JULY 1995

COMMISSION DECISIONS AND ORDERS
07-13-95
07-18-95
07-21-95

Tanglewood Energy and Fern Cove, Inc.
R B Coal Company, Inc.
Fort Scott Fertilizer-Culler, Inc.

WEVA 93-277
KENT 95-596
CENT 92-334-M

Pg. 1105
Pg . 1110
Pg. 1112

WEST 95-37-DM

Pg. 1121
Pg. 1127

ADMINISTRATIVE LAW JUPGE DECISIQNS
07-05-95
07-12-95
07-17-95
07-17-95
07-17-95
07-19-95
07-20-95
07-20-95
07-24-95
07-25-95
07-25-95
07-25-95
07-25-95
07-26-95
07-27-95
07 - 28-95

Sam Collette v. Boart Longyear Co.
Amax Coal Company
Sec . Labor on behalf of Randy
Cunningham v. Consolidation Coal
Cyprus Emerald Resources, Inc.
Cowlitz Valley Sand & Gravel
Faith Coal Company
Appalachian Collieries
Irvin Rodgers, II v. Florida Rock Indust.
Mid-Continent Resources, Inc.
James D . · Waters v. IMC Fertilizer, Inc.
Deby coal Company, Inc .
Kiewit Mining Group, Inc .
James M. Stutso, III, et al .
Madison Branch Management
Williams Brothers Coal Company
RNS Services, Inc.

LAKE 94-74

PENN 95-73-D
PENN 95-80
WEST 93-482-M
SE
91-97
KENT 94-1215
SE
95-184-DM
WEST 91-421
CENT 93-261-DM
KENT 95-1
WEST 95-214
WEVA 94-369
WEVA 93-218-R
KENT 94-1312
PENN 95-382-R

Pg.
Pg :
Pg.
Pg.
Pg.
Pg .
Pg.
Pg.
Pg.
Pg.
Pg.
Pg .
Pg.

1138
1140
1142
1146
1226
1232
1234
1245
1247
1249
1253
1257
1274
1284

LAKE 94-72
LAKE 94-72

Pg.
Pg.

1291
1294

Pg .

AI)MINISTRA,TIYE LAW JUPGE ORDERS
07-05-95
07-17-95

Buck Creek Coal, Inc .
Buck Creek Coal, Inc.

i

JULY

1995

Review was granted in the following cases during the month of July:

Secretary of Labor, MSHA on behalf of James Hyles, et al. v. All American
Asphalt, Docket Nos. WEST 93-336-DM, etc. (Judge Cetti, May 24, 1995)
Secretary of Labor, MSHA v. Dewey Hubbard and Robert Hardin, et al., Docket
Nos. KENT 94-1194, etc.
(Judge Melick, May 23, 1995)
Secretary of Labor, MSHA v. Western Fuels-Utah, Inc., Docket No. WEST 93-298.
(Judge Cetti, June 5, 1995)
Secretary of Labor, MSHA v. RB Coal Company, Inc., Docket No. KENT 95-596.
(Request for Relief from Final MSHA Order.)
Secretary of Labor, MSHA on behalf of Richard Glover & Leon Kehrer v.
Consolidation Coal Company, Docket No. LAKE 95-78-D.
(Judge Melick, June 15,
1995)
Secretary of Labor, MSHA v. Topper Coal Company, Inc., Docket No. KENT 94-944R, etc.
(Judge Hodgdon, June 15, 1995)

Review was not granted in the following cases during the month of Jµly:

Secretary of Labor, MSHA v. Tanglewood Energy, Inc., et al., Docket Nos.
WEVA 93-277, etc. (Numerous unpublished Default Orders)

ii

COMMISSION DECISIONS AND ORDERS

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

July 13, 1995

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

Docket Nos. WEVA 93-277, etc.
Case Nos. 46-06329-03607, etc.

v.

TANGLEWOOD ENERGY, INC.,
and
FERN COVE, INC.

BEFORE: Jordan, Cl}airman; Doyle, Holen and Marks, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1988) ("Mine Act"). On March 28, 1995, the Commission received from
Tanglewood Energy, Inc. and Fern Cove, Inc., a Request for Relief from Final Commission
Orders and Late-Filed Petition for Discretionary Review. In the motion, the operators seek to
reopen 119 cases, each of which involves either an uncontested civil penalty assessment that had
become a final order of the Commission by operation of section 105(a) of the Mine Act, 30
U.S.C. § 815(a), or a default order issued by a Commission administrative law judge that had
become final pursuant to section l 13(d)(l) of the Mine Act, 30 U.S.C. § 823(d)(l). The·
operators request relief on the basis of "excusable neglect" in accordance with Fed. R. Civ. P.
60(b)(l) ("Rule 60(b)(l)"). 1 The operators attached the affidavit of Randy Burk~, president of
both corporations. Mr. Burke's affidavit addresses the contested cases and his failure to seek
counsel during the course of proceedings in these cases.

1

Rule 60(b) provides, in part:
[T]he court may relieve a party ... from a final judgement, order, or proceeding
for the following reasons:
·
(1) mistake, inadvertence, surprise, or excusable neglect; ....

Fed. R. Civ. P. 60(b)(l).
1105

On April 20, 1995, the Commission received the Secretary of Labor's opposition to the
request. The Secretary argues that the Commission lacks jurisdiction to reopen the orders that
have become final by operation of section 105(a) of the Mine Act. S. Opp'n at 4-7. He asserts
that, even if the Commission has jurisdiction, it should deny the request because the operators
have failed to set forth adequate grounds for relief under Rule 60(b)(l). Id at 7-8. The Secretary
submits that the majority of the cases are time-barred under the time limitations set forth in Rule
60(b). Id. at 9-10. He also contends that, in any event, the operators did not offer an explanation
for their failure to file notices of contest to the proposed penalty assessments and that the
explanation for their default is not clear and convincing evidence of excusable neglect. Id. at
10-13. The Secretary argues that, in fact, the operators are seeking relief under Rule 60(b)( 1)
because an action to collect the penalties was filed in the United States District Court for the
Northern District of West Virginia on January 10, 1995. Id at 2-3, 14-15.
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary's proposed penalty assessment to notify the Secretary that it wishes to contest the
proposed penalty. If the operator fails to timely provide such notice, the proposed penalty
assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a). Here, because the
operators failed to contest the proposed assessments in 94 of the subject cases, those assessments
became final orders of the Commission.
Between March 28, and August 24, 1994, default orders were entered in the remaining
25 cases due to the operators' failure to file appropriate responsive pleadings to the Secretary's
penalty proposals or to the judge's show cause orders. 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). Under section 113(d)(l) of the Mine Act, a decision
becomes a final decision of the Commission if the Commission does not direct its review within
40 days of its issuance. The Commission did not direct review of the default orders; thus, they
became final orders of the Commission between May 7, 1994, and October 3, 1994.
The Secretary, in opposing relief, relies on the language of section 105(a) of the fyiine
Act, which provides: "If, within 30 days . . . the operator fails to notify the Secretary that he
intends to contest the . .. proposed assessment of penalty, ... [it] shall be deemed a final order of
the Commission and not subject to review by any court or agency." 30 U.S.C. § 815(a).2 The
Commission has held that, in appropriate circumstances, it possesses jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Resources,

2

That provision is also set forth in Commission Procedural Rule 27. 29 C.F.R.
§ 2700.27.

1106

Inc., 15 FMSHRC 782, 786-89 (May 1993); Peabody Coal Co., 16 FMSHRC 2030, 2031
(October 1994); Pit, 16 FMSHRC 2033, 2034 (October 1994); Lakeview Rock Products, Inc.,
16 FMSHRC 2388, 2389 (December 1994). We reject the Secretary's argument that the
Commission lacks such jurisdiction.
Relief from a final Commission order is available to a party under Rule 60(b)(l) in
circumstances including mistake, inadvertence, or excusable neglect. 29 C.F.R. § 2700. l(b)
(Federal Rules of Civil Procedure apply "so far as practicable" in the absence of applicable
Commission rules). A motion requesting relief based on such allegations must be made "within
a reasonable time, and ... not more than one year after the judgment, order, or proceeding was
entered or taken." Fed. R. Civ. P. 60(b). Rule 60(b) motions are committed to the sound
discretion of the judicial tribunal in which relief is sought. Randall v. Merrill Lynch, 820 F .2d
1317, 1320. (D.C. Cir. 1987), cert. denied, 484 U.S. 1027 (1988). See also Tolbert v. Chaney
Creek Coal Corp., 12 FMSHRC 615, 619 n.1(April1990). Rule 60(b) is "the mechanism by
which courts temper the finality of judgments with the necessity to distribute justice" and "is a
tool which trial courts are to use sparingly .... " Randall, 820 F.2d at 1322; Pit, 16 FMSHRC at
2034.
The operators offer no explanation, either in the motion or in their president's affidavit,
attached thereto, for their failure to contest the proposed assessments. Thus, they have failed to
set forth grounds establishing that Rule 60(b)(1) relief is appropriate for the uncontested
assessments that became final by operation of section 105(a) of the Mine Act. Their request for
relief as to these final orders is denied.
As to the 25 default orders issued by the administrative law judge, the operators argue
that they failed to file appropriate pleadings due to an "inadequate understanding of the legal
process involved and the fraudulent procedure for contesting citations and penalties." Mot. at
4-5. Their lack of understanding of the legal process does not provide sufficient grounds to
justify relief under Rule 60(b)(l) and they offer no explanation of their statement concerning
"fraudulent" contest procedures. Accordingly, their request for relief as to the default or~ers is
also denied.

110 7

For the foregoing reasons, the operators' motion is denied. 3

Arlene Holen, Commissioner

Marc Lincoln MarKs, Commissioner

3

Chairman Jordan and Commissioner Marks alsc find the operators' motion untimely. It
was received by the Commission on March 28, 1995, approximately 5 to 10 months after the
judges' default orders had become final, and only after the United States Attorney's Office had
already filed actions to collect penalties proposed in the final orders. They conclude that the
operators have failed to file their motion within a reasonable time. See Wadding v. Tunnelton
Mining Co., 8 FMSHRC 1142, 1143 (August 1986).

1108

Distribution

Paul 0. Clay, Esq.

Laurel Creek Road
P.O. Box 746
Fayetteville, WV 25840
Susan E. Long, Esq.

Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Suite 400
Arlington, VA 22203

1109

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

July 18, 1995

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

Docket No. KENT 95-596
A.C. No. 15-17077-03543

V.

RB COAL COMPANY, INC.

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

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. {l 988)("Mine Act"). On June 21, 1995, the Commission received from RB Coal
Company, Inc. ("RB") a request seeking to reopen penalty assessments that had become final
orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a), an operator has 30 days following receipt of the Secretary's
proposed penalty assessment within which to notify the Secretary that it wishes to contest the
proposed penalty. If the operator fails to so notify the Secretary, the proposed penalty
assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
RB states that it did not mail a "Green Card" request for a hearing until "day 45" because
the card had been misplaced among its papers on penalty assessments that it intended to pay. RB
states that it is proceeding pro se and has recently implemented procedures for contesting
penalties.
The Commission has held that, in appropriate circumstances and pursuant to
Fed. R. Civ. P. 60(b), it possesses jurisdiction to reopen uncontested assessments that have
become final under section 105(a). Jim Walter Resources, Inc., .15 FMSHRC 782, 786-89 (May

1110

1993); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (September 1994). Relief from a final
order is available in circU!Jlstances such as a party's mistake, inadvertence, or excusable neglect.
On the basis of the present record, we are W1able to evaluate the merits ofRB's position.
In the interest ofjustice. we remand the matter for assignment to a judge to detennine whether
RB pas met the criteria for relief W1der Rule 60(b). If the judge determines that such relief is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

~~t/~L

Joyce A. Doyle, Commission;

Arlene Holen, Commissioner

Distribution:
Chris Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
David J. Partin, Engineer
RB Coal Company, Inc.
8174 East Highway 72
Pathwayfork, KY 40863

1111

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

July 21, 1995

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

v.

Docket No. CENT 92-334-M

FORT SCOTT FERTILIZERCULLOR, INC.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 93-117-M

v.
JAMES CULLOR, employed by
FORT SCOTT FERTILIZERCULLOR, INC.

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners
DECISION
BY THE COMMISSION:
These civil penalty proceedings, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"), involve a citation and withdrawal
order issued by the Department of Labor's Mine Safety and Health Administration ("MSHA ") to
Fort Scott Fertilizer-Cullor, Inc. ("Fort Scott"), al~eging violations of30 C.F.R. § 56.14101. 1

1

Section 56.14101 provides, in part:
(a) Minimum requirements. (1) Self-propelled mobile
equipment shall be equipped with a service brake system capable
of stopping and holding the equipment with its typical load on the
maximum grade it travels ....

1112

The Secretary of Labor filed petitions for civil penalties against Fort Scott and also against its
agent, James Cullor, pursuant to section 1IO(c) of the Mine Act, for knowingly authorizing,
ordering, or carrying out the violations.2 Administrative Law Judge Jerold Feldman vacated the
citation and order on the basis that the violative conditions were the result of employee
misconduct and dismissed the penalty proceedings against Fort Scott and Cullor. 15 FMSHRC
2354 (November 1993) (ALJ).
The Commission granted the Secretary's petition for di~cretionary review, which
challenged the judge's recognition of employee misconduct as a defense to Mine Act violations
and his reliance on certain factors in detennining that misconduct had occurred. The Secretary
also challenged the judge's finding that the violative conditions were the result of tampering, on
the grounds that it is not supported by substantial evidence. For the reasons that follow, we
reverse the judge's dismissal of the citation and order, which was based on his determination that
employee misconduct is a defense to liability. We also vacLte his detennination that misconduct
occurred and remand for further proceedings.

(b) Testing. (1) Service brake tests shall be conducted
when an MSHA inspector has reasonable cause to believe that the
service brake system does not function as required, unless the mine
operator removes the equipment from service for the appropriate
repair; . . .
2 Section llO(c) provides:

Whenever a corporate operator violates a mandatory health
or safety standard or knowingly violates or fails or refuses to
comply with any order issued 1.inder this Act or any order
incorporated in a final decision issued under this Act, except an
order incorporated in a decision issued under subsection (a) or
section 105(c}, any director, officer, or agent of such corporation
who knowingly authorized, ordered, or carried out such violation,
failure, or refusal shall be subject to the same civil penalties, fines,
and imprisonment that may be imposed upon a person under
subsections (a) and (d).
30 U.S.C. § 820(c).

1113

I.

Procedural and Factual Backiuound
On May 22, 1992, two truck drivers at Fort Scott's limestone quarry in El Dorado,
Missouri, telephoned the MSHA District Office and, asserting that the brakes on a 30-ton
haulage truck (the "big Euclid") and a 15-ton haulage truck (the "small Euclid") were defective,
requested an inspection. 15 FMSHRC at 2358; Tr. 96, 165. On May 27, they infonned James
Cullor, a supervisor, that the brakes on their trucks were inoperable. 15 FMSHRC at 2358. He
instructed them to park the trucks, which were then in use, so that they could be checked. Id. at
2358-59. MSHA Inspector Michael Marler arrived·shortly thereafter. Id. at 2359.
'

The brakes were tested and found to be defective. 15 FMSHRC at 2359. Inspector
Marler issued a citation for the big Euclid, pursuant to section 104(d)(l) ct the Mine Act,
30 U.S.C. § 814(d)(l), and a section 104(d)(l) withdrawal order for the small Euclid, alleging
violations of section 56.14101. The inspector designated the alleged violations as significant and
substantial ("S&S") and the result of Fort Scott's unwarrantable failure to comply with the cited
standard. After repairs were made to the trucks, the withdrawal order and citation were
terminated on June·10 and July 9, 1992, respectively. Subsequently, the Secretary filed a Civil
penalty petition against Cullor, charging him with knowingly authorizing, ordering, or carrying
out the violations. 3
Following an evidentiary hearing in the civil penalty proceedings, ·luring which the
operator stipulated to the fact that the brakes on both trucks were defective, the judge found, in
essence, that the drivers were disgruntled employees who had caused the violative conditions by
tampering with the slack adjusters on the trucks' brakes. 15 FMSHRC at 2355-58, 2360-62. The
judge concluded that deliberate employee misconduct is a defense to liability under the Mine Act
and, on that basis, dismissed the penalty proceedings against both Fort Scott and Cullor. Id at
2362-63.

3

In June 1992, the two miners were terminate.d by Fort Scott. 15 FMSHRC at 2355.
Failure to wear steel-toed boots was given as the reason. Id. Both filed discrimination
complaints with MSHA against Fort Scott pursuant to section 105(c)(2) of the Mine Act,
30 U.S.C. § 815(c)(2). Id. MSHA subsequently detennined that Fort Scott had not
discriminated against the complainants in violation of the Act. Id.

1114

II.

Disposition
A. Employee Misconduct

1. As a defense to violations
On review, the Secretary contends that the judge erred in creating an exception to the
liability scheme of the Mine Act, under which liability for violations .is established without
regard to fault. S. Br. at 8-14. The Secretary argues that deliberate employee misconduct is not a
defense to a violation of the Act or its standards. Id. at 12-13. The Secretary states that an
operator's lack of fault is to be considered only in assessing a civil penalty. Id at 10-11. Fort
Scott responds that employees should not be allowed to create Mine Act violations to rrtaliate
against management in labor disputes. F. S. Letter at 2.
It is well established that operators are liable without regard to fault for violations of the
Mine Act. E.g., Sewell Coal Co. v. FMSHRC, 686 F.2d 1066, 1071 (4th Cir. 1982);Al/ied
Products Co. v. FMSHRC, 666 F.2d 890, 893-94 (5th Cir. 1982); Western Fuels-Utah, Inc.,
10 FMSHRC 256, 260-61(March1988), affd on other grounds, 870 F.2d 711 (D.C. Cir. 1989);
Asarco, Inc., 8 FMSHRC 1632, 1634-36 (November 1986), affd, 868 F.2d 1195 (10th Cir.
1989). The Commission and the courts have also consistently held that a miner's misconduct in
causing a violation is not a defense to liability. For example, in Allied Products, the corrt held
that the operator is liable for violations even where "significant employee misconduct" caused
the violations. 666 F.2d at 893-94. The court concluded: "If the act or its regulations are
violated, it is irrelevant whose act [precipitated] the violation .. . ; the operator is liable." Id. at
894. Similarly, in Ideal Cement Co., 13 FMSHRC 1346, 1351(September1991), the
Commission observed that, [u]nder the liability scheme of the Mine Act, an operator is liable for
the violative conduct of its employees, regardless of whether the operator itself was without fault
and notwithstanding the existence of significant employee misconduct." See also Mar-Land
Industrial Contractor, Inc. , 14 FMSHRC 754, 757-58 (May 1992).
11

Accordingly, we conclude that the judge erred in treating employee misconduct as a
defense to liability under the Mine Act and we reverse his finding to that effect.· Based on the
operator's stipulation that the brakes were defective, we conclude that the judge also erred in
vacating the citation and order.
2. Effect on other matters
Although employee misconduct is not a defense to liability for a violation, it is relevant in
determining other issues, i.e., the operator's negligence for penalty purposes, unwarrantable

111 5

misconduct occurred. 5
b. Secretary's determination regarding discrimination
The judge found that the Secretary's decision not to prosecute the miners' subsequent
discrimination complaints supported a conclusion that the complaints about the brakes were not
legitimate. 15 Ffy!SHRC at 2361-62 & n.4. The Secretary argues that, because his determination
of no discrimination cannot support a negative inference in a section 105(c)(3) discrimination
case, neither can it support a negative inference in a civil penalty case involving a different
incident and issue. S. Br. at 16-1 7.
We agree. The Secretary's administrative determination of no discrimination in an
unrelated subsequent incident does not justify the inference that the brake complaints were not
legitimate. Congress designed section 105(c)(3) of the Act, 30 U.S.C. § 815(c)(3), as an
"independent avenue of adjudication" of section 105(c) claims. Roland v. Secretary ofLabor,
7 FMSHRC 630, 635-36 (May 1985). The Commission may find discrimination where the
Secretary has not. See, e.g., Ross v. Shamrock Coal Co., 15 FMSHRC 972, 974 (June 1993);
Meekv. Essroc Corp., .15 FMSHRC 606, 608-09 (April 1993). The Secretary's determination not
to prosecute the discrimination cases is not probative of whether Fort Scott discriminated against
the miners or of whether the miners engaged in previous misconduct. We therefore conclude that
the judge erred in relying on the Secretary's decision not to prosecute the discrimination
complaints.
c. Secretary's refusal to produce files
At the hearing, the judge ordered the Secretary to produce MSHA's investigatory report in
the discrimination cases. 15 FMSHRC at 2361. Based on the Secretary's refusal to produce the
report, the judge inferred that this material would have been adverse to the Secretary's case in the
present matter. Id. at 2361-62 & n.5.
MSHA's refusal to produce the investigatory report in the discrimination cases, like its
decision not to prosecute those cases, is not probative of whether employee misconduct occurred.
Moreover, the Commission has generally recognized that the Secretary's investigative files are
protected by a qualified official information privilege. Secretary ofLabor on behalfof Gregory

5

The Commissioners agree in result that the judge erred. Chairman Jordan and
Commissioner Marks agree with the Secretary that reliance on an employee's exercise of his
Mine Act rights as an indication of employee misconduct would undermine the rights and
protections accorded in the Mine Act. See S. Br. at 19. They believe such reliance could exert a
chilling effect on the exercise of miners' rights under section 103(g)( 1). Commissioners Doyle
and Holen are of the opinion that the complaint to MSHA has no probative value as to whether
the miners engaged in misconduct.

1117

failure, 4 and liability under section 1IO(c) of the Mine Act. The operator's fault or lack thereof is
also a factor to be considered in assessing a civil penalty. Asarco, Inc., 8 FMSHRC at 1636.
The conduct of a rank-and-file miner is not imputable to the operator in determining negligence
for penalty purposes. Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (August 1982). Rather,
the operator's supervision, training, and disciplining of those miners is relevant. Id; Western
Fuels-Utah, Inc., 10 FMSHRC at 261. In determining unwarrantable failure, the Commission
has found that, where a miner was acting as the employer's agent at the time, intentional
misconduct is imputable to the operator. Rochester & Pittsburgh Coal Co., 13 FMSHR.C 189,
194-98 (February 1991). In Mid-Continent Resources, Inc., 16 FMSHRC 1226 (June 1994), the
Commission found no section 110(c) liability on the part of a supervisor where the violation
arose from a rank-and-file employee's failure to follow instructions. Id at 1233-34.
3. Impermissible considerations
To support his conclusion that the miners tampered with the brakes, the judge relied, in
part, on their complaint to MSHA regarding the brakes, the Secretary's failure to prosecute their
discrimination complaints, and the Secretary's refusal to produce the investigatory report on
those complaints. 15 FMSHRC at 2361-62. For the following reasons, we conclude that the
judge erred in considering these matters, and we therefore vacate and remand for further analysis
his determination of employee tampering.
a. Miners' report to MSHA
The Mine Act, in section 103(g)(l), expressly confers on miners and their representatives
the right to notify the Secretary of violations and imminent dangers. 30 U.S.C. § 813(g)(l).
Upon receiving such notification, the Secretary is required to conduct "an immediate inspection."
Id Section 105(c) protects miners from discrimination arising from exercise of that right.
30 U.S.C. § 815(c).

In support of his finding, the judge stated that the miners were "anticipating Marler's
inspection." 15 FMSHRC at 2361. The record reflects only that the miners contacted MSHA
and were aware that an inspection would result, not that they knew when the inspector would
arrive. Consequently, this factor affords no support for the judge's finding. We conclude that the
judge erred in considering the miners' complaint to MSHA in determining whether employee

4

Unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC.1997, 2004 (December 1987). Unwarrantable
failure is characterized by such conduct as reckless disregard, intentional misconduct,
indifference, or a serious lack of reasonable care. Id. at 2002-04 & n.5; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 193-94 (February 1991).

1116

v. Thunder Basin Coal Co., 15 FMSHRC 2228, 2237-38 (November 1993). See also Jn Re:
· Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC 987, 1007-09 (June
1992). Accordingly, we conclude that the judge's negative inference based on the Secretary's
failure to produce the investigation files was error.6
B. Remand
The question of violation need not be reexamined. On remand, the judge shall address
the issues of whether the violations were S&S and caused by the operators unwarrantable failure.
In his decision, the judge stated: "The respondents have stipulated .. . to the fact that there was a
reasonable likelihood that the hazards contributed to by these conditions could result in injuries
of a reasonably serious nature." 15 FMSHRC at 2355 (emphasis added). The third prong of the
test for S&S is whether there exists a reasonable likelihood that the haz.ard contributed to will
(not could) result in an injury or illness of a reasonably serious nature. Cement Div., Nat'!
Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ); Mathies Coal Co., 6 FMSHRC 1, 3-4 (January
1984).
Concerning the issue of tampering, we note that the judge did not address evidence
referenced by the Secretary on review, S. Br. 27-28, that the miners had made previous
complaints about brake problems and that their complaints had been ignored; the judge shall
evaluate this evidence on remand. The judge shall also assess appropriate penalties against Fort
Scott based on the six penalty criteria set forth in section 11 O(i) of the Act, 30 U.S.C. § 820(i).
Finally, he shall enter findings and conclusions regarding Cullor's liability, if any, under section
l lO(c) of the Act.

6

We do not -reach the Secretary's argument that substantial evidence does not support the
judge's determination of employee misconduct. S. Br. 20-29.

