.
Inspector Thomas testified that the box was opened and was
found to contain float coal dust, black in color, both suspended
inside the box and on the electrical components inside the box .
The belt was running at the time the violation was discovered.
Once again, Manalapan, while admitting the violation,
disputes the "S&S" special finding.
Citation No . 3835987 was also issued on the c belt at the
No. l Mine . The C belt, like the other belts previously
discussed, had accumulations of loose coal and float coal dust
under and alongside the belt. The accumulations were at various
locations, and were black in color. They were from paper thin to
2 to 3 inches in depth and extended from the mine ribs to the
track, a distance of approximately 9 to 10 feet.
The belt was running at the time the violation was observed.
This belt was also not trained, and was running off to one side
so that it was hitting the legs of the stands on the bottom
rollers. This created a danger of sparking due to the metal to
metal contact.
Manalapan admits the basic violation, but disputes the "S&S"
finding.

173 4

Citation No. 3835989 was issued on the E belt at the No. 1
Mine. The electrical control box for the E belt was found to
contain float coal dust. The dust was black in color and was on
the electrical components in the control box.
Manalapan, as in the previous instances, admits the basic
violation of 30 C.F.R. § 75.400, but once again disputes the
"S&S" finding.
All five of these citations have as a common theme
accumulations of loose coal and/or float coal dust either under
and alongside the various belts or inside the belt electrical
control boxes.
It is beyond dispute that in the event an ignition did
occur, the loose coal and coal dust accumulations could
contribute to the hazard of fire and/or explosion or at the very
least, propagate the results of an otherwise unrelated ·explosion
and/or fire which could in turn spread throughout and even beyond
the cited areas. ·Apropos of this point, I note that the cited
belts were all connected and Mr. Gluck testified that after an
ignition the fire will travel as far as there is fuel to sustain
it. He likened a flame to a sheet of paper which when ignited
will propagate itself. In front of the ignition is a compression
of air caused by rapid expansion of the flame path. This air
pressure will cause float coal dust to be thrown into suspension.
Thus an ignition at one belt will travel the length of the
various belts if each contains accumulations to propagate the
fire. Since the various belts all contain accumulations, any
ignition source on one belt makes an accident as reasonably
likely to spread to all.
The record establishes a number of potential ignition
sources. One is the belt rollers turning in the coal
accumulations under the belt. There is a clear potential for
friction ignition should one or more of these rollers become
stuck and get hot. There was testimony that a malfunction of
this sort can create sufficient heat to ignite coal
accumulations. Another identifiable ignition source is the fact
that in several places the belt itself was not running true and
was rubbing on the framework o'f the conveyor, thereby creating
friction heat as well as the po~ential for sparking from the
metal splices on the belt itself. Additionally, there are the
electrical components, such as those inside the control boxes
that are adjacent to the belt lines, and which were found to
contain float coal dust. The inside of the electrical contactor
or belt starter which was presented at the hearing was heavily
blackened due to sparking, and the outside, although less
blackened, still showed some evidence of sparking.

1735

There was also testimony to the effect that much of these
accumulations were wet or at least damp, and/or mixed with
noncombustible materials. I accept Mr. Gluck's opinion that
while this factor may make them harder to ignite, they will still
burn. Damp coal dries in the presence of fire and heat and wet
coal can dry out in a mine fire and subsequently ignite .
The Commission has previously .held that a construction of
30 C.F.R. S 75.400 "that excludes loose coal that is wet or that
allows accumulations of loose coal mixed with noncombustible .
materials, defeats Congress' intent to remove fuel sources from
mines and permits potentially dangerous conditions to exist."
Black Diamond Coal Mining Company, 7 FMSHRC 1117, 1121 (August
1985). It has further held that dampness is not determinative of
whether a coal accumulation violation is "significant and
substantial" or not. Utah Power & Light Company, 12 FMSHRC 965,
970 (May 1990) .
Therefore, I find that the circumstances in these citations
satisfy the Co~ission's significant and substantial criteria set
out in Mathies,. supra. Accordingly, I find that the above five
cited violations of 30 C.F.R. § 75.400 were properly designated
as significant and substantial and serious.
After considering the statutory criteria contained in
section llO(i) of the Act, I assess a civil penalty of $400 for
each of the five citations. In so doing, I considered only
Manalapan Mining company's production record and violation
history as requested by Manalapan.
Docket No. KENT 93-823
The parties have agreed to settle 17 of the 20 citations
included in this docket as follows:

CITATION NO.
3000232
3000233
3000234
3000237
3000238
3004283
3004289
3000213
3000214
3000215
3000216
3000218
3000219

DATE

30 C.!'.R.
SECTION

2/26/93
2/26/93
3/1/93
3/1/93
3/1/93
3/2/93
3/4/93
3/10/93
3/10/93
3/11/93
3/11/93
3/11/93
3/11/93

75.400
75.400
75.517
75. 503
75.523-3
75.364(b)(2)
75.517
75.1100-2(d)
75.360(b)(5)
75.360(b)
75.400
75.202(a)
75.220

1736

ASSESSMENT
$ 431

506
50
431
431
50
50
431
50
431
431
431
431

SE'l''l'LEMENT

$

50*
50*
50
50*
431
50
50
50*
50
431
431
431
431

Cl:'l'A'l'l:ON NO.

4239005
4239006
4239007
3835981·

DA'l'E

30 C.J'.R.
SECTION

3/18/93
3/18/93
3/18/93
5/17/93

75.706
75.370{a) (1)
75.403
75.312(f)

ASSESSMENT

50
431
1155
50

SE'l''l'LEME~

50
50*
1155
Vacated

* Citation modified to delete "S&S" special findings.
Three citations remain to be decided in this docket which
were tried before me and were subsequently briefed by the .
parties.
Citation No. 3000229 alleges a "significant and substantial"
violation of the standard found at 30' C.F.R. § 75.1101 and
charges as follows:
The del~ge type fire suppression system provided
for the mmu-~04 section belt was not operative when
tested.
·
Manalapan admits the violation of 30 C.F.R. § 75.1101, but
disputes the "significant and substantial" special finding in
this instance.
A deluge-typ.e system is activated by heat and automatically
sprays water over the head drive and belt for a distance of
50 feet. The Safety Director for the respondent conceded that
this system is the only automatic fire suppression system in the
area of the belt head. The belt itself is 700 feet long, but the
deluge system only covers the first 50 feet from the head drive.
Inspector Langley testified that when the test button was pushed
the water would not spray on the belt head drive. The belt was
running at the time of the inspection.
Inspector Langley opined that the negligence was "moderate,"
because the system is supposed to be checked weekly and he
believed that the respondent should have been aware of the
problem. He also opined that an accident was reasonably likely
due to a number of possible ignition sources along the belt line,
including possible friction sources and the presence of several
electrical cables and the belt starting box. Inspector Langley
stated that one person would probably be affected by the
violation, as there is a man assigned to take care of all of the
belts at the mine. This person could be burnt or overcome by
smoke if there were a fire. Also the smoke could travel to the
section and affect every person on the section with smoke
inhalation.

1737

Mr. Gluck testified that most fires which occur on belt
lines take place at the head drive. This is an area where float
coal dust accumulates and there are electrical components in the
area to run the head drive. Due to the problem of fires at head
drives, certain regulations, such as the one requiring a delugetype water spray system, were promulgated.
Manalapan's position is that this violation was not
"significant and substantial" due to 1;.he immediate lack of an
ignition source. It is the position of the Secretary that, when
dealing with a regulation that is designed to only take effect in
an emergency, the existence of the emergency must be presumed
when determining whether the violation is significant and
substantial . Obviously the regulation at issue here presumes the
existence of an emergency, a fire, when it requires a deluge of
water to put the fire out.
It is clear from the testimony that fires are a definite
hazard at belt heads. Inspector Langley testified that the drive
roller at the head drive presents a possible source of ignition
due to friction. The belt itself is fire resistant, but not fire
proof, and could catch on fire. Although fire hose and fire
extinguishers were present, the violation was still considered
significant and substantial by the inspector because there is no
one permanently stationed at this belt. The assigned belt man
covers all the belts in the mine.
I therefore find that the Mathies, supra, test has been met.
It is clear that this violation is significant and substantial.
Without the deluge system a fire could clearly become far worse
and someone could become injured when he finally arrived to fight
the fire or could be overcome by smoke even prior to arriving on
the scene. To find otherwise, that the petitioner must prove
that an actual ignition source presently existed would ignore the
fundamental hazard of fires at the head drives that the
regulation was designed to prevent.
With regard to the operator's negligence concerning this
violation, I find that it is "low" vice "moderate" because the
deluge system was checked on a weekly basis as required, but yet
became inoperative without warn~ng or notice to the operator.
Considering the statutory criteria, I assess a civil penalty
of $300 for the "S&S" violation of 30 C.F.R. S 75.1101 found
herein.

::

1738

Citation No. 3000217 issued by Inspector Langley on
March 11, 1993, alleges a "significant and substantial" violation
of the standard found at 30 C.F.R. S 75.202{a) and charges as
follows:
. Loose coal ribs were observed along the coal
pillars of the mmu-400 section.
Manalapan admits the violation of 30 C.F.R. § 75.202{a), but
disputes the "significant and substantial" special finding
associated with the instant citation.
Inspector Langley testified that this citation was issued
because loose coal ribs were observed along the coal belts on the
working section of the mine. The ribs were approximately
4 1/2 to 5 feet in height and anywhere from 5 to 10 feet in
length. These ribs had pulled or gaped away from the pillars
from 2 to 3 inches. There were approximately 11 or 12 ribs
involved in the violation covering a distance of approximately
108 feet. He also testified that the section foreman and a
repairman are generally working in the area where the violative
conditions were found. The inspector opined that it was
reasonably likely that an accident might happen, because these
persons could be struck by the coal ribs if they should fall off
or slip off. Inspector Langley stressed the number of loose ribs
which were present and the fact that the section foreman
certainly would be in the area on foot. It is obvious that this
violation meets the Mathies test. It is uncontradicted that
there were people present in the area of the violation with a
significant number of loose coal ribs. These ribs could easily
fall or "roll" causing broken bones or greater injuries to a
miner.
Accordingly, I will affirm the citation, in its entirety,
and assess the proposed civil penalty of $431 for the violation.
Citation No. 4239003 is similar to Citation No. 4239220 in
that it involves the same road, the same unlocked gates, · the same
lack of berms, and the same mandatory standard. It preceded, by
2 months, the citation contained in Docket No. KENT 93-821 and
discussed earlier in this decision. Basically, it is an elevated
road that is not provided with berms, but is usually blocked by
wire ropes. But, on the date the citations were issued, the
ropes were down and the road was being traveled in violation of
the standard.
My decision is the same regarding this Citation No. 4239003
as it was concerning Citation No. 4239220. in the previous docket;
but since this was the first violation in point of time, I assess
a penalty of $50 for the non "S&S" violation of the standard.

1 7 39

Continuing with settlements, as before:
Docket No . KENT 93-824

CITATION NO.
3000220
4239001
3835983

DATE

30 C.f .R.
SECTION

3/11/93
3/11/93
5/19/93

75.364(b) (2)
75.364 (a) (2) (iii)
75.1101-3

ASSESSMENT
$1134
1134
431

TOTAL

SETTLEMENT
$

so
50
431

$

531

Docket No . KENT 93-825

CITATION NO .
3828418
2787574
2787575
4238594
4238595
4238741
4238743
4238799
4238800
4239261
4239262
3835662
3828818
3828819

DATE

30 C . F.R.
SECTION

11/19/92
4/13/93
4/13/93
4/14/93
4/14/93
4/14/93
4/14/93
4/14/93
4/14/93
4/14/93
4/14/93
4/15/93
5/11/93
5/11/93

7 5.1710
75.400
75.400
75.518
75.518
75 . 503
75 . 400
75.1715
75.220
75 . 333(b) (2)
75.220
75 . 220
75 . 1719-l(b)
77 . 502

ASSESSMENT
$ 362
2301
431
431
431 ..
50
431
50
431
431
431
431
431
431

TOTAL

SETTLEMENT
$

136
2301
431
215
216
50
50*
50
50*
50*
431
431
50*
50*

$ 4511

* Citation modified to .d elete "S&S" special findings.
Docket No. KENT 93-888

CITATION NO.

DATE

~o C.•F1B•
SECTION

2793753
2793754
2793755
2793756
2793757
4257403

6/7/93
6/7/93
6/7/93
6/9/93
6/9/93
6/9/93

75.362(d)(l)(i) $ 793
690
75.1102
75.400
690
77.205
690
690
75.1722(a)
690
75 . 1101

1740

ASSESSMENT

SETTLEMENT

$

793
690
690
50*
690
345

CITATION NO.
4257796
4257404
4257797
2793758
2793759
4257406
2793760

DATE

30 C.P.R.
SECTION

ASSESSMENT

6/15/93
6/16/93
6/16/93
6/21/93
6/21/93
6/21/93
6/22/93

75.517
77.410(c)
75.807
77.1605(d)
77.1606(c)
7 5.807
75 . 1722(a)

267
690
690
690
690
690
690

SETTLEMENT
133
345
345
Vacated
Vacated
345
-2.Q*

$ 4476

TOTAL
* Citation modified to delete "S&S" special findings.
Docket No. KENT 93-919

CITATION NO.
4257930
4257934
4257936
4257937
4257940

DATE

30 C.F.R.
SECTION

6/24/93
6/24/93
6/24/93
6/24/93
6/24/93

75 . 380(d) (1)
$ 903
75 . 1719-l(e) (5)
431
75.1100-3
431
75.1725(a)
431
77.1109(d)
431

$

TOTAL

$ 1012

ASSESSMENT

SET'l'LEMENT
50*
431
50*
431
50•

* citation modified to delete "S&S" special findings.
Docket No . KENT 93-920

CITATION NO.
4238597
2787576
2787577
2787578
2787580
3828782
3828783
4248401

DATE

30 C.P.R.
SECTION

4/14/93
4/15/93
4/15/93
4/15/93
4/15/93
4/16/93
4/16/93
6/28/93

75.503
50.10
75.902
75.601-1
75.400
75.400-2
75.1101-23 (c) .
75.364 (a) (2) (iii)

ASSESSMENT

$ 750
950
3800
5700
5900
506
690
690

TOTAL
• Citation modified to delete "S&S" special findings.

1741

SETTLEMENT
50
$
Vacated
3230
4845
5900
Vacated
100
--2..Q.*
$14175

Docket No. KENT 93-921
Section 104(d) (2) Order No. 3828600, which was issued on
June 29, 1993, and alleged a violation of 30 C.F.R. S 75.220 was
vacated. This is the only citation/order contained in this
docket and it is therefore dismissed.
pocket No. KENT 93-993
30 C.F.R.
SECTION

CITATION NO.
9885302

6/3/93

ASSESSMENT

SETTLEMENT

$1019

$ 1019

SETTLEMENT

70.100

Docket No. KENT 94-19

CITATION NO.

DATE

30 C.F.R.
SECTION

ASSESSMENT

2793766
2793767
2793768
2793769

8/4/93
8/5/93
8/5/93
8/5/93

75.523
75.503
75.606
75.1100-3

$ 690
690
690
267

TOTAL

$

690
50*
50*
267

$ 1057

* Citation modified to delete "S&S" special findings.
Docket No. KENT 94-46
30 C.F.R.
SECTION

CITATION NO.
2793771
2793776
2793778
4257749

8/11/93
8/23/93
8/24/93
8/26/93

ASSESSMENT

75.1106-3(a) (2)
75.400
75.312(f)
75.400

$ 690
690
1610
690

TOTAL

SETTLEMENT

$

50*
50*
·Vacated
-2.Q.*

$

150

* Citation modified to delete "S&S" special findings.
Docket No. KENT 94-47
30 C.F.R.
SECTION

CXTATION NO.
9885300

6/3/93

70.101

1742

ASSESSMENT

SETTLEMENT

$1019

$ 1019

Docket No. KENT 94-106

CITATION NO.
9885299.
2996296
2996298
4040121
4040122
3835565

DATE

30 C.F.R.
SECTION

5/24/93
8/11/93
8/12/93
8/13/93
8/13/93
8/23/93

70 . 101
75.202(a}
75.220
75.17 22
75.220
75.1720(a}

ASSESSMENT
$

1779
690
690
690
690
690

TOTAL

SETTLEMENT
$

750
690
50*
34 5
50*
690

$ 2575

* Citation modified to delete "S&S" special findings .
Turning now to the issue of the basis upon which I arr i v ed
at the civil penalties I assessed in these cases or approved as
the result of settlements arrived at between the parties in these
cases, the starting point is always section llO(i) of the Mine
Act.
The statutory standards for assessing civil penalties for
violations are set forth in section llO(i) of the Act, as
follows:
The Commission shall have authority to assess all
civil penalties provided in this chapter. In assessing
civil monetary penalties, the Commission shall consider
the operator's history of previous violations, the
appropriateness of such penalty to the size of the
business of the operator charged, whether the operator
was negligent, the effect on the operator's ability to
continue in business, the gravity of the violation, and
the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after
notification of a violation. In proposing civil
penalties under this chapter, the Secretary may rely
upon a summary review of the information available to
him and shall not be required to make findings of fact
concerning the above factors
, .
If an operator contests the Secretary's proposed civil
penalties, the Secretary brings an action before the Commission.
Hearings before a Commission Administrative Law Judge are ~ DQYQ
and the judge applies the six statutory criteria contained in
section llO(i) of the Act without consideration of the
Secretary's administrative formulas and regulations for proposing
civil penalties. See Sellersburg Stone Co. v. Federal Mine
Safety and Health Review Commission, 736 F.2d 1147 (7th Cir.
1984).

1 743

This is precisely how I arrived at the penalties I am
assessing in these cases. I considered Manalapan to be a "large"
coal operator and considered evidence concerning its production
record and violation history alone, as well as its negligence ,
the gravity of each violation and gave credit for good faith
abatement of the subject citations.
ORDER
In view of all the foregoing findings and conclusions, all
the citations included in these dockets are affirmed, modified or
vacated as recited in the body of this decision and it is ORDERED
that the respondent, Manalapan Mining Company, Inc., PAY the
assessed civil penalties of $41,778 to the Secretary of Labor
within 30 day s of this decision. Upon receipt of payment, these
cases are DISMISSED.

Law Judge
Distribution :
Joseph B. Luckett, Esq., Office of the Solicitor,
U. s. Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail)
Susan c. Lawson, Esq., Buttermore, Turner, Lawson & Boggs,
P.S.C . , 111 South First Street, P. o. Box 935, Harlan, KY 40831
(Certified Mail)
Richard D. Cohelia, Safety Director, Manalapan Mining Company,
~nc., P. O. Box 311, Brookside, KY 40801-0311 (Certified Mail)
dcp

1 744

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

AUG 1 2 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF,
FRANK SISK,
Complainant

DISCRIMINATION PROCEEDING
:

Docket No. KENT 94-395-D
MSHA Case No. MADI CD 93-1·1
Baker Mine

v.

FRONTIER-KEMPER CONSTRUCTORS,
INC., d/b/a DELTA SHAFT
CONSTUCTION COMPANY,
Respondent
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF,
FRANK SISK,
Complainant

Docket No. KENT 94-560-D
MSHA Case No. MADI CD 93-11
Baker Mine

v.

FRONTIER-KEMPER CONSTRUCTORS,
INC. I
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Hodgdon

These cases are before me on complaints of discrimination
under Section 105(c) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 815(c). The Secretary, by counsel, has filed a
motion to approve a settlement agreement. The settlement
agreement, signed by all parties, provides that the terms of
the agreement shall be specifically incorporated in this
decision. Having considered the representations and
documentation submitted, I conclude that the proffered settlement
is appropriate under the Act and is in the public interest.
Accordingly, the motion for approval of settlement is
GRANTED and it is ORDERED that:
(1) Nothing contained in the Settlement Agreement
shall be deemed an admission of liability or wrongdoing
on the part of the Respondent.

1745

(2) The Respondent will expunge from its personnel
files all records of, and references to, the
Respondent's July 7, 1993, discharge of the complaining
miner, Frank Sisk.
(3)
The complaining miner, Frank Sisk, will be
entitled to future employment with the Respondent in
accordance with his experience, training, abilities and
relative seniority.

(4)
The Respondent shall pay the complaining miner the
sum of $40,000 . 00 in damages by check which shall be
made payable to "Frank Sisk" and delivered to counsel
for the Secretary for immediate disbursement upon the
issuance of this decision.
(5)
The Respondent shall pay a civil penalty in the
sum of $10,000.00 by check made payable to "USDOLMSHA," which shall be delivered to counsel for the
Secretary for immediate disbursement upon the issuance
of this decision.

(6)
Each party shall bear its own fees and other
expenses incurred in connection with any stage of the
proceedings.
Upon payment of the damages to Frank Sisk and the civil penalty
to the Secretary, these proceedings are DISMISSED.

~~*

Administrative Law Judge

Distribution:
Brain W. Dougherty, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Rd., Suite B-201,
Nashville, TN 37215 (Certified Mail)
,

Mr. William Howe, Esq., Howe, Anderson & Steyer, Suite 1050, 1747
Pennsylvania Ave., N.W., Washington, D.C. 20006 (Certified Mail)

Mr. Frank Sisk, Complainant, 285 Ridgeway Road, Eldorado, IL
62930

(Certified Mail)

c. T. Corporation System, Agent for Service, Frontier-Kemper
Constructors, Inc., Kentucky Home Life Bldg., Room 1102,
Louisville, KY 40202 (Certified Mail)
/lbk

1746

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
6203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG

9 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
NEW HOPE OF KENTUCKY, INC.,
Respondent

CIVIL PENALTY PROCEEDING
Docket. No. KENT 94-326
A.C. No. 15-16708-03580

.: No . l Mine
DECISION

Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the · Petitioner;
John Robbins, Supervisor, New Hope of Kentucky,
Inc., Pineville, Kentucky, for the Respondent.

Before:

Judge Feldman

This matter concerns a petition for civil penalty filed by
the Secretary of Labor against the respondent pursuant to
Section lOS(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. S 801 et seq., (the Act). The petition seeks to impose
a total civil penalty of $1,642 for three alleged violations of
the mandatory health and safety standards contained in Part 75 of
the regulations. 30 C.F.R. Part 75.
The above proceeding was called for hearing on July · l4,
1994, in Pineville, Kentucky . The respondent was represented by
John Robbins who is the respondent's supervisor. Ana Robbins,
John Robbins' wife, is the President of the respondent
corporation.
At the commencement of trial, the parties informed me they
had reached a settlement . Counsel for the Secretary presented
the settlement terms for my approval. Citation No. 4240224 cited
an alleged violation of section 75.310(d), · 30 C.F.R. S 75.JlO(d),
because the weak walls and explosion doors associated with the
mine•s main fan were not constructed in conformity with the
regulatory requirements. The parties moved to reduce the degree
of negligence associated with this violation from moderate to low
because the main fan had been in existence for a prolonged period
1747

of time and its construction and design had been inspected by the
Mine Safety and Health Administration (MSHA) on numerous
occasions. Consequently, the parties averred that the deficiency
in the fan's design was not readily apparent. Therefore, the
parties moved to reduce the proposed penalty from $506 to $216.
The .proposed civil penalties for Citation Nos. 4240258 and
4240259 were $724 and $412, respectively. The settlement terms
included reducing the degree of negligence associated with these
citations from moderate to low and a corresponding reduction in
the proposed penalties to reflect a $382 penalty for Citation
No. 4240258 anq a $292 penalty for Citation No. 4240259. The
reduction in penalties was predicated on the assertion that the
cited violations were primarily attributable to the mining of an
adjacent mine by another oper,ator.
Thus, the settlement motion presented on the record
contemplated a reduction in total civil penalties from $1,642 to
$890. At the hearing the respondent emphasized that its
agreement to settle this matter should not be construed as an
admission of liability or negligence. In this regard, the
parties settlement terms include the following statement:
The parties agree that for purposes of actions or
proceedings other than actions or proceedings under the
Federal Mine Safety and Health Act of 1977 (Mine Act),
nothing contained herein shall be deemed an admission
by the respondent New Hope of Kentucky, Inc., that it
violated the Mine Act or its regulations or standards.
ORDER
In view of the above, the parties' motion to approve
settlement IS GRANTED. Accordingly, IT IS ORDERED that the
respondent pay a civil penalty of $890 in satisfaction of the
three citations in issue. Payment is to be made to the Mine
Safety and Health Administration within 30 days of the date of
this decision. .The failure of the respondent to remit timely
payment will result in the imposition of the initial proposed
civil penalty of $1,642. Upon timely receipt of the $890
payment, this case IS DISMISSED.

~
~~
I"'/-

-==---=-=-

Jerold Feldman
Administrative Law Judge

1748

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862 (Certified Mail)
Mr. Reece. Lamar, and Mr. John Robbins, Supervisors, New Hope of
Kentucky, Inc., P.O. Box 1597, Harlan, KY 40831 (Certified Mail)
/fb

1749

PBDBRAL JUD SAl'B'l'Y .um JIBAL'l'B RBVJ:BW COJIKJ:SSJ:OB
OFFICE OF ADMINISTRATIVE LAW J'-'lGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG

9 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of DAVJ:D R. SKELTON,
complainant

v.

PEABODY COAL COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
AD~INISTRATION (MSHA),
on behalf of MICHAEL E. KRESS,
Complainant

v.

. DISCRIMINATION PROCEEDINGS
.
. Docket No. LAKE 94-204-D
. VINC CD 92-02
.
.
.
. Docket No . LAKE 94-205-D
.. VINC CD 92-03
. Squaw Creek Mine
..

PEABODY COAL COMPANY,
Respondent
ORDER DISMISSING PROCEEDINGS
Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern complaints of alleged discrimination filed by the Secretary of Labor on May 9, 1994, against
the respondent pursuant to section 105(c) (2) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 815(c) (2). The
complaints were filed on behalf of two miners employed by the
respondent (David R. Skelton and Michael E. Kress).
It would appear from the pleadings that Mr. Skelton and
Mr. Kress filed their initial complaint with MSHA on August 17 .
1992, after they were verbally reprimanded on June 23, 1992, by
their supervisor for allegedly "taking too long for lunch and
operating their pans (scrapers) too slow on open roadways to the
point of being unproductive and insubordinate". In support of
their complaint, Mr. Skelton and Mr. Kress stated that they "were
operating our equipment in a safe manner as conditions dictated,"
and they demanded that the reprimands be removed.

1750

The Secretary alleges that Mr. Skelton and Mr. Kress engaged
in protected activity "by refusing to drive the vehicles they
were driving, in the performance of their mining activities,
because they had a good faith and reasonable belief, that
operating at higher speeds would cause injury to themselves
or to others". The Secretary also alleges that Mr. Skelton and
Mr. Kress were discriminated against and reprimanded for driving
their vehicles too slowly. It is not clear whether the Secretary
is alleging two protected activities (refusing to drive the
scrapers and/or operating them too slowly).
The pleadings reflect that the local UMWA union filed a
grievance on behalf of Mr. Skelton and Mr. Kress on July 6, 1992,
alleging that "mine management is creating an unsafe condition
and practice by interfering with the safety rights of the members
of local union 1189 and others". The grievance proceeded through
several steps pursuant to the 1988 union/ management agreement,
and it was resolved and withdrawn on August 21, 1992, "with the
understanding that management will not use intimidation to
interfere with the safety rights of the members of local union
1189". It is not ·c1ear whether the verbal reprimands were ever
recorded or removed from the employment records of Mr. Skelton
and Mr. Kress.
The Secretary requests the following relief:
l. A finding that Mr. Skelton and Mr. Kress were
unlawfully discriminated against when they were
reprimanded for engaging in protected activity.
2. Expungement from the respondent's employment
records of any and all references to ~he reprimands.
3. The posting of a Notice at the mine for a period of
not less than 60 days which states the respondent's
recognition of the miners' statutory rights to file
discrimination or hazard complaints with MSHA, and the
respondent's commitment to honor these rights and not
to interfere in any manner with the exercise of thes.e
rights.
4. A civil penalty assessments of $8,500, against
the respondent for the alleged violations of
section lOS(c) (1).
In its answer, the respondent admitted that Mr. Skelton and
Mr. Kress were verbally reprimanded by their supervisor for
operating the scrapers too slowly on the haul road and for taking
excessively long lunch periods. However, the respondent denied
any discrimination, and asserted that the filing of the
Secretary's complaints approximately two (2) years after the
alleged discriminatory reprimand, and approximately twenty (20)

1751

months after the miners• complaints were filed with. MSHA are
untimely and have prejudiced the respondent in its efforts to
respdnd to and defend against the complaints.
On June 15, 1994, I issued an Order to Show Cause requiring
the Secretary to 'state why these cases should not be dismissed as
untimely. The Secretary's response was received on July 8, 1994.
The respondent filed a reply to the Secretary's response, and it
was received on July 11, 1994.
The Secretary's Arguments
The Secretary takes the position that the complaints should
not be dismissed as untimely because a dismissal would not serve
to protect the health and safety of mine workers. The Secretary
further believes that the respondent would not be materially
prejudiced if the complaints were allowed to go forward, and he
points out that the respondent has not stated the nature of any
prejudice and only gives a vague reference that it would be
prejudiced in trying to defend the complaints. The Secretary
concludes that the claim of prejudice by the respondent is merely
based upon the Secretary's failure to meet the statutory time
limits set forth in section lOS(c) (3) of the Act . The Secretary
asserts that these time limits are not jurisdictional, and that
the rights of the complaining miners to be free of intimidation
in the exercise of their protected rights far outweighs any claim
of prejudice by the respondent.
The Secretary argues that the respondent has not shown any
legitimate claim of material prejudice. Citing Secretary of
Labor CMSHA) ex rel Donald R. Hale v. 4-A Coal Company,
8 FMSHRC 905 (June 1986), where the Commission reversed an ALJ
decision dismissing an untimely complaint which had been filed by
the Secretary more than two years after the miners' complaint had
been filed with MSHA, the Secretary asserts that his failure to
meet any of the statutory deadlines was subjugated by the miner's
rights, and that the innocent miners should not be prejudiced or
lose their protected rights because of the Secretary's failure to
timely meet his obligations.
Commenting on my reference to the Commission's "untimely
filing" decisions in Joseph W. Herman v . IMCO Seryices, 4 FMSHRC
2135 (December 1982), and David Hollis v. Consolidation Coal
Company, 6 FMSHRC 21 (January 1984), upholding the dismissal of
the complaints as untimely (eleven months in one case, and more
than six months in the other), the Secretary asserts that those
cases are distinguishable from the instant complaints in that
the respondent mine operators apparently had no notice that the
miners were alleging discrimination until their complaints were
filed with the commission.

1752

The Secretary maintains that the respondent in the present
cases had ample notice that the two miners had filed complaints
and were pursuing their rights under the Act, as well as their
rights under the labor/management grievance procedure. The
Secretary points out that the investigation of the complaints
commenced within the time set by statute, that the respondent was
notified of the complaints by mail on August 25, 1992, and that
the respondent's counsel was present when its supervisory
employees were interviewed.
The Secretary asserts that the respondent cannot claim
unfair surprise because it has been aware for some time that the
complaints were pending, and that prudence would have dictated
that the respondent place itself in a position to defend against
the potential claims from the outset, until respondent was
informed that the investigation had been concluded, and the
Secretary issued his findings.
The Secretary states that he has good reasons for the delay
in the filing of the complaints in these cases. In support of
this conclusion, the Secretary asserts that the cases are
somewhat novel in that there is no request for a monetary "make
whole" remedy from the complainants, but only for a civil penalty
assessment for the alleged acts of discrimination. The Secretary
further states that the grievance which arose out of the same set
of facts giving rise of the instant cases was withdrawn after the
respondent agreed that it would not intimidate the miners in the
exercise of their rights. The Secretary further states that
additional guidance was needed in order to determine whether any
more of his scarce resources should be invested in these cases,
when the objectives of the Mine Act might have been served
through the BCOA/ UMWA labor contract grievance process.
The Secretary further argues that there were more levels of
review in these cases than normal, and that certain portions of
the cases had to be reinvestigated before a final determination
that complaints should be filed with the Commission. In
addition, because of the additional levels of review, the
investigation file had several destinations and was misplaced for
a time and the file had to be duplicated for the Secretary's
counsel who eventually filed the complaints. The Secretary
states that in Secretary v. M. Jamieson Company, 12 FMSHRC 901
(March 1990), Chief Judge Paul Merlin allowed late filing of
penalty contests where a file was misplaced.
In conclusion, the Secretary states that the time limits set
by Congress were not only to avoid the bringing of stale claims,
but also to bring swift relief for a miner who had been wronged
in the exercise of his statutory rights. The Secretary admits
that he failed to make his determination quickly, but maintains
that the miners should not lose their rights for his failure
particularly since they did what was required of them. The

1753

Secretary believes that the objectives of the Mine Act will only
be served by allowing the claims of Mr. Skelton and Mr. Kress to
go forward.
The Respondent's Arguments
With regard to the Commission's decision in the 4-A Coal
Company case cited by the Secretary, holding that a complaining
miner "should not be prejudiced by the failure of the Government
to meet its time obligations", the respondent asserts that these
rationale applies with greatly diminished force in the instant
cases where the Secretary has admitted that he seeks no monetary
remedy for the miners and only seeks civil penalty assessments
against the respondent.
The respondent candidly admits that it does not allege that
any witnesses have died or become otherwise unavailable or that
documentary evidence has been lost or destroyed in the nearly two
years in which the Secretary was deciding what to do with these
cases. However, the respondent asserts that the longer the
interval between event and trial, the more difficult it is to
present a case because memories of details dim, while witnesses•
versions of events harden like cement in their minds, and the
search for truth is impeded. In addition to this general
prejudice, the respondent maintains that it will be inconvenienced by the Secretary's delay in that the Superintendent of
Squaw Creek Mine at the time of the alleged discrimination has
been reassigned to another mine in the interim and his participation as a witness in these proceedings, involving a mine for
which he is no longer responsible, will interfere with his
ability to manage the mine for which he is currently responsible .
In response to the Secretary's contention that the
respondent failed to act prudently when it was initially informed
of the complaints in the summer of 1992, the respondent asserts
that the Secretary ignores the fact that he does not necessarily
inform operators when he concludes his investigations, and that
the respondent's counsel is still waiting to hear from the
Secretary on a discrimination claim filed by a miner four years
ago. Further, the respondent points out that it requested
production of the secretary's written determination of
discrimination in these cases and that the Secretary objected to
production on the grounds that the documents were privileged.
Under the circumstances, the respondent believes that "it borders
on the disingenuous for the Secretary to suggest that PCC should
have waited for the Secretary ' s findings."
In response to the Secretary's preferred excuses for his
substantial delay in filing the complaints, the respondent states
that the Secretary does not describe the "additional guidance"
needed in these cases or why it took more than a year to obtain
such guidance.

1754

With regard to the Secretary's assertion that he ·w anted to
await the outcome of the grievance proceedings to insure that his
"scarce resources" were not wasted, the respondent points out
that the attachments to the Secretary's response to my show-cause
order show that the grievance was withdrawn on August 21, 1992,
just four days after the miner's complaints in the these cases
were filed in the MSHA field office .
With regard to the Secretary's misplacement of the
investigative file and the need to replace it by duplication of
the investigating office's file , the respondent believes that two
weeks is a generous time allowance for copying a file and that
the actual delay was on the order of 18 months. The respondent
points out that in response to its interrogatory seeking an
excuse for his delay the Secretary did not mention any lost file
and the respondent believes that the Secretary's attitude toward
the time limits of s e ction 105(c) of the Act is that those limits
need not be taken very seriously .
The respondent states that the Secretary's position appears
to be that unless a witness had died or left the country, any
delay by the Secretary in filing a discrimination complaint, no
matter how long and no matter how flimsy his excuse, must be
tolerated. The respondent concedes that there may be
justification for such a position where the rights of miners
would be prejudiced by dismissal, but it emphasizes that in this
case the Secretary does not seek an relief for the miners, only a
civil penalty. The respondent believes that the Secretary would
be the only party to suffer for his dilatory handling of this
matter if the complaints were dismissed, and since the Secretary
has shown no substantial excuse for his delay, the respondent
concludes that the complaints should be dismissed.
Discussion
Section 105 (c) (3) of the Mine Act requires the Secretary to
proceed with expeditioh in investigating and prosecuting a
miner's discrimination complaint. Section 105(c) (2) and . (c) (3)
require the Secretary to act within the following time frames:
1. Commence the investigation of the complaint within
15 days of its receipt from the miner.
2. Within 90 days of the receipt of the complaint,
·notify the complaining miner of any determination as to
whether a violation has occurred.
3 . If a determination is made that a violation has
occurred, immediately file a complaint with the
commission.

1755

The Commission's Rules, at Part 2700, Title 29, Code of
Federal Regulations, implement the statutory time provisions.
Rule 40(a), 29 C.F.R. § 2700.40(a), requires the Secretary to
file a complaint after an investigation if he finds that a
violation has occurred. Rule 4l(a), 29 C.F.R. § 2700.4l(a),
requires the Secretary to file the complaint within 30 days after
his written determination that a violation has occurred.
The 4-A Coal Company case cited by the Secretary concerned a
discharged miner who claimed he was fired for making safety
complaints. While it is clear that the Commission relied on the
legislative history reflecting congressional intent "to protect
innocent miners from losing their cause of action because of
delay by the Secretary," 8 FMSHRC 908, the Commission also
recognized that Congress was equally aware of the due process
problems that may be caused by the prosecution of stale claims.
In this regard, the Commission stated as follows at FMSHRC 908:

* * * * The fair hearing process envisioned by the
Mine Act does not allow us to ignore serious delay by
the Secretary in filing a discrimination complaint
if such delay prejudicially deprives a respondent of
a meaningful opportunity to defend against the
claim. * * * * If the Secretary's complaint is latefiled, it is subject to dismissal if the operator
demonstrates material legal prejudice attributable to
the delay.
See also fn. 4, at 8 FMSHRC 909, where the Commission stated
as follows:
We reject the Secretary's contention that because he
filed his complaint within 30 days of determining that
a violation had occurred, he acted in a timely fashion.
This contention ignores the 90-day time frame specified
in section 105(c) (3) and the possibly prejudicial
effect of the considerable delay involved here.
The Secretary also relies on a ruling by Chief Judge Merlin
in Secretary v. M. Jamieson Company, 12 FMSHRC 901 (March 2,
1990), a civil penalty case in which Judge Merlin allowed the
late filing of the Secretary's proposed civil penalty assessment
due to a misplaced file. In excusing the delay, Judge Merlin
relied on the fact that a relatively short period of time was
involved, the Secretary's response to this show-cause order was
prompt, and the operator did not allege or show any prejudice.
In Lawrence Ready Mix Concrete Corporation, 6 FMSHRC 246
(February 1984), Judge Merlin dismissed the Secretary's
proposed civil penalty petition filed a year and a half late.
Judge Merlin ruled that the Secretary's excuse that the delay was
caused by the placing of certain documents in the wrong file and

1756

the inadvertent failure to file the petition did not constitute
good cause "for such an extraordinarily long delay", and he
concluded that the operator should not have to answer such a
stale claim.
In Salt Lake County Road Department, 3 FMSHRC 1714 (July
1981), the Secretary argued that its two-month delay in filing a
proposed civil penalty assessment was due to an extraordinarily
high caseload and lack of clerical personnel. In denying the
operator's contention that the penalty proposal should have been
dismissed because of the late filing, the Commission held that on
balanee, and in the absence of prejudice to the operator,
dismissal of the case because of a procedural error would not
further the public interest in effectuating the Mine Act's
substantive civil penalty scheme. However, the Commission took
note of the fact that the operator made no effort to demonstrate
prejudice, and while recognizing that mistakes can happen because
of the voluminous Secretarial litigation nationwide, the
Commission stated a.s follows at 3 FMSHRC 1717:
The Secretary's reason for delay, an extraordinarily
high caseload and lack of clerical personal, might be
deemed an improper excuse for filing a simple, two-page
pleading two months late. As Salt Lake points out,
almost any law off ice in the country can claim the same
"cause" as an excuse to evade every time limit in the
various rules of civil procedure. However, the
Secretary is engaged in voluminous national litigation
and mistakes can happen . We believe that the Secretary
minimally satisfied the adequate cause standard in this
case. This is not to say that we will tolerate a
practice of filing relatively uncomplicated pleadings
late . Therefore. we cannot too strongly urge the
Secretary to comply with Commission Rule 27. to the end
that the enforcement goals embodied in section 105(d)
be realized. (Emphasis added).
Medicine Bow Coal Company, 4 FMSHRC 882 (May 1982),
concerned a 15-day delay in the filing of civil penalty proposals
by the Secretary. In affirming the trial judge's conclusion that
the delay did not warrant a dismissal of the case, the Commission
relied on its decision in Salt Lake County Road Department, a
two-part test, namely, a showing by the Secretary that there was
adequate cause for the delayed filing, and mine operator
prejudice caused by the delayed filing. The Commission concluded
that the operator failed to show a delay so great that
preparation or presentation of its case was prejudiced .

1757

In The Anaconda Company, 3 FMSHRC 1926, (August 1981),
Judge Morris dismissed the Secretary's civil penalty petition
that was filed nearly two years late. Citing the Salt I.ake
County Road Department decision, Judge Morris stated as follows
at 3 FMSHRC 1927:
The Commission established a two prong test to
determine if the late filing of the proposal for
penalty addressed to the Commission is in substantial
compliance with the Act and, therefore, should not
result in the dismissal of the case. The Secretary
must show that there was adequate cause for the delay .
The mine operator must show that it has been prejudiced
by the delay. These two requirements are to be
balanced against each other with the scales weighing
heavily on the side of enforcement . However, the
objective of effective enforcement can be thwarted by
the Secretary's inexcusable delay over a substantial
period of time. The Commission warned the Secretary
against any unwarranted dilatory action.
The above test is directly applicable here. Congress
perceived that the prompt assessment of a penalty was
necessary for effective enforcement. In the present
case, the delay of nearly two years is on its ~ace a
blatant disregard of this objective. Contrary to the
Secretary's statement in its response to the motion,
Section 815(a) of the Act provides the statutory
authority for the vacation of a citation where the
Secretary has been so dilatory in assessing a penalty
that effectiv e enforcement of the Act is impossible.
In Price Rive r Coal Company, 4 FMSHRC 489 (March 1982).
Judge Morris sustained the operator's motion to dismiss the
Secretary's untimely civil penalty proposals, citing Salt Lake
County Road Department. Judge Morris concluded that the
Secretary's asserted excuse of a high volume of case workload and
lack of clerical personnel were inadequate reasons fo~ the delay,
and the absence of a key witness prejudiced the mine operator's
case .
The Commission has on several occasions in the past
admonished the Secretary for failing to meet the Mine Act's
statutory time limits for filing discrimination complaints, and
in my view, these cases are an example of unjustified and
unreasonable delays. If the time constraints found in the Act
and the CommissiQn's Rules are to have any meaning, I believe the
Secretary should se~ the example, and be sensitive to those
requirements, particularly in cases brought on behalf of miners
who may find their protected rights in jeopardy because of his
failure to timely bring case before the Commission.