1118

III.
Conclusion
For the foregoing reasons, we reverse the judge's decision that deliberate employee
misconduct is a defense to operator liability for Mine Act violations. We also vacate his finding
that such misconduct occurred and remand for an analysis of that issue, consistent with this
opinion, insofar as it is relevant to determination of the remaining issues.

~~~ayceA:DOYle, CommiSSiOil

Arlene Holen, Commissioner

1119

Distribution

Gary W. Cullar, President
Cullor Inc., for Fort Scott Fertilizer
20th and Sidney
Fort Scott, Kansas 66701
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Suite 400
Arlington, VA 22203
Administrative Law Judge Jerald Feldman
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite I 000
Falls Church, VA 22041

1120

.·:

ADMINISTRATIVE LAW JUDGE DECISIONS

"!'EDER.AL MINE SA!'ETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SICYLINE , 10th FLOOR
5203 LEESBURG PJKE

FALLS CHURCH, VIRGINIA 22041

. JUL
SAM COLLETTE,

v.

Complainant

BOART LONGYEAR COMPANY,
Respondent

5 1995
:

DISCRIMINATION PROCEEDING

:
:

Docket No. WEST 95-37-DM
WE MD 94-11

.• Lone Tree Mine
DECISION

Appearances:

Sam Collette, Hominy, Oklahoma, pro se;
Matthew McNulty, Esq., Vancott, Bagley, Cornwall
and McCarthy, Salt Lake City, Utah for Respondent.

Before:

Judge Melick

This case is before me upon the complaint by Sam Collette
pursuant to Section 105(c)(3) of the Federal Mine Safety and
Health Act of 1977, 30 u.s .c. S 801 et seq., the "Act" alleging
violations by the Boart Longyear Company (Longyear) of Section
105(c)(l) of the Act. 1
In his unedited complaint of
discrimination Mr. Collette states as follows:

1

section lOS(c) (1 ) of the Act provides as follows:

No person shall discharge or in any manner discriminate
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 complainant notifying
the operator or the operator's agent, or the representative
of the miners at the coal or .other mine iof an alleged
·
danger or safety or health violation in a coal or other
mine, or because such miner, representative of miners or
applicant for employment is the subject of medical
evaluations and potential transfer under a standard
published pursuant to section 101 or because such miner ,
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.
1121

:·:

"I have worked for Longyear since 2-27-89, on 12-10-92 I
injured back trying to move rig with a piece of timber and a
wate~ truck.
I had [illegible] on my chest and around my
heart and low back pain; I spent one night in hospital. I
seen Dr. P. Herz, I went threw physical therapy until .
1-16-93; I wanted to back to work. I talked Dr. into giving
my a so lb limited, went to work driving water truck-rem
1-19-93 to 2-24-93. The lower back pain encrease il. I
went back to Dr. Herz. I continue physical therapy it made
·me worse. Dr. Herz take me off therpy and had a MRI scan of
the lumbar spine showed generative disease L4-5 & L5-Sl.
Right posterolateral herniation at L4-5. Lumbar epidural
steroids were administered but these did not help. SIIS had
me see Dr. Ready July, 1993. He seen me for 15 min. He
said I could return to work at light duty. SIIS sent me to
C.E. Quazaleri, M.D. A repeat MRI scan showed a small right
[illegible] at L3-4 with associated marginal osteophyte
formation plus small right central disc protrusion. There
was right [illegible] disc protrusion at L4-5.
On 2-22-94 Longyear offered a job driving a worker truck,
based on Dr . . Ready release light duty 39 lb. driving water
truck on trial basis. I refused the job because I felt like
it would in danger my health. The juring, getting up and
down out of truck. I tried this job and the pain was to
much. In drilling there is a lot of off the road driving.
Longyear said I volanary quit, by refusing a job. My doctor
Dr. Herz & Dr. Quaglier said driving a truck is not good for
me. I tried this job on 1-19-93 to 2-2-93 the pain got were
if like I need pain pill to continue driving. I am in more
pain now, then before. I don't take pain pill except as a
last resort. When Longyear learn of reason for refusing
job, they said they bought two new truck with air ride,
seats which was not meanson at the time of job offer. But
in my opinion it still not suitable because of the off road
driving & set up and down out of truck with a back disorder.
Longyear has stop all medical rehabilitation, & "SIIS" comp.
checks. Longyear said I didn't try to work because I didn't
get a hold of them about job offer. I received job offer
threw SIIS, they said to get hold of there office not
Longyear. I contact OSHA in Oklahoma City around 3~4-94,
they revered my to DELISH of NV. I filled out a
discrimination report with the~. I asked if I need to threw
your offices, Calvin Murry said he didn't think so. After
55 days I called them and they said had to go threw MSAHA
your office. The only release I have is Dr. Ready, I have
tried to get job & can't. Contacted OK employment office on
3-6-94. They said with that release for work they couldn't
help me. I have also contact OLD Employers, with no help.
My OSHA rights are reieved. I was up for rehabilitation
"consided quit 3-2-94" "

1122

In his complaint before this Commission Mr. Collette added .
that: "I am requesting a lagetemate [sic] job orfer [sic], a job
that won't endanger my health, back pay, proper medical treatment
and retrained • • • P.S. Is driving a water truck safe for me?"
In his post hearing "final argument" Collette summarizes his
complaint as follows:
·
Boart Longyear Company discriminated against Sam Collette
in failing to offer a true "light-duty" job that
Sam Collette was capable of performing because he had
reported an alleged danger to Board Longyear Company, i.e.
the potential danger to health and safety presented by his
back problem and associated pain. Further Boart Longyear
Company failed to address the health and safety concerns
of Sam Collette after Sam Collette's refusal to perform
work that he reasonably believed was not within his
functionable [sic] capacities and would therefore endanger
his health and safety.
The Commission has long held that a miner seeking to
establish a prima facie· case of discrimination under section
105 (c) of the ,_ Act bears the burden of persuasion 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 Fasula v. Consolidation Coal co., 2 FMSHRC 2786, 2797-2800
(October 1980), rev'd on other grounds, ·sub. nom. consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); and
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
any protected activity .
If an operator cannot rebut the prima facie case in this
manner, it may nevertheless defend affirmatively by proving that
it would have taken the adverse action in any event on the basis
of the miner's unprotected activ ity alone. Fasula, supra;
Robinette, supra. See also Eastern Assoc. Coal Corp. v. FMSHRC,
813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984}; Boich v .
FMSHRC, 719 F.2d 194, 195-96 (6th Dir. 1983} (specifically
approving the Commission's. Fasula-Robinette test}. Cf. NLRB
Transportation Management Corp.,462 u.s. 393, 397-413 (1983)
(approving nearly identical test· under National Labor Relations
Act).
For a work refusal to come within the protection of the
Act, the miner must have a good faith, reasonable belief that the
.work in question is hazardous. See generally, Robinette, 3
FMSHRC at 807-12. In determining whether the miner's belief in a
hazard is reasonable, the judge must look to the miner's account

11 23

of the conditions precipitating the work refusal and also to the
operator's response . An operator has an obligation to address
the danger perceived by the miner. Secretary on behalf of Pratt
v. River Hurricane Coal Company, Inc., 5 FMSHRC 1529, 1534
(September 1983); Secretary of Labor v. Metric Constructors,
Inc., 6 FMSHRC 226, 230 (February 1984), aff'd sub nom. Brook v.
Hetric Constructors, Inc. 766 F.4d 469 (11th Cir. 1985). As
stated in Gilbert v. FMSHRC, 866 F.2d 1433 (O.C. Cir. 1989), once
it is determined that a miner has expressed a good faith
reasonable concern, the analysis shifts to an evaluation of
whether the operator has addressed the miner's concern in a way
that his fears reasonably should have been quelled. In other
words, did management explain to the miner that the problems of
concern had been corrected? 866 F.2d at 1441. See also
Secretary on behalf of Bush v. Union Carbide Corp., 5 FMSHRC 993,
997-99 (June 1983); Thurman v. Queen Anne Coal Co., 10 FMSHRC
131, 135 (February 1988), aff'd 866 F.2d 431 (6th cir. 1989)
(table) •
Within this framework of law it is clear that
Mr . Collette cannot. prevail under either of his theories of
discrimination·. Under his first theory he claims that Longyear
failed to offer him a true "light duty" job on February 28, 1994,
in retaliation for his complaint on February 25, 1993, to Tom
Joiner, Longyear's Manager of Safety, that his work driving a
water truck caused him constant pain in his back. Even assuming,
arguendo, that his complaint about back pain while driving a
water truck constituted a protected safety complaint and even
assuming that Longyear's job offer, through the Nevada State
Industrial Insurance System (SIIS) on February 28, 1994, was
motivated at least in part by this activity I find that Longyear
has nevertheless affirmatively proven that it had no other light
duty jobs at the mine which Collette could have performed within
his limited physi cal capacities and for which he was qualified .
The credible evidence shows that the only other light duty jobs
then existent were that of secretary and zone manager -positions for which Collette was not qualified. Moreover, these
positions were then filled. Collette's termination for his
failure to accept Longyear's job offer was therefore in any event
not in violation of the Act. 2

2

It is noted that Mr. Collette disagrees with the findings
·of the Nevada State Industrial Insurance System determination
that he was not sufficiently disabled to qualify for workers'
compensation. He appears to agree with the determination of the
Social Security Administration that he was apparently disabled
with respect to his former work activity as a water truck driver.

1124

Collette also appears to suggest that Longyear•s filing with
the Nevada SIIS of an incorrect job description for the position
of water truck driver was also a retaliatory response to his
health and safety complaint. It was acknowledged by Longyear at
hearing that the report, indeed, erroneously indicated that only
four to five pounds of pressure was required to depress the water
truck clutch pedal whereas it actually required 50-74 .pounds of
pressure . This erroneous information could very well have misled
examining physicians into concluding that Collette had the
residual capacities to perform the job offered by Longyear ~nd
therefore could have resulted in the erroneous denial to him of
worker's compensation. However, Collette has failed to show that
this error was in retaliation for his claimed protected activity.
The credible evidence suggests the error was inadvertent and
while it may very well have been a material fact to the
determination by the Nevada SIIS in denying worker's compensation
benefits, that issue is not before me in this proceeding. 3
I further find that the Complainant cannot prevail under his
second theory of discrimination, i.e. that he suffered
discrimination because he refused to perform the work as a water
truck driver under the reasonable belief that, because of his
back pain and injury, such work was not within his functional
capacities and would therefore endanger his health and safety.
It appears that Collette rejected the Longyear job offer made
through Cheryl Price, a representative of the Nevada SIIS, around
February 28, 1994 (Tr. 184). However, because of Collette's
physical inability to perform any work for which he was then
qualified at the subject mine I do not find that his resulting
termination was in retaliation for his refusal to accept the job
of water truck driver. It was a natural consequence dictated by
Collette's election and his own physical condition and job
skills.
There is a legitimate question, moreover, whether such
idiosyncratic problems as Collette's back injury, over which the
mine operator has no control, were intended by congress, in any
event, to support a miner's right under the Act to refuse work.
See Price v. Monterey Coal Co., 12 FMSHRC 1505 (August 1990)
(Commissioner Doyle,concurring) The genesis for the recognition
of certain work refusals as protected activity is the Senate
Report on the 1977 Act, which endorsed a miner's right to refuse
"to work in conditions which are believed to be unsafe or
unhealthful . " s. Rep. No. 81, 95th Cong., 1st Sess 35 (1977).
In order to be protected, work refusals must be based upon the
3

At hearing the parties were advised to bring this error to
the attention of the Nevada State Industrial Insurance System for
appropriate corrective action by that agency. It appears that
Longyear bas, in fact, now notified that agency of the error.

1125

miner's's "good faith, reasonable belief in a hazardous
condition." Robinette, 3 FMSHRC 812; Gilbert v. FMSHRC, 866 F.2d
1933 at 1439 (D.C. Cir. 1989).
The case at bar would also be illustrative of what the
Commission in the Price decision was describing as beyond the
Congressional intent in endorsing a limited right to refuse "to
work in conditions which are believed to be unsafe or
unhealthful". By that very language it is clear that the intent
was to protect against "conditions" inherent in the work process
and not to provide continuing compensation or disability benefits
for individuals who, because of certain physical impairments or
injuries would find working most jobs in the mining industry
impossible. While it is truly unfortunate that persons such as
Mr • .Collette may not, because of such injuries, be able to
perform work in the industry it is not the purpose of the Act to
remedy such problems. To hold a mine operator responsible under
such circumstances would effectively make him a guarantor of
compensation. It is clearly not the purpose of the Act, but
rather worker's compensation, social security disability and
other similar laws to provide loss of income protection under
these circumstances.
ORDER

Discrimination Proceedings Docket No. WEST ·95-37-DM are
hereby dismissed.

~

i

lick\!

Gary .

;{

Admini trativ~ Law Judge
703-7~ -6261
Distribution:

\

Mr. Sam Collette, 121 South Haines, Hominy, OK

74035

.Matthew McNulty, Esq., Vancott, Bagley, Cornwall and McCarthy,
50 South Main Street, Suite 1600, Salt Lake City, UT 84144-0450

\jf

1126

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

.JUL 1 2 1995"
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 94-74
A.C. No. 11-00877-04033
Wabash Mine

AMAX COAL COMPANY,
Respondent
DECISION
Appearances:

Miguel J. Carmona, Esq., and Ruben Chapa, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Chicago, Illinois, for Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll Corp.,
Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge Fauver

This is a civil penalty action under§ lOS(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 ~ ~
The case involves three§ 104(d) (2) orders, each alleging a
violation of 30 C.F.R. § 75.400. A settlement of Order No.
4054145 was approved at the hearing. The proceeding as to Order
No. 4054043 was stayed pending a decision as to Order No.
4054148, which went to hearing.
Respondent acknowledges the violation alleged in Order No.
4054148, but contests the inspector's findings that the violation
was ••significant and substantial" and was due to an
"unwarrantable" failure to comply within the meaning of§ 104(d)
of the Act. Respondent seeks to have those findings deleted from
the order and to have the proposed civil penalty reduced
accordingly .

1127

Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative,
and reliable evidence establishes the Findings of Fact and
further findings in the Discussion below:
FINDINGS OF FACT

1. Respondent owns and operates the Wabash Mine, which
produces coal for sale or use in or substantially affecting
interstate commerce.
2. Respondent is a large coal operator, producing about 39
million tons of bituminous coal a year. The Wabash Mine produces
about 1.8 million tons annually.
3. On September 1, 1993, MSHA Mine Inspector Steve Miller
issued Order No. 4054148 at the Wabash Mine, alleging the
following conditions:
Accumulations of dry loose coal and coal float dust were
allowed to accumulate at the junction of the Main South No.
1 head roller and the Mother belt. Accumulations were
packed solid under the Mother belt in this area. The
accumulations measured approximately 3 feet (east side Main
South No . 1) to 6 inches in depth, 4 feet to 8 feet in
width, and 85 feet in length along Main South No. 1 and 200
feet in length along the Mother belt. The bottom of the
Mother belt was observed running on packed dry coal, and in
loose dry coal for a distance of approximately 15 feet.
4. The evidence sustains the inspector's findings as to the
above conditions. The inspector observed the conditions and made
reasonable measurements and estimates of the accumulations.
5. The accumulations of loose coal and float coal" dust had
accumulated over a period of several days. They were wet in
places, mainly beneath the surface layers. The layers that came
into contact with or were closest to the conveyor belts were
generally dry.
6. There were ignition sources in the areas of the
accumulations. For about 15 feet, one of the accumulations was
in contact with a running conveyor belt and the friction of the
belt running against the combustible materials was ·reasonably
likely to result in a mine fire.

1128

7. The Wabash Mine is a large mine, with about 26 miles of
conveyor belts. The mine has two portals, a North and South
portal. The area at issue was the intersection of the Main South
No. l Belt and the Mother Belt.
DISCUSSIQN WITH FURTHER PINPINGS
The inspector cited a violation of 30 C.F.R. § 75.400, which
is a reprint of a statutory safety standard. The standard
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.
Respondent acknowledges a violation of § 75.400 but contests
the inspector's findings that it was "significant and
substantial" and "unwarrantable."
Significant and Substantial Violation
The inspector found that the violation was "significant and
substantial" under§ 104(d) (1) of the Act, which provides:
If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and
substantially contribute to the cause and effect of a coal
or other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety
standards, he shall include s,u ch finding in any citation
given to the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine within
90 days after the issuance of such citation, an authorized
representative of the Secretary finds another violation of
any mandatory health or safety standard and finds such
violation to be also caused by an unwarrantable failure of
such operator to so comply, he shall forthwith issue an
order requiring the operator to cause all persons in the

1129

area affected by such violation, except those persons
referred to in subsection (c) to be withdrawn from, and to
be prohibited from entering, such area until an authorized
representative of the Secretary determines that such
violation has been abated.
The Commission has held that a violation is "significant and
substantial" if there is "a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reason ably serious nature." Cement Division. National Gypsum Co ..
3 FMSHRC 822, 825 (1981); Mathies Coal Co., 6 FMSHRC 1, 3-4
(1984}. This evaluation is made in terms of "cont inued normal
mining opera t ions" without abatement of the violation (U . S. Steel
Mining Co., Inc . , 6 FMSHRC 1573, 1574 (1984}}, based on the
particular facts surrounding the violation (Texasgulf. Inc.,
10 FMSHRC 498, (1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC
1007, (1987 }} . In Mathies the Commission further stated:
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 d i screte 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.
The Commiss·ion 1 s definition does not state whether the
likelihood of injury or illness must be "more probable than n o t"
to establish a significant and substantial violation.
For a
better understanding of the Commission's test, I believe this
issue shou ld be resolved .
As I interpret the Commission's decisions, the third Mathies
element -- "a reasonable likelihood that the hazard contributed
to will result in an injury or ~llness" -- does not mean "more
probable that not."
begin by noting the Commission's discussion of a
"significant and substantial" violation as falling "between two
extremes 11 (in National Gypsum):
I

Section 104(d} says that to be of a significant and
substantial nature, the conditions created by the violation

1130

need not be so grave as to constitute an imminent danger.
(An "imminent danger" is a condition "which could reasonably
be expected to cause death or serious physical harm" before
the condition can be abated. Section 3(j) .) At the other
extreme, there must be more than just a violation, which
itself presupposes at least a remote possibility of an
injury, because the inspector is to make significant and
substantial findings in addition to a finding of violation.
Our interpretation of the significant and substantial
language as applying to violations where there exists a _
reasonable likelihood of an injury or illness of a
reasonably serious nature occurring, falls between these two
extremes -- mere existence of a violation, and existence of
an imminent danger . . . .
[3 FMSHRC at 828. ]
The legislative history of the Act makes clear that an
"imminent danger" is not to be defined in terms of "a percentage
of probability":
The Cqmmittee disavows any notion that imminent danger
can be defined in terms of a percentage of probability that
an accident will happen; rather the concept of imminent
danger requires an examination of the potential of the risk
to cause serious physical harm at any time. · It is the
Committee's view that the authority under this section is
essential to the protection of miners and should be
construed expansively by inspectors and the Commission.

* * * 1
It follows that a significant and substantial violation,
which by statute is less than an immin·e nt danger, 2 is determined
in terms of 11 the potential of the risk" of injury or illness, not
a "percentage of probability."
Tests such as "more probable
than not" or some other percentage of probability are
inconsistent with§ 104(d) and the Act's legislative history.

1

S. Rep. No. 95-181, 95th Cong. 1st Sess. (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 626 {1978) .
2

Section 104(d) excludes imminent dangers from its
definition of a significant and substantial violation.

1131

This interpretation is also indicated by Commission
decisions affirming a significant and substantial violation where
the facts do not show injury or illness was "more probable than
not. 11 For example, in U.S. Steel Mining co., 7 FMSHRC 327
(1985), the issue was whether the failure to install a bushing
for a cable entering a water pump was a significant and
substantial violation. The judge found that the pump vibrated,
that vibrations could eventually cause a worn spot in the
insulation, and that if the circuit protection systems also
failed, a worn spot in the cable could energize the pump frame
and cause an electrical shock. The judge found that injury was
"reasonably likely'' to occur. 5 FMSHRC 1788 (1983). In
affirming, the Commission stated, inter alia:
On review, U.S. Steel argues that the facts indicated
that the occurrence of the events necessary to create the
hazard, the cutting of the wires' insulation and failure of
the electrical safety systems, are too remote and
speculative for the hazard to be reasonably likely to happen
and, consequently, that the judge erred in concluding that
the violation was significant and substantial.

* * *

* * * The fact that the insulation was not cut at the time
the violation was cited does not negate the possibility that
the violation could result in the feared accident. As we
have concluded previously, a determination of the
significant and substantial nature of a violation must be
made in the context of continued normal mining operations.
U.S. Steel Mining Co., 5 FMSHRC 1673, 1574 (July 1984). The
administrative law judge correctly considered such continued
normal mining operations. He noted that the pump vibrated
when in operation and that the vibration could cause a cut
in the power wires' insulation in the absence o~ a
protective bushing. In view of the fact that the vibration
was constant and in view of the testimony of the inspector
that the insulation of the 'power wires could be cut and that
the cut could result in the pump becoming the ground, we
agree that in the context of normal mining operations, an
electrical accident was reasonably likely to occur.
In the above decision, the finding that injury was
"reasonably likely" was based upon a reasonable potential for
injury, not a finding that it was more probable than not that
injury would result. Indeed, based upon the facts found by the

1132

trial judge, one could not find that it was "more probable than
not" that the circuit protection systems would also fail in the
event a bare spot developed in the cable.
Applying the Mathies test to this case, I find that
the evidence amply supports the inspector's finding that the
violation was "reasonably likely" to result in serious injury.
In the event of fire, the accumulations presented a high risk of
propagating a fire and causing serious injuries by burns or smoke
inhalation . The accumulations not only provided a large amount
of fuel to propagate a mine fire, but they were in contact with a
running conveyor belt. The friction of the belt running in loose
coal and coal dust could start a fire.
To hold that the extensive accumulations of loose coal and
float coal dust in this case were not a significant and
substantial violation would run counter to a fundamental purpose
of the statute. The primary concern in passing the Mine Act was
to prevent mine fires and explosions. The Congressional standard
that is reprint~d as § 75.400 is central 1 to that purpose (Black
Diamond Coal Company. 7 FMSHRC 1117 (1985); and see; Buck Creek
Coal. Inc., v. FMSHRC. 52 F. 3d 133 (7th Cir. 1995)) and is
"directed at preventing accumulations in the first place, not at
cleaning up the materials within a reasonable period of time
after they have accumulated." Old Ben Coal Compan~ , l FMSHRC
1954 (1979).
In Black Diamond Coal Mining Company. supra, the
Commission discussed the clear Congressional intent to eliminate
fuel sources of explosions and fires in active workings of
underground coal mines:

* * * 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.
[Sect~on 75 . 400) is one of those
standards . "
Old Ben Coal Co . , 1 FMSHRC 1954, 1957
(December 1979) . We have further stated 11 (i)t is clear that
t hose masses of combustible materials which could cause or
propagate a fire or explosion are what Congress intended to
proscribe." Old Ben Coal Co . , 2 FMSHRC 2806, 2808 (October
1980) . · The goal of reducing the hazard of fire or
explosions in a mine by eliminating fuel sources is effected
~y prohibiting the accumulation of materials that could be

1133

the originating sources of explosions or fires and by also
prohibiting the accumulation of those materials that could
feed explosions or fires originating elsewhere in a mine.
Respondent's contention that wet accumulations of loose coal
and coal dust should not be considered a fire hazard lacks merit.
As I found in Green River Coal Co .. Inc., 13 FMSHRC 1247, 1254-53
(1991) :

Loose coal is not "mud" and can propagate a mine fire.
Once
a fire spreads, the heat can rapidly dry loose coal or coal
dust and further propagate a fire. A mine fire is one of
the principal dangers in underground coal mining.
Permitting substantial accumulations of fuel for a fire
underground is a "significant and substantial" violation.
Respondent's contention that its fire-detection and firefighting systems render the violation non-significant and
substantial also lacks merit. The "likelihood of a fire has no
bearing on the separate question of whether such a fire would be
likely to result in injury.'' Buck Creek. Coal. supra. As the
Seventh· Circuit stated further:
The fact that Buck Creek has safety measures in place
to deal with a fire does not mean that fires do not pose a
serious safety risk to miners.
Indeed, the precautions are
presumably in place (as MSHA regulations require them to be)
precisely because of the significant dangers associated with
coal mine fires.
Also, in assessing the gravity of a safety violation it is
not reasonable to presume that all other safety standards will be
complied with in the event of an emergency. Moreover, the
friction points between the moving belt and the accumulations
support the inspector's finding that a fire was reasonably
likely.
The Commission has also held that "the inspector's
independent judgment is an important element in making
significant and substantial findings, which should not be
circumvented." Cement National Gypsum Company, 3 FMSHRC at 825826.
In Mathies, the Commission concluded that the judge gave
appropriate weight to the inspector's judgment and concluded that
the inspector's testimony was "reasonable, logical, and credible"
based upon his first-hand observations. I find that Inspector

1134

Miller credibly testified regarding the accumulations of
combustible materials and the bases of his finding that the
violation was significant and substantial.
Unwarrantable Violation
The Commission has held that an "unwarrantable" violation
within the meaning of§ 104(d) means "aggravated conduct
constituting more than ordinary negligence." Emery Mining Corp.,
9 FMSHRC 1997, 2001 (1987). This may be shown by evidence that
"a violative condition or practice was not corrected prior to
issuance of a citation or order because of 'indifference, willful
intent or s~rious lack of reasonable care. 111 .I.Q. at 2003.
Respondent has a poor history of compliance with § 75.400.
In a short period of one year and two months before the instant
violation, Respondent was issued 63 citations and orders for
accumulations in violation of § 75.400, three of which were on
the same belt at issue. In numerous contacts with MSHA
inspectors, Resp'o ndent had been cited for § 75.400 viol ations and
notified of the dangers presented by its recurring accumulations
of combustible materials.
Despite this knowledge, Respondent allowed the accumulations
at issue to develop over several days. The combustible materials
were extensive and put Respondent on notice that prompt action
was necessary to clean up the area. Due to the massive size of
the accumulations, after the inspection it took 16 miners 4~
hours to remove the accumulations to abate the violation, working
while the belt was stopped. Before the inspection, Respondent
kept the belt running and assigned only one miner to clean up the
accumulations. Respondent 's conduct in allowing the
accumulations _to develop and assigning only one miner to attempt
to clean up tons of loose coal and float coal dust was
"aggravated conduct constituting more than ordinary negligence."
Its plainly inadequate effort to clean up .the extensive
accumulations is consistent with the testimony of Cecile Scott
and Leonard Gallagher that there was no regular maintenance on
the belts and Scott's testimony that it was more common to clear
combustible material so that the belt would not be running in
loose coal, rather than cleaning up the accumulations.
Respondent has made some important improvements since
Inspector Miller's order on September 1, 1993. However, the
post-inspection changes do not alter the reasonable grounds for

1135

the inspector's findings that the extensive accumulations on
September 1 were "significant and substantial" and due to an
"unwarrantable" failure to comply with the safety ·standard.
Ciyil Penalty

Section llO(i) of the Act provides six criteria for
assessing a civil penalty: history of violations, size of the
mining business, effect of penalty on the operator's ability to
remain in business, negligence, gravity, and abatement efforts
after notice of the violation.
Respondent is a large operator. The proposed penalty will
not affect its ability to continue in business. The gravity of
the violation was high -- a "significant and substantial"
violation. Negligence was high -- an "unwarrantable" violation.
After notice of the violation, Respondent made a good faith
effort to abate the violation. Respondent has a poor history of
compliance with § 75.400.
Considering all of the criteria in§ llO(i), I find that a
civil penalty of $9,600 is appropriate for the violation cited in
Order No. 405414~.
CONCLUSIQNS OF LAW
1. The judge has jurisdiction.

2. Respondent violated 30 C.F.R. § 75.400 as alleged in
Order No. 4054148.
QBDER
1. The proposed settlement of Order No. 4054145 is APPROVED.
Respondent shall pay the approved civil penalty of $8,000 for the
violation in that order within 30 days from the date of this
Decision.
2. Order No. 4054148 is AFFIRMED.
3. Respondent shall pay a civil penalty of $9,600 for the
violation in Order No. 4054148 within 30 days from the date of
this Decision.

1136

4. The STAY in Order No. 4054043 is LIFTED. The parties
shall have 15 days from the date of this Decision to file their
joint or separate proposed findings, conclusions an~ civil
penalty as to Order No. 4054043.
5. This Decision constitutes the judge's final disposition
of all issues as to Order No. 4054148 and therefore constitutes a
final decision for purposes of any petition to review the
Decision as to that order. However, the case remains open before
the judge as to Order No. 4054043 until a final decision is
entered as to that order .

d.~
- ~~tA-William Fauver
Administrative Law Judge
Distribution:
Miguel J. Carmona, Esq . , and Ruben Chapa, Esq., Office of the
Solicitor, U.S. Department of Labor, 230 Dearborn St., 8th Floor,
Chicago, IL 60604 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll Corp., 600 Grant St.,
58th Floor, Pittsburgh, PA 15219-2887 (Certified Mail)
/lt

1137

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMIN ISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGI NIA 22041

JUL 1 7 1995"

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of
RANDY CUNNINGHAM,
Complainant
v.
I

DISCRIMINATION PROCEEDING
Docket No . PENN 95-73-D
MSHA Case No. PITT CD 94-04
Dilworth Mine
Mine I.D . No. 36-04281

CONSOLIDATION COAL COMPANY,
·. Respondent
DEC I SI ON APPROVING SETTLEMENT
Before :

Judge Amchan

This case is before me pursuant to a discrimination
complaint filed pursuant to section 105(c) of the Act . The
Secretary has filed a motion to withdraw the discrimination
complaint and to dismiss the proposed civil penalty.
I have
construed this motion as one requesting approval of a settle ment agreement. The motion is granted.
Mr. Cunningham filed a complaint with MSHA alleging
that he was not paid for an hour during which he served as
a walkaround representative during an MSHA inspection.
Respondent has agreed to pay him for this hour and the
Secretary has agreed to withdraw its proposed civil penalty.

1138

I conclude this agreement is consistent with the Act. I
therefore grant the Secretary ' s motion and dismiss this case.

~

~ur

Am::-

;J.
Administrative Law Judge

Distribution:
Pamela W. McKee, Esq., Office of the Solicitor,
U.S. Department of Labor, 14480 Gateway Building,
3535 Market Street, Philadelphia, PA 19104
Elizabeth Chamberlin, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241

/lh

1139

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

JUL 1 7 1995·

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 95-80
A.C. No. 36-05466-04033
l

v.

Mine:

Emerald No. 1

CYPRUS EMERALD RESOURCES
CORP.
Respondent
I

PECISION APPROVING SETTLEMENT
Appearances:

Joseph T. Crawford, Esq., Office of the
Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Petitioner;
R. Henry Moore, Esq., Buchanan, Ingersoll, P.C.,
Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge Amchan

This case is before me upon a petition for assessment of
civil penalty under section i05 (d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 ~ ~· Upon comme~ce
ment of the hearing on May 31, 1995, the parties advised me
that they had achieved a settlement of the entire case. The
terms of the settlement are as follows:
Order No. 3668845:

The penalty is reduced from $1,000 to

Order No. 3668699:
$4,000.

The penalty is reduced from $5,500 to

$600.

1140

Order No. 3672349: This order is modified to a section
104(a) citation. The unwarrantable failure allegation is
deleted and the penalty is reduced from $5,000 to $2,000.
Order No. 3672354: This order is modified to a section
104(a} citation. The unwarrantable failure allegation is
deleted and the penalty is reduced from $4,200 to $3,000.
Order No . 3672355: This order is modified to a section
104(a) citation. The unwarrantable failure allegation is
deleted and the penalty is reduced from $9,500 to $6,000.
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.
I

ORDER
WHEREFORE IT IS ORDERED that the motion for approval of
settlement is GRANTED and Respondent shall pay the approved
penalties within 30 days of this decision. Upon such payment
this case is DISMISSED.

A9:a~

Administrative Law Judge
Distribution:
Joseph T. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, 14480 Gateway Building,
3535 Market Street, Philadelphia, PA 19104
R. Henry Moore, Esq. , Buchanan Ingersoll, P.C.,
600 Grant Street, 58th Floor, Pittsburgh, PA 15219-2887
\lh

1141

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

JUL 1 7 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 93-482-M
A.C. No. 45-03284-05501

v.

COWLITZ VALLEY SAND & GRAVEL,
Respondent

Docket No. WEST 93 - 649-M
A.C. No. 45-03284-05502
Docket No. WEST 94-78-M
A.C. No. 45- 03284-05503
Docket No. WEST 94-237-M
A.C. No. 45-03284-05504
Cowlitz Valley Sand & Gravel

DECISION
Appearances :

Cathy L. Barnes, Esq., Office of the Solicitor,
U.S. Department of Labor, Seattle, Washington
for Petitioner;
James A. Nelson, Esq., Toledo, Washington
for the Respondent

Before:

Judge Melick

These consolidated cases are before me upon the petitions
for civil penalty filed by the Secretary of Labor pursuant to
Section lOS(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801, et seq., the "Act," charging Cowlitz Valley Sand
and Gravel (Cowlitz) with multiple violations under the Act and
proposing civil penalties for those violations. A preliminary
issue is whether Cowlitz, during relevant times, was under the
jurisdiction of the Act. A bench decision was rendered on this
jurisdictional issue following hearings and that decision follows
with only non-substantive corrections:
THE COURT: All right. I'm prepared to rule. First
of all, let me note that the issue is very well framed by
Respondent in its memorandum of law . That memorandum sets
forth the basis for jurisdiction under the Mine Safety and
Health Act of 1977, which .I'll refer to as the Mine Act,
over any mine as dependent upon interstate commerce as set
forth in the Mine Act. Section 4 of the Mine Act reads as
follows: "Each coal or other mine, the products of which
enter commerce, or the operations or products of which

1142

affect commerce, and each operator of such mine, and every
miner in such mine shall be subject to the provisions of
this Act."
Section 3(b) of the Mine Act defines commerce as
"trade, traffic, commerce, transportation or communication
among the several states or between a place in a state and
any place outside thereof, or within the District of
Columbia or a possession of the United States, or between
points in the same state but through a point outside
thereof."
As counsel for Cowlitz notes also in his memorandum, as
of March 1, 1993, Cowlitz had not commenced production. I
believe there's no dispute that no products had in fact
entered commerce as of March 1, 1993. Again, cowlitz's
Counsel states correctly, I believe, the issue then is as of
March 1, 1993, had the operations of Cowlitz Valley Sand &
Gravel Company affected commerce within the meaning of that
term and Section 4 of the Mine Act.
I'm relying to a large extent on a Ninth Circuit
decision, Cyprus Industrial Minerals Co. v. Federal Mine
Safety and Health Review Commission, 664 F.2d 1116 (1981) in
which the drilling of an exploratory shaft in search of a
commercially exploitable deposit was found subject to the
Act. Several Commission Judges have also found jurisdiction
under similar circumstances. Secretary v. SH&M Coal Co.,
11 FMSHRC 1154 (June 1989), a decision of Judge Koutras
and Judge Amchan recently in Secretary v. The Pit,
(September 1994). Each of these cases supports the
proposition that since the operator was preparing for
activities that clearly would effect commerce that is
sufficient to bring it within the scope of jurisdiction
under the Mine Act.
There's no need to review the evidence in this case
because it is undisputed and it is in effect essentially
stipulated that Cowlitz was in preparation for activities
that clearly would affect commerce at the time of the
March 1,1993, inspection. But just to review the evidence
on this issue, we have first of all Exhibit No. 2 submitted
by the Petitioner, which is a letter dated November 18,
1992, from Ms. Wallace [on behalf of Cowlitz], which states
that, among other things, "We have also started ·to move
overburden to the west side of the equipment site in order
to stockpile on the west side and create a berm to help
prevent any unknown problems unseen at this time." There
are other statements in that letter indicating preparation
for commencement of mining of crushed rock that was to be
sold in commerce.

1143

The testimony of Mr. Sam Tomes [a Cowlitz foreman] also
corroborates that they were beginning preparations or were
continuin9 preparations for the sale of mine product, which
he testified actually began in July of 1993. Mr. Tomes
testified that they were, prior to March l, 1993, setting up
crushers, conveyers, welding legs on conveyers, building
chutes, and partially removing a hill at the facility in
order to set up the plant. Also that they were constructing
an access road beginning as early as January and through
April of 1993 to permit better access to the mine site.
That they were continuing -- and he was continuing to
perform tests on the crushers . That he was adjusting the
crushers and actually placing product through the crushers
to further adjust the crushers. 1
I don't even have to go into the inspectors• testimony
on this point to establish clearly that these were
activities in preparation for activities that would clearly
affect commerce. Again, I would cite to you the Cyprus
Industrial Minerals case, as well as the two Administrative
Law Judges' decisions, and also the case cited by the
secretary, · that is Godwin v. the Occupational Safety and
Review Commission, 540 F.2d 1013, a Ninth Circuit decision
in 1976.
I would also note in this case the Respondent's use of
equipment that, by the testimony of Mr. Tomes again,
originated out of the state of Washington. That is the
equipment that was manufactured in Iowa and Oregon .
I also note that under Section 3(h) (1) of the Mine Act
itself a coal or other mine is defined -- and this is a long
definition but within that definition there is the plain
language itself explicitly that equipment that is located at
a site where mining will take place and will be used in the
extraction of minerals or the milling of minerals is subject
to Mine Act jurisdi ction even if mining has not commenced.
That section reads in part as follows: "'Coal or other
mine' means (A) an area of land from which minerals are
extracted in nonliquid form or if in liquid form are
extracted with workers underground, (B) private ways and
roads appurtenant to such area, and (C) lands, excavations
underground passageways, shafts, slopes, tunnels, and

1

To the extent that mine product was used on the premises
of the Cowlitz mine to improve the access road this operation
also affected commerce within the meaning of the Act. see Fry v.
United States, 421 U.S . 542, 547 (1975); Wickard v. Filburn, 317
U.S. 111, 128 (1942)

1144

workings, structures, facilities, equipment, machines,
tools, or other property 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 forms
or used in or to be used in the milling of such minerals."
Under the circumstances, jurisdiction lies under the Mine
Act over this operation and did so as of March 1, 1993.
Conditioned upon this finding of jurisdiction the parties
thereafter reached a settlement in which the Petitioner vacated
citation Nos. 4127598 and 4128390 and with respect to the
remaining violations agreed to reduce the proposed penalties from
$874 to $500 based in part on the operator's good faith belief
that it had not yet become subject to MSHA jurisdiction. The
Secretary subsequently filed a written motion in support of the
settlement. I have considered the representations and
documentation submitted in these cases and I conclude that the
proffered settlement is acceptable 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 Respondent pay a pen~lty of $50~ within 30
days of the date of this decision .
t
:

~~/i'

I

i ~..
ll \•

.
,:

'

.

l

"

',

\

I

· ~.. .- ~

i':
I
Gary Mel-ick
i:

Administrative
703-756.!~261

w Judge

Distribution:
Cathy L. Barnes, Esq., U.S. Dept. of Labor, Office of the
Solicitor, 1111 Third Avenue, Suite 945, Seattle, WA 98101
(Certified Mail)
James A. Nelson, Esq., 205 Cowlitz.' P.O. Box 878, Toledo, WA
98591 (Certified Mail)
\jf

1.1-45

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

JUL 1 9 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. SE 91-97
A. C . No. 40-02755 - 03525

I

Docket No. SE 91-533
A. C. No. 40 - 02755-03527

FAITH COAL COMPANY,
Respondent

Docket No. SE 92-315
A. C. No. 40-02755-03536
Docket No . SE 92-316
A . C. No. 40 - 02755-03537
Docket No. SE 92-343
A. C. No. 40-02755-03538
Docket No. SE 92-372
A. C . No. 40-02755-03540
Docket No. SE 92-373
A . C . No. 40-02755-03541
Docket No. SE 92-375
A. C . No. 40-02755-03542
Docket No . SE 92-463
A . C. No. 40-0 2 755 -03 543
Docket No. SE 92-464
A. C . No. 40-02755-03544
Docket No . SE 92-488
A . C. No. 40-02755 - 03545
Docket No. SE 93 - 78
A. C. No. 40-02755 -035 47
Docket No. SE 93-79
A. C . No. 40 -0 2755-03548

1146

Docket No . SE-93-194
A. C. No. 40-02755-03549
Docket No. SE-93-195
A . C. No. 40 - 02755-03550
Docket No . SE 93-257
A. C. No. 40 - 02755 - 03552
Docket No . SE 93-300
A. C. No. 40-02755-03553
Docket No . SE 93-348
A. C. No . 40 - 02755 - 03555
Docket No. SE 93-365
A. C. No. 40-02755-03556
Docket No. SE 93-366
A . C. No . 40-02755-03557
Docket No. SE 93-411
A. C. No . 40-02755-03558
Docket No . SE 94-42
A . C. No. 40-02755 - 03561
Docket No. SE 94-75
A. C . No. 40 - 02755-03562
Docket No. SE 94-96
A. C. No . 4 0-02755 ~ 03563
Docket No. SE 94-256
A . C. No . 40-02755-03564
Docket No . SE 94 - 257
A. C. No. 40-02755-03565
No . 15 Mine

1147

PECISION

Appearances:

Ann T. Knauff, Esq., Office of the Solicitor,
U.S. Dept. of Labor, Nashville, TN,
for Petitioner;
Russell Leonard, Esq., 603 Cumberland St.,
Cowan, TN, for Respondent;
Lonnie Stockwell, Faith Coal Company,
Palmer, TN, for Respondent.

Before:

Judge David Barbour

These consolidated cases are before me upon petitions for
the assessment of civil penalties filed by the Secretary of Labor
(Secretary) pursuant to section 110 of the Federal Mine Safety
and Health Act of 1977 (30 U.S.C . § 820) . The petitions charge
Faith Coal Company (Faith) with numerous violations of mandatory
safety and health standards at its No. 15 Mine. The issues are
whether Faith violated the cited standards and, if so, the amount
of the civil penalties to be assessed.
The cases were heard in Jasper, Tennessee. The Secretary
was represented by counsel, Ann T. Knauff. Faith was represented
by counsel, Russell Leonard, and by its owner, Lonnie Stockwell.
(Leonard's appearance was limited to one day and to one issue
the effect of any civil penalties assessed on Faith's ability to
continue in business . )
As indicated below, many of the alleged violations were
settled . The settlements were explained thoroughly by counsel
for the Secretary . I have considered the explanations and find
them appropriate.
The settlements are approved. Although the Secretary
proposed civil penalties for the settled violations, the parties
understood that the penalties assessed will be those I find
warranted in light all of the statutory penalty criteria;
particularly, the criterion relating to Faith's ability to
continue in business (Tr. · II 2;59, 265-270, 330) .

1148

STIPULATIONS
The parties agreed that:
1 . Faith was a contract operator for Tennessee Consolidated
Coal Company (TCC) .
2 . Faith's contract with TCC was dissolved by mutual
agreement on September 3 0 , 1993 .
3.

Faith engaged in commerce.

4. The Act applied to Faith's No. 15 Mine, and the
Commission had jurisdiction to hear and decide the cases.
5.
The inspectors who issued the subject citations and
orders were authorized representatives of the Secretary and were
acting within the scope of their authority when they inspected
the mine.
6. The mine has been abandoned temporarily since
October 1, 1993 (~ Tr. I I 9-10).

CONTESTED CITATIONS AND ORDERS
Docket No. SE 92-316
Citation/
Order No.
3395933

~

2/26/92

30 C.F.R.
75.1808

Assessment
$20

Citation No . 3395933 states:
The approved books and records being
maintained in the mine off ice on the surf ace
were not stored in a f i~e proof repository to
minimize their destruction by fire or other
hazards (Joint Exh. 6) .
Inspector Clyde J . Layne testified that on February 26, 1992,
he went to the mine and found that none of the approved books and
records were kept in a fireproof structure as required by
section 75.1808. Rather, they were lying in the open , on a desk

1149

(Tr. III 519). The mine office was housed in a metal "van-type
truck body" (Tr . III 520; .s..e.e. Joint Exh. 6A}. Layne considered
the outside of the truck body to be fireproof, but the inside of
the truck body was cluttered with combustible materials -- maps,
paper bags, cardboard items and mine record books . Most of the
books and records on a desk were in the midst of the clutter (Tr.
III 522) . If a fire started, the books and records would have
burned (Tr. III 521-522).
Grinding wheels and torches were located inside the truck
body (Tr. III 523). Although the truck body did not contain a
central fire fighting system, there was a fire extinguisher at
its rear.
The office was used on an intermittent basis. If a fire
started and the approved books and records burned, miners
probably woul d not have been endangered (Tr. III 525). Although
Faith was negligent, Stockwell meant to correct the conditions
that resulted · ~n the violation but had not gotten around to it
(.I..d....)

Faith abated the conditions by putting the books in an old,
metal refrigerator (Tr . III 526). According to Layne, metal
refrigerators were used as fire proof repositories at several
other mines, and their use had been approved by the MSHA field
office supervisor (.I.d..._ 527-528 ) .
Stockwell did not disagree with the inspector's description
of the conditions. However, he did not believe the conditions
constituted a violation. He regarded the truck body as a
fireproof repository (Tr. III 529).
The Violation
I ruled from the bench that the violation existed as
charged . I stated:
[T]hat the building itself is fireproof
may well be true, but ... even though [the]
building is made of metal . .. if [Faith's]
records are kept ins·ide . . . and in such ...
condition that they are subject to fire, they
must be stored in a fireproof repository
inside the . .. building
(Tr . I I I 5 3 0 ) .
I affirm the ruling.

1150

Gravity and Negligence
I also find, based upon Layne's testimony, that the
violation was not serious and that Faith was negligent in
allowing the violation to exist.
DOCKET NO. SE 92-343
Citation/
Order No.
339604 2

llfil...e.

3 / 02 / 92

30 C.F.R.
77.1104

Assessment
$94

Citation No . 3396042 states:
Accumulation[s] of combustible materials
(loose wooden planks, and dry weeds) that
could create a fire hazard had accumulated
around the powder storage magazine on the
surface (Joint Exh. 13 ) .
Clyde Layne testified that on March 2, 1992, he observed a
powder magazine sitting on wooden planks and surrounded by weeds.
Layne believed that this condition was a violation of section
77.1104, which prohibits accumulations of combustible materials
where they can create a fire hazard. Layne also believed that
two miners were exposed to the hazard created by the conditions
(Tr. III 538-539) .
Layne found the alleged violation to be a significant and
substantial c o ntribution to a mine safety hazard (S&S) because
the powder storage magazine was located near the road to the mine
entrance and miners traveled along the road.
If the ~ccumulated
combustible materials caught fire, they could heat the magazine
to the point where the powder could explode and miners could be
hurt (Tr. III 539, 545). Such a ' fire could be started by a
forest fire, by lightning, or by a person flipping a cigarette
butt out of the window of a passing car (Tr. III 542-543).
Layne did not know how long the conditions had existed.
Nor did he know if his supervisor had told Stockwell that the
location of the powder magazine was acceptable (Tr . II 540-541).
Nonetheless, Layne believed Faith was negligent in allowing the
conditions to exist (Tr. III 539-540).

1151

According to Layne, the conditions were abated -when
Stockwell's brother, James Stockwell, removed all of the planks
and all of the weeds from beneath and around the magazine (Tr.
III 542, 544).
James Stockwell testified that the magazine was installed on
March 1, 1992, the day before Layne cited Faith for the alleged
violation, and that Layne's supervisor had approved the location
of the magazine (Tr. III 548-549). James Stockwell asked the
supervisor about the location of the magazine because he was
concerned it might be too close to a telephone pole. According
to James Stockwell, the supervisor stated that there was nothing
wrong with the location (Tr. III 553).
James Stockwell also stated that the magazine was located on
the side of a spoil bank and that a board was placed under it to
level the magazine (Tr. III 550-551). The only "planting"
Stockwell remembered near the magazine was one pine tree,
approximately 10 feet away (Tr. III 552).
The Violation
I find that a violation of section 77.1104 existed. Although
the witnesses' testimony was in conflict regarding the vegetation
around the magazine, it is clear, as James Stockwell himself
testified, that at least one wooden board was underneath the
magazine. This board was enough to establish an accumulation of
prohibited combustible material and the creation of a prohibited
fire hazard.
Further, although I credit James Stockwell's testimony
regarding a conversation with Layne's supervisor concerning the
acceptability of the magazine's location, the conversation, as
recounted by James Stockwell, involved the _ location of the magazine,
not the board under it, and the conversation does not impact the
existence of the violation.

1152

S&S and Gravity
The violation was neither S&S nor serious. The potential
ignition sources catalogued by Layne (forest fire, lightning or a
cigarette butt ) were highly speculative . I conclude there was no
reasonable likelihood of injury associated with the violation.
Negligence
Faith was negligent in allowing the violation to exist. It
knowingly used the wooden board to level the magazine. The cited
standard is clear. The circumstances required Faith to make sure
combustible material was not allowed in the immediate vicinity of
the magazine, and the company failed to meet its standard of care.
Citation/
Order No.
3396041

~

30

3 / 2/ 92

75 . 1713-7(a) (1)

C . F.R .

Assessment
$94

The operator did not maintain the
required supply of first-aid equipment at the
mine work site. The following items were
missing; one stretcher and one broken-back
board (Joint Exh. 12) .
During the course of Layne's testimony regarding the alleged
violation, it became apparent that the inspector had cited the
wrong standard. He stated that he should have cited section
75.1713 (a ) (3 ) , rather than section 75.1713-7(a) (1)
(Tr. III 564 ) . Counsel for the Secretary moved to amend the
citation to allege a violation of section 75 . 1713(a) (3) on the
grounds that there was an "understanding between the inspector
and the operator about exactly which regulation _w as be.ing
violated" (Tr. III 565). Stockwell objected.
I denied the motion because I concluded there was confusion
between the inspector and the operator about the standard. I
also concluded that because Stockwell prepared to def end against
the citation as written, it was too late to. amend it. As a
result, I indicated the citation should be vacated (Tr. III 567568). Nothing in the record convinces me I was wrong, and I
affirm the bench ruling.

1153

Citation/
Order No.
3396045

~

3/2/92

30 C.F.R.
75.202(a}

Assessment
$147

Citation No. 3396045 states in part:
The spacing of roof bolts were not
maintained on 5 feet centers located
approximately 700 feet inby the .. . portal in
that several permanent roof bolts were spaced
from 5 1/2 to 9 feet apart. Approximately 7
bolts need to be installed in this area.
This entry was driven by another
operator and is being cleaned up to install a
belt conveyor by the present operator. The
[a]pproved [r]oof [c]ontrol (p]lan requires
permanent roof supports to be installed on
S feet by 5 feet [centers] (Joint.· Exh. 16) .
Layne testified that on March 2, 1992, he inspected an entry
that was being cleaned for the installation of a belt conveyor,
he observed an area of the roof were the spacing of roof bolts
exceeded the five foot limit specified in the roof control plan.
Several of the bolts were as muc h as 9 feet apart.
Although the area was low and travel through it could onl y
be done if a person crawled, tracks on the floor indicated to
Layne that "people crawled through [the] area" (Tr . III 576,
See also Tr. III 564-572, 576, 577).
When Faith took over the mine from the previous operator,
the area had been "gobbed out" and travel through it had been
impossible.
Faith's miners cleared away the gob material
and thereby made the area passabre (Tr. III 594). The roof bolts
had been installed by the previous operator. Nevertheless, in
Layne's view, Faith became responsible for the condition of the
roof when it assumed control of the mine (Tr. III 570-571).
To abate the condition, the roof bolting machine was moved
into the area and the required additional roof bolts were
installed (Tr. III 578).

1154

Layne believed that the alleged violation was S&S because a
roof fall accident "could be fatal" (Tr. I I I 582).
Layne also
believed that because the area had to be pre-shift examined prior
to miners working in it, the company should have known of the
existence of the improperly spaced roof bolts (Tr. III 379) .
However, he acknowledged that it was possible for management
personnel to crawl through the area and to not see the improperly
placed roof bolts, many. of which where on the sides of the entry
(Tr. I I I 5 8 2 , 5 84 ) .
Stockwell did not dispute that the roof bolts were
misplaced. He also agreed that he had crawled through the
affected area when Faith started to rehabilitate the entry
(Tr. III 600 ) . (Stockwell stated that he believed he was the
only person who had crawled through the area (Tr . III 603-604) . )
With regard to the general condition of the roof, Stockwell
stated tha t ttit was not as good as we [thought] 11 (Tr. III 602) .
The Violation
To establish a violation of section 75.202(a), the Secretary
must prove that the affected area was a place where a person or
persons worked or traveled, and that the roof was not supported
to protect the person or persons from roof falls. Here, the
Secretary has met his burden of proof.
Layne believed that miners working to rehabilitate the
entry, traveled under the affected roof. However, there also was
credible testimony that miners could have trave l ed in adjacent
intake and return entries rather than directly under the roof of
the area in question . Given the low height of the entry at the
affected point and the fact that miners could have traveled in
the adjacent entries, I do not cr~dit Layne's belief . This is
especially tru,~ because Stockwell offered a persuasive
explanation for the tracks on the floor of the area -- i.e. , that
he crawled through the entry.
In any event, since Stockwell hims~lf traveled through the
affected area on at least one occasion and since Stockwell agreed
t hat the cited roof bolts were not spaced as required by the roof
control plan, I find that a violation of section 75.202(a)
existed. The plan sets forth the minimum that is required to

1155

support the mine's roof. When, as here, an operator does not
meet a minimum requirement of the plan, it is reasonable to
conclude that the . roof is not supported to protect miners, in
this case, Stockwell, from a roof fall hazard.
S&S and Gravity
The Secretary did not establish the S&S nature of the
violation. The sole testimony offered by Layne regarding an
injurious roof fall was that a roof fall accident "could be
fatal" (Tr. III 582). On its own, LaY,ne's opinion does not
establish "a reasonable likelihood.that the hazard contributed to
will result in an injury" (Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984)).
Nevertheless, this was a serious violation . The fact that
the evidence established that only Stockwell crawled under the
improperly supported roof does not diminish its gravity. The
roof did not meet the minimum roof support requirements which
means there was at least some likelihood that it would fall.
Had
it.· fallen on Stockwell, his death or serious injury almost
certainly would have resulted.
Negligence
I also conclude Faith was negligent. If reasonable care had
been exercised, the inadequately supported roof would have been
properly bolted before it came to Layne's attention. As Layne
correctly observed, Faith was the operator and therefore was
responsible for the condition of the roof.
Faith's negligence is
mitigated to some extent by the fact that Faith did not install
the roof bolts, and by the fact that the area in question was not
subject to frequent visits by mine personnel.
Citation/
Order No.
3396047

l.1fil.e.
3/3/92

30

C.F.R.

75.208

Assessment
$88

Citation No . 3396047 states:
A readily visible warning or a physical
barrier was not installed on the end of the
permanent roof support to impede travel beyond

1156

permanent support in the crosscut connecting the
Nos. 2 and 3 working places on the 001 section.
There was a distance of approximately 15 feet
that was not support[ed] with roof supports
{Joint Exh. 19).
Layne testified that on March 3, 1992, he inspected a
connection between two crosscuts. The roof in the connection was
not supported for a distance of approximately 15 feet.
Indications had not been placed at the end of the supported roof
to warn miners of the lack of support, nor had barriers been
installed (Tr. III 629, 633). No miners were at work on the
section when Layne observed the condition. However, Layne
noticed that one cut had been taken out of the face and that the
loading machine was parked approximately 40 feet outby the
crosscut (Tr. III 630, 637-638). This signified to Layne that
miners recently, had worked on the section (Tr. III 630}.
There was no indication that miners had passed through the
crosscut. Layne did not note any tracks on the floor under the
unsupported area (Tr. 630-631).
Layne discussed the condition with Stockwell. Layne stated
that Stockwell told him the equipment had been moved to the
section the previous day and that work had not yet begun on the
section (Tr. III 632). Layne did not believe Stockwell because
.of the 11 fresh 11 cut at the face.
(l..d.•J .
Layne found the alleged violation to be S&S. Layne believed
miners would take for granted that the roof was supported (Tr.
III 632). The lack of any warning device or barrier to impede
travel under the roof would reinforce this assumption. . If the
roof fell and hit a miner, the resulting injury would be "bad" or
11
fatal" (l.d.J .
Layne believe'd that Faith was negligent. The lack of a
warning device or barriers should have been detected ·a nd
corrected. Equipment had been in the area. The area had to be
preshift examined. The condition was not noted in the preshift
examination book (Tr. III 635, 642-643).
Stockwell maintained that the general area where the alleged
violation existed was not a work site prior to Layne's visit
(Tr . III 645) .
1157

The Violation
I fully credit Layne's testimony.
It was consistent and
persuasive. As Layne stated, the lack of support left 15 feet of
exposed roof. There were no visible warnings of the end of
permanent roof support nor any type of barrier. The standard
requires readily visible warning signs or barriers under such
conditions. The violation existed as charged.
S&S and Gray"ity
The inspector's testimony falls short of establishing the
third element of the Mathies test. The obvious purpose of the
standard is to alert miners to stay out of areas where the roof
is not supported. The discrete safety hazard contributed to by
the violation is that the roof will fall on miners who
unexpectedly venture under the unsupported roof. Analysis under
Mathies, as further explained by the Commission in U . S. Steel
Mining Company Inc., 6 FMSHRC 1834, 1836 (August 1984), requires
the Secretary to establish "a reasonable likelihood that the
hazard contribu ted to will result in an event in which there is
an injury . " In the context of a violation of section 75.208, the
Secretary must establish that because a sign or barrier is
missing, miners will be reasonably likely to proceed beyond
permanent roof support and be injured.
I accept as fact that without a sign or barrier, miners will
reasonably likely believe the roof is supported when it is not,
and inadvertently, will proceed beyond ~rmanent roof support.
However, to find it reasonably likely that miners will be
injured, the Secretary must offer some evidence regarding the
instability of the subject roof.
Layne, without further amplification of what he meant,
described the roof as "fair" (Tr. · III 633). Also, he noted that
the roof lacked visible signs of stress (Tr. III 633). Because
the Secretary did not of fer any testimony regarding an inherent
instability of the roof in the area or any specific signs of
instability, I cannot find that the violation was S&S.
Nevertheless, it was a serious violation . As I have found,
without visible warning signs or barriers, miners would likely
proceed under the unsupported area and subject themselves to the

1158

chance of death or serious injury . As Layne persuasively
explained, they would assume the roof was supported properly
(Tr. I I I 6 3 2 ) .
In addition, Layne's testimony that work recen tly had taken
place at the face was credible and I accept it as fact . Thus,
miners had been in the general vicinity of the unsupported roof
and easily -could have been exposed to the hazard .
Negligence
Faith was negligent. The fact that miners had been working
in the general area required that the area be preshift examined.
The violation was obvious visually. Faith should have known of
the existence of the unsupported roof and of the lack of visible
signs or barrieJ;s. The condition should have been detected and
corrected.
Docket No. SE 92-463
Citation/
Order No .

l&.t..e.

3024224

5/28/92

30 C. F.R .
75.208

Assessment
$88

Citation No. 3024224 states:
The first crosscut on the left side of
the No . 1 room had been advanced
approximately 22 feet inby the last row of
permanent suppor.t.s, and the ·area was not
posted with a visible warning or provided
with a physical barrier to impede travel
beyond permanent support (Joint Exh . 29).
MSHA Inspector Tommy D. Frizzell testified that on
May 28, 1992, he found that mining had advanced approximately
22 feet inby the last permanent roof supports in the No. 1 room,
and that no warning device nor barrier had been installed (Tr. II
276 - 277, 280).
(Frizzell was accompanied by Stockwell during the
inspection . ) Frizzell measured the unsuppor ted area by tying a
tap e measure to his hammer and throwing the hammer to the end of
the cut (Tr. II 287-288) .

1159

The mined area was in "low coal" (i.e. , 38 inch coal)
(Tr. II 277 , 287). Because of the low coal, miners had to travel
through the area by "crawling with [their] head[s] down" (Tr. II
278}. The only light was from their cap lamps. It was difficult
for miners to note the condition of the roof, and Frizzel
therefore believed the presen~e of a warning device or barrier
was necessary to alert miners to the fact they were approaching
an unsupported area.
(Frizzel stated that either a reflective
streamer or a barrier that blocked the entry would have been
acceptable (Tr. II 279-280) .}
Frizzell issued the citation at approximately 8:20 a.m. The
shift had stated at approximately 6:00 a.m . Frizzell believed
that the preshift examiner should have detected the lack of a
warning device or barrier (Tr. II 281). He also believed that
equipment had proceeded under the unsupported roof because the
area had been cleaned. In addition, he saw equipment tracks on
the mine floor and remote control equipment was not in use at the
mine (Tr. II . 279) .
Frizzell found the alleged violation was S&S. The roof in
the cited area was "fair roof" and Frizzell could not detect any
"discontinuities" in it (Tr. II 281) . Nonetheless, he explained
that 11 [e]ven though the roof may look good on the surface .. .
when you go inby roof supports you're just gambling" (Tr. II
283) . He explained, 11 roof falls ... [are] the No. 1 killer in
the coal mine industry" (Tr. II 295). Had a roof fall occurred
while a miner was inby permanent roof supports, the miner could
have been fatally injured (Tr . II 284}.
In Frizzel's opinion, the person most likely to have been
injured was the operator of a roof bolting machine, although any
of the seven or eight miners who worked underground were
potential targets of the hazard.
(Tr . II 284-285, 29i}. Due to
the low height of the coal, canopies were not required on the
roof bolting machines and none were provided (Tr. II 297).
A streamer was installed within 25 minutes to abate the
condition (Tr . II 286).
Stockwell agreed that a streamer was not hanging at the
beginning of the unsupported area. However, he maintained one
was in a place when he conducted the preshift examination at

1160

approximately 5:30 a.m. (Tr. II 298, 300, 303). He stated that
it was normal practice at the mine· to hang a streamer to warn of
unsupported roof (Tr. II 298-299).
The Violation
As previously noted, the cited standard requires a visible
warning device or a physical barrier at the end of permanent roof
support . The parties do not dispute that neither a device nor a
barrier was present. Therefore, .I find that the violation
existed as charged.
S&S and Grayity
Again, I conclude the Secretary has failed to establish a
reasonable likelihood that the hazard would have contributed to
an injurious roof fall. Frizzell's testimony regarding "fair
roof 11 and the rc;ick of "discontinuities,'' does not afford a basis
for a finding of "reasonable likelihood, 11 and the fact that roof
falls are the No. 1 killer of the nation's miners does not speak
to the specific circumstances upon which the violation is based.
Nevertheless, the violation was serious. Without a warning
device or barrier, a miner intent on e~tering the area easily
could have failed to recognize the lac~ of roof support ;
especially since the coal was low. Moreover, and as Frizzell
observed, had falling roof hit a miner, death or serious injury
could have been expected.
Negligence
Faith was negligent. The lack of a streamer or barrier was
obvious visually . In failing to correct the condition, Faith
faile·? · to exhibit the care required of it by the circumstances.

1161

Docket No. SE 92-373
Citation/
Order No.
9883375

D.a.t.e.
4/13/92

30 C.F.R.
70.208(a)

Assessment
$50

Citation No. 9883375 states:
The mine operator did not submit a valid
respirable dust sample during the
Feb[ruary]/March bimonthly sampling period
from designated area sampling point (9)01-0
as shown on the attached advisory dated
4/7/92 (Joint Exh. 27).
Inspector Judy McCormick stated that Faith failed to submit
a valid respirable dust sample for the designated area of the
• roof bolting machine for the ·bi-monthly period of February/March
1992 (Tr. III 654-655). As McCormick explained, an operator is
responsible for collecting the required samples and for
submitting them to MSHA. The operator also is. responsible for
determining when, during the bi-monthly period, the samples will
be taken (Tr. III 656). The samples must be mailed within 24
hours of collection. MSHA allows seven days past the end of the
sampling cycle for the mail to process. If a sample is not
received within 7 days (in this particuiar case, by
April 7, 1992), a violation of the regulation is assumed to exist
(Tr. III 671). If a sample is received out of time, it is not
considered a valid sample (Tr. III 673.> . McCormick stated that
on April 8, 1992, she was advised by computer, that the subject
sample had not been submitted (Tr. III 665).
Operators mail samples to MSHA. McCormick described as
"very rare" those instances in which samples are lost in the mail
(Tr. III 657). McCormick could not recall if Stockwell orally
claimed to have mailed the particular sample in question, but was
certain she had not received from him a written notification that
it had been mailed. (Tr. III 658).
When asked about the procedures an operator could follow if
a sample sent by regular mail was lost, McCormick replied that
the operator had to file a lost mail claim with the postal
service (Tr. III 659).

116 2

On cross examination, McCormick indicated that MSHA's
records showed a sample for the designated area was taken by
Faith on March 31, 1992, and was processed by MSHA on
April 8, 1992. However, the sample was discarded because it was
invalid (Tr. III 670).
In McCormick's opinion, the alleged
violation was largely a "paper work violation," and she did not
expect that any miners would become ill because of it (Tr, III
660) .

Stockwell testified that the sample was late because he
could not get enough sampling devices from TCC.
Stockwell also
maintained that if Faith's sample had been received on April 7
rather than April 8, 1992, "everything would have been fine"
(Tr . I I I 6 7 5 ) .
The Violation
The violation existed as charged. As McCormick's testimony
made clear, the violation was based upon the presumption that
samples received more than seven days after the end of the
sampling cycle were not collected in a timely fashion.
Counsel
for the Secretary stated, "There is a presumption that ... any
sample that is taken within [the) bimonthly sampling period, even
if it's taken on the last day, will get to the processing center
and through the processing [in] seven days . . . and that's a
perfectly reasonable presumption" (Tr . III 676).
I agree with counsel. Given the fact that operators and
MSHA must rely on the postal service, the allocation of a seven
day "grace period" by the agency is a rational way to compensate
for any delay of the mail. Faith did not offer any evidence to
rebutt the presumption.
Gravity and Negligence
Based upon McCormick's testimony I find that the violation
was not serious, and that Faith was negligent.

1163

Docket No. SE 93-348
Citation/
Order No,
9883544

~

2/18/93

30 C.F.R.
70.20l(c)

Assessment
$50

Citation No. 9883544 states in part:
On January 28, 1993, the operator was
notified in writing by the District Manager
to submit in writing ... the dates and shifts
that respirable dust sampling was to be
conducted on each mechanized mining unit.
The notification was required to be submitted
by February 15, 1993. This operator has
failed to submit such notification (Joint
Exh. 39) .
The citat1on was issued by Inspector Newell Butler. Butler
was an inspector in the health group. He worked under
McCormick 1 s supervision. McCormick ·stated that she approved
issuance of the citation, that she reviewed it before it was
issued, and that she had firsthand knowledge of the conditions
leading to the citation. Therefore, McCormick was allowed to
testify concerning the alleged violation (Tr. III 684-685).
According to McCormick, - on January 28, 1993, all underground
coal mine operators in MSHA's Birmingham, Alabama, subdistrict,
were informed by letter that they were required to submit to the
subdistrict off ice a schedule for conducting respirable dust
sampling on their mechanized mining units. The schedules were
required to be received by February 15, 1993, (Tr. III 686). In
McCormick's opinion, 30 C.F.R. 70.20l(c) authorizes the
subdistrict manager to request such a schedule~.- . (Section
70.20l(c) states: 11 Upon request ~rom the District Manager, the
operator shall submit the date on which collecting any respirable
dust samples required by this part will begin.")
McCormick explained that MSHA needed to know the date when
an operator would begin sampling in order to monitor an
operator 1 s sampling program. McCormick described the letter of
January 28, 1993, as a nstandard letter 11 and stated that such
letters usually were mailed to operators every six months by
certified mail, return receipt requested (Tr. III 686).

1164

McCormick identified Joint Exhibit 39A as a copy of the
certified mail receipt from the letter that was sent to Faith.
The receipt was signed by Christine Stockwell, wife of Lonnie
Stockwell, but was not dated. McCormick stated that the person
receiving the certified mail was supposed to fill in the date
(Tr. III 688, 690). The receipt was returned to the MSHA
subdistrict office in Birmingham on February 22, 1993,
(Joint Exh. 39A at 4; Tr. III 690) .
McCormick testified that when no schedule was received from
Faith, the citation was issued (Tr . III 687). McCormick did not
believe miners would suffer illness as a result of the alleged
violation. She maintained that Faith was negligent in failing to
file a response with the subdistrict office (Tr. III 691-692).
Stockwell testified that if he had received the January 28
letter within a reasonable time, he would have had "plenty of
time 11 to respond (Tr. III 693). He stated that he believed the
letter was picked up on February 13, 1993, and that he did not
have the information needed. He agreed however, that the letter
could have been at the post office for several days before it was
picked up (Tr. III 694).
The Violation
As noted, section 70 . 20l(c) requires an operator to submit a
respirable dust sample collection schedule upon the request of
the district manager. Stockwell does not dispute the fact that
Faith did not timely comply with the district manager's request.
The violation existed as charged.
Gravity and Negligence
McCormick's testimony regarded the non-serious nature of the
violation was not disputed, and I credit it.
I also find that Faith was negligent in failing to timely
comply with the letter of January 28. The fact that Stockwell
had to pick up certified mail at the post office, and the fact
that he and his wife had to leave their work early in o r der to do
so, is irrelevant (~Tr. III 396-397). As a mine operator,
Stockwell was on notice that the agency would mail communications
to him by registered mail.
It was his duty to make certain that
the mail was received by Faith in a timely fashion and that the
company made a timely response . Faith was negligent in failing
to meet the duty.
1165

Docket No. SE 93-365
Citation/
Order No.
9883549

I@..t..e.

3/4/93

30 C.F.R.
70 . lOO(a)

Assessment
$119

Citation No. 9883549 states in part:
Based on the results of 5 samples
the average concentration of respirable dust
in the working environment of mechanized
mining unit (MMS) I.D. [No.] 001-0 was 6 . 3
mg / m 3 of air. The operator shall take
corrective action to lower the concentration
of respirable dust to within the permissible
limit of 2.0 mg/m 3 and then sample each
production shift until 5 valid samples are
taken · (Joint Exh. 46).
Judy McCormick testified that the citation was issued when
the results of five samples submitted by Faith for the working
environment of a mechanized mining unit revealed an average
concentration of 6.3 milligrams per cubic meter of air. The
cited standard requires the operator to maintain an environment
of 2.0 milligrams or less (Tr. III 698) .
McCormick explained that after an operator submitted
required respirable dust samples to MSHA, the agency analyzed the
samples and advised the Birmingham subdistrict off ice of the
results of the analysis by a computer message.
If the results
indicated that the respirable dust concentration was above the
permissible limit, a citation was issued (Tr. III 668-~69) .
Here, the results indicated that the miner operating the coal
drill had been exposed to an impermissible concentration of
respirable dust
(Tr . I I I 6 9 9 ) .
McCormick also stated that had any of the results indicated
that the ·samples were contaminated or improperly analyzed, she
would have called the MSHA laboratory and asked personnel to
check the samples.
In this instance, where there was one sample
result that was inordinately high, she believed she had followed