1758

After careful review and consideration of the Secretary's
reasons for the protracted delay in these cases, they are
rejected, and I conclude and find that they are insufficient and
inadequate reasons for . justifying the delay. The asserted
"novelty" of these cases is no excuse. Indeed, the fact that
these cases, in their present posture, were admittedly filed by
the Secretary "only for a civil penalty assessment for the
alleged acts of discrimination" is all the more reason for
insuring compliance with the time limitations of the Act and the
Commission's Rules. Protracted unjustified delays in cases where
the Secretary's primary reason for filing the complaints is to
seek civil penalty assessments of $8,SOO, against a mine operator
are inherently prejudicial to an operator's expectation and right
to defend and be heard within a reasonable time.
With regard to the union grievance that was filed by
Mr. Skelton and Mr. Kress, ·r take note of the fact that it
arose out of the same set of facts giving rise to the instant
complaints and that it was withdrawn on August 21, 1992,
approximately twenty-one (21} months before the filing of
the complaints by the Secretary on May 10, 1994. I fail to
understand why the disposition of the grievance, which apparently
resolved the safety dispute between the parties, added to the
protracted delay.
With respect to the additional reasons advanced by the
Secretary for the delay (additional levels of review,
reinvestigation, and lost files), I am not persuaded that
they justify the delay in filing these complaints.
The Secretary admits that the misplaced file was duplicated
for his counsel who filed the complaints. The Secretary does not
state how long the file was misplaced, and it would appear to me
that the file located at the MSHA investigating off ice was not
lost or misplaced and was readily available.
Although the respondent in these proceedings admittedly does
not allege that any witnesses are unavailable, or that any
documentary evidence has been lost or destroyed, the supporting
affidavit of its trial counsel states that the passage of time
inevitably hinders and impedes the effective preparation and
presentation of a case. Counsel confirms that the respondent was
notified of the initial filing of the miners's complaints with
MSHA in August 1992, and that he represented management's
witnesses during the interviews with MSHA's investigators.
However, after the passage of 6 months, with no further notice
from MSHA, counsel assumed that MSHA decided not to proceed
further.
Respondent's counsel further maintains that the longer the
interval between the alleged discriminatory act and the trial, it
is more difficult to present a case because memories of the
1759

details and the witnesses• versions of the events dim with the
passage of time. I conclude and find that the respondent has made
a minimum showing of prejudice. I reject the respondent's
assertion that it will be inconvenienced if it had to produce the
miner superintendent who is no longer working at the mine where
the alleged reprimand of the miners took place . Everyone who
participates in trials in cases of this kind may, in one manner
or another, claim that is not convenient for them to appear or
participate. There is no showing that the superintendent cannot
be deposed at the mine where he is now employed.
After careful review and consideration of the pleadings and
arguments filed by the parties, I conclude and find that the
Secretary's delay in bringing these cases to the Commission is
not justified and I agree with the respondent's position in
support of its motion to dismiss. I am not unmindful of the fact
that the dismissal of a discrimination complaint may prejudice
the rights of miners who are not responsible for the delay, and
that dismissals are not to be taken lightly. However, on the
facts of these cases where it appears that the identical issue
was pursued by ·the miners through the grievances they filed and
that the grievances were withdrawn, and the Secretary has
admitted that he is not seeking a "make whole" remedy for the
miners but only a civil penalty assessment, I believe that on
balance, the scales tip in favor o·f the respondent. Further, I
am not convinced that the public interest is served by
continually allowing the Secretary to avoid the timely filing of
cases of this kind, particularly where he is seeking rather
substantial civil penalty assessments for an alleged incident of
discrimination that appears to have been resolved nearly 2 years
ago through the grievance process. I believe that basic fairness
dictates that the Secretary act with reasonable dispatch in
pursuing a case . I simply cannot conclude that he has done so
in these cases.
ORDER
In view of the foregoing, the respondent's motiqn to dismiss
these cases as untimely IS GRANTED, and the complaints ARE
DISMISSED.

k.4~

Administrative Law Judge

1760

Distribution :
Lisa A. Gray, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)
David R. Joest, Division Counsel, Peabody Coal Company,
1951 Barrett court, P.O. Box 1990, Henderson, KY 42420-1990
(Certified Mail)
/ml

1761

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5267/FAX (303) 844-5268

AUG 1 5 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 93-123-M
A.C. No. 26-02214-05501
Yankee Project

v.
D.H. BLATTNER & SONS, INC.,
Respondent

Docket No. WEST 93-286-M
A. C. No . 45-03280-05502
Van Stone Mine

D. H. BLATTNER & SONS INC.,
Contestant

CONTEST PROCEEDING
Docket No. WEST 94-5-RM
Citation No. 4138847; 9/2/93

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

Aurora Mine

DECISION

Appearances:

Robert Cohen, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington Virginia,
for Petitioner;
Michael S . Lattier, Esq., GOUGH, SHANAHAN, JOHNSON
& WATERMAN, Helena, Montana,
for Respondent .

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges Respondent, D.H. Blattner &
Sons, Inc. ("Blattner"), with violating the Federal Mine Safety
and Health Act of 1977, 30 U. S.C. § 801, et~ {the "Act").
1993.

A hearing was held in Sparks, Nevada, on
The parties filed post-trial briefs.

1762

December 8-9,

ISSUES
The issues are whether Blattner, an independent contractor,
is required to file a l egal identity report (Form 2000-7) as
provided in 30 C. F.R. § 41.20.
The cited regulation provides as follows :
Subpart C--Operator' s Report to the Mine
Safety and Health Admi nistration
§

41.20 Leqal identity report.

Each operat or of a coal or other mine shall
file notification of legal identity and every
change t hereof with the appropriate district
manager of the Mine Safety and Health Administration by properly completing, mailing, or
otherwise delivering Form 2000- 7 "legal identity report" which shall be provided by the
Mine Safety and Health Administration for
this purpose. If additional space is required, the operator may use a separate sheet
or sheets.
SUMMARY OF THE CASES

These consolidated cases involve t hree separate citations
for failure to file a legal identity report . The first citation,
issued on September 1 4 , 1992, relates to the Yankee Pit or Yankee
Project Mine located in the state of Nevada.
The second citation, issued on November 2, 1992 , relates to
the Van Stone Mine, l ocat ed in the state of Washington.
The third citation, issued on September 2, 1993 , relates to
the Au rora Partner ship Mine, locat ed in t he state o f Nevada.
Althou gh worded somewhat differently , each c i tation charges
Bl attner with violat i ng 30 C.F.R . § 41 .20 (1992) i n that Blatt ner
failed to file a " Form 2000- 7 Legal I d e ntit y Repor t." Blattner contests the t h ree citations and t he proposed penalties .
EVIDENCE
The evidence offer ed by each party is essential ly uncontroverteq . Blattner ' s evid e nce shows it is a construction company
founded in the ear ly 1900s . It has been involved in various
heavy construction act ivities for most of this century . Bl attner
did not become invol ved in mining until approxi mately 1979 .
(Tr.
314). Bill Blattner , the president of the company , estimated its
1763

mining activity ranges from 30 to 60 percent of its total work at
any given time. It continues be involved in heavy construction
activities, such as highway construction, which continues to be a
major part of its business. · (Tr. 315).
Prior to the issuance of the citations at issue herein,
Blattner obtained a three-digit contractor identification number.
Blattner used that number on all jobs -at the mines in which it
worked. Prior to the issuance of the citations, Blattner was
never asked to file a legal identity report. (Tr. 318). Blattner is currently working at nine mines providing essentially the
same type of service at each mine.
(Tr. 315-316).
1.

Yankee Project.

on October 17, 1991, Blattner entered into a contract with
USMX, Inc., to provide certain services for USMX at their Yankee
Project Mine, which is an open pit, heap leach gold mine. (Jt.
Ex. 1). The services which Blattner provides at the mine include, primarily, loading ore and waste onto their haul trucks,
hauling that material to stockpiles and waste dumps, and dumping
the material at the appropriate places. Blattner retained a subcontractor, ICI, to perform the drilling and blasting work.
Blattner is paid on the basis of the tonnage of material hauled.
It does not receive any royalties. (Tr. 319-320).
USMX was in charge of the project and had overall control
and direction of the project. (Kentopp Dep. at 14, 36, 37). It
simply hired Blattner to provide equipment and manpower.
(Kentopp Oep. at 45). USMX did all the planning and engineering for
the project and also ran the crushing and leaching operation.
Blattner had no input in the design of anything at the mine.
(Kentopp Dep. at 8, 10, 20).
It was necessary for USMX · personnel to be on-site daily to
run the mine. They could not have run the mine by telephone.
(Kentopp Dep. at 11). USMX surveyors worked in the pit area
daily laying out pit limits, laying out blast patterns, collecting blast hole samples, cutting stakes for drilling, laying
out grade stakes during the mining, and staking out the boundaries to determine who the pit was to be mined. (Kentopp Oep . at
11, 18, 19, 20).
USMX engineers were in the pit to insure Blattner was mining
according to the plans . This required daily on-site monitoring
by USMX. Any work that was defective could be rejected by USMX.
(Kentopp Dep. at 21-22). USMX geologists were in the pit directing Blattner as to what was ore and what was waste and where to
dump the ore and waste. USMX personnel were in contact with
Blattner personnel several times a day. There were weekly pro-

1764

duction meetings between USMX and Blattner. USMX gave Blattner
direction as to where it should be mining and how it should be
accomplished.
{Tr. 541-542).
ICI, the drilling and blasting subcontractor, supervised and
trained its own employees. ICI provided its own safety training
to its employees. Blattner had no involvement in the training
and safety training of ICI's employees. ICI provided and maintained its own equipment. ICI determined itself how it should
best accomplish its job; however, it was provided with certain
specifications and direction by USMX.
(Tr. 540-541).
MSHA admitted at the hearing that USMX was responsible for
production at the mine.
(Tr. 544) .

2.

Van Stone Mine.

On November 19, 1990, Blattner entered into a contract with
Equinox Resources (Equinox) to provide certain services for
Equinox at the Van Stone mine. The Van Stone mine is a lead and
zinc mine. Blattner provided the same type of service to Equinox
as it did for USMX; namely, it loaded the ore and waste, hauled
i t to the dump sites and stockpile, and dumped the material.
Blattner retained subcontractor Roundup Powder for drilling and
blasting.
(Tr. 497).
Equinox had approximately 43 employees at the mine. Those
employees included surveyors, engineers, supervisors, crusher
and mill workers, and mill maintenance personnel.
(Tr. 493).
Equinox's employees were in contact with Blattner's employees on
an hourly basis. Surveyors were in the pit almost all day and
geologists were in the pit at least half a day every day.
{Tr.
504). Equinox's geologists were in the pit directing Blattner at
all times. They told Blattner employees what was ore and what
was waste.
{Tr. 500). It was absolutely necessary for Equinox's
mine manager, Hans Gertsma, and other Equinox employees to be onsite to supervise their contractors, including Blattner.
(Tr. 494).
Equinox controlled everything Blattner did at the mine.
This included specifying how many trucks Blattner could have on
the road, when and where it should repair them, where it should
drill, where to bring the ore and waste, and whom it employed.
{Tr. 495). Equinox provided all the specifications regarding how
drilling and blasting should be accomplished. Equinox monitored
every blast and required adjustments as needed.
{Tr. 498-500).
Equinox required Blattner and Roundup Powder to attend daily
meetings with its geologists, surveyors, and mine superintendent
to discuss what was going to take place that day and what Equinox
needed regarding where the mining would be conducted.
(Tr. 501).

17 65

Safety on the property was totally the responsibility - of
Mr. Gertsma. Equinox made sure that Blattner conducted safety
meetings. Blattner and Equinox employees jointly attended MSHA
training sessions. The safety and health of Blattner's employees
was very important to Gertsma. He was just as concerned about
the safety and health of Blattner's employees as he was about
production at the mine.
(Tr. 508-509, 537).
Equinox had overall control and direction as to how the mine
was run. Equinox was the operator of the mine.
It was responsible for the mining being conducted in the pits. Equinox was responsible for securing all necessary permits to conduct the mining. Blattner was simply hired to move material.
(Tr. 509, 520521, 533-534).
Blattner's relationship with Roundup Powder was the same as
its relationship with ICI at the Yankee Project.
(Tr. 474).
3.

Aurora Partnership Mine.

On June 16, 1993, Blattner entered into a contract with The
Aurora Partnership (Aurora) to provide certain services to Aurora
at the Aurora Partnership Mine.
(Jt. Ex. 3). Aurora Partnership
Mine is an open pit, heap leach gold mine. Blattner provides the
same type of services for Aurora as it does at the Yankee Project
and Van Stone mines. Blattner itself provides the loading, hauling, and dumping work for Aurora. It has ICI as a subcontractor
who provides the drilling and blasting services, while Fisher
Industries, another subcontractor, provides crushing services.
(Tr. 445).
Aurora has approximately 24 employees working at the mine .
These employees work in all areas of the mine on a daily basis.
Their services are necessary to operate the mine.
(Tr. 398).
Aurora provides all the exploration, all the mine planning and
engineering, delineation of the ore bodies, development of the
mine plan and schedule, oversees the mining of the ore body,
oversees that Fisher is crushing to specifications, operates the
heap leach process, and obtains all necessary permits to mine.
(Tr. 401-402).
It is necessary for Jim . Burt, the general manager for
Aurora, and other Aurora personnel, to be on the property to
supervise Blattner. Selective mining practices are critical.
In order to ensure that dilution of the ore is minimized, i t is
vital for Aurora to oversee the day-to-day operations at the
mine. This job could not be done by telephone.
(Tr. 399-400).
Aurora personnel are in the pit approximately 80 percent of
the time on a daily basis. They are in contact with Blattner
personnel on a daily basis, continually providing them with information.
(Tr. 421-422). Blattner cannot mine any material

1766

until' Aurora determines what it is and gives its approval.
Aurora's geologist is in the pit continually directing Blattner's
employees bucketload by bucketload as to what is ore and what . is
waste. The geologist also specifies whether Blattner should use
a loader or a shovel.
(Tr. 414, 454).
Aurora is concerned with safety in the mine. An Aurora employee goes into the pit on a daily basis to monitor stope control.
{Tr. 403). Aurora also places one of its employees in the
pit as a spotter, whose job was to overlook the walls and check
for movement.
(Tr. 461). Mr. Burt is very concerned about the
safety of Blattner's employees. Aurora periodically conducts
safety audits on Blattner to ensure that Blattner's operation is
safe and that it meets with Aurora's satisfaction. Anything
Aurora sees that i s unsafe, it instructs Blattner to correct.
Aurora requires Blattner to report to it any safety concerns
raised by Blattner employees and requires those concerns to be
addressed. Aurora also has the right to have any of Blattner's
unsafe equipment shut down and removed from the premises.
(Tr.
404, 408-409, 440).
As Mr. Burt testified at the hearing, Blattner is their
contractor. Aurora has overall responsibility for the mine.
Aurora directs Blattner and Blattner is under its control with
regard to mining. As the owner, Aurora is responsible for overseeing the contractors on the site.
{Tr. 424, 429).
APPLICABLE STATUTES

The Federal Mine Safety and Health Act of 1977 provides:
section 2

(a}

The first priority and concern of all in the coal or other
mining industry must be the health and safety of its most
precious resource--the miners;
(30 U.S.C.A. § 801(a)]

Section 3

(d)

0perator" means any owner, lessee, or other person who
operates, controls, or ~upervises a coal or other mine or
any independent contractor performing services or construction at such mine;
(30 u.s;c.A. § 802(d)]
11

section 102

(h)

In addition to such record as are specifically required by
this Act, every operator of a coal or other mine shall establish and maintain such records, make such reports, and
provide such information as the Secretary or the Secretary
of Health, Education and Welfare may reasonably require from

1767

time to time to enable him to perform his functions under
the Act.
[30 u.s.c.A. s 813 (h}]
DISCUSSION
The citations involved here concern alleged violations of 30
C.F.R. § 41.20. The regulation is set forth above. stripped of
its surplusage, it requires "each operator" of a coal or other
mine to file notification of legal identity ... or otherwise deliver a Form 2000-2007 "Le gal Identity Report."
In view of the wording of § 41.20, it is necessary to
consider the meaning of the term "operator."
Part 41 relates to the "notification of legal identity"
forms .
Subpart A, § 41.l(a) , defines an operator as follows:
§

41~1

Definitions.

(a) Operator means any owner, lessee, or
other person who operates, controls, or
supervises a coal or other mine or any designated independent contractor performing services or construction at such mine .
As it relates to the instant case and, stripped of its
surplusage, § 41.l{a) identifies, in part, as an operator:
" •. • any designated independent contractor
performing services at such mine . "
It is apparent that Blattner meets the statutory definition
of an "operator."
I

The secretary is not limited to dealing with Blattner
strictly as an independent contractor merely because
Blattner ha4 a contractor's I.D. Number at another mine
property.
Blattner claims that because i t is an "independent contractor," the Secretary has no authority to deal with it as an
"operator" in any other context, for example, as a "person who
controls or supel:ivises a coal or other mine." In other words,
Blattner's legal position is that the term "independent con-

1768

tractor" and all other terms in the Mine Act which define the
term "operator" are mutually exclusive.
(Emphasis added).
~ review of the case law under the 1969 Coal Act clearly
demonstrates the lack of merit in Blattner's position. Under the
1969 Coal Act, the term "operator" is defined as" .•. any owner , lessee, or other person who operates, controls, or supervises
a <::oal mine. " In Association of Bituminous Contractor v. Andrus,
581 F.2d 853 (O.C . Cir. 1978), the o.c. Circuit Court of Appeals
addressed the issue of whether an independent contractor could be
classified as an "operator" under the Coal Act. In reversing the
decision of the lower court and holding that an "independent
contractor" was an operator under the Coal Act, the court clearly
rejected the conclusion that only one party on a mine property
(which Blattner claims would be the property owner) could actually operate, control, or supervise the mine. The court stated:

There is always an owner of a coal min~, yet
the statµte includes lessees and "other persons" within the definition of operator as
well. so · there must be some cases where the
person who operates, controls, or supervises
is not the owner; 581 F.2d 862.
The court also specifically rejected the concept that independent contractors, when they are on mine property, are not in
control of the actual mining activities, but are only performing
a service under the direct supervision of the property owner.
It is not a stretching of the statute to hold
that companies who profess to be independent
of the coal mine owners as these construction
companies purport to be, do control and supervise the construction work they have contracted to perform over the area where they
are working . If a coal mine owner of lessee
contracts with an independent construction
company for certain work within a certain
area involved in the mining operation, the
supervision that such a company exercises
over tWat separate project clearly brings it
within the statute. Otherwise, the owner
would be constantly interfering in the work
of the construction company in order to minimize his own liability for damages. The Act
does not require such an inefficient method
of insuring compliance with mandatory safety
regulation; 581 F.2d 862, 863.

1769

Also, a reading of the term "produqtion operator" found in
30 c.F.R. § 45.2(d) reveals that with the exception of adding the
words "or other mine" it is defined with the identical language
as "operator" in Section 3(d) of the 1969 Coal Act. Since the
courts have previously held that the language of Section 3(d) of
the 1969 Act includes independent contractors, there is no reason
for the presiding administrative law judge to hold that the same
language in Part 45.2{d) of the regulations now excludes independent contractors. In following decisions of the Federal
Courts, by adding the independent contractor's language to the
definition of "operator" in Section 3(d) of the 1977 Mine Act,
Congress clearly did not intend to limit the underlying premise
of those decisions that "other persons" besides a prope rty owner
can control and supervise specific areas of mines.
Furthermore, in cases litigated under the 19 77 Mine Act, the
Federal Courts have held that Congress was clearly aware that
there could be more than one operator of a single mine. ·See
International Union, UMWA v. FMSHRC, 840 F.2d 77, 82 (D.C. Cir.
1988) .
The Secretary submits that it follows that in situations
where there are multiple operators of a single mine, there can be
multiple "production operators" at that mine, to which MSHA can
assign separate legal identification numbers.
II

The Decision of MSHA to require D.H. Blattner
to comply with the provisions of 30 C.F.R.
§ 41.20 is within the agency's enforcement
discretion.
30 C.F.R. § 41.20, which implements the statutory report
filing requirements of Section 109{d) of the Mine Act, requires
each operator of a mine to file a notification of legal identity
with the appropriate MSHA District Manager. The method of notification prescribed in the regulation is for an operator to complete and return to MSHA Form 2000-7, Legal Identity .Report.
Since all contractors performing mining services at a mine are
"operators" under the 1977 Mine Act, the Secretary could require
all contractors to comply with the·· provisions of 30 C.F.R.
§ 41.20.
The fact that he is requiring only those contractors
who also meet the definition of a production operator to comply
with the regulation is clearly within his discretion to enforce
the regulations in a manner which he believes will best serve the
objectives of the Mine Act.
'In Secretary v. Bulk Transportation services Inc., 13 FMSHRC
1354 {September 1991), the Commission recognized, in affirming a
citation is.sued to Bulk Transportation for a violation committed
by one of its subcontractors, that some contractors do, in fact,

1 770

by one of its subcontractors, that some contractors do, in fact,
exercise direct supervision and control of their subcontractors
on mine property.
On page 1361 of its decision, the commission stated:
Significantly, the record shows that Bulk has
a continuing relationship with BethEnergy and
may be in the best position to influence the
safety practices of all its drivers. Bulk
chooses its drivers and may refuse to retain
those drivers who cause safety violations.
(Tr. 101-103). We believe that it is unreasonable to require the Secretary to pursue
each of Bulk's 70 to 100 contractors.
Furthermore,. it is well-established that an Agency's decision to enforce its statute by adopting one remedy as opposed to
another, lies within the Agency's unreviewable discretion as long
as that remedy is not inconsistent with the purposes of the statute. See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). In .
view of the testimony of the MSHA witnesses that at the three
mines at issue, D.H. Blattner was a production operator and also
was directly responsible for the safety and health of the miners
working under its control, requiring Blattner to comply with 30
C.F.R. § 41.20, directly promotes the safety goals of the Act.
The evidence demonstrates that Blattner exercised direct
supervision and control over the ore extraction process and the
health and safety of the miners so involved.
Yankee Pit Mine

MSHA Inspector Steve Cain testified that before he began his
inspection at the mine, he met with USMX's safety director (the
property owner), who explained to him Blattner was doing the extraction of the mineral in the pit area and supplying it to USMX
to process at its mill. (Tr. 28, 29). Blattner hired its own
subcontractors including ICI Explosives, who did the blasting in
the pit area. (Tr. 37). According to Inspector Cain, no USMX
personnel supervised the employees of Blattner or its subcontractors during the extraction process. (Tr. 39).
Inspector Cain further testified that the most important
factor to him was who was in control of the health and safety of
the miners. (Tr. 34). Only the legal identity report (Form
7000-7002) which is specific for each mine site, and not a contractor I.D. number provides that information to MSHA. Blattner
had its own safety director, did its own training, and was responsible for all health and safety activities in the pit area.
(Tr. 38).

1771

van stone Mine
MSHA Supervisor Colin Galloway testified that the Van Stone
Mine was an open pit zinc mine, located in Northeastern Washington. Blattner began working on the property in the spring of
1992. After an MSHA staff meeting where the subject of Blattner's activities on mine property was discussed, he asked Don
Downs, one of hi~ inspectors, to find out what Blattner was doing
at the Van Stone Mine. (Tr. 126). Downs informed him that
Blattner was doing the mining in the pit area and Equinox (the
property owner) was running the mill. (Tr. 126). Prior to
issuing a citation, he spoke to Hans Gertsma, the manager for
Equinox, and Ste*e Prozinski, the safety director for Blattner. ·
Galloway told Prozinski that Blattner was a production operator
and would need to file for a seven-digit legal identification
number, because it was responsible for the health and safety of
miners in the pit area. (Tr. 130). Only after Prozinski informed Galloway that Blattner was not going to comply with 30
c. F .R. § 41. 20 '-,did Galloway issue the citation.
Aurora Partnership
MSHA Inspector Robert Morley testified that Blattner took
over the mining activities at the Aurora Mine from Lost Dutchman,
who previously had a seven-digit legal I.D. number.
(Tr. 167).
He issued his citation 30 days after he was informed by Bob Cameron, Blattner's safety director, that Blattner was doing the
mining at Aurora. (Tr. 171). Morley had a letter from Larry
Turner, Aurora's senior mine engineer, dated July 29, 1993,
stating that Blattner would be the prime contractor for mining
activities and the drilling and blasting would be handled by a
subcontractor, ICI Explosives. Also, the letter indicated that
Blattner would be the prime contractor for crushing activities on
the property and that Fisher Industries, a subcontractor would be
doing the actual crushing. The letter stated that both subcontractors would be under Blattner's direct control as the prime
contractor. (Gov't. Ex. 8) .
·
III

MSHA correctly based its decision to issue
the citations to Blattner, not on the
contractual relationship between the parties,
but upon a determination of what Blattner was
actually doing on mine property.
All three MSHA inspectors who issued the citations testified that they did not consider the written contracts between
Blattner and the property owners, prior to taking enforcement
action. MSHA inspectors are not trained to review complex con-

1772

tracts, but to issue citations based upon conditions they actually observ~ or have determined to exist. In Bulk Transportation
at page 1358, the Commission agreed stating:
On focus is the actual relationship between
the parties and is not confined by the terms
of their contracts .
.While a written contract may be evidence of a contractual
relationship (in this case a long-term relationship between
Blattner and the property owners), what is important is that MSHA
be actually aware of who was in control of the worksite.
Nevertheless, the Secretary submits that the specific language of the contracts clearly supports the conclusion, that in
those areas of the mines covered by the contracts, Blattner was
in control of mining activities including the health and safety
of the miners.
For example, the contract between USMX and Blattner at the
Yankee Project states:
Article 5 Contractor's Responsibilities:
supervision and superintendence: Contractor
shall supervise and direct all work and shall
ensure that same is conducted in a competent
and efficient manner. Contractor shall be
solely responsible for the means, methods,
techniques, sequences, and procedures of the
work and for coordinating all aspects of the
work to meet the owner's objectives, including without limitation the objectives of mining the property for the production and segregation of ore and waste. Contractor shall
be responsible to see that all work complies
fully with the requirements of this Agreement. Owner nevertheless shall have the
right to provide overall planning, oversight,
and direction for the work to be performed
pursuant to the agreement. However, it's
specifically understood and agreed that,
because of the contractor's expertise relative to the work for which it has been reretained, matters regarding the site, specific manner of accomplishing any task, issues
of safety precautions, safety programs and
site safety relative to the officers and ememployees, and scope of work of the contractor shall be exlusively within the province,
discretion, and control of the contractor.

1773

A fair reading of the language of the USMX Bla~tner contract
makes it apparent that the actual supervision of the miners is
Blattner's responsibility. USMX retains some planning and oversight functions for the work, but Blattner is in direct control.
IV

The specific language of MSBA's Program
Policy Manual (PPM) should not be a controlling factor in determining the issues in this
case.
Each of the MSHA inspectors who testified at the hearing
stated they relied upon the specific language of the Mine Act and
the regulations and the discussion with their supervisors, in
determining to issue the citations to Blattner. MSHA's Program
Policy Manual (PPM) was given a limited role in their respective
decision. The Secretary believes that the MSHA inspectors made
the correct decision, because a review of Part 41 and 45 . in the
PPM makes it ciear
that the issues in this case are not
.
. adequate.
ly addressed i~. the manual and that other sources of information
must be considered.
\

On page 1, part 41 of the PPM Gov't Ex. 6, the following
statement regarding the manual's use is made.
These are general guidelines for the assignment of new identification numbers and will
apply to the majority of operations. Individual circumstances may arise where district
personnel will have to decide on a case-bycase basis, whether operations are related or
independent for the purposes of assigning
identification numbers.
In determining how much weight to give the MSHA's PPM, the
Judge is guided by the decision in King Knob Coal Company, Inc.,
3 FMSHRC 1417, 1420 (1981), wherein the Commission stated:
Regarding the Manual's general legal status,
we have previously indicated that the Manual's instructions are not officially promulgated and do not prescribe rules of law binding on this commission .••• In general, the
express language of a statute or regulation
unquestionably controls over material like a
field manual.
In view of the foregoing, any language in the Manual which
could be construed as in conflict with the specific language or
intent of Section 109(d) of the Mine Act, or Parts 41 and 45 of
30 C.F.R. should be given no weight. In addition, Blattner pro-

1774

duced no evidence that it relied upon the specific language in
the PPM to its detriment.

v
The MSHA inspectors who issued the citations
at issue, properly relied upon their supervisors' judgment and experience in takinq enforcement action aqainst Blattner.
As the testimony of the MSHA witnesses confirmed, the decision to require Blattner to comply with the provisions o f 30
C.F.R . § 41.20 was not a routine matter within MSHA.
(Tr . 209).
The decision involved matters of policy and the proper classif ic ation o f mine operators working on mine property. In addition,
Blattner was the first contractor operator who actually refused
to file a Form 7000-7002, when requested by MSHA. Unde~ the
c ircums tances, it was prudent of the inspectors to consult with
their supervisors, including Mr. Gomez, the District Manager, and
inform them of the situation. It is not usual for senior MSHA
officials, who have been briefed on the facts, to make f inal
decisions on the enforcement action. See Peabody Coal v. Mine
Workers, 1 FMSHRC 1785 (November 1979), 1 MSHC 2220, 2223.
VI

Blattner was not the victim of a selective
enforcement policy by MSHA with reqard to the
compliance with 30 C.F.R. § 41.20.
According to the testimony of Bill Blattner Jr., President
of D.H. Blattner & Sons, his company has only been required to
comply with the notification requirements of 30 C. F.R. § 41.20 at
three properties in MSHA's Western District and not in the other
locations where Blattner was doing work for mine owners. · (Tr.
319). Even assuming Mr. Blattner's assertion was correct and his
company was performing similar work at its other operations (an
allegation which was not the .focus of this hearing) MSHA's lack
of enforcement action at Blattner's other operations would not be
a bar to MSHA's present enforcement position. The Secretary cannot be estopped from citing a violation simply because that same
condition was not cited during a previous inspection, or not
cited at another mine. Therefore, collateral estoppel cannot be
used to prevent government agencies from carrying out their statutory enforcement responsibilities . See, Emery Mining Corporation v. Secretary of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984)
and King Knob Coal Co., Inc . , 3 FMSHRC 1417, 1421-1422 (1981).

1775

Furthermore, Vernon Gomez, presently MSHA's Administrator
for Metal and Nonmetal, stated in his deposition that as far as
he was aware, the notification requirements of 30 C.F.R. § 41.20,
were being applied equally across the country. He also testified
that, as the former District Manager of the Rocky Mountain and
Western MSHA districts, there was no difference in MSHA's district enforcement policies and agreed that if Blattner's operations in Montana were similar to those at the Yankee Pit, the
Montana operation should also be required to have a seven-digit
legal I.O. number; see Gomez Transcript of Deposition, pp. 120123 (April 30, 1993).
Mr. Gomez also specifically denied that MSHA's enforcement
policy with regard to compliance with 30 C.F.R. § 41 . 20 has
anything to do with increased funding for MSHA. The budget for
MSHA districts is determined by the number of miners within a
district and not by the number of seven-digit I.O. numbers.
{Gomez Tr. 60, 119). Clearly, Blattner's attempt to imply that
MSHA really had "other motives" for requiring contractors to file
legal identity forms has no credibility.'
It is also obvious from a review of the record in this case
that Blattner failed to establish how it suffered any harm from
MSHA's enforcement of 30 C.F.R. § 41.20 at the three properties
where Blattner was cited. It has already been established that
irrespective of the notification requirements of 30 C.F.R.
§ 41.20, Blattner, as a contractor on mine property, can be cited
as an "operator" for any violations of the mandatory standard
which occurred on mine property under its control. Also, there
was no evidence introduced that Blattner's civil penalty assessments would increase if it complied with 30 C.F.R. § 41.20.
When Mr. Blattner was asked why his company refused to file
a seven-digit legal I.D. form, he replied concerning potential
problems with his bank and insurance compan7, but could not provide any details. {Tr. 330-332). He also testified that Blattner entered into contracts with owner-operators based on the assumption that Blattner would be providing a service to them and
not that Blattner would be the operator of the mine.
The Secretary asserts that, regardless of Mr. Blattner's
assumption to the contrary, he does not understand the fact that
under the Mine Act, Blattner is an operator when working on mine
property. Also, that any of the company's liabilities for health

An agency's motivation for taking a particular legal
action is irrelevant to determining whether an agency's action was
authorized under a statute. See Hammond v. Hull, 131 F.2d 23 {D.c.
Cir. 1942).

1776

and safety violations has essentially nothing to do with which
legal I.D. form MSHA requires it to file.
The Secretary submits that Blattner failed to establish that
it was treated differently than any other of the major contractor/operators in the Western District. As Paul Belanger, an MSHA
supervisor testified, a number of other contractors including
Degerstrom, Brown & Root, and Selland Construction, who were doing similar work to Blattner's, were requested to file a legal
I.D. form and every contractor complied except Blattner. (Tr.
203). Also, he stated that the contractors filed these I.O.
reports prior to 1992, when the Gomez memorandum was issued.
(Tr. 207).
Penalties
In assessing a civil penalty, I have considered Blattner's
size, the effect of the penalty on the the operator's ab.ility to
continue in business, Blattner's prior history, negligenc e,
gravity, and good faith.
·
I further conclude that the penalties assessed i n the order
are appropriate.

For the foregoing reasons, I enter the foll owing:
ORDER
1.
WEST 93-123-M: Citation No. 4137837 and the proposed
penalty of $50.00 are AFFIRMED.
2.
WEST 93-286-M: Citation No. 3644861 and the proposed
penalty of $50.00 are AFFIRMED.
3.

WEST 94-S-RM:

This contest proceeding is DISMISSED.

~

~

•
rris
n strative Law Judge
Distribution:
Michaels. Lattier, Esq., Sarah M. Power, Esq., GOUGH, SHANAHAN,
JOHNSON & WATERMAN, 33 South Last Chance Gulch, P.O. Box 1715,
Helena, MT 59624 (Certified Mail)
Robert A. Cohen, Office of the Solicitor, U.S. Department of
Labo+, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)

ek

1 7 77

l'BDBRAL JUBB SAP'BTY AND HEALTH RBVIBW COMJUSSIOB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 1 6 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 93-337
A.C. No. 16-16508-03555

v.
JBD INDUSTRIAL FUELS, INC.,
Respondent

Docket No. KENT 93-411
A.C. No. 15-16508-03561
Harlan #1 Mine
DECISION

Appearances:

·. Marybeth Bernui , Esq., Office of the Solicitor,
'u.s. Department of Labor, Nashville, Tennessee,
for Petitioner;
Mr. Jefferson B. Davis, President, JBD Industrial
Fuels, Inc., Pathfork, Kentucky, for Respondent.

Before:

Judge Fauver

These actions for civil penalties were brought under
105(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 Findings of Fact and
Further Findings in the Discussion below:
FINDINGS OF FACT
1. Respondent, JBD Industrial Fuels, Inc., a small-sized
coal company, operates an underground mine known as Harlan No. 1.
The reine produces coal for sales in or substantially affecting
interstate commerce.

2. On November 2, 1992, Federal Mine Inspector Roger
Dingess issued § 104(d) ( 1 ) Order No. 3003138 at the mine,
alleging a violation of 30 C.F.R. § 75.303 for failure to conduct
an adequate preshift examination. The inspector observed that
there was float coal dust on the number one belt, the fire sensor
line was severed in several places and there were power cables
that had exposed wires. These hazards were not reported in the
preshift book and were not corrected before the miners went
underground.

1778

3. The float coal dust on the No. 1 belt could propagate a
fire and, if put in suspension with an ignition source, could
cause a mine explosion. Ignition sources present included power
wires and belt rollers . The float coal dust observed by
Inspector Dingess was from 1/4 to 1/2 inch deep.
4. The fire sensor line was cut in several places in two
locations, about 10 feet apart. This was an unsafe condition.
If a fire occurred, with the line cut there would be no warning
to the outside attendant. The severance of the fire sensor line
was obvious .
5. On the same day, Inspector Dingess issued § 104(d) (1)
Citation No . 3003133 alleging a violation of 30 C.F.R. § 75.400
for the float coal dust accumulations found on the No. 1 belt.
This citation was not contested by the operator.
6. On November 2, 1992, Inspector Dingess issued Order No.
3003136 alleging a violation of § 75.1722. Inspector Dingess
observed that the roller fins and pinch points of the tail roller
on the No. 1 belt were exposed and not adequately guarded.
7. Section 107(a) Order No. 3832918, Citation No. 3832919,
and Citation No. 3832920 were all issued on September 9 , 1992,
concerning a roof fall that trapped the mine owner and shift
foreman around 11:30 p.m., September 8, 1992.
8. Inspector Dingess issued the § 107(a) order when he
observed there had been a roof fall and miners were working under
an unsafe roof. In conjunction with the order, the inspector
issued Citation No. 3832919 for a violation of § 75.220, alleging
that ~he approved roof control plan was not being followed. The
inspector observed unsafe roof conditions in the three entries
that were being mined in the area where the roof fall had
occurred. He found that crossbars or steel straps required by
the roof control plan were not installed.
9. Inspector Dingess issued Citation No. 3832920 on
September 9, 1992, for a violation of § 50.10, alleging that the
operator had failed to notify MSHA immediately after the .roof
fall accident on September 8, 1992, at 11:30 p.m. MSHA was not
notified of the accident until about 10:30 a.m. the following
day.
10. Respond'e nt withdrew its contest of Ci tat ion No.
3003151, issued on November 20, 1992, for a violation of
§ 75.1714, and agreed to pay the proposed penalty of $50.

17 7 9

DISCUSSION WITH FURTHER FINJ)INGS, CONCLUSIONS
Order No. 3003138

This order was issued for failure to conduct an adequate
preshift examination, in violation of § 75.303. The evidence
shows there was float coal dust on the No. 1 belt, the fire
sensor line was severed in several places, and there were power
cables in the same area with exposed wires. These conditions
were unsafe and should have been reported and corrected before
miners were sent underground.
Section 75.3 03 of the reg ulations repeats section 303(d) (1)
of the Mine Act, which was carried over without change from the
1969 Act. As both the Senate Report and the Conference Report
explain:
No miner may enter the underground portion of
a mine until the preshift examination is
completed, the examiner's report is
transmitted t o the surface and actually
recorded, and until hazardous conditions or
start~ards violations are corrected.
Birchfield Mining Co ., 11 FMSHRC 31 (1989) citing 94th Cong., 1st
See. Part I Legislative History of the Federal Coal Mine Health
and Safety Act of 1969 at 183 and 1610 (1975).
Respondent's failure to conduct a proper preshift
examination was a significant and substantial violation. 1 The
accumulation of float coal dust is one of the most serious
hazards in mining which Congress sought to eradicate in passing
the Mine Act. As the Commission stated in Black Diamond Coal
Mining, 7 FMSHRC 117, 1120 (1985):
We have previously noted Congress'
recognition that ignitions and explosions are
major causes of death and injury to miners:
"Congress included in the Act mandatory
standards aimed at eliminating ignition and
fuel sources for explosions and fires.
[Section 7 5. 4 oo] is one of those standards. i•
Old Ben Coal Co ., 1 FMSHRC 1954, 1957
(December 1979 ) . • • . The goal of reducing
the hazard of fire or explosions in a mine by
eliminating fuel s ources is effected by
prohibiting the accumulation of materials
that could be the originating sources of
1

A violation is "significant and substantial" if there
exists a reasonable likelihood that the hazard contributed to
will result in an injury of a reasonably serious nature. Cement
Division, National Gypsum c o ., 3 FMSHRC 822, 825 (1981).

explosions or fires and by also prohibiting
the accumulation of those materials that
could feed explosions or fires originating
elsewhere in a mine.
In addition to hazardous accumulations of float coal dust
and exposed wires, the fire sensor line had been cut so that in
the event of a fire or explosion the miners would not have been
alerted to evacuate the mine.
I also find that this was an unwarrantable violation, which
the Commission has defined as a violation due to aggravated
conduct constituting more than ordinary negligence. An
unwarrantable violation is especially clear when the person who
committed the violation was a supervisor. Youghiogheny & Ohio,
9 FMSHRC 2007, 2011 (1987). In the instant case, the preshift
examination was conducted by the shift foreman who, despite the
existence of unsafe conditions in the area where the miners were
required to work or travel, failed to report the hazards in the
preshift examination book and have them corrected before sending
the miners underground.
Order No. 3003136

This order was issued on the same day as the previous order.
The inspector observed the tail roller unguarded in an area where
the coal seam height was only 28 to 32 inches and visibility was
poor. Persons passing by the unguarded tail roller had to crawl
with limited illumination (their cap lights}. It was reasonably
likely that persons passing by the unguarded tail roller would
come into contact with moving parts and suffer a serious injury.
The violation was therefore significant and substantial.
An unwarrantable violation may be indicated where the mine
has a history of similar violations. See e.g., Ouinland Coals,
10 FMSHRC at 709 (a history of similar bad roof conditions}; and
Peabody Coal Co., 8 FMSHRC 1258, at 1263 (operator cited 17
times - for a violation of the same standard in the preceding six
and one-half months). In the instant case, Respondent had been
cited at least six times for similar violations in the preceding
18 months, including a citation in August 1992 for an unguarded
tail roller on the No. 2 belt.
An unwarrantable violation may also be indicated where the
violation was obvious and existed for a substantial period.
Inspector Dingess testified that the unguarded tail roller was
obvious to anyone who crawled by it and that material on top of
the folded-back guard was dry and packed, indicating the tail
roller had been unguarded for several days.
On balance, I find the violation charged in Order No.
3003136 was due to aggravated conduct beyond ordinary negligence
and was therefore an unwarrantable violation.

1781

citation Nos. 3832919 and 3832920
These citations were issued during an investigation of a
roof fall that had trapped the mine owner and shif~ foreman for
over one and one-half hours. Citation No. 3832919 charges a
violation of 30 C.F.R. § 75.220 for failure to comply with the
operator's approved roof control plan after the accident.
The evidence substantiates this charge. The plan required
roof bars and steel straps in areas of pots and slips, as well as
narrowing the area down to 14 feet with wooden roof supports.
The night before the investigation, the owner and shift foreman
were working on the section when the roof fell and trapped them
for about one and one-half hours. Despite this accident, the
owner and foreman failed to provide the additional roof support
required by the roof control plan, thus exposing the miners
working in the area to the hazards of another roof fall. The
Inspector observed that these measures had not been taken in an
area where pots and slips revealed an unsafe roof.
Respondent contends that Inspector E.C. Smith had been to
the mine a day or so before the roof fall and failed to issue a
citation with ,regard to the roof conditions. MSHA records
indicate the last time Inspector Smith was on the section before
the roof fall (on, September 8, 1992) was August 26, 1992.
Failure by an inspector to issue a citation for a particular
violation does not estop him or another inspector from issuing a
citation for that violation during a subsequent inspection.
Midwest Minerals Coal Co. , Inc., 3 FMSHRC 1417 (1981); Missouri
Gravel Co., 5 FMSHRC 1359 (1983); and Conesville Coal Preparation
Co., 12 FMSHRC 639 (1990). Moreover, the roof fall on September
8, 1992, placed an added burden on Respondent to examine the roof
and add support where needed.
Citation No. 3832920 charges a violation of § 50.10 because
the operator failed to notify MSHA immediately after the roof
fall accident. The operator could have called MSHA's 24-hour
phone number to comply with this regulation. However, the
operator delayed almost 12 hours. The requirement that an
operator immediately report certain types of accidents to MSHA is
an important part of mine safety and enforcement in terms of both
accident investigation and assistance to injured or trapped
miners. I find that this was a serious violation although it was
not "significant and substantial" within the meaning of § 104(d)
of the Act.
Assessment of civil Penalties
Respondent is a small-sized operator producing less than
100,000 tons of coal a year. Its compliance history (Exhibit
G-1) shows Respondent has been delinquent in paying prior civil
penalties. However, after the hearing Respondent negotiated a
payment plan with MSHA and has been making timely payments.
Respondent made a good faith effort to achieve rapid compliance
after notification of each violation cited in this case.

1782

Considering all the criteria for assessing civil penalties
in § llO(i) of the Act, I find the following civil penalties to
be appropriate for the violations found herein:

Order or Citation
No.
No.
No.
No.
No.

Civil Penalty

3003138
3003136
3832919
3832920
3003151

$2,500
$ 400
$1,200
$ 250
$
50
$4,400
CONCLUSIONS OF LAW

1. The judge has jurisdiction.
2. Respondent violated the safety standards as alleged in
Orders Nos. 3003i38 and 3003136 and in citations Nos. 3832919,
3832920, and 3003151.
ORDER

WHEREFORE IT IS ORDERED that Respondent shall pay civil
penalties of $4,400 within 30 days from the date of this
decision.