1166

her normal procedures and called the laboratory, but she could
not specifically recall having done so (Tr. III 702-703, 708}.
McCormick thought the violation was S&S because of the
presumption that exposure to respirable dust in excess of the
standard can result in the contraction of pneumoconiosis (Tr. III
704). McCormick also found the alleged violation was the result
of negligence on Faith's part (Tr. III 707).
The violation was abated when Faith submitted five samples
that revealed an average concentration of 1 . 6 milligrams of
respirab l e dust per cubic meter of air (Tr. III 705).
Stockwell maintained that the sample McCormick thought was
inordinately high showed such an "extreme difference'' that
11
somewhere som~one should have picked up and followed up on it to
see what was going on 11 (Tr. III 712).
The Violation
Judy McCormick was a professionally competent and responsive
witness . I credit her statement that if a sample showed an
average concentration of over 5.0 milligrams per cubic meter of
air her practice was to call the MSHA laboratory to inquire about
the sample {Tr. III 708). Given the number of sample results
that were subject to McCormick's review, I do not find it
remarkable she could not remember if she called about the
particular sample in question . However, I infer from her
testimony that she did follow normal procedures and that she was
advised nothing was amiss with regard to the sample in question .
I therefore conclude that the samples were valid, analyzed
properly and that the violation of section 70 . lOO(a) existed as
charged.

.

S&S and Gravity
As McCormick accuratel y stated, the violation was S&S
(See Consolidation Coal Co.,. 8 FMSHRC 890 (June 1986), aff 1 d
824 F. 2d 1071 (D.C. Cir. 1987). Over exposure to respirable dust
l eads to pneurnoconiosis, which in turn leads to disability and
death. Thus, the violation also was serious.

1167

Negligence
I agree with McCormick that Faith was negligent. In places
where miners normally are required to work or travel, it is the
duty of the operator to maintain the average concentration of
respirable dust to which each miner is exposed at or below 2.0
milligrams per cubic meter of air. Faith failed to meet this
duty.
Docket No. SE 94-96
Citation/
Order No.
9883661

~

10/14/93

30 C.F.R.
70.208(a)

Assessment
$50

Citation No. 9883661 states in part:
mine operator did not submit a valid
respirable dust sample during the
Aug[ustJ/Sept[ember] bimonthly sampling
period from designated area sampling point
901-0 (Joint Exh. 59) .
· ~he

McCormick testified that she issued the citation because
Faith failed to submit a respirable dust sample for the area in
which the roof bolting machine operator was working during the
referenced bi-monthly period. The sampling procedure that Faith
should have followed was the same as that she had described with
respect to Citation No. 99833~5 (infra) {Tr. III 717-718).
McCormick was advised by counsel that Faith's defense to the
citation was that mining had ceased in September 1993, and she
was asked if she knew if the mine was producing coal during the
August/September bi-monthly sampling peri9d. McCormick replied
that "the computer had not been ztotified ·in any way that the mine
was not producing" (Tr. III 718). Rather, MSHA was notified the
mine had ceased production after the sampling cycle passed, that
is, after September (Tr. III 719).
McCormick explained that normally an operator notified the
appropriate MSHA field off ice by telephone when a mine ceased
operation and followed up the telephone call with a letter to the
appropriate MSHA district manager. The letter is required by
30 C.F.R. § 70.220(a) (Tr. III 719, 721·-722).
If Stockwell had
called her office and stated that the mine was closed or closing,
1168

a message would have been left on her desk. She neither spoke
with Stockwell nor received such a message (Tr. IIr 721) .
The alleged violation was abated on November 29,1993. It
was around that time MSHA was notified the mine had gone into a
non-producing status (Tr. III 722).
In McCormick's view, there was a violation of the cited
standard because 11 the entire sampling cycle of August and
September was worked by the operator without collecting a dust
sample" (Tr. III 720). McCormick did not consider the violation
to be S&S. She did believe it was due to Faith's negligence
(Tr . I I I 7 2 3 ) .
Stockwell testified that the mine was shut down a few days
before the end of September 1993. He stated that after
production ceased, MSHA inspectors McDaniels and Layne came to
the mine to conduct an inspection. He told the inspectors that
the mine was no't producing coal and that he would no longer be
conducting bimonthly sampling. He asked the inspectors to 11 take
appropriate action to take care of it 11 and they tqld them that
they would (Tr. III 728).
Stockwell also stated that he called McCormick's office and
spoke with a woman, whose name he did not know. He left a
message for McCormick about the mine ceasing production (Tr. III
728-729). Stockwell never wrote a letter to MSHA to report the
mine had closed (Tr. III 729).
The Violation
MSHA charged a violation in this case because it assumed
that production was ongoing during the entire bimonthly sampling
cycle (Tr. III 720). The basic premise of Faith's defense was
that if it established productio~ ceased before the end of the
sampling cycle, a violation would not have existed.
While I agree there would have been no violation if
production ended on or before September 30, I find that the
defense was not established. As McCormick noted, section
70.220(a) requires an operator to report a change in the
operational status of the mine to the MSHA District Office within
3 working days after the change occurs. Although the regulation

1169

does not state how notification is to be accomplished, the
agency's Program Policy Manual(.E.l:M) states that the notification
must be in writing (V .E.£M 15) . This is a reasonabl e
interpretation of the regulation and an operator is bound by it .
Stockwel l admitted he did not advise MSHA in writing that
production had ceased and there is no evidence beyond Stockwell's
self-serving assertion to confirm that the mine ceased production
before the cycle ended. Accordingly, I find that the vio l ation
existed as charged.
Gravity and Neg l igence
Faith does not dispute McCormick's testimony with regard to
the gravity of the violation, and I find that it was not serious
(Tr. III 723) . . Based on McCormick's testimony I find also that
Faith was negligent (Tr. III 723).
Citation/
Order No.

~

9883662

10/14/93

30 C.F.R.
70.208(a)

Assessment
$50

The parties stipulated that the testimony given with respec t
to Citation No. 9883661 would apply to Citation No . 9883662
(Tr . I I I 7 2 5 - 7 2 6 ) .
The Violation
On the basis of the stipulation I find that the violation
existed as charged.
Gravity and Negligence
On the basis of the stipula~ion I find that the violation
was not serious and that Faith was negligent.

1170

Docket No. SE 92-464
Citation/
Order No.
3024223

~

5/27/92

30 C. F.R .
77.402

Assessment
$88

Citation No . 3024223 states:
Two hand-held electric (110 volt AC)
drills and one hand-held electric grinder
observed in the shop were not equipped with
controls requiring constant pressure by hand
or finger to operate the tools in that the
controls were equipped with locking devices
(Jo int Exh. 3 O) •
Frizzell s'tated that on May 27, 1992, he observed two hand
held electric drills and one electric grinder at the mine. The
equipment was located on the surface. The drills and -grinder
were equipped with trigger locks .
(He explained that a trigger
lock was one that "if you lock the trigger down, [the equipment
will] continue to drill or to grind . . . without any pressure
being applied by the finger" (Tr. II 305)) . Frizzell believed a
violation of section 77.402 existed because the standard requires
hand- held power tools to be equipped with controls that require
constant hand or finger pressure to operate or to be equipped
with equivalent safety devices (l..d.). According to Frizzell, the
regulation prevents a drill that gets stuck or "hangs" while
drilling into a surface from twisting and breaking the drill
operator ' s finger or arm (Tr. II 306-307). Also, if the drill is
dropped, the regulation prevents the drill from continuing to
operate and from drilling into the operator's body (Tr . II 316).
Frizzell found the alleged violation to be S&S (Joint Exh. 30) .
Frizzell observed the equipment lying on a bench. He did
not recall operating the equipment (Tr. II 318). However, he
picked up the dri lls and the grinder, tested the locking devices,
a nd in each instance found that the devices were capable of being
enga ged (Tr . II 309, 311). Although he did not see anyone using
the e quipment, the equipment was not tagged-out, and Friz zell
b e lieved anyone could have picked up and use the drills and
grinder at any time (Tr. II 309-310) .

1171

Frizzell explained to both James Stockwell and Lonnie
Stockwell that trigger locks were not permitted, and neither
corrected him or said that the trigger locks were not present
(Tr. II 320-321).
Because the locking devices were obvious, Frizzell believed
that Faith's management should have known of their presence, and
that Faith was negligent in allowing them to exist.
Stockwell testified that Frizzell was mistaken, that what
Frizzell thought were trigger locks, were not. Because his
brother had a hot temper, Stockwell did not try to explain to
Frizzell that the drills and grinder were not in violation of the
standard (Tr . II 315, 324). Rather than have his brother and the
inspector get into a heated disagreement, Stockwell defused the
situation by removing the equipment from the property.
The Violation
Section 77.402 prohibits ·locking devices by requiring that
hand held power tools be operated through constant hand or finger
pressure. I credit Frizzell 1 s testimony that the power drills
and the grinder were equipped with locking devices. Further,
despite Stockwell's avowal that he "trie[d] with all the strength
within [him] to avoid confrontations," it seems highly unlikely
to me that he would have accepted a violation he was certain was
erroneous (Tr. II 327). I conclude therefore, that the violation
existed as charged.
S&S and Gravity
The Secretary did not establish that the violation was S&S.
Frizzell did not testify about the circumstances under which the
equipment was used and the frequency with which it was used. He
did not testify· regarding similar violations that had lead to
injuries. I can not draw any conclusion from the record
regarding the likelihood of injury, and I therefore, can not find
the violation was S&S.
Nevertheless, the violation was serious. Frizzell
persuasively explained that without pressure sensitive controls,
the drills could twist and pose a risk to fingers and hands. He
also testified that without such controls, it was possible a
drill operator inadvertently could drill into himself or herself

1172

(Tr . 316-317).
the violation.

I accept his testimony regarding the gravity of
Negligence

In failing to ensure that the trigger locks on the cited
equipment had been rendered dysfunctional, Faith failed to meet
the standard of care required by the circumstances. Therefore, I
find that Faith was negligent.
Docket No. SE 94-42
Citation/
Order No.
3202273

~

7/22/93

30 C. F . R.
Assessment
75.324 (a) (2)
$412

Citation No . 3202273 states:
The fan house was not provided with airlock doors to prevent the ventilation being
disrupted when equipment is taken through the
single explosion door. Equipment and
mantrips enter the mine through the door at
regular intervals and the ventilation is
short-circuited (Joint Exh. 58).
Air lock doors to a mine fan house are designed to protect
a fan mine and a ventilation system in the event of an explosion
in that they stop the force of a blast from affecting the fan and
from disrupting ventilation (Tr. II 339) . Frizzell testified
that the fan house for the No. 15 Mine was located on the
surface, just outside the portal. There was only one door to the
fan house. There were no air lock doors. Therefore, each time
the door was opened, the main ventilation of the mine was shortcircuited and 30,000 cubic feet o~ air per minute (CFM} escaped
into the atmosphere {Tr.· II 339-340).
When Fri?zell issued the citation, the fan house door had
been left open. Frizzell noted that it also was opened every
time equipment or a person passed through it (Tr. II 341-342) .
Frizzell originally believed the condition represented a
violation of 30 C.F . R. § 75 . 333(d) (3). The standard requires
doors that are used to control ventilation within an aircourse to

1173

be installed in pairs to form an airlock. However, he modified
the citation to allege a violation of section 75.324(a) (2)
because opening the fan house door affected mine ventilation by
at least 9,000 CFM (Tr. II 343). Frizzell regarded the opening
of the door to be an intentional change of ventilation and stated
that Stockwell was the person designated to make such changes at
the mine (Tr. II 366} .
Frizzell found that the alleged violation was S&S. He
believed that Faith seldom conducted mining with more than 10,000
or 11,000 CFM at the last open cross cut . Thus, a loss of 30,000
CFM when the fan house door was open left less than the required
9,000 CFM at the last open crosscut (Tr. II 340, 348, 356-357).
He also feared that because of the loss of ventilation coal dust
could accumulate underground and/or low levels of oxygen could
build up (Tr. II 348-349).
Frizzell did not know how long the fan house had lacked air
lock doors . (Tr. II 351).
Frizzell cited the violation on July 22, 1993. He gave
Faith until August 5, 1993 to abate it. When no action was taken
by August 30, 1993, he issued a withdrawal order for failure to
abate (Tr. II 351-352; Joint Exh. 58 at 4).
On cross examination, Frizzell agreed that the fan could
generate as much as 60,000 CFM {Tr. II 357) . Despite this, he
maintained that, if 30,00 CFM were lost, there was no guarantee
that 9,0 00 CFM would reach the last open cross cut (Tr. II 367).
The Violation
I conclude that the Secretary did not establish a violation
of section 75.324{a) (2). The standard requires that a person
designated by the operator, supervise any intentional change in
ventilation that affects the section ventilation by 9,000 CFM.
Therefore, in order to prove a violation, the Secretary must
show, among other things, that a change in ventilation affects
section ventilation by 9,000 CFM or more.
Frizzell took no air measurements on the section. While his
testimony establishes that 30,000 CFM was lost at the fan house
when the door was opened, his belief that this invariably

1174

resulted in a loss of 9,000 CFM at the last open cross cut or in
less than that amount was entirely speculative. In fact, the
Secretary offered no substantive evidence regarding the change in
section ventilation when the door was opened .
While it is possible to establish a violation on the basis
of a reasonable inference, there are too may imponderables to
permit such an inference here. For example, and assuming that
Stockwell did not supervise the ventilation changes when the door
was open, while Frizzell knew the amount of air that was being
lost at the fan house, he did not know for certain the amount
that entered the mine, let alone the amount that reached the
section. Clearly, the amount was diminished when the door was
open, but whether the diminution "affected the section
ventilation by 9,000 [CFM]" (30 C.F.R. § 75.324 (a) (2 ) ) is a
question that cannot be answered on the basis of this record.
Citation/
Order No.
3024817

~

3/22/93

30 C. F.R.
75.220

Assessment
$88

Citation No. 3024817 states:
The roof control plan was not compatible
with the equipment that was being used in
that the cutter bar was 11 feet long and the
roof bolter could only roof bolt to within
2 feet of the face. The loading controls of
the loading machine were 10'6" from the
gathering head of the machine. This would
create an opening of 13 feet from the last
row of roof bolts when the place was cleaned
up with the loader. The controls of the
loader would be 2.6 feet outby the last bolts
(Joint Exh. 56).
MSHA inspector Billy Layne explained that prior to the
introduction of automatic temporary roof support systems {ATRS)
on roof bolting machines, it was possible to install roof bolts
up to the face. However, once .the machines were equipped with
ATRS, they could only bolt to within two feet of the face. The
roof control plan at the mine was adopted by Faith prior to
Faith ' s acquisition of a roof bolting machine with an ATRS {Tr.
I I 468-470) .
1175

The bar on the cutting machine used at the mine took an 11
foot cut. Therefore, when the face was mined, the cut of 11
feet, plus the two feet where the bolting machine had been unable
to bolt during the previous mining cycle, created an unsupported
area of 13 feet. The approved roof control plan stated, "The
operating controls of the loading machine shall not advance inby
the last row of roof bolts" (Joint Exh. 54A at 12; ~ Tr. II
474-475). The controls of the loading machine were 10 1/2 feet
from the gathering head of the machine. This meant that the
loading machine operator had to proceed under unsupported roof to
do his or her job (Tr. II 471-474, 475).
(Layne explained that
when he wrote in the body of the citation that the controls of
the loading machine would be "outby" the last row of roof bolts,
he really meant "inby" (Tr . II 475-476, 492) .)
Layne did not see the loading machine in operation when its
operator was inby the last row of roof bolts (Tr . II 478) .
Therefore, he did not see the loading machine operator acting in
violation of the roof control plan. Accordingly, Layne described
the violation as "hypothetical" (Tr. II 478, 493). Layne stated
further that the violation would not have existed if cutting
machine operators limited the depth to which the bar undercut the
coal Cl~.)
Layne described the mine roof as consisting of "real fragile
shale" and laminated sandstone (Tr. II 479) . He did not consider
it to be "real good roof" (.I..Q.). Any time a miner proceeded inby
the last row of roof bolts, the miner created a hazard to himself
or herself. Here, the roof could have fallen and the miner could
have been injured seriously or killed (Tr. II 483).
Layne also believed Faith was negligent in allowing the
violation to exist (Tr. II 485).
Stockwell stated that although it was "possible" for a
loading machine operator to be under unsupported roof, he did not
think it was "very likely" (~.). According to Stockwell, it was
mine practice to hang streamers at the last row of roof bolts.
When an equipment operator reached that point, he or she would be
warned not to proceed (Tr. II 506-507). Stockwell stated he told
operators they would be fired if they operated equipment inby
. permanent roof supports. He never observed an operator doing so
(Tr. II 507) .

1176

The citation was abated when Faith removed the loading
machine from its roof control plan. Effectively, it agreed to no
longer use the machine for clean up work (Tr. II 504-505).
The Violation
Section 75.220 requires that each mine operator develop and
follow a roof control plan. Once the plan has been approved by
MSHA and has been adopted by the operator, provisions of the plan
must be followed as though they were mandatory safety standards.
Here, the provision of the plan that was allegedly violated
required Faith to ensure that the operating controls of the cited
loading machine not advance beyond the last row of roof bolts
(Joint Exh. 54A at 12).
As Layne candidly stated, he did not observe the loading
machine operated with its controls positioned inby the last row
of roof bolts (Tr.. II 478}. Rather, he premised the violation
upon his belief that the equipment operator had to proceed under
unsupported roof in order to load coal after it had been cut
(Tr. II 475).
The Secretary need not prove the existence of a violation by
the testimony of a person who observed it. As has been noted
previously, the Secretary may establish a violation by inferences
derived from circumstantial evidence -- for example, tire tracks
or foot prints may prove that equipment or persons went beyond
permanent roof support. However, the inferences must be
inherently reasonable and there must be a rational connection
between the evidentiary facts and the ultimate fact to be
inferred. Garden Creek Pocahontas, 11 FMSHRC 2148, 52-53
(November 1989) .
Here, the problem is that the facts from which the violation
is to be inferred do not invariably lead to a conclusion that the
operating controls of loading machine proceeded inby the last row
of roof bolts. Layne agreed the equipment's controls would not
have proceeded beyond the last row of roof bolts if the depth of
the undercut was limited, and there was no testimony to establish
that Faith's practice was to fully undercut the coal. If such a
practice existed, it is reasonable to assume the testimony of
miners who had worked for Faith would have been helpful to the

1177

Secretary, yet he called no such witnesses to testify . Further,
Stockwell's contention that he never had seen a scoop operated
inby permanent supports was not refuted or otherwise challenged.
Weighing all of this, I conclude that although the Secretary
proved a violation was possible, proof of a possibility did not
meet his burden .
Docket No. SE 93-78
Contested Violations
Citation/
Order No.
3024472

~

8 / 19/92

30 C . F . R.
75 . 203(a)

Assessment
$50

Citation. No. 3024472 states:
The method of mining on the 001 section
exposed miners to hazards caused by excessive
widtp in a crosscut between the No. 2 and
No. 3 entries. The crosscut was driven from
2l[feet] to 26 feet wide for 20 feet. The widest point was 26 feet.
The operator had installed timbers and
cribs in the area for additional support
(Joint Exh. 31) .
The parties stipulated that the distances recorded on the
citation were correct. The parties also agreed that Faith had
installed su~f icient roof support by the time the inspector
arrived to narrow the roof over the crosscut to permissible
limits . In other words, at the time the citation was issued, the
crosscut was not "excessively wide" (Tr . II 379).
MSHA inspector Johnny McDaniel testified that a violation
existed because the roof strata had been weakened when the roof
was cut excessively wide and that although supplemental roof
supports had been installed, the citation would impress upon the
an operator the need to keep entry widths to allowable distances
(Tr . II 381-382) . In McDaniel's view, there was a violation the
minute the entry was cut too wide. The addition of the posts to

1178

support the roof rectified the hazardous condition but did not
vitiate the violation.
Stockwell maintained that during advance mining it was
virtually inevitable that an entry would be cut wide, and if the
excessive width was timely corrected by setting posts or
installing other roof supports, there was no violation (Tr. II
389).
I tend to agree with Stockwell, but I need not reach this
defense because I conclude the Secretary has not otherwise met
his burden of proof.
In pertinent part, the cited standard requires that mining
methods not expose any person to hazards caused by excessive
widths of crosscuts. To establish a violation, in addition to
proving excessive widths, the Secretary must prove that a person
was exposed to a hazard from roof weakened by those widths.
Here, the cros~cut was cut excessively wide for a distance of
20 feet; and I accept McDaniel's testimony that cutting the
crosscut excessively wide weakened the roof strata and created a
hazard. However, there was no testimony upon which to base a
finding that any person was exposed to the hazard, and without
evidence of exposure, I cannot find the Secretary proved the
alleged violation.
cannot assume· equipment operators were exposed to the
excessively wide roof without testimony regarding the distance of
the inby end of the equipment from its operator's compartment
when the cutting and cleanup operations were in progress . Nor
can I assume that miners who set the posts were exposed to the
hazard. There was no testimony regarding the practice of setting
posts under such circumstances. It may be, for example, that
miners worked from behind temporary roof supports.
Finally,
there was no testimony that miners were exposed to the hazardous
roof after the crosscut was driv.en, but before the posts were
set.
I

117~

Citation/
Ord er No.
3024476

~

8/27/92

30 C.F.R .
Assessment
75.1107-16(b)
$50

Citation No. 3024476 states :
A rubber-tired mine tractor . .. was not
provided with a fire suppression device in
proper operating condition and in accordance
with the requirements in National Fire Code
17 . .. one of the two actuating bottles had
been punctured, or the air seal broken
(Joint Exh. 33).
McDaniel testified that the fire suppression system on the
cited mine tractor was of the dry chemical type. The system
included two bottles ("actuating bottles") that contained
compressed air. The bottles were interconnected with a chemical
container. To use the system, a pin was driven into a metal seal
inside an actuating bottle. The seal was punctured and the air
within the bottle was expelled, spreading a fire suppressing
chemical (Tr. I I 393, 402). The actuating bottles were installed
at different locations on the tractor so that they could be
quickly activated if the need arose.
(Tr. I I 403).
McDaniel found that one of the bottles on the tractor was
useless. There was a hole in the seal and the compressed air had
escaped (.I_d.). With one bottle useless, the fire fighting system
was compromised (Tr. II 394, 397).
Fire suppression equipment must be examined on a weekly
basis, and McDaniel believed Faith should have known of the
violation because the punctured bottle was obvious visually.
However, McDaniel did not know how long the bottle had been
punctured (Tr. II 395) . He agreed the bottle's seal could have
been punctured between required examinations (Tr. I I 397).
The person most likely to be endangered by the lack of a
fully operative fire suppression system was the operator of the
tractor (Tr . 398).

1180

The Violation
Section 75.1107-16(b) requires that each fire suppression
system be tested and maintained in accordance with the
requirements in the National Fire Code (NFC) . According to
McDaniel, the pertinent part of the code violated was NFC No. 17;
Subsection D. Subsection D requires, in part, that the amount of
expellent gas for dry chemical systems be checked to ensure that
"there is enough to provide an effective discharge" (Joint Exh.
33A) . Obviously, this means the system must be maintained to
provide an effective discharge of chemicals.
I agree with counsel for the Secretary that the fact the
system came with two actuator bottles means both bottles had to
be maintained in operative condition to have an "effective
discharge" of chemicals . As counsel stated, "both bottles in the
system had to be maintained to have [the system] operate as
designed" (Sec. Br. 72). I conclude therefore that the violation
existed as charged.
Gravity and Negligence
This was not a serious violation . As McDaniel stated, the
system retained at least part of its ' original capacity to fight a
fire (Tr. II 394, 397). In addition, the testimony did not
establish any conditions associated with the violation that would
have made a fire likely .
McDaniel could not say how long the actuator had been
punctured. He agreed it could have happened between the required
inspections of the system (Tr. 397). I conclude therefore that
Faith's negligence in allowing the violation to exist was low.
Docket No. SE 94-256
Citation/
Order No.
3202337

~

6/07/93

30 C.F.R.
75.313

Assessment
$50

The methane monitor on a scoop loader
used to load coal (one of two scoops on
the 001 section) would not operate. The
operator stated the unit was "jumped" out to

1181

permit the machine to operate.
The operator stated that the monitor
stopped working after he removed it from
loading coal; however it was observed loading
and hauling coal shortly before it was
examined (Joint Exh. 62).
McDaniel testified that the methane monitor on one of the
two scoops used on the 001 Section was not working. He tested
the monitor by using its test control. When he twisted the test
button, the machine would not deenergize.
Prior to testing the
machine, McDaniel saw it loading two cars of coal (Tr. II 413).
McDaniel stated that after he saw the scoop operating and
after he tested its monitor,· Stockwell arrived on the section.
McDaniel spoke with Stockwell about the monitor. Stockwell
explained that it had been "jumped out" {Tr . II 415, 418).
{When a methane monitor is "jumped out, 11 the monitor's shut off
mechanism is bypassed electrically to allow the machine to
operate regardless of methane {Tr. II 415-416) .) To the best of
McDaniel's recollection, Stockwell took the scoop to the surface
after discussing the monitor with McDaniel.
McDaniel acknowledged that a methane monitor was a "very
delicate" piece of equipment and that it was 11 easy for it go
down" (Tr . I I 418 , 419) .
Normally the No. 15 Mine does not liberate methane and no
methane was detected at the time the violation was cited. When
methane was liberated, it was in "very small quantities"
{Tr . I I 4 19 ) .
Stockwell testified that he "jumpered out" the monitor
because he was going to use the scoop as a means of
transportation. He maintained the only time the methane monitor
had to be working was when the scoop was loading coal. Stockwell
also asserted McDaniel could not have tested the methane monitor
by turning a knob because the monitor had a test button (Tr. II
428). Or, if McDaniel did test the monitor, he did so after
Stockwell brought the scoop into the mine as a means of
transportation, not when it was used to load coal (Tr. II 426).

1182

The Violation
I conclude that the Secretary has not established a
violation of section 75.313. The standard cited relates to mine
fan stoppages when persons are underground. The citation was
issued because the methane monitor on the loading machine was
inoperable.
30 C.F.R . § 75.342(a) (1) requires methane monitors
to be installed on all loading machines and section 75.342(a) (4)
requires that once installed, the monitors be maintained in
permissible condition .
The citation does not charge a violation of section
75 . 342(a) (4).
It is an axiom of due process that a respondent
must be advised correctly of the standard it is alleged to have
violated. When the ci~ation is defective, it must be modified to
reflect the proper standard, or it must fail.
Here, the citation
was not modified.
Finally, I note the Secretary's contention that Stockwell 1 s
testimony that he intentionally bypassed.. the methane monitor
should result in a post-hearing finding of unwarrantable failure
(Sec. Br . 150). Given the defective citation, I need not reach
the issue. I observe, however, that if the correct standard had
been cited, I would not have found unwarrantable failure. The
original citation did not charge unwarrantable failure and Faith
was not given notice that such an allegation was at issue.

Docket No . 93-365
Citation/
Order No.
3024810

~

3/16/93

30 C . F.R .
75.1722(a)

Assessment
$88

Citation No. 3024810 states:
The No. 2 belt drive was not suitabl(y]
guarded in that chicken wire was being used
to guard the moving parts of the belt drive
(Joint Exh. 48).
On March 16, 1993 , MSHA inspector Billy Layne observed that
chicken wire was used to guard the No. 2 belt drive. The wire
was not mounted on a frame . The guard was 11 just wired up 11 at the

1183

top (Tr. II 445, 454). The wire was located four to six inches
away from the moving parts of the belt drive (Tr. II 457).
If the wire had been framed, it might have been acceptable
as a guard because it would have been stable enough to keep a
person from pushing into the belt drive (Tr. II 446). However,
given the way the chicken wire was installed, Layne believed it
"would take no effort to get it into the moving parts" {Tr. II
450) .
Layne stated that the discharge roller of the belt drive was
turning. The roller was located approximately four and one half
feet off of the mine floor. In addition, there were other moving
parts at various heights ranging from between 12 inches to four
and one half feet off the floor (Tr. II 440-441).
Usually, the area around the belt was wet, but in this
instance, the belt had not been operating long and the area was
dry. In addition, the floor was level (Tr. II 442).
Layne testified that the belt had been installed recently
(Tr. II 443-444). Layne was certain it was not in place when he
conducted a "pre-opening" inspection of the mine (Tr. II 445).
To the best of Layne's recollection, the condition was abated
when Faith built a metal frame and secured the wire to the frame
(Tr. II 447, 451).
Layne regarded the violation as S&S because belt drives have
to be cleaned and without adequate guards, miners doing the
cleaning can become caught in the belt drive mechanisms.
Normally, only one person is assigned to clean around a belt
drive (Tr II 450) .
Layne was of the opinion that many of the fatalities that
occur in coal mines involve inadequate guards at belt drives
(Tr. II 447). He testified that ,in addition to being killed by
belt drives, miners have had limbs severed or broken (Tr. II 447448). Here, the particular danger presented by the lack of an
adequate guard was that a miner would stumble and f all toward the
pinch point of the belt drive and the chicken wire would not keep
the miner from falling into the. pinch point (Tr . II 456).
Layne believed Faith should have known of the inadequate
guard, but he also recognized that the belt was newly installed,
and he speculated that Faith might not have had time to make
1184

certain the guard met the standard's requirements (Tr. II 448449} •

Stockwell maintained that a few days before the inspection,
another MSHA inspector had not found the guard to be out of
compliance (Tr . II 460). In addition, he believed that when
Layne saw the belt drive, the chicken wire was nailed ~o a wooden
frame (Tr. II 461). Stockwell admitted, however, that he was not
at the belt drive when Layne cited the violation (Tr. II 464).
The Violation
Section 75.1722(a) requires that drive and takeup pulleys
"which may be contacted by persons, and which may cause injury,"
shall be guarded. The evidence establishes that the requirements
of the standard were not met .
I accept Layne's testimony that the chicken wire was not
secured at the bottom of the drive . Layne saw the belt drive and
the "guard" on March 16, 1993. Stockwell did not. I also accept
Layne's opinion that the pinch point on the belt drive could be
contacted. As Layne testified, any miner who stumbled or fell
against the unsecured chicken wire could have been caught in the
pinch point. The wire would not have been effective in breaking
the miner's fall and keeping him or her from the moving parts .
I also conclude that contact with the pinch point could have
caused an injury . After all, the belt was traveling over the
rollers at the rate of 390 feet per minute (Tr. II 465). The
violation existed as charged.
S&S and Gravity
The violation was S&S. While it is true the belt was newly
installed and few, if any, miners had yet been exposed to the
hazard created by the inadequate guard, I must view the hazard in
terms of continued normal mining operations (U. s. Steel Mining
Co .. Inc., 6 FMSHRC 1573, 1574 (July 1994)) .
As Layne noted, during the course of continued normal
operations, miners would have been assigned to clean up in the
vicinity of the belt drive. Also, the floor around the belt
drive would have become wet and slippery (Tr. II 442). I

118 5

conclude, therefore, that it was reasonably likely that as mining
went on, a miner would have slipped, fallen against the chicken
wire and been pulled into the belt drive•s pinch point . The
miner would have been lucky if he or she was maimed.
{I note in
this regard, Layne's unrebutted testimony that many of the
fatalities recorded by MSHA involve inadequate guards at belt
drives (Tr . II 447) . )
In addition to being S&S, this was a serious violation.
As I have found, the exposure of miners to the hazard meant that
dismemberment or death could have been expected.
Negligence
Even though the belt was newly installed, Faith was
obligated to make certain the belt drive was guarded properly.
Because it installed a "guard" that did not prevent contact by
miners, Faith ~as negligent.
Citation/
Order No.
3024814

~

3/17/93

30 C.F.R.
75 . 220

Assessment
$128

Citation No . 3024814 states:
The supplement to the operators roof
control plan dated July 22, 1992, was not
being complied with in that the last pillar
had been split for the belt line and cribs
had not been installed for the crosscut on
the right hand side of the belt line . The
operator's [roof control plan] supplement . ..
requires that cribs ... be installed in the ·
last open crosscut on the right hand side of
the belt line (Joint E~h. 51) .
Inspector Layne testified that on March 17, 1993, during the
course of the inspection of the mine, he visited a crosscut on
the right hand side of the belt line. Approximately five miners
were working in the . area (Tr. VI 213).
Cribs were being
installed in the vicinity.
Immediately adjacent to the crosscut,
the beltline had been driven through a pillar, splitting the
pillar.
(Tr. VI 215-216; Joint Exh. 51B). According to Layne,

1186

under the approved roof control plan, cribs should have been
installed prior to mining the pillar (Tr . VI 216, 210·, 219} . The
approved roof control plan stated, "cribs will be set 5 ft . apart
(max) " and "where ·practical, cribs . . . will be set prior to
making the split . 11 No cribs had yet been set in the subject
crosscut (Tr . VI 218; Joint Exh . SlA) .
Layne claimed that Stockwell told him cribs were not
installed because Stockwell had to keep the area open to haul gob
material and that there would not have been room for equipment to
pass through the area if cribs had been installed (Tr. VI 222,
246, 256-257) . This meant to Layne that equipment had passed
through the area where the cribs were missing (Tr. VI 223).
Indeed, according to Layne, extensive work had been done inby the
cited area (Tr. VI 245).
Layne testified that the roof in the area was not known as
being "really good" and that the mine had a history of roof falls
(Tr. VI 225, 226). Although roof bolts had been installed, the
area still needed cribs for adequate support of the roof
(Tr . VI 229) .
According to Layne, " [anyone] that has any ...
qualifications" should have known the cribs were required (Tr. VI
221) . He described the lack of cribs as "real obvious" (Tr . VI
231) . Layne believed that the crosscut had lacked cribs for more
than three or four shifts (Tr. VI 233).
In Layne's view, the
condition should have been noted during the daily preshift
examination and should have been corrected (Tr. VI 234).
Layne believed the condition was S&S. Layne stated that
given the compromised roof " [y]ou could expect to have a fall in
that area" (Tr. VI 247) . Ram cars had traveled under the roof as
they transported the gob (Tr. VI 249). Layne stated of the roof,
"It's roof you would want to pay attention to" (Tr . VI 251).
If
the roof had fallen and struck a miner, it was likely that the
miner would have sustained permanently disabling injuries or have
been killed (.I.Q_._ )
To abate the condition, Faith installed cribs as required
(Tr. VI 254).

1187

Because the crosscut was part of an escapeway, . Stockwell
maintained that if cribs had been used, they would have blocked
the escapeway. Also, he noted that the roof control plan
required cribs to be set prior to splitting a pillar "where
practical." He maintained that it was not "practical" to set the
cribs because of the escapeway problem and because the crosscut
could not have been used to haul gob if cribs narrowed it (Tr. VI
277-278).
In any event, he believed pillar support of the roof
was adequate, even after the pillar in question had been split
(Tr. VI 276).
Final l y, although Stockwell stated that Layne was
in error when he testified that equipment had passed through the
crosscut, he confirmed that miners had worked in the area prior
to the day of the inspection (Tr. VI 285).
The Secretary's Motion
Counsel for the Secretary moved that the doctrine of res
judicata be invoked and that Stockwell be barred from raising
defenses to this and two other alleged violations . According to
counsel, Stockwell pleaded guilty to criminal charges involving
two counts of violating the Mine Act in a case before a United
States Magistrate Judge, in the United States District Court for
the Eastern District of Tennessee, and on June 24, 1992, a
judgment was filed in the case (U.S. v. Lonnie Ray Stockwell,
Case No. 92 - 074M, CR-1-92-00033-01.)
The judge magistrate
sentenced Stockwell to three years of probation and ordered
Stockwell to pay a fine of $1,500. As a condition of the
probation, Stockwell was ordered to refrain from any serious
unwarrantable violation of the Act pertaining to roof support and
ventilation.
Subsequently, Stockwell was ordered to show cause why
probation should not be revoked. The order was supported by a
report from Stockwell's probation officer. The report stated
that Stockwell had been cited for several unwarrantable
violations, including the citation here at issue (Citation
No. 3024814) and two other alleged violations.
(The ·1 atter two
al l eged violations are included in Docket No. SE 93-366 (Tr. V
61-62) . )
The judge magistrate held a probation revocation hearing at
which MSHA inspectors testified . Following the hearing, the
judge issued an order which stated in part:

1188

Having heard all of the witnesses and
the argument(s] . .. it is concluded and the
[judge] finds serious life threatening
violations of the [Mine Act] including but
not limited to the conduct of mining well
beyond the 12-foot limit beyond roof support
were committed or caused to be committed by
the defendant in late 1992 and early 1993 in
... Faith Coal Company Mine No . 15 {United
States v. Lonnie Ray Stockwell , D. Tenn
(September 16, 1993) (Memorandum and Order) 3.)
The judge magistrate revoked Stockwell's probation and
sentenced him to six months in prison . Subsequently, the judge
denied Stockwell's motion for a new trial and no further appeal
was taken.
In moving ' .that the doctrine of res judicata be invoked,
Counsel asked that I be bound by the findings of the judge and
conclude that the three violations described in the citations and
order occurred (Tr. V 31-32, 35, 61-62).
Counsel argued that
because the judge "found that the violations had occurred at
least as issued," no testimony or other evidence should be
admitted into the record regarding the alleged violations (Tr. V.
62) .
I concluded that I could
I denied the Secretary ' s motion.
not determine from the judge's memorandum and order that his
decision was based upon his finding that the three alleged
violations had occurred as charged (Tr. V 64) .
I stated:
[G]iven the general wording of [the judge's]
finding that there was a serious, life
threatening violation of the Act, including,
but not limited to, the conduct of mining
well beyond the 12-foot limit beyond roof
support in late 1992 and early 1993; and
given the number of alleged violations he was
asked to consider and upon which he
apparently based his finding, I cannot
conclude that he must have been ref erring to
the three violations refer enced in [the
Secretary's] motion {Tr. V 65-66) .

1189

I also noted that if I were wrong and the judge had made
specific findings concerning the violations' existence,
apparently he had taken no evidence and made no findings with
respect to negligence and gravity (Tr. V 66).
Indeed, these
concepts, as applied under the Mine Act, were not relevant to the
criminal proceeding. Under both the doctrines of res judicata
and collateral estoppel, the issues for which preclusion is
sought in the second action must be identical to the issues
decided in the first action (~ Parkland Hosiery Co. Inc. y,
Shore, 439 U.S. 327, 336, nS (1979)).
For these reasons, I affirm my bench ruling denying the
Secretary's motion.
The Violation
Section 75 . 220 requires an operator to follow its approved
roof control plan. The evidence with regard to this alleged
violation establishes that Faith did not do so and that the
violation existed as charged. The supplement to the roof control
plan of July 22, 1992, required that where practical, prior to
splitting a pillar, cribs be set as shown on an attached map
(Joint Exh. 51B). Layne convincingly testified that the pillar
in question had been split to accommodate a beltline, and that
cribs had not been set. The only question is whether it was
practical to set cribs.
Stockwell testified that it was not practical because if
cribs were installed there would not have been sufficient
clearance to use the crosscut as a passageway for hauling gob,
and because the crosscut could not have been used as an
escapeway. However, Stockwell's testimony was overcome by
Layne ' s observation that if Faith had used other available areas
to dump the gob, it would not have had to travel through the
crosscut .
In addition, and as counsel for the Secretary
observed, the regulations allow escapeways 4 feet in width when
supplemental roof support (e.g., cribs) is necessary. Since the
roof control plan provided for a maximum distance between the
cribs of 5 feet, the cribs could have been installed and the
crosscut could still have been part of a valid escapeway.
I conclude that the violation existed as charged .

1190

S&S and Gravity
The violation was S&S . The cited standard was v i olated.
I
accept the testimony of Layne that the failure to set the cribs
weakened the roof in the crosscut. I also accept his testimony
that roof in the area was not "really good" (Tr. VI 225). By
Faith's own admission, miners passed under the area of
inadequately supported roof. Given the nature of the roof, the
fact that it was inadequately supported, and the exposure of
miners to the hazardous roof, I conclude it was reasonably likely
that as mining continued and miners passed through the crosscut,
a roof fall accident would have occurred.
In the event of such
an accident, it also was reasonably likely the miners involved
would have suffered death or at least serious and disabling
injuries. This was roof "you had to pay attention to" and Faith
paid no attention to the requirement that the roof be supported
adequately (Tr. VI 251).
The violation was serious. As noted, I accept Layne's
testimony that the roof was not consistently stable. I also
accept his testimony that splitting pillars without installing
supplemental support weakened the roof. This common sense
observation simply reflects the fact that in mining, as in the
rest of life's ventures, rarely is less more. By Stockwell's own
admission, the crosscut had been traveled and miners who passed
through it had been subjected to hazards that easily could have
resulted in serious injury or death.
Negligence
Since miners had traveled through the crosscut, the area had
to be preshift examined. The lack of cribs was visually obvious.
The violation should have been detected and corrected. Faith
failed to exhibit the care required.
Docket No . SE 93 - 366
Citation/
Order No.
3202244

~

3/17/93

30 C . F.R.
75 . 220

Assessment
$2800

Citation No. 3202244 states:
The approved roof control plan dated

1191

4-7-92, was not being complied with in that
the following conditions [were] observed in
the area of survey station No. 114 [:]
a
place had been driven 24 feet on the left
side and 27 1/2 [feet] on the right side
inby roof supports; a neck had been driven
off this place 23 feet inby roof supports;
also a crosscut had been driven into an
unsupported area in an adjacent entry which
had been advanced inby the crosscut and roof
supports had not been installed. The
approved roof control plan requires cuts not
to exceed 10 feet when conventional equipment
is used (Joint Exh. 54).
In addition to finding the conditions constituted a
violation of se_ction 75 . 220, MSHA inspector Larry Anderson,
found that the violation was S&S and was caused by Faith's
unwarrantable failure to comply with the cited st.~ndard .
Anderson testified that when he inspected the mine on
March 17, 1993, he was underground with Stockwell and asked him
to identify their location on a mine map. Stockwell pointed to
Survey Station No. 114. No miners or mining equipment were in
the area at the time {Tr. VI 296, 333). However, miners were in
the mine doing 11 dead work" -- i.e., work not directly related to
production (Tr. VI 292-297).
Under the roof control plan, whe~ coal was cut with
conventional equipment, the cut could not exceed 10 feet in
length (Tr. VI 298i Joint Exh. 54A at 13). Anderson noticed that
the ribs in ~he area were jagged and did not have the "look" of
coal cut with the continuous mining machine (Tr. VI 299). He
believed conventional equipment ~ad been used.
Anderson stated that near Survey Station No. 114_, he saw two
areas across from one another that had been driven in excess of
the allowed limit. One area had been driven 24 feet · beyond roof
supports. The other had been driven 27 1/2 feet beyond roof
supports (Tr. VI 303-304).
In general, the roof in the area had places where water was
coming through. Also, the roof was exhibiting scaling, and had

1192

fallen at several locations.
(Tr. VI 304). Anderson explained
that the roof was shale, and that the water made the shale slip
and "just fall out for no reason at all" (Tr. VI 305).
In the same general area, Anderson observed a neck driven
23 feet inby roof supports (Tr . VI 306). From observing the coal
ribs in the neck, Anderson determined that the neck area also had
been driven with conventional equipment (l.d . ). There was no roof
support in the neck between the last row of roof bolts and the
face (Tr. VI 308). The roof condition in the neck was similar to
that in the other two areas .
Finally, in an adjacent entry, Anderson observed an area
where a crosscut had been driven through, into an unsupported
area. Anderson stated, 11 you cannot advance an ent:ry or a
crosscut into . an unsupported area unless that area is
inaccessible, which this one wasn't" (Tr. VI 309). Anderson
identified paragraph 4 on page 5 of the roof control plan as the
provision prohibiting the condition he observed CI.d.•J . This
portion of the plan required that openings creating an
intersection be permanently supported or that at least one row of
temporary supports be installed before any other work or travel
was permitted in the intersection (Joint Exh. 54A at 5). The
unsupported area was approximately 20 feet wide and 30 feet long.
In Anderson's opinion, under the roof control plan, roof bolts
should have been installed on five foot centers in the area
(Tr. VI 311-312, 330).
Anderson measured the areas of unsupported roof with his
tape measure . Rather than travel under the roof, he tied the
tape to his hammer and threw it to the end of each area
(Tr. VI 313).
_. The areas where the unsupp~rted roof conditions occurred
were part of an intake air course . An intake air course must be
examined on a daily basis during each production shift (Tr . VI
399). In Anderson's opinion, the conditions were visually
obvious and should have been observed during the examinations
(Tr . VI 312). In addition, he maintained the conditions were the
result of more than ordinary negligence on Faith's part, and that
they represented "complete and total disregard for the safety
of the people [who] work[ed] for [Faith]" (Tr. VI 352).

1193

In finding that the alleged violation was S&S, Anderson
considered the generally poor roof conditions in the subject area
of the mine, the expanse of unsupported roof and the "strong
evidence 11 that persons had been working under unsupported roof
(Tr. VI 316). This "strong evidence" was the fact that to cut
the coal for the cited distances, the cutting machine operator,
the scoop and the tractor operator, in addition to others, would
have had to proceed beyond the last row of permanent roof
supports (Tr. VI 317) .
(Later, Anderson recanted his testimony
with respect to the tractor operator. Nevertheless, he believed
the tractor operator still was subject to danger in that a roof
fall could have traveled into the area where roof supports were
installed and could have endangered the tractor operator and
others working under supported roof (Tr. VI 350-352) .)
Anderson stated that Stockwell conducted the preshift
examination on March 17, 1993, as well as on some preceding days.
This meant that Stockwell examined the areas where the conditions
existed . There were no references to the conditions in the
pre shift examination book (Tr. VI 320). When Anderson served the
citation on Stockwell, Stockwell did not respond to it other than
to state that he was not aware of the conditions (Tr. VI 314).
Anderson did not know when the areas had been cut . However,
because mining had advanced approximately 500 to 600 feet inby
the areas, he judged the areas had been there 11 for quite some
time 11 (Tr. VI 321).
The conditions were abated by installing timbers to support
the roof (Tr. VI 325).
Faith called Dwight D. Morrison as a witness. Morrison was
a surveyor for TCC. He testified that. he and one other TCC
employee were the only surveyors tlsed at the No . 15 Mine (Tr . VI
361). He stated that on April 19, 1993, he went to the mine to
measure the areas referred to in the alleged violation (Tr . VI
363-364, 392). He claimed that he found "some differences 11
between his measurements and the measurements that appear on the
citation (VI 365). With respect to the first two areas mentioned
in the citation, Morrison found that~the left side had been
driven 15 feet from the last row of roof bolts , and the right
side had been driven 19 feet from the last row of roof bolts

1194

(Tr. VI 366-367).
In addition, Morrison claimed that on the left
side there was a second row of roof bolts that was difficult to
see, and that the inspector may not have noticed (l.d.....) • The
final area listed on the citat i on was not observed by Morrison
(Tr. VI 367-368) .
On cross examination, Morrison admitted that he had no way
to know whether the conditions he found on April 19 1993, existed
on March 17, 1993 (Tr. VI 369).
Stockwell believed that Anderson may have missed a second
row of roof bolts in the first area because they were underneath
a ledge. Despite this, he agreed that a violation of the ·roof
control plan existed in the first and second areas.
("I'm not
saying that the violation did not exist .. . It did exist.
But ...
it is much too severe . . . . Some of my men went beyond the ...
limit . .. (p]robably three to five foot beyond what should have
been gone" (Tr . ' VI 372, 373). Stockwell maintained that, at
most, three miners were affected by the conditions (Tr. VI 351).
Stockwell also disputed the presence of the last area
mentioned on the citation. He claimed that he never located it
and that when the citation was abated, the abatement did not
include the area (Tr. VI 373) . ) However, he agreed he did not
protest to Anderson that the citation, as written, was in any way
incorrect. He stated that he and Anderson "just don't
communicate very well, and it's better . .. if I don't argue the
point with him" (Tr. VI 390).
Finally, Stockwell maintained that the conditions existed in
places that did not have to be examined daily. Because the
unsupported areas were not as great as those found by the
inspector, and because they existed in places that were not
required to be examined daily, the failure to detect and correct
the condi~ions was··· not due to mor~ than ordinary negligence
(Tr. VI 383-384) .
The Violation
I conclude the violation existed as charged. Anderson's
testimony was compelling . He viewed each of the areas described
in the citation. He measured the areas. Stockwell was present
when at least two of the areas were measured. As the recipient
of the citation, he knew of Anderson's allegations with respect
to all of the areas . Stockwell's assertions that Anderson's
1195

measurements were wrong and that the last area mentioned did not
exist are completely undermined by his failure on March 17, to
disagree in any fashion with Anderson's assessment of the
conditions .
It defies reason that Stockwell, as the
representative of Faith, would have declined to advise the
inspector of his mistakes when the "mistakes" had the potential
for costing the company money . Stockwell ' s claim that he and
Anderson did not communicate very well, and therefore, that he
held his tongue, simply is not believable (Tr. VI 390). To
observe that Stockwell is not shy about expressing his opinions,
is to state the obvious.
S&S and Gravity
The violation existed as charged . The hazard associated
with the violation was that the unsupported roof would fall on
miners wo rking ~nder it . Given the fact that the roof in the
area was of an unstable nature, and given the fact that miners
went under the unsupported roof, as Stockwell admitted, I
conclude it was reasonably likely the violation would have
contributed to a roof fall that would have resulted in death or
serious injury. Anderson was right to find that the violation
was S&S.
· The violation also was very serious. Stockwell admitted
that miners traveled and/or worked under unsupported roof in two
of the areas, and I find that they also did so when they cut into
the adjacent entry
Although no roof falls yet had occurred in the cited areas,
I accept Anderson's testimony that the shale roof was scaling,
and was in poor condition.
I also accept Anderson's testimony
that water posed a problem for roof control, in that it made
parts of the roof subject to sudden, unanticipated falls .
Exposing miners to unsupported roof under ~uch conditions was
equivalent to requiring them to play Russian roulette.
Unwarrantable Failure and Negligence
Anderson was right as well to find that the violation was
the result of Faith's unwarrantable failure to comply with its
roof control plan. The Commission has defined unwarrantable
failure as conduct that is not justifiable and inexcusa b l e. It
is conduct that is the resu l t of more than inadvertence,

1196

thoughtlessness or inattention. In short, unwarrantable failure
is aggravated conduct constituting more than ordinary negligence
(Emery Mining Corporation, 9 FMSHRC 1997, 2001 (December 1987)).
Mining had moved well inby the cited areas and I accept
Anderson ' s testimony that the violation existed for several
months . I also accept his testimony that the areas existed in an
intake air course that had to be examined daily. Further, given
the generally unstable nature of the roof in the area, I conclude
that Faith had a high standard of care to ensure that the roof
was supported adequately. Faith's failure to meet that standard
over a period of several months constituted more than ordinary
negligence.

Citation/
Order No.
3203325

~

3/17/93

30 C.F.R.
75.203{a)

Assessment
$3,100

Order No . 3202245 states:
Mining methods [were] not compatible
with effective roof control on the 001
section in that sightlines had not been used
to determine the direction of mining.
Several pillars were not uniform in size or
shape and the entries had not been driven
according to projections (Joint Exh. 55) .
In addition to a violation of section 75.203(a), Anderson found
that the cited condition was S&S and that Faith unwarrantably
failed to comply with the standard .
By way of background, Anderson explained that sight lines
are determined by hanging plumb bobs from two separate spads,
lining up the strings holding the bobs and sighting the point
where the strings align on the face. Once the sight ·1ine on the
face is established, the width of the entry is marked on the face
by measuring from the center of the line (Tr. VI 406-407).
Spads are set according to the mine map and the sight lines
are a way of making sure mining is done in conformance with
projections on the map (Tr. VI 407). Anderson stated that it is
usually the section foreman who is responsible for making certain

119 7

that the mine is driven according to the mine plan and in
conformance with the sight lines (Tr. VI 408} .
According to Anderson, one danger of not conforming to sight .
lines is that pillars may not be of adequate size to support the
roof (Tr. VI 409). The resulting hazard is that the roof may
fall. Another danger of mining off plan is that miners may break
into abandoned workings. The workings may contain water or
oxygen deficient air and these elements may inundate the acti"ve
workings (Tr. VI 410). A final danger is that if miners are cut
off from the surface, would-be rescuers will not know for certain
the mine has been driven true to the mine map, and will misdirect
rescue efforts (VI 412-413) .
Anderson was alerted to the alleged violation when he looked
at the mine map and noted irregular variations in pillar sizes
(Tr . VI 414). ~derson identified an area on the mine map where
he believed sight lines had not been used. He stated that he
didn't "see a straight place for any distance on [this portion
of] the map" (Tr. VI 417, 435-436; Gov. Exh. 5 (left center
portion within blue circle)).
(Anderson testified that Gov.
Exh. 5 was not the exact map that he used when he cited the
alleged violation. Rather, it is a latter version of the map,
and it depicts more of the mine than actually existed on
March 17. However, it includes the cited area (Tr. VI 446} .)
Anderson maintained that if sight lines had been used, the map
would have "looked like a checkerboard" (..IQ.......) .
Anderson stated that although the mine map alerted him to
the possibility of a violation, he based the order both on the
map and on a visual examination of the areas shown on the map.
During his underground inspection, he checked pillar sizes and
shapes, and he checked entries to determine if they were straight
(Tr. VI 419).
Anderson agreed that if adverse roof conditions were
encountered, a mine operator could narrow entries and use
additional roof supports. He also agreed that there were times
when entries had to be moved out of line. He stated that there
was a lot of bad roof at the mine (Tr. VI 441}. He maintained,
however, that the cited irregularities were so extensive they
could not have been the result of adverse roof conditions
(Tr . VI 447-448}.

1198

Anderson testified that some areas where sightlines had not
been used were driven by the previous mine operator; He did not
include these areas in the order (Tr . IV 442-443).
By reviewing the dates on the mine map, Anderson determined
that Faith had been mining without sightlines for between 30 to
60 days (Tr. VI 420).
In Anderson's opinion, Faith should. have
known of the existence of the violation by observing that the
underground entries and crosscuts were not straight and that the
pillars were therefore irregular (Tr . VI 423) .
The violation was S&S because it resulted in small pillars
that put undue stress on the mine roof, and because it raised the
possibility that miners unintentionally could cut into old works
(Tr. VI 425) .
(He agreed, however, that no old works were shown
on the mine map adjacent to the cited area (Tr. VI 444) .)
In
Anderson's view, it was. highly likely that the failure to use
sightlines could have lead to the injury of miners because some
pillars were much too small (Tr. IV 426). He estimated that some
were less than half of their required size (Tr. VI 426-427).
Anderson believed that Faith should have known from past
experience that it had to use sightlines. Moreover, Faith
received mine maps on a monthly basis and a review of the maps
should have indicated the mine was not being driven as required
(Tr. VI 431).
Finally, Anderson testified that he had cited the wrong
standard . Rather than cite section 75.203(a), which requires
that the method of mining not expose any person to hazards c·a used
by excessive widths of rooms, crosscuts, and entries; and that
pillar dimensions be compatible with effective control of the
roof, he should have cited 30 C.F.R. § 75.203(b), which requires
that a sightline or other method of directional control be used
to maintain the projected direction of mining (Tr. VI 430, 449450) .
Stockwell testified that the area he understood to be
encompassed by the order was much more restricted than that
testified to by Anderson. The area that Stockwell thought was
involved included one end of a long and narrow pillar. Stockwell
maintained that the narrow configuration was due to an
engineering mistake. While there ~ere two or three other places
that were deliberately off projection, they were caused by bad

1199

roof conditions (Tr. IV 459-460, 463; Gov . Exh. 5 (upper left
pink 11 x 11 ) ) . Most of the area identified by Anderson as being
included in the violation was mined by the previous operator
(Tr. VI 466).
Stockwell also maintained that surveyors from TCC came to
the mine every three or four days to set spads, and that Faith
used the spads to establish and follow the sightlines. As he put
it, 11 [W]e followed the sightlines. We followed the spads set by
the TCC surveyors" (Tr. VI 471) . Stockwell maintained that there
was a two or three week period when the affected area was mined,
and that TCC's surveyors came to the mine to set spads on the
average of every third day during that period (Tr. VI 472).
Motions to Vacate and to Amend
Based on Anderson's admission that he should have cited
section 75 . 203 ('p ), Faith moved to vacate the order of withdrawal.
Counsel for the Secretary countered by moving that the order be
conformed to the proof (Tr.
VI 449-450). I reserved ruling on
..
the motions. Having considered the record, I deny the motion to
vacate, and grant the motion to amend.
The law is clear, amendment is to be freely granted where
the opposing party is not prejudiced, and this is especially so
when the Secretary seeks to allege a substantively related
subsection of the standard applied to the cited conditions
(Cyprus Empire Cor~., 12 FMSHRC 911, 916 (May 1990)). As counsel
fo r the Secretary points out, the essence of the allegation is
that Faith did not use sightlines or other methods of directional
control to maintain the projected direction of mining in rooms
and entries. The inspector testified that he discussed the use
of sightlines with Stockwell in conjunction with the order. The
order itself indicates that it was abated following such a
discussion (Tr. VI 430; Joint Exh. 55). I credit Anderson's
testimony.
The order's wording is not a model of clarity. It refers to
"mining method" and "effective roof control," phrases that harken
back to section 75.203(a). It also states that "sightlines had
not been used," 'which refers obviously to section 75 . 203(b). I
conclude, however, that the confusion inherent in this wording
was overcome by Anderson's discussion with Stockwell, and Faith
was on notice that the essence of the violation was the failure
1200

to use sightlines or other methods of directional control on the
001 Section.
Moreover, Faith did not show prejudice.
prepared to defend.

It was fully

The Violation
The issue is whether the Secretary has established that in
the cited area, sightlines were not used to control mining
direction. I conclude that he has not.
Anderson did not see any surveying or mining being
conducted. He had no first-hand knowledge of whether or not
sightlines were used. Therefore, the Secretary had to prove the
violation by circumstantial evidence. For this reason, the
Secretary relied upon Anderson's testimony that the mine map's
depiction of irregularly shaped entries and pillars was a visual
11
tip off" that sightlines had not been used, and upon Anderson's
observation, that he looked at the size and shape of the entries
and crosscuts to "be sure that they're straight" (Tr. VI 419).
Stockwell countered by testifying,----among other things, that
such deviations from projections as existed were deliberately
made as a result of adverse roof conditions, something that
Anderson believed was possible but not likely, given what he
viewed as the extensive nature of the deviations (Tr. VI 469).
Stockwell also testified that even in the areas where deviations
existed, Faith had used sightlines:
Is it your testimony that ... you
... purposefully mined ... in these directions and in
the way that it's shown on this map [Gov. Exh. 5]? Did
you do that by ~esign?
Q:

A: I did it by design, by spads placed in place
by T.L.C. surveyors. They came over there during this
time every three or four days. Every time we'd get ...
another area opened ~p, they'd come and set us spads to
keep us on the sightlines, and we'd follow the
sightlines. The spads are still in place if you want
to took at them if you want to go see. But, yes ... we
followed the sightlines. We followed the spads set by
the T. L. C. surveyors (Tr. VI 4·71) .

1201

To find that a violation existed, I must find this testimony is
not credible.
I cannot do so on the basis of this record.
As noted, even
though he considered it unlikely, Anderson agreed that the
deviations could have been caused by roof problems, and indeed,
the record is replete with testimony regarding adverse roof
conditions. Also, the Secretary did not offer evidence that the
required spads were not in place, or testimony from miners that
it was a practice at the mine not to follow sightlines. Clearly,
such testimony would have been extremely helpful to the
Secretary, and its absence raises questions regarding the
strength of the Secretary's proof. Lacking such testimony, I
cannot discredit Stockwell's insistence that sight lines were
followed and that deviations were necessitated by poor roof.
Therefore, I conclude that the Secretary has not established a
violation of section 75.203(b).

Remaining Civil Penqlty Criteria
Having made dispositive findings regarding all of the
alleged violations contested by Faith; including the gravity of
the violations and Faith ' s negligence, I turn to the remaining
civil penalty criteria.
Ability To Continue In Business
The Act requires that I consider six criteria when I
determine the amount of any penalties to be assessed (30 U.S.C .
§ 820(i)).
One of the criteria is the effect of the civil
penalties on the operator's ability to continue in business . As
a general rule, in the absence of evidence that the imposition of
civil penalties will effect adversely the operator's ability to
continue in business, it is presumed that no such effect will
occur (Sellersburg Stone Company, . 5 FMSRHC 287 (March 1983),
aff 1d 736 F.2d 1147 (7th Cir. 1984}. However, the operator may
rebutt the presumption.
Counsel for the Secretary argued that Faith had sufficient
assets to pay the penalties proposed and that when I evaluated
the company's financial status, I should include all assets of
the Stockwell family.
Counsel stated that t~e family's money had
been commingled with Faith's assets and, in addition,
Mrs . Stockwell had undertaken l iabilities in support of the mine
1202

(Tr . II 15). In the alternative, counsel argued that because
Faith effectively was out of business, consideration of the
ability to continue in business criterion was irrelevant and the
penalties assessed should be those proposed (Tr. II 16).
Stockwell maintained that it would be wrong to consider all
of the family's assets. He testified that although Faith's
profits and losses were reported to the IRS on Schedule C of the
Stockwells' joint federal income tax return, he was the sole
proprietor (Tr . II 137-138). He stated that all of the funds
derived from the mine were reinvested in it.
With respec~ to the commingling of family and company funds,
Stockwell explained that when Faith did not have enough money to
meet a payroll or to purchase or repair equipment, Mrs. Stockwell
wrote checks for the necessary amounts from her personal account.
However, Faith always repaid her and she redeposited the payment
in her personal account (Tr. II 18) . According to Stockwell,
there was no intent to co-mingle funds in a joint venture, and
the family's assets should not be viewed as assets available to
the company (Tr. II 19).
Moreover, although the Stockwells filed joint federal tax
returns, there was a separate schedule for Faith that bore
Stockwell's name only (Tr. II 20). While it was true that
Mrs . Stockwell had authority to sign Faith's checks, she had that
authority only as a convenience to Stockwell so that she could
buy parts or pay bills when Stockwell was absent (Tr. II 21).
Mrs. Stockwell did not keep books for the company and she had no
functions within the mining operation (Tr . II 64) .
With regard to the family's assets, Stockwell stated that he
and his wife jointly own a farm of approximately 213 acres, which
they bought in 1969 (Tr. II 114-115) .) He also stated that the
family home and the five and one half acres on which it stands,
is owned by his wife (Tr . II 24-25) . The property was
purchased and titled in Mrs. Stockwell's name before Stockwell
became involved in Faith (Tr. II 25, 105).
(At one time, the
Stockwells had a larger home. However, it burned in
January 1990, and the Stockwells moved into a smaller house
(Tr. II 25, 78, 106-107) . Stockwell stated that his homeowner ' s
insurance had been cancelled shortly before the fire and that he
and his wife "lost everything" in the fire (Tr. II 79) . )

1203

The Stockwells also own 165 acres of land in Sequatchie
County, Tennessee. According to Stockwell, the land is "just
sitting there" (Tr. II 103, 111).
Stockwell maintained that Faith begun operating the No . 15
Mine in late 1990 (Tr. II 26). Prior to that time, the mine was
abandoned (Tr. II 12-13). To finance the startup costs and to
purchase equipment, Stockwell borrowed over $174,000 from the
First National Bank of Shelbyville.
Stockwell identified a letter dated February 14, 1994, from
the bank.
It stated that an indebtedness of $119,268.64 on the
loan was past due. The bank demanded that the account be brought
up to date.
Payments on the loan are $3,300 per month (Tr. II
29, 145; D. Exh. 2).
(The original amount due was $174,531.30
(Tr. II 164); D. Exh. 4) .)
Stockwell -testified that he had attempted to obtain
consolidation loans to prevent foreclosure but had been
unsuccessful because he did not have sufficient collateral
(Tr. II 35-36). He stated that if the bank canceled the loan, he
would have no hope of returning to mining (Tr. I! 127). He added
that if he could not continue operating the mine, he would spend
the rest of his life trying to pay what he· owes (Tr. II 133).
Stockwell also stated that all of Faith's mining equipment is
held as collateral for the bank loan; as well as all of his farm
equipment (Tr. II 145). According to Stockwell, the value of the
mining equipment has decreased substantially, because TCC has
changed from conventional mining to continuous mining machines
(Tr . II 83) .
Stockwell added that he also owns $20,533 on a loan he
incurred to purchase a home for his father.
The loan is
delinquent (Tr. II 47, 69; D. Exh. 5).
According to Stockwell, when the mine was operating, it
produced approximately $375,000 per year in income. Salaries and
other expenses took all of the income.
In fact, according to
Stockwell, Faith still owes approximately $30,000 in open
accounts (Tr. II 33, 62, 142). When Stockwell went to prison,
the mine was shut down .

1204

Stockwell maintained his liabilities exceeded his assets by
approximately two to one, and that he is facing current
liabilities of approximately $300,000 (Tr. II 35). The family
(Stockwell, his wife and teenage daughter) is surviving off of
his wife's teaching income (Tr. II 53-54). Since returning from
prison, he has been unemployed except for working on his farm
property which earns him $100 to $150 per week (Tr. II 38).
Stockwell described his financial future as "very bleak ... if
I don't get back [to mining]"
(Tr. II 53; ~ .a,laQ Tr. II, 58,
127) . He stated that he would like to resume mining as soon as
his probationary period ends (Tr. I I 58, ~ .a,laQ Tr. 127).
Stockwell maintained that although he was out of business
temporarily, at some point Faith could "turn around to be a
profit-making business" (Tr. VI 198). He described the mine as
in a state of "temporary cessation" {Tr. I I 14).
· Finally, Stockwell testified he would not be surprised to
learn that he owe·s MSHA $31, 800 in unpaid civil penalties (Tr. I I
121) . He acknowledged he owes up to $4,200, perhaps more, to the
Office of.. Surface Mining and that he owes the United States
government approximately $1 , 000 in fines levied as a result of
his criminal conviction. He stated that he had already paid the
government $500 and had arranged to "work off" the rest (Tr. I I
124) .
Buford Ayers, an assistant supervisor of the Farmer's Home
Loan Administration (FHLA), testified that the FLHA loaned the
Stockwells the money to finance the farm property and that the
current balance due was $55,408 . 18 (Tr. II 183). Ayers stated
that the last financial statement by the Stockwells to the FLHA
indicated that the Stockwells had a personal net worth of
$164,000. However, the figure included the value of ~ining
equipment that was then estimated at $250,000. Payments to the
FHLA had to be made annually. The amount due was $5,043. As of
the date of the hearing, the Stockwells were not in arrears
(Tr. II 187-188) .
Ayers was of the opinion that if the First National Bank of
Shelbyville foreclosed on its loan to the Stockwells, they would
be forced to default to the FLHA; or, as Ayres put it, "I just
don't see how they can make it" (Tr . I I 191).

1205

Robert Taylor, an officer of the First National Bank of
Shelbyville testified that Stockwell owes· the bank approximately
$119,000 (Tr. II 150) . Taylor stated that the original loan was
made to Faith, Stockwell and Mrs. Stockwell (Tr. II 158) .. The
loan is secured by Faith's mining equipment, by a deed of trust
on the 165 acres in Sequatchie County, and by a deed of trust for
the house the Stockwells occupy (Tr. II 165-166). Taylor stated
that the only equipment he considered worth anything was a
loading machine, which he evaluated at approximately $15,000
(Tr. II 175-176). He estimated the land that secures the loan as
worth approximately $40,00 to $50,000.
According to Taylor, the Stockwell's have tried to avoid
bankruptcy and have made an offer to settle their debts, but the
bank has rejected the proffered settlement (Tr. 152). Unless
Stockwell is able to secure another loan to cover the
indebtedness or unless the Stockwells reach a settlement with the
bank, the bank· will foreclose (Tr. II 153). Foreclosure will
include a writ of possession on all of Faith's mining equipment.
Taylor also stated that in the bank's view, Stockwell and
Mrs. Stockwell were equally liable for the loan (Tr. II 170-171).
Ann Wilson, the comptroller of TCC, described Faith as "one
of the smaller operations" with whom TCC contracted (Tr. V. 86).
She testified that to the best of her knowledge the No. 15 Mine
was no longer operated and that TCC had no intention of entering
into another contract with Faith (Tr. V 76).
According to TCC's records, it paid Faith a total of
$119,327.17 in 1990, $282,324.89 in 1991, $209,224.23 in 1992 and
$218,556.20 in 1993. The last payment being made to . Faith in
October 1993 (Tr. V 78-79; Gov. Exh. 3). The total paid in four
years was approximately $819,432 (Tr.V. 79).
TCC advanced monies to Faith on occasion. These advances
were to provide working capital.
In Wilson's opinion, an advance
indicated an operator lacked funds to pay for something.
However, TCC would not make an advance without collateral (Tr. V
86-87) . TCC deducted amounts due it for supplies from coal
payments to Faith. If Faith did not mine enough coal to pay
through deductions, it wrote a check back to TCC. Wilson
identified two such checks that were signed by Chris Stockwell

1206

and that bore the names "Faith Coal Co., Lonnie or Chris
Stockwell" (Tr. 81-82; Gov. Exh. 3 at 10).
At the close of the testimony on the ability to continue in
business criterion, Stockwell's counsel argued that if Faith and
Stockwell had any chance of going back into the coal mining
business, that chance would be precluded by any further
indebtedness (Tr. I I 204-205).
Counsel for the Secretary countered that if a mine operator
could not afford to run a mine in a safe and healthful manner, it
was MSHA's duty to shut down the operation (Tr . II 207).
Counsel
pointed out that the total penalties proposed in these cases is
approximately $17,000 and that the equity on the farm land on
which the FLHA holds the mortgage is more than that (Tr. II 209) .
Also, Counsel maintained that the Stockwells have no realistic
possibility of resuming mining (Tr. II 214). Therefore, the
ability to corttinue in business criterion really is irrelevant .
Settlement Suggestion
Following introduction of most of the evidence on the
criterion, I issued a bench ruling regarding "what the ability to
continue in business criter[ion] means and how . .. it should be
applied" (Tr. III 241).
I indicate~ that my ruling was
provisional, and that I would express my complete views in the
written decision (1.Q.).
then stated that in my view, any penalties assessed in
these cases should be more then minimal but less than those
proposed. ·(Tr. I I I 244). Based upon that ruling I suggested, off
the record, a settlement plan that I believed was equitable to
the parties.
The suggestion was rejected by counsel for the
Secretary because, in the Secretary's view, Faith's history of
prior violations and Stockwell's criminal conviction, did not