~~v~

William Fauver
Administrative Law Judge

Distribution:
Marybeth Bernui, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862 (Certified Mail)
Mr. Jefferson B. Davis, President, JBD Industrial Fuels, Inc., HC
61, Box 610, Pathfork, KY 40863 (Certified Mail)
/lt

1783

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

AUG 1 6 199{

RANDALL PATSY,

DISCRIMINATION PROCEEDING
complainant

v.
BIG "B" MINING COMPANY,
Respondent

Docket No. PENN 94-132-D
.... MSHA
Case No . PITT CD 93-27

..

ORDER REINSTATING DISMISSAL

Before:

Judge Feldman

This discrimination proceeding arising under section 105{c)
of the Federal Mine Safety and Health Act of 1977 (the Act),
30 u.s.c. § 815(c), concerns alleged protected activity
associated with an incident that occurred on or about October 23,
1992, that involved the preparation of a mobile home site in the
Peter Rabbit Campgrounds. A threshold question in this case is
whether the complainant, Randall Patsy, was a "miner" as defined
by section 3(g) of the Act, 30 u.s.c. S 802(g), at the time of
the alleged discriminatory discharge.
Patsy has expressed a reluctance to prosecute his complaint
on several occasions. In correspondence dated April 7, 1994,
Patsy stated there may be "· •• no sense of pursuing this any
farther (sic)." In an April 18, 1994, written statement Patsy
concluded that "[he] • •• would be better off to pursue this as a
civil suit locally . " The latter statement was made in response
to an April 14, 1994, Order to Show Cause requesting Patsy to
state unequivocally whether he wished to pursue his complaint.
On May 13, 1994, Patsy's discrimination complaint was
dismissed in view of his apparent disinclination to pursue this
matter. Order of Dismissal, 16 FMSHRC 1094 (May 1994) . However,
on June 2, 1994, Patsy requested that his case be reopened. The
Commission deemed Patsy's June 2, 1994, request as a timely filed
petition for discretionary review. Consequently, on June 21,
1994, the Commission vacated the May 13 Order of Dismissal and
remanded this matter to me for further proceedings . Order,
16 FMSHRC 1237 (June 1994).
1784

Consistent with the Commission's Order, on July 11, 1994, I
issued a combined Order On Remand and Notice Of Hearing
scheduling this matter for trial on September 20, 1994. The
Notice Of Hearing noted a fundamental issue was whether Patsy was
a "miner" as defined by the Act at the time the alleged
discrimination occurred . Noting that neither party was
represented by counsel, I directed the parties• attention to the
Commission's decision in Cyprus Empire Corporation, 15 FMSHRC 10,
14 (January 1993), that an individual's status as a "miner" under
the Act is determined by whether the individual works in a mine
and not by whether one is employed by a mine operator . Copies of
the cyprus case were provided to the parties to facilitate their
preparation for hearing .
Patsy responded to the July 11, 1994, Notice of Hearing on
July 20, 1994. The text of Patsy's response is as follows:
After reading the decision made for Cyprus Empire
Corporation I cannot prove I was a miner at the time I
was fired. I was employed by a mine operator, though I
was working at a mobile home park he was developing.
Being I don't fall under the miner category, is there
some other agency I should contact[?]
In an abundance of caution, given Patsy's propen~ity for
equivocation, my office contacted Patsy on July 25, 1994. Patsy
was asked if he wanted his case dismissed. Patsy replied, "I
don't have a leg to stand on after reading the Cyprus decision
attached." However, Patsy expressed a desire to confer with ~is
attorney . In response to Patsy's inquiry concerning other
regulatory alternatives, Patsy was provided with the telephone
number of the Occupational Safety and Health Division.
On August 5, 1994, Patsy was again contacted by my office.
He indicated his attorney was on vacation and would return on
August 9, 1994. Patsy stated he would contact his attorney on
August 10, 1994, and inform my office of his attorney's
recommendation. To date I have not heard from Patsy. Nor has
any attorney filed an appearance in this matter.
In view of Patsy's July 20, 1994, statement, which is
entirely consistent with his previous statements evidencing a
waning. interest in this matter, the May 13, 1994, Order
dismissing this case IS HEREBY REINSTATED. Accordingly, the
discrimination complaint in Docket No . PENN 94-132-D filed by
Randall Patsy IS DISMISSED with prejudice.

cf!3:. ~~--->

Jerold Feldman
Administrative Law Judge

1785

Distribution:
Mr. Randall Patsy, R.D. #1, Box 290, E. Brady, PA 16028
(Certified Mail}
Ms . Susan Mackalica, Biq "B" Mining co . , Inc., R. O. 1,
West Sunbury, PA 16061 (Certified Mail)
/ fb

1786

PBDBRAL XXHB SAPBTY UID llBAL'l'll REVJ:BW COIOIJ:SSJ:OB

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG l 6 1994
FMC WYOMING CORPORATION,
Contestant

.

v.

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

CONTEST PROCEEDINGS
Docket No. WEST 94-317-RM
Citation No. 4125677; 3/24/ 94
Docket No. West 94-318-RM
Citation No. 4125678; 3/ 24/94
FMC Trena Mine
Mine ID 48-00152

DECISION

Appearances:

Henry Chajet, Esq., Jackson & Kelly, Washington,
DC, 'for Contestant;
Robert Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
Respondent.

Before:

Judge Fauver

These are contest proceedings under § 105 (d) of the Federal
Mine Safety and Health Ac t of 1977, 30 u.s.c. § 801 et seq. FMC
seeks to vacate two § 104 (a) citations that allege violations of
30 C.F.R. § 57.22305, which provides:
Equipment used in or beyond the last open crosscut and
equipment used in areas where methane may enter the air
current, such as pillar recovery workings, longwall faces
and shortwall faces, shall be approved by MSHA under the
applicable requirements of 30 C.F.R. parts 18 through 36.
Equipment shall not be operated in atmospheres containing
1.0 percent or more methane.
A key issue is whether the term "last open crosscut" as used
in this regulation applies to longwall mining. FMC contends that
the term applies and means the crosscut in which the longwall
equipment is operating. The Secretary contends that the term
applies and means the closest crosscut outby the longwall face.
For the reasons set forth below, I find that as used in
57.22305, the term "last open crosscut" does not apply to
longwall mining.
§

1787

The next issue is whether the equipment cited was in "areas
where methane may enter the air current, such as • • • longwall
faces • • • • " I find that the evidence does not preponderate in
showing a risk of methane entering the air current in the cited
areas. Accordingly, the citations will be vacated.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable
and probative evidence establishes the Findings of Fact and
Further Findings in the Discussion below:
FINDINGS OF FACT

1. FMC Wyoming Corporation is a large mine operator engaged
in mining trona for sales in and affecting interstate commerce.
2. FMC pioneered the mining of trona.
operation was installed at FMC in 1981.

The first longwall

3. At the subject mine, longwall production equipment
includes the shearer and face conveyer and longwall support and
service equipm~nt. These include a crusher, stage loader (which
puts the ore on . a rubber conveyor belt for transport out of the
mine), service and maintenance vehicles, shield haulers, lube
trucks, grease jeeps, diesel trucks equipped with a welder,
diesel-powered forklifts and front-end loaders.
4. The purpose of O Room at FMC's mine is to provide access
to perform maintenance and ~ervice on the longwall production
equipment, particularly the shearer. Zero Room was designed to
accommodate equipment needed for these functions.
5. It takes the longwall about 10 days to retreat from one
crosscut to another . The longwall face is about 480 feet long.
The width of the crosscut in which the longwall is installed is
about 16 feet.
6. FMC's trona mine is a Category III mine under MSHA's
standards and is regulated by safety standards specific for the
trona industry. The mine liberates substantial quantities of
methane.
DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS

History of the Safety Standard
From 1969 until July 1, 1987, safety standards for trona
mines (1) prohibited the operation of equipment in any atmosphere
where flammable gas ("methane" beginning January 29, 1985)
exceeded 1.0 percent and (2) required permissible equipment
"beyond the last open crosscut or in places where dangerous
quantities of flammable gases are present or may enter the air
current." 30 C.F.R. §§ 57.21076 and 57.21078 (and predecessors).

1788

When FMC installed its trona longwall, in 1981, MSHA
inspected the system and interpreted the safety standards as
permitting nonpermissible equipment in intake air in the closest
crosscut and entry room (O Room in this case) outby the longwall
face. It does not appear that MSHA considered the term "last
open crosscut" applicable to trona longwall mining in determining
the area for permissible equipment. Instead, MSHA apparently
considered trona longwall mining to be governed only by the
second phrase in § 57.21078: "or in places where dangerous
quantities of flammable gases are present or may enter the air
current."
On June 4, 1985, MSHA proposed the following safety standard
to revise and combine §§ 57.21076 and 57.21078:
§

57.36302 Permissible Equipment

All electrical and diesel-powered equipment used in or
beyond the last open crosscut shall be permissible.
Equipment shall not be operated in atmospheres containing
1.0 percent or more methane. Nonpermissible electrical and
diesel-powered equipment shall be kept at least 150 feet
from pillar recovery workings, longwall faces and shortwall
faces .
This proposal would revise and combine existing standards
§§ 57.21076 and 57.21078, and appeared as draft proposals
§§ 58.21-178, 58.21378, 58.21-478, and 58.21-678.
It
requires that only permissible equipment be used at the
face. 50 F.R. at 23626. The proposal would require that
nonpermissible electric and diesel-powered equipment be kept
at least 150 feet from pillar recovery workings, longwall
faces and shortwall faces. 50 F . R. at 23627. [ 50 F.R.
23612, 23639; June 4, 1985. ]
After considering trona industry objections to the 150-foot
restriction, MSHA deleted it and adopted the following final
standard:
§

57.22305 Approved Equipment (III Mines)

Equipment used in or beyond the last open crosscut and
equipment used in areas where methane may enter the air
current, such as pillar recovery workings, longwall faces
and shortwall faces, shall be approved by MSHA under the
applicable requirements of 30 C.F.R. Parts 18 through 36.
Equipment shall not be operated in atmospheres containing
1.0 percent or more methane.
In the Preamble to the final rule, MSHA gave this
explanation:

17 89

Comments for Category III mines objected to the
proposed 150-foot restriction for nonapproved equipment
used in pillar recovery workings, longwall faces, or
shortwall faces, stating that the restrictions on
nonapproved equipment inby the last open crosscut are
sufficient. The Agency agrees and the specific
limitation of 150 feet has been omitted from the final
rule. Performance-oriented language is substituted in
the final rule which .addresses the potential for
methane forced out of gob areas due to caving resulting
from pillar recovery and longwall and shortwall mining.
Consistent with its earlier enforcement policy, MSHA
interpreted the new standard as permitting FMC to operate
nonpermissible equipment in intake air in the closest crosscut
and entry room outby the longwall face.
In January 1994, MSHA decided to apply the standard
differently. Under its new policy, nonpermissible equipment is
not allowed in and beyond the closest crosscut outby the longwall
face. A meeting was held in the District Manager's office on
January 24, 1994, at which MSHA's position was explained to FMC.
Following the conference, a letter from the District Manager to
FMC, on February 1, 1994, repeated MSHA's position and included
several maps de~onstrating what MSHA expected for future
enforcement purposes. The citations at issue were issued in
March 1994.
FMC contends that MSHA's new interpretation amounts to
rulemaking in contravention of § 101 of the Act (requiring formal
notice and comment rulemaking).
The Secretary contends that in § 57.22305 the term "last
open crosscut" means the closest crosscut outby the longwall face
and rulemaking proceedings are not required to commence applying
this interpretation. FMC contends that this crosscut is not an
"open crosscut" because it does not provide ventilation from the
intake entry to the return entry. FMC submits that the "last
open crosscut" is the crosscut in which the longwall face and
equipment are located. Under this interpretation, the last open
crosscut is immediately inby the longwall face.
A key to interpreting § 57.22305 is the language substituted
for the 150-foot restriction that was deleted in the final rule.
As stated, the Preamble explained this change as follows:
Performance-oriented language is substituted
in the final rule which addresses the
potential for methane forced out of the gob
areas due to caving resulting from pillar
recovery and longwall and shortwall mining.
[52 Fed. Reg. at 24937; emphasis added.]

1790

MSHA's witnesses testified as to their understanding of the
"performance-oriented language" that was inserted in the new
standard. For example, Mr. Fuller testified:
FULLER:

The requirement that they substituted performanceoriented language in the standard, which is the
requirement that they maintain some separation
distance.

MURPHY:

And how was that separation distance maintained?

FULLER:

What they left us with when they took out the 150-f·eet
separation distance was, at a minimum, the width of the
last open crosscut. [Tr. 301.]

Likewise, Mr. Koenning testified:
MURPHY:

So what type of performance language, in your opinion,
has been put into 57.22305?

KOENNING: The performance that is required is that a separation
be maintained that is at least the width of the last
open crosscut. [Tr. 397.]
I find that the performance-oriented language referenced by
the Preamble is the phrase: "and equipment in areas where methane
may enter the air current, such as pillar recovery workings,
longwall faces and shortwall faces . . . . " I do not agree with
the Secretary's contention that this language means that
nonpermissible equipment must be kept a specific minimum distance
from the longwall . face, e.g., the width of the closest crosscut
outby the longwall face.
Nor do I agree with the parties' contention that the term
"last open crosscut" as used in § 57.22305 applies to longwall
mining. The term "last open crosscut" or "last crosscut" is not
defined in either the Mine Act or its implementing regulations.
In general, a "crosscut" is a passageway or opening driven
between entries for ventilation and haulage purposes (U.S.
Department of Interior, Dictionary of Mining, Mineral, and
Related Terms 280 (1968)), and the "last open crosscut" is "that
open passageway connecting entries closest to the working face"
!Jim Walter Resources, Inc., 11 FMSHRC 21, 26 (1989)).
The Commission has recognized that "in any given coal mine,
the mining methodology used may uniquely determine the last open
crosscut" (Peabody Coal Company, 11 FMSHRC 9, fn 8 (1989)) and
that "each standard using the term 'last open crosscut' requires
'that certain activities be conducted in an area in which it has
been deemed most crucial'" (JWR decision supra, at 26; citations
omitted). The Commission has also held that it is "not fatally
inconsistent or conflicting" to hold that the "last open
crosscut" in one safety standard may be a certain crosscut but

1791

another safety standard using the term "last open crosscut" would
not apply to that crosscut. Finally, the Commission has found
that the term "last open crosscut" is interchangeable with "last
crosscut" when the logic and safety intent of the Act are best
served by this flexible interpretation. Id. at 25-26 .
The decisions of the Commission and its judges thus indicate
a flexible approach to the term "last open crosscut" in order to
consider the unique mining methodologies involved, while ensuring
compliance with the Congressional intent to protect the safety of
miners. Although their approach is very flexible, the decisions
show a consistent distinction between development mining and
longwall or retreat mining. The term "last open crosscut" has
been applied only to development mining in determining the
location of permissible equipment. 1 Indeed, the coal
regulations {§ 75.1002-1) require that nonpermissible equipment
be at least 150 feet from "pillar workings" (which would include
a longwall), rather than use the term "last open crosscut."
The Category III regulations for trona mining indicate a
similar intention, in fixing the place for permissible equipment,
to confine the term "last open crosscut" to development mining.
I conclude that, in longwall trona mining, the § 57.22305
requirement for\ permissible equipment is limited to the phrase
"equipment used ' in areas where methane may enter the air current,
such as pillar recovery workings and longwall faces and shortwall
faces" and the phrase "last open crosscut" does · not apply.
Accordingly, the controlling issue is whether the equipment
cited in O Room was in "areas where methane may enter the air
current . • . . " The diesel-powered vehicle and the electric
light cited were in intake air and there is rio evidence that
methane was ever found there. The parties offered conflicting
opinion evidence as to the possibility of methane entering o
Room. On balance, I find that the evidence does not preponderate
in showing a risk of methane entering the intake air current in
the cited areas.
If the Secretary believes a specific separation distance
would be a better rule than the current standard, he must proceed
through notice and comment rulemaking under § 101 of the Act.
Consideration of the issue in rulemaking may indicate that the
150-foot standard for longwall coal mining· would be appropriate
for longwall trona mining as well (as originally proposed in
1985).
1

In Jim Walters Resources, supra, the Commission held that
the term "last open crosscut" was properly applied to a "unique
. longwall method of mining . . . resulting in large, uneven
pillars (blocks) of coal and in interrupted crosscuts between
various entries." However, the facts indicate the standard was
actu~lly applied to development mining used to set up future
longwall panels, and not to longwall equipment outby a longwall
face .

1792

CONCLUSIONS OF LAW

1.
§

The judge has jurisdiction.

2. The term "last open crosscut" as used in 30 C.F.R.
57.22305 does not apply to FMC's trona longwall section.

3. The Secretary did not meet his burden of proving that
the cited equipment was "in areas where methane may enter the
air current" within the meaning of 30 C.F.R. § 57.22305.
Accordingly, he did not prove a violation of that standard.

ORDER

WHEREFORE IT IS ORDERED that Citations Nos. 4125677 and
4125678 are VACATED.

r.d~
-::;-MtYtA-William Fauver
Administrative Law Judge
Distribution:
Henry Chajet, Esq., Jackson & Kelly, 2401 Pennsylvania Avenue,
NW., suite 400, Washington, DC 20037 (Certified Mail)
Robert Murphy, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, suite 1600, Denver, ·co 80202-5716
(Certified Mail)
/lt

1793

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

20006

August 16, 1994

ICI EXPLOSIVES USA, INCORPORATED,
Contestant

CONTEST PROCEEDING
Docket No. WEVA 94-283-R
Order No. 4195443; 5/3/94

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

Pax surface Mine
Mine ID 46-06877-NTD

ORDER OF DISMISSAL
Before:

Judge Merlin

This case is an application for review .of a withdrawal
order issued by an inspector of the Mine Safety and Health
Administration· under section 107(a) of the Federal Safety a nd
Health Act of 1977, 30 u.s .c. § 817(a) . Section 107(e) (1) of the
Act, 30 u.s.c. § 817(e) (1), authorizes the institution of suits
for review of such orders and sets forth the conditions under
which they may be brought as follows:
Any operator notified of an order under this
section or any representative of miners notified of the
issuance, modification, or termination of such an order
may apply to the Commission within 30 days of such
noti fication for reinstatement, modification or
vacation of such order.
Accordingly, an application for r eview of a 107(a)
withdrawal order must be filed within 30 days of the date the
operator was notified of the order. The order in this case was
issued on May 3, 1994, and the application for review was filed
on June 3, 1994. It was, therefore, one day late. On this basis
the Secretary moves to dismiss.
In its response to the Secretary's motion, the operator
argues that under Commission Rule 22(a), 29 C.F.R. § 2700.22{a),
it had 30 days from the date of the termination of the order to
file its application. Rule 22{a) provides that a notice of
contest of a 107 order, or any modification thereof, may be
brought by a contesting party within 30 days of the order, or
modification or termination. However, the rule cannot, and there
is no indication that it was intended to, expand the right of
action created by the Act. 58 F.R. 12158 {March 3, 1993). As
set forth above, section 107(e) gives operators only the right to
contest an order, while a representative of miners may contest
the issuance, modification or termination of an order. The

1794

legislative history repeats this distinction. S. Rep. No. 95181, 95th Cong. , 1st Sess. 38 (1977), reprinted in, Legislative
History of the Federal Mine Safety and Health Act of 1977, at 626
(1978).
A long line of decisions going back to the Interior Board of
Mine Operations Appeals has held that actions instituted under
section 105(d) of the Act, 30 u.s.c. § 815(d) , contesting the
issuance of a citation must be brought within the statutorily
prescribed period of 30 days or be dismiss'ed.
Freeman Coal
Mining Corporation, 1 MSHC 1001 (1970); Consolidation Coal Co., 1
MSHC 1029 (1972); Island Creek Coal Co. v. Mine Workers, 1 MSHC
1029 (1979), aff ' d by the Commission, 1 FMSHRC 989 (August 1979);
Amax Chemical Corp., 4 FMSHRC 1161 (June 1982); Peabody Coal
Company, 11 FMSHRC 2068 (October 1989); Big Horn Calcium Company,
12 FMSHRC 463 (March 1990).
In Prestige Coal Company, 13 FMSHRC
93, at 94 (January 1991), I adhered to these precedents in
dismissing a late filed notice of contest under section 105(d)
and stated, "*** the subsequent modifications of the citations
cannot affect the operator ' s duty to file within the prescribed
time." See also, .c and S Coal Company, 16 FMSHRC 633 (March
1994); Asarco, Inc~, 16 FMSHRC 1328 (June 1994).
Upon review of the Act and legislative history I find no
reason to treat an application under section 107(e) for review of
a n imminen t danger withdrawal order differently from notices of
con test filed under section 105(d) with respect to citations and
oth er types of withdrawal orders. The statutory provisions
provide parallel avenues of relief.
In both instances operators
h ave t h e opportun ity s u bsequently to challenge penalty aspect s of
the matters involved.
I recognize that this action was filed one day late.
However , consideration of this fact in the matter at hand would
open all operator applications and contests to an evaluation of
degrees of timeliness and particular circumstances. Since I
believe that actions under 105(d) and 107(e) should be viewed in
par i materia, acceptance of such an approach would constitute a
dep artu re from settled precedent which I am unwilling to
u ndertake absent instru ction to the contrary.
I n l i ght of the foregoing , it is ORDERED that t h is case b e,
a n d i s hereby DISMISSED .

Paul Merlin
Chief Admin istrative Law Judge

1795

Distribution:

(Certified Mail)

David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower, P.
Box 553, Charleston, WV 25322

o.

Douglas White, Esq., Office of the Solicitor, u. s. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Ronald Gurka, Esq., Regional Counsel, Office of the Solicitor,
u. s. Department of Labor, Ballston Tower #3, 4015 Wilson
Boulevard, Suite 516, Arlington, VA 22203
/gl

1796

PBDBRAL KIBE SAl'BTY ARD HEALTH RBVJ:BW CX>JlllXSSIOB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 1 7 199(
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
JOHNNY ROBINSON,
complainant
v.
SUNNY RIDGE MINING COMPANY,
INCORPORATED,
Respondent

DISCRIMINATION PROCEEDING

.: Docket No. KENT 94-365-D
.: PIKE CD 93-22
.: No. 12 surface
.
.
DECISION

Appearances:

MaryBeth Bernui, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Complainant;
Herman w. Lester, Esq., Pikeville, Kentucky, for
the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a complaint of alleged
discrimination filed by the Secretary of Labor against the
respondent pursuant to section 105(c) (2) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. 815(c)(2). The
complaint was filed on behalf of Johnny Robinson, a former
employee and drill operator of the respondent who claimed that he
was discharged on or about August 16, 1993, because he made a
series of health and safety complaints regarding the condition of
the drill.
The respondent denied any discrimination, and it contended
that Mr. Robinson was discharged for damaging the company drill
that he was operating on August 16, 1993, the day that he was
discharged.
A hearing was held in Pikeville, Kentucky. ~he petitioner
filed a posthearing brief, but the respondent did not. However,
I have considered its oral arguments made at the hearing in the
course of my adjudication of this matter.

1797

Issues
The critical issue in this case is whether Mr. Robinson's
discharge was prompted in any way by any health or safety
complaints that he may have made concerning the drill, or whether
it was the result of his damaging the drill as claimed by the
respondent. Additional issues raised by the parties are.
identified and disposed of in the course of this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § et seg.
2. Sections 105 (c) (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 815(c) (1),
(2) and (3).
3.

Commission Rules, 29 C.F.R.

§

2700.1, et seq.

Stipulations
The parties agreed to the following (Tr. 9-12).
1. Mr. Robinson was hired by the respondent on
April 12, 1993, as a general laborer-drill operator, at
a salary rate of $10 per hour, based on a 40-hour week.
He subsequently received a raise to $11 per hour, and
his overtime rate was $16.50 per hour. His last day of
employment was August 16, 1993.
2. The subject mine is a non-union operation, and
Mr. Robinson is a "miner" as defined by the Act.
3. The complaint was filed by the secretary pursuant
to section 105(c) (2) of the Act, and the Commission has
jurisdiction in this matter.
4. The respondent is a coal mine operator engaged in
the business of mining coal in interstate commerce and
is subject to the Act.
Complainant's Testimony and Eyidence
Johnny M. Robinson, the complainant in this case, testified
that he has a tenth grade education and has worked in the mining
industry for 9 or 10 years. He worked for the respondent at the
No. 12 surface coal mine on the day shift as a drill operator and
rock truck driver, as needed. He was hired by Phillip Rife, the
mine foreman, and Mr. Rife was his supervisor for the entire time
he worked at the mine. He confirmed that his normal work hours
were 7:00 a.m. to 5:00 p.m., six days a week and the mine

1798

operated one shift when he was there. He stated that he received
no training or orientation when he was hired and no one explained
any company policies or procedures to him. He had never been
disciplined prior to his discharge on August 16, 1993
(Tr. 16-19).
Mr. Robinson explained his duties, and he described the
drill that he usually operated on a daily basis (Tr. 21-22). He
stated that one of the levers on the 35B Gardner Denver drill
that he operated was hard to -pull and he had to use both hands to
pull it. He believed the lever operated the blower. He also
stated that the dust collector and air conditioner were not
working (Tr. 23). He stated that he mentioned all of these
problems to Mr. Rife, to the mine operator Tommy Potter, and to
Gary Minix, the mechanic (Tr. 24).
Mr. Robinson stated that he experienced "bad chest pains"
and that he "got to smothering a lot" and had to go to the
hospital emergency room as a result of the problems with the
drill. He stated that he was not admitted but was given an
E.K.G. test and x-rays were taken, and he also took a stress
test. He informed Mr. Rife about his health problems and
explained as follows at (Tr. 27):
A. He said there was nothing wrong with my heart. I
said, "I don't think so either, Phillip. If it's
anything wrong with me, it's the lever and breathing
the dust that I've been breathing." He said, "There
ain't nothing wrong with you."
Mr. Robinson stated that Mr. Potter told him that he was
trying his best to repair the drill lever and agreed that it was
hard to pull (Tr. 25). Mr. Robinson stated further that Mr. Rife
responded to his complaints about the drill, and he explained as
follows at (Tr. 24-25):
A. He said they was planning on getting them fixed, he
said, as soon as they could get somebody up here to
work on the air conditioner, the air-conditioning. And
he said the dust collector and everything would be
fixed, in time.
Q.

Was the dust collector ever repaired?

A. Let's see. I was off for two weeks. And when I
come back to work, the dust collector was working.
And I run it about two or three days after that and I
was fired.
Q.

What about the air conditioner ?

A.

Yes, it was working.

1799

How long had that been repaired before you were
fired?

Q.

A. They done all this maintenance in the two weeks I
was off.
Q.

How about the lever on the drill?

A.

It was never repaired.

Mr . Robinson stated tha~ on August 16, 1993, he was
operating the drill on the haulage road that is located from the
parking lot out to the work area and he was drilling a drainage
ditch against the highwall . Mr. Rife assigned him that job and
acknowledged that he would be drilling in a "tight area" because
of passing coal haulage trucks. Mr. Rife told him to "be careful
and take your time" but not to hold up any of the coal trucks
(Tr. 28-29).
Mr. Robin~on stated that four coal trucks and other
vehicular traffic passed by him on the haulage road while he was
operating the drill, and when the coal trucks passed he was a
foot and a half away and he positioned himself as close as he
could to the highwall. He would sometimes back up to a wider
part of the road if he were close enough to do so before the coal
trucks reached his area (Tr . 30-32).
Mr. Robinson stated that he realized that the drill blower
was damaged that same evening after he parked the drill at the
parking lot and began to check the oil and water to prepare the
machine for work the next day. He explained that he was removing
some tree limbs and leaves from the machine and noticed that the
blower was bent. He then called Mr . Rife on his truck C.B. and
asked him to come to the drill. He and Mr. Rife examined the
damage, and Mr. Robinson stated as follows at (Tr. 36):
• • • I said, "Phillip," I said, "I'm sorry for bending
the blower on the drill . " I said, "I was in a tight
spot." He said, "Yeah, I know you was in a pretty
rough spot." I said, "Well, I tried my best, you know,
to take care of the equipment."
And he said, "Well, I don't know what the owners is
9oin9 to say about it. I said, "Well, like I said, I'm
sorry I bent the blower on the drill." And then he
asked me, he said, "Are you working tomorrow?" And I
said, "Yeah." He said, "Well, I quess I can put you
driving the water truck." I said, "Okay. I'll see you
in the morning." That was about -- I quess, about ten
•minutes till five.

1800

Mr. Robinson stated that Mr. Rife called him at home on the
evening of August 16, at 8:30 or 9 : 00 p.m. and told him that he
no longer needed his services. Mr. Robinson stated that he
responded "Ten-Four" and that "it choked me that I got fired" .
Mr. Robinson then called Mr. Minix, the mechanic, and informed
him that he had been fired and Mr. Minix told him that he could
not be fired over the phone and that "he has got to fire you to
your face" (Tr. 38).
Mr . Robinson stated that he went to work the next day,
August 17, and was preparing to operate a piece of equipment when
Mr. Rife appeared and informed him that he had been fired the
previous day. Mr. Rife then told h i m that " I ' ll tell it to your
face. You're a fired man now" (Tr. 39). Mr. Robinson further
explained his encounter with Mr . Rife as follows at (Tr. 39-40):

* * * Anyway, it got into us hollering, cussing . I got
mad and started cussing Phillip . Phillip was saying
his stuff and he told me to get my blank off the hill.
I said, "Well" -- I started cussing him and I turned
around and went back to get my lunch bucket and
thermos.
I kept noticing Phillip out of the corner of my eye and
he came running at me. And when he got about six foot
away from me, I wheeled around with my right arm
cocked . And I said, "You come on and hit me" and I
said "I ' ll knock your teeth out." Like he was running
to hit me. And he said, "Well, get your ••• blank"
lunch bucket and get the • •• blank •. •• off the job. "
said, "Okay . " I said, "I'm going to." He said, "Get
in the truck. " He said, "Get in the truck. I'll take
you around the hill . " I said, "I don't want in the
truck. I don't want a ride. I'll walk out of here. "
And I did.
I

Mr. Robinson stated that he also spoke with "one of. the
Darnell brothers" who stopped along the road while he (Robinson)
was walki ng to the parking area after Mr. Rife fired him.
Mr. Robinson stated that he told Mr. Darnell that Mr. Rife fired
him for bending the drill blower· the previous day (Tr. 41) .
Mr. Robinson denied that he was ever under the influence of
alcohol while working at the mine (Tr. 43). He stated that two
other employees damaged equipment at the mine but were not fired
and he identified them as Chuck Griffith and Eddie Taylor
(Tr. 43-44).

Mr. Robinson stated that after he was fired by the
respondent he looked for other work and found a job at Branham
and Baker Mining Company at $12.50 an hour, and worked there from

1 801

October 1993, to March 31, 1994. He has continued to seek
further employment with other mine operators since that time
(Tr. 45-46).
On cross-examination , Mr. Robinson confirmed that he
received a pay raise during his employment with the respondent
and that he was off for two weeks because of lack of work before
he was fired (Tr. 49). He co~firmed that both Mr. Rife and Mr.
Potter cautioned him to be careful for his personal safety and
not to damage the machine while he was drilling on August 16, and
they also instructed him not to hold up the coal trucks and to
keep out of their way. He denied that Mr. Rife and Mr. Potter
pointed out several wide places in the roadway where he could
take the drill when the trucks passed (Tr. 51-52).
1

Mr. Robinson could not state how many times he may have
struck the highwall when he was drilling on August 16, and he
stated that "if I hit it, I never felt it . I didn't. acknowledge
it" (Tr. 54). He confirmed that if he did hit the highwall, the
blower part of ·the machine would have struck it. He acknowledged
that the blower was bent but did not remember when it happened
(Tr . 55).
Mr. Robinson confirmed that he was warned to keep the drill
out of the highwall trees but indicated that this was difficult
because the trees stick out over the highwall. He confirmed that
the drill was into the trees several times on the day in question
and that he knocked down some small limbs and leaves, and on one
occasion had to remove "a pretty good size branch" from the drill
(Tr • .56-57) . Mr. Robinson confirmed that Mr. Manix cautioned
him about getting into the trees with the drill (Tr. 58).
Mr . Robinson explained his conversation with Mr. Rife when they
examined the drill as follows at (Tr. 59-60):
A. I told him, I said, "I guess I've run into the
highwall, Philip." That is what I said to him.
JUDGE KOUTRAS:
Do you know?
THE WITNESS:

What other explanation would there be?
Pardon?

JUDGE KOUTRAS: What other explanation is there? I
mean, the blower wouldn't have gotten into the trees,
would it? It's low.
THE WITNESS: No, it wouldn't have got in the trees. I
would have had to hit the highwall. I had to hit the
highwall. I'm not saying I didn't hit it.

*

*

*

*
1802

*

*

*

You didn't tell Philip you were sorry about
damaging the machine, did you, that day?
Q.

A.

Yes, I did.

You told him, to quote things I've seen throughout
this, "Accidents happen."

Q.

A. No sir, I did not.
.that blower.

I told him I was sorry I bent

Q.

You deny making that statement.

A.

I

do deny it.

Mr. Robinson was of the opinion that the drill was operable
without the blower working the day after it was damaged. Even
though the purpose of the blower is to keep the dust away from
the drill operatdr, he would have operated the drill in that
condition and stated that "I had done it before" (Tr. 62-63).
Mr. Robinson denied that he had been drinking the evening he
was fired, or the next morning, and he denied returning to work
after Mr. Rife phoned him and fired him to challenge Mr. Rife's
authority or to "ge t into a cussing match" with him (Tr. 64-65).
When asked why he was fired, Mr. Robinson responded as follows at
(Tr. 65-66):
Q.

What was the reason you were fired, John?

A. I would say for denting the blower on the drill.
That is what I was told anyway.
Q.

Is that your understanding, too?

A.

That is what I was told.

Mr. Robinson stated that Mr. Minix was present during his
encounter with Mr. Rife. He confirmed that after inviting
Mr. Rife to hit him and telling Mr. Rife that he would knock his
teeth out, Mr. Rife walked away from him (Tr. 66-67).
•.

Mr. Robinson identified a copy of an employment application
that he signed when he applied for a job with the Branham and
Baker Coal Company on September 20, 1993. He admitted that he
·stated on the application that he was a high school graduate,
which was not true, and he explained that "there is not too many
people hire you anymore without having a high school education"
(Tr. 69). He also admitted that the November 10, 1992, date
shown on the application as the date he was hired by the
respondent is not correct, and that the statement that he was
still working for the respondent on September 20, 1993, was also

1803

not true . He also admitted that he did not disclose that he was
fired by the respondent and simply indicated that he left because
he only worked three or four days a week, and he explained that
"who is going to hire me if I told them another company fired
me?" (Tr. 70). Mr. Robinson admitted that he certified that the
answers given by him on the application form were true and
correct and knew that the information he gave with respect to his
employment with the respondent was not correct {Tr. 71).
Mr. Robinson stated that Branham and Baker Coal Company
hired him in October 1993, and terminated him in March 1994
(Tr. 71). He explained that he was fired by the company
president and was told that he was not performing his duties as a
drill operator (Tr. 73). He confirmed that he filed a discrimination complaint .with MSHA against Branham and Baker and
suggested that he was fired because of his discrimination
complaint against the respondent (Tr. 77, 82). MSHA's counsel
confirmed that Mr. Robinson's complaint against Branham and Baker
is under inve~~igation (Tr. 78).

Mr. Robinson believed that the drill lever that was hard to
pull operated the blower, but he was not sure, and he confirmed
that all of the other levers were operational. He also confirmed
that Mr. Potter worked on the lever after he complained about it,
and that a mechanic also worked on it . (Tr. 84-85).
Mr. Robinson stated that other employees also complained
about the air conditioning when it stopped operating . He
confirmed that Mr. Rife told him that he was trying to get
someone to repair the air conditioning, that there was no one on
the job who could make the repairs, and that a certified mechanic
was required. Mr. Robinson also confirmed that Mr. Rife had a
mechanic from another mine site repair the air conditioning as it
would go out and that it was working on the day he was fired
(Tr. 86-87). He stated that he never made any safety or health
complaints to any MSHA or state mine inspectors (Tr. 88).

Mr. Robinson reviewed a copy of his prior deposition of
May 10, 1994, in this case, and he confirmed that he testified
that his employment problems with the respondent all related to
the damage to the drill and had nothing to do with any complaints
about safety or health violations. Mr. Robinson confirmed that
Mr. Rife informed him that he was fired for damaging the drill
and that he (Robinson) understood that this was the reason for
his discharge and that it had nothing to do with his health or
safety complaints. Mr. Robinson confirmed that he reviewed his
deposition and did not change any of his testimony regarding the
reasons for his discharge when he signed the deposition after
receiving it from the court reporter (Tr . 90-94).
In response to further questions, Mr. Robinson could not
explain why .he misstated the date of his hiring by the respondent
1804

on the application he filed with Branham and Baker. He confirmed
that he stated that he was still employed by the respondent in
order to get the Brariham and Baker job and that he needed to
work, and he did not disclose his discharge because he believed
he would not have been hired. He also acknowledged that he
stated he was a high school graduate because it would be easier
to get the job (Tr. 97-98) .
In further explanation of his prior deposition testimony,
Mr . Rob i nson responded as follows to questions by MSHA's counsel
(Tr. 98-99):
Q. Now, I want to talk to you about your deposition,
on page forty-seven. Mr. Lester already read into the
record his questions and your response to his questions
on page forty-seven. I would like to read into the
record and show you your response to my questions on
page fifty-three, beginning with question one.
Question One -- and this is direct examination by me,
page fifty-three. "I just want to clarify a few things
now. You were told that you were fired from Sunny
Ridge for damaging the drill , correct?.
A.

Yes.

Q.

Answer, "Yes, I was."

A.

Yes .

Is that your answer?

Q. Question two, "Do your feel you were fired because
you made all those complaints?"
Answer, "It's a possibility. I'm not saying for sure,
because I don't now for sure. "Was that your answer?
A.

Yes, it was.

Q.

can you explain that?

A. I was told I was fired for damaging the drill.
They never said nothing to .me about my comelaints or
firing me over my complaints or none of the above. So
I really didn't know -- I give the most honest answer I
could. I didn't know if that was the reason why I got
fired .
Q.

What do you believe?

A. I believe it was due to all of it; the blower, the
dust, the complaints and me damaging the drill. All of
it wrapped up in one.
1805

Everett Potter, employed by the Corbin Coal Company as a
night shift supervisor, testified that he was employed by the
respondent as an equipment operator for four months during May
through August of 1993. He worked the same shift with Mr.
Robinson and Philip Rife was the mine foreman and their
supervisor. He stated that Mr. Robinson worked regularly and he
heard him complain to Mr. Rife about the hot, dry, and dusty
conditions because of the lack of air conditioning for the drill
that he operated. Mr. Potter characterized Mr. Robinson's
complaints as complaints about "normal breakdowns and normal .
stuff", and he could not recall Mr. Robinson complaining about
the drill lever .
Mr. Potter considered Mr. Robinson to be a "fair drill man"
and he never observed him drinking alcohol while on the job .
Mr. Potter confirmed that he was working the day Mr. Robinson was
fired and that Mr . Rife told him about it the next day .
Mr. Potter did not believe that Mr. Robinson complained about the
lack of air conditioning more than any other employee·.
Mr. Potter stated that he quit his job with the respondent
for a better job offer and more benefits and money. He stated
that he "ruined" a front wheel on an end-loader that he was
operating while employed by the respondent and he was not fired .
He stated that one month before he quit his job the equipment air
conditioning was in working order (Tr. 112-119}.
On cross -examination, Mr. Potter confirmed that when he
worked at the mine there was no equipment air conditioning, that
it was hot, and everyone complained about this. He stated that
he observed Mr. Robinson drinking alcohol on mine property "once
or twice a week" at the mine parts trailer area after his work
shift was over. Mr. Potter confirmed that he was not at the mine
when Mr . Robinson was fired, or the next day. He stated that he
would "probably" hire Mr . Robinson. He also indicated that the
question of whether to fire an employee for damaging equipment
would be a judgment call by the foreman or supervisor. He
confirmed that the respondent performed maintenance on. its
equipment.
Mr. Potter stated that the damage to the tire that he ruined
was the result of an accident, and that it was not intentional or
the result of gross negligence on his part. He confirmed that
when he worked at the mine the respondent had someone come from
another job to service the equipment air conditioners
(Tr. 119-127}.
Ruben Hylton, employed by the Sidewinder Mining Company
since late August of 1993, as a mechanic, te~tified that he was
employed by the respondent at the No. 12 mine as a greaser
maintaining the equipment for approximately one-and-one half to
two years. He worked on the same shift with Mr. Robinson and
1806

confirmed that Mr . Rife was his supervisor and his father-in-law.
Mr. Hylton stated that he performed maintenance on the drill
operated by Mr. Robinson and that one of the levers was "stiff".
He confirmed that he heard Mr . Robinson state that the lever was
stiff, b~t he could not recall who he told about this.
Mr. Hylton knew of no other employee who was ever fired by
the respondent for damaging equipment. He stated that he was
told that "if you tear up equipment, that's it" and he knew that
"if I messed up", he would be subject to discharge {Tr. 128-135).
On cross-examination, Mr. Hylton stated that he left his job
with the respondent voluntarily to work with his father. He
stated that he has observed Mr. Robinson drinking alcohol at the
mine after his work shift. He stated that during the work shift
on August 16, 1993, the day Mr. Robinson was fired, he was
working with Mr. Minix, the equipment mechanic, and th~t
Mr . Minix warned Mr. Robinson about operating the drill "in the
trees" at the hicjpwall and Mr. Hylton observed that a large tree
branch had fallen on the drill. When Mr. Minix brought this to
Mr. Robinson's attention, Mr. Robinson responded "was I in those
trees?" Mr. Hylton stated that Mr. Robinson bent the drill dust
blower on the highwall and that he observed several equipment
scrapes against the highwall.
In response to further questions, Mr. Hylton stated that he
observed Mr. Robinson drinking after his work shift at the parts
trailer area where employees parked their vehicles and that on
one occasion he smelled alcohol on Mr. Robinson's breath
(Tr. 135-148).
/
!
J

Darwin Bailey, testified that he wr' employed by the
respondent as a rock truck driver and t t Mr. Rife was his
superv:isor. He worked on the same shif with Mr. Robinson and
believed that he was "a pretty good dri 1 men." He stated that
on one occasion he heard Mr. Robinson complain about a lever on
the drill that he was operating and that it was repaired. He
confirmed that Mr. Robinso~ complained about the lack of air
conditioning on his drill and that Mr. Rife responded by stating
that the repairman "was on his way"• Mr. Bailey stated that he
never heard Mr. Robinson complain about dust and he did not know
if Mr. Robinson complained more than any other employee.
Mr. Bailey believed that the air conditioning was repaired
approximately a week after Mr. Robinson was fired .
Mr. Bailey stated that he was working at the mine on the day

Mr. Robinson was fired when "he came down and started the

trouble". He stated that Mr. Robinson was highly upset and told
him that Mr. Rife had fired him. He stated that Mr. Robinson
cursed Mr. Rife, and told him he would "see him in court".

1807

Mr. Bailey could not recall any company discharge policy, or
that he was ever informed about any policy stating that an
employee would be discharged for damaging equipment. Mr. Bailey
stated that dozer operator "Chuck" Griffith had an accident when
a truck pulled in front of his dozer, and that he was not fired
(Tr. 148-163).
On cross-examination, Mr. Bailey reiterated that he only
heard Mr. Robinson complain one time about his drill lever and
that it was repaired. He also confirmed that he never heard
Mr. Robinson complain about dust, but that he did complain about
the lack of air conditioning. He confirmed that everyone had air
conditioning after it was repaired.
Mr. Bailey further confirmed that Mr . Robinson was screaming
and cursing at Mr . Rife and wanted to fight him after Mr. Rife
informed him that he had been fired. Mr . Bailey did not know
whether he s melled any alcohol on Mr. Robinson at that time and
he characterized Mr . Rife as a "good, fine, boss". Mr. Bailey
believed that M
r . Griffith was not fired because his equipment
damage was an "accident" (Tr. 163-172).
Charles I. Griffith, employed by Sidney Harwoods as a dozer
operator, testified that he was employed by the respondent from
approximately April, 1992, to August, 1993, at the No. 12 mine as
a dozer and loader operator. He stated that Mr . Rife was the
mine foreman and his supervisor, and that Mr. Rife had hired him.
Mr. Griffith stated that he worked the same shift with
Mr. Robinson and that Mr. Robinson had a "regular attendance"
record, and he considered Mr . Robinson to be a "fair and
competent" drill operator.
Mr. Griffith stated that Mr. Robinson expressed his concerns
about the lack of air conditioning on his drill and "just
different things". Mr . Griffith was also aware that Mr. Robinson
had complained one time about a drill lever but he could not
recall any further details. With regard to any dust problems,
Mr. Griffith stated that Mr. Robinson usually complain~d to
Mr. Rife or to "whoever" over the C.B. radio on his equipment .
Mr. Griffith "guessed" that Mr . Robinson complained more than the
other employees. Mr . Griffith never observed Mr. Robinson
drinking on the job, but they· would have a few beers off mine
property after work.
Mr. Griffith stated that the air conditioning on the
equipment that he operated "worked sometimes , and sometimes it
didn ' t". He further stated that none of the equipment air
conditioning was operational all of the time but that Mr. Rife
tried to get it repaired and that a maintenance crew came to the
mine during "the first of July·" and made repairs. · Mr. Griffith
also stated that some of the equipment had open cabs that were
not equipped for air conditioning. Mr. Griffith stated that when

1808

"something went wrong with the equipment", employees would
complain and that "it was usually fixed" .
Mr. Griffith stated that he observed Mr. Robinson operating
the drill the day he was fired and learned the next day that
Mr. Rife had fired him. He rode out of the work site with
Mr. Rife and saw Mr. Robinson at the parking lot . Mr. Griffith
stated that Mr. Rife showed him the damaged dril l and told him
that Mr. Robi nson had "torn it up". Mr. Griffith stated that he
observed indentations in the highwall where "the drill got into
it" and observed that the drill blower "was bent pretty bad".
Mr. Griffith stated that he was shown the company policy about
damaging company equipment when he was first hired.
Mr. Griffith stated that a few months before Mr. Robinson
was fired he (Griffith) had an accident with his endloader while
loading coal. He explained that he struck the hood of a truck
that he could not see with his dozer blade raised, but was not
fired . He also stated that he knocked an oil tank off when he
was close to the highwall. He was also aware that drill operator
Eddie Taylor had a hydraulic motor torn off the drill he was
operating and was not disciplined at that time.
Mr. Griffith stated that when he had his accident with the
truck Mr. Rife cautioned him to be more careful and admonished
him for being careless. Mr. Griffith stated that after
Mr . Robinson was fired in August, he (Griffith) was pushing shot
and spoil with his dozer and knocked a hole in the radiator. He
reported this to Mr . Rife and showed him the damage . Mr. Rife
then .left to summon a mechanic and Mr. Rife discussed the matter
further with Mr. Griffith. Mr. Rife informed him that "he had no
other choice", and Mr . Griffith stated that "I picked up my
bucket and left the mine" (Tr. 172-187).
On c ross-examination, Mr . Griffith stated that it "was
pretty well known", that on any strip mining job if an employee
continuously damaged his equipment his job may be in jeopardy.
However, he was not aware of anything in writing. Mr. Griffith
stated that he left his job with the respondent after his third
incident of damaging equipment (the damaged radiator), and he
confirmed that Mr. Rife told him that he took "too many chances"
with his equipment. Mr. Griffith admitted that he took chances
that he should not have taken, and .has since learned to be more
cautious about not damaging equipment and "not to rush so much".
He stated that the damaged radiator resulted in production down
time and it "cost thousands" to repair the damage.
Mr. Griffith stated that at the time Mr. Robinson damaged
the drill blower he observed "five or six gouges" in the blower
and he was of the opinion that the damage could have been
prevented if Mr. Robinson had exercised more reasonable care. He
confirmed that he never heard mine management state that they

1809

would get rid of Mr. Robinson for any safety complaints.
Mr. Griffith stated that he has operated equipment with no air
conditioning. He also stated that he was sure that Mr. Robinson
was fired for damaging the drill (Tr. 187-225).
Respondent's Testimony and Evidence
Gary Minix, mechanic, No. 12 Mine, testified that he was
familiar with the Gardner-Denver drill that was operated by
Mr. Robinson. He stated that he repaired a number of broken
chains and hoses that occurred when Mr. Robinson was operating
the machine, but that after he left there was a decrease in the
repairs that he had to make to the drill. Mr. Minix stated that
on one occasion Mr. Robinson admitted to him that he had
intentionally damaged a hose because he was mad at Mr. Rife,
but later apologized for doing this.
·Mr. Mini~ stated that the drill lever that controlled the
air used to blbw out the material from the drilled holes was
"harder than usual" to operate and that he obtained new parts to
repair the lever. However, after adjusting the lever tension,
the repairs were not needed and the lever is still operative and
in use. With regard to the equipment air conditioning, Mr . Minix
stated that repairs are made by licensed mechanics when they can
get to it and he explained that in view of the presence of freon
in the air conditioning units licensed contractor mechanics must
make the repairs.
Mr. Minix stated that on August 16, 1993, the day
Mr. Robinson was fired, he observed him operating his drill at
approximately 8:30 or 9:30 A.M., and found that a tree limb had
fallen into the drill mast. Mr. Minix stated that he removed the
limb and informed Mr. Robinson about several other trees "around
the hill". Mr. Minix returned an hour or so later and observed
that the drill dust collector was bent, and Mr. Robinson informed
him that he couldn't help it. Mr. Minix stated that he warned
Mr. Robinson again to stay out of the trees and he heard the
sound of another tree that had fallen near the drill but it did
not land on the machine. Mr. Minix then left the area.
Mr. Minix stated that he later observed Mr. Rife and
Mr. Robinson discussing the damaged drill dust collector and
heard Mr. Robinson comment "shit happens" as he proceeded to
retrieve a beer from a cooler and leave the area. Mr. Minix
stated that Mr. Robinson called him later that evening and
informed him that Mr. Rife had fired him. Mr. Minix stated that
he told Mr. Robinson that he could not be fired by telephone, and
he believed that Mr. Robinson was fired because of attitude
problems and damaging the drill. He stated that he and
Mr. Robinson wer~ friends and that he often gave Mr. Robinson
rides to work.

1 810

Mr. Minix stated that he was present when Mr. Robinson came
to the mine the next morning after he was fired and that he
smelled alcohol on Mr. Robinson's breath. Mr. Minix stated that
he observed and heard Mr. Robinson cursing Mr. Rife in a loud
voice, calling him "bad names", and attempting to qet Mr. Rife to
fight him. Mr. Minix estimated that it would take several hours,
and cost several thousand dollars to replace the damaged dust
collector. He stated that the drill was repaired, but a new dust
collector was not installed (Tr. 225-252).
On cross-examination, Mr. Minix stated that the damaged
drill was out of operation for approximately five to nine hours .
He believed that the damage could have been avoided if
Mr. Robinson had exercised reasonable care (Tr. 252-257).
Philip Rife, Mine Foreman, No. 12 mine , testified that he
has served as foreman for two years and that the day shift has
16 employees. He stated that he hired Mr. Robinson as ·a drill
operator on April 12, 1993, and was his supervisor until
August 16, 1993. .He had no complaints about Mr. Robinson's work
and stated that he came to work every day and did an acceptable
and suitable job.
Mr . Rife stated that two or three weeks before he fired
Mr. Robinson there was a change in his attitude. Mr. Rife stated
that he received a telephone call from someone from the child
welfare office in Prestonsburg inquiring about Mr. Robinson's
wages. Mr. Robinson informed him that his ex-wife was after him
for child support and had him jailed. Mr. Rife stated that
Mr. Robinson told him he would force him to fire him because he
did not want to pay his ex-wife any child support.
Mr. Rife confirmed that Mr . Robinson complained to him about
the lack of air conditioning on his drill, and that others had
also complained. Mr. Rife explained that it was difficult to
maintain the air conditioning because certified mechanics had to
perform the work because of the presence of freon. He stated
that the drills had recently been inspected by MSHA ·and ·osM and
were in good order. He also confirmed that Mr. Robinson had
complained about a drill lever used to blow dust out of the
drilled holes, but that the mechanic had sprayed it with WD-40,
and this took care of the problem and no further complaints were
made .
Mr. Rife stated that he fired Mr. Robinson for damaging the
drill on August 16, 1993. Mr. Rife stated that he personally
observed and counted 21 places and paint marks on the highwall
where Mr. Robinson had struck it with the drill while he was
operating it that day. The damage rendered the drill inoperable,
and when he discussed the matter with Mr. Robinson, he (Robinson}
commented that "shit happens" and never indicated that he was
sorry or that it was an accident. Mr. Robinson did not inform
1811

him that he had struck any trees with the drill, but Mr. Minix
informed him that Mr. Robinson had in fact "been in the trees"
with the drill.
Mr. Rife confirmed that other employees had damaged mine
equipment but were not fired . He explained that the incident
involving Mr. Griffith was an accident and that Mr. Griffith
apologized. He stated that Mr. Robinson had a bad attitude and
he believed that he intentionally damaged the drill for not ~oing
what was asked of him to stay out of the trees. Since the drill
hit the highwall 21 times, Mr. Rife concluded that Mr. Robinson
knew what he was doing. Mr . Rife stated that pursuant to company
policy, intentionally damaging equipment is a discharge offense.
Mr. Rife believed that he got along well with all of his
employees and he denied that he harbored any ill will against
Mr. Robinson or that the "had it in" for him for complaining
about the drill air conditioning. Mr. Rife stated that he would
not have fired 'Mr. Robinson, if he did not have "an attitude
problem" and had not damaged the drill (Tr. 258-278).
on cross-examination, Mr. Rife further explained his
deposition testimony concerning Mr. Robinson's child support
problems (Tr. 278-280). He confirmed that he previously stated
that Mr. Griffith was not fired and quit his job on his own
accord and that he told MSHA's special investigator Hamilton
that Mr . Griffith was fired for damaging equipment after he
had been warned two or three times, and that he had been fired a
few days after Mr. Robinson. He also confirmed that he told
Mr. Hamilton that Mr. Robinson had complained two or three times
about the drill blower lever being hard to pull and that he gave
him some WD-40 oil to free the lever and that it was harder than
normal to operate (Tr. 282-283) .
Mr. Rife stated that a former employee, Fred Bailey, quit
his job at the mine and told him that he was leaving because of
the dust and heat and because the air conditioning not working.
He confirmed that Mr. Bailey had complained to him about these
matters, but denied that he quit because his complaints were not
taken care of (T~. 285-286).
Mr. Rife testified about his encounter with Mr. Robinson
on the morning after he fired him by telephone as follows at
(Tr. 286-288):
A. I had .come in the job and there he was with Gary
Minix, the mechanic. I said "Johnny, what are you
doing out here?" He said, "If you have anything to say
to me, you say it in front of tater," which is ·Gary
Minix.

1812

I said, "Well, Okay, You ' re fired. Come on, I'll .take
you on out of here." And when I said that, he went to
cussing and calling me every kind of a name there was.
Q.

Did you cuss him back?

A.

No, sir.

Q.

Did you get close to him or he get close to you?

A.

He run right in my nose .

No, I didn't cuss him back.

He got right in my face .

Q. Do you recognize the smell or alcohol on someone's
breath?

A.

Yes.

Q.

Did you recognize it on his?

A.

Yes.

Q.

All right .

What happened after that?

Well, I went on back out to the other end to pick
up the men and bring them out. And I tried to get him
to come on and get in the truck and let me bring him
out. He walked from one end of the job, out to the
other parking lot .

A.

And when he got out to the other parking lot, he went
to cussing and kicking and swooping. When he pulled
out, he went up the hill and across the county road,
toward the Virginia line, cussing me, spinning,
throwing gravels.
Mr. Rife denied that he informed anyone at Branham and Baker
Coal Company that he had fired Mr. Robinson, or that he tried
to get Mr. Robinson fired from his job at that company
(Tr . 288-289).
Mr . Robinson was called in rebuttal and he denied that he
ever told Mr . Rife that he would fire him so that he would not
have to pay child support (Tr. 295). He produced paycheck stubs
from his employment with Branham & Baker, and confirmed that part
of his pay was garnished in order to make child support payments
(Tr. 296-297).
Findings and Conclusions
In order to establis:. 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
1813

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 (3 Cir.
1981): 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); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511
(November 1981), rev'd on other grounds sub nom . Donovan v.
Phelps Dodge Corp . , 709 F.2d 86 (D.C. Cir. 1983). 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 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 (6th Cir. 1983);
and Donovan v. Stafford Construction Company, No 83-1566 D.C.
cir. (April 20, 1984) (specifically-approving the Commission's
Pasula-Robinette test). See also NLRB v. Transportation
Management Corporation,
U.S.
, 67 L.ed.2d 667 (1983),
where the Supreme Court approved the NLRB's virtually identical
analysis for discrimination cases arising under the National
Labor Relations Act.
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2510-11 (November 1981), rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (O.c. Cir. 1983);
Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984).
As the Eigth circuit analogously stated with regard to
discrimination cases arising under the National Labor Relations
Act in NLRB v. Melrose Processing co., 351 F.2d 693, 698 (8th
Cir. 1965)-:
•It would indeed be the unusual case in which the link
between the discharge and the (protected] activity
could be supplied exclusively by direct evidence.
Intent is subjective and in many cases the
discrimination can be proven only by the use of
circumstantial evidence. Furthermore, in analyzing the
evidence, circumstantial or direct, the [NLRB] is free
to draw any reasonable inferences.

1814

Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator.
Protected Activity
It is clear that Mr. Robinson had a statutory right to voice
his concern about the condition of his drill and to make safety
complaints in this regard to mine management without fear of
retribution by management. Management is prohibited from
interfering with such activities and may not harass, intimidate,
or otherwise impede Mr. Robinson's right to complain. Secretary
of Labor ex rel. Pasula v. Cons olidation Coal Co., 2 FMSHRC 2786
(October 1980}, rev'd on other grounds sub nom. Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981), and Secretary
of Labor ex rel. Robinette v. United Castle Coal Co.,
3 FMSHRC 803 (April 1981}. Baker v. Interior Board of Mine
Operations Appeals, 595 F.2d (D.C. Cir. 1978}; Chacon, supra.
1

Mr. Robinson's Communication of his Safety Complaint to Mine
Management
In a number of safety related "work refusal" cases, it has ·
been consistently held that a miner has a duty and obligation to
communicate complaints to mine management in order to afford the
operator with a reasonable opportunity to address them. See:
Secretary ex rel. Paul Sedgmer et al. v. Consolidation Coal
Company, 8 FMSHRC 303 (March 1986}; Miller v. fMSHRC,
.
687 F.2d 194 (&th Cir. 1982); Simpson v. Kenta Energy, Inc.,
8 FMSHRC 1034, 1038-40 (July 1986}; Dillard Smith v. Reco, Inc.,
9 FMSHRC 992 (June 1987); Sammons v. Mine Seryices Co.,
6 FMSHRC 1391 (June 1984); Charles Conatser v. Red Flame Coal
Company. Inc., 11 FMSHRC 12 (January 1989), review dismissed Per
Curiam by agreement of the parties, July 12, 1989, U.S. Court of
Appeals for the District of Columbia Circuit, No. 89-1097.
Although Mr. Robinson's protected activity concerned safety
complaints rather than work refusals, I conclude and find that
the same principles apply and that the Secretary has the burden
of establishing ~hat Mr. Robinson made and communicated his
safety complaints to mine management and that management
retaliated against him by discharging him for complaining. In
short, in order to prevail in this case, the Secretary ·must
establish a nexus between Mr. Robinson's complaints and any
adverse discriminatory actions (the discharge) which followed.
See: Sandra Cantrell v. Gilbert Industrial, 4 FMSHRC 1164
(June 1982); Alvin Ritchie v. Kodak Mining Company, Inc.,
9 FMSHRC 744 (April 1987); Eddie o. Johnson v. Scotts Branch
1815

Mine, 9 FMSHRC 1851 (November 1987); Robert L. Tarvin v. Jim
Walter Resources. Inc . , 10 FMSHRC 305 (March 1988); Connie
Mullins v . Clinchfield Coal Company, 11 FMSHRC 1948 (October
1989) .
Mr. Robinson testified about certain "problems" that he
experienced with the drill, and he identified these as a lever
which was difficult to pull, and a dust collector and air
conditioning unit that were inoperative (Tr. 23). The dust
collector was the same one that he subse quently damaged
(Tr. 85) . He stated that he mentioned these matters to the mine
operator Tommy Potter, mine foreman Phillip Rife, his immediate
supervisor, and mine mechanic Gary Minix (Tr. 24). Mr. Potter
was not called as a witness in this case.
In addition to his complaints about the drill, Mr. Robinson
also mentioned a visit to a hospital emergency room after he "got
to smothering a lot" and experienced "bad chest pains" •.
Mr. Robinson attributed this visit to the problems that he
experienced with the drill, and he testified that he informed
Mr . ~ife about ·these health problems (Tr. 27) .
Former Shift Supervisor Everett Potter testified that he
heard Mr. Robinson complain to Mr. Rife about his drill and the
lack of air conditioning (Tr. 116). Former maintenance greaser
Ruben Hylton testified that he heard Mr . Robinson complain about
the "stiff" drill lever, but he could not recall who he
complained to (Tr. 133). Rock truck driver Darwin Bailey
testified that Mr. Robinson complained to Mr . Rife and Mr. Minix
about the drill lever and the air conditioning, but never heard
him complain about any dust (Tr. 152-153). Former dozer
operator Charles Griffith testified that Mr. Robinson complained
one time about the lever and that he complained to Mr. Rife about
the dust over his C.B. radio (Tr. 176-177). Mr. Rife acknowledged that Mr. Robinson complained to him about the drill lever
and lack of air conditioning (Tr. 264-265; 268).
Based on the .foregoing testimony, I conclude and find that
Mr. Robinson made safety complaints concerning his drill and
timely communicated them to mine foreman Rife. I further
conclude and find that Mr. Robinson's safety communications met
the requirements enunciated by .the Commission in Secretary on
behalf of Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126
(February 1982), Secretary on behalf of John Cooley v. Ottawa
Silica Company, 6 FMSHRC 516 (March 1984); and Gilbert v. Sandy
Fork M~ning Company, supra.
The Respondent's Responses to Mr. Robinson's Complaints
When a miner has expressed a reasonable, good faith fear of
a safety or health hazard, and has communicated this to mine
management, management has a duty and obligation to address the

1816

perceived hazard or safety concern in a manner sufficient to
reasonably quell his fears, or to correct or eliminate the
hazard. Secretary v. River Hurricane Coal co., 5 FMSHRC 1529,
1534 (September 1983); Gilbert v. Sandy Fork Mining Company,
12 FMSHRC 177 (February 1990), on remand from Gilbert v. fMSHRC,
866 F.2d 1433 (D . C. Cir. 1989), rev•g Gilbe rt v . sandy Fork
Mining Co., 9 FMSHRC 1327 (1987).
There is no evidence in this case that Mr. Robinson ever
refused to operate the drill because of any perceived safety
hazards. Indeed, he acknowledged that he often operated the drill
when the dust collector was not function ing properly.
Mr. Robinson acknowledged that Mr. Rife responded to his
drill complaints and informed him that he would summon someone to
the mine to make the repairs. Mr. Robinson confirmed that during
the two-weeks prior to his discharge when he was off for a lack
of work, the drill dust collector and the air conditioning were
repaired and were functioning properly when he returned to work
(Tr. 24-25). Mr. Robinson further testified that Mr. Rife
explained to him that a certified mechanic was required to make
the air conditioning repairs and that Mr. Rife would bring a
mechanic from another mine site to repair the air conditioning
whenever it malfunctioned and that the air conditioning was
working on the day he was fired (Tr. 86-88).
Former equipment operator Charles Griffith, called as a
witness for Mr. Robinson, testified that Mr. Rife attempted to
have the air conditioning repaired when it malfunctioned, or when
the employees complained about it. He characterize d the
complaints as "gripes", and he stated that Mr. Rife usually kept
the equipment in repair and that he had a maintenance crew make
repairs during July, 1993, (Tr. 176, 194-195).
Former equipment operator Everett Potter, who was also
called as a witness for Mr. Robinson, characterized the drill
complaints as complaints resulting from "normal equipment wear
and breakdowns" (Tr. 115-116, 119). He confirmed that his endloader air conditioning was operational for a month or a month
and-a-half when he left the mine in September, 1993 (Tr. 118).
He also confirmed that someone would come to the mine to check
and service the equipment air conditioning (Tr. 125-126).
With respect to the drill lever that Mr. Robinson claimed
was difficult to pull, he confirmed that Mr. Potter worked on the
lever after he complained about it, and that a mechanic also
worked on it (Tr. 84-85). Rock truck driver Darwin Bailey, also
a witness for Mr. Robinson, testified that the lever was repaired
by the mechanic, Gary Minix, the day after Mr. Robinson
complained about it (Tr. 151-152). Although Mr . Bailey
''believed" that the air conditioning was repaired approximately a
week after Mr. Robinson was discharged, I conclude that he was
1817

mistaken. Mr. Robinson himself confirmed that the air
cond1tioning was repaired while he was off before his discharge
and that it was operating properly when he returned to work.
Mine Mechanic Minix acknowledged that the drill lever in
question was "harder than usual" to operate. He testified that
new parts were obtained to repair the lever, but that the new
parts were not used because the lever was restored to normal
after the tension was adjusted and that it is still functioning
properly with no further complaints from anyone (Tr. 231-232).
He also confirmed that the air conditioning was repaired when
qualified technicians licensed to make the repairs were available
to do the work (Tr. 233-235).
After careful consideration of all of the testimony and
evidence in this case, I conclude and find that the respondent
took reasonable and appropriate measures to correct the drill
conditions that Mr. Robinson complained about. Indeed,
Mr. Robinson himself acknowledged that repairs were made to the
dust collector and air conditioning during the two-week period
before he was discharged and that this equipment was operating
properly the day he was fired. With respect to the drill lever,
I conclude and find that it too was repaired in response to
Mr. Robinson's complaint. Further, after viewing all of the
witnesses in the course of the trial, I am persuaded by the
credible testimony of the former employees of the respondent who
testified that foreman Rife reacted affirmatively in making
equipment repairs, or arranging for the repairs to be made, when
breakdowns occurred, or when complaints were made, particularly
during the hot and dry summer period when the surface working
conditions may have been less than ideal.
With respect to Mr. Robinson's assertions and suggestions
that the problems associated with the drill he was operating were
responsible for his chest pains which prompted his visit to a
hospital emergency room, I find absolutely no credible or
probative evidence to support these conclusions and they are
rejected as less than credible and totally lacking any medical
support. Indeed, when questioned from the bench concerning any
evidentiary support for Mr. Robinson's conclusions that his fears
of a "heart attack", which according to his unsworn statement
of Septembe? 9, 1993, to the MSJiA special investigation
(Exhibit C-6), occurred on a Sunday, July 24, 1993, the
Secretary's counsel asserted that she had certain hospital
records verifying that Mr. Robinson visited the hospital, but
could not read them or "understand a word it says" (Tr. 105).
Alleged Disparate Treatment
Mr. Robinson asserted that two other employees damaged
equipment but were not discharged, and he identified them as
"Chuck" Griffith and Eddie Taylor (Tr. 43-44). Mr. Griffith

1 818

testified in this case, but Mr. Taylor was not called-. However,
Everett Potter, a former employee not mentioned by Mr. Robinson,
but called as one of his witnesses, testified that he "ruined" a
front wheel on an end-loader while employed by the respondent,
and he was not fired. Mr. Potter explained that the damage to
the tire ·was the result of an accident, rather than gross
negligence, the lack of care, or an intentional act on his part.
As a foreman himsel f, he believed that judgments and
distinctions must be made with respect to an employee
accidentally damaging a piece of equipment, and an intentional
or negligent act resulting from a lack of care (Tr. 124-125).
Mr . Griffith confirmed that he dislodged an oil tank from an
end-loader when he got too close to the highwall, and that he
also damaged the hood of a truck when his vision was obscured by
the raised loader blade . He explained that this was an accident
and that Mr. Rife admonished and cautioned him to be more
careful, but did not fire him.
Mr. Griffith further confirmed that he subsequently damaged
the radiator of a · dozer "three days prior to his dismissal", and
that after viewing the damage, Mr. Rife informed him that he had
"no other choice," and Mr. Griffith interpreted this as a
discharge and he left the mine and sought employment elsewhere
(Tr. 186-187).
Mr. Rife acknowledged that other employees had damaged
equipment but were not fired . However, he explained that
"accidents happen", but "if you tear a piece of equipment up
intentinally, you're discharged" (Tr. 273). Mr. Rife confirmed
that he told the MSHA special investigator on October 7, 1993,
that Mr. Griffith was fired after he had been warned three times
about damagining equipment (Tr. 282; Exhibit C-4). I take note
of the fact that in his pre-trial deposition of May 10, 1994,
Mr. Rife stated that Mr. Griffith was not fired and quit and left
on his own accord (Exhibit C-3; pg. 30). Although these
statements are inconsistent, I still find Mr. Rife to be a
credible witness.
Although Mr . Rife's earlier statement that Mr. Griffith was
fired is in conflict with his later deposition statement that
Mr. Griffith left on his own accord, it is not in conflict with
Mr. Griffith's testimony explaining the incident. Mr. Griffith
confirmed that while Mr. Rife did not make a direct statement
that he was fired for damaging equipment after receiving prior
warnings, Mr. Griffith understood that this was the case when
Mr. Rife told that "he had no other choice." Mr. Griffith
confirmed that he "picked up his bucket and left the mine" and
explained that "I wanted to just get up and say, well, I'll quit
real fast, so I wouldn't have a discharge on my employment
record. But I jsut saved him the agony of telling me, I quess,
exactly, your fired" (Tr. 208).
1819

Mr. Rife acknowledged that he previously told the MSHA
special investigator that there was no written or verbal company
policy concerning the discharge of employees for damaging
equipment but that mine operators Tommy and Mitch Potter
instructed him not to let anyone damage equipment (Tr. 281-282).
At his deposition, Mr. Rife confirmed that there was no written
policy, but stated that "if you tear it up your fired" and that
this was a verbal policy that he informed Mr . Robinson of on more
than one occasion (Exhibit C-3; pgs. 31-32).
As noted earlier, former equipment operator Potter, who is
now employed as a foreman for another mine operator, believed
that discharging someone for damaging equipment is a judgment
call, and he distinguished equipment damage resulting from an
accident, and damage resulting from an intentional act or gross
negligence.
Former mechanic Hylton testified that when he worked for the
respondent he was told that "if you tear up equipment, that's
it", and he knew that he was subject to discharge if he "messed
up". He believ.e d that if he or anyone else deliberately or
carelessly damaged a piece of equipment, he would expect to be
fired or would have left expecting to be fired (Tr. 134-136).
Rock truck driver Bailey, who could not recall any company
policy regarding discharges for damaging equipment, and who was
called as a witness for Mr. Robinson, was of the opinion that his
presence at the hearing was "a waste of time", and he explained
as follows at (Tr. 157-158):
THE WITNESS: The man messed up, tore the drill up,
okay? It's Mr. Potter's job. It's his money that has
to pay for fixing it, okay? He has got the right to
decide what needs to be what. If he don't want the
man, fire him because he tore up equipment it's his
right, or Philip Rife's right to fire the man, you see?
Mr. Griffith, who acknowledged that he knew "that was it"
after his third incident of damaging equipment, and who comfirmed
that no one spoke to him about any company discharge policy when
he was first hired, nonetheless testified that while he was not
specifically told about being fired for damaging company
equipment, he was aware that this was the case (Tr. 183, 188).
He stated that "that is something that, if you work on a strip
job, you pretty well know -- or any job, for that matter. If you
continually tear up equipment, you know, you're losing the
company money" (Tr. 188-189). He also believed that anyone on
any job would know that he was jeopardizing his employment for
damaging equipment (Tr. 191).

1820

There is no evidence to support any conclusion that
Mr. Rife, or mine management, harbored any ill-will towards
Mr . Robinson or that anyone connected with management ever
harassed, intimidated, threatened,or otherwise displayed any
displeasure with Mr. Robinson beause of any safety or health
complaints. There is also no evidence that Mr. Robinson ever
complained to any MSHA or state mine inspectors about any mine
safety or health conditions that he considered hazardous.
I find no credible or probative evidence to establish or
suggest that Mr. Robinson was singled out for discharge or that
he was treated differently from other employees because of his
complaints. I find credible Mr. Rife's testimony that he
informed Mr. Robinson on more than one occasion that damaging
company equipment would be cause for discharge, and as noted
earlier, several of Mr. Robinson's witnesses confirmed and
acknowledged that it was a known fact that carelessly damaging
equipment could result in a discharge. I take note of -the ·fact
that Mr. Robinson has worked in the mining industry for nine or
ten years, and while there is no evidence that the respondent had
any written company policy, I find Mr. Rife's testimony to be
credible and I believe that he had spoken to Mr. Robinson about
the consequences of damaging equipment, and I find Mr. Robinson's
testimony to the contrary to be less than credible.
I find credible Mr. Rife's testimony that accidental
equipment damage that does not involve intentional or careless
conduct by an employee would not be a dischargeble offense. I
also find his explanations as to why certain other employees may
not have been discharged after damaging equipment, to be
credible, reasonable, and plausible. I further find that
equipment damage was the reason that Mr. Griffith left his
employment with the respondent and the evidence adduced in this
case supports a reasonable conclusion that Mr . Griffith was
constructively discharged because of this.
Management's motivation for Mr. Robinson's Discharge
The evidence establishes that Mr. Robinson was discharged by
foreman Rife. Mine operator Tommy Potter was not called to
testify in this case, but Mr. Rife's deposition testimony
suggests that Mr. · Rife may have -.called Mr. Potter and had his
approval for the discharge.
During his deposition of May 10, 1994, Mr. Robinson
testified as follows (Exhibit R-2; pg. 47):
Q.

The problem concerning your employment with Sunny
all related around the damage to that drill?

~idge

A.

Exactly.

1821

And really to cut through the chase and everything,
it had nothing to do with any complaints of safety or
health violations?
Q.

A.

Not as I know of.

Mr. Robinson clarified this testimony as follows at (Depo.
Tr. pg. 53):
I just want to clarify a few things now.
You were
told that you were fired from Sunny Ridge for damaging
the drill, correct?

Q.

A.

Yes, I was.

Do you feel you were fired because you made all
those complaints?

Q.

A. It's a possibility. I'm not saying for sure
because I don't know for sure.
In the course of the hearing, and in further explanation of
his prior statements, Mr. Robinson reiterated that he was told
that he was fired for damaging the drill, and he believed that
his discharge "was due to all of it; the blower, the dust, the
complaints and me damaging the drill. All of it wrapped up in
one" (Tr. 66, 98-99).
Mr. Rife believed that Mr. Robinson did an acceptable job
and came to work every day, and he stated that he would not
have fired him if he did not have "an attitude problem" and
had not intentionally damaged the drill {Tr. 277). Mr. Rife
explained that Mr. Robinson's work attitude changed two or three
weeks before he fired him, and he suggested that he was having
problems with his ex-wife over child support {Tr. 280).
Mr. Rife stated that "there was nothing I could do to satisfy him
whatsoever. Whatever I asked him to do, he didn't want to do it"
{Tr. 275).
Mr. Rife believed that Mr. Robinson deliberately damaged the
drill by running it into the highwall. In support of this
conclusion, Mr. Rife stated that he counted 21 places on the
highwall where the drill struck the highwall while it was
operated by Mr. Robinson the day he was fired, and Mr. Rife
believed that Mr. Robinson intentionally caused the damage by not
heeding Mr. Minix•s warnings to stay clear of the highwall trees.
Mr. Rife considered the fact that Mr. Robinson did not apologize
for damaging the drill, did not inform him that he bad been in
the trees, and simply commented "shit happens" when asked about
the incident. Mr. Minix testified credibly that he heard
Mr. Robinson make this comment as he retrieved a beer from a
cooler and left the area after his discussion with Mr. Rife.

1822

Mr. Minix also indicated that he had warned Mr. Robin~on about
staying out of the highwall trees early in his shift before he
damaged the drill blower.
Mr. Griffith, who viewed the damaged drill on the day
Mr. Robinson was discharged, testified that he noticed at least
five or six indentations in the highwall as he passed it, and he
believed from experience that they were caused by the drill
blower striking the highwall with enough force to leave the
impressions in the highwall. - He was of the opinion that the
drill damage could have been prevented if Mr. Robinson had
exercised reasonable care (Tr. 192-193). Truck driver Bailey
believed that Mr. Rife had a right to fire Mr. Robinson for
damaging the drill.
Mr. Robinson testified that he was unaware that he had
struck the highwall while operating the drill until after he
noticed the damaged blower at the end of the shift. He also
claimed that he apologized for the damage, and he denied making
the remark attributed · to him by Mr. Rife, and overheard by
Mr. Minix. I take note of the fact that Mr . Minix testified that
he and Mr . Robinson were friends, that he often gave Mr. Robinson
a ride to work, and that he advised Mr. Robinson that Mr. Rife
could not fire him over the telephone. Under the circumstances,
I see no reason why Mr. Minix would not be truthful, and his
testimony that Mr . Robinson had on a previous occasion
intentionally damaged a drill hose because he was mad at Mr. Rife
stands unrebutted.
With regard to Mr. Robinson's encounter and confrontation
with Mr. Rife when he returned to the mine the day after Mr. Rife
fired him over the telephone, and then fired him again in person,
I conclude and find that Mr. Robinson was the aggressor and that
he cursed Mr. Rife, threatened him with bodily harm, and in
effect invited him to fight. Although this incident occurred
after his discharge, I believe it is indicative of Mr. Robinson's
temperment and supports Mr·. Rife' s belief that he had an
"attitude" problem. Having viewed Mr. Robinson's demeanor during
his testimony concerning the confrontation with Mr. Rife~
Mr. Robinson appeared antagonistic, hostile, and somewhat
combative with respect to Mr. Rife.
Mr. Robinson acknowledged that he was not truthful when he
filed his application for employment after his discharge by the
respondent, and that he lied about his discharge, the duration of
his employment with the respondent, and his prior educational
level. Although Mr. Robinson admitted that he lied because he
feared he would not get the job and needed the work, the fact
remains that he was not truthful when he filed his job
application. Under the circumstances, I believe he would color
his testimony in this case to his advantage and I have serious
doubts about his credibility.

1823

I find Mr. Rife's explanation as to why he discharged
Mr. Robinson to be credible and plausible . Having viewed both
Mr. Rife and Mr. Robinson in the course of the hearing, I find
Mr. Rife to be more credible.
I find Mr. Rife's testimony that he observed at least
21 locations at the highwall where the drill made contact with
the highwall to be credible, and it reasonably supports
Mr. Rife's belief that Mr. Robinson knowingly or intentionally
operated the drill in such a manner as to continuously cause it
to collide with the highwall during the shift and without regard
to the instructions given him to avoid the trees and
the highwall. Mr. Rife's conclusion is supported in part by
Mr. Griffith who believed that the drill collided with the
highwall with such force as to leave impressions at five or six
locations, and that Mr. Robinson exercised less than reasonable
care in operating the drill . I reject as less than credible Mr.
Robinson's claim that he was unaware that he was colliding with
the highwall.
I conclude and find that Mr. Rife was justified in
discharging Mr. Robinson for damaging the drill, and I find no
persuasive evidence, direct or circumstantial, from which to draw
any reasonably s~pportable inference of discriminatory intent on
motivation on the part of Mr. Rife with respect to his discharge
of Mr. Robinson. I further find no credible or probative
evidence from which I can reasonably conclude that Mr. Robinson's
discharge was in any way related to any of his drill complaints.
CONCLUSION AND ORDER
In view of the foregoing findings and conclusions, and after
careful consideration of all of the credible evidence and
testimony adduced in this case, I conclude and find that the
complainant has failed to establish a prima facie case of
discrimination on the part of the respondent. Accordingly,the
complaint IS DISMISSED, and the complainant's claims for relief
ARE DENIED.

~~£7~
Ad;l~~t~ative Law Judge

Distribution:
MaryBeth Bernui, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Herman w. Lester, Esq., 207 Caroline Avenue, P.O. Drawer 551,
Pikeville, KY 41502-0551 (Certified Mail)

1 8 24

PBDBRAL JUBB SAFETY AND HEALTH REVXBW COIOUSSXOH
OFFICE OF ADMINISTRATIVE L.AW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 1 7 199{
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION ·(MSHA)
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. VA 94-18-M
A.C. No. 44-00040-05501 QHV

I

v.

Docket No. VA 94-19-M
A.C. No. 44-00040-05502 QHV

A & L CONSTRUCTION, INC.,
Respondent

Eastern Ridge Lime Co.
DECISIONS
Appearances:

Caryl L. Casden, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
George W. Link, President, A & L Construction,
Inc., Newport, Virginia, prose, for the
Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for
three (3) alleged violations of certain mandatory safety
standards found in Part 57, Title 30, Code of Federal
Regulations. The respondent filed timely answers and contests
and hearings were conducted in Roanoke, Virginia. The parties
waived the filing of post-hearing briefs (Tr. 195).
Issues
The issues presented in these cases are (1) whether the
conditions or practices cited by the inspector constitute
violations of the cited mandatory safety standards, (2) whether
one of the alleged violations was "significant and substantial"
(S&S), and (3) the appropriate civil penalties to be assessed for
the violations, taking into account the civil penalty assessment
criteria found in section llO(i) of the Act.

1825

Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of
1977; Pub. L. 95-164, 30 u.s.c. § 801 et seg.

2.

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

3.

Commission Rules, 29 C.F.R.

§

2700.1 et seg.

Stipulations
The parties stipulated to the following (Tr. 7-12):
1. The MSHA inspector who issued the violations was acting
in his official capacity as an authorized representative of
the Secretary of Labor.
2. True copies of each of the contested citations and order
were served on the respondent or its authorized agent as
required by the Mine Act.
3. Payment of the proposed civil penalty assessments for
the violations in issue will not put the respondent out of
business.
In a response to the petitioner's interrogatory, the
respondent stated that payment of the penalty assessment of
$1,500 in Docket No. VA 94-19 -M, will not affect the respondent's
ability to continue in business. However, the respondent
believed that the proposed penalty is excessive.
The petitioner's counsel submitted a computer print-out
concerning the respondent's history of assessed violations, and
she confirmed that the respondent has no prior history of paid
violations (Exhibit G-9; Tr. 16, 145-148). Counsel further
confirmed that the citations issued by the inspector constituted
the first time the respondent has been cited, and that.the
respondent timely abated and corrected the cited conditions in
good faith (Tr. 156).
Petitioner's counsel also presented a computer print-out
that reflects that the respondent is an independent contractor
who worked 342 hours at the Eastern Ridge Lime Company Mine in
1993 (Exhibit G-1 0; Tr. 146- 148). Respondent's owner and
president, George Link, characterized his business as a "small
grading contractor", and he confirmed that he uses backhoes,
endloaders, and dump trucks in his work and that he was working
at the mine site in question in 1993, when the citations were
issued (Tr. 150, 155-156). He also confirmed that he has 15 to
18 employees (Tr. 160, 163).

1826

Discussion
Docket No. VA 94-18-M
This ca~e concerns two alleged violations with proposed
civil penalty assessments of $50, for each occurrence, and they
are as follows.
Section 104(a) non-"S&S" citation No. 4286834, August 5,_
1993, cites an alleged violation of mandatory safety standard
30 c.~.R. § 57.14132(a), and the condition or practice cited is
described as follows:
The reverse-activated, automatic signal alarm was not
operating on the Ford 8000 haul truck Co. No. 6. The
truck was haul ing spoil from the sediment pond to the
spoi l stockpile. No foot traffic observed in the area .
Mandatory safety standard 30 C.F.R.
as follows:

§

57 . 14132(a), provides

(a) Manually operated horns or other audible warning
devices provided on self-propelled mobile equipment as
a safety feature shall be maintained in functional
condition.
Section 104(a) non-"S&S" citation No. 4286835, August 5,
1993, cites an alleged violation of mandatory safety standard
30 C.F.R . § 57.14100(b), and the condition or practice cited is
described as follows:
The protective covering on the operator's seat of the
white haul truck, S/ N BJ0134719218 was missing. The
exposed metal springs of the seat showed stress fatigue
in the back and side area and could break and puncture
the back of the operator. A cushion was observed
between the operator's back and the exposed springs.
Mandatory safety standard 30 C.F.R § 57.14100(b), prpvides
as follows:
(b) Defects on any equipment, machinery, and tools that
affect safety shall be corrected in a timely manner to
prevent the creation of a hazard to persons.
Docket No . VA 94-19-M
This case concerns a combined section 107(a)-104(a) "S&S"
imminent danger order and citation No. 4286833, issued by
Inspector Thomas W. Bonifacio, on August 5, 1993, and subsequently modified on August 18, 1993, to cite an alleged violation
of mandatory safety standard 30 c.F.R. § 57.1410l(a) (3). The

1827

proposed civil penalty is $1,500, and the cited condition or
practice states as follows:
The brake diaphragm was missing on the back right side
and the air supply line plugged behind the drive axel
on the white model 43640VC haul truck S/N 8J0134719218,
haul'ing spoil material from the mill sediment pond
below the refuse disposal area. The truck traveled an
approximate 1,000 foot long, 10% grade access road.
Foot and vehicular traffic was observed in the work
area. The diaphragm had fallen off the haul truck on
8-4-93. The company mechanic was instructed to plug
the air supply line in order to put the unit back into
service.
Mandatory safety standard 30 C.F.R.
provides as follows:

§

57.1410l(a) (3),

(3) All braking systems installed on the equipment
shall be maintained in functional condition.
As correctly stated by the petitioner's counsel, the
respondent did not timely contest the imminent danger order
within thirty-days of its issuance, and she took the position
that the order is not in issue in this proceeding (Tr. 17-18).
I agreed with counsel, but ruled that I would consider the
inspector's imminent danger finding as part of the gravity
associated with the cited conditions (Tr. 19-23).
In support of the violation, the petitioner called Inspector
Bonifacio who testified as to his experience, duties, and
training, and his reasons for issuing the violation. He also
testified as to his reasons for his special "significant and
substantial" (S&S) finding, as well as his negligence and other
gravity findings (Tr. 24-95). He was also cross-examined by the
respondent's president, George w. Link, who appeared pro §g in
this case (Tr. 95-98).
The petitioner also presented the testimony of Bruce E.
Dial, an MSHA instructor at the Department of Labor's National
Mine Health and Safety Academy at Beckley, West Virginia.
Mr. Dial's experience includes prior service as an MSHA mine
inspector, and he has extensive teaching and practical experience
in braking systems and the hazards associated with surface coal
haulage, including the writing of a training manual used to train
inspectors and the publication of several safety bulletin
articles (Tr. 98-105).
Mr. Dial confirmed that he was familiar with the violative
conditions cited by Inspector Bonifacio, and referring to several
hearing exhibits and a demonstration model of a truck braking
system, he explained the operation of the braking system with

1828

respect to the cited truck and the hazards associated with the
conditions cited by the inspector (Tr. 105-128). Mr. Dial was
cross-examined by Mr. Link (Tr. 130-137; Exhibits G-6, G-7,
and G-8).
George w. Link, the owner and president of A & L
Construction, Inc., testified in his defense to the contested
violation as well as to the scope of the work that he was
performing at the mine site in question at the time that his
truck was cited by the inspector (Tr . 150-174). The inspector
was also called in rebuttal and testified further about his
observations in connection with the operation of the haulage
trucks on the day the violation was issued (Tr. 174-180).
Mr . Link testified that he did not realize that he was
subject to the Mine Act or MSHA's enforcement jurisdiction while
performing work on the mine surface areas and he stated that he
was never inspected by any state mining inspectors (Tr. 186-187).
Petitioner's counsel stated that she had no information that
Mr. Link knew he was subject to MSHA ' s enforcement jurisdiction,
and Inspector Bonifacio confirmed that Mr. Link was performing
work at the mine site without an MSHA Identification number and
that he had not previously known about the respondent and had
never previously met Mr . Link until he came to the site after the
violations were issued (Tr. 188-191).
With respect to the citation concerning the missing brake
diaphragm on the cited haul truck, Mr. Link took the position
that there was no dangerous condition presented because the truck
driver was a safe and conscientious driver and that the road
conditions consisted of soft materials that would allow the truck
wheels. to sink into the road surface and slow down the vehicle
(Tr . 151-154) .
Findings and Conclusions
Docket No. VA 94-18-M
Petitioner's counsel informed me at trial that the parties
agreed to settle these citations, and that the respondent agreed
to pay the full amount of the proposed penalties for each of the
violations. Arguments in support of the settlement were heard
on the record, and Inspector Bonifacio, who issued the citations,
was present in the courtroom. The settlement was approved from
the bench (Tr. 11, 13-16). My bench decision is herein affirmed,
and ~he settlement IS APPROVED.
Docket No. VA 94-19-M
In this case, petitioner's counsel informed me after the
hearing that the parties agreed to settle the matter. _counsel

182 9

subsequently filed a motion pursuant to Commission · Rule 31,
29 C.F.R. § 2700.31, seeking approval of the proposed settlement.
In support of the proposed settlement, petitioner's counsel
states that upon review of all of the evidence admitted at trial,
the parties agree that it does not support a penalty assessment
of $1,500. Counsel believes that the ev idence would support a
penalty of $700, and the respondent has agreed to pay this
amount. Based on all of the relevant criteria, including the
respondent's size, the degre~ of negl igence, the gravity of the
violation, the respondent's good faith abatement, and its history
of prior violations, the petitioner concludes that the proposed
settlement is reasonable and will serve to effect the intent and
purposes of the Act.
After careful review of all of the testimony and evidence
adduced at the hearing, and the motion filed by the petitioner in
support of the proposed settlement, I conclude and find that the
proposed settl~ment disposition is reasonable and in the public
interest. Acco~dingly, pursuant to 29 C.F.R. § 2700.31, the
motion is GRANTED, and the settlement IS APPROVED.
ORDER
I 'n view of the foregoing, IT IS ORDERED AS FOLLOWS:
1. Docket No. VA 94-18-M. The contested section 104(a)
non-"S&S" Citation Nos. 4286834 and 4286835, issued on
August 5, 1993, ARE AFFIRMED as issued, and the respondent
shall pay civil penalties of $50 for each of the citations
($100 total).