warrant any reduction of the proposed penalties . Further,
counsel maintained that Faith had not met its burden of proof
with respect to the ability to continue in business criterion
(Tr . I I I 2 4 9 - 2 5 2 ) .
I

1207

Findings on Ability To Continue in Business Criterion
As I noted at the hearing, the assessment of a civil penalty
is mandatory for any violation found to exist (30. U.S.C .
§ 820(a); Spurlock Mining Company. Inc., 16 FMSHRC 697,699
(April 1994); Tazco. Inc., 3 FMSHRC 1895 (August 1981). As I
also noted, although some Commission judges have held that the
criterion is no longer relevant when an operator is effectively
out of business (~ Spurlock Mining Company. Inc., 15 FMSHRC 629
(April 1993) (ALJ Melick), aff 'd in result 16 FMSHRC 697), other
judges have found the fact that a company has ceased to operate
to be a basis for reducing penalties, sometimes to nominal
amounts (Iron Mountain Ore Co . , 11 FMSHRC 1840, 1850 (November
1986) (Judge Morris); CRO Coal Co .. Inc . , 2 FMSHRC 2247, 2249
(August 1980) (ALJ Steffey)).
In general, I agree with Commission Administrative Law Judge
George Koutras that the essence of the civil penalty assessment
process requires a balancing of .all the statutory criteria,
including, obviously, the ability to continue in business
criterion, (Broken Hill Mining Co .. Inc., 15 FMSHRC 1331, 1348-49
(July 1993)) . Further, I view weighing the criteria and
equalizing the balance as affording the judge considerable
discretion.
(Penalties are assessed de novo by the judge and the
judge is not bound by the formula for assessment that the
Secretary has adopted (Shamrock Coal Co., 1 FMSHRC 469 aff'd,
652 F . 2d 59 (6th Cir. 1981); Sellersbrug Stone Co., 5 FMSHRC 287,
291-292 (March 1983) . )
The question is whether Faith offered sufficient credible
evidence to prove that the size of any penalty assessed would
effect its ability to continue in business, and if so, the extent
to which that proof and the other criteria should impact the
civil penalties.
In answering the question, I . note first my agreement with
the Secretary's contention that the assets of both Stockwell and
his wife should be considered when evaluating the ability to
co~tinue in business criterion .
Although Faith was organized as
a sole proprietorship and although Stockwell was the titular sole
proprietor, there is no doubt that Mrs. Stockwell made her
personal assets available to the company when required and that,
in effect, she served as a full financial partner in the
business. Mrs. Stockwell had the authority to sign checks on
Faith's behalf (Tr. II 19). Mrs. Stockwell also wrote checks for
1208

the company from her personal account, checks that allowed the
company to continue in operation when it did not h~ve enough
money to cover current expenses (Tr. II 18, 65). Moreover, .when
Faith needed a loan to purchase mining equipment and initiate
mining, Mrs. Stockwell signed for the loan along with her husband
(Tr. II 61). But for Mrs. Stockwell, Faith would not have been
able to go into and to continue with the business of mining. The
company functioned fiscally as a husband and wife partnership,
and I will look to the realities of the business rather than to
its formalities.
Those realities lead me to conclude at the hearing that t.he
Stockwells were in precarious financial straits, and nothing
since has caused me to change my view (Tr. III 245-247). I
acc ept as fact that the Stockwells owe the First National Bank of
Shelbyville, $119,268.64. I also accept as fact that collateral
on this loan includes the mining equipment at the No. 15 Mine,
the deed of trust on the 165 acres in Sequatchie County and the
property and house where the Stockwells are living (Tr. 165-166 ) .
In addition, I accept Stockwell's and Taylor's testimony that the
mining equipment has lost most of its value and that the land
that secures the loan is worth less than half the amount due (Tr.
II 175 - 176).
Ayers credibly stated that he was thoroughly familiar with
all aspects of the FLHA loan on the farm; and I find persuasive
his opinion that if the Stockwells are unable to make
a rrangements with the First National Bank, they wi ll .default on
the FLHA loan. Ayers stated that if the Stockwells defaulted, he
did not know how they "could make it," and neither do I (Tr. II
191) .
Scenarios can be devised by counsel for the Secretary
concerning how the Stockwells can be assessed the full amount of
the proposed penalties and pay them, but counsel is not a
professional banker; Taylor and Ayers are, and I give great
weight to their testimony and to their opinions.
I conclude from their testimony that additional debt of the
type proposed by the Secretary will force the Stockwells to
default on their obligations to the bank, and to the FLHA; with
the result that they may loose the mining equipment, their house,
farm and their other property.

1209

To say that this would have a detrimental effect on Faith's
ability to continue in mining, understates the mat~er. Stockwell
indicated a desire to continue mining and I take him at his word
(Tr. II 58, 127). As long as he has the equipment, his return to.
the business remains a possibility. Once the equipment is gone,
so is the reasonable likelihood of resuming operations .
Stockwell's sins of commission and omission under the Act
already have resulted in penalties other than those the Secretary
seeks here.
If Stockwell returns to mining, he will do so with
first-hand knowledge of the civil and criminal sanctions
engendered by violations of the Act and regulations . Given this,
I do not believe assessing penalties less than those proposed in
these cases will lessen his incentives for compliance.
I think it is fair to state that the Secretary's approach to
penalty amounts is driven by a desire to make it as difficult as
possible for Stockwell ever to mine again. Counsel for the
Secretary was candid about this -- 11 If a mine operator cannot
afford to run the mine in a safe and healthy way, it is our
business to shut it down" (Tr . II 207). However, civil penalties
are remedial not punitive, and the ability to continue in
business criterion is not intended to be used to thwart mining.
Rather, it is to be used to encourage the continuation or
resumption of safe mining.
If the Secretary believes an operator
should be barred from mining, other remedies are available, as
Stockwell's experience before the judge magistrate has shown.
Therefore, when assessing civil penalties in these cases, I
will afford more weight than would otherwise be the case to the
ability to continue in business criterion.
Size and Good Faith Abatement
Faith is small in size, and unless otherwise specifically
noted, the company demonstrated· good faith in attempting to
achieve rapid compliance.
History of Previous Violations
Faith Coal Company has a large history of previous
violations (Joint Exh. 61) .

1210

Penalty Amounts
When all of the criteria are considered, I conclude that the
resulting assessments should be more than minimal but less than
proposed.
ORDER
Docket No. SE 91 -97
This case was assigned to Commission Administrative Law
Judge Gary Melick. On September 20, 1991, the parties agreed to
settle the matter and they filed a joint motion to approve the
settlement. Judge Melick rejected the settlement and scheduled
the matter for hearing.
A hearing was conducted on September 24, 1991. It was not
completed because Faith requested and received permission to
present additional evidence and to call additional witnesses.
Judge Melick set December 4, 1991, as the date the hearing would
resume. Subsequently, the matter was the subject of numerous
continuances and stays for reasons fully outside the control of
the judge.
(The chronology of the case is documented in
Secretary's post trial brief at pages 5-9.)
The case was reassigned to me with the understanding that
Faith would have the opportunity to present additional evidence
and call additional witnesses during the subject consolidated
hearings. At the beginning of the second session of hearings,
Stockwell stated that Faith would not present any additional
documentary evidence or offer any further witnesses (Tr . V 17-18,
22-23).
The parties resumed settlement negotiations. As a result,
the parties agreed to resubmit their original motion to approve
the settlement, with the understanding that it be reviewed in the
context of the evidence that has been offered regarding the
affect of any penalties assessed on Faith's ability to continue
in business (Sec . Br. 8).
Given the civil penalty criteria noted above, I conclude
that no reduction in the settlement is warranted. The settlement
is approved .

1211

Settled Citations
Citation/
Order No.
3023421
3023422
3023422
3023347
3023348
3023350
3023351
3023410
3023411
3023412
3023413
3023418
3023420
3023354
3023355

~

8/28/90
8/28/90
8/28/90
9/24/90
9/24/90
9/24/90
9/24/90
9/24/90
9/24/90
9/24/90
9/24/90
9/25/90
9/25/90
9/26/9_0
9/26/90

30 C.F.R.
Assessment
75.312
$ 20
75.316
$ 20
75.316
$ 20
75.505
$ 20
75. 1704 (2) (c) (2) $ 20
75.403
$ 20
75.904
$ 20
75.1801
$ 20
75.1803
$ 20
75.1805
$ 20
77.501
$ 39
75.400
$ 20
75.400
$ 39
75.503
$ 20
75.400
$ 39

Settlement Penalty
$10
$10
$10
$10
$10
$10
$10
$10
$10
$10
$10
$10
$10
$10
$10
$10
$10
$10
$10
$10
$23
$23
$10
$10
$23
$23
$10
$10
$23
$10

Faith is ORDERED to pay the penalties shown.
Docket No. SE 91-533
Citation/
Order No.
l2fil..e.
30 C.F.R.
3023423****** 8/28/90 75.303(a)
3023681*
12/26/90 77.1605(k)
3023416****
9/24/90 75.804(b)
3023353****
9/25/90 75.220
3023461****
9/26/90 75.316
3023462****
9/26/90 75.303(a)
(* Tr. IV 73)

Assessment
$300
$200
$450
$450
$400
$400

Settlement
$ 78
$275
$275
$275
$275

Penalty
$ 50
$134
$150
$150
$125
$125

(Faith agreed to withdraw its contest of the citation.)

(**** Tr. VI 200-205)
(The Secretary agreed to reduce the penalty based
upon litigation strategy.)
(****** Tr. IV 743)
{The Secretary agreed to vacate the associated
section 104{b) withdrawal order.)
Faith is ORDERED to pay the penalties shown.
The Secretary is ORDERED to vacate Order No. 3023423.

1212

SE 92-315
Settled Citation
Citation/
Order No.
3395346*

~

12/2/91

(*Tr II 257)

30 C.F.R.
§75.400

Assessment
$85

Penalty
· $SB

(Faith agreed to withdraw its contest of the citation.)

Faith is ORDERED to pay the 9ivil penalty shown .
Docket No. SE 92-316
Contested Citation
Citation/
Order No.
3395933

~

2/26/92

30 C.F .R .
75 . 1808

Assessment
$20

Penalty
$20

Citation No. 3395933 is affirmed, and Faith is ORDERED to pay the
penalty shown .
Settled Citations
Citation/
Q;i;:de:.t: NQ,
3395936*
3396027*
3396028*
3396029*
3396030*

I!a.t&
2/26/92
2/26/92
2/26/92
2/26/92
2/26/92

(*Tr. IV 748.

3Q Q,E,R.
49.98
75.403
75.303(a}
75 . 313-1
70.210(b)

Assessment
$20
$58
$20
$20
$20

EenSi!lty
$13
$42
$13
$13
$13

Faith agreed to withdraw its contest of the citations.)

Faith is ORDERED to pay the penalties shown.
DOCKET NO , SE 92-343
Contested Citations
Citation/
Q;i;:de;i;: No,
3396042

lla.t.e
3/2/92

30 C.E . R,

Assessment
$ 94

77.1104

1213

Penalty
$40

3390641
3396045
3396047

75.1713-7(a) (2)
75.202(a)
75.208

3/2/92
3/3/92
3/2/93

$ 94
$147
$ 88

$ 0
$40
$40

Faith is ORDERED to pay the penalties shown.
The Secretary is ORDERED to vacate Citation No. 3396041.
The Secretary is ORDERED to modify Citation No . 3396045 by deleting
the S&S finding.
The Secretary is ORDERED to modify Citation No. 3396047 by deleting
the S&S finding .
Settled Violations
Citation/
Q;r:der: NQ.
~
3396046*
3/3/92 ·
3395940*** 3/02/92
3396043*** 3/02/92
3396044*** 3/02/93
3396035** 3/02/92
3396036*** 3/02/92
3396039*****3/3/92
3396040*** 3/3/92
3396081*****3/3/92
3396082*******3/3/92
3396048*******3/5/92

30 C.F,R.
75.1313(c)
77.505
77.807
77.513
77.400(a )
77.513
75.203(e)
75. 202 (a)
75.220
75 . 212(c)
75.203(e)

A~liil~~~m~Dt

$ 88
$ 88
$ ·88
$ 88
$ 88
$ 88
$147
$147
$147
$147
$147

Sett l~m~nt

$50
$50
$50
$50
$50
$88
$88
$88
$58
$58

t:~nQ.lt~

$59
$40
$40
$40
$40
$40
$65
$65
$65
$42
$42

{Tr. III 532)
citation.)

(*

{Tr. IV 780)

(**The Secretary agreed to delete the S&S finding.)

Faith agreed to withdraw its contest of the

(Tr. III 532-535, Tr. IV 781, 783-784)
modify the negligence finding to low.)

(*** The Secretary agreed to

(Tr . IV 782-785)
(***** The Secretary agreed to reduce the number of
miners affected by the violation.)
(Tr . III 535 - 537, Tr. IV 785-786)
(******* The Secretary agreed to
modify the negligence finding to low and to reduce the number of miners
affected by the violation.)

1214

Faith is ORDERED to pay the penalties shown.
The Secretary is ORDERED to modify Citation No. 3396035 by deleting
the S&S finding.
The Secretary is ORDERED to modify Citations No. 3395940, 3396043,
3396044, 3396036, and 3396040, by reducing the negligence findings to
low.
The Secretary is ORDERED to modify Citations No. 3396039 and
3396081, by reducing the number of miners affected by the violations.
The Secretary is ORDERED to modify Cit~tions No. 3396082 and
3396048, by reducing the negligence findings to low and by reducing the
number of miners affected by the violations.
Docket No. SE 92-372
Settled Citations
Citation/
Q;i;:der NQ.
~
3396083**** 3/4/92
3396084*****3/5/92
3396085*
3/9/92
3396038*****3/4/92
(Tr. IV 767)

~Q

Q.E.R.

75.212(c)
75.400
75 . 212(c)
75 . 212(c)

Assessment
$ 88
$147
$ 50
$147

Settl~m~nt

$50
$94
$94

£enalt:l
$40
$72
$40
$72

(*Faith agreed to withdraw its contest of the citation.)

(Tr. IV 764-765)
(**** The Secretary agreed to reduce the penalty based
upon litigation strategy.)
(Tr. IV 766-768)
(***** The Secretary agreed to reduce t .he number of
miners affected by the violation.)
Faith is ORDERED to pay the penalties shown.
The Secretary is ORDERED to modify Citation No. 3396084 by reducing
the number of miners affected by the violations .

1215

DOCKET No. SE 92-373
Contested Citation
Citation/
Order No.
9883375

l2a.t.e.
4/13/92

30 C.F.R.
70.208(a)

Assessment
$50

Penalty
$40

Settled Citation
Citation/
Order No.
3395800
(Tr. IV 642)

lla.t..e.
5/01/92

30 C.F.R.
75.403

Assessment
$50

Penalty
$40

(*Faith agreed to withdraw its contest of the citation.)

Faith is ORDERED to pay the penalties shown.
Docket No. SE 92-375
Settled Citation
Citation/
Order No .
.ua.t_e
3396037**** 3/02/92

30 C.F.R.
77.516

Assessment
$88

Settlement
$50

Penalty
$40

(Tr. IV 748-749)
(**** The Secretary agreed to reduce the penalty based
upon litigation strategy.)
Faith is ORDERED to pay the penalty shown.
Docket No. SE 92-463
Contested Citation
Citation/
Order No.
3024224

~

5/28/92

30 C.F.R.
75.208

·Assessment
$88

Penalty
$75

Settled Citation
Citation/
Order No.
3024225*

D.a..t.e.
5/28/92

30 C.F.R.
75.220

Assessment
$88

1216

Penalty
$59

(Tr. II 273-274)
citation.)

«•

Faith agreed to withdraw its contest of the

Faith is ORDERED to pay the penalty shown.
Docket No. SE 92-464
Contested Citation
Citation/
Order No.
3024223

~

5/27/92

30 C.F.R.
77.402

Assessment
$88

Penalty
$59

Faith is ORDERED to pay the penalty shown.
Docket No. SE 92-488
Settled Citation
Citation/
Order No.
3024222*
(Tr. I I

~

5/27/92
257)

30 C.F.R.
70.508(a)

Assessment
$50

Penalty
$40

{* Faith agreed to withdraw its contest of the citation.)

Faith is ORDERED to pay the pen~lty shown.
Docket No. SE 93-78
Contested Citations
Citation/
Order No.
3024472
3024476

~

8/19/92
8/27/92

30 C.F.R.
Assessment
75.203(a)
$50
75.1107-16(b)
$50

Penalty
$ 0
$30

Faith is ORDERED to pay the penalty shown.
The Secretary is ORDERED to vacate Citation No. 3024472.
Settled Citations
Citation/
Order No.
3014473**
3024474*

~

8/19/92
8/20/92

30 C.F.R.
75.511
75.601-1

Assessment
$88
$88

1217

Settlement
$50

Penalty
$40
$59

(Tr . I I 3 7 7 - 3 7 8 )
(Tr. II 377)

(**The Secretary agreed to delete the S&S finding.)

(* Faith agreed to withdraw its contest of the citation.)

Faith is ORDERED to pay the penalties shown .
The Secretary is ORDERED to modify Citation No. 3014473 by de l eting
the S&S finding.
Docket No. SE 93-79
Settled Citations
Citation/
Order No.
3024477*
3024478*
(Tr. I I 3 74)

l&..t..e.
8/27/92
8/27 / 92

30 C.F.R.
Assessment
75.503
$50
75.1714(3) (e)
$50

Pena l ty
$40
$40

(*Faith agre ed to withdraw its contest of the citations.)

Faith is ORDERED to pay the penalties shown.
Docket No. SE 93-194
Settled Citations
Citation/
Qrcter NQ,
~
3024675**
11/1 6 /92
3024737*
1 2/01 / 92
3024745*****12/01 / 92

30 C.F.R,
75.306{a)
75 . 388(b)
75.316

Assessment
$128
$128
$128

Settlement
$50
$94

Pen2 l ty
$40
$85
$72

(Tr. I I 328 )

(* The Secretary agreed to delete the S&S finding.)

(Tr. II 328)

(** Faith agreed to withdraw its contest of the citation.)

(Tr. IV 750-752)
(***** The Secretary agreed to reduce the number of
miners affected by the violation.)
Faith is ORDERED

to pay the penalties shown.

1218

The Secretary is ORDERED to modify Citati~n No. 3024745 by reducing
the number of miners affected by the violation.
Docket No. SE 93-195
Settled
Citation/
Q;cd.ex: f:iQ,
3024705*
3024706*
3024707*
3024708*
3024709*
3024710**
3024711***
3024712***
3024713*
3024801*

:J2at..e.

~Q

12/08/92
12/08/92
12/08/92
12/08/92
12/08/92
12/08/92
12/14/92
12/14/92
12/14/92
12/14/92

75.512
77.516
75.515
75.904
75.601-1
75.900
75.313 - 1
75.318
75.1101 - 3
75.316

(Tr. II 430-432)
citation.)
(Tr. II 430)

~.E.R.

Citations

A~~essment

$ 50
$ 75
$ 75
$ so
$ 75
$ 75
$111
$ 75
$111
$ 50

Settlement
$40

$58
$50
$75
$50

Penalty
$40
$50
$5 0
$40
$50
$40
$50
$40
$74
$40

(* Faith agreed to withdraw its contest of the

(**The Secretary agreed to delete the S&S finding.)

(Tr. II 430-431)

(*** The Secretary agreed to modify the negligence to

low.~

Faith is ORDERED to pay the penalties shown.
The Secretary is ORDERED to modify Citation No. 3024710 by deleting
the S&S finding .
The Secretary is ORDERED to modify Citations No. 3024711 and
3024712, by reducing the negligence to low.
Docket No. SE 93-257
Settled Citation
Citation/
Qrder No.
~
3Q C,F,R.
Assessment
3024802******12/14/92 75. 364 (a) (1)
$117

1219

Settlement
$50

Penalty
$40

(Tr . II 432-433)
(* * **** The Secretary agreed to vacate the associated
section 104(b) withdrawal order.)
Faith is ORDERED to pay the penalty shown.
The Secretary is ORDERED to vacate Order No. 3024767.
Docket No. SE 93-300
Settled Citation
Citation/
Order No.
~
9883495********1/08/93

30 C . F . R.
70.207(a)

Assessment
$300

Settlement
$50

Penalty
$40

(Tr. II 257-258)
(******** The Secretary agreed the violation was
technical and should not have been specially assessed . )
Faith is ORDERED to pay the penalty shown.
Docket No. SE 93-348
Contested Citation.
Citation/
Q;i;:de;i;: ;NQ,
9883544

J2fil..e.

3Q C. E.R .

2/18/93

70 . 201(c)

As~essment

$50

Eensalty
$40

Faith is ORDERED to pay the penalty shown .
Settled Citations
Citation/
Q;rde i:: NQ.
3024880*
3202181****
3202182*
3202183*
3202185*
3202186****
3202187*
3202189* *
3202 1 90**
3202191***
3202192*
3202193*

~

3/02/93
3/02/93
3/02/93
3/02/93
3 / 02/93
3/02/93
3/02/93
3/03/93
3/03/93
3/04/93
3/04/93
3/04/93

3Q C.E.R.

A66essment
75.364 (i)
$ 50
75.512
$ 50
1s . 1101-23 cc) c1) $ 50
75 . 220
$ 88
75.220
$ 50
75.507
$ 88
75.603
$ 88
75.606
$ 88
75.400
$128
75.340(a) (1)
$147
75.516
$ 88
75.503
$ 50
1220

Settl ement
$ 20

$ 50

$ 50
$ 94
$103

Penalty
$40
$13
$40
$59
$40
$40
$59
$40
$72
$78
$59
$40

3202194*
3202196**

75.523-3 (b) (1) $ 88
75.523-3(b) (1) $ 88

3/04/93
3/04/93

(Tr. IV 752, 754, 756, 760)
the citation.)
(Tr. IV 757-759, 761-762)
finding.)
(Tr. Tr. 759-760)
low.)

$59
$40

$ 50

(* Faith agreed to withdraw its contest of

(** The Secretary agreed to delete the S&S

(*** The Secretary agreed to modify the negligence to

(Tr. IV 753-754, 756)
(**** The Secretary agreed to reduce the penalty
based on litigation strategy.)
Faith is ORDERED to pay the penalties shown.
The Secretary is ORDERED to modify Citations No. 3202189, 3202190
and 3202196, by deleting the S&S finding.
The Secretary is ORDERED to modify Citation No. 3202191, by
reducing the negligence to low.
Docket No. SE 93-365
Contested Citations
Citation/
Q;x;:d~:t: tlQ •
9883549
3024810
3024814

C.E.R.

~

;3Q

3/4/93
3/16/93
3/17/93

70.lOO(a)
75.1722(a)
75.220

A~rn~ssm~nt

$119
$ 88
$128

Penalty
$90
$59
$86

Settled CitatiQns
Citation/
Q;t:Q.~;i;:

NQ •

3024808**
3202198*
3202199*
3202200**
3024811*
3024812*

C.E.R.

~

~Q

3/16/93
3/16/93
3/16/93
3/16/93
3/17/93
3/17/93

75.1101-23
75.36l(b)
75.1103
75.400
75. 342 (a) (4)
75.503

A~se~sment

$ 88
$ so
$ 88
$128
$ 50
$ 50

1221

Settlement
$ 50

$ 50

Penalty
$40
$40
$59
$40
$40
$40

3024813*
3/17/93
3024815**** 3/17/95
3024816*
3/17/93
3202241*
3/17/93
3202242*
3/17/93
3202243*********
3/17/93
3202247*** 3/22/93
3202306*
3/29/93
3202307*
3/29/93

75 .1107
75 . 372 (a) {1)
75. 360 (b) (6)
75.400
75 . 503

$ 88
$128
$128
$ 88
$ 50

75 . 1107-16(b)
75.1101-23
75 . 350
75. 370 (a) (1)

$ 88
$128
$ 88
$ 88

(Tr. II 435-436, Tr. IV 739, Tr. V 181)
contest of the citation.) .
(Tr . II 4 3 4-435, Tr. IV 738)
finding.)
(Tr. I I 4 3 6 - 4 3 7)
finding too low.)

$100

$ 70
$ 88

$59
$67
$82
$59
$40
$53
$65
$59
$59

(* Faith agreed to withdraw its

{** The Secretary agreed to delete the S&S

(*** The Secretary agreed to modify the negligence

(Tr. VI 206) (**** The Secretary agreed to reduce the penalty based on
litigation strategy.)
(Tr. IV 740-741, Tr. V 182-183) (********* The parties agreed to reduce
the penalty based on mutual litigation risks.)
Faith is ORDERED to pay the penalties shown.
The Secretary is ORDERED to modify Citations No. 3024808 and
3202200, by deleting the S&S findings.
The Secretary is ORDERED to modify Citation No. 3202247 by reducing
the negligence to low .
Docket No. SE 93-366
Contested Citations
Citation/
Order No.
3202244
3203325

l2a.t..e
3/17/93
3/17/93

30 C . F.R.
75.220
75 . 203 (a)

1222

Assessment
$2800
$3100

Penalty
$2128
$
0

Settled Order
Citation/
Order No.
3202285*********
3/29/93

30 C.F.R

Assessment

75.360(g)

400

Settlement

Penalty

$175

$117

(Tr. IV 735-736)
(********* The parties agreed to leave the order as
written and to reduce the penalty based on mutual litigation risks.)
Faith is ORDERED to pay the pena l ty shown.
The Secretary is ORDERED to vacate Order No. 3203325.
Docket No. SE 93-411
Sett l ed Citations
Citation/
Order No.
3202184*
3202188*
(Tr. II 258)

~

3/02 /9 3
3/02 / 93

30 C.F.R.
Assessment
75.370 (a) (1 )
$50
75.360(f)
$50

Penalty
$40
$40

( *Faith agreed to withdraw its contest of the citations.)

Faith is ORDERED to pay the penalties shown.
Docket No. SE 94-42
Contested Citations
Citation/
Order No.
3202246
3024817

~

3/22/93
3/22/93

30 C.F.R.
Assessment
75. 364 (a) {l )
$360
75.220
$ 88

Penalty
$0
$0

Settled Citation
Citation/
Order No.
~
3202246******3/22/93

C.F.R.
Assessment
75.360(a) (1)
$360

30

Settlement
$183

Penalty
$139

(Tr. IV 787-790)
(****** The Secretary agreed to vacate the associated
section 104(b) withdrawal order.)
Faith is ORDERED to pay the penalty shown .
1223

The Secretary is ORDERED to vacate Citations No. 2302246 and
3024817, and to vacate Order No. 3202497.
Docket No. SE 94-75
Settled Citation
Citation/
Order No.
3202543*
(Tr. II 259)

~

9/28/93

30 C.F.R.
75.503

Assessment
$50

Penalty
$40

(* Faith agreed to withdraw its contest of the citation.)

Faith is ORDERED to pay the penalty shown.
Docket No. SE 94-96
Contested Citations
Citation/
Order No.
9883661
9883662

~

10/14/93
10/14/93

30 C.F.R.
70.208(a)
70.208(a)

Assessment
$50
$50

Penalty
$35
$35

Faith is ORDERED to pay the penalties shown.
Docket No. SE 94-256
Contested Citation
Citation/
Order No.
3202337

~

6/07/93

30 C.F.R.
75.313

Assessment
$50

Penalty
$0

The Secretary is ORDERED to vacate · Citation No. 3202337.
Docket NO . SE 94-257
Citation/
Order No.
~
3202544******9/28/93
3202565******9/28/93

30 C.F.R.
Assessment
75.1107-16(b)
$225
75.1107-7(c)
$225

Settlement
$50
$50

(Tr. II 374-375)
(******The Secretary .agreed to vacate the
associated section 104(b) order of withdrawal.)

1224

;!?~malty

$40
$40

Faith is ORDERED to pay the penalties shown.
The Secretary is ORDERED to vacate Orders No. 3202555 and
No. 3202556.
Dismissal of Proceedings
Faith shall pay the assessed penalties within 30 days of the
date of this decision. The Secretary shall modify and vacate the
referenced citations and orders within the same 30 days. These
proceedings are DISMISSED.

David F. Barbour
Administrative Law Judge
Distribution:
Ann T. Knauff, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
Russell Leonard, Esq., 603 Cumberland St., Cowan, TN 37318
Mr. Lonnie Stockwell, Faith Coal Company, Route 1, Box 196,
Palmer, TN 37365
\mca

1225

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 0 1995'
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No . KENT 94-1215
A.C. No. 15-11072-03595
#2 Mine

APPALACHIAN COLLIERIES,
Respondent
DECISION
Appearances:

Thomas A. Grooms, Esq . , U.S . Department of Labor,
Office of the Solicitor, Nashville, Tennessee, for
the Petitioner;
Richard D. Cohelia, Safety Director, Appalachian
Collieries Corp., Brookside, Kentucky, for the
Respondent .

Before:

Judge Weisberger

This case is before me based upon a Petition for Assessment
of Civil Penalty filed by the Secretary (Petitioner) alleging a
violation by Appalach~an Collieries (Respondent) of 30 C . F.R.
§ 75.388 (b) (3), and 30 C.F.R. § 75.388 (c) (2).
Pursuant to
notice, the case was heard in Johnson City, Tennessee, on
May 24, 1995. Roger Pace testified for Petitioner . James Ford,
and Michael Bates testified for Respondent.
Findings of Fact and Discussion
I.

Violations of 30 C.F.R.

§

§

75.388

Cc) (2) and 75.388(b)3

Roger Pace, an MSHA Inspector, testified that on June 17,
1994, he inspected Respondent's No. 2 mine.
He indicated that on

1226

both ribs in the No . 3 and No. 4 entries in the area of the
working faces, he observed sealed auger holes at 45 degree
angles. He also noted that boreholes had been drilled on both
ribs.
Pace measured the depth of these boreholes by manually
pulling a tape measure from a spool, and pushing it iri the
boreholes. He indicated that the tape stopped at the back of
~he holes.
The depth of each of the holes was measured at
14 feet.
He issued a citation alleging a violation of 30 C.F.R.
§ 75 . 388(c) (2), which, in essence, provides that boreholes
drilled in the rib at an angle of 45 degrees should be at least
20 feet deep.
In addition, Pace observed that three boreholes had been
drilled in the advancing faces in the No. 3 and No. 4 entries.
Using the same method as he used in measuring the 45 degree angle
boreholes, he measured these holes at the faces to a depth of
only 7 1/2 feet.
He issued a citation alleging a violation of
30 C . F.R . § 75 . 388(b) (3) which, as pertinent, provides that
boreholes shall be 11 • • • always maintained to a distance of
10 feet in advance of the working face . " 1
James Ford, a miner employed by Respondent, testified that
he had drilled the boreholes in question the day prior to Pace's
inspection. He indicated, in essence, that the holes had been
drilled 20 feet deep. He based this opinion on the fact that the
holes were drilled by a barrel comprised of two 10 foot long
joints, 1-1/4 to 1-1/2 inches in diameter. He indicated that
the holes that were being drilled "would sometimes fall in"
(Tr. 53) . He also said that the drill barrel could have been
inserted into the boreholes about 5 or 6 feet.
He stated that in
order for the barrel joint to penetrate further, "You'd have to
put it back to the drill and work it back out" (Tr. 62) .
Ford indicated that subsequent to the issuance of the
citation on June 17, four 6-foot long roof bolts, each having a
diameter of a half inch, were welded together and then pushed

Both parties agree that this language stipulates that the
boreholes be maintained to a depth of 10 feet .
1

1227

into each of the cited boreholes . According to Ford, 11 [w]e had
so much sticking out , the hole looked like two or three foot.
So
11
we had 20, 21 feet
(Tr. 69). Ford also indicated that there was
mud in the drilled holes .
Respondent's witnesses have not specifically contradicted
tbe testimony of Pace, that as measured by him, the depth of each
of the boreho l es was less than mandated by Section 75.388, supra.
Michael Bates, Respondent's Safety Director, indicated that there
was mud in the holes, and that operation of the drill causes the
holes to become "real rough" (Tr . 80 ) . However, there is no
specific evidence that any mud or other obstructions were present
in the holes measured by Pace to such a degree as to have
impeached the accuracy of his measurements. Ford indicated that
the holes being drilled on June 16, 1994, were 20 feet deep.
However, he did not indicate that any of the holes were measured .
Nor did he indicate the length of the portion of the 20 foot
barrel, if any, that had not penetrated the holes . Ford
testified that the holes were measured by inserting four 6-foot
long bolts welded together in the holes, and they were 20 to
21 feet deep. This was based upon his opinion that the bolts
protruded 2 to 3 feet from the holes. Ford did not testify as to
the exact length of the welded bolts that · had not penetrated the
holes. Nor was this established py any other evidence .
Bates
indicated that once the heads were cut off, the four 6-foot long
bolts that had been welded together, their length totaled
21 feet. He stated that he was present when these welded bolts
were inserted into the three cited boreholes at the face, and
that, "you had about a foot sticking out" (Tr. 79). However,
Respondent's witnesses did not adduce ·any evidence as to the
precise length of the four welded bolts, nor the amount of the
bolts that had not penetrated . For these reasons, I find that
Respondent's evidence is not sufficient to rebut the testimony of
Pace.
I thus conclude that Petitioner has met his burden of
establishing that Respondent was ~n violation of Sections
75. 388 (b) (3), and (c) (2), supra, as cited.
I reject the argument advanced by Respondent that the two
citations at issue were invalidly issued as they each cite a
violation of the same standard. This argument is without merit,
as two different subsections of Section 75.388, supra, were cited
covering two different situations.

1228

II.

Significant and Substantial

Both citations at issue set forth findings of significant
and substantial. According to Pace, boreholes are required to be
drilled in order to detect the presence of water, low oxygen, or
methane in adjacent sealed areas. He explained that the escape
of any of these hazardous materials resulting from an inadvertent
entry into a sealed area could cause serious injuries or
fatalities.
He opined that it was reasonably likely for methane
to accumulate in the abandoned auger holes.
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard · contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division.
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove:
(1) the underlying violation of a
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

1229

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) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S . Steel Mining Company. I nc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company .
..I.nQ., 6 FMSHRC 1573, 1574-75 (July 1984).
Hence, the Secretary must establish that there was a
reasonabl e likelihood of an injury producing event, i.e., a fire,
an explosion, or exposure to low oxygen contributed to by the
lack of boreholes. An injury-producing event can occur only if
there is a cut - through into an area containing low oxygen or
methane in an explosive range.
This event in turn depends upon
the manner in which the cutting miner is being operated, its
distance to the sealed area, and the presence in the sealed area
of low oxygen anq explosive methane. All these factors operate
independently of the failure to drill boreholes of the proper
length, the violative acts herein.
I thus find that it has not
been established that there was an injury producing event likely
to have occurred as a result of the violations herein.
I find
that it has not been established that the violations were
significant and substantial.
III.

Penalty

I find that Respondent did drill boreholes the day prior to
its being cited. There is no evidence that Respondent did not
exercise ordinar y care in ensuring the proper depth of the holes
in question.
I find that Respondent was negligent to only a low
degree.
I also find that should miners have been exposed to
hazardous materials in an abandoned area as a result of
inadvertent cut - through, and should these materials not have been
detected beforehand due to inadequent length of the borehole, a
fatality might have resulted.
Therefore the gravity of these
violations is high .
I have considered the size of· Respondent's
operation, as indicated by the parties' stipulation fi l ed
subsequent to the trial, and conclude that a penalty of $1,000
for each of the two violations herein is appropriate to its size,
and the factors set forth in Section llO(i) of the Act .

1230

ORDER
It is ORDERED that Respondent pay a total penalty of $2,000
within 30 days of this decision.

&0

Administrative Law Judge

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, Suite B-20l, 2002 Richard Jones Road, Nashville,
TN 37215-2862
(Cert ified Mail)
Richard D. Cohelia, Safety Director, Appalachian Collieries
Corp., P.O. Box 311, Brookside, KY 40801
(Certified Mail)
/ml

1231

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 0 1995'

IRVIN RODGERS, II,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. SE 95-184-DM
MSHA Case No. SE MD 95-01

FLORIDA ROCK INDUSTRIES, INC.,
Respondent

Diamond Hill Quarry
Mine I.D. No. 08-00026

ORDER OF DISMISSAL

Before:

Judge Amchan

This case is before me pursuant to section lOS(c) of
the Federal Mine Safety and Health Act, 30 u.s.c. § 801
t l ~· The parties have filed a joint motion to withdraw
their pleadings. Respondent has agreed not to seek recovery
of its attorney's fees from Complainant. The parties agree
that this withdrawal bars any future discrimination claims
against Respondent, whether instituted by MSHA or Complainant.
Further, the parties agree to relinquish any and all claims,
including federal and state statutory or common law claims
which accrued upon Complainant's termination from Florida Rock
Industries.
I interpret this agreement to apply only to claims arising
out of the November 22, 1994, termination of Complainant by
Respondent. I do not interpret this agreement to apply to any
future event which Complainant may deem to violate section lOS(c)
or any other legal right.

1232

The parties' motion is GRANTED. This case is dismissed
with the understanding that this order bars Complainant from
filing any other action under the Federal Mine Safety _and
Health Act that seeks redress for his November 22, 1994,
termination by Respondent.

~~c~
Arebur J. Amchan
Administrative Law Judge
Distribution:
Mr. Irvin Rodgers, II, 14815 Buczak Rd., Brooksville, ·
FL 34614

Mark N. Savit, Esq., Fiti A. Sunia, Esq., Patton Boggs,
L.L.P., 2550 M Street, N. W., Washington, D.C. 20037
\lh

1233

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

JUL 2 4 1995
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 91-421
A.C. No. 05-00301-03765

v.
Dutch Creek Mine
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,
Glenwood Springs, Colorado, for Respondent.

Before:

Judge Manning

This case is before me pursuant to section 105{d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq. (1988) ("Mine Act" or "Act") follo.w ing a remand from the
Commission.
16 FMSHRC 1218 (June 1994). The Commission vacated
the conblusion of Administrative Law Judge John J. Morris that a
violation of 30 C.F.R. § 75.400 was not of a significant and substantial nature {"S&S") and remanded this issue to the judge .
For the reasons the follow, I conclude that the violation was
S&S.

I.

BACKGROUND

On M~y 1, · 1990, Inspector James Kirk of the Department of
Labor's Mine Safety and Health Administration ("MSHA") issued
Order of Withdrawal No. 3412700 (the "Order") to Mid-Continent
Resources, Inc. ("Mid-Continent") at its Dutch Creek Mine 1 , pursuant to section 104(d) (2) of the Mine Act, 30 u.s.c. § 814(d)
(2) . The Order alleged that loose coal had accumulated along the
103 strike belt (the "belt") between the belt drive and the tailpiece at the stage loader. This belt transported coal from the
longwall section to another belt, which transported the coal out

The Dutch Creek Mine is now closed and sealed.
1234

of the mine. The belt was about 3,000 feet long.
In his decision, Judge Morris affirmed the violation, .determined that it was
caused by Mid-Continent's · unwarrantable failure to comply with
the safety standard, but found that the violation was not S&S.
15 FMSHRC 149, 152-60 (January 1993). The Secretary filed a
petition for discretionary review of his S&S finding, which was
granted by the Commission.
As stated above, the Commission vacated Judge Morris's conclusion that the violation was not S&S and remanded that issue
for further analysis consistent with the its decision.
16 FMSHRC
at 1224. On March 13, 1995, this case was reassigned to me for
an appropriate resolution. I have reviewed the hearing transcript and exhibits and make the following findings of fact based
on the evidence.

II.

THE COMMISSION'S DECISION

In its decision, the Commission agreed with the Secretary
that "the judge failed to address adequately the evidentiary
record in determining that it was not reasonably likely that the
hazard contributed to by the violation would result in an injury." 16 FMSHRC at 1222. The Commission stated that the
judge's factual determinations concerning the violation "appear
to be consistent with a finding of S&S, and he failed to reconcile those findings with his determination that the violation was
not S&S." Id. The Commission's decision lists a number of instances where it believes the judge's decision is inconsistent.
The Commission also determined that "the judge failed to
reconcile his finding that Dutch Creek is a gassy mine subject to
five-day spot inspections with his determination that the violation wa°S not S&S." 16 FMSHRC at 1222. The Commission noted that
accumulations, in conjunction with a methane ignition in the face
area, "could propagate and increase the severity of a fire or
explosion." Id.
Further, the Corn.mission concluded that the judge .failed to
take into account continued normal mining operations when he
"discounted" Inspector Kirk's testimony that accumulations were
in contact with rollers supporting the belt.
Id.
Finally, the
Commission held that the judge erred "to the extent [he) suggested that spontaneous combustibility of coal is required for an
S&S finding .•.. " Id.

III.

THE JUDGE'S DECISION

Judge Morris made a number of finding in concluding that
Mid-Continent violated 30 C.F.R. § 75.400. As relevant here, the
judge entered the following findings in his discussion of the
violation:

1235

7.
(Inspector] Kirk saw accumulations of
coal at the belt tailpiece, the stage loader
area and up to the end of the conveyor belt.
Outby coal was compacted underneath the belt.
The belt rollers and belt were in contact
with the coal.

* * * * * * * * * * * *
19 . The accumulations were mostly dry from
the number 6 door inby to the tailpiece of
the conveyor. Outby from the number 6 door
towards the belt drive area the accumulations
were moist or wet.

* * * * * * * * * * * *
23. Fire is one of the hazards of coal
accumulations.
24. "The Dutch Creek Mine is a gassy mine
subject to five-day spot inspections.
25. Potential ignition sources included the
area where the rollers rubbed the coal as
well as where the conveyor belt rubbed the
framework of the conveyor. MSHA also found
one area in the longwall that was not maintained. That area could also be considered
as an ignition source.
26. Accumulations could be ignite d by frictional contact. The amount of coal along the
conveyor could be introduced into an ignition
causing a more severe ignition.
27.
Injuries from the described hazard could
be serious and possibly fatal.

* * * * * * *

* *
.
There were electrical cables for the
*

*

*

32.
shark pump ~nd the normal electrical devices
for the longwall . In addition, on May 1st
there was a permissibility violation.
33. Mr . Kirk identified the pre-shift, on
shift daily examination referring to the 103
longwall. The examinations, as reported,
listed accumulations on the 103 longwall from
April 25, 1990 to May 1, 1990. The condi-

1236

tions were reported and on one occasion the
report noted th_at shoveling was undertaken.
34. In Mr. Kirk's opinion, the fire boss and
the pre-shift inspection noticed that there
were accumulations on the 1-03 longwall belt
at the drive and inby. This was the area
that Mr. Kirk cited.
15 FMSHRC at 152-54 (citations to transcript omitted).
In his discussion of the violation, Judge Morris credited