1

2. Docket No. VA 94-19-M. The section 107(a) - 104(a)
"S&S" Order/ Citation No. 4286833, August 5, 1993, as
modified on August 18, 1993, citing a violation of
30 C.F.R. § 57.1410l(a ) (3), IS AFFIRMED as issued, and
the respondent shall pay a civil penalty assessment of
$700, for the violation.

IT IS FURTHER ORDERED that the respondent pay the
aforementioned civil penalties to MSHA within thirty-days (30) of
the date of these decisions and order. Upon rec eipt of payment,
these matters are dismissed . Failure by the respondent to pay
the agreed upon penalties may result in an order requiring the
respondent to pay the full amount of the original penalty
proposed in Docket No. VA 94-19-M .

• .tZif~
Administrative Law Judge

1830

Distribution:
Caryl L. Casden, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203
(Certified Mail)
George w. Link, President, A & L Construction, Inc., Route 2,
Box 363, Newport, VA 24128 (Certified Mail)
/ ml

1831

FEDERAL lll1m SAFE'l'Y ARD BRAT.TH REYDSW COiU[[SSIOH
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOft
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

AUG 1 8 199!.

.. CONTEST PROCEEDING

PEABODY COAL COMPANY,
Contestant

v.

No. KENT 94-308-R
. Docket
Citation No. 3860043; 12/08/93
.
:
No. 1 Mine
. Camp
I.D. No. 15-02709
.

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

DECISION
Before:

Judge Melick

This case is before me upon the motion for summary
decision filed by Peabody coal Company (Peabody) pursuant
to Commission Rul~ 67, 29 C.F.R. § 2700 . 67. 1 Peabody seeks
to vacate the Secretary's attempted modification of Citation
No. 3860043 on the qrounds that there is no genuine issue of
material fact as to a controlling legal question and that
Peabody is entitled, as a matter of law, to a summary decision
vacating the attempted modification. The underlying question
presented is whether the Secretary can modify a citation after
the citation has been terminated and the civil penalty thereon
has been assessed and paid by the mine operator.
The undisputed facts are as follows. Citation No . 3860043
was issued at Peabody's camp No. 1 Mine on July 14, 199 ~ , for
its alleged failure to comply with the mine's approved roof
control plan. The citation was issued under Section 104(d)(l)
of the Federal Mine Safety and Health Act of 1977, the "Act,"
30 u.s.c. § 801 ~ ~· on September 8, 1993, following a
health and safety conference, the citation was modified from
"high" to "moderate" negligence and by changing its format from
a citation issued under Section 104(d)(l) of the Act to one
1

Commission Rule 67(b) provides as follows:
"Grounds. A motion for summary decision shall be
granted only if the entire record, including the pleadings,
depositions, answers to interrogatories, admissions and
affidavits, shows:
(1) That there is no genuine issue as to any material
facts; and
(2) That the moving party is entitled to summary
decision as a matter of law. "
1832

issued under Section l04(a) of the Act. The modified citation
was thereafter assessed a civil penalty of $1,155.00 and, on
November 10, 1993, Peabody paid that penalty by check. The
check .was cashed on November 15, 1993.
Thereafter, on December s, 1993, the Secretary attempted
to further modify the citation . This attempted modification
did not change the description of the condition or practice
alleged to constitute the violation but altered the charges
from an alleged violation of the roof control plan to a violation of 30 C.F.R. § 75 . 212(~) and changed the citation to a
section 104(d) (1) citation with "high'' negligence. The attempted
modification stated that "(e]vidence developed during a Section
110 investigation, which was not known at the time of the Health
and Safety Conference (September 8 4 1993), established that the
operator knew or should have known of the violative condition,
and there are no mitigating circumstances."
Peabody served fnterrogatories on the Secretary requesting
identification of the "(e]vidence developed during a Section 110
investigation" referred to in the December a, 1993 modification
of the citation. The Secretary responded, in pertinent part, as
follows:
On or about December 1, 1993, I (Conference
Officer Arthur J. Parks] was notified that
Citation No . 3860043 as modified to 104(a) was
inconsistent with the llO(c) charges filed
against the individuals involved in the citation.
At that time, I reevaluated the case and determined that 30 C. F.R. § 75.212(c) was the more
appropriate section to cite for this situation
and since it was regulation as opposed to plan
requirements these individuals should have known
the violation existed, and were acting in disregard
to the law.
Upon these undisputed facts Peabody maintains it is
entitled to summary decision. Peabody argues that a citation
may not be modified after it has been terminated, assessed a
civil penalty and the penalty thereupon paid. It maintains
that such a citation bas thereby become a final order of the
Commission and cannot thereafter be modified except by leave
of the Commission under Fed. ~. Civ. P. 60(b) • . In support
of its argument Peabody cites Jim Walter Resources. Inc.,
15 FMSHRC 782 (1983). In that case the operator paid, without
contest, the civil penalties assessed under the Secretary's
1990 "excessive history" program policy letter and sought to
reopen those cases and obtain a partial refund after the
Commission validated the program policy letter in l)nimpond
company. Inc., 14 FMSHRC 661 (1992). In Jim Walters, the
Commission held that an uncontested assessment became a final

1833

order of the commission which the Commission could- reopen in
accordance with Fed. R. Civ. P. 60(b). 14 PMSHRC at 786-789.
Jim Walters dealt however with a challenge to the civil penalty
itself and not to the underlying citation.
The Commission has also held that payment of a civil
penalty ordinarily moots any pending pre-penalty contest
proceeding. In Old ~en Coal Co., 7 PMSHRC 205 (1985), the
Commission stated:
.
••• an operator cannot deny the existence of a
violation for purposes connected with the Mine
Act and at the same time pay a civil penalty.
For purposes of the Act, paid penalties that
have become final orders reflect violations
of the Act and the assertion of violation contained in the citation is regarded as true. ~
generally Amax Lead Co. of Missouri, 4 FMSHRC
975, 977-80 (June 1982).
Therefore, in view of the language of
sections 105(a) and lOS(d), and Congress' intent
to tie penaities to the particular facts surrounding
a violation, .we hold that the fact of violation
cannot continue to be contested once the penalty
proposed for the violation has been paid.
See also I,,ocal U. 2333. YMWA v. Ranger Fuel Corp., 19 PMSHRC
612 (1988); and Westmoreland Coal Co., 11 PMSHRC 275 (1989).
Within this framework, I conclude that once Citation No. 3860043
was paid, it became a final order of the Commission. It would
therefore be necessary for the Secretary to apply to the
Commission by motion under Fed. R. Civ. P. 60(b)in order to
reopen the citation and modify it. Rule 60(b) authorizes relief
from final judgments and orders under certain circumstances,
including mistake, inadvertence, surprise, excusable neglect
and fraud.
The Secretary argues, however, citing Wyoming Fuel Co.,
14 PMSHRC 1282 (1992) and Ten-A Coal Co., 14 PMSHRC 1296 (1992),
that a citation may be modified after it has been terminated,
assessed and even paid. In the above cases, the Commission held
that a citation may be modified by the Secretary after it has
been terminated (but not in those cases yet paid) if the operator
sUffers no legal prejudice thereby. The commission further noted
that "the modifications, alleging, based on the same facts, that
a different standard has been violated, are essentially proposed
'amendments' to the initial complaints, i.e., citations." The
Commission analogized the modification of a citation to an
amendment of pleadings under Fed. R. Civ. P. 15(~)·

1834

As Peabody observes, however, neither Wyoming Fuel nor
Ten-A Coal dealt with an attempted modification, as in the
case herein , of an uncontested and· paid citation. I agree
that the above cited cases are inapposite because of the
distinquishing finality in this case attached to the payment
of and acceptance by the Secretary of the penalty for the
citatio~.
Clearly, Fed . R. Civ. P. 15{a) providing for
amendment of pleadings is no longer applicable once there is
a final disposition of the citation. Even should amendment
of pleadings be permitted after final d i sposition of the
citation, Peabody would be prejudiced by such an amendment
in this case since the time for contesting the underlying
violation has long since expired.

The secretary arques, alternatively but only hypothetically,
that if the citation were to be considered a final order of the
Commission, Fed. R. Civ. P. 60(b) would allow it to be reopened
for modifi cation. The Secretary however has not in fact filed
a moti on under that rule, nor has he asserted any specific
grounds for obtaining relief under that rule. Whether the
citation could be ·.reopened for modification under Rule 60{b)
is therefore conjecture and is not therefore before me.
Under the ci~cumstances, Peabody's Motion or Summary
Decision and the Contest herein is. GRAHTED. Th modification
of Citation No . 3860043 on Decembe 8, 1993, is :vACATED.

Distribution:
David R. Joest, Division Counsel, Peabody Coal Company,
1951 Barrett Court, P . O. Box 1990, Henderson, KY 42420
{Certified Mail)
Donna E. Sonner, Esq. Office of the Solicitor,
U.S. Department of Labor , 2002 Richard Jones Road,
Suite B-201, Nashville , TN 37215-2862 (Certified Mail)
/lh

1835

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

20006

August 19, 1994

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 92-303
A. C. No. 15-16367-03 5 49

v.
No. 3 Mine
REEDY COAL COMPANY,
INCORPORATED,
Respondent

:

DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

The parti~s have filed a joint motion to approve settlements
of the three vi'Olations involved in this matter. The originally
assessed amounts were $993, and the proposed settlements are for
$993. The parties' moti9n discusses the violations and justifies
the proposed settlements in accordance with the six statutory
criteria set forth in section llO(i) of the Act.
Accordingly, the recommended settlements are APPROVED and
the operator is ORDERED TO PAY $993 within 90 days of the date of
this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, U. s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862
Mr. Willis Ring, Reedy Coal Company, Inc., P.
VA 24230

o. Box 7, Coeburn,

Mr. Steven Cole, CPA, Cole and Estep, PC, Box 2800, Wise, VA
24293
/gl

1836

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
AUG
FALLS CHURCH, VIRGINIA 22041
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

1 9 1994·

CIVIL PENALTY PROCEEDINGS

...
..
.

v.

AMAX COAL COMPANY,
Respondent

Docket No. LAKE 94-55
A. C. No. 11-00877-04031
Docket No. LAKE 94-79
A. C. No. 11-00877-04034
Mine:

Wabash Mine

DECISION
Appearances:

Christine M. Kassak, Esq., Office of the Solicitor
U.S. Department of Labor, Chicago, Illinois, for
the .Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania, for the Respondent.

Before:

Judge Feldman

These civil penalty proceedings concern petitions for civil
penalties filed by Secretary of Labor pursuant to Section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seq., (the 1977 Mine Act).
These matters were heard on
June 14, 1994, in Evansville, Indiana. The parties' post-hearing
proposed findings and conclusions are of record.
At the hearing, the parties stipulated to facts that are
common to both docket proceedings and to facts that are unique to
each proceeding. The stipulated facts common to both proceedings
are as follows:
1.

The Federal Mine Safety and Health Review Commission
has jurisdiction over these proceedings.

2.

At all times relevant to these proceedings, Respondent,
Amax Coal Company (hereinafter, "Respondent") and its
mines are subject to the provisions of the Federal Mine
Safety and Health Act of 1977 (hereinafter, the "Act").

3.

At all times relevant to these proceedings, Respondent
owned and operated the Wabash Mine, a bituminous coal
mine located in Wabash County~ Illinois.

1 837

4.

Respondent's operations affect interstate commerce.

5.

The Wabash Mine produced 1,838,272 tons of bituminous
coal from January 1, 1992 through December 31, 1992.

6.

Respondent, Amax Coal Company, produced 38,939,422 tons
of bituminous coal at all of its mines from January 1,
· 1992 through December 31, 1992.

7.

The subject citations were properly served by a duly
authorized representative of the Secretary of Labor
upon an agent of the Respondent on the date indicated
therein.
LAKE 94-79

The Respondent stipulated to the fact of occurrence of
prohibited coal dust accumulations on its continuous miner
in violation of the ~andatory safety standard in Section 75.400,
30 C.F.R. § 75.400. The language in Section 75.400 is identical
to the provisi6ps of Section 304(a) of the 1977 Mine Act,
30 u.s.c. § 864(a). Section 75 . 400 provides:
Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on electric equipment
therein.
Citation No. 4054831 described the subject accumulations as:
Accumulation of loose coal and oil soaked loose coal
was allowed to accumulate in and upon the JOY
continuous miner. Accumulation in the operator's
compartment measured 7 inches deep, 2 feet in width,
and 4 feet in length, also the loose coal was allowed
to accumulate upon conduits, lights, panels and motors
up to 6 inches in depth.
The only issue for determination is whether the violation of
Section 75.400 was properly designated as significant and
substantial. The parties stipulated to the following facts that
are specific to Docket No. LAKE 94-79:
1.

on October 7, 1993, Michael Dean Rennie (the
"inspector") issued Citation No. 4054831 at
Respondent's Wabash Mine, Wabash County, Illinois
(hereinafter the "Wabash Mine"), alleging a violation
of 30 C.F.R. § 75.400 because Inspector Rennie had
determined that the Respondent allowed loose coal and
oil soaked loose coal to accumulate ·in and upon the JOY
continuous miner (serial number J.M. 3870), which was

1838

located on the 3W/MWS unit, 010 M.M.U., at ~urvey
Station 39857.
2.

At the time Citation No. 4054831 was issued, the JOY
continuous miner was located on the 3W/MWS unit, 010
M.M.U., at Survey Station 39857, an area of the Wabash
Mine where miners normally work or travel .

3.

Loose coal and oil soaked coal are combustible
materials.

4.

There are three (3) necessary factors which must be
present simultaneously for a fire to begin: fuel, heat
and oxygen. If any factor is absent, fire becomes
impossible.

5.

The heat necessary to ignite a fire varies with the
particle .size of the fuel. The larger the particles,
the higher the temperature necessary to ignite the
fire.

6.

The JOY continuous miner at issue here comes within
the definition of "electric equipment" referred to in
30 C.F . R.· § 75.400.

7.

Amax agrees that the conditions cited constitute a
violation of Section 75.400 . The issue before the
Administrative Law Judge is whether the condition was
significant and substantial . Also at issue would be
the appropriate size of the penalty.

a.

At this time, the parties have identified from the
available MSHA data that, for the period 1978 to 1992,
there were five (5) fires reportable under 30 C.F.R.
Part 50 on the continuous miner in an underground coal
mine. In two (2) such fires, a person was injured as a
result of such fire. Such injuries involved burns and
lost workdays. One such fire occurred as a result of
cutting and welding on a continuous miner.

Findings of Pact

A continuous miner ("miner") is a mining machine designed to
remove coal from the face and to load that coal into cars or on
conveyors. A continuous miner is required to be maintained in
permissible condition to ensure that all enclosures for motors,
controllers, junction boxes and headlights are designed to
prevent sparks from exiting the enclosure in order to contain an
internal explosion. (Tr. 69-70, 85-87, 155). A permissible
enclosure will prevent any flame or arc from propagating outside
the enclosure and igniting material deposited on the enclosure.
(TR. 86-87, 156). The trailing cable of the miner is a shielded

1839

cable. (Tr . 70, 90, 139) . The remote control box is equipped
with a "kill" or panic bar switch which be deenergizes the miner
(Tr . 80) .
At the time Citation No. 4054831 was issued the continuous
miner was in a permissible condition. (Tr. 69, 114). The miner
was equipped with a fire suppression system that includes nozzles
located in the area of the electrical and hydraulic components.
(Tr. 107, 140, 153). The fire suppression system can be
activated in three independent ways: by a switch in the operating
compartment of the miner; by a switch on the control box used to
operate the miner remotely; and by means of a valve within a hose
running from the remote control box to the miner. (Tr . 141).
This last method of activation of the fire suppression system
permits activation even if power to the continuous miner is lost
or if the continuous miner is under unsupported roof. (Tr. 141) .
Once activated, the fire suppression system covers the entire
machine. (TR. 153-154). The continuous miner is also equipped
with a water hose near the operator's compartment which can be
used to extinguish a fire. (Tr. 87-88, 142).
The electrical cables in the continuous miner are located
within a 3/16 inch conduit. (Tr. 136). The electrical cable and
conduits that cover the cables do not generate any heat . (Tr.
138). Even if the conduit was damaged, the interior cable has
additional protection around the conductors. (Tr. 70, 90, 139).
The shielding of each conductor protects the cable from
damage or sparking. If the cable itself were damaged, short
circuit protection would deenergize the continuous miner. (Tr.
107, 114-115, 139) . The continuous miner's extensive system of
electrical protection includes short circuit, overcurrent,
undervoltage and ground fault protection, which would remove
power from the miner in the event of damage to an electrical
conductor located within a protective conduit, or, if there was a
problem with an electrical motor or component. (Tr . 83-85, 114115, 134-136). Short circuit protection for the continuous miner
is instantaneous in that a short circuit would immediately
deenergize the miner. (Tr. 83, 134) . overload protection
prevents the cables from becoming hot and ground monitoring
protection prevents energization of the machine unless the ground
fault system is functioning properly. (Tr. 134-135).
There are eight motors on the continuous miner: two tram
motors; two motors to operate the conveyor; two cutting motors;
the hydraulic pump motor; and the scrubber motor. (Tr. 143-145) .
Each motor has short circuit and overload protection (Tr . 85,
136). The motors on the continuous miner are water cooled except
for the scrubber motor. (Tr. 69, 138-145).
The continuous miner is equipped with several dust control/
suppression systems . A scrubber device takes in air near the

1840

head of the miner and subjects it to a water scrubber system as
well as filtration.
(Tr. 138, 144-147). There are also water
sprays near the head of the miner as well along the conveyor in
the center of the miner. (Tr . 90-91, 120) . The use of these
sprays result in the wetting of any coal accumulations on the
miner, thus making the accumulations harder to ignite. (Tr. 9293, 120).
TWo miners, an operator and a helper, are assigned to
operate the continuous miner. {Tr. 63). Although the subject JOY
continuous miner had an operator's compartment, it was being
operated by remote control on the day the citation was issued.
{Tr . 61-63) . There were no ignition sources on the floor of the
operator's compartment (Tr. 95). All gauges and other electrical
components which are located in the operator's compartment are
permissible. (Tr. 95, 140) .
Rennie conceded that coal dust accumulations can reasonably
be expected to accumulate on the continuous miner during its
operations. (Tr. 107-108, 126). However, Rennie stated that
coal dust deposited on a permissible light or motor of an
operational continuous miner during the course of mining does not
pose a hazard. (Tr. 123-124).
In describing the nature and extent of the cited
accumulations, inspector Rennie testified the accumulations were
not "mere spillage" from the shift. (Tr. 49-51). Rather, Rennie
testified the color and compaction of the accumulations gave him
reason to believe that the accumulations "had been there for
sometime." {Tr. 51, 94). Consequently, Rennie thought too much
coal had accumulated and opined that the accumulations had
existed approximately two weeks. Therefore, Rennie concluded
nothing had been done to clean the machine during that time.
(Tr. 107-108, 122-124).
Siqnif icant and Substantial Issue
A violation is properly designated as being signif i~ant and
substantial (S&S) " ••• if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or an
illness of a reasonably serious nature." cement Division.
National Gypsum, 3 FMSHRC 822, 825 (April 1981) . In Mathies Coal
Co., 6 FMSHRC 1 (January 1984) the commission explained:
In order to establish that a violation of a mandatory
safety standards is significant and substantial under
National Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the

1841

violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
6 FMSHRC a·t 3-4. See also Austin Power Co. v. Secretary, 861
F.2d 99, 104-05 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria). The Commission has
held that the third element of the Mathies formula "requires that
the Secretary 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 .. Inc., 6 FMSHRC 1834, 1836
(August 1984).
Applying the Mathies test, the Respondent has stipulated to
the fact of the violation satisfying the first element. With
respect to the second element, it is clear that the cited
combustible accumulations contributed to the discrete safety
hazard of igni~ion or explosion.
However, resolution of the third and fourth elements of
Mathies is more contentious. Addressing the third element, the
Respondent argues that, given the continuous miner's
permissibility, short circuit protection and fire suppression
system, there was no reasonable likelihood that the combustion
hazard contributed to by the violation of Section 75 . 400 would
result in an event, ~, a fire, which would cause serious
injury. In response, the Secretary asserts that heat from the
continuous miner's lights and water cooled motors could lead to
spontaneous combustion; (2) the conveyor chain rubbing metal
against metal could cause a spark; and (3) in the event of a roof
collapse, power cables and conduits could rupture causing a spark
and fire.
(Tr. 48, 68, 94, 96-97, 107, 109).
Analysis of element three in Mathies as it pertains to this
proceeding must be made in the context of the likelihood of fire
given "continued normal mining operations." U.S. Steel Mining
Company. Inc., 6 FMSHRC 1573, 1574 (July 1984). In this regard,
the Respondent contends that for the Secretary to prevail, I must
conclude that a continuous mining machine operated in a normal
mining environment is inherently hazardous. I am sensitive to
the Respondent's argument in that I cannot conceive of an
operable continuous mining machine without accumulations of coal
dust which are a normal byproduct of the extraction process. I
am also reluctant to assume the "confluence of factors", such as
a roof collapse, resulting cable rupture, spark and ignition,
that must result 1a fire or explosion. See Texasgulf, Inc., 10
FMSHRC 498, 501 (April 1988).
.
However, in this instance, the evidence does not reflect
that the continuous miner was being operated under normal
circumstances in that it is uncontroverted that its coal dust

1842

accumulations were as much as 7 inches in depth and that these
accumulations had existed for approximately two weeks. While I
am not inclined to conclude that coal dust accumulations on a
continuous miner constitute a per ~ significant and substantial
violation, I am likewise not persuaded that such accumulations
are per se not significant and substantial. Rather, this issue
must be resolved on a case by case basis.
There is a positive correlation between the duration of a
hazardous condition and the likelihood of an event precipitatea
by that hazard. In this case, the two week duration of extensive
accumulations provides an adequate basis for determining it was
reasonably likely that an intervening result (a permissibility
defect or a cable rupture) could occur which would create an
ignition source and cause combustion. The duration of the
accumulations also reflects that this condition would have
remained unabated for a significant period of time without the
intervention of Inspector Rennie. My determination may have been
different had the accumulations existed for only one or two
shifts. Thus, the Secretary has met his burden of proof with
respect to the third element of Mathies.
However, the Secretary does not prevail on the issue of
significant and substantial unless all four elements of Mathies
are satisfied. Element four requires a reasonable likelihood the
event, in this case a fire or explosion, will result in injuries
of a reasonably serious nature. The respondent argues that the
fire suppression system on the continuous miner would quickly
extinguish a fire thus removing the likelihood of serious injury.
At the outset, I note that a fire suppression system would
not prevent the serious injury or death of the continuous miner
operator or helper in the event of an explosion. Moreover, the
presence of a hose in a working place is not an appropriate
mitigating factor when considering the significant and
substantial nature of violations contributing to the likelihood
of a fire. Likewise, a fire suppression system on a continuous
miner is not a mitigating factor. Rather, it is a system of last
resort. Accordingly, I conclude that the Secretary has .
established the yiolation in citation No. 4054831 was properly
designated as significant and substantial.
In considering the appropriate civil penalty to be imposed
for this citation, I note the serious gravity of the violative
condition as it exposes personnel to the danger of combustion.
However, this gravity is mitigated by the propensity for dust
accumulation on a continuous miner. Therefore, I find the
operator's negligence to be no more than moderate in degree.
Accordingly, the $309 civil penalty assessment proposed by the
Secretary will be affirmed.

1843

LPE 94-55

Docket No. Lake 94-55 concerns Citation Nos. 4054082,
4054083, and 4054084 which were issued on September 22, 1993, by
Mine Safety and Health Administration (MSHA) Inspector Steven
Miller. These citations allege violations of Section 75.400 for
coal dust accumulations found on diesel equipment operating in
the Respondent's active workings. The parties agreed that my
decision in Citation No. 4054082 would govern the other two
citations in this docket proceeding. (Tr. 220-221).
The Respondent does not contest the cited coal dust
accumulations described in the stipulations below. Rather, the
contestant disputes the fact of occurrence of a Section 75.400
violation contending that the cited mandatory safety standard
applies to electric rather than diesel equipment. The parties
have stipulated to the following facts in Docket No. LAKE 94-55:
1.

On September 22, 1993, Steve Miller (the "inspector")
issued citation No. 4054082 at Respondent's Wabash
Mine~ . Wabash County, Illinois, alleging a violation of
30 c.F.R. § 75.400 because he determined that
Respondent permitted loose coal saturated with oil,
coal float· dust, oil, and grease to accumulate on the
WAGNER diesel scoop, company number 48 (serial number
3A11P0305), which was being operated on the 4 East
Right Travelway. A complete and accurate copy of the
citation will be offered into evidence at the hearing.

2.

At the time citation No. 4054082 was issued, the WAGNER
diesel scoop was operating in the 4 East Right
Travelway, an area of the Wabash Mine where miners are
normally required to work or travel.

3.

On September 22, 1993, the inspector issued Citation
No. 4054083 at Respondent's Wabash Mine, alleging a
violation of 30 C.F.R. § 75.400 because he determined
that Respondent permitted loose coal saturated with
oil, coal float dust, oil, and grease to accumulate on
the JEFFREY diesel ram car, company number 106 (Serial
number 38979), which was located on the 3 south East
(MMU-004). A complete and accurate copy of the
citation will be offered into evidence at the hearing.

4.

At the time Citation No. 4054083 was issued, the
JEFFREY diesel ram car was located on the 3 South 4
East (MMU-004), an area of the Wabash Mine where miners
are normally required to work or travel.

s.

on September 22, 1993, the inspector issued Citation
No. 4054084 at Respondent's Wabash Mine, ·alleging a
violation of 30 C.F.R. S 75.400 because he determined

1 844

that Respondent permitted loose coal saturated with
oil, coal float dust, oil, grease and paper to
accumulate on the WAGNER diesel scoop, company number
63 (serial number SA11P0299), which was being operated
on the 4 East Right construction area. A complete and
accurate copy of the citation will be offered into
evidence at the hearing.
6.

At the time Citation No. 4054084 was issued, the WAGNER
diesel scoop was being operated on the 4 East Right
construction area, an area of the Wabash Mine where
miners are normally required to work or travel.

7.

The materials referenced in the subject citations
(i.e., loose coal saturated with oil, coal float dust,
oil, grease a nd paper) are combustible materials.

8.

The first use of diesel-powered equipment in an
underground . coal mine in the United states was in 1946.

9.

Diesel .equipment did not achieve significant usage in
underground coal mines until the 1970 ' s.

10 .

In 1974, there were 150 units of diesel equipment
operating .in underground coal mines in the United
States .

11 .

In 1987, there were over 1300 units of diesel equipment
operating in 107 underground coal mines in the United
States .

12 .

Historically, the type of mining equipment most suited
to diesel applications has been production haulage
equipment such as load haul dump units (LHD's) and
shuttle cars, personnel carriers, and diesel-powered
auxiliary vehicles.

13 .

The WAGNER diesel scoops and the JEFFREY ram car at
issue here are diesel-powered equipment.

14 .

Stipulation numbers 8 through 12 above are derived from
the July 1988 Report of the Mine Safety and Health
Administration Advisory Committee on Standards and
Regulations for Diesel-Powered Equipment in Underground
Coal Mines .

15 .

The Secretary hereby agrees to drop his determination
that the conditions cited were of a significant and
substantial nature.

1845

16.

The parties agree that, should the violations be found,
an appropri~te penalty for each violation would be
$100.

17.

The parties stipulated to the locations of the three
(3) subject pieces of diesel equipment in the Wabash
Mine, on or around the time that the citations were
issued and agreed that the map prepared by the
secretary be admitted as Joint Stipulation.

As indicated above, the issue in this docket proceeding
is whether the prohibition against coal dust accumulations in
Section 75.400, ~hich is identical to the statutory language in
Section 304(a) of the 1977 Act, applies to diesel equipment in
active workings. Statutory and regulatory provisions must always
be viewed in the context of their intended purpose. In this
regard, I am reminded of an incident that occurred in the early
1970's in Long Island, New York, for which I cannot provide
documentation or further citation, where the town counsel passed
a local ordinance. The ordinance prov ided that as of midnight on
a specified date '· • • the owner of any dog who permits the dog
to wander the streets without a leash will be put to sleep
(emphasis added) . ' ~hankfully, case precedent has provided a
solution for such P!oblems.
Although the ordinary meaning of words is important,
such meaning "· •• must [not] prevail where that meaning
•• . thwart[s] the purpose of the statute or lead(s] to an
absurd result." Utah Power & Light Company, 11 FMSHRC 1926, 1930
(October 1989), citing Emery Mining Corp., 9 FMSHRC 1997, 2001
(December 1987) and In re Trans Alaska Pipeline Rate Case, 436
U.S. 631 (1978) . Thus, regulations and statutes should be
interpreted to harmonize rather than conflict with their intended
objective . See Emery Mining Corp. v. Secretary of Labor, 744
F.2d 1411, 1414 (10th Cir . 1984).
The applicability of Section 75.400 to diesel equipment is
not a matter of first impression. Judge Fauver recently denied
the Respondent's Motion for Summary Decision on this issue in a
recent proceeding. See Decision Denying Motion for Summary
Decision in Docket No. Lake 94-74 (July 15, 1994). Judge Fauver,
citing Black Diamond Coal Mining Company, 7 FMSHRC 1117, 1120
(August 1985) and cases cited therein, noted the Commission has
repeatedly recognized the "strong congressional intention to
prohibit combustible accumulations anywhere in active workings."
Thus, the Respondent's reliance on Jones & Laughlin Steel
5 FMSHRC 1209 (July 1983), rev'd on other grounds, sub
nom., International Union. UMWA v . fMSHRC and Vesta Mining co . ,
731 F . 2d 995 (D.C . Circuit 1984), aff'd on remand , 8 FMSHRC 1058
(July 1986) wherein the Commission stated "active workings

~.,

1846

generally are areas or places in a mine, not equipment (emphasis
added)" is not dispositive. In Jones & Laughlin, the Commission
held that coal conveyor belts are not in and of themselves
"active workings" and thus subject to preshift examinations.
While equipment may not constitute an active working
area or place, the legislative history, when viewed in the
context of the parties' stipulations, clearly reflects that
"electric equipment" should be interpreted to include all
permissible equipment including diesel-powered equipment. The·
predecessor to Section 304{a) of the 1977 Mine Act was Section
304(a) of the 1969 Coal Mine Health and Safety Act (the 1969 Mine
Act), 30 u.s.c. S 864(a). The provisions of Section 304(a) of.
the 1969 Mine Act are the same as the provisions in Section
304(a) of the 1977 Mine Act and the language in the regulatory
standard in Section 75.400.
The parties' stipulations reflect virtually no use of diesel
equipment in underground mines when the 1969 Act was promulgated.
Diesel equipment satisfying MSHA's permissibility specifications
as required by Section 36.2(b), 30 C.F.R. S 32(b), particularly
with respect to hydraulic rather than electric starters to
suppress a potential ignition source, has only recently been
approved for underground use. (Tr. 244). consequently,
underground diesel ·equipment has only recently become
commonplace. Therefore, the failure to include diesel equipment
in Section 304{a) of the 1969 or 1977 Mine Acts does not evidence
a Congressional intent to distinguish diesel from electric
equipment.
Significantly, the Respondent has failed to provide any
rational basis for viewing electric equipment and diesel
equipment differently. Both types of equipment require
permissibility approval by MSHA as defined by Section 75.2 of the
regulations, 30 C.F.R. § 75.2. See alsQ 30 C.F.R. § 36.2(b).
Rather, it is clear that the Congressional concern about electric
equipment as a potential ignition source is equally applicable to
diesel equipment. In fact, Respondent witness Robert Kudlawiec,
Project Engineer at the Respondent's Wabash Mine, testified that
any powered equipment creates a safety issue concerning a ·
potential ignition source. (Tr. 300). Kudlawiec further stated
that the considerations regarding prevention of an ignition
source are the same for diesel and electric equipment.
Consistent with Kudlawiec's opinion, at the hearing counsel for
the Respondent conceded that combustible accumulations on diesel
equipment is a serious concern. (Tr. 339, 349-350).
Finally, I recognize that mandatory safety standards must
provide reasonable and adequate notice of prohibited mine
practices and conditions. Ideal Cement Company, 12 FMSHRC 2409,
2416 (November 1990); Alabama By-Products, 4 FMSHRC . 2128, 2129
(December 1982). However, I cannot imagine a mine operator

1847

disregarding combustible accumulations on diesel equipment while
conscientiously remov ing such accumulations on electric equipment
under a good faith alleged color of authority of Section 75.400.
Obviously, any such claim must be rejected.
Consequently, I conclude common sense and established case
law dictate that "electric equipment therein" must be interpreted
to include all permissible equipment, including diesel equipment.
It follows that the subject accumulations constitute violations
of the mandatory safety standard in Section 75 . 400 as well as
violations of the provisions of Section 304(a) of the 1977 Mine
Act.
The parties have stipulated that the three violations in
Docket No. LA.l<E 94-55 are nonsignificant and substantial.
Accordingly, Citation Nos. 4054082, 4054083 and 4054084 are
modified to delete the significant and substantial designation
and are affirmed as modified. While I retain jurisdiction to
assess the appropriate civil penalties in this matter, I will
defer to the parties' stipulation of a $100 civil penalty
assessment for·. each citation.
ORDER
In view of the . above, IT IS ORDERED that Citation No.
4054831 in Docket No . LAKE 94-79 IS AFFIRMED. IT IS FURTHER
ORDERED that the significant and substantial designations in
Citation Nos. 4054082, 4054083 and 4054084 in Docket No.
LA.I<E 94-55 are deleted and that these citations ARE AFFIRMED as
modified. The Respondent SHALL PAY a total civil penalty of $609
within 30 days of the date of this decision in satisfaction of
the four citations in issue. Upon timely receipt of payment,
these cases ARE DISMISSED .

Jerold Feldman
Administrative Law Judge
Distribution:
Christine M. Kassak, Esq., Office of the Solicitor,
U.S . Department of Labor, 230 South Dearborn Street,
Chicago, IL 60604 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, 58th Floor,
600 Grant street, Pittsburgh, PA 15219-2887 (Certified Mail)
/efw

1848

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

AUG 2 4 1994
THUNDER BASIN COAL COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. WEST 94-23 8-R
Citation No. 3589040; 2/22/94

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

Black Thunder Mine

DECISION FOLLOWING REMAND
Procedural History
On May 11, 1994, I granted summary decision in favor of the
Secretary of Labor· in this case, affirming citation 3589040 and
order 3589101, despite the fact that the Secretary contended that
this matter was not ripe for summary decision for either party,
Thunder Basin coal Company, 16 FMSHRC 1070 . The citation and
order were issued to Thunder Basin Coal Company alleging a
violation o f 30 C.F.R. 40.4 for its refusal to post a form
designating Dallas Wolf a.n d Robert Butero, employees of the
United Mine Workers of America (UMWA), as walkaround
representatives for eight employees at Thunder Basin's non-union
mine 1 • Both parties filed a petition for review with the
Commission.
On June 27, 1994, the Commission remanded the instant matter
to the undersigned for appropriate proceedings. The commission
noted the Secretary's assertions that he had been deprived of an
opporuunity to present his legal position to the judge arid that
certain material factual findings are not supported by
substantial evidence. The Commission order states, "[w]e
intimate no view regarding the judge's legal conclusions in this
matter." 16 FMSHRC 1239.

1

Dallas Wolf was at the time of the designation the
principal UMWA organizer in the Powder River Basin of Wyoming,
and Mr. Butero is a UMWA safety and health representative
operating out of Trinidad, Colorado (Contestant's Exhibit 15 at
pages 27-28, Secretary's Exhibit 18 at page 269). The principal
function of a miners' walkaround representative is to accompany
MSHA personnel during their inspections of operators• worksites.
1849

on July 14, 1994, the parties filed a Joint Procedural
stipulation agreeing that no further evidentiary hearing was
necessary. The parties agreed to file briefs based on the
existing record created with respect to Contestant's Application
for Temporary Relief and its Motion for Summary Decision, and the
Secretary's opposition to both.
The Commission's decision in Kerr-McGee controls the disposition
of the instant case and requires the affirmation of citation
3589040. 2
In Kerr-McGee Coal Corporation, 15 FMSHRC 352 (March 1993),
appeal pending, D. C. Cir. No. 93-1250, the Commission held that
it is the conduct of a miners' representative during an
inspection, rather than the motivation of such person in becoming
a walkaround representative, that must be examined to determine
whether there has been an abuse of the Mine Safety and Health
Act's walkaround provisions, 15 FMSHRC at 361.
The Commission also held that the Secretary is not required
to integrate National Labor Relations Act concepts into his
regulations implementing the walkaround provisions of the Mine
Act, 15 FMSHRC at 362. Thus, the fact that the miners'
representatives in this case are employees of a union not
authorized to represent Contestant's employees under the NLRA, is
irrelevant to the disposition of this case.
In Kerr-McGee, the Commission also addressed evidence of the
sort that Thunder Basin contends distinguishes this case from
Kerr-McGee.
After its evidentiary hearing Kerr-McGee moved the
trial judge to reopen the record to receive newly discovered
eviden'c e. Included in the evidence proffered was "a series of
internal UMWA memoranda to and from [Dallas] Wolf, which it
asserted, revealed that Wolf had been designated as a walkaround
representative in order to facilitate ongoing UMWA organizing
activities.", 15 FMSHRC at 355. The judge denied the motion to
reopen, finding that the documents merely revealed that union
organizing was taking place and that this was established and
undisputed at trial.
·
The Commission's decision in affirming the trial judge's
denial of the motion to reopen tQe record in Kerr-McGee
implies that the Commission also did not consider documents
indicating that the walkaround designation was motivated by UMWA
organizing activities to be material. Therefore, I conclude all
the documentation offered to establish the same conclusion in
this case is irrelevant to its disposition.

2

The factual findings at pages 3-5 ~f my May 11, 1994
Summary Decision are hereby incorporated by reference.
·

1850

Both parties extensively briefed the question of whether the
designation of Wolf and Butero was made for the purpose of
assisting the UMWA's organizational drive at Contestant's mine
(See Secretary of Labor's brief at page 4, Contestant's brief
generally) . Under the current state of the law the motivation of
the UMWA, Wolf, Butero, and the eight Thunder Basin employees who
signed the designation form is totally irrelevant to the
disposition of the contested citation.
Kerr-McGee stands for the proposition that designation of
union employees, including one whose principal function is to
organize, as walkaround representatives at a non-union mine which
they are trying to organize is not invalid per se. 3 That
decision is controlling and leads me to conclude that citation
3589040 must be affirmed .
ORDER

Citation 3589040 is affirmed.

()A_~~----

Art~ur J. Amchan
Administrative Law Judge
(703) 756-6210

3

Regardless of whether the eight Thunder Basin employees
hoped to facilitate the UMWA organizing campaign, it is not
unreasonable for a miner to desire the assistance of persons with
expertise with regard to safety issues and MSHA regulations
during an inspection, rather than relying on the miner's own
limited knowledge or experience. As Mr. Butero explained, such
assistance would most likely be rendered with regard to a major
safety or health dispute during an accident or complaint
inspection, rather than during a regularly scheduled "AAA"
inspection (Secretary's exhibit -10 at page 196).

1851

Distribution:
Thomas c. Means, Esq., Timothy M. Biddle, Esq., Crowell & Moring,
1001 Pennsylvania Ave., N.W., Washington, D.C. 20004 (Certified
Mail)
Margaret Miller, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Thomas F. Linn, Esq., Atlantic Richfield Company, 555 Seventeenth
Street, 20th Floor, Denver, co 80202 (Certified Mail)
Ray Mcintosh, P.

o. Box 414, Wright, WY 82732 (Certified Mail)

Roy Earle Knutson, Jr., 601 N. Plains Dr., Gillette, WY 82716
(Certified Mail)
Everett Kraft, P. O. . Box 127, Upton, WY 82730 (Certified Mail)
/jf

1852

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

20006

August 29, 1994

..

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

.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 92-199
A. C . No. 21-02647-05511

v.

.

KINKAID STONE COMPANY,
Respondent

Kinkaid Stone

DECISION APPROVING SETTLEMENT
ORDER TO PAY

Before:

Judge Merlin

This case is before me pursuant to Order of the Commission
dated February 23, 1994.
On March 8, 1994, I issued an order vacating the order of
dismissal previously entered and reinstating this case. Upon a
motion from the Secretary I determined that this matter had
been dismissed in error because the penalty assessment did not
involve excessive history . The parties were ordered to confer
to determine if this case could be settled .
On August 11, 1994, the Solicitor filed a settlement motion
for the one violation in this matter .
The original assessed
amount was $50 and the proposed settlement is $35.
I have reviewed the documentation and representations made in this case,
and conclude that the proffered settlement is appropriate under
the criteria set forth in section llO(i) of the Act.
WHEREFORE, the motion for approval of settlement is GRANTED
and it is ORDERED that the operator PAY $35 within 30 days of
this decision.
...