Inspector Kirk's description of the location of the accumulations.
15 FMSHRC at 155. He also found that due to its low
oxygen content and high-ash content, the coal "burns only with
great difficulty." Id. He determined that the record established several ignition sources. In this regard, the judge
stated:
one location was where the conveyor rollers
rubbed against the coal and also where the
conveyor belt rubbed on the framework of the
conveyor. Additional ignition sources could
also include the electrical cables required
to run the conveyor, the 'impermissible condition he cited as well as the electrical
cables for the shark pump.
15 FMSHRC at 155. Finally, Judge Morris credited the testimony
of Mid-Continent's witnesses that the belt had broken on the
previous shift and that this break dumped about 50 tons of coal
into the belt entry. 15 FMSHRC at 156-57. He rejected the testimony of Inspector Kirk that the belt was not broken but was
spilling coal at the time of the inspection. 15 F~SHRC at 157 .
In discussing whether the violation was S&S, Judge Morris
determined that Mid-Continent's coal burns with great difficulty
and will not spontaneously combust due to its low oxygen and high
ash content.
15 FMSHRC at 159. He found that Mid-Continent must
a dd fuel oil to its coal when it uses the coal in its coal-fired
thermal dryers.
Id. He further held that a major methane fire
at the mine in the summer of 1990 · failed to ignite adjacent coal
pillars.
Id.
In a key paragraph, the judge made the following
determinations:
Mr. Kirk confirms [Mid-Continent's]
evidence as to the ignitability of the ...
coal. He testified that while the coal was
in contact with the conveyor belt at four
places, he didn't recall any hot areas. He
also tested the friction points for heat.
Mr. Kirk testified that the usual scenario i s

1237

that the more friction the greater the heat.
Thus; a smolder.ing fire then goes to full
fire.
However, · Mr. Kirk agreed that if contact f ai°ls to heat the coals and the contact
remains minimal, there would probably be no
injury to an individual miner. Mr. Kirk describes the friction in four places as "light
to heavy."
15 FMSHRC at 159 (citations to transcript omitted).
Judge Morris determined that the violation was not S&S
because the Secretary failed to prove the third element of the
Mathies test.
He stated: "Due to the lack of ignitability of
the loose coal I conclude there was not a reasonable likelihood
that a fire would occur." Id.
IV. DISCUSSION WITH FINDINGS AND CONCLUSIONS
The Commission has established a four part S&S test, as
follows:
In order to establish that a violation
of a mandatory safety standard is significant
and substantial ••• , the Secretary of Labor
must prove:
(1) the underlying violation of
a mandatory safety standard; (2) a discrete
hazard -- that is, a measure of danger to
safety -- contributed to by the violation;
(3) a reasonable likelihood that the hazard
contributed to will result in an injury; and
(4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984). An evaluation
of the reasonable likelihood of an injury should be made assuming
continued normal mining operations. U.S. Steel Mining co., 7
FMSHRC 1125, 1130 (August 1985).
In establishing the third element of the Mathies test, the Secretary is not required to prove
that the injury or illness contributed to by the violation is
more probable than not. Rather, the issue is whether there was a
reasonable likelihood that the hazard contributed to would result
in an injury.
Judge Morris determined that the first two steps of the
Mathies S&S test were present. He found, however, that an injury
was unlikely because the coal would not readily burn.
In its
brief on remand, Mid-Continent contends that the violation was
not S&S because: (1) the coal is inherently incombustible and
1238

difficult to ignite; (2) there were no potential ignition sources
in the area; and (3) the section was not in production and would
not have produced coal until the accumulations were cleaned up.
The coal mined at the Dutch Creek Mine is coking coal, which
is a type of bituminous coal. In the coal seam where the accumulations were found, the coal contains about 23 percent volatile
matter.
(Tr.
336-37). The coal is not used as fuel for powerplants or industrial boilers, but is used in making steel.
In 1990, a methane fire occurred in a different coal seam at
the mine. The fire consisted of a large flame about 30 to 40
inches in diameter up to twenty feet in length.
(Tr. 357-59).
It was a "roaring jet of f lame 11 that took about six weeks to put
out.
Id. The ' rock around the flame was red hot. The coal at
the mine is under about 3,000 feet of overburden and the coal is
soft. The coal pillars regularly slough loose coal. Indeed, the
coal in the pillars is frequently crushed as a result of the
weight of the overburden.
(Tr. 359). Although the area around
the methane fire became quite hot, the coal pillars and coal
sloughage did ..not ignite. l.$L_ Judge Morris determined, based on
this and other · evidence in the record, that the coal is difficult
to ignite.
I agree with his finding that the coal does not easily
ignite. Nevertheless, the coal is bituminous coal that will burn
and when it does it is capable of producing. intense heat. 2 I
believe that the fact that the coal does not easily ignite should
be considered, but that the S&S determination must be based on
analysis of all of the particular facts present at the mine, including, but not limited to, the ignition sources and the length
of time that the accumulations existed.
There is no question that the belt break that occurred on
the previous shift spilled up to 50 tons of loose coal into the
entry.
I find, however, that not all of the accumulations were
caused by the belt break.
Inspector Kirk determined that accumulations existed at a number of locations along the belt.
As
stated above, Judge Morr is credited the inspector is · a·e scr iption
of the accumulations.
15 FMSHRC at 152-53. There were accumulations at the belt tailpiece near the stage loader.
(Tr. 18).
Approximately 100 feet outby the• tail piece, coal was "compacted
underneath the belt" and belt rollers were in contact with the
coal.
(Tr. 18-19). The accumulations were dry, ranged up to 12
inches deep, and were centered underneath the conveyor. (Tr. 19).

2

See, generally, definition of 11 coking coal" in Bureau of
Mines, U.S. Department of the Interior, Dictionary of Mining,
Mineral and Related Terms, at 233 (1968).

1239

Additional accumulations were at the shark pump.
(Tr. 19-20).
Inspector Kirk was not sure of the depth, but the accumulations
were about so feet long • . · (Tr. 20). The accumulations were black
and dry. There were accumulations at the Nos. 10 and 11 doors.
(Tr·. 21). Belt rollers were in contact with the coal.
(Tr. 2122). At No. 9 door there was "a windrow approximately 260-foot
long of coal, up to 18-inches deep."
(Tr. 22). At the No. 6
door, coal accumulations were underneath the belt and the belt's
rollers were turning in the · coal.
{Tr. 23).
The coal was mostly
dry at that location, but became very wet outby the No. 6 door
towards the belt drive. 3 (Tr. 24).
In a number of these locations, Inspector Kirk observed coal
that was "compacted" under the belt and in contact with the
belt's rollers.
It is unlikely that such accumulations were
solely the result of a belt break. When a belt breaks, coal will
be dumped onto the lower belt and along the sides of the belt at
the breaking point.
(Tr. 544-45). In addition, coal will be
thrown off the belt at other locations as a result of the sudden
release of tension on the belt.
Id.
MSHA Inspector William ·
Denning observed the belt on May 2, a day after the order was
issued. He testified that there was a windrow of coal along the
side of the belt at one location that could have been dumped off
the belt when it broke: · {Tr. 687-88). He further testified
that, in his opinion, not all of the accumulations were due to
the belt spill. (Tr. 688).
I do not believe that a belt break
that causes coal to be dumped and scattered will create areas of
compacted coal under the belt's rollers.
Preshift and onshift reports for the period between April 28
and May 1 indicate the presence of coal accumulations along the
belt.
(Ex. M-11). Some of these reports indicate that shoveling
was occ~rring and others indicate that the condition was reported. ' Id. Anyone shoveling would have been close to the stage
loader where coal is dumped onto the belt or at the drive where
the coal is dumped onto the next belt.
(Tr. 111, 117). Accumulations at those locations can create operational problems.
Inspector Kirk . reviewed these reports when he came out of the
mine on May 1.
(Tr. 43).
I conclude that some of the accumulations observed by Inspector Kirk along the 3,000 foot long belt
had existed for several days prior to May 1, the date the Order
was issued .
I base this conclusion on the fact that coal was
compacted under the belt at some iocations and preshift and

3

Judge Morris determined that the accumulated material at the
belt drive was "at best incombustible rock and some coal."
15
FMSHRC at 159. Accordingly, he vacated the part of the order that
cited the drive area. Id. I have not considered any accumulations
outby the No. 6 door, including the drive area, in reaching my
conclusion that the violation was s&s.

1240

onshift reports indicate that accumulations had been present
along the belt since at l~ast April 28.
Although the belt was not operating continuously at the time
the order was issued because it had broken, it had operated on
the previous production shift and on production shifts during the
days just prior to May 1. 4 As stated above, some 'of the accumulations between the belt drive and the stage loader were in contact with the belt and rollers supporting the belt. Coal dust
may be created when a belt and belt rollers turn in accumulations
of coal.
(Tr. 105). Judge Morris determined that conveyor rollers rubbing against the coal constituted an ignition source.
15
FMSHRC at 155. He stated that " [a)ccumulations could be ignited
by frictional contact." 15 FMSHRC at 154. He found that additional potential ignition sources included "electrical cables
required to run the conveyor, the impermissible condition (Inspector Kirk] cited, as well as electrical cables for the shark
pump." 15 FMSHRC at 155. 5
The Dutch .Creek mine is a gassy subject to five-day spot
inspections. 15. FMSHRC at 154. If there were a methane ignition
at the face during coal production, a fire could spread into the
belt entry as a result of the accumulations.
Loose coal and coal
dust can cause a methane ignition to propagate and increase the
force of an explosion.
(Tr . 483). 6 Mid-Continent argues that
methane ignitions at the face should not be considered because
the longwall section was not producing coal at the time of the
inspection. The evidence reveals, as discussed above, that some
of the accumulations had existed for several days.
Consequently,
the record supports the Commission's determination that "(a)ccumulations, i n conjunction with a methane ignition in the face
area, could propagate and increase the severity of a fire or
explosion." 16 FMSHRC at 1222.
4

The 103 longwall section produced coal on the graveyard
only.

(C~shift)

shift
5

Judge Morris did not consider the longwall equipment at the
face to be potential ignition sources because the longwall section
was not producing coal at the time of Kirk's inspection. 15 FMSHRC
at 155. Although I believe that such ignition sources could have
been considered because accumulations had existed for several
production days, I have not included these potential ignition
sources in my analysis.
6

In 1981, fire caused by a methane ignition in a working face
was carried down a belt entry by the coal and coal dust on the
belt.
(Tr . 486-87). Although that belt was ventilated by return
air and the 103 strike belt was ventilated by intake air, the
accumulations along the belt could be introduced into a methane
ignition or explosion at the face.

1241

Finally, the commission asked the judge, on remand, to take
into account continued no.rmal mining operations when considering
Inspector Kirk's testimony that the belt rollers he saw turning
in the accumulations had not produced any hot areas.
I cannot
assume, as does Mid-Continent, that all of the accumulations
would have been cleaned up as soon as the belt was spliced,
before production resumed. I credit Mid-Continent's evidence
that the accumulations at the location of the belt break and at
the tailpiece would have been cleaned up. But the accumulations
that were compacted under the rollers at other locations along
the 3,000 foot long belt had existed for some time and, consequently, I cannot credit the testimony of Mid-Continent's witnesses that the belt would not have been operated until these
accumulations were removed. Accordingly, taking into consideration continued normal mining operations, the fact that the
inspector did not find any hot areas is not significant because
such areas could have begun to smolder on subsequent production
shifts.
Inspector Kirk testified that these "friction points"
could become hot once production resumed.
(Tr. 104} . 7
Mid-Continent contends that any smoldering or smoking coal
would have been detected by its carbon monoxide monitoring system
and that no injuries would have occurred as a result. Mid-Continent offered evidence about its fire protection systems, which
I credit. As the Seventh Circuit has stated, in considering a
similar argument, "(t]he fact that [a mine operator] has safety
measures in place to deal with a fire does not mean that fires do
not pose a serious safety risk to miners." Buck Creek coal. Inc.
v. Secretary, 52 F.3d 133, 136 (1995). The fact that Mid-Continent installed these systems confirms "the significant dangers
associated with coal mine fires." Id.
Altrhough the coal produced at the Dutch Creek Mine will not
ignite as readily as steam coal, it will burn. The accumulations
will not ignite unless there is a "confluence of factors" to produce such an ignition. Texas Gulf, Inc., 10 FMSHRC 498, 501
(April 1988). Taking into consideration the ignition sources,
the length of time that accumulations existed, the high levels of
methane produced at the working face, and continuing normal mining operations, I find that the Secretary established the third
element of the Mathies S&S test. , Judge's Morris's findings with
respect to the fact of violation support an S&S finding.
Because the coal does not easily ignite, I cannot say that it was
more probable than not that the violation would have resulted in
an injury producing ignition or explosion. Nevertheless, there

7

Because the inspection occurred on a nonproduction shift and
the belt was broken, it is not surprising that Inspector Kirk did
not observe any hot areas.

1242

was a reasonable likelihood that the hazard contributed to would
result in an injury. 8
·
V.

CIVIL PENALTY

Judge Morris analyzed the civil penalty criteria in section
llO(i) of the Mine Act, 30 u.s.c. § 820(i), and determined that a
civil penalty of $400.00 was appropriate for this violation. 15
FMSHRC at 160-61. He determined that Mid-Continent is in Chapter
11 bankruptcy, is only a debtor-in-possession, and is no longer
mining coal. He determined that it had a history of 604 paid
violations from May 1, 1988 to April 30, 1990. He found that
Mid-Continent was negligent but that the violation was not serious.
Finally, ·he found that Mid-continent rapidly abated the
violation. I adopt his analysis of the penalty criteria except
that I find that the violation was serious, for the reasons set
forth in my S&S analysis. The Secretary proposed a penalty of
$1,000 for the violation. I find that a penalty of $500 is appropriate, taking into consideration the penalty criteria.

rv.

ORDER

Accordingly, I find that the violation described in Ord~r
No. 3412700 significantly and substantially contributed to the
cause and effect of a coal mine safety hazard. Mid-Continent
Resources, Inc. is ORDERED TO PAY the Secretary of Labor the sum
of $500.00. 9

~h~

d

.

Ric ar W. Manning
Administrative Law Judge

8

The fourth element of the Mathies S&S test has been met
because it is reasonably likely that if an injury occurred, it
would be of a serious nature.
9

As stated above, Mid-Continent filed for bankruptcy under
Chapter 11 of the Bankruptcy Act in 1992 (Case No. 91-11658 PAC,
District of Colorado).
Payment of the assessed penalty may be
subject to the approval of the United states Bankruptcy Court. The
Secretary is authorized to present the assessment as a claim in the
bankruptcy proceeding.

1243

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., Draw·e r 790,
Glenwood Springs, co 81602 (Certified Mail)
RWM

1244

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

'JUL 2 5 1995·

JAMES D. WATERS,
Complainant
v.
IMC FERTILIZER, INC.,
Respondent

DISCRIMINATION PROCEEDING
Docket No. CENT 93-261-DM
MSHA Case No. SE MD 93-04
Carlsbad Facility

ORDER OF DISMISSAL
Appearances:

bavid W. Strickler, Esq . , and W.T. Martin, Jr . ,
Esq., Law Offices of W. T. Martin, Jr., P.A.,
Carlsbad, New Mexico, for Complainanti .
Charles C . High, Jr., Esq., Kemp, Smith, Duncan &
Hammond, El Paso, Texas, for Respondent.

Before:

Judge Fauver

This is a discrimination action under§ lOS(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
~~.

After the hearing, a decision on liability was entered on
December 5, 1994.
A separate hearing on relief was held at El Paso, Texas, on
May 9, 1995. On the second day of the hearing, the parties
reached a settlement agreement that was approved by the judge.
Pursuant to the settlement agreement, the
to dismiss the case.

1245

pa~ties

have moved

ORPER

WHEREFORE IT IS ORDERED that the parties ' motion to dismiss
is GRANTED and this proceeding is DISMISSED.

William Fauver
Administrative Law Judge
Distribution:
David W. Stri~kler, Esq . , and W.T. Martin, Jr . , Esq . , 509 Pierce
St . , Carlsbad, NM 88221-2168 {Certified Mail)
Charles C. High, Jr., Esq., Kemp, Smith, Duncan & Hammond, P.O.
Drawer 2800, El Paso, TX 79999 (Certified Mail)
/lt

1246

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 5 1995
SECRETARY OF LABOR,

CIVIL PENALTY PROCEEDINGS

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

Docket No. KENT 95 - 1
A. C. No. 15-04455-03529

I

Petitioner
v.

Docket No. KENT 95-2
A. C . No. 15-04455-03530

DEBY COAL COMPANY, INC.,
Respondent

Prep Plant

DECISION APPRQVING SETTLEMENT
Before :

Judge Weisberger

These cases are before me upon a petition for assessment of
civil penalties under Section lOS(d) of the Federal Mine Safety
and Health Act of 1977 (the Act) . Petitioner has filed a motion
for settlement asserting that the subject 104(b) orders should be
vacated, and that no penalty shou ld be assessed for the subject
104(a) citations.
I have considered the representations and
documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the criteria set forth
in Section l l O(i) of the Act.

WHEREFORE , t he motion for approval of settlement is GRANTED ,
and it is ORDERED that these cases be DISMISSED.

~

vram
isberger
Administrative Law Judge

1247

Distribution:
Susan E. Foster, Esq., Office of the Solicitor, U. S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862

Jack McGhee, President, Deby Coal Company, Inc., P. 0. Box 986,
London, KY 40743
dcp

1248

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

JUL 2 5 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 95-214
A. C. No. 48-01180-03502 CGD

v.
KIEWJ.T MINING GROUP
INCORPORATED,
Respondent

Black Butte & Leucite Hills
Mines

ORPER ACCEPTING RESPQNSE
DECISION APPROVING SETTLEMENT
ORPER TO PAY

Before:

Judge Merlin

This case is before me upon a petition for assessment of
civil penalties under section lOS(d) of the Federal Mine Safety
and Health Act of 1977.
On April 28, 1995, the Solicitor filed a motion to approve
settlements for the two violations in this case. Each violation
was originally assessed at $7,500 and settlements of $3,000
apiece are sought by the Solicitor. On June 8, 1995, an order
was issued disapproving the settlement and directing the Solicitor to submit addftional informat~on to support her motion. On
July 7, 1995, the parties filed an amended motion .

•

Citation No. 3245186 recites that information obtained
during an accident investigation showed there was a violation of
30 C.F.R. § 77.404(c). Electric power was not deenergized in the
termination compartment of a trailing cable for a dragline. The
power was energized while welding was performed in the high
voltage compartment. The violation, which resulted in a fatality, was found to significant and substantial. Negligence was
originally determined to be high and the violation was issued as
a citation under section 104(d). Subsequently, negligence was
reevaluated as moderate· and the · (d) citation was changed to a
section 104(a) citation.

1249

A second citat: ion, No. 3853680, was issued for this
situation, finding a violation of 30 C.F.R. § 77.501. According
to the citation, work was performed inside the termination box of
the high voltage trailing cable in proximity to exposed energized
wires. The circuit was · not locked out and suitably tagged. The
violation was found to be significant and substantial. Negligence was originally determined to be high and the violation was
contained in a section 104(d) order. Subsequently, negligence
was reevaluated as moderate and the violation was modified to one
issued under section 104(a).
The parties have submitted a joint amended motion for
settlement which sets forth the relevant circumstances as
follows:
a.
The maintenance that was being performed in the tub of
the dragline involved welding of rack segments and rack pads
in numerous compartments of the tub; electrical work was not
being perf0rmed.
b.
Respondent had a written lockout/tagout policy requiring that "[w]hen a piece of equipment or machinery is to be
inspected, cleaned, repaired, or worked on by an individual,
that pir-.: ce of equipment must be immobilized by the individual prior to commencing work on the equipment." The lockout/tagout policy required that electrical equipment, such
as the dragline, be locked out at the circuit breaker or
electrical disconnect . Respondent's employees were trained
on the requirements of its lockout/tagout procedure.
c.
Before the welding work began, the dragline was
deenergized and the electrical disconnect switch was locked
and tagged out as required by the cited standards and Respondent's procedures.
In addition, the fence sur~ounding
the substation in which the electrical disconnect was located was locked .
d.
Respondent's leadman and a welder were the two individuals directly involved in the welding work being performed
in the tub of the dragline . The leadman had inspected the
dragline's "termination compartment," .i.....sL.., the compartment
in the tub where the trail~ng cables were connected to the
dragline, and had determined that welding was not required

1250

in that compartment.
the welder .

~he

leadman communicated this fact to

e.
While the welding work in the tub progressed the electrical power to the dragline remained locked out. Eventually, based on the tasks that he had accomplished and his
communications with the welder, the leadman determined that
the required welding work had been completed. The leadman
began his post-welcing cleanup by removing tools and equipment from the tub and he instructed the welder to do the
same.
f.
The leadman then informed an electrician that the
maintenance work had been completed in the tub, that the
lock could be removed from the electrical disconnect, and
that the dragline could be reenergized. After the electrician restored power to the dragline, the leadman and welder,
who were in different compartments of the tub, had voice
communications concerning the fact that the dragline's power
and lighting had been restored.
g.
Shortly thereafter, power to the dragline was tripped.
Unknown to the leadman, the welder had entered the termination compartment and had come in contact with energized
equipment.
I accept the representations and arguments advanced in the
joint motion, which is exceptionally comprehensive and convincing. Accordingly, as suggested by the parties, negligence is
reduced from high to ordinary.
In light of the foregoing, it is ORDERED that the amended
settlement motion filed July 7 is ACCEPTED as a response to the
June 8, 1995, order.
It is further ORDERED that the recommended settlements be
APPROVED.

1251

It is further ORDERED that the 09erator PAY $6,000 within 30
days of the date of this decision.

Paul Merlin
Chief Administrative Law Judge

Distribution:

(Certified Mail) ·

Margaret A. Miller, 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, DC 20006-8087

jhe

1252

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 5 1995.

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 94-369
A.C . No . 46-04421 - 03724 A
Amonate No . 31 or #31

JAMES M. STUTSO, III,
Employed by
CONSOLIDATION COAL COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) I
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No . WEVA 94-382
A . C. No. 46-04421 - 03726-A
Amonate #31 or #31

JAMES L . BREWSTER,
Employed by
CONSOLIDATION COAL COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No . WEVA 94-395
A.C. No. 46-04421-03752-A
Amonate #31 or #31

CHARLES R. HENSLEY,
Employed by
CONSOLIDATION COAL COMPANY,
Respondent

1253

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 94-396
A.C. No . 46-04421-03727-A

v.
Amonate #31 or #31
CARLOS H. HESS,
Employed by
CONSOLIDATION COAL COMPANY,
Respondent
DECISIONS
Appearances:

Robert S. Wilson, Esq., Office of the Solicitor,
U. S. Department of Labor, Arlington, Virginia,
for Petitioner;
David J. Hardy, Esq., John Bonham, Esq . , Jackson
and Kelly, Charleston, West Virginia, for the
Respondent Consolidation Coal Company;
J. Timothy Dipiero, Esq., Ditrapano and Jackson,
Charleston, West Virginia, for the Respondent
James L. Brewster .

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of
civil penalties filed by the petitioner against the respondents
pursuant to section llO(c) of the Federal Mine Safety and Health
Act of 1977. The respondents were charged as agents of the
corporate mine operator Consolidation Coal Company (Consol) with
11
knowingly authorizing, ordering, or carrying out" a violation
of mandatory safety standard 30 C.F.R. 75.360, as stated in
section 104 (d) (1) 11 S&S 11 Order No~ 3727399, issued by an MSHA
inspector on March 3, 1993.
The respondents filed timely contests and answers denying
the alleged violations and the matters were consolidated for
hearing with several other section llO(c) civil penalty cases,
and civil penalty cases filed against Consol. The hearing was
convened in Beckley, West Virginia, on June 20, 1995.

1254

Discussion
Prior to the taking of any testimony, the parties were
afforded an opportunity to address pending motions for summary
decisions and dismissals that were filed by counsel for the
respondents.
In support of the motions, counsel argued that
tbe individually named respondents should not, as a matter of
law, be held responsible for the alleged violations in question.
Each of the motions are supported by the sworn affidavits of the
respondents who state that they were not on duty on the section
during the shifts immediately prior to, or at, the time of the
incident of December 29, 1992, that resulted in the issuance of
the violation in question.
The petitioner's counsel stated that MSHA has taken the
position that it would not oppose the motions for summary
decisions, and pid not object to the dismissal of the cases
(Tr. 18, 20). He also stated that the parties agreed to bear
their own litigation costs in these matters (Tr. 20). Counsel
Dipiero, speaking on behalf of all of the respondents, confirmed
that this was the case, and that the respondents agreed to pay
their costs (Tr. 20-22).
Conclusion
After further consideration of the motions and arguments
advanced by the respondents, and taking into account the lack of
opposition by the petitioner, the motions were granted from the
bench (Tr. 20). My decision and ruling in this regard is herein
REAFFIRMED.
ORDER

In view of the forgoing, the petitioner•s proposed civil
penalty assessments ARE DENIED, and these matters ARE DISMISSED.

4Aa~

Administrative Law Judge

1255

Distribution:
Robert S. Wilson, Esq . , Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Suite 516,
Arlington, VA 22203 (Certified Mail)
Uavid J. Hardy, Esq., John Bonham, Esq . , Jackson & Kelly,
1600 Laidley Tower, P.O . Box 553, Charleston, WV 25322
(Certified Mail )
Docket No. WEVA 94-369
Arden J. Curry II, Esq . , 100 Kanawha Boulevard, West,
P . O. Box 2786, Charleston, WV 25330 (Certified Mail)
Docket Nos. WEVA 94-382
J. Timothy Dipiero, Esq., Ditrapano & Jackson, 604 Virginia
Street East, Charleston, WV 25301 (Certified Mail)
Docket Nos. WEVA 94-395. WEVA 94-396
Gregory J. Campbell, Esq . , Morrison Building, Suite 200,
815 Quarrier Street, Charleston, WV 25301 (Certified Mail)

/lh

1256

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 61995
MADISON BRANCH MANAGEMENT,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. WEVA 93-218-R
Order No. 3976643; 3/1/93

SECRETARY CF LABOR,
MINE . SAF'~TY ·AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Docket No. WEVA 93-219-R
Citation No. 3976644; 3/1/93
Docket No. WEVA 93-220-R
Citation No. 3976647; 3/4/93
Job. No. 3
Mine ID 46-05815

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

CIVIL PENALTY PROCEEDINGS

I

Docket No. WEVA 93-373
A.C. No. 46-05815-03520
Docket No. WEVA 93-412
A.C. No . 46-05815-03521

MADISON BRANCH MANAGEMENT,
. Respondent

Job No. 3

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 93-415
A.C. No. 46-05815-03501HWZ

v.

Job No. 3
PROTECTIVE SECURITY SERVICES,
Respondent

1257

DECISION ON REMAND
Before:

Judge Feldman
Statement of the Case

These proceedings concern Petitions for the Assessment of
Civil Penalties filed by the Secretary, pursuant to section
110(a) of the Federal Mine Safety and Health Act of 1977 (the
Act), 30 U.S.C. § 820(a), against Protective Security Services
(PSSI) and Madison Branch Management (Madison). The Secretary's
case is based on alleged training and defective equipment
violations related to the March 1, 1993, carbon monoxide death of
PSSI employee Allen Garrett, a night wat~hman. PSS! is an
independent contractor that provided security services at
Madison's Job No. 3 surface mine.
These cases· were remanded on June 12, 1995, after Madison
petitioned the Commission for interlocutory review of orders
denying the parties' motions for approval of settlement.
Commission's Remand Decision, 17 FMSHRC 859. The parties'
motions were denied because of outstanding issues of fact
concerning what, if any, actions the respondents had taken to
avoid the carbon monoxide hazard that resulted as a consequence
of the alleged violations. These issues impact upon the degree
of negligence and the gravity associated with the alleged
violative conduct. 1 They also impact upon whether the civil
penalties proposed by the Secretary, and accepted by the
respondents, are adequate to "accomplish the underlying purpose
of the civil penalty--to encourage and induce compliance with the
Mine Act and its standards." 17 FMSHRC at 867.
In view of the parties prior Motions for Summary Decision
and their responses to my June 19, 1995, Order on Remand
evidencing that they have no further evidence to submit, I have
determined that there are no factual dispute·s related to the fact
of occurrence of the subject violations. The respondents'
submissions have also resolved all factual issues concerning

Negligence and gravity are two of the six civil penalty
criteria set forth in Section llO(i) of the Act, 30 U.S.C.
§ 820(i).
1

1258

their actions to address the hazard posed by these .violations
Consequently, I am basing this decision concerning the
appropriate civil penalties to be assessed on the record
evidence. As noted below, the degree of negligence, _gravity,
and, the lack of evidence that the proposed civil penalties have
had an adequate deterrent effect on the respondents, convince me
that the penalties proposed by the parties are inadequate .
Background
Carbon monoxide is a colorless, odorless, non-irritating gas
that has been labeled "the perfect asphyxiant." With the
exception of ethyl alcohol (liquor), carbon monoxide is the most
frequent cause of fatal accidental poisoning in this country.
Hemoglobin is the substance in red blood cells that is
responsible for transporting oxygen to body organs including the
brain. Carbon. monoxide has an affinity (bonding capacity} for
hemoglobin that is 200 to 300 times that of oxygen. Therefore, a
very small concentration of carbon monoxide effectively blocks
the normal function of hemoglobin, thus depriving the body of
oxygen. The concentration of carbon monoxide in the body is
dependent on its concentration in the air and the duration of
exposure. Carbon monoxide accumulates in body tissues with
prolonged exposure . Standard automobile engine exhaust
fumes contain approximately 13 percent carbon .monoxide. A
concentration of 0.4 percent of carbon monoxide in atmospheric
air is lethal within one hour of exposure. As carbon monoxide
levels in t he body increase with exposure, symptoms range from
slight headache to confusion, fainting, unconsciousness and
ultimately death. Irvin M. Sofer, M.D., D.D.S. & William C.
Masemore, The Investigation of Vehicular Carbon Monoxide
Fatalities, Traffic Digest ~Review, Nov. 1970, at 1-3 . 2
The facts surrounding the fatal accident in these matters
are not in dispute . Allen Garrett was employed by PSSI as a
part-time security guard at Madison's surface mine facility
located near Lynco, in Wyoming County, West Virginia. Garrett
was assigned to work on weekends and routinely reported to work

The publications on carbon monoxide poisoning cited in
this decision were provided to the parties with the September 9,
1994, Notice of Hearing Site in these proceedings .
2

1259

on Saturday nights at 10:00 p.m. Garrett was relieved by another
security guard on Sunday mornings at 10:00 a.m. Garrett would
report back to work on Sunday nights at 10:00 p.m. and work until
6:00 a.m. on Mondays, at which time Madison personne~ reported to
work to resume the week's mining activities. Garrett's security
duties included preventing unauthorized mine entry, which Garrett
accomplished by remaining on the haulage road in his parked
vehicle for extended periods of time .
On Sunday, February 28, 1993, at approximately 10:00 p.m.,
Garrett arrived at Madison's No. 3 .Mine in his vehicle, a
1986 Ford Bronco II. Garrett's shift was scheduled to end the
following morning on Monday, March 1, 1993, at 6:00 a.m. At
approximately 6:10 a . m. that morning, a truck driver reporting
for work observed Garrett's vehicle parked at the top of the main
haulage road. The truck driver approached Garrett to ask him to
move his vehicle. He found Garrett unconscious, lying on the
floor board between two bucket seats with his head toward the
front of the vehicle. Garrett was immediately transported via
ambulance to a local hospital where he was pronounced dead on
arrival. The cause of death was carbon monoxide intoxication.
At the time of Garrett's death the weather had been cold,
approximately 25 degrees Fahrenheit, and it had been snowing.
Investigating authorities concluded Garrett fell asleep and
succumbed to carbon monoxide poisoning between 12:48 a.m., when
the last entry in Garrett's log book was made, and 6:00 a.m.,
when he was found by the truck driver. At the time Garrett was
discovered, the engine in his vehicle was running, the dome light
was on, and, the heater was running on high. The 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.
As a result of Garrett's fatality, the Mine Safety and
Health Administration (MSHA) issued 107(a) Order No. 3976643 to
Madison for the imminent danger created by Garrett's vehicle .
MSHA also issued 104(a) Citation Nos. 3976644 and 3976646 to both
Madison and PSSI, respectively, for their alleged violations of
section 77.404(a), 30 C.F.R. § 77.404(a). This mandatory safety
standard requires, in pertinent part, that mobile equipment must

1260

be maintained in safe operating condition. The Secretary
proposed civil penalties of $2,000 against Madison and $3,000
against PSSI for these violations.
In addition, MSHA issued Citation No. 3976647 to Madison
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." The Secretary proposed a civil penalty of $88 for
this alleged violation.
The Secretary filed separate Motions to Approve Settlement
with Madison and PSS! on March 31, 1994 . The settlement terms
included substantial reductions in the civil penalties proposed
against Madise~ and PSSI. In support of the reduction in
penalties with respect to PSSI, the Secretary stated:
Although the Secretary asserts that the damaged exhaust
system was the proximate cause of the fatality, the
Secretary acknowledges the existence of other
[mitigating] factors which contributed to the fatality
(i.e. the windows being tightly closed, Mr. Garrett
possibly haven fallen asleep). Secretary's Motion
at 3.
Given my reluctance to blame the victim, the Secretary's
motions were denied by Order dated April 7, 1994, because the
Secretary had not demonstrated "adequate mitigating circumstances
to justify the significant reductions in the proposed penalties."
On April 8, 1994, the Secretary filed Amended Motions to
Approve Settlements that provided that Madison and PSSI would pay
the full penalties initially proposed by the Secretary. The
proposed settlement with respect to PSSI stated:
. Protective Security agrees that they will
designate an employee to be responsible for inspecting
and ensuring the safe operating condition of the
exhaust systems of all vehicles used by employees in
the performance of their work duties at least once
every ninety days. Protective Security further agrees

1261

that they will maintain (and produce when requested by
MSHA or PSSI's contractors) documentation of such
inspections.
(Emphasis added). Secretary's Amended
Motion at 3.
On April 11, 1994, the parties were ordered to provide
clarifying information in support of their proposed settlement.
Specifically, the parties were ordered to explain whether
security personnel continued to remain in their stationary
vehicles with the motor and heater running after Garrett's
March 1, 1993, death. The parties were also requested to state
whether there were any alternative means of warmth and shelter
available to security guards at Madison's Job No. 3 mine site.
In addition, the Secretary was requested to address whether
PSSI's reported vehicle inspection program and PSSI's
admonitions, presumably on behalf of Madison, to security guards
not to fall asleep or leave their vehicle windows tightly closed,
were effective measures for reducing the carbon monoxide hazard
presented by the cited violations.
On May 16, 1994, the respondents filed a Joint Response to
the Order Requesting Clarification and the Secretary filed a
Second Amended Motion to Approve Settlements. In response to the
requested clarifying information, Madison 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." Parties'
Joint Response at 7. Madison also stated that "security
personnel did continue to use their vehicles for shelter and heat
during the winter after March 1, 1993 . . . . 11 Id.
PSS! responded that it has "voluntarily agreed to designate
one employee to inspect exhaust systems of all automobiles used
by employees once every ninety (90) days." Id. at 11. PSSI did
not identify the employee, his qualifications to inspect
vehicles, or, the method of inspection.
PSSI's response included an attachment that is instructions
issued to its security personnel. These instructions provide in
section 3.12:
At no time will any employee be required to stay in a
vehicle while on a job assignment without getting out
of the vehicle at least every 20 minutes to be sure not

1262

to be overcome by carbon monoxide fumes. In fact, you
are required to get out of your vehicle at least every
20 minutes to check your job assignments. This will
also help you stay awake . 3 (Emphasis added).
With respect to the information and comments solicited from
the Secretary, the Secretary stated PSSI's purported vehicle
inspection program, for which it provided no ·details, was
"welcomed by MSHA" because "it demonstrates the operator's
willingness to take measures to prevent a hazard without specific
legal requirements to do so." Parties' Joint Response at 3. The
Secretary did not explain whether instructing employees not to
tightly close their car windows and not to fall asleep in their
vehicles constituted adequate hazard training. See Id . at 4.