~-,· · "

..

------··--Paul Merlin
Chief Administrative Law . Judge

1853

Distribution:
John H. Secaras, Esq., Regional Solicitor, Lisa R. Williams,
Esq., Office of the Solicitor, U. s. Department of Labor, 230
South Dearborn Street, Chicago, IL 60604
Robert A. Cohen, Esq., Douglas N. White, Esq., Office of the
Solicitor, U. S. Department of Labor, 4th Floor, 4015 Wilson
Boulevard, Arlington, VA 22203
Mr. Kenneth L. Kraus, Quarry Superintendent, Mr. William Pautler,
Manager, Kinkaid Stone Company, Rural Route 2, Box 102, Ava, IL
62907
Mr. ·Abe North, Int. Union Operating Engine.ers, Harrisburg, IL
62946

Richard G. High, Jr., Director, Office of Assessments, MSHA,
U. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203

/gl

1854

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

20006

August 29, 1994

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 94-213-M
A. C. No. 05-04245-05506

v.
KIEWIT WESTERN COMPANY,
Respondent

Universal Portable Crusher

ORDER ACCEPTING RESPONSE
DECISION APPROVING SETTLEMENT
ORDER TO PAY

Before:

Judge Merlin

This case is before me upon a petition for assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977.
on May 17, 1994, the Solicitor filed a motion to approve
settlement for the two violations in this case. The Solicitor
sought approval of a reduction in the penalties from $4,267 to
$1,267. The Solicitor proposed to reduce the penalty for one of
the violations, Citation No. 4335289, from $4,000 to $1,000.
With respect to the remaining violation, the operator has agreed
to pay the proposed penalty in full. on June 15, 1994, an order
was issued disapproving the settlement and directing the Solicitor to file additional information to support his motion. on
July 25, 1994, the Solicitor filed an amended motion to approve
settlement.
Citation No. 4335289 was issued for a violation of 30 C.F.R.
56.12016 because the control cir.cuit was not locked out while
maintenance work was performed. The violation contributed to a
moving machinery accident, which caused injuries to an employee's
arm. The basis for the reduction remains that negligence was
less than originally thought. The Solicitor now has explained
the circumstances surrounding the accident, and his statement
that the accident was attributed to a "communication mix up".
According to the Solicitor, the belt had been shut down and was
locked-out properly in order to clear material from the underconveyor belt. The conveyor belt inspection plate was removed
and the material was shoveled from the belt. The belt was then
restarted in accordance with proper procedures. However, the
§

1855

miner in the control room unilaterally stopped the belt so that
material could clear the crusher's rotovator. At this time,
another miner decided that the conveyor belt inspection plate
could be safely installed and began to do so which resulted in
the injury.
' I accept the Solicitor's representations and I conclude that
the settlements are appropriate under the six criteria set forth
in section llO(i) of the Act.
In light of the foregoing, it is ORDERED that the settlement
motion filed July 25 is ACCEPTED as a response to the June 15
order.
It is further ORDERED that the recommended settlement be
APPROVED and the operator PAY $1,267 within 40 days of the date
of this decision.

~
.·....._

_·

_ \_\~
'
Paul Merlin
Chief Administrative Law Judge

Distribution:
Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
James A. Lastowka, Esq., McDermott, Will & Emery, 1850 K Street,
N.W., Washington, o.c. 20006
/gl

1856

FEDERAL llDIB SAFBTr .um JJRAl11'1f RBVlJSW 0 •llTSSIOJf
OFFICE OF ADMINISTRATIVE LAW JUOGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PUCE
FALLS CHURCH, VIRGINIA 22041

AUG 3 1 1994

..• CIVIL PENALTY PROCEEDINGS
.. Docket No. SE 93-108
.• A.C. No • 40-02971-03584
Docket No. SE 93-244
..•• A.C
• No. 40-02971-03595
.• Docket No. SE 93-245

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

v.

CROSS MOUNTAIN COAL INC.,
Respondent

A.C. No. 40-02971-03597

Docket No. SE 93-255
.. A.C.
• 40-02971-03596
..• Mine No
No. 6
•
DECISION
Appearances:

Brian w. Dougherty, Esq., Office of the
Solicitor, u.s. Department of Labor,
Nashville, Tennessee, for the Petitioner;
Edward B. Adair, Esq., Reece and Lang,
London, Kentucky, for the Respondent.

Before:

Judge Barbour

The above captioned cases were brought pursuant to
sections 105 and 110 of the Federal Mine Safety and Health
Act of 1977 (Mine Act or Act), 30 u.s.c. §§ 815, 820, when
the Secretary, on behalf of the Mine Safety and Health Administration (MSHA), filed petitions for the assessment of monetary
civil penalties against Cross Mountain Coal co., Inc. (Cross
Mountain) for violations of various safety and health standards
promulgated pursuant to the Act and found in 30 C.F.R. Part 75.
The Secretary alleged that the violations occurred at cross
Mountain's No. 6 Mine, a bituminous coal mine located in Campbell
County, Tennessee, and that several constituted significant and
substantial (S&S) violations to mine safety hazards caused by
Cross Mountain's unwarrantable failure to comply with the cited
regulations. Cross Mountain denied the Secretary's allegations.
The matters were consolidated and were beard in London,
Kentucky. At the commencement of the bearing counsels stated
they bad settled several of the violations. Counsel for the
secretary also stated that two of the citations in which
violations were alleged had been or would be vacated. I will
approve the settlements and note the citations to be vacated
when I discuss the dockets to which they pertain.
1857

STIPULATIONS
Counsels stipulated as follows:
1.

Cross Mountain is subject to the Act.

2.
cross Mountain's No. 6 Mine has an effect on
interstate commerce within the meaning of the Act.

3.
Cross Mountain and its No. 6 Mine are subject to .
the jurisdiction of the Federal Mine Safety and Health Review
Commission, and the Administrative Law Judge has the authority
to hear these cases and i ssue a decisi on.
4.

Cross Mountain is a large-sized operator.

5.
A reasonable penalty will not affect Cross Mountain's
ability to remain in business.
DOCKET NO. SE 93-108
Citation
3824679

~

10/14/92

30 C.F . R." §
75.902

Proposed A6sessment
$4,400

Section 75.902 essentially restates section 309{c) of
the Act, 30 u.s.c. § 862(c), and requires in pertinent part:
[L]ow- and medium-voltage resistance
grounded systems shall include a fail-safe
ground check circuit to monitor continuously
the grounding circuit to assure continuity
which ground check circuit shall cause the
circuit breaker to open when either the ground
or pilot check wire is broken •• • •
Citation No . 3824679, issued pursuant to section 104(d){l)
of the Act, 30 u.s.c. § 814(d)(l), states:
Two ground mon[i]tors had been jumped out
with copper wire on the 001 section power centers.
The mon[i]tor for the 001 section bead drive and
the No. 1 battery charger.
(Gov. Exh . 7). The inspector found that the alleged violation
of section 75.902 was S&S and the result of Cross Mountain's
unwarrantable failure.

1 858

THE TESTIMONY
The citation in question was issued by MSHA inspector
Stanley Sampsel. Sampsel, who is not a certified electrician,
stated that a qround wire is a safety feature within a machine's
power system. It is a wire that runs from the origination point
of the power system to the frame of the machine. :If there is a
short circuit in the machine, or in the cable to the machine,
the voltage feeds back on the qround wire to the origination
point of the power causing ·circuit breakers or other disconnects
to trip the power. This eliminates the shock hazard created by
the short circuit (Tr. II 205-206, 217).
Sampsel also described a qround monitor. He stated that
it is a "second ground system that creates a loop circuit
through the cable to the machine and back to the power system"
(Tr. I I 206). Tpis system monitors the integrity of the qround
system. However, the qround monitor system's short circuit
protection can be defeated by installing a wire in the cable
receptacle to provide a path around the system for electricity
(Tr. II 208-209). (This practice is referred to as "jumpering.")
Sampsel conducted an inspection of the 001 section of
Mine No. 6 on October 14, 1992. The section had recently
resumed development operations and there were two power centers
on the section. A few days before the inspection an anonymous
note had been left on Sampsel's car while it was parked in the
mine parking lot. The note stated that it was a practice on the
section to jumper the short circuit protection. Therefore,
Sampsel went to the section to look for evidence of jumpering
(Tr. II 220-221, 237-239).
There were two power centers on the section (Tr. II 211).
At the first power center Sampsel examined the cable that ran
from the power center to the section belt drive (Tr.II 217) .
Sampsel initially testified that the cable coupler was
positioned so _that power was not flowing through the cable to
the belt drive. In effect, the cable and belt drive were disconnected (Tr. II 212). (Later, Sampsel appeared to change his
testimony when he stated that there was power running to the belt
drive at the time he came to the power center (Tr. II 217).)
Sampsel had the cable coupler removed from the receptacle.
He could not recall whether he or Steve Cox, the mine superintendent and company representative, removed it (Tr. II 225).
When the coupler was removed Sampsel saw a piece of copper wire
fall from between the coupler and the receptacle (Tr. II 212,
223') • According to Sampsel, the wire "conformed to the
configuration needed to complete a jumper' wire" (Tr. :II 212,
213). In his opinion it had been used to connect the frame of
the receptacle to the qround monitor lug and thus to jumper the
ground monitor system (Tr. II 212).

1859

cox was on Sampsel's right and Sampsel believed that Cox
saw the copper wire fall when the coupler was removed from the
receptacle (Tr. II 214). Sampsel explained, "[Cox] was right
beside me. We was there for the sole purpose of looking at
these. That was my intentions and that's what I told him my
intentions were" (Tr. II 224). Sampsel further explained that
when he told Cox the wire had fallen from the receptacle, cox
replied he had not seen it (Tr. II 224). Because the wire was
lying directly beneath the receptacle, Sampsel picked it up and
showed it to Cox. Cox reiterated he had not seen the wire fall
and added that he had not observed the wire in the coupler
(Tr. II 215).
Sampsel then inspected one of the couplers at the second
power center. Sampsel was uncertain if Cox went with him
(Tr. II 219, 227). The coupler was connected to a power cable
that provided electricity to a battery charger (Tr. II 218).
When the coupler was removed from the receptacle, Sampsel found a
copper wire of the same lenqth as the previous one. The second
wire did not fa~l, rather it remained in the coupler. Sampsel
believed it had '.been used to defeat the ground monitor system of
the battery charger (Tr. II 216).
Sampsel spoke with whoever was with him at the time about
the wire and a company employee removed the wire from the
receptacle (Tr. II 229. Sampsel told the company representative the wire should not have been there, that it was a
violation and that he would issue a citation (Tr. II 230).
Sampsel stated that the company's certified electricians
were responsible for working on the couplers and receptacles
at the power centers (Tr. 218-219).
In Sampsel's view, the purpose of section 75.902 is to
ensure that any short circuit or ground fault will result in the
automatic deenergizing of the machinery and thus to eliminate
instantly the hazard of shock or electrocution (Tr. II 216-217).
He stated that he believed it was "highly likely" that both
jumperings would have resulted in an electrocution (Tr·. II 218).
He added that the hazard depended "more or less ••• (on] how well
the cables (and] equipment ••• [were] being maintained" (Tr. II
218).
Foster Brock, an MSHA electrical inspector, gave a somewhat
different explanation of what happens when the ground monitor
system is jumpered. Brock explained that the system is defeated
by providing a connection between the ground monitor system and
the ground system so that the ground monitor only aonitors the
ground in the new and smaller circuit between the jumpering wire
and ;the power center. The circuit from the jumper to the
equipment is not monitored (Tr. II 277, 279). In this situation,
there is no way for a miner to be assured that the grounding

1860

system actually will trip the power in the event of a fault
(Tr. II 280, 294). Brock summarized the purpose of the ground
monitor system as "··· a safety system that ensures that you
have a ground wire • • • • When you jumper out a ground check
monitor you're taking that one safety feature and doing away
with it" (Tr. I I' 289).
Steve cox, Cross Mountain's superintendent, testified
that he was with Sampsel during the October 14 inspection. He
explained that in order to inspect the power center for the head
drive, both he and Sampsel had to crawl, because the floor to
ceiling height was 40 inches (Tr. I I 244). Three couplers were
plugged into the power center in close proximity to one another
(Tr. I I 251; see Resp. Exh. 5-B). When Sampsel told Cox that he
wanted to inspect the grounding system on the belt drive, Cox
unplugged the belt drive cable coupler. Because the coupler
weighed about 35 to 40 pounds, and because he was on his knees,
Cox had to move his body over the coupler to unlatch it (Tr. II
245; Resp. Exh. 5-A).
According to Cox, he unplugged the coupler, laid it down
and Sampsel told him there was a wire present. Cox told Sampsel
he did not see a wire. When Sampsel responded that the wire had
been used to jumper the grounding, Cox disagreed because the circuit breaker was working properly and there was no need to jumper
the system (Tr. I I 252). There were no reports that anything
was wrong with the system (Tr. II 257, 258, 260). Cox stated,
however, that the wire could have t>een used to jumper the system
and that whoever did it had neglected to remove the wire, but
Cox did not believe this was likely (Tr. I I 258). Cox maintained
that electricians frequently left pieces of wire laying around
power centers (Tr. II 262).
Cox testified that he and Sampsel then traveled to the
power center for the battery charger. cox believed that they
were joined by the section electrician who unplugged the coupler
to the battery charger. Cox stated that he did not see a wire
in the coupler or receptacle. If one had been present, h~ would
have noticed (Tr. II 263, 265).
Cox stated that Sampsel did not ask him to remove a wire
from the coupler and that if Sampsel asked the section
electrician to remove one, he (Cox) did not hear the request
(Tr. II 264). However, Cox agreed there was a lot of noise at
the power center. "[I]t's buzzing like a beehive," he said •
.lSL.. Cox was not standing beside Sampsel, but rather was about
one foot from the section electrician, who was about five feet
from Sampsel (Tr. II 265).

1861

THE VIOt.ATION
The parties aqree that the electrical aystems for the
aection head drive and the battery charger required qround
check monitor circuits. The circuits must continuously monitor
the equipment's qroundinq circuits, I accept the testimony of
the Secretary's witnesses that if a qround check monitor circuit
is jumpered, it can no longer effectively monitor the qrounding
circuit. In sum, and as Foster Brock persuasively testified,
such jumpering defeats the purpose of the qround check monitor
system (Tr. I I 208-209, 277-280).
The question of whether a violation existed hinqes upon
whether the secretary established, in either instance, that the
qround check monitor systems were in fact defeated. Put another
way, the question is whether or not the wires were used to jumper
one or both of the systems.
Sampsel was certain that when Cox removed the belt drive
cable coupler ·from the receptacle at the first power center a
copper wire fell from between the coupler and receptacle (Tr. II
212, 233). Sampsel was equally certain the wire had been used
to short circuit the belt drive qround monitor circuit. Cox did
not dispute the presence of the wire. Rather, he testified he
did not see the wire fall. He suqqested that the wire miqht have
been left in the area by a company electrician who was troubleshooting the equipment. However, he also aqreed it was possible
the wire had been used to jumper the system prior to the
inspection and that it had not been removed because the person
who inserted it forqot about it (Tr. II 258).
I credit Sampsel's version of events. Unlike Cox, Sampsel
was :certain the wire had fallen from between the coupler and the
receptacle (Tr. II 212, 223). Cox removed the coupler from the
receptacle. Because of the low heiqht at the power center Cox
and Sampsel had to crouch. Further, because of the weight of
the coupler, Cox had to place his body up and over the coupler
(Tr. 245; see also Resp. Exh. 5-A). Given this position and,
qiven the fact Cox was intent on removing the coupler, whereas
Sampsel was intent upon looking for evidence of jumperinq, it is
not surprisinq Cox did not see the wire until it was pointed out
to him.
Havinq accepted as fact that the wire fell as Sampsel
described, the question · is what purpose the wire served. I
accept Sampsel's unchallenged testimony that the configuration
of the wire was that which would have been needed to jumper the
ground monitor system (Tr. II 212-213). Cox auqqested the wire
miqht have been the subject of leqitimate use by an electrician.
However, he also aqreed it was possible it was used as a jumper
wire. In my view, the most reasonable inference to draw from
the testimony is that it was beinq used to jumper the ground

1862

monitor circuit. Cox's suqqestion that the wire miqht. have been
used for troubleshooting is undermined by his repeated assertions
that there was nothinq wrong with the belt drive'& qrounding
aystem (Tr. II 252, 257-258, 260). I therefore find that the
violation existed as charqed at the first power center.
At· the second power center Sampsel maintained that he
found a similar copper wire in the receptacle for the cable
to the battery charger when the couplinq was unplugged from
the receptacle (Tr . II 216). Sampsel also testified that at
his direction a company employee removed the wire from the
receptacle (Tr. II 229). Aqain, Cox testified that he did not
see the wire. He believed he would have seen it if the wire
had been where Sampsel stated it was located (Tr. II 263, 265).
Further, Cox did not hear Sampsel ask the section electrician,
the only other company employee with Sampsel and Cox, to remove
the wire from the receptacle (Tr. II 264).
I find both Sampsel's and cox's testimony to be credible.
I also find, however, that accepting Cox's testimony does not
preclude a f indinq the wire was present. Cox described himself
as beinq about five feet from Sampsel, rather than immediately
next to him (Tr. II 265). He aqreed that it was noisy at the
pow~r center (Tr. II 264).
It is reasonable to conclude that
the distance between Sampsel and Cox, toqether with the buzzinq
of the power center, could have afforded Cox less than a clear
view of the couplinq and receptacle and prevented Cox from
hearinq Sampsel ask the other employee to remove the wire.
As with the situation at the belt drive power center, I
conclude the weiqht of the evidence establishes a f indinq the
wire was located where Sampsel testified. The only plausible
explanation offered for the presence of the wire was that it
was used to jumper the system. Cross Mountain did not suqqest a
credible alternative reason. Therefore, I also conclude that a
violation of section 75.902 existed with respect to the battery
charqer qround chec~ monitorinq circuit.

S&S and GBAYITX

The Commission bas held a violation is "S&S" if, based on
the particular facts surrounding the violation, there exists a
"reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature."
Cement Division. National Gypsum co., 3 FMSHRC 822, 825 (April
1981). In Matbies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).
The Commission stated:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum, the Secretary ••• must prove: (1) the
underlying violation of a mandatory safety standard,

1863

(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
r.easonably serious nature .
I have concluded that a violation of mandatory safety
standard section 75.902 existed as charged . Moreover, the
testimony establishes there was a discrete safety hazard contributed to by the violation in that, with the ground check
monitor defeated, there was no way to ensure the .affected
electrical equipment bad short circuit protection. Without
such certainty, a short could have. lead to the shock or
ele~trocution of anyone touching the equipment's frame or cable .
This clearly meets the reasonably serious nature element of the
Commission's S&S definition (Tr. II 208-209).
As is frequently the case when the Secretary alleges that
a violation is S&S in nature, the question is whether the
Secretary bas established a reasonable likelihood the hazard
in question would have resulted in an injury? In other words,
if normal mining operations continued would there have been a
reasonable likelihood of "an event in which there [would have
been] an injury?" U.S. Steel Mining Co., 6 FMSHRC 1834, 1836
(August 1984), After considering all of the evidence, I conclude
that the Secretary has failed to meet his burden of proof.

Although Sampsel testified that he believed it "highly
likely" that jumpering of the ground monitor circuits would
have resulted in an electrocution, neither he nor Brock offered
any testimony regarding the frequency of miners' exposure to the
conditions (Tr. II 218, 235). In order for there to have been
~ likelihood of an injury or injuries from the hazards created
by the violative conditions, miners had to be exposed to the
conditions. When, as here, the record is silent in this regard,
the Secretary has failed to prove the third element of the
Mathies formula.
The fact that a violation fails to meet all of the tests
required to support a finding of S&S does not mean it is a
non-serious violation. The Commission has recognized that
under the Mine Act the concepts of S&S and gravity are not
identical, although they are frequently based upon the same or
similar factual considerations. Ouinland Coals. Inc., 9 FMSHRC
1614, 1622 n. 11 (September 1987) . The dangers posed by the
inability to rely on short circuit protection were grave in
that in the event an undetected short circuit the violation
could have resulted in the serious shock injury or electrocution
of anyone touching the frames of the equipment, or the cables.
I therefore find that the violation was serious in nature.

1864

UNWARRANTABLE FAILURE and NEGLIGENCE
The Commission has held that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence
by a mine operator in relation to a violation of the Act.
£mei;y Mining Corp., 9 FMSHRC 1997, 20004 (December 1987);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 20007, 2010 (December
1987). The Commission has explained that this determination
is derived, in part, from the ordinary meaning of the term
"unwarrantable failure" ("not justifiable" or "inexcusable"),
"failure" ("neglect of an assigned, expected or appropriate
action"), and "negligence" ("the failure to use such are as
a reasonably prudent careful person would use, characterized
by "inadvertence," "thoughtlessness," and inattention.").
Eastern Associated coal Corporation, 13 FMSHRC 178, 185
(February 1991); citing E1Dery. 9 FMSHRC at 2001.
Brock offered no testimony regarding this issue, and
Sampsel's testimony .was limited. He stated he believed the
company's certified electricians were responsible for maintaining the couplers and receptacles and that they performed
all work on such equipment (Tr. II 218-219). Cox also testified
that maintenance on the power cent~rs would have been performed
by certified persons (Tr. II 272-273). This testimony alone does
not establish that the company's certified electricians jumpered
the circuits. Sampsel was not asked who he thought installed the
wires. Nor was he asked how long he thought the wires had been
installed and whether the company should have known about them.
Finding the violation was the result of more than ordinary negligence on the part of the company would require conjecture outside
the record. I conclude, therefore, that the Secretary has not
established that the violation was the result of cross Mountain's
unwarrantable failure to comply with section 75.902.
Although I cannot find cross Mountain unwarrantably failed
to comply with the cited standard, I can and do find that the
company was negligent. No matter who jumpered the ground check
monitor circuits, the company failed to meet the standard of care
required of it by allowing the conditions to go undetected and
corrected. Cross Mountain was responsible for ensuring the
grounding systems on the equipment, including the ground check
monitor systems, were operating properly. The integrity of the
systems was the company's resJ?onsibility. In failing to discover
and remove the wires, the company failed to meet the standard of
care required of it.

1865

POCKET NO. SE 93-244
SETTLED VIOLATIONS
Citation No.
3824750
3824751

~

10/26/92
10/26/92

30 C.F.R.

§

Proposed Penalty

Settlement

$650
$650

$500
$500

70.202(a)
70.202(a)

The Secretary alleged ~at respirable dust samples were
not taken and submitted by a certified person as required by
section 70.202(a) . At the hearing, counsel for the Secretary
stated that although the inspector found that these violations
were the result of Cross Mountain's high negligence, in fact the
company exhibited an ordinary or moderate lack of care and that
the Secretary agreed to modify the citations accordingly (Tr. I
12). I accepted the settlements (Tr. I 13).
citation No .
3824775

~

30 C.F.R. §

Proposed Penalty

Settlement

1/14/93

70.lOO(a)

$690

$0

The Secretary alleged that a roof bolting machine operator
was w.orking in a concentration of respirable dust that exceeded
the allowable limit. The violation was based upon a single
sample of respirable dust collected in the working environment of
the miner. At the commencement of the hearing Cross Mountain's
motion to vacate the citation was pending. Cross Mountain maintained the alleged violation was based upon an improperly
obtained respirable dust sample. Counsel for the Secretary did
not oppose the motion and stated that MSHA agreed to vacate the
citation (Tr. I 8, 12-13). I dismissed the Secretary's petition
with respect to the alleged violation on the understanding the
citation was or would be vacated.
POCKET NO. SE 93-245
Citation No.
3824983

~

30 C.F.R. §

Froposed Penalty

1/11/93

75.603

$6,500

section 75.603, in pertinent part, states:
Temporary splices in trailing cables shall be
made in a workmanlike manner and shall be mechanically
strong and well insulated •••• As used in this section,
the term "splice" means the mechanical joining of one
or more conductors that have been severed.

1866

Citation No. 3824983, issued pursuant to section 104(d)(l)
of the Act, states:
001 Section No. l Fletcher roof bolter aerial
No. 89019 the trailing cable providing 440 v[olt]
three phase power had not been properly spliced. A
splice had been made that had not been effectively
insulated and sealed, proper connectors were not used
the wire had been twisted and tied together. Two of
the three phases were exposed, the outer jacket was
missing.
(Gov. Exh. 4) The inspector found the violation was S&S and
the result of Cross Mountain's unwarrantable failure.

THE TESTIMONY
Sampsel stated he had been trained in the observation of
trailing cables and their splices . Sampsel testified that a
temporary splice is made in a cable so that production can resume
until a permanent splice is completed (Tr. I 271, 275). (He
further stated that permanent splices usually are made during a
maintenance shift and that the maintenance shift is frequently
the midnight shift. ~)
There are five conductors inside a trailing cable,
three phase wires, a ground wire and a ground monitor wire
(Tr. I 277). Temporary splices ar~ made by reconnecting and
reinsulating the conductors when they have broken or otherwise
separated. Temporary splices need to be well insulated because
trailing cables are handled by miners. If a splice is not well
insulated, a miner can be electrocuted by touching the splice
(Tr. I 273).
·
When making a temporary splice the severed conductors
inside the cable are reconnected and are reinsulated equivalent
to their original insulation (Tr. I 277). This is the s~e way a
permanent splice is made, except a permanent splice has a bonded
rubber sleeve applied around the splice, whereas a temporary
splice can be wrapped with tape (Tr. I 278, 302). Pursuant to
section 75.603, a temporary sp,~ice must be made in a "workmanlike
manner." A temporary splice is permissible for up two 24-hours
after which it must be replaced with a permanent splice (Tr. I
279).

On January 11, 1993, Sampsel inspected the trailing cable
of a roof bolting macnine that was located on the 001 section
of cross Mountain's No. 6 Mine. (Sampsel could not recall
inspecting the machine itself, other than to get the serial
number off of it (Tr. I 298). Nor could he recall whether
the machine was energized.) Upon examining the machine's

1867

trailing cable Sampsel noticed a splice with exposed copper
wires (Tr. I 283, 290). The copper wires were plainly visible
and he did not have to pick up the splice to see them (Tr. I
304).
Closer observation revealed the copper wires were phase
wires and that the splice was not properly made in that the
wires were tied and twisted together. Electrical connectors
bad not been used to reattach the wires (Tr. I 283). Although
the phase wires had been wrapped with tape, the splice "showed an
extreme amount of wear" in that the tape around the conductors
had been scraped off causing exposure of the copper wires (Tr. I
283-284, 309).
Sampsel could not recall the name of the person from
Cross Mountain who accompanied him when he looked at the splice.
He remembered, however, that someone from the company cut the
splice out of the cable and that he was then able to _pick it
up and observe it closely (Tr. I 302). It was at this time that
Sampsel found ·t he splice had been "tied together and twisted and
so on" (Tr. I 303). It was also at this time that Sampsel
confirmed the wires he had seen were phase wires (Tr. I, 304).
While Sampsel was examining the splice, company personnel were at
work reconnecting the cable (Tr. I 306).
According to Sampsel, the splice violated section 75.603
in several respects. The copper wires were exposed, the tape
was scraped away so that it was not insulated to the same
extent as the original cable, and the phase conductors were
tied together rather than joined with connectors (~r. I 285).
Tieing the wires was unacceptable because the splice was more
likely to break apart and sharp ends of the spliced wire could
poke through the insulation (Tr. I 287). If connectors bad
been used, there would have been an even strain on the wires
and they would have been less likely to break. Further, the
wires would have been enclosed within the sleeve of the connector
and would not have poked through the insulation (Tr. I 287-288).
In view of the condition of the splice Sampsel believed
that an injury was highly likely. The roof bolting machine
wa.s located in the active workings of the section, an area where
miners were required to work and travel. He noted that scoops
and the continuous mining machine bad to travel past the cable
and that the cable had to be bung for the equipment to get
through (Tr. I 318). Moreover, the roof bolting machine operator
frequently had to handle the cable (Tr. I 288-289). In Sampsel's
view, the defective splice could very easily have been contacted
by persons working in the area and a fatality or serious injury
easily could have occurred (Tr. I 292). He therefore found the
alleged violation was S&S in natur~ (Tr. I 292-293).

1868

When asked why he found the condition to have been the
result of Cross Mountain's unwarrantable failure to comply
with section 75 . 603, Sampsel stated:
I felt that the splice ••• was made at the
mines (sic.) ••• and •• • this type of splice being made
.at the mine, the people are required to be recertified
yearly. It's common knowledge to electrical people
as well as inspectors that square knotting or qranny
knotting or twisting cables together is not an acceptable method of making a splice .

*

*

*

*

[T]his type of splice was intentionally made
improperly. (Tr. I 294-295)
In Sampsel's view, a certified electrician acts on behalf
of the operator. Therefore, the negligence of the electrician
who made the splice was attributable to Cross Mountain (Tr . I
320-321) . Although making the splice was the type of work that
Sampsel believed "could show up in an electrical examination
book," Sampsel did not know if he had reviewed the book on the
day of the inspection (Tr. I 298, ~99). (When Sampsel was shown
a page of the book for January 11, 1993, he agreed that he had
looked at the book, although he could not state that everything
appearing on the page was there at that time (Tr. I 300; Resp .
Exh. 3.)
The Secretary also called electrical inspector Foster Brock
as a witness. Brock testified that the problem with the splice
was that twisted wires could pull loose if the cable was hung
(Tr . II 138). Where the wires were tied with square knots, the
knots created more heat than connectors, and the heat caused the
wires to break at the end of the knots. In addition, the knots
created a splice that was larger in size than one made with
connectors. The larger splice was subject to more wear and tear
(Tr . II 143, 144-145, 146). Because of these problems MSHA
considered the use of twisting and square knots to be "unworkmanlike" (Tr. I I 146). Brock admitted, however, that he had not
conducted any tests to establish that conductors spliced with .
s~are knots created more heat (Tr. I I 161).
Be had simply
noticed that splices made with connector& lasted longer that
those made with square knots (Tr.II 162).
Finally, Brock observed that when a coupler was connected
to the power center, and the circuit breaker was off, the power
could be turned back on by any miner. As Brock stated n [Y]ou
don't have to be a certified electrician to energize a circuit
breaker, that's in the regs. Anyone can put the breaker in"
(Tr. II 156) •
. As its first witness, Cross Mountain called George Bob
Smith, a certified electrician at the No. 6 Mine. Smith agreed

1869

with Sampsel that the responsibility for makinq splices at the
No. 6. Mine rested with the certified electricians (Tr. II 17).
Smith stated that he accompanied Sampsel during the January 11
inspection. Accordinq to Smith, because of the low heiqht on
the section, he and Sampsel had to crawl. The cable was closer
to the .rib than to the middle of the entry, and as they crawled
past the cable, they observed the temporary splice in question
(Tr. II 19). Smith described the splice as "raqged but •••
made strong" (Tr . II 20). It had mud and dirt on it and in
some places the tape was torn (Tr . II 21). According to Smith,
when he and Sampsel saw a wire sticking out of the splice they
agreed the splice had to be examined (Tr. II 20). Smith did
not get another look at the cable before Sampsel started
cutting into it (Tr. II 84) .
Smith believed the second shift mechanic made the splice
in order to add additional cable so the roof bolting machine
could be moved. The machine had been idle for three .or
four weeks. It was scheduled to be put back into production
within three more shifts. The temporary splice would not have
been present then because an electrical inspection was scheduled
for the third shift on the same day the conditions were cited.
As a result of the inspection, the temporary splice would have
been replaced with a permanent splice (Tr. II 49-50, 70-71, 74).
Smith believed the roof bolting machine had been moved
on the shift before he and Sampsel observed the splice (Tr. II
24-25). Smith highlighted on a map of the section the entries he
believed the roof bolting machine had traveled (Tr. II 29; Resp.
Exh . 2). The cable containing the splice was 700 to 750 feet
long and, at the time the citation was written, 300 to 400 feet
of ·t he cable was piled within 25 feet of the power center (Tr. II
33-34). The splice was within 10 feet of . the piled cable and the
power center was 25 feet from the splice (Tr. II 32, 34).
smith testified that the cable's coupler was plugged into
the power center, but he did not know if the power was on (Tr. II
32). However, if the power was not on, he acknowledged that any
miner could have gone to the power center and activated the roof
bolter (Tr. II 58). In any event, the area containing the splice
was not highly traveled and Smith did not think the cable was in
an area where it would have needed to be moved, handled or hung
out of the way of other equipment (Tr. II 34-35).
Smith and another mechanic cut the splice from the cable.
When asked if he had a good opportunity to view the splice, Smith
replied: "[A]fter we cut it out, we just laid it down ••• it had
tape, insulation on the phase wire of it. I do know that"
(Tr. II 35). Smith testified that all of the wires were spliced
with square knots (Tr. II 176, 180-181, 186). (Smith's testimony
in this regard was confirmed by Patrick Graham, Cross Mountain's

1870

Vice President for Health and Safety, who saw the knotted wires
(Tr. II 193-192).)
Smith believed the exposed wire was the neutral ground wire.
If phase wires also were exposed, he did not see them, and he
believed he would have seen them because he was wright over top
of •• • [the splice) just looking at it" (Tr. II 46). Smith did
not believe there was any hazard from handling an energized cable
with an exposed neutral ground wire. "I don't see that you'd be
executed or juiced" (Tr. II 38). There is no power in the ground
wire, and if power ever did go through it, the power would trip
the circuit breaker and the electricity would be disconnected
(Tr. II 39).
Smith further testified that the splice had an outer covering of tape that probably had been wrapped three times around the
splice. The tape was ragged and worn from being dragged along
the mine floor and around corners (Tr. II 40, 43). In addition,
the phase, ground and . ground monitor wires were individually
wrapped (Tr. II 40). The phase wires usually were wrapped with
a half-lap of tape at least four or five times, which meant there
were at least four or five thicknesses of tape wrapped around the
phase wires (Tr. II 41). According to the manufacturer of the
tape, it was one mil thick and a thickness of one mil provided
protection against 1,000 volts (Tr. II 42). The phase wires in
the cable carried 227 volts (Tr. II 44). · smith believed the
cited splice was mechanically strong and well insulated (Tr. II .
45).
In Smith's opinion, square knots were used in the cable
rather than connectors because the cable had to be pulled a long
way and splices made with square knots were stronger than those
made with connectors (Tr. II 44). When connectors were used, the
wires were joined by crimping them together. If the cable was
subject to a lot of tugging, the crimped wires tended to pull
apart (Tr. II 45). Smith had seen splices made with connectors
come loose many times (Tr. II 48-49). However, Smith also agreed
that there were times when connectors were used. If an
electrician had a connector on his or her person, and did not
have to go the power center to get one, and if the trailing cable
did not have added lengths to it so that it was dragged a lot on
the mine floor, an electrician. might use a connector (Tr. II 55).
Certified electrician Bobby Laymance was the company's
next witness. Lamaynce was not present when Sampsel cited the
alleged violation. However, he understood the roof bolting
aachine was idle at the time the violation was cited and had
been idle for about four weeks (Tr. II 90). Laymance agreed
with Smith that the ~oof bolting machine would have been put
into use two ~r three shifts after the alleged violation was
cited (Tr. II 108).

1371

According to Laymance, he examined the roof bolting machine
one week prior to January 11 (Tr. II 93-94). This was before
the machine was trammed to its location on January 11 (Tr. II
96). Laymance did not think the cited splice was in the cable
when he examined the machine. If it had been, he would have
corrected the condition and noted his action in the electrical
examination book (Tr. II 97-98). There was no such notation in
the book (Tr. II 98).
Laymance was scheduled to examine the machine again on
January 11 (Tr. II 112-113)~ During such examinations he always
inspected the cable and he would have removed the temporary
splice (Tr. II 114) . He believed that the tramming of the roof
bolter from the place he inspected it last to the place where it
was positioned on January 11 could have caused the wear on the
temporary splice that Sampsel found (Tr. II 103).
Laymance believed that the ground and ground monitor wires
and phase wires were spliced by being tied in square knots
rather then by being twisted (Tr. II 172). Laymance described
why square knots were used in temporary splices . "Quick," he
explained, "plus they are a whole lot stronger" (Tr. II 103).
According to Laymance, connectors were used for permanent
splices (Tr. II 121-122). Laymance also believed that the
exposure of a ground wire would not have created a hazard
(Tr. II 114-115).

THE VIOI..ATION
Section 75.603 defines a splice as "the mechanical joining
of one or more conductors that have been severed" and it requires
temporary splices in trailing cables to be "made in a workmanlike
manner" and to be "mechanically strong and well insulated." The
Secretary alleges the splice in the trailing cable to the roof
bolting machine was not made in a workmanlike manner, was not
mechanically strong and was not well insulated. The evidence
establishes these contentions .
First, there is no doubt that the part of the cable Sampsel
cited was a "splice." The witnesses who saw the cable agreed
that the three phase conductors, the ground monitor wire and the
ground wire had been severed ~d rejoined.
I

MSHA bas a long and consistent history of interpretation
of Section 75.603. This interpretation bas guided both MSHA's
inspectors and the nation's underground coal operators in
resolving questions raised by the standard's practical application. In regard to one of the fundamental questions in
this case, I note that more than fifteen years ago Commission
Administrative Law Judge George Koutras, citing the 1978
Inspector's Manual, concluded that "[s]pliced conductor wires
that have been tied in square knots or twisted together are

1872

not made in a workmanlike manner and mechanically joined" and
that "[t]he intent of the standard and the manual guidelines
is to insure that such splices are uniformly made by means
of mechanical devices , such as rings and connectors to prevent
their separating under stress and undue abuse." Empire Energy
Co:cp . , Docket No. DENV 78-442-P (December 8, 1978): reported
At l MSHC (BNA) 1751.
. The most recent instructions to MSHA's inspectors and the
nation's operators are found in the Program Policy Manual (.f.fM).
There, MSHA again clearly states that "splices made by twisting
conductors together or by tying knots in conductors, splices that
have bare or exposed conductors •• • constitute noncompliance."
V R.fM Part 75 at 63-64 (July l, 1988). While these prohibitions
are stated with respect to the suitability of splices (30 C.F.R.
§75.514), I believe they also apply to temporary splices in
trailing cables since such splices too must be "suitable." Moreover, the manual requires that "[e]ach power conductor, qrounding
conductor, and qround-check conductor ••• be individually spliced
using a proper splicing sleeve, ring or clamp," devices that by
tbei:r nature exclude the use of twisted wire and square knots.
I do not doubt that the use of square knots produces a
splice that is less likely to pull apart, as Smith testified.
However, I also do not doubt that heat produced by the knots
makes conductors more likely to break at the end of the knots,
as Brock testified. Brock's opinion was based on his many
years of practical experience. I also accept as fact that
splices made with knots are larger than splices made with
connectors and therefore are subject to more wear and tear
when dragged throughout the mine.
For all of these reasons, I conclude that the subject
temporary splice wa~ not made in a workmanlike manner as
required by section 75.603.
In addition, the condition of the splice violated the
"well insulated" requirement of the regulation. Sampsel and
Smith aqreed that there were wires extruding from the splice.
Indeed, this is what initially attracted Sampsel's attention
to the problem. The exposed wires signaled the inadequacy of
the insulation.
··
I therefore conclude the violation existed as charged •

.

S&S and GBAVITY
I conclude the violation was S&S. As I have just found,
there was a violation of section 75.603. Moreover, the evidence
establishes a discrete safety hazard in that I accept the
testimony of Sampsel that the wires poking through the temporary
splice were those of a phase conductor and that this subjected a

1873

miner who might touch the wires to the danger of serious shock
injury or electrocution, consequences of a reason~ly serious
nature to say the least.
While Laymance and Smith believed the ground wires were
exposed, Laymance was not present when Sampsel observed the
violation and Smith, who was present, did not have as close a
look at. the splice as Sampsel. Sampsel actually held the splice
and cut into it. Smith did not pick up the splice, and, though
be stated he was over the splice when he looked at the cable,
be was less than precise in describing what he was able to see
(Tr. II 46, 84, see also Tr. II 35). Moreover, in my opinion,
even if only the ground wire had been exposed, a discrete safety
hazard still would have existed. If there had been a short
circuit coupled with a failure of the short circuit protection,
any miner touching the wire would have been subjected to the
danger of serious electrical injury or electrocution.
Fortunately, a serious electrical injury or electrocution
did not result. Nevertheless, I conclude that one was reasonably likely. It is not clear whether the roof bolting machine
was energized when Sampsel found the defective splice. However,
the roof bolting machine obviously was energized when it was
moved, and it is ·reasonable to infer the splice became defective
during the move and put miners who had to move the cable along
with the machine in danger of serious injury or electrocution.
Cross Mountain .takes the position that, in the context of
continued mining, the defective splice would have been replaced
with a permanent splice before the machine was put into service
and that the electrical inspector on the oncoming shift would
have corrected the condition (Tr. II 49-50, 70-71, 74). In
my view, the reasonable likelihood of an injury existed independently of what might have happened in the future because the
splice was present when the machine was moved to the position
where it was located when the violation was cited.
Further, the machine was going to be put into use within
the next three shifts and, as both Smith and Brock agreed, with
its coupler plugged into the power center a miner could have
energized the machine at any time (Tr. II 58, 156). The splice
was located close to the power center. At least a few miners
were required to travel and had traveled in the area. I accept
Smith's explanation that the low height of the area meant that
miners would have had to crawl by the splice. I conclude that
regardless of whether miners ever bad to hang the cable, they
were likely to inadvertently touch the splice with their bands
or bodies as they crawled passed it. Had Laymance neglected to
replace the temporary splice before this occurred, a •erious
shock injury or electrocution was reasonably likely.

1874

I also find that this was a serious violation. The
likelihood of a significant injury or death resultinq . from
the infraction made it so.
UNWARRANTABLE FAILURE AND HEGLIGENCE
Sampsel and Smith aqreed that the splice was made by a
certified electrician since all splices at the No. 6 Mine were
so made (Tr. I 294-295; Tr . II 17). Cross Mountain offered no
justification or excuse for the certified electrician who made
the subject splice violatinq section 75.603, other than ·the .
fact that tyinq the conductors with square knots was quick,
convenient and durable (Tr. II 44-4 5 , 48-49, 103, 121-122).
While this may be true, it is clear that such a splice was not
permissible under the standard . The lack of an acceptable
justification or excuse for the violation, toqether with the
fact that it was deliberately committed by a representative of
mine manaqement, establ ishes that the violation was due to Cross
Mountain's unwarrantable failure to comply with section 75 .603.
In addition, Cross Mountain was obviously neqliqent in that
its certified electrician failed to exhibit the standard of care
required by the circumstances. Indeed, and, as I have found,
the company's neqliqence in thi s reqard was more than ordinary.
Citation Nos.

.l2Ak

30 c,F.R.

3824999
3824998

2/2/93
2/2/93

75.202(a)
75 . 220(a)(l)

§

Proposed Penalties
$7,000
$7,000

Section 75.202(a), in perti nent part , states:
The roof ••• of areas where persons work or
travel shall be supported or otherwise controlled
to protect persons from hazards related to falls of
the roof.
Section 75.220(a)(l), in pertinent part, states:
Each mine operator shall develop and follow a .
roof control plan, approved by the District Manaqer,
that is suitable to the prevailinq qeoloqical
conditions and the mininq system to be used at the
mine.
Citation No. 3824999, issued pursuant to section 104(a) of
the Act , and, in association with an imminent danqer order of
withdrawal, states in part:
[In the] 001 section the roof where persons were
required to work was not beinq properly supported or
otherwise controled [sic] to protect persons from .

1875

hazards related to falls of the roof. Only 8 of 25
required timbers had been set where the final .t wo cuts
were taken from the belt entry blocks of the pillar
section.
Citation No. 3824998, which also was issued pursuant to
aection 104(a) of the Act and in association with the same
imminent danger withdrawal order, states, in part:
The operator was not complying with his
approved pillar plan on the section shift[.] The
final two cuts were take[n] from the belt entry
blocks and only 8 of 25 timbers had been set[.]
The wings between No. 16A and 18, 17 and 15A had
also been removed. (Gov. Exh 2).
The inspector found the alleged violations were S&S and
the result of Cross Mountain's "high" negligence .

THE TESTIMONY
Inspector ·sampsel explained that on February 2, 1993, he
was on a regular inspection at the No. 6 Mine (Tr. I 26-27).
The company was engaged in mining the pillars on the 001 pillar
section of the mine. Sampsel identified Cross Mountain's plan
for pillar recovery (the pillar plan) (Joint Exh. 1; Tr. I
31-32). (The parties introduced a copy of the plan that was
s'Qbstantially similar to the plan in effect on February 2, 1993
(Joint Exh. 1).)
The pillar plan required pillars to be mi.n ed and posts
to be set in a specific sequence (Tr. I 40; ~Joint Exh. 1).
Referencing the plan, Sampsel explained that when pillar Nos. 2
and 3 were mined, the plan required that a wing be left in each
pillar . (A wing is a portion of the pillar about three feet wide
and of va.r ying length.) The wings offered additional roof
support while portions of the pillar were extracted (Tr. I 38).
As the wings picked up more and more weight and started to crush,
they offered some warning as to when the roof would collapse
(Tr. I 38-39). The same warning was given by posts as they
started to break under pressure from the roof (Tr. I 75).
Accord-ing to Sampsel, in addition to the wings, pegs were
required to be left at the corners of the blocks. The pegs were
small triangular pillars of coal that also served to support the
roof until it caved in (Tr. I 53; Joint Exh. 1).
Sampsel maintained that when he positioned himself in the
belt entry between pillar Nos 6 and 7 (X on Joint Exb. 1), he
observed that the final cuts had been taken on pillar Nos. 2 and
3 (the two innermost pillars being mined), but that only eight
of 25 required posts (Posts I and It on Joint Exh. 1) had been set
(Tr. l 62, 93). The eight posts were on one side, at I, located

1876

between pillars 6 and 2 (Tr. I 63, 95). No posts bad peen set
at K between pillars 3 and 7, although the plan called for
15 posts (Tr. I 63).
In Sampsel's opinion, the posts should have been set to
protect those miners whose job it was to operate the remote controlled continuous mining machine and to extend the continuous
haulage system. The posts were intended to stop a roof fall
from encroaching on the miners (Tr. I 105-107; Joint Exh . 2).
In addition , Sampsel believed that miners setting posts in
preparation for the next mining sequence also were exposed to
the danger of falling rock. He stated that if a roof fall had
started it could easily have traveled down the track entry (Tr . I
69). Had the posts been set as required, they would have limited
the fall up to the timbers ~d not let it progress into the belt
entry intersection (Tr. I 73, 86 , 88).
Sampsel maintained that not only was it a violation for
cross Mountain to fail to conform to its approved pillar
extraction plan, but the company was mining without proper
roof support because it had exposed an area of excessive
unsupported roof (Tr. I 68). Sampsel described the company's
failure to follow the plan as a "very big safety hazard •••
especially when you don ' t follow it to the degree that this
bas not been followed" (Tr. I 71). If the violation continued,
Sampsel believed it would have lead to a fatal injury (Tr. I 72).
In Sampsel's view, the section foreman who oversaw the
removal of the pillars and the work of the crew and who bad
direct control of mining as it progressed was responsible for
the violation (Tr. I 76, 81). He described the foreman as
"constantly ••• overseeing" the mining of the pillars (Tr. I so,
84; See also Tr. I 115). In his experience, the foreman on duty
usually had a copy of the roof control plan, as did other miners
working on pillar extraction. (Cross Mountain stipulated that
this was so (Tr. I 81, 83).)
Sampsel found the conditions created an imminent danger
and that they constituted a violation of Sections 75.202(a) and
75.220(a)(l). (The imminent danger finding is not at issue.) In
addition, he believed that the likelihood of a serious injury was
"very high" (Tr. I 88) and tha~ the violations were the result of
the foreman's aggravated conduct (Tr. I 89).
Cross Mountain abated the violations by holding a safety
meeting with all miners and discussed the roof control plan,
as well as the hazards related to roof falls (Tr.I 89).
As its first witness, Cross Mountain called Bob Brandenburg,
the general mine foreman. Although Brandenburg was not present
when the 001 section was mined, he and Bobby Laymance accompanied
Sampsel during the February 2, 1993 inspection {Tr.I 131-132,

1877

146). · After the second shift came out of the mine, the
inspection party proceeded to the 001 section. Sampsel first
checked the equipment for permissibility, then he inspected the
faces. He began on the right hand side of the section and
proceeded to the left side.
Brandenburg agreed that Sampsel observed the conditions he
found to have been violations when he reached the belt entry.
Brandenburg also generally ~greed with Sampsel's description of
where Sampsel had stood (th~ X between pillars 6 and 7 on Joint
Exhibit l) (Tr. I 134). The inspection party remained in the
belt entry for approximately 25 to 30 minutes. ~
Referencing Joint Exhibit 3, Brandenburg recalled the
condition of pillar numbers 2 and 3 (the two pillars Sampsel
believed had been mined). According to Brandenburg, cuts 15 and
15A had been taken in their entirety on pillar 2. Cuts 16 and
16A had been only partially taken on pillar 3 because draw rock
had started to fall from the roof (Tr. I 136). (Brandenburg saw
the rock on th~ mine floor (Tr. I 151).) Cut 17 on pillar 2 and
cut 18 on pillar 3 had not been taken. Those parts of the ·
pillars were still standing (Tr. I 136).
Brandenburg stated that between pillars 2 and 6 adjacent
to the track entry (I on Joint Exh. 1) eight posts were set,
just as depicted on Joint Exhibit 3 (Tr. I 140). According to
Sampsel these would have been set immediately after cuts 15 and
lSA had been completed (Tr I 141). In Brandenburg's opinion,
if this was the case, the continuoµs miner operator would have
been standing next to the inby corner of block 6 adjacent to
the track entry, away from the roof fall hazard. (Brandenburg
marked this position with a red X on Joint Exh. 2.) Further,
he believed that when cuts 16 and 16A were taken the continuous
miner operator would have been at the corresponding position with
respect to block 7 (Tr. I 143). He stated the only other miner
who might have been in the area would have been the section
foreman (Tr. I 143).
In Brandenburg's opinion, the section foreman would have
been present when posts were set and would have known whether
all were set as required by the plan (Tr. I 147). After
Cross Mountain's unsuccessful efforts to fully mine cuts 16 and
16A no miners would have been exposed to inadequately supported
roof because the remote controlled continuous mining machine was
withdrawn and posts were installed at L (Tr. I 144).
Brandenburg stated that after Sampsel observed the conditions Sampsel told Brandenburg that he was going to cite cross
Mountain for violations of its plan. Subsequently Brandenburg
did not talk to Sampsel (Tr. I 138). He did not aee any point
in further discussion (Tr. I 157).
I

1878

Brandenburg also did not speak with the section foreman
about the area and did not ask him whether posts had been set
as required by the plan or if cuts 17 and 18 had been made
(Tr. 151). When asked why he did not speak with the foreman
about the cuts, Brandenburg explained, in effect, that he did
not ask because he could see the plan had not been violated.
Further, in the days following the inspection he did not speak
with the foreman because the foreman was suspended after the
citations were issued (Tr. I 154, 159).
David Altizer, the resident engineer for Cross Mountain
and author of the roof control plan for the No. 6 Mine, also
testified. Altizer stated the plan was designed specifically
to keep miners away from areas being mined. The continuous
miner was remote controlled so that miners did not have to go
near the pillar faces. coal was removed by bridge conveyors
and the miner who was responsible for the operation of the
conveyors was approximately 84 feet from the face (Tr. I 167).
Altizer was not present on the day of the inspection and
never observed the cited conditions. However, Altizer did not
believe Cross Mountain was in violation of the plan. With regard
to the number of posts set, Altizer believed that it had been
decided not to take the two last cuts in the mining sequence,
cuts 17 and 18, because draw rock had started to fall. Noting
that the plan stated "[p]rior to mining Cut No. 17, Post K will
be installed," Altizer maintained that if cut 17 was not mined,
the posts at Kneed not have been set (Tr. I 172, 193-194).
Concerning the posts at I, Altizer was unaware a citation had
been issued because only eight posts were set in lieu of the ten
required under the plan at that location. lJ:l..._ Posts are set on
four feet centers, therefore, in Altizer's view, if the width of
the entry where posts I should have been located was 17.3 feet or
less, rather than the normal 20 feet, eight posts would have
complied with the plan (Tr. I 174). However, Altizer agreed he
did not know the width of the entry (Tr. I 198).
Even if the crosscut in which posts I were located was
cut 20 feet wide on the perpendicular, eight posts might have
complied with the plan if they were "skew[ed] ••• around ••• so
that they ran perpendicular to the ribs in the crosscut instead
of· parallel to the entry" (Tr. I 175).
Altizer stated that the typical height on a pillar section
was 40 inches or less and that because of the low height
Sampsel'& perspective easily could have been distorted and he
could have thought cuts 17 and 18 had been taken when, in fact,
they had not been cut (Tr. I 177, 218).
Altizer also did not think there bad been a violation of
section 75.202. The standard states that the roof shall be
supported to protect persons from ~oof falls. In Altizer's
1879

view the only person who would have been in the crosscut when
cuts 16A was mined was the continuous mining machine operator.
The miner in charge of the bridge conveyor and the miner or
miners setting the posts would be outby the crosscut. If
cuts 17 and 18 had been mined, none of these people would have
been exposed to a roof fall hazard in that everyone would have
been even with the intersection of the belt entry and the crosscut, if not completely outby it (Tr. I 183-184). (However, he
did not believe cuts 17 and 18 had been mined because the roof
had not fallen in the subject crosscut. If the cuts had been
taken the roof probably would have collapsed (Tr. I 188, 218219).)
Finally, Altizer agreed that if, as asserted by Sampsel,
cuts 17 and 18 had in fact been mined and posts had not been set
at K, the roof control plan would have been violated (Tr. I 196) .
In his opinion, the section foreman would have been present when
cut 17 was taken and, if posts had not been set, the foreman
would have been obligated to cease mining and to rectify the
situation (Tr. I 213-214).
Mine supe~intendent Steve Cox testified regarding the
suspension of section foreman David Sweeney. According to Cox,
Sweeney was suspended pending the company's investigation of the
circumstances leading to the order and citations. Following the
company's review, it was determined that Sweeney had done nothing
wrong and he was called back to work (Tr. I 228-230). Cox stated
that Sweeney had no recollection of the events leading to the
issuance of the withdrawal order and citations. Prior to Sampsel
finding the alleged violations, Sweeney had left the section and
gone to the mine telephone to call out the results of the
preshift examination (Tr. I 229-239)·
Bobby Laymance was the company's final witness. In addition
to being a certified electrician, Laymance was in charge of the
third shift maintenance crew. He testified that cuts 17 and 18
had not been taken and that cut 16A was only partially taken.
In his view, mining had been discontinued because of the presence
of draw rock (Tr. I 236). He also was of the opinion that the
height of the section was about 36 inches (Tr. I 238).
According the Laymance, there were eight posts set at
location I. He was certain because he, Sampsel, and Brandenburg
had counted them (Tr. I 247-248). The posts were set as depicted
on Joint Exhibit 3. They were parallel with the belt entry
between blocks 2 and 6. ~ Joint Exh. 3. In Laymance's
opinion, once cuts 16 and 16A had been mined, the crew had
pulled back, posts had been set at L (the last posts required
to be set under the plan} and no miners had re-entered the area.

1880

THE VIOLATIONS
The alleged violations of sections 75.202(a) and
75.220(a)(l) arose out of the same factual circumstances and
may be considered together. The Secretary charges that the
roof control plan was violated (section 75.220(a)(l)) in that
"[o]nly eight of 25 required timbers had been set where the
final two cuts were taken from the belt entry blocks of the
pillar section" (Gov. Exh. 1). In addition, these same
conditions meant that "the roof where person were required to
work was not properly supported or otherwise controlled to
protect persons from hazards related to falls of the roof"
(section 75 . 202(a)(l)).
Sampsel and Cross Mountain's witnesses are in agreement
that the company was engaged in pillar recovery on the section.
In addition, the parties are in agreement that under the approved
roof control plan pillar recovery was governed by a p.illar plan
essentially identical to that set forth on Joint Exhibit 1. The
plan contains the required sequence for the mining of the pillars
and the setting of posts so that the roof will fall only in the
area from which pillar support has been removed by mining. The
posts break the fall of the roof to protect from falling roof
miners who may be working in the crosscut between the pillar line
being mined and the pillar line immediately outby. The posts
also protect equipment located in the same area. In order to
determine whether the company violated its pillar plan, and thus
its roof control plan, the requirements of the plan must be
compared with the factual conditions as established by the
testimony.
The pillar plan, in pertinent part, states:
'

10.) After mining cut No. 15A, and prior to
mining cut No. 16, Post I will be
installed.
11.) Prior to mining cut No. 17, Po~t K will
be installed.
12.) After mining cut No. 18, Post L will be
installed.
(Joint Exh. 1) It further states: "The cut sequence shown is
typical. cuts may be deleted if roof conditions warrant, as
determined by mine management" (lQ).
The record establishes that there were no po~ts installed
at K, that the eight posts referenced by Sampsel in the citations
were installed at I. It is also clear from the testimony that
posts required to be present at L were in fact there. The
Secretary contends that the plan was violated in that only

1881

eight posts were set at I, whereas the plan requires ten and
that although cut 17 was mined, no posts were set at K. It is
Cross Mountain's contention that eight posts were permissible
at I, that cut 17 was not mined due to adverse conditions, and
that n~ posts were required at K.
After weighing these contentions and the evidence, I
conclude the Secretary has established that cross Mountain
violated the plan. First, I find that there should have been
ten posts at I, rather than eight. This finding is based upon
the plan itself . Joint Exhibit 1, which is substantially similar
to the plan that was in existence on Februa.r y 2, 1993, shows
ten posts between pillars 2 and 6, and there is no dispute that
only eight were present. The plan requires that the posts at I
be installed "[a]fter mining cut lSA, and prior to mining cut 16"
(Joint Exh . 1). Cross Mountain's general mine foreman viewed the
area with Sampsel and he stated that cuts 15 and 15A had been
mined in ·their entirety and that mining had started on cuts 16
and 16A (Tr . I 135-136). I am persuaded that, in fact, as both
Sampsel and Br'~ndenburg maintained, cuts 15A and 16 had been
made. Therefore, under the plan the posts at I should have
been installed.
In my view, the number of posts required was exactly as
shown on the plan, that is to say, ten. The plan speaks for
itself . If, as Altizer suggested, the plan allowed less than
five posts per row, depending on the width of the entry and the
direction of the post row; or, if the plan left discretion to
the operator to determine the number of posts to be set, the plan
should have so stated. (In this regard I note that the pillar
plan specifically allowed management the .discretion to delete
cuts "if roof conditions warrant" (Joint Exh . 1).) As the plan's
author Altizer presumably understood the importance of stating
the requirements of the plan clearly and specifically.
The question of whether the lack of 15 posts at K violated
the plan depends upon whether cut 17 was mined. The pillar plan
states, "Prior to mining cut No. 17 Post K will be installed"
(Joint Exh. 1). Sampsel testified that he viewed pillar No. 2
and that cut 17 had been mined (Tr. I 62, 93). Brandenburg, who
was. with Sampsel and who viewed the same area, stated that cut 17
had not been mined (Tr.I 136) •. I credit Sampsel's testimony,
and conclude that cut 17 had been taken and therefore that the
lack of posts at K violated the plan. I find Brandenburg's
description of the conditions to be less reliable than Sampsel's
because of Brandenburg's admission that he did not try to convince Sampsel that no violation existed. It is inconceivable to
ae that if the general mine foreman believed the company truly
was in compliance with its plan he would not have tried to
convince the inspector of the same. Further, Brandenburg
acknowledged that the section foreman would have known whether or
not cross Mountain complied with the plan, yet Brandenburg d.id

1882

not discuss the matter with the section foreman (Tr. ~ 147, 151) .
Nor, for that matter, did Cross Mountain call the section foreman
to testify, even though it concluded he "had done nothing wrong"
(Tr. I 228). I find mine foreman Cox's explanation that the
section foreman had no recollection of the conditions that lead
to the alleged violation implausible. After all, the same
conditions lead to an imminent danger order of withdrawal, which
is hardly a garden variety incident at a mine. I infer that had
the section foreman been called as a witness his testimony would
have been adverse to the c~mpany (Tr. I 229-230).
I also discredit Laymance's testimony that cut 18 had not
been taken (Tr. I 236). I find Sampsel'& assertion to the contrary more believable and conclude cut 18 had been mined. I
again note the lack of any on-site attempt to convince Sampsel he
was wrong in his assessment of conditions on the 001 Section and
the failure of the section foreman to testify.
In addition to the violation pf section 75.220(a)(l), I
conclude the Secretaiy has established a violation of section
75.202(a). The standard requires, in pertinent part, that the
roof where persons work or travel be supported or otherwise
controlled to protect persons from falls. A violation of the
roof control plan does not necessarily establish in and of itself
that the roof was not supported or controlled to protect persons
from falls. Eight posts were present at ' I and, although ten were
required under the plan, the record does not establish that eight
would have failed to act as an effective breaker for the roof as
it began to collapse following the mining of cut 15A.
However, there were no posts at K. I agree with Sampsel
that the total lack of posts endangered the miners who set the
last posts in the sequence at L to the dangers of falling roof.
I have found that cut 18 was made. It is clear that the theory
of pillar removal was that the roof would collapse after the cuts
were made and that the collapse would be controlled by the
breaker posts. Sampsel persuasively explained that once cut 18
was taken and the roof began to collapse there was nothing to
prevent the fall from traveling into the belt entry and 9ver the
miners setting posts at location L (Tr. I 73, 86, 88).
Altizer'& explanation that there was no danger beca\ise
everyone would have been in the belt entry and crosscut or outby
them is not reassuring. The fact remains that without the posts
at K there was nothihg to binder the progression of a fall caused
by the removal of the pillar at cut 18. Nor do I find that the
previous roof bolting of the crosscut and belt entry lessened the
danger of roof fall to those setting the posts at L. As Altizer
himself noted, even ' given the presence of the roof bolts it is
probable the roof would not have remained in tact (Tr. I 221222). Indeed, the approved pillar plan contemplated that it

1883

would fall. For these reasons, I find that a violation of
section 75.202(a) has been established.
S&S and GRAVITY
I conclude also that the violations were S&S. The evidence
establishes the standards were violated. Moreover, both
violations presented a discrete safety hazard. Because of the
violations miners setting posts as required by the pillar plan
were subjected to the danger of falling roof.

Further, I conclude that it was reaaonably ·likely such a
hazard would have oc~urred. Sampsel's fear that the lack of
breaker posts at K would have facilitated a roof fall beyond K
into the belt entry where miners were installing posts at L was a
real one. Altizer, who was Cross Mountain's witness, testified
to the probability that with cuts 17 and 18 taken the roof would
fa~l.
Moreover, it is common knowledge that pillar removal is
one of the most dangerous operations in mining, as witnessed by
Cross Mountain's use on the section of remote controlled mining
equipment. The . remote controlled miner and bridge conveyor to
extract the pillars was described by Altizer as "much safer" than
a traditional extraction system and bespeaks the heightened
hazards of pillar removal (Tr. I 184).
Finally, any injury that would have occurred as a result of
miners being struck by falling roof while setting posts would
almost certainly have been serious, if not fatal.
The violations were also serious. They presented the hazard
of miners being struck by falling roof. Given the fact that cut
18 had been taken, that no posts had been set at K, and that the
roof was supposed to fall, I conclude that the lack of posts at K
meant that it was probable the fall would travel into area L
when miners were setting posts there.
lfEGLIGENCE
Sampsel testified that the section foreman oversaw pillar
removal on the section and had direct control over mining of the
pillars as it progressed (Tr. I 76, 81). It was the section
foreman who bore ov~rall responsibility for compliance with the
plan. In fact, as cross Mountain agreed, the section foreman
usually carried on his person a copy of the plan ('l'r. I 81, 83,
115). I credit sampsel's testimony.
I further conclude that the inherently dangerous nature of
pillar removal required of the section foreman a high standard of
care to insure there was compliance with the plan, and I agree
with Altizer that if cut 17 was mined the section foreman, who
would have been present, was obligated to set the posts at K
(Tr. I 213-214). Since I have found that, in fact, cut 17 was

1884

mined and that the posts at K were not set, it follows that the
section foreman did not meet the standard of care the situation
demanded.
The thrust of the testimony of Cross Mountain's witnesses
was that the presence of adverse mining conditions (i.e., draw
rock) caused the section foreman to discontinue mining before
the mining sequence was completed. It may be that the crew
encountered draw rock on the section. However, because cuts 17
and 18 were mined, the record suggests that rather than abandon
the mining sequence the foreman chose to mine to its end. Given
the high standard of care required of the section foreman, I find
that he was highly negligent in failing to insure compliance with
the plan and in failing to prevent the roof conditions from
exposing miners under his direction to the hazards of roof fall.
POCKET NO. SE 93-255
SETTLED VIOLATIONS
Citation No.
3824922

Date
10/21/92

30 C.F.R.

§

50.20(a)

Proposed Penalty

Settlement

$300

$225

The Secretary alleges that Cross Mountain failed to report
Counsel
for the Secretary stated that, although the inspector found the
violation of section S0.20(a) was the result of Cross Mountain's
"high" negligence, in fact the company was moderately negligent
and the secretary had agreed to modify the citation accordingly
(Tr. I 13). I accepted the settlement (Tr. I 14).
an injury within ten days as required by the standard.

Citation No.

Date

3824776

1/14/93

30 C.F.R.

§

70.lOO(a)

Proposed Penalty

Settlement

$690

$0

'l'he Secretary alleged that a respirable dust sample for
a designated occupation indicated a miner was working in an
environment containing excessive respirable dust. At the
commencement of the hearing, Cross Mountain's motion to vacate
the citation was pending. Cross Mountain maintained the alleged
violation was based on improperly obtained respirable dust
samples. counsel for the Secretary stated that the Secretary
did not oppose the motion and that MSHA agreed to vacate the
citation (Tr. I 14). I dismissed the Secretary's petition with
respect to the alleged violation on the understanding the
citation was or would be c;;('a cated. .lsL.
QTHER CIVIL PENALTY CRITEBIA
The history of previous violations at the No. 6 Mine
indicates that in the 24 months prior to October 14, 1992

1885

(the date of the first alleged violation found in this case),
471 violations were assessed and paid (Gov. Exh. 6). (The
computer printout listing the history of previous violations
was submitted post-hearing pursuant to the agreement of the
parties (Tr. II 297-299).) Of these violations, four were
violations of section 75.902 , two were viplations of section
75 . 202(a), and 18 were violations of section 75.220. There
were no previous violations of section 75.603 . I find that
the overall applicable history of previous violations at the
mine was large and that the history of previous violations of
the roof control plan was such as to moderately increase the
civil penalty that must be assessed for the violation of
section 75.220(a)(l).
The parties have stipulated that the mine is large in
size and that Cross Mountain's ability to continue in business
will not be affected by the assessment of a "reasonable
penalty" for each violation (Stipulation 5).
I find tha:t Cross Mountain exhibited good faith in
attempting to achieve rapid compliance after being cited for
the violations.
CIYIL PENALTIES
The Secretary has proposed a civil penalty of $4,400 for
the violation of section 75.902. The proposal was based upon a
special assessment made as a result of the S&S and unwarrantable
findings that accompanied the violation. In view of my findings
that the Secretary has failed to establish the S&S and unwarrantable failure findings, the proposal is highly excessive.
The violation was serious and.Cross Mountain was negligent
in allowing the violation to exist. The highest penalty previously paid for a violation of section 75.902 was $178. Given
the fact that the No . 6 Mine is large in size and has a large
history of previous violations, I find a civil penalty of $300 to
be appropriate.
The Secreta.r y has propo'sed a civil penalty of $6, 500 for
the violation of section 75.603. The proposal was based upon a
special assessment made as a ~esult of the S&S and unwarrantable
findings that accompanied the violation. I have upheld those
findings. Further, I have found the violation was serious and
was caused by Cross Mountain's more than ordinary negligence.
Given these factors and the criteria previously mentioned
relating to the mine size and overall history of previous violations, as well as cross Mountain's ability to continue in
business and good faith abatement, I conclude a civil penalty
of $3,000 is appropriate. This is far more than Cross Mountain
has paid for any previous violations and the amount is meant

1886

to alert the company to the fact that SfiS and unwarrantable
violations must be deterred.
The Secretary has proposed civil penalties of $7,000 each
tor the violations of section 75.202(a) and section 75.220(a)(l).
The proposals were based upon the violations having been issued
in association with an imminent danger order. The order was not
before me; however, I have found the violations were very serious
and in allowing them to exist Cross Mountain was highly negligent. Given these factors, and the other factors previously
mentioned, I conclude civil penalties of $4,000 appropriate -for
the violations . Finally, based on Cross Mountain's history of
previous violations of its roof control plan, the assessment for
the violation of section 75.220(a)(l) is increased by $300 to
$4,300.

ORDER
POCKET NO. SE 93-108
Within 30 days of the date of this decision, the secretary
is ORDERED to modify Citation No. 3824679 by deleting the S&S
and unwarrantable findings and to indicate the citation is
issued pursuant to section 104(a) of the Act. 30 u.s.c. §814(a).
Cross Mountain is ORDERED to pay a civil penalty of $300 for
the violation of section 75.902.
DQCKET NO. SE 93-244
The settlement of Citation Nos. 3824750 and 3824751 is
APPROVED. Within 30 days of the date of this decision, the
Secretary is ORDERED to modify the citations by deleting the
"high" negligence findings and by substituting findings of
"moderate" negligence. Cross Mountain is ORDERED to pay
civil penalties of $500 for each violation. In addition, the
settlement of Citation No. 3824775 is APPROVED, within 30 days
of the date of this decision, the Secretary is ORDERED to vacate
Citation No. 3824775, if he has not already done so.
DOCKET NO. SE 93-245
Citation No. 3824983 is AFFDUmD. Within 30 days of the
date of this decision Cross Mountain is ORDERED to pay a civil
penalty of $3,000 for the violation of section 75.603. In
addition, Citations No. 3824998 and 3824999 are AFFIRllBD and
within 30 days of the date this decision cross Mountain is
ORDERED to pay a civil penalty of $4,000 for the violation of
section 75.202(a) and of $4,300 for ·the violation of section
75.220(a)(l).

1837

POCKET NO. SE 93-255
The aettlement of Citation No. 3824922 is APPROVED. Within
30 days of the date of this decision the Secretary is ORDERED to
11odify the citation by deleting the "high" negligence finding and
substitute a finding of "moderate" negligence and Cross Mountain
is ORDERED to pay a civil penalty of $225 for the violation of
section 50.20(a) In addition, the settlement of Citation No.
3824776 is APPROVED. Within 30 days of the date of this decision
the Secretary is ORDERED to vacate Citation No. 3824776, if he
has not already done so.

Upon compliance with these orders these matters are
DISMISSED.

David F. Barbour
Administrative Law Judge
Distribution:
Brian w. Dougherty, Esq . , Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail)
Leona Power, Esq., Edward H. Adair, Esq., Reece and
Lang, P.s.c., 400 South Main st., P. O. Drawer 5087,
London, KY 40745-5087 (Certified Mail)
\lh

1888

PBDBRAL JUBB SA!'BTY MID JIBAL'l'll RBVXBW COKIUSSXOH
1244 SPEER BOULEVARD #280
DENVER, 00 80204-3582
(303) 844-5267/FAX (303) 844-5268

.AUG 3 1 1994
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 92-435-M
A.C. No. 45-03085-05507
Docket No. WEST 92-734-M
A.C. No. 45-03085-05508

v.

Docket No. WEST 93-24-M
A.C. No. 45-03085-05509
WALLACE BROTHERS, INC.,
Respondent

Docket No. WEST 93-594-M
A.C. No. 45-03085-05510
Wallace Portable Crusher #1
DECISION

Appearances:

Jay A. Williamson, Esq., Office of the Solicitor,
U.S. Department of Labor, Seattle, Washington,
for Petitioner;
James A. Nelson, Esq., Toledo, Washington,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges Respondent Wallace Brothers, Incorporated ("Wallace") with violating safety reg\llations
promulgated under the Federal Mine Safety and Health Act, 30
u.s.c. § 801, et~ (the "Act").
A hearing was held in Seattle, Washington.
filed post-trial briefs .

The parties

JURISDICTIONAL

Threshold Issues
Wallace owns and operates a portable crusher. Wallace also
owns a rock pit located along the Cowlitz River, a few miles
south of Toledo, Washington. Crushing operations take place at
this pit intermittently, and may last for one or two weeks, or

1889

may extend up to two or three months, depending upon whether they
are stockpiling the crushed rock or crushing for a .specific job.
The majority of the ·c rushing operations take place at various
rock pits owned by the Federal Government, the state of Washington, individual counties, or private individuals. Wallace bids
on contracts, either as a prime contractor or sub-contractor, on
contracts where rock is needed to build logging roads on government property, both federal and state; on timber company property; state and local road construction projects; and various other
jobs where crushed rock is needed. The length of time Wallace
spends at each location depends upon the amount and type of rock
produced, and varies from two or three days to several months.
The size of the crew used in ' operating the crushe r is normally
three men.
In this case, Wallace raises the i~sue of whether its portable crusher is a mine within the meaning of Section 3(h) (1) (c)
of the Act. The equipment crushes the rock taken from the pit.
After being crushed, the rock is then taken several hundred yards
to an asphalt plant to be further processed.
DISCUSSION
Section 3(h) (1) of the Act defines a "coal or other mine" as
(A} an area of land from which minerals are
extracted in nonliquid form or, if in liquid
form, are extracted with workers underground;
(B) private ways and roads appurtenant to
such area, and (C) lands, excavations, underground passageways, shafts, slopes, tunnels
and working structures, facilities, equipment, machines, tools, or other property,
including impoundments, retention dams, and
tailing ponds, on the surface or underground,
used in, or to be used in, or resulting from,
the work of extracting such minerals from
their .natural deposits in nonliquid form, or
if in liquid form, with workers underground,
or used in, or to be used in, the milling of
such minerals, or the work of preparing coal
or other minerals, · and includes custom coal
facilities.
The definition is not limited to an area of land from which
minerals are extracted but, as is noted, it also includes facilities, equipment, machines, tools, and . other property used in the
extraction of minerals from their natural deposits and in the
milling or preparation of the minerals. See, ~' Donovan v.
Carolina Stalite Co., 734 F.2d 1547 (D.C. Cir. 1984); Oliver M.
Elam, Jr. Co., 4 FMSHRC 5 (January 1982). In determining cover-

1890

age, we must give effect to Congress's clear intention in the
Mine Act, discerned from "text, structure, and legislative history." Coal Employment Project v. Dole, 889 F.2d 1127, 1131
(D.C. Cir. 1989) . congress determined to regulate all mining
activity. The Senate Committee stated that "what is considered
to be a mine and to be regulated under this Act [shall] be given
the broadest possible interpretation, and .•• doubts [shall] be
resolved in favor of inclusion of a facility within the coverage
of the Act. 11 s. Rep. No. 181, 95th Cong., 1st Sess. 14 (1977),
reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 602 (1978).
This broad interpretation has been adopted by the courts.
See, ~' Carolina Stalite Co., supra at 1554. The definition
of "coal or other mine" has been applied· to a broad variety of
facilities that are not "an area of land from which minerals are
extracted . " See, ~' Harman Mining Corp. v. FMSHRC, 671 F.2d
794 (4th Cir. 1981) (operator loaded previously extracted and
prepared coal onto railroad cars for transportation); stoudt's
Ferry, 602 F.2d 589 (3d Cir. 1979) (operator separated sand and
gravel from material that has been dredged from a river by the
Commonwealth of Pennsylvania); Carolina Stalite, supra at 1547
(D.C. Cir. 1984) (operator heated previously mined slate in a
rotary kiln to create a lightweight material used in making
concrete blocks.
In a recent case, Commission Judge August F. Cetti held that
the portable crusher cited by MSHA and used to crush rock into
smaller usable sizes "is properly characterized as the "work of
preparing coal or other minerals.
Fred Knobel, 15 FMSHRC 742,
744 (April 1993).
The fact that the rock, after being crushed, is removed to
an asphalt plant several hundred yards away to be further processed does not avoid the initial coverage of the Mine Act.
Wallace's objections to MSHA's jurisdiction are REJECTED.

Docket No. WEST 93-24-M
Citation No. 3924000
This citation alleges a non-S&S violation of 30 C.F.R.
The citation reads:

§ 56 . 18002. 1

The regulation provides:
§

56.18002

Examination of working places.

1 891

A person designated by the operator was not
examining each working place at least once a
shift for conditions which may adversely affect safety or health. A record of such examinations was not kept at the plant.
The Evidence

When MSHA Inspector Pederson initiated his inspection on
July 21, he requested to see the records relating to an examination of working places kept by the operator pursuant to
§ 56.18002.
(Tr. 129, 134). Foreman Dan Fischer said the areas
had been examined and records kept but such records were at home
or in his truck.
(Tr. 130).
·
The Inspector gave the operator the chance to produce the
records until the time he ended the inspection. When the records
were not produced, Inspector Pederson issued a citation.
(Tr.
131, 132, 354-355). The Inspector also informed the foreman that
if the records were produced at a later date, he would vacate the
citation. (Tr. 132). The foreman did not recall this offer but
I credit the Inspector's version since his recollection is
confirmed by his notes. (Tr. 534, 552). In any event, the
records were never produced even at the time of the hearing.
(Tr. 132, 550, 552).
(a) A competent person designated by the
operator shall examine each working place at
least once each shift for conditions which
may adversely affect safety and health. The
operator shall promptly initiate appropriate
action to correct such conditions.
(b) A record that such examinations were
conducted shall be kept by the operator for a
period of one year, and shall be made avail~
able for review by the Secretary or his
authorized r~presentative.
(c) In addition, conditions that may present an imminent danger which are noted by
the person conducting the examination shall
be brought to the immediate attention of the
operator who shall withdraw all ·persons from
the area affected (except persons referred to
in section 104(c) of the Federal Mine Safety
and Health Act of 1977} until the danger is
abated.

1892

Discussion

I find that Respondent's crusher foreman Dan Fisher, a competent person designated by the operator, examined the working
places.
(Tr. 515, 546-54 7) •
However, Section 56.18002(b) requires that the record of
such examinations be made available for review by the Inspector.
Since the records were not available for review, citation No.
3924000 should be affirmed and a penalty assessed.
Docket No. WEST 93-435-M
citation No. 3640530
§

This citation alleges a non-S&S vio.lation of 30 c. F .R.
56.1000. 2 The citation reads:
The mine operator failed to notify MSHA field
off ice of the opening and closing and the location of their portable crushing operation.
The operator in the past has moved to several
locations and never informed MSHA of the approximate opening and closing dates or the
location as required by the standard.
(Ex.
P-3) .

2

The regulation provides:
§

56.1000

Notification of commencement of
operations and closing of mines.

The owner, operator, or person in charge of
any metal and nonmetal mine shall notify the
nearest Mine Safety and Health Administration
and Metal and Nonmetal Mine Safety and Health
Subdistrict Office befo·r e starting operations, of the approximate or actual date mine
operation will commence. The notification
shall include the mine name, location, the
company name, mailing address, person in
charge, and whether operations will be continuous or intermittent.
When any mine is closed, the person in
charge shall notify the nearest subdistrict
off ice as provided above and indicate whether
the closure is temporary or permanent.

1893

With respect to this citation, Wallace renews its objections
previously considered under "Threshold Issues." The same rulings
apply.
Wallace also asserts that which constitutes a "mine opening"
and "mine closing" is a matter left to the owner, operator, or
person in charge of a metal and nonmetal mine.
I disagree. Section 56.1000 requires that MSHA be notified
"before starting operations." Further, MSHA shall be notified
"when any mine is closed. "
In reply to Wallace's questions: The regulations are explicit . A portable crusher such as the Wallace crusher is
required to report to the nearest MSHA office each time it moves
from one open pit (mine) to another operi pit (mine). This is
true regardless of the number of times the crusher moves each
year.
On the merits, Wallace urges there is ample evidence to
prove that its· Crusher No. 1 did report to MSHA whenever it moved
from one pit to another. I disagree. The citation in issue here
was issued pursuant to an audit initiated on April 25, 1991, and
concluded on May 1, 1991. An audit conducted by MSHA reviews
various forms required to be kept by an operator subject to the
Mine Act.
(Tr. 29 - 30~ 54).
Inspector Pederson testified in detail as to how notif ications are handled in the MSHA field office.
(Tr. 39-40, 204,
363-363).
The Secretary argues that since the notification form is not
in the permanent file or the Inspector's file of the MSHA (Bellevue) office, then no such notification was sent.

Discussion
In resolving these issues, I conclude Wallace did not file
the requisite notices with the MSHA office. Mr. Wallace, in a
discussion with the Inspector, stated that "he did not have time
to go making out all kinds of paperwork." He just did "not want
to bother with it."
(Tr. 33). Mr. Wallace testified at length
in the hearing but no evidence was offered to rebut his
statements.
It is further apparent from even a casual reading of the
transcript that Mr. Wallace relies to a large degree on his
accountants.
It is accordingly significant that when counsel for
the company searched the accounting records, he found no notification to MSHA.
(Tr. 249). In addition, no one protested on
behalf of the company when the citation was originally issued.
(Tr. 33, 492-493).

1894

Finally, the company accountant, Mr. Cournyer, agrees the
MSHA forms (Ex. R-2, R-3,and R-4) were not used until after the
May 1, 1991, audit. (Tr. 249-250).
Notification required by MSHA can be important as it may
relate to safety matters as well as termination of outstanding
violations.
In sum, Citation No. 3640530 should be affirmed and a penalty assessed.
Docket No. WEST 93-594-M
citation No. 3923999
§

This citation alleges a non-s&s violation of 30 C.F.R.
56.12028. 3 The citation reads:
The operator did not have a continuity and
resistance of the grounding system tested and
a record kept of such a test. This test
would assure that a ground path for fault
current was intact.
The Evidence

Inspector Pederson requested a copy of the operator's
electrical testing records from Foreman Dan Fisher. Specifically, he requested a copy of the continuity and resistance of
the plant's electrical system. (Tr. 135, 136).
The purpose of these tests is to assure the operator and any
of his employees that the integrity of his electrical cables, the

3

The regulation provides:
§

56.12028

Testinq qroundinq systems.

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 shal'l be made available on a request
by the Secretary or his duly authorized
representative.

1 895

wiring connections, and the power system itself, is safely installed. If a fault occurred, a full current would have a place
to return to the generator via the equipment ground conductor.
(Tr. 136; Ex. P-15).
Mr. Fischer said he did not have any records at all.
Inspector Pederson found nothing hazardous with the system
when he tested it.
(Tr. 138).
Discussion
Wallace, in its brief, raises the defense that it actually
conducted the systems tests and merely failed to maintain a
record of the most recent tests.
Wallace's argument lacks merit. The regulation provides
that a "record of the most recent tests shall be made available
on a request by the Secretary or his duly authorized representative." Since the record was not made available, this citation
should be affirmed.
An appropriate penalty will be discussed hereafter.
Docket No. WEST 93-594-M
Citation No.4127301
§

This citation alleges a non-S&S violation of 30 C.F.R.
56.14107(a). 4 The citation reads:

4

The regulation provides:
§

56.14107

Movinq machine parts.

(a) Moving machine parts shall be guarded
to protect persons from contacting gears,
sprockets, ' chains, drive, head, tail, and
takeup pulleys, flywheels, couplings, shafts,
fan blades, and similar moving parts that can
cause injury.
(b) Guards shall not be required where the
exposed moving parts are at least seven feet
away from walking or working surfaces.

1896

Two idler pulleys on the transfer conveyor
return belt, between the shaker screen and
conveyer to load out bunker and one side of
the self-cleaning tail pulley opening, did
not have guards installed to prevent incidental contact. No foot-traffic was observed
within area 1 during operations.
Discussion
The issue presented here by Respondent is whether the
exposed moving parts were within seven feet of the working
surfaces.
I am persuaded here by Inspector Pederson's detailed description of the unguarded tail pulley and idler rollers. These
were not guarded on the open side where a person could be exposed. Further, the tail pulley was about a foot off the ground.
There were also a~ditional unguarded parts 3.5 to 4 feet off the
ground.
(Tr. 141~149). Exhibit P-16 is a drawing (not to scale)
ill~strating the conveyor.
On the other hand, Mr. Wallace did not know which pulleys
the Inspector was testifying about.
(Tr. 505). In addition, he
did not know if the tail pulley had a guard on it.
(Tr. 506507).
As a result of the above evidence, I am not persuaded by
Mr. Wallace's testimony that the return roller on the belt was
"right close to seven or maybe over a little bit [above]."
(Tr. 446) •
Citation No. 4127301 should be affirmed and penalty
assessed.
Docket No. WEST 93-594-M
Citation No. 4127302
§

This citation alleges an S&S violation of 30 C.F.R.
56.11027. 5 Prior to the hearing, the Secretary modified the
s

The regulation provides:

S 56.11027

Scaffolds and working platforms.

Scaff olds and working platforms shall be of
substantial construction and provided with
handrails and maintained in good condition.

1 897

citation to allege a violation of 30 C.F.R. § 56.11002, which
provides:
§

56.11002

Handrails and toeboards.

Crossovers, elevated walkways, elevated
ramps, and stairways shall be of substantial
construction provided with handrails, and
maintained in good condition. Where necessary, toeboards s hall be provided.
Discussion
Leave to amend "shall be freely given when justice so
requires." Foman v. Davis, 3 71 U.S. 17~, 182, 82 s. Ct. 227. 9
L.Ed 2d 222 (1962). Rule 15(a) FRCP; Cyprus Empire, 12 FMSHRC
911, 916 (May 1990).
On the r~cord here it is clear that a portion of the railing
was missing fr0m the side of the dragline. It is uncontroverted
that the walkway was used by the operator of the dragline to go
to the engine compartment of the crane.
(See Ex. R-5 through
R-10). The walkway itself was 15 feet long and 6 feet of it
lacked a railing. The walkway was five to seven feet above the
ground. If a person were to fall, he was on the exposed side and
could fall to the ground.
(Tr. 155-158, 322, 337, 435-455, 508509).
(See Exhibit R-5 marked to show missing rail.)
The principal focus of Respondent's argument (Brief, pp. 26 ,
27) is that no violation of 30 C.F.R. § 56.11002 has been
established.
Wallace argues the dragline violation does not come within
56.11002. Contrary to this view, § 56.11002 is explicable if
the facts fall within the prohibition of the regulation.
In this
case, the dragline operator used the walkway to service the engine .
In this situation, he was exposed to the hazard.
§

Wallace also argues the walkway located at least five feet
above the ground is not "elevated" within the meaning of 30
C.F.R. § 56.11002.

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.

1898

The Code of Federal Regulations does not define "elevated."
Accordingly, it is appropriate to consider the dictionary
definition:
"Elevated" 1. raise up above the ground or
other surface (an - highway). Webster's New
Collegiate Dictionary, 1979 at 365.
Wallace further argues that the section of the missing
guardrail was not along the path used by the dragline operator to
reach to the engine compartment. {Tr. 451-451). Rather, it is
argued that Mr. Wallace correctly stated the evidence when he
testified "and, when you got the door open, the door covers the
end of it where you can't fall off it either." (Tr. 454).
I reject this argument. Exhibit R-5 shows the portion of
the rail that was missing. A door could not cover such an area.
Wallace further argues any violation of Citation 4127302 is
not "significant and substantial."
A "significant and substantial" violation is described in
Section 104{d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause,
and effect of a coal or other mine safety or health hazard." 30
C.F.R. § 814(d) (1). A vio~ation 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:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of Labor must prove: {1) the underlying
violation of a mandatory safety standard; {2)
a discrete safety hazard--that is, a measure
of danger to saf ety--contributed to by the
violation; (3) a reasonable likelihood that
the hazard contributed to will result in an
injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious nature .
In United States Steel Minina Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated:

1899

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).
(Emphasis in original.)
The question of whether any particular violation is S&S must
be based on the particular facts surrounding the violation. Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 (April 1988);
Youghiogheny and Ohio Coal company, 9 FMSHRC 2007 (December
1987) . In addition, any determination of the significant nature
of a violation must be made in the context of continued normal
mining operations. National Gypsum, supra, at 329. Halfway,
Inc., 9 FMSHRC 8, 12 (January 1986); U. S. Steel Mining Co., 7
FMSHRC supra, at 1130 (August 1985).
Concerning the S&S designation: it is clear that there was
an underlying violation of 130 C.F.R. § 56.11002. A measure of
danger, i.e . , the violation contributed to the discrete hazard of
falling off the walkway to the ground below, a distance of five
to seven feet.
(Tr. 157-158). The unrebutted testimony of Inspector Pederson that the injuries reasonably likely to occur,
were there to be a fall, would be a broken ankle, broken leg,
broken back, sprains or bruises - all reasonably serious injuries.
(Tr. 164-165).
Finally, the remaining issue is the third paragraph of the
Mathies formulation.
Inspector Pederson observed that handrails prevent a person
from falling off the platform where a worker could lose his balance and fall.
(Tr. 160-161). Given the fact that there was a
six-foot length of walkway lacking a handrail worsens this potential since if a worker stumbled, there would be nothing he could
reach to prevent the fall.
(Tr. 161, 164). In addition, there
was no planking along the entire route. The lack of planking
increases the likelihood of falling. The dragline was being
operated near water. Materi~l or water on the walkway could make
normal usage slippery.
(Tr. 325-326).
The evidence establishes the walkway is used each day the
mine is in operation.
(Tr. 160, 459, 508).
The record establishes that there .was a reasonable likelihood of an injury when viewed in the context of continued mining
operations.
For the above reasons, the citation and the S&S designation
should be affirmed.

1900

Docket No. WEST 93-734-M
Citation No. 3640554
§

This citatio~ alleges a non-S&S violation of 30 C.F.R.
56.5050(b). 6 The citation reads:
on day shift 5/29/91, the primary crusher
operator's exposure to mixed noise levels
exceeded unity (100%) by 1.6776 times

6

The regulation provides:
PERMISSIBLE NOISE EXPOSURES

Duration per day, hours of exposure

Sound
level
dBA
slow
response
90
92
95

8 . ................................... .
6 • ••••••••••••••••••••••••••••••••••••

4 . ...•.......................••.......

PERMISSIBLE NOISE EXPOSURES--CONTINUED

Duration per day, hours of exposure

Sound
level
dBA
slow
response

3 . ...•.•••..•.••..••...•••.....•••.•..
1 . ................................... .

97

1 . ....• .................. .. ... ........

100
102
105

1/ 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1/4 or less ......••....•...•....•.....

110
115

1 1/2 . ............................... .

S 56.5050

Exposure limits for noise.

(b) When employees' exposure exceeds that
listed in the above table, feasible administrative or engineering controls shall be
utilized . If such controls fail to reduce
exposure to within permissible levels, personal protection equipment shall be provided
and used to reduce sound levels within the
levels of the table.

1901

(167.76%) as measured with a Quest dosimeter.
This is equivalent to an 8-hour exposure to
92.8 dBA. Personal hearing protection was
being worn. Feasible engineering or administrative controls were not being utilized to
eliminate the need for hearing protection.

The Evidence
On May 29, 1991, MSHA's Inspector Pederson measured the
noise level on Respondent's portable crusher while it was
processing s and and gravel.
(Tr. 68-70, 368-3 71).
The Inspector placed the microphone of the dosimeter on the
lapel of the crusher operator in a manner consistent with his
training as provided by MSHA and the ANSI standards .
(Tr. 75,
374-375).
The dosimeter had been properly calibrated as of March 27,
1991.
(Tr. 76-79, 301-303, 375). The calibrator used by the
Inspector had also been properly calibrated.
(Tr . 85; Ex . P-8).
After the inspection, the calibration was rechecked and found to
be accurate.
(Tr . 91).
The crusher operator wore the dosimeter from approximately
7:30 a.m. until 4:30 p . m• •
(Tr. 93). This time period included
two hours when the crusher was not operating.
(Tr. 92, 94-95,
300) .
The noise level on Charles Warner, the crusher operator,
measured 173.41 percent.
(Ex. P-6) . This level of exposure
exceeded permissible levels in 30 C . F.R. § 56 . 5050 despite the
two hours of down time.
(Tr. 97).
In addition, the reading was
c onsistent with the spot readings obtained from the sound level
meter.
(Tr . 97-98).

Discussion
Wallace offered no contrary evidence as to the noise levels.
However, Respondent argues it satisfies the requirements of the
regulation by having the operator wear personal hearing protection even if feasible administrative or engineering controls
exist which are not utilized by the operator.
Wallace's arguments lack merit. The plain wording of Section 56 . 5050(b) requires that when exposure to employees exceeds
- permissible limits, feasible administrative or engineering controls shall be utilized. In addition, if such controls are inadequate, then personal protective equipment is the option.

190 2

Wallace also claims the above ruling denies equal protection of the law since, in effect, it cannot use personal
protective equipment ahead' of feasible administrative or engineering controls as provided in 30 C.F.R. § 71.805 relating to
coal mines.
I am not persuaded by the operator's claim. Section
71.805(2) (ii) [relating to coal mines] merely directs that
personal protective devices shall be made available to miners.
When the coal operator files a plan with MSHA, Section
71.805(2) (iv) requires that MSHA be advised of "administrative
and engineering controls that it [the operator] has instituted to
assure compliance with the standard."
! ' believe the parallel regulations .basically set the same
requirements.
Wallace also raises the issue of whether feasible engineering controls exist which could be used to reduce the. noise
exposure to the operator of the primary crusher to within permissible limits. In Callahan Industries, Inc., 5 FMSHRC 1900
(November 1983), a leading Commission decision, it was held that
economic as well as technological factors must be taken into
account in determining whether a noise control is "feasible"
under the standard. However, the Commission specifically rejected a "cost-benefit analysis" in determining whether noise
control is required.
The evidence here shows that Inspector Pederson, an MSHA
Inspector for 17 years, has inspected hundreds of portable
crushers. The Inspector identified the main source of noise as
that coming from the jaw crusher.
(Tr. 101).
MSHA found that the most effective and frequently used noise
control for employees operating such a crusher is an acoustically
treated control booth.
(Ex. P-9). In the Inspector's opinion,
the noise level experienced by the operator could easily have
been reduced 10 decibels in this case.
(Tr. 113-114). The Inspector estimated the cost of building such a booth to be about
$2,000.00.
Wallace's own witnesses · indicated there was a reduction of
almost eight decibels through the .. use of a booth. The cost
estimated by the witness was $2,410.00.
(Tr. 116, 411-412).
The evidence clearly establishes that economically and
technologically feasible controls exist that would bring the
noise exposure of the crusher operator to levels below the
maximum specified in 30 C.F.R. § 56.5050.
Citation No. 3640554 should be AFFIRMED.

1903

civil Penalties
Section llO(i) of the Act, 30 u.s.c. § 820(i), mandates
several criteria to be used in assessing civil penalties.
Wallace appears to be a small operator. In addition, there
is no evidence concerning the operator's financial· condition. In
the absence of any facts to the contrary, I find that the payment
of penalties will not cause the operator to discontinue its business. Asphalt, Incorporated, 15 FMSHRC 2206 (October 1993);
Associated Drilling, Inc., 3 IBMA 164 (1974); Buffalo Mining Co.,
2 IBMA 226 (1973).
The operator has an excellent prior history with a total of
only six violations from May 29, 1989. ·(Exs. P-12, P-13).
The operator was negligent since it should have known of its
obligation to comply with the various regulations.
While the gravity for the single S&S violation is high, the
gravity is low\ for the reporting violations. I further consider
the moving machine parts violation (No. 4127301) to be
"moderate."
Wallace demonstrated statutory good faith in attempting to
achieve prompt abatement of the violative conditions.
Considering all of the statutory criteria, I believe the
penalties set forth in the order of this decision are
appropriate.
Accordingly, I enter the following:
ORDER
1.
Citation No. 3924000 is AFFIRMED and a civil penalty of
$50.00 is ASSESSED .
2.
Citation No. 3640530 is AFFIRMED and a civil penalty of
$20.00 is ASSESSED.
3.
Citation No. 3923999 is AFFIRMED and a civil penalty of
$50.00 is ASSESSED.
4.
citation No. 4127301 is AFFIRMED and a civil penalty of
$50.00 is ASSESSED.
5.
Citation No. 4127302 i~ AFFIRMED and a civil penalty of
$100.00 is ASSESSED.

1904

6.
Citation No. 3640554 is AFFIRMED and a civil penalty of
$20.00 is ASSESSED.

Law Judge

Distribution:
Jay Williamson, Esq., Office of the Solicitor, U.S. Department of
Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212
(Certified Mail)
James A. Nelson, Esq., 205 Cowlitz, P.O . Box 878, Toledo, WA
98591 (Certified Mail)

ek

1905

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

AUG 3 1 1994
CIVIL PENALTY PROCEEDING

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

Docke t No. WEST 92-725
A. C. No. 05-003 01-03814R
Dutch Creek

v.
MID-CONTINENT RESOURCES, INC.,
Respondent

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 93-99
A.C. No. 05-00301-03817A
Dutch Creek Mine

v.
WILLIAM L. PORTER, employed by
MID-CONTINENT RESOURCES, INC.
Respondent
DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.C.,
Glenwood Springs, Colorado,
for Respondent.

Before:

Judge Cetti

These cases are before me upon petition for assessment of
civil penalties under the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801 et ~ (1988) ("Mine Act" or "Act"). The
Secretary of Labor (Secretary) seeks civil penalties from
Respondent, Mid-Continent Resources, Inc. ("Mid-Continent") and
individually under Section llO(c) of the Mine Act from William L.
Porter, employed by Mid-Continent.

1906

The" issues in Docket No. WEST 92-725 are whether MidContinent violated the Dutch Creek Mine's ventilation plan and,
if so, whether that violation was of a significant and substantial ("S&S") nature and caused by Mid-Continent's unwarrantable
failure to comply with the ventilation plan. Also in issue in
the consolidated Docket No. WEST 93-99 is whether William L.
Porter was individually liable under Section llO(c ) of the Mine
Act, 30 u.s.c. § 820{c) for knowingly authorizing, ordering or
carrying out the violation. 1

II
STIPULATIONS
1. All mining operations at Mid-Continent Coal Basin Mine,
the Dutch Creek Mine, which includes the M-Seam and headgate
entries of the 211 longwall section, were permanently shutdown o n
January 25, 1991. "Shutdown" as used herein means "not producing
coal."
2. No mining operations have been conducted in the Dutch
creek Mine or any of its several mining sections from and after
January 25, 1991. "No mining operations" for purpose of \ this
stipulation means "not producing coal." No coal has been produced at the Dutch Creek Mine after January 25, 1991.
3. On February 12, 1992, Mid-Continent filed a petition
under Chapter 11 of the Bankruptcy Act in the United States
Bankruptcy Court for the District of Colorado, as Case No. 9211658-PAC.

III
Following an ABC inspection of Respondent's Dutch creek
Mine, Inspector Phillip R. Gibson issued the Section 104(d) (2)
order in question - Order No. 3586609. The order in essence
charges Mid-Continent with the violation of 30 C.F.R. § 75 .316
for failing to comply with the mines approved ventilation plan

Section llO{c) of the Mine Act provides:
Whenever a corporate operator violates a
mandatory health or safety standard ... , any
director, officer, or agent of such corporation who knowingly authorized, ordered, or
carried out such violation,
shall be
subject to , the same ~ivil penalties, fines,
and imprisonment that may be imposed upon a
person under subsections (a) and (d).

1907

along t~~.No. 6 belt conveyor entry. 2 The plan at the time of
inspection in pertinent part required that permane.n t stoppings be
built and maintained in the connecting crosscuts between the belt
entry· and the return entry and that the regulator was to be left ·
open so that air could exit out the lower entry.
The alleged violation of 30 C.F.R. § 75.316(1991) is
described by Inspector Gibson in the Order in question as
follows:
The operator's approved ventilation system
and methane and dust control plan was not
being complied with along the No. 6 belt
conveyor entry. A permanent stopping (wooden
block) erected between the belt entry and the
return entry was partially dismantled; leaving an opening 40 inches in height and 96
inches in width. The metal pan constructed
regulator erected across the lower entry
(return) was closed off with metal pans and
over~aid with brattice cloth.
The down dip
inby \end of the overcast erected across the
belt entry at the protected site of the 2nd
extension of the 212 longwall section tailgate was not closed but left open. The
opening was 5 feet high and 5 feet wide. The
operator's approved ventilation plan supplement, dated January 15, 1991 addressing the
211 longwall extension, disclosed that permanent stopping were to be built and maintained in the connecting crosscuts between
the belt entry and the lower return entry.
The regulator was to be left open so that the
air could exit out the lower entry. These
combined conditions resulted in the general
body of air in the belt entry containing 1.0
percent methane from the overcast to and
including the headgate corner of the 211
longwall section, about 700 feet inby the
overcast. A brattice cloth was installed
across the inside of the overcast which
limited the airflow toward the 211 longwall
section.

2

Although 30 C.F.R. § 75.316 on ·its face does not spell out
the requirement that an operator must comply with its ventilation
plan, the Commission in Jim Walter Resources, Inc., 9 FMSHRC 903
(May 1987) held that "Once the plan is approved and adopted, these
provisions are enforceable as mandatory standards."

1908

I C·;t;~dit the testimony of Inspector Gibson and Mr. Denning.
On the basis of their testimony I find that the conditions
described in the above quoted citation existed at the mine at the
time of the inspection with one minor modification. The modification being that the inspectors bottle sample, which is considered more accurate than the meter reading, gave a reading of .9
methane.
The record clearly established that some time after January 25, 1991, when the mine stopped producing coal, changes were
made in the ventilation along the No. 6 belt conveyer entry and
that as a result of those changes the mine was no longer in
compliance with the mine ventilation plan that was in effect at
the time of the inspection. This noncompliance included the
partial dismantling of a stopping required by the plan in the
connecting crosscuts between the belt entry and the return entry
and the closing off of a regulator erected across the lower entry
return that was required by the plan to remain open.
The citation was timely abated by repairs and adjustments
that brought the mine into compliance with the ventilated plan.
This abatement included repairing the stopping and the hole in
the overcast, and adjusting the regulator across the lower entry
to all'ow passage of air through the regulator.
Mid-Continent's primary defense was that the ventilation
plan was not in effect at the time of inspection because the mine
was no longer producing coal. Mid-Continent points out that the
mine's ventilation plan was written and approved while the mine
was actively producing coal prior to the January 25, 1991, "shutdown" and contends that the plan had no proper application to the
idle, shutdown mine that existed after January 25, 1991. It is
Mid-Continent's position that after the mine shutdown of January 25, 1991, it was not required to seek or obtain MSHA approval
prior to making the cited ventilation changes.
Respondent's contention that MSHA approval was not required
to make ventilation changes after the January 25, 1991, shutdown
is rejected. As pointed out by the Solicitor only in extreme
circumstances, where a mine suddenly experiences excessive
methane, can an operator make a change without prior approval.
In this case, there was no methane problem prior to the ventilaation change. There was no emergency that necessitated an immediate ventilation change. There was adequate time to discuss the
problem with MSHA and work out a suitable plan amendment prior to
Mid-Continent unilaterally making the cited ventilation change.
Even though no coal has been produced at the mine since
January 25, 1991, the mine was not abandoned. The mine has been
continually patrolled and pumped twenty-four hours a day, seven
days a week. Since January 25, 1991, eighteen (18) miners have
been employed full time on three 8-hour shifts each day so that

190 9

twenty-fp~r hours a day seven days a week there was always some
miner working underground.
In addition extra people were brought
underground from time to time to do specific jobs in the mine.
Clearly the mine had to be ventilated in accordance with its
approved plan.

If Mid-Continent or its supervisor, M.J. Turnipseed,
believed changes in the ventilation plan were necessary they
should have first sought and obtained MSHA approval for any
needed ventilation change before unilaterally making ventilation
changes even if they believed that the ventilation changes would
enhance safety. The evidence present clearly establish a violation of the cited safety standard, 30 C.F.R. § 75.316.
Siqnif icant and substantial Violations

A "significant and substantial" violation is described in
Section l04(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30
C.F.R. § 814(d) (1). A violation is properly designated significant and substa·n tial "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:
In order to establish that a violation of a
mandatory safety standard is significant and
·substantial under National Gypsum the Secretary of Labor must prove:
(1) the underlying
violation of a mandatory safety standard; (2)
a discrete safety hazard--that is, a measure
of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that
the hazard contributed to will result in an
injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious nature .
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated:
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

1910

.. .. 1834, 1836 (August 1984).
original).

(Emphasis in

The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation. Secretarv of Labor v. Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal
Company, 9 FMSHRC 2007 (December 1987). In addition, any determination of the significant nature of a violation must be made in
the context of continued normal mining operations. National
Gypsum, supra, at 329. Halfway, Inc., 8 FMSHRC 8, 12 (January
1986); U.S. Steel Mining Co., 7 FMSHRC supra, at 1130 (August
1985).
It is undisputed that the Dutch creek Mine is a "gassy"
mine. While it is true that the methane measured in the section
was a nonhazardous accumulation at the time the citation was
issued, an evaluation of the reasonable likelihood of injury
should be made in terms of the continuing normal mining .
operations.
Inspector Denning •testified:
Q. Will you tell me, please -- the
ventilation plan that you have in front of
you requires a stopping and it requires a
regulator. Would you tell us, please, what
effect on the ventilation removing that
stopping and covering the regulator would
have, what effect would those two things have
on the ventilation?

A. The covering of the regulator and removal
of the stopping created a dead air space in
the sump area that allowed methane to
accumulate.

Q. And in your opinion did that change of
ventilation, that removal of a stopping and
the covering of the regulator, did that
create a hazard in the area?
A.

Yes, it did.

It -- ·

(Tr. 273-274).

* * * * *
There was methane
well, the methane was
allowed to accumulate in the sump area and
created a high concentration of methane in

1911

the explosive range which could create an
imminent danger.

Q. Are you familiar with any explosions that
had occurred at this mine prior to February
7th, 1991?
A.

Yes, I am.

Q. And could you tell us, please, when and
what those explosions were?

A. There was an explosion of methane gas in
1981 which resulted in the death of 1 5 miners
at the Dutch .Creek Mine. Then there was an
explosion in the 1960's of methane gas that
resulted in the d e ath of nine miners.
In this case, the normal operations are the ones that
existed after January 25, 1991 shutdown. As stated by the
Commission in U.S. Steel Mining Co., Inc., 6 FMSHRC "The fact
that the methane was low when the violation was cited is not
fatal per se to the establishment of "reasonable likelihood."
After the unilateral ventilation changes were made and before the
date of inspection, Jerry Highfill and Mike Walpole found
excessive amounts of methane in the area in question. The
buildup of methane was caused by the unilateral ventilation
changes; the knocking out of the stopping and blocking the
regulator. On two separate occasions after these unilateral
ventilati on changes were made they measured 5 to 8 p e rcent
methane in the area. They immediately deenergized the pump in
that area by going to the power center and shutting down all of
the power to that section. They then cleared the area of methane
by returning the ventilation to the aircourse required by the
plan.
Based upon the testimony of Jerry Highfill the former 212
Longwall Coordinator, Mike Walpole the former Longwall Maintenance Superintendent and Inspector Gibson, I find the .preponderance of the evidence established all four elements of the
Mathies, supra, formula. The violation in question was significant and substantial.
unwarrantable Failure

In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987),
the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. This
determination was derived, in part, from the plain meaning of
"unwarrantable" ("not justifiable" or "inexcusable"), "failure"
("neglect of an assigned, expected or appropriate action"), and
"negligence" (the failure t o use such care as a reasonably

1912

prudent and careful person would use, and is characterized by
"inadvertence," "thoughtlessness," and "inattention") . 9 FMSHRC
at 2001. Unwarrantable failure is characterized by such conduct
as "reckless disregard," "intentional misconduct," "indifference"
or a "serious lack of reasonable care." 9 FMSHRC at 2003-04;
Rochester & Pittsburgh Coal co., 13 FMSHRC at 189, 193-94
(February 1991).
It is clear from the record that the Respondent, MidContinent Resources, unilaterally without seeking or obtaining
prior MSHA approval deliberately changed the ventilation so that
it was no longer in compliance with the approved plan and changed
it back and forth several times. ' The changes, in the ventilation
were intentional changes with reckless disregard or at least
"indifference" to the requirements of the approved ventilation
plan. I agree with Inspector Gibson that this violation was
unwarrantable.
section 110(c) Liability
In relevant part, Section llO{c) provides:
Whenever a corporate operator violates a
mandatory health or safety standard •.. , any
director, officer, or agent of such corporation who knowingly authorized, ordered, or
carried out such violation, •.. shall be
subject to the same civil penalties, fines,
and imprisonment that may be imposed upon a
person under subsections (a) and (d) of this
section.
Respondent presented considerable evidence that after the
mine's shutdown on January 25, 1991, the 18 full-time miners who
formerly held positions of some authority were all on equal
parity with each other and had the same salary. M.J. Turnipseed
was the only supervisor for the 18 member caretaker crew. Only
M.J. Turnipseed had authority over other employees and only he
had authority to order anyone to remove the stopping or otherwise
make changes in the MSHA approved ventilation plan.
·
John Reeves, the Presidant and chief operating officer of
Mid-Continent, was asked about this and testified as follows:
Was there a chain of command or a
hierarchy among those people {working after
the shutdown) so that one could give orders
to the other(s)?

Q.

A.

No, they were all equal.

(Tr. 343).

19 1 3

Je~µ~ Meraz, the former Master Maintenance Mechanic, testi~
f ied concerning the status of the mine employees after the
January 25, 1991, shutdown and testified in effect everybody was
essentially on a parity as follows:

Q. As between you and the guy that you were
working on-shift with, Bill Porter, who was
the boss?
A. There wasn't any such a thing . He
couldn't tell me to do anything, I couldn't
tell him, hey, you know, I want you to do
this or that.
It was an understanding that,
hey, we had a job to do and we'll do i t
together.

Q. Okay. How did you get direction each day
as to what you were to do?
A. Well, I'd say it had to be through M.J.
Turrtipseed. He wouldn't give us direct
order.s other than we were supposed to keep
the water pumped out of the mine and patrol
the mine.

Q. All right . Is it your understanding that
Mr. Porter had the authority to make a
ventilation change?
A. Well, I don't think Mr. Porter was in any
other position than the rest of us. We were
all the same, fireboss/pumpers is what we
were.
[Emphasis supplied.)
(Tr. 386).
The Respondent Porter described the status of the mine
employees as told to them at the employee meeting immediately
following the shutdown at 11:00 o'clock A . M. on January 25, 1991,
Tr. 431-432:
.
M.J . (Turnipseed)" was the main speaker of
the meeting and he told .. us at that time we
were all relieved of our duties as supervisors and any position was held at that time
was no longer in need. There was a (sic] a
certain few of us that he was going to keep
on as a salary employee (sic] but just doing
f irebossing and pumping of the mine, maintaining the property, basically. And
everybody else was let go.

1914

* ·* *

* *

Q. And you were told, as you recall it, that
everybody was going to be retained as -- or
the people were going to be retained as
principally firebosses and pumpers, is that
correct?
A.

Yes.

(Tr. 431-432).
The hope of Mid-Continent after the shutdown and the purpose
of the remaining employees was described by Porter:

Q. Did Mr. Turnipseed outline to you what
was going to be done with this (the mine)
after this shutdown, what they were trying to
achieve?
A. Yes. He more or less told us that he -or that the company was going to take care of
the property and put it on the market and try
and sell it. They was [sic] bringing in a
company to advertise and do the selling of
the property. We was (sic] to more or less
take care of the property.

Q.

You were the housekeepers?

A.

Yes.

(Tr. 433).
The work scheduling of the post-shutdown employees was also
described by Porter:
A. And who devised the scheduling for the
employees on who's going to work on what
shift, who was going to partner with who and
that sort of thing? How was that assigned.
A.

M.J. Turnipseed.

Q.

You didn't have any part of that?

A.

No, I didn't.

(Tr . 433) •

1915

The- Respondent Porter, consistent with the testimony of the
other fireboss/pumpers, testified about his lack of authority to
order the stopping removed.
Let's go to the 211 section and the stuff
that's the subject matter of Mr. Gibson's D-2
(sic] order that was issued on February 7th,
1991. There is a stopping up here and that
stopping got shot out . My question to you,
here and that stopping got shot out. My
question to you, Mr. Porter, did you order
that stopping to be shot out?
Q.

A.

No, I didn't.

Did you have any authority to order
anyone to shoot out that stopping?

Q.

No. There was nobody that took orders
from me .

A.

(Tr. 437).
While the question of whether any member of the caretaker
crew other than M.J. Turnipseed was an agent of the corporation
within the meaning of Section llO(c) after January 25, 1991, may
be an open and interesting question. I find in this case it is
not necessary or appropriate to reach that question. The reason
I so find is that I credit Porter's testimony that he did not
order or otherwise authorize the cited violative ventilation
changes. The heresay evidence in this case may be sufficient to
create a suspicion but the evidence presented is insufficient in
my mind to establish the charge against him in view of Porter's
credible testimony.
Conclusion

I find that Porter did not knowingly authorize, _order or
carry out the cited violation of the miners ventilation plan.
For this reason the Section llO(c) civil penalty proceeding
against Porter shall be dismissed.
Disposition of Remaining Citations in
Docket No. WEST 92-725

The parties reached an amicable settlement of the seven
remaining citations in Docket No. WEST 92-75 and jointly move for
approval of their agreement. Under the proffered settlement
Respondent agrees to reduce the proposed penalties by 40 percent
based on Respondent's ability to pay and accordingly amend the
proposed penalties as follows:

1916

Citation/
Order No.

Proposed
Penalty

Amended
Proposed
Penalty

34105564
3586784
3586798
3586800
3586721
3586829
3586830

$ 91.00
20.00
79.00
20 . 00
20.00
20.00
50.00

$ 55.00
20.00
47.00
20.00
20.00
20.00
30.00

TOTAL

$300.00

$212.00

After due consideration of the record, including consideration of Respondent's financial condition as a debtor-in-possession under Chapter 11 of the Bankruptcy Code. I find the proposed settlement of the seven remaining citations is reasonable,
in the public interest and consistent with the criteria in §
llO(i) of the Mine Act.
I therefore approve the agreed amended
proposed penalties.
With respect to the proposed penalty for the unwarrantable
S&S violation of the ventilation plan I find on consideration of
the statutory criteria that Mid-Continent's conduct was such that
even considering Mid-Continent's financial condition the full
initial proposed MSHA penalty assessed is the appropriate penalty
without any reduction. Thus the total civil penalty payable to
the Secretary for the violations found in this docket is $828
payable to the Secretary of Labor. Pursuant to Federal Rule of
Bankruptcy Procedure,' payment of the proposed penalties is
subject to the approval of the United States Bankruptcy Court.

ORPER
Docket No. WEST 92-725

Respondent filed a case under Chapter 11 of the Bankruptcy
Code and is operating its bankruptcy estate as a debtor~in- ·
possession. Accordingly, upon approval of the United States
Bankruptcy Court in Case No. 91-11658PAC, it is ORDERED that
civil penalties be and are assessed against the Respondent in the
amounts shown above and Petitione~. is authorized to assert such
assessment as a claim in Respondent's bankruptcy case.

1917

Docket No. WEST 93-99

The llO(c) civil penalty proceeding is DISMISSED.

~./V~·

4r (1jj;;

Aug st F. Cetti
Administrative Law Judge

Distribution:
Margaret A. Miller, Esq . , Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, P.C., P.O. Drawer
7 90, 818 Colorado Avenue, Glenwood Springs, co 81602
(Certified Mail)

sh

I

1 91 8

ADMINISTRATIVE LAW JUDGE ORDERS

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

JUL 2 2 1994
MADISON BRANCH MANAGEMENT
Contestant

CONTEST PROCEEDINGS
Docket No. WEVA 93-218-R
Order No. 3976643: 3/1/93

v.

Docket No. WEVA 93-219-R
Ci tat i on 3976644; 3/1/93

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

Docket No. WEVA 93-220-R
Citation 3976647; 3/4 / 93
Job. No. 3
Mine ID 46-05815

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

CIVIL PENALTY PROCEEDING
Docket No . WEVA 93-373
A.C. No. 46-05815-03520

v.

Madison Branch Job No . 3
MADISON BRANCH MANAGEMENT,
Respondent

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

Docket No. WEVA 93-412
A. C. No. 46-05815-03521
Job No . 3
CIVIL PENALTY PROCEEDING
Docket No. WEVA 03-415
A. C. No. 46-05815-03501HWZ

PROTECTIVE SECURITY SERVICES
Respondent

Job No . 3

ORDER DENYING JOINT MOTION POR SUMMARY DECISION
ANO
AMENDED NOTICE OP BEARING
The above proceedings concern the carbon monoxide
intoxication death of Allen Garrett, a night watchman employed by
Protective Security Services at Madison Branch Management's Job
No. 3 mine site. A central question in this case is whether the
respondents have adequately removed the risk of carbon monoxide
poisoning of security personnel who continue to use stationary

1919

vehicles for prolorlged periods of time with no alternative means
of warmth and shelter. The "· . . Secretary's position [is) that
requiring security guards to have access only to their vehicles
[with the engine runnng) for shelter is not inherently dangerous.
Rather, [the Secretary asserts] it is the condition of the
vehicle . . . that leads to a specific hazard." The Secretary's
Second Amended Motion to Approve Settlements, p. 5.
Investigating authorities determined that Allen Garrett fell
· asleep in his vehicle and was asphyxiated on March 1, 1993,
between 12:48 a.m., when the last entry in his log book was made,
and 6:10 a.m., when he was found unconscious in his vehicle. At
the time Garrett was discovered, his vehicle was parked in the
coal-haulage roadway with the engine running, the dome light on
and the heater running on high. At the time of this incident,
the weather had been cold with a temperature of approximately
25 degrees fahrenheit, and, it had been snowing. MSHA's
investigation revealed Garrett's vehicle had one large crack at
the exhaust manifold located near the firewall and large cracks
on the exhaust pipe on each side of the muffler.
It is und~sputed that Garrett remained in his stationary
vehicle for warmth and shelter during .his 8 hour shift. In this
regard, Madison Branch Management has stated "· . . there are no
structures on the site of its Job No. 3 which can be accessed by
security personnel to provide warmth and shelter.
(Respondent's
Joint Response, p. 7). Madison Branch Management has also stated
that "· . • security personnel did continue to use their vehicles
for shelter and heat during the winter after March 1, 1993 .
"
Id.
As a result of Garrett's fatality, the Mine Safety and
Health Administration (MSHA) issued citations to both Madison
Branch Management and Protective Security Services for an alleged
violation of section 77.404(a), 30 C.F.R. § 77.404(a). This
mandatory safety standard requires, in pertinent part, that
mobile equipment must be maintained in safe operating condition.
In addition, MSHA issued a citation to Madison Branch
Management for an alleged violation of section 48.31(a),
30 C.F.R. § 48.31(a). This mandatory safety standard· requires
that hazard training must be provided to all miners. Section
48.3l(a) requires hazard training to include instruction on
"hazard recognition and avoidance" and "safety rules and safe
working procedures."
On June 8, 1994, I issued a combined Order Denying Motions
for Approval of Settlements, Prehearing Order and Notice of
Hearing in these matters. The Order noted the issue before me is
the appropriateness of the proposed civil penalties and that the
Commission is not bound by the Secretary's proposed assessments.
See Sellersburg Stone Co . , 5 FMSHRC 287 (March 1983), aff'd

1920

Sellersburg Stone Co. v. FMSHRC, 736 F."2d 1147, 1153 {7th Cir.
1984). In establishing the proper penalty amounts, the Order
further noted that the statutory mandate in section llO{i) of the
Mine Safety and Health Act of 1977 {the Act), 30 u.s.c. § 820{i),
as well as established case precedent, requires the Commission to
consider the statutory penalty criteria including the gravity of
the violation and the "· . • demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation." 30 u.s.c. § 820{i). The
Commission's oversight responsibility with respect to the penalty
criteria in the Act cannot be circumvented by the Secretary's
acquiescence to abatement actions that do not remove the hazard
contributed to by the violative conduct. 1 Whether the subject
hazard of carbon monoxide poisoning has been ameliorated is an
issue to be determined through the fact finding process. See
Dolese Brothers Company, 16 FMSHRC 689, 695 {April 1994). A
discussion of the Commission's jurisdictional basis for
resolution of this question is addressed in my June 8, 1994,
Order and is incorporated by reference herein.
My June 8, 1994, Order set this matter for hearing in the
vicinity of Charleston, West Virginia. The Order specified that
the issue to be resolved at the hearing is whether the hazard has
been alleviated by the proposed abatement actions and whether
these actions constitute good faith efforts to achieve rapid
compliance. These actions include the reported vehicle
inspection program at 90 day intervals by Protective Security
Services and warnings to employees not to keep vehicle windows
tightly closed to avoid carbon monoxide poisoning.
The June 8 Order requested the Secretary, as the proponent
of settlement terms that include the aforementioned abatement
efforts, to call Chief Medical Examiner Irvin Sofer, a minimum of
two qualified safety and health experts employed by the
Occupational Safety and Health Administration {OSHA), and a
licensed automobile mechanic familiar with the maintenance and
repair of automotive exhaust systems, as witnesses to address the
propriety of the proposed abatement efforts.
To facilitate discovery, the June 8 Order required the
parties to exchange witness lists on or before July 19, 1994.
The Secretary's Witness List was filed pursuant to the Order .
1

In

The Secretary's reliance on Wyoming Fuel Co., 14 FMSHRC,
1282, 1289 {August 1992), for the proposition that terminated
citations and orders cannot be modified to direct further
abatement is misplaced. The Commission's statutory obligation to
evaluate the Section llO{i) penalty criteria to determine the
appropriate assessment, including the question of good faith
efforts to achieve rapid compliance, is not altered by MSHA's
termination of the underlying citation.

1921

the Secretary's filing, counsel stated "[t)he Secretary does not
intend to call those witnesses identified by the Administrative
Law Judge in the June 8, 1994, Prehearing Order and Notice of
Hearing." With regard to the scheduled hearing, counsel stated:
Nevertheless, there remain no genuine issues of
material fact in this matter. Consequently, summary
judgement is appropriate. 29 C.F.R. § 2700.67. The
parties will be filing a joint motion for summary
judgment whicq will clearly indicate, through
stipulations, that there are no genuine issues of
material fact. The Secretary does not intend to offer
any evidence beyond that stipulated to in the parties's
joint motion for summary judgment (emphasis added).
I am construing the above statement as a joint motion for
summary decision which IS HEREBY DENIED. The motion is denied in
accordance with Commission Rule 67 because of the following
unresolved issues of material fact:
1. The nature of carbon monoxide intoxication and
the correlation between the level of toxicity and the
period of exposure;
2. Given the characteristics of carbon monoxide,
whether the risk of carbon monoxide intoxication to
individuals who seek warmth and shelter in stationary
vehicles for extended periods of time can be
effectively alleviated by the methods proposed by the
respondents;
3. Whether remaining in a stationary vehicle for
prolonged periods with the engine and heater running is
a "recognized hazard" that is prohibited by section
5{{a) {l) or Section 5(a) (2) of the Occupational Safety
and Health Act of 1970, 20 u.s.c. § 654(a) (1) and
5(a)(2);
4. The qualifications of the individual assigned
by Protective Security Services to inspect employee
vehicle exhaust systems and the methods of such
inspection; and
5. The requisite qualifications, equipment and
procedures necessary for performing an adequate vehicle
exhaust system inspection.
The parties are advised that Dr. Irvin Sofer, Chief Medical
Examiner of the West Virginia Department ·of Health and Human
Services will be called upon by the court as an expert witness.
Dr. Sofer's testimony will include his expert opinions with
regard to the hazards associated with carbon monoxide poisoning

1922

as well as testimony concerning any pertinenet articles or
publications he has .written. 2
The Secretary is advised that the failure to call OSHA
safety and health experts, who are employees under the
supervision and control of the Secretary, may result in an
adverse inference that their testimony concerning the OSHA
"recognized hazard" question in issue 3 above would be
detrimental to the Secretary's position with respect to the
· abatement question. NLRB v. Laredo Coca-Cola Bottling Co.,
613 F.2d 1338 (5th Cir. 1980); NLRB v. Dorn's Transportation co.,
405 F.2d 706 (2nd Cir. 1969) (cases permitting an adverse
inference concerning missing witnesses' statements or
motivations).
Accordingly, these matters will proceed to hearing on
September 22, 1994, in Charleston, West Virginia, as scheduled.
The hearing location will be specified in a subsequent order.
The parties may stipulate on the record at trial as to matters
that are not in dispute provided that the stipulations do not
relate to conclus~ons of law with respect to the Section llO(i)
penalty criteria.

·~,___
~· ~

~=ld Feldman

Administrative Law Judge
(703) 756-5233

Distribution:
Christopher B. Power, Esq., Robinson & McElwee, P.O. Box 1791,
Charleston, WV 25326 (Certified Mail)
Patrick L. DePace, Esq., Office of the Solicitor, u. s.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
James A. Walker, Esq., White & Browning Bldg., Suite 201,
201-1/2 Stratton Street, P.O. Box 358, Logan, WV 25601
(Certified Mail)
/fb
2

Dr. Sofer performed the autopsy on Allen Garrett. In view
of the Secretary's disinclination to call Dr. Sofer, on July 21,
1994, I telephoned Dr. Sofer to determine if he was available to
testify in this matter and to ascertain his area of expertise.
Dr. Sofer stated that he is familiar with carbon monoxide
poisoning and that he has written on the subject. Dr. Sofer
expressed a willingness to testify as a court expert witness.

1923

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

20006

Augus t 29 , 1994

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

v.
COLUMBIA QUARRY COMPANY,

.
.

.
.

CIVIL PENALTY PROCEEDI~G
Docket No. LAKE 94-155-M
A. C. No. 11-00039-05516
Columbia Qua rry & Mill #9

Respondent
DECISION DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION

Before:

Judge Merlin

This case . is before me upon a petition for assessment of a
civil penalty under section 105(d) of the Federa l Mine Saf~ty and
Hea lth Act of 1977.
The Solicitor has filed a motion to approve settlement for
the one violation in this case. A reduction in the penalty from
$400 to $250 is proposed.
Citation No. 4307486 was issued for a violation of 30 C.F.R.
50.10 because an accident occurred at the plant and was not
immediately reported to MSHA. The violation was designated as
non-significant and substantial but negligence was characterized
as high. In her motion the Solicitor advises that gravity and
negligence remain the same. She states that the sole basis for
the proposed reduction is for the purpose of settlement since the
parties do not want to pursue further litigation of this matter.
The Solicitor make no reference to the six criteria in section
llO(i) of the Act.
§

I am unable to approve this sAttlement. The parties are
reminded that the Commission and its judges bear a heavy responsibility in settlement cases pursuant to section llO(k) of the
Act. 30 U.S.C. § 820(k); See, S~ . Rep. No. 95-181, 95th Cong . ,
1st Sess. 44-45, reprinted in senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History of the Federa'l Mine Safety and Health Act of 1977, at
632-633 (1978). It is the judge's responsibility to determine
the appropriate amount of penalty, in accordance with the six
criteria set forth in section llO(i) of the Act. 30 u.s.c.
i 820(i); Sellersburg Stone Company v. Federal Mine Safety
and Health Reyiew Commission, 736 F.2d 1147 (7th Cir. 1984).
A proposed redu~tion must be based upon a consideration .of
these criteria.
19 24

Based upon the Solicitor's representation, I cannot properly
discharge my statutory responsibilities because I hav~ not been
given sufficient basis upon which to conclude that the recommended penalty of $250 for Citation No. 4307486 is appropriate
under the six criteria of section llO(i).
In light of the foregoing, it is ORDERED that the motion for
approval of settlement be DENIED.
It is further ORDERED that within 30 days of the date of
this order the Solicitor submit additional information to support
her motion for settlement. Otherwise, this case will be set for
further proceedings.

--·~· -·····---\
·- ·- ~~ \\~ '
---·-··

(

~~

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Karen E. Mock, Esq., Office of the Solicitor, U. s. Department of
Labor, 230 South Dearborn street, 8th Floor, Chicago, IL 60604
Mr. Larry J. Brewer, Safety Director, Columbia Quarry Company,
P. o. Box 18, Columbia, IL 62236
Douglas White, Esq., Counsel, Trial Litigation, Office of the
Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
/gl

192 5

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

20006

August 29, 1994

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.
CHANDLER'S PALOS VERDES SANO
& GRAVEL COMPANY,
Respondent

CIVIL PENALTY PROCEEDING

..
.

..:

Docket No. WEST 94-478-M
A. C. No. 04-04157-05534
Corona Plant

DECISION DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION
Before:

Judge Merlin

This case is before me upon a petition for assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977.
The Solicitor has filed a motion to approve settlements for
the two violations in this case. A reduction in the penalties
from $7,000 to $5,250 is proposed. The two violations in this
case contributed to an accident which caused an injury to a
miner.
Citation No. 3932600 was issued for a violation of 30 C.F.R.
56.16002(b) because a work platform was not provided for
the top of the two washed concrete sand storage silos. The
originally assessed penalty was $2,000 and the proposed settlement is $1,500. Citation No. 3934261 was issued for a violation
of 30 C.F.R. § 56.16002(c) because- a plant repairman entered a
washed concrete sand bunker without wearing a safety belt and
lifeline. The originally assessed penalty was $5,000 and the
proposed settlement is $3,750.
§

In his motion for settlement approval the Solicitor gives no
reasons to support the proposed reductions in the penalties. · The
violations in -this case were serious and contributed to an accident resulting in an injury. The Solicitor must provide a basis
for me to approve such a settlement, especially because an injury
occurred. The fact that the suggested penalties remain substantial does not in and of itself, warrant approval.
The parties are reminded that the Commission and its judges
bear a heavy responsibility in settlement cases pursuant to
section llO(k) of the Act. · 30 U.S.C. § 820(k): See, S. Rep. No.
95-181, 95th Cong., 1st Sess. 44-45, reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and Health
Act of 1977, at 632-633 (1978). It is the judge's responsibility
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to determine the appropriate amount of penalty, in accordance
with the six criteria set forth in section llO(i) of the Act.
30 u.s.c. § 820(i); Sellersburg Stone Company v. Federal Mine
Safety and Health Review Commission, 736 F.2d 1147 (7th Cir.
1984) •
Based upon the Solicitor's motion, I have no grounds upon
which to conclude that the recommended penalties of $5,250 are
appropriate under the criteria of section llO(i).
In light of the foregoing, it is ORDERED that the motion for
approval of settlement be DENIED.
It is furth e r ORDERED that within 30 days of the date of
this order the Solicitor submit additional information to support
his motion for settlement. Otherwise, this case will be set for
further proceedings .
.... ..
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Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

J. Mark Ogden, Esq., Trial Attorney, Office of the Solicitor,
U. S. Department of Labor, Room 3247 Federal Building, 300 North
Los Angeles Street, Los Angeles, CA 90012
Mr. Steven R. Fitz, Chandler's Palos Verdes Sand & Gravel Co.,
24867 Maitri Road, Corona, CA 91719
Douglas White, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
/gl

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