In view of the inadequacy of the parties' responses
concerning the purported vehicle inspection program and hazard
training, I issued Orders on June 8, July 22, and August 29,
1994, denying the parties' Motions for Approval of Settlement and
the parties' Motion for Summary Decision. The question of the
appropriate civil penalty to be assessed was set for hearing in
order to resolve material issues of fact concerning the adequacy
of the hazard training and the vehicle irn·;pection program. See
August 29th Order at 2; see also Tazco, Inc., 3 FMSHRC 1895, 1898
(August 1981) .
The August 29th Order incorporated by reference the
July 22nd Order which enumerated the following five unresolved
issues of material fact to be resolved at the hearing:
1. The nature of carbon monoxide int·:ixication and the
correlation between the level of toxjcity and the
period of exposure;

These exculpatory instructions, when considered in
context, seek to encourage employees to stay awake so that they
can exit their vehicles every 20 minutes to avoid being overcome
by carbon monoxide. As discussed infra, these instructions
are contrary to the provisions of the cited section 48.3l(a)
training standard that require employees to receive training in
"hazard avoidance" and "safe working procedures."
3

1263

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 11 that is prohibited by
section S(a) (1) or section S(a) (2) of the Occupational
Safety and Health Act of 1970, 20 U.S.C. § 654(a) (l}
and (a) (2};
4. The qualifications of the individual assigned by
PSSI to inspect employee vehicle exhaust systems and
the method·~ of such inspection; and
5. The requisite qualifications, equipment and
procedures for performing an adequate vehicle exhaust
system inspection.
The July 22nd Order noted that Dr. Irvin Sofer, Chif..f
Medical Examiner of the West Virginia Department of Health and
Human Services, would be called upon by the court as an expert
witness. The parties were further informed that Dr. Sofer's
testimony would include pertinent publications written by
Dr. Sofer on the subject of carbon monoxide poisoning.
By Order dated September 9, 1994, a hearing was scheduled for
September 22, 1994, in Charleston, West Virginia. In preparation
for hearing, the parties were provided the following articles
co-authored by Dr. Sofer: Susan P. Baker, M.P.H., et al.,
Fatal Unintentional Carbon Monoxide Poisoning ' in Motor · vehicles,
American Journal of Public Health, , Vol . 62, No. 11, 1463
(November 1977}; and, Sofer & Masemo~e, The Investigation of
Vehicular Carbon Monoxide Fatalities, supra.
The hearing in these matters was stayed by the Commission
on September 20, 1994, after Madison petitioned for interlocutory
review. 16 FMSHRC 1934. On June 12, 1995, the Commission
remanded these matters for appropriate disposition.

1264

In its remand, the Commi ssion, citing Mid-Continent
Resources, Inc., 11 FMSHRC sos, S09-ll (April 1989 ) , narrowly
construed the respondents' abatement obligations given the
restrictive language of the citations in issue. 17 ~MSHRC
at 86S. Thus, the Commission concluded that abatement of the
defective equipment violation of section 77.4 04(a) was
accomplished by removal of Garrett's vehicle from mine property.
Id. at 866. With respect to the train ing violation of section
48 . 3l(a), the Commission determined that no further training was
required for abatement as the citation only cited the lack of
training of the deceased. Id. Consequently, the Commission
decided that I erred to the extent that I declined to approve the
proposed settlement because the parties had failed to provide
facts demonstrating the requisite good faith of the person
charged in attempting to achieve rapid compliance after
notification of the subject violations. 17 FMSHRC at 867 .
However, the Commission directed me to consider the adequacy
of the proposed settlement amounts by affording the appropriate
weight to the other statutory penalty criteria in section llO (i)
of the Act "in light of the planned inspection program's
contribution to compliance . " Id . at 867-68. In addition, the
Commission, ~iting legislative history, urged me to consider
whether the proposed penalties "will accomplish the underlying
purpose of a civil penalty--to encourage and induce compliance
with the Mine Act and its standards." Id. at 867.
In light of the Commission's remand decision, on June 19,
199S, I issued an Order On Remand giving the parties an
opportunity to resubmit settlement motions with supporting
arguments and/or documentation . In the alternative, the order
provided thac the parties could request that these cases proceed
to hearing.
Counsel for Madison replied on June 21, 199S, indicating
that Madison became a Chapter 7 'debtor under the U.S. Bankruptcy
Code on May 19, 199S . Counsel indicated the June 19, 199S, Order
was forwarded to the court appointed bankruptcy trustee.
PSSI responded through counsel on July 3, 1995. The
response consisted of correspondence from George L. Mathis,
President of PSSI wherein Mathis stated he was uncertain if PSSI

1265

was financially capable of paying the $3,000 proposed civil
penalty, not to mention an increased civil penalty.
Despite PSSI's repeated assurances throughout this
proceeding, credited by the Secretary, that it had instituted a
vehicle inspection program by designating an empl oyee to perform
exhaust system inspections every 90 days, PS~I now states that it
requires security guards to certify that their vehicles are in
proper working order without any affirmative efforts on the part
of PSSI to inspect vehicles. PSSI's employee certification form
continues to warn its employees that "if" employees remain in
their vehicles, they should not stay in their vehicles for more
than 20 minutes at a time and they should "get out of the vehicle
on a regular basis for fresh air ... " Employees are also
cautioned to "leave windows partially open." I construe PSSI's
response as a request for a disposition based on the record.
The Secre~ary replied on July 11, 1995, stating that neither
the Secretary nor Madison had any additional info rmation to
submit in support of the proposed settlement . The Secretary
stated that both the Secretary and Madison were requestin g a
decision based upon the record evidence .
Further Findings and Conclusions
It is well settled that an Administrative Law Judge of this
Commission has the responsibility and authority to make de novo
determinations concerning the propriety of the Secretary's
proposed civil penalties by applying the statutory civil penalty
criteria in section llO(i) of the Act, 30 U. S . C. § 820(i). See
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147 (7th Cir . 1984) .
Consequently, in its remanc the Commission, citing Knox County
Stone Co., 3 FMSHRC 2478, 2479-81 (November 1981 ) and -relying on
the provisions of section llO(k) of the Act, 30 U. S.C. § 820(k),
directed me "to consider the weight to be given to each of the
statutory penalty criteria in light of the planned inspection
program ' s contribution to compliance." 4 17 FMSHRC at 867-68.

Section llO(k) provides, · in pertinent part, "[n]o proposed
penalty which has been contested before the Commission under
section lOS(a) shall be compromised, mitigated, or settled except
with the approval of the Commission."
4

1266

Negligence
The lethal nature of exposure to automobile fumes is
commonly known. In the instant case, Garrett's job d~ties, which
involved his prolonged presence in a stationary vehicle, cannot
be equated with those of cab drivers or truck drivers who drive
about, thus dissipating any potential for carbon monoxide
exposure. There is no evidence that PSSI or Madison, knowing
that Garrett would remain in his stationary vehicle for a to
12 hour shifts in sub-freezing inclement weather and subject to
fatigue, took any action to ensure that Garrett's vehicle was in
safe operating condition. The respondents' failure to appreciate
the danger posed to Garrett constituted a reckless disregard
indicative of an exceptionally high degree of negligence.
Turning to the negligence associated with Madison's section
48.3l(a) violation, while there are serious questions whether any
hazard training short of warning security personnel not to stay
in their stationary vehicles would be effective, the issue of the
adequacy of hazard training as it relates to the degree of
negligence is not in issue . as Madison failed to provide any
pertinent training to Garrett. Having exposed Garrett to the
possibility of carbon monoxide intoxication, it was incumbent on
Madison to provide him with proper training against such dangers.
The failure to provide Garrett with any carbon monoxide hazard
training given Madison's awa!eness of Garrett's long-term
exposure in his stationary vehicle at Madison's mine site without
aIU!: alternative means of warmth and shelter likewise demonstrates
a high degree of culpability.
Gravity
Gravity as a section llO(i) penalty criteria relates to the
seriousness of a violation. Gravity must be viewed in the
context of the importance of the violated mandatory safety
standard and the operator's conduct in relation to the Mine Act's
purpose of ensuring that operators make every reasonable effort
to prevent unsafe or unhealthful conditions. Quinland Coals,
Inc, 9 FMSHRC 1614, 1622 n. 11 (September 1987); see also Harlan
CUmberland Coal Company, 12 FMSHRC 134, 140-41 (January 1990)
(ALJ Fauver) . Here, the unsafe condition or practice was readily
apparent. Yet the respondents failed to provide Garrett with the
benefit of any meaningful vehicle inspection or hazard training

1267

to address Garrett's potential exposure to carbon monoxide fumes.
These omissions constitute violative conduct indicative of
serious gravity.
Planned Vehicle Inspection and
and Hazard Training Programs'
Contribution to Compliance With
the Cited Mandatory Standards
In its remand, the Commission noted the subject citations
were narrow in scope and did not trigger a broad duty of
abatement because they were limited to Garrett's defective
vehicle and his lack of hazard training. However, good faith
abatement is only one of several non-exclusive statutory
guidelines to be considered when determining the appropriate
civil penalty. Another fundamental consideration, discussed in
the legislative history of section llO(i), is whether the amount
of the proposed penalty is sufficient to encourage compliance
with the cited mandatory standard. 5 Consequently, in penalty
assessment, it is proper to evaluate the respondents' continuing
operations to determine if the respondents are exposing others to
the identical hazards contributed to by the cited violative
conduct, particularly in this instance where that conduct
contributed to a fatality.
In other words, the Act is a remedial rather than a revenue
raising statute. The purpose of the Act is "to provide for the
protection and health and safety of persons working in the coal
mining industry of the United States .. . " 30 U.S.C. § 801 Note.
The imposition of a civil penalty is a means intended to
"effectuate the purposes of the Mine Act." 17 FMSHRC at 873.

Section llO(i) of the Act states that, "[i]n assessing
civil monetary penalties, the Commission shall consider ... "
the six penalty criteria contained therein (emphasis added) .
Although application of these statutory guidelines is almost
always adequate to determine the proper civil penalty, the
language of section llO(i) does not preclude consideration of
other relevant factors in extr~ordinary cases, particularly when
such factors are consistent with the legislative history and
assist the trier of fact in assessing penalties that are in the
public interest.
5

1268

The imposition of ciyil penalties for violations of mandatory
safety stanctards that eAJ;>ose miners to hazards jecwardizing life
and health without regard to whether or not these hazards
continue to exist would be a futile gesture that woulp trivialize
the Mine Act. In this regard, the Commission noted in its remand
decision that the Commission and its judges have a duty "to
protect the public interest by ensuring that all settlements ...
are consistent with the .. . Act's objectives." 17 FMSHRC at 867,
citing i';nox County, 3 FMSHRC at 2479.
Consistent with the above discussion, Congress specifically
expressed its concern in the legislative history of section
llO(i) of the Act that the objective of the imposition of a civil
penalty must be to encourage compliance with the cited standard
rathe::· than raise revenue. Senate Subcommittee on Labor,
2d Sess., Legislative History of the Mine Safety and Health Act
of 1977, at 632 (1978 ) . The drafters of the Act stated, "a
penalty should be of an amount which is sufficient to make it
more economical for an operator to comply with the Act's
requirements than it is to pay the penalties assessed and
continue to operate while not in compliance . " Id. at 629.
Therefore, given the purpose of the Act, if PSSI and Madison
insist on exposing personnel to the potential of carbon monoxide
poisoning, they must bear the burden of ensuring vehicles are in
safe operating condition and of ensuring that personnel are
properly trained in hazard avoidance. Unfortunately, as noted
below, the post-fatality conduct of PSSI and Madison demonstrates
the penalties proposed by the Secretary are inadequate to
encourage the respondents' compliance with sections 77 . 404 and
48.31(a).

Despite PSSI's repeated assurances that it had initiated its
own vehicle inspection program, in its latest July 3, 1995,
submission, PSSI now reports that it has shifted the burden of
exhaust system inspections to its security guards who are
subjected to the hazards of ca~bbn monoxide on a nightly basis.
PSSI's attempt to superimpose its responsibility for ensuring
that vehicles are maintained in safe operating condition on its
employees subverts the basic legislative intent of the Act, which
provides that it is the mine operator and its contractors that
"have the primary responsibility to prevent;. the existence of
[unsafe and unhealthful] conditions and practices" in the

1269

Nation's mines. 30 U.S.C . §§ SOl(d), SOl{e), 802 (d); see also
Eagle Nest Incorporated, 14 FMSHRC 1119 (July 1992) . Thus,
PSSI's attempt to shift the burden of vehicle inspection is an
aggravating rather than mitigating factor with respe~t to its
degree of culpability and the appropriate civil penalty.
Evaluation of Madison's reliance on PSSI's warnings to its
employees to "partially" open car windows and not fall asleep as
the method of achieving compliance with the hazard training
requirements of section 48.31{a) raises interesting questions
because automobiles are not primarily designed for the purpose of
providing warmth and shelter. Automobile manufacturers caution
against remaining in stationary vehicles for even short periods
of time. For example, the 1991 Ford Motor Company Owner's Guide,
provided to the parties with my August 29, 1994, Order denying
summary decision, warns:
Carbon m0noxide, although colorless and odorless, is
present i ·n exhaust fumes. Take precautions to avoid
its dangerous effects .
Never idle the engine in closed areas . Neyer sit in a
parked or stopped vehicle for more than a short period
of time with the engine running. Exhaust fumes,
particularly carbon monoxide, may build up. These
fumes are harmful and could kill you.
(Emphasis
added ) .
Moreover, the efficacy of open car windows as a life saving
measure is questionable. In studies involving seven of 39
instances of carbon monoxide deaths in vehicles, Dr. Sofer and
his colleagues found:
Seven cars [of the 39 vehicles studied] had at least 1
window open for a distance of 1/2" to 4", which many
people think is an adequate precaution against CO
poisoning . Two of these cars were subjected to carbon
monoxide tests while parked with the engine running and
accumulated potentially fatal CO concentrations with
the window in the same position as when the bodies were
discovered . One of them, with the window open 1/2",
built up a 0.1% CO level in 30 minutes. This level
produces a fatal carboxyhemoglobin saturation in the

1270

blood in 3-4 hours. The other teste:.i car had a window
open about 4", and exhaust fumes may actually have
entered through this window as well as the trunk.
Baker et al., supra at 1465.
Madison has failed to demonstrate any effective training
measures taken after Garrett's death to protect security guards
from the hazards of carbon monoxide exposure. In fact, the
training proposed by PSSI, and appare,1tly endorsed by Madison,
would accentuate the potential dangers from carbon monoxide
exposure by suggesting ineffective remedial measures such as
reminders to stay awake. Such training measures disregard the
provisions of section 48.3l(a) which mandate training in "hazard
recognition and avoidance." Rather than achieve compliance, the
training program advanced by the respondents ignores hazard
recognition and pays lip service to avoidance. Such conduct is
also an aggravating rather than a mitigating factor.
Ultimate Conclusions
PSSI has presented no objective evidence that it is
financially incapable of paying an increased penalty in this
matter. In view of the extremely high negligence and serious
gravity associated with the violations in issue, as well as _the
failure to adequately remedy the hazards created by the cited
mandatory standards to ensure that future fatalities do not
occur, I would normally be inclined to impose significantly
higher penalties in these cases.
However, I acknowledge that both the Secretary and the
dissenting Commissioners on remand support the proposed
settlement. Therefore, in an exercise of restraint, a civil
penalty of $7,500 is assessed for PSSI's violation of section
77.404(a) cited in Citation No. 3976646. Similarly, civil
penalties of $4,000 for Madison's violation of section 77.404(a)
cited in Citation No. 3976644 and $1,500 for Madison's section
48.31(a) violation cited in Citation No. 3976647 are also hereby
assessed in this matter. While these penalties represent
significant percentage increases over the small initial proposed
assessments, the penalties are mild given the circumstances

1271

herein. 6 The small size of PSSI and Madison's bankruptcy have
also been considered in the assessment of these penalties.
Finally, my statutory jurisdiction in this matteF is limited
to the appropriate civil penalty to be assessed. Imposition of
remedial measures to prevent carbon monoxide death is beyond the
scope of my authority. However, the paramount purpose of the Act
is to prevent the existence of "unsafe and unhealthful conditions
and practices." Potentially exposing employees to a deadly
odorless, colorle~s gas, night after frigid night, in direct
contravention of automobile manufacturer warnings, is an unsafe
and unhealthful practice. Assuming arguendo, this practice does
not violate the Act, the respondents have an affirmative duty to
protect such employees from the hazards of carbon monoxide
through meaningful vehicle maintenance and hazard training
programs.
While not dispositive of these civil penalty proceedings, I
note MSHA has reported that on Sunday, April 9, 1995, under
apparent circumstances similar to the fatality of Allen Garrett,
Melvin Brian Day, a security guard in a mine located in McDowell
County, West Virginia, was found dead from asphyxiation in his
vehicle. At the time he was discovered, Day s vehicle was parked
on mine property with the motor running. See Mine Regulation
Reporter, Vol. 8, No. 9, May 5, 1995, at 223. I urge MSHA to
take appropriate enforcement measures to prevent similar loss of
life.

It is not uncommon for the Commissio~ to impose civil
penalties considerably larger than those proposed by the
Secretary when there are factors aggravating an operator's
culpability. For example, the Court recently affirmed the
Commission's increase in proposed penalties from $25,000 to
$65,000 in a matter involving two fatalities. W.S. Frey Company,
Incorporated v. FMSHRC, No. 94-1869, (4th Cir. June 13, 1995).
6

1272

ORPER
In view of the above, 107(a) Order No. 3976643 and 104(a)
Citation Nos . 3976644 and 3976647 issued to Madison ~ranch
Management ARE AFFIRMED . Consequently, Madison Branch
Management's related contests in Docket Nos. WEVA 93 218-R,
WEVA 93-219-R and WEVA 93-220-R ARE DENIED.
Accordingly, IT IS ORDERED that Madison Branch Management
pay a total civil penalty of $5,500 for the citations in issue.
The Secretary may assert a claim for payment of this civil
penalty in Madison's Bankruptcy proceeding. Upon receipt of
payment, Docket Nos. WEVA 93-373 and Docket No. WEVA 93-412
ARE DISMISSED.
Citation No. 3976646 issued to Protective Security Services
and Investigations, Inc., IS APPIRMED. IT IS FURTHER ORDERED
that Protective Security Services and Investigations, Inc., pay a
civil penalty of $7,500 in satisfaction of this citation.
Payment is to be made within 30 days of the date of this
decision. Upon. timely receipt of payment, the civil penalty
proceeding in Docket No. WEVA 93-415 IS DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:
Helen M. Morris, Esq . , Bankruptcy Trustee, Madison Branch
Management, Bear, Colburn & Morris, 731 5th Avenue, Huntington,
WV 25701 (Certified Mail)
·
Christopher B. Power, Esq., Robinson & McElwee, P.O. Box 1791,
Charleston, WV 25326 (Certified Mail)
Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203
(Certified Mail)
James A. Walker, Esq., White & Browning Building, Suite 201,
201-1/2 Stratton Street, P.O. Box 358, Logan, WV 25601
(Certified Mail)
/rb

1273

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMI SSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PI KE
FALLS CHURCH, VIRGI NIA 22041

JUL 2 7 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-1312
A.C. No. 15-16666-03523
Mine: No. 3

WILLIAMS BROTHERS COAL CO.,
INC.
Respondent
I

DECISION
Appearances:

Susan E. Foster, Esq., Off i ce of the Solicitor,
U. S. Department of Labor, Nashville , Tennessee,
and James C. Hager, Conference and Litigation
Representative, Phelps, Kentucky, for Petitioner;
Hufford Williams, Vice-President, Williams
Brothers Coal Company, Inc . , Pro Se, for
Respondent .

Before:

Judge Amchan

This case involves eight citations with total proposed civil
penalties of $733, arising out of inspections of Respondent 1 s
No . 3 Mine in Eastern Kentucky in the fall of 1993 and spring
of 1994 . A hearing in this matter was held on May 4, 1995, in
Prestonsburg, Kentucky. As discussed below, I affirm six citations as non-significant and substantial (S&S) viol ations and
assess civil penalties in the amount of $300 . Two ci t ations
and the corresponding proposed.penalties are v a cated.
Cita tion No . 4004328; I n adequate Number o f
Boreholes Dr i lled into Previously Mined Area
In early October 1994, several days prior t o the i ssuan ce
of Citation No. 400 4 328, Respondent encountered adverse roof
conditions in the area designated as section 1 of its mine
(Tr. 51-52, Exh. R-1) . It decide d to move from one side of the

1274

hill it was mining to another, and drilled new holes into the
mine from the outside. Fifteen to 45 feet behind the new holes
was an area, designated as section 3, which Respondent had mined
and sealed 6 to 12 months previously, prior to moving to
section 1 (Tr. 23, 52-53).
Respondent drilled one borehole into the side of the hill
with a hand held hydraulic drill (Tr . 54-60). This borehole
penetrated a crosscut of section 3. Williams Brothers then used
a remote-controlled continuous mining machine to cut a hole
16 feet wide and 15 feet deep in the area in which it had drilled
(Tr . 60-61).
Respondent let the opening air out overnight and the next
morning sampled in the crosscut for methane and oxygen . Williams
Brothers did not drill any more boreholes in this area but
instead commenced mining in the entry into which it had
originally drilled and three entries immediately to the right of
this entry (Tr. 61-65, Exh . R-1) .
On October 12, 1994, MSHA Inspector Gary Gibson issued
Respondent Citation No. 4004328 alleging a S&S violation of
30 C.F.R. §75.388(c). Section 75.38B{a) requires that boreholes
be drilled when the working place approaches to within 50 feet of
any area shown on surveys of the mine unless the area has been
preshifted. Subsection 75.388{c) requires that boreholes be
drilled in at least one rib at an angle of 45 degrees to the
direction of advance, at least 20 feet in depth, and at intervals
not to exceed 8 feet.
This regulation was promulgated to prevent explosions or
inundations that might occur when mining proceeds into
inaccessible areas that have not been subjected to a pre-shift
examination.
Such areas may contain dangerous accumulations of
gases or water, 57 Fed. Reg. 20909 (May 15, 1992).
Respondent concedes that it did not comply with the letter
of the regulation, but argues that its procedure fully accomplished the preventative purposes of the regulation. Williams
Brothers submits that since it drilled into an area shown clearly
on its mine map, once it penetrated the crosscut it was able to
determine whether gas or water lay behind the other entries it
intended to mine (Tr . 56-59).

1275

I conclude that Respondent violated the regulation as
alleged. Section 75.388(g) allows the use of alternative
borehole patterns that provide equivalent protection to those
specified in the cited regulation, if used under a plan approved
by the MSHA District Manager. Since Williams Brothers did not
get prior approval for its deviation from the standard's
requirements, a violation is established.
Moreover, section 75.388(d) requires that when a borehole
penetrates an area that cannot be examined, the operator must
determine the concentrations of carbon monoxide and carbon
dioxide, as well as the concentrations of methane and oxygen .
Since Respondent concedes that it did not test for these two
gases (Tr . 70), its precautionary measures prior ~o mining in
section 3 were obviously not equivalent to the precautions
required by the standard.
On the other hand, I find that the Secretary has not met
his burden of proving that the violation was "S&S. 11 The
Commission test for 11 S&S, 11 as set forth in Mathies Coal Co.,
supra, is as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove: (1) the underlying violation
of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to
safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of
a reasonably serious nature.
Respondent's evidence indicates that it was not reasonably
likely that an injury would occur from its failure to adhere to
the requirements of section 75.388(c) . Its contention that it
could determine that there were no dangerous gases or accumulations of water behind the entries to the right of its borehole
were not rebutted by the Secretary. I therefore affirm the
citation as a non-S&S violation and assess a $50 civil penalty
pursuant to the six criteria in section llO(i) of the Act,
rather than the $75 proposed by the Secretary.

1276

Citation No. 4218395; InadeQuate Pre-Shift
Examination Records
On April 25, 1994, MSHA representative Roger Williams
examined Respondent's pre-shift examination book and determined
that beginning on March 11, 1994, it did not indicate where
methane measurements had been taken (Tr . 83-88). The book
contained one daily entry stating that no methane had been
detected (Tr. 88, Exh. R-2, page 1).
The regulation cited, 30 C.F.R . §75.360(g), clearly requires
that the location and results of air and methane measurements be
recorded in the preshift book. While I credit Respondent's
assertion that other inspectors had accepted its method of maintaining the examination book, this does not negate the violation.
Prior failure to enforce the standard does not preclude the
Secretary from enforcing its terms in the instant case.
While the ·records of methane testing were not pr.operly
recordeq, there is no indication that such tests were not made.
I therefore conclude that the gravity of this violation is
sufficiently low that a $25 civil penalty is warranted, rather
than the $50 proposed by the Secretary.
Citation No. 4016435; InadeQuate Lighting
At approximately 5:30 a.m., on April 13, 1994, MSHA
representative Jerry Abshire observed a miner loading a coal
truck with a front-end loader.
I t was still dark and the only
artificial light in the area was that provided by the front - end
loader . The light was insufficient for the miner to see anyone
behind or to the side of him (Tr . 118-121).
Respondent contends that other sources of light were
available to the miner if he felt the lighting in this area was
inadequate (Tr. 133-34).
I credit the testimony of Inspector
Abshire and find a violation . However, since the only work that
normally would be performed in the cited area is the loading .of

1277

one truck by one miner, I concluded that it was not reasonably
likely that an injury would result from the inadequate lighting
(Tr . 130) .
I affirm the citation as a non-S&S violation of the Act and
assess a $25 civil penalty, rather than the $88 penalty proposed.
The lower penalty is warranted because Respondent provided
additional lighting (Tr. 133) that the miner could have used
without difficulty. Therefore, I deem Respondent ' s negligence
with regard to this citation to be extremely low.
Citation No. 4016438: Absence of Insulation Mats
at the Pum~in9 Station
On April 13, Inspector Abshire found no insulation mat or
wooden platform in front of the power switch for Respondent's
water pumping station (Tr. 139-41). The ground in front of the
switch was wet (Tr. 140-41, 144).
Williams Brothers contends that it normally keeps a wooden
pallet in front of the switch, but that someone had moved it
(Tr. 150). Respondent immediately replaced the pallet when
Abshire issued Citation No. 4016438.
I find a violation of 30 C.F.R. §77.513, as alleged by the
Secretary. This regulation requires the use of insulation mats
or wooden pallets in front of switches where shock hazards exist.
Since the area in front of the water pump switch was wet, I
conclude such a hazard was presented by the absence of the
pallet.
The Secretary alleges a 11 8&8 11 violation and proposes a
$147 civil penalty. However, I find that the evidence does not
show that there was a reasonable likelihood of injury due to
the violation. Therefore, I affirm the citation as a non-S&S
violation.
There is no showing that the switch was not properly
grounded . Proper grounding would cause the circuit breaker to
cut off power to the switch if it becomes energized (Tr. 149).
Furthermore, exposure to this switch was limited to the miner

1278

who turned it on and off once on a daily basis (Tr. 141) .
However, given the seriousness of an injury should .one occur,
I assess a $100 civil penalty.
Citat i on No. 4016440 ; Accumulated Float Coal
Dust and Oil on Front-End Loader
Inspector Abshire also observed a front - end loader on
April 13, which had accumulations of float coal dust, oil and
silicone dus t on its center, hinged portion (Tr. 158).
Electrical wiring in this part of the loader could ignite the
dust and oil (Tr. 186) 1 •
I therefore find a violation of 30 C.F.R. §77.1104, as
alleged by the Secretary. However, I do not find that the
Secretary has shown a reasonable likelihood of an ignition and
fire and therefore affirm the citation as a non - S&S violation.
I assess a $5 ~ civil penalty, rather than the $88 proposed.
Citation No. 4018041;

Unsecured Ladder without

back guards
Respondent maintains a storage shed at its mine that is
about 40 feet long and 12 feet high. At one end of the shed are
two offices with ceilings about 8 feet off the ground. Above the
offices is 4 feet of storage space (Tr. 208 - 09).
On April 13, Inspector Abshire observed an aluminum ladder
10 feet 4 inches long, resting at an angle against the top o f
the door frame of one of the offices. This door frame was
approximately 6 feet 10 inches above the floor (Tr. 207-210).
This ladder was used about once a week to gain access to the
storage area (Tr . 216).
Abshire issued Respondent C~tation No . 4018042 alleging a
violation of 30· C.F.R. §77.206(c). This regulation requires that
steep or vertical ladders which are used regularly at fixed
locations be anchored securely and provided with backguards.

1

1 credit the testimony of the Secretary's witnesses,
Abshire and Harris, over that of Respondent's Hufford Williams,
on this issue (Tr . 162, 165, 168-70, 182-86).

1279

It is uncontroverted that the ladder in question was not secured
at either the top or bottom, although it did have rubber skidproof feet (Tr. 210). The ladder also did not have backguards.
What has not been clearly established is whether the ladder
was sufficiently "steep" to make the regulation applicable. As
the cited standard does not define "steep," the issue becomes
whether a reasonably prudent mine operator familiar with the
protective purposes of the standard would have recognized that
the ladder in this case violated its requirements, Idea l Cement
Company. Inc., 12 FMSHRC 2409 (November 1990). I conclude that
this has not been established. I therefore find that the
Secretary has not established that the ladder in question was
steep and I vacate the citation and the proposed penalty.
Citation No. 4018042 : Failure to test the torque
on a sufficient number of roof bolts
On April f ~, 1994, Inspector Abshire looked at Respondent's
records and determ~ned that on the previous day it had checked
the torque (tightness) of 14 roof bolts (Tr. 224-25). He then
issued Williams Brothers Citation No. 4018042, which alleges a
violation of 30 C.F.R. §75.204(f) (5). The cited regulation
provides:
In working places from which coal is produced during
any portion of a 2~-hour period, the actual torque or
tension on at least one out of every ten previously
installed mechanically anchored tensioned roof bolts
shall be measured from the outby corner of the last
open crosscut to the face in each advancing section.
Abshire calculated that Respondent would have had to check
the torque on 88 roof bolts to satisfy the standard (Tr. 230 - 31).
This calculation was based on the fact that Williams Brothers was
mining in 11 entries. at the time .of his inspection.
Respondent contends that Abshire miscalculated the number of
bolts it had to check because it only mined in four entries in
the 24 hours prior to instant violation (Tr . 246). Moreover, it
argues that it did not advance 60 feet in each of these entries
within that 24-hour period, thus suggesting that checking the
torque on 14 bolts may have satisfied the standard.

1280

I conclude that Respondent did violate the regulation. The
standard requires checking -the torque in all working places from
which coal has been produced in the past 24 hours 2 • Thus, even
if some of the four entries in which Respondent had mined had
been developed before this 24-hour period, the operator was
required to check the torque of one-tenth of the bolts in these
entries, not simply the portion of the entries in which it had
advanced in the last 24 hours.
I credit Abshire's testimony that each entry was 80 feet
in length from the outby corner of the last open crosscut
(Tr. 227-28). As each entry would have had about 80 roof bolts,
Respondent would have had to check the torque on approximately
32 to comply with the standard (80 bolts x 4 entries = 320 bolts;
one-tenth of 320 bolts = 32) {Tr. 228-31).
Abshire•s testimony is also supported by the fact that the
14 bolts checked on April 12 were an unusually low number. On
the days just prior to that, Respondent checked 40 to 60 bolts
(Tr. 226). As there is no indication that production was
unusually low on April 11-12, 1994, this indicates that an
inadequate number of bolts were checked for torque on April 12.
This violation was cited as a non-S&S violation of the Act
and a $50 penalty was proposed. Applying the criteria in section
llO(i), I conclude $50 is an appropriate penalty and I assess a
civil penalty in this amount.
Citation No . 4218395; Use of Blowing ventilation
in Contravention of Respondent's Ventilation Plan
On April 13, Inspector Abshire examined the No. 10 entry
being mined by Respondent. He found the line brattice on the
right side of the entry, leading him to conclude that .Williams
Brothers had used blowing face ventilation when mining in this
entry, rather than exhausting face ventilation as required by
Respondent's approved ventilation plan (Tr. 256-258, Exh . G-9).

Working place is defined in §75.2 as the area of a coal
mine inby the last open crosscut .
2

1281

When using exhausting face ventilation, the line brattice is
placed on the left hand side of the entry (Tr. 260, Exh. G-9,
p . 2) .
When Abshire inspected entry No. 10, Respondent's continuous
mining machine was extracting coal in entry No. 7 . It had mined
in entry No. 10 the day previously (Tr . 279). Line curtains are
sometimes moved after coal extraction, however, there is no
substantial evidence as to why the curtain in entry No . 10 was
hung on the right side (Tr. 279-84) .
I conclude that the evidence in the record is insufficient
to establish that Respondent used blowing face ventilation when
cutting coal in entry No. 10. Therefore, I vacate Citation
No. 4018044 and the corresponding proposed penalty .
ORDER

The following citations are affirmed as non-S&S violations
of the Act.
The following civil penalties are assessed:
Citation No.
Citation No.
Citation No.
Citation No.
Citation No .
Citation No .

4004328
4016435
4016438
4016440
4018042
4018395

$ 50
$ 25
$100
$ 50
$ 50
$ 25

Citation Nos. 4018041 and 4018044 and the corresponding
proposed penalties are vacated . Respondent shall pay the $300
in total penalties within 30 days of this decision. Upon such
payment this case is dismissed .

A~[~~
Administrative Law Judge

1282

Distribution:
Susan E. Foster, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail)
James C. Hager, Conference and Litigation Representative,
Mine Safety and Health Administration, 100 Ratliff Creek Road,
Pikeville, Kentucky 41501 (Certified Mail)
Hufford Williams, Vice-President, Williams Brothers Coal
Co., Inc., 415 Card Mountain Road, Mouthcard, KY 41548
(Certified Mail)
/lh

1283

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

JUL 2 8 1995

RNS SERVICES, INC.,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. PENN 95-382-R
Citation No. 3713378; 6/16/95

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

Docket No. PENN 95-383-R
Citation No. 3713379; 6/16/95

I

RNS Services Mine
Mine ID No . 36-07266
DECISION
Appearanc.es :

R. Henry Moore, Esq . , Buchanan Ingersoll,
Pittsburgh, Pennsylvania for the Contestant;
James Brooks Crawford, Esq . , U.S . Department of
Labor, Office of the Solicitor, Arlington,
Virginia, for the Respondent.

Before:

Judge Weisberger
History of these cases

These cases, which were consolidated for hearing, are before
me based upon Notices of Contest filed by RNS Services,
Incorporated (RNS) challenging the issuance of two citations by
the Secretary of Labor (Secretary). On June 19, 1995, RNS filed
a ~otion to Expedite. A telephone conference call was convened
to discuss this motion. After hearing arguments from both
parties, the cases were scheduled for hearing on July 6, 1995.
The parties each filed a pre-hearing memorandum of law on
June 29, 1995. At the hearing, James E. Biesinger, Gary L.
Boring, and Leo E. Makovsky testified for the Secretary. Neil
Hedrick, and Robert J. Pavelko testified for RNS . The parties
filed post-hearing briefs on July 24, 1995.
1284

Findings of Fact
The following findings of fact are based upon the parties'
stipulations and the evidence of record:
1. The No. 15 dumps site at issue, a 15 acre parcel, is
operated by RNS .
2. A pile of material on the site, approximately 1,200 feet
long, 500 feet wide and 90 feet wide, consists of refuse from a
preparation plant that had been operated by Barnes and Tucker
Coal Company, or its predecessor Barnes Coal Company. The
preparation plant processed coal from the Barnes and Tucker
No. 15 underground mine. Washing, screening, and sizing of
coal were performed at the preparation plant.
3.

The No. 15 mine ceased operations sometime prior to
1969 . The No. · 15 preparation plant ceased production sometime
prior to 1968, and was demolished .
4. There are no buildings or other facilities on the site
at this time . The No. 15 mine had operated in the "B" seam which
contained metallurgical coal with a normal BTU value of between
13,000 and 14,000 BTUs.
5.
In January 1995, RNS acquired the No . 15 site in from
Lancashire Coal Company, a subsidiary of Inland Steel, which had
acquired the site from Barnes and Tucker.
6. RNS supplies coal refuse to the Cambria Co-Generation
Facility (Cambria) in Ebensburg, Pennsylvania, which generates
electricity and steam. The material supplied by RNS to Cambria
is broken and sized at Cambria's facility. RNS has a. flat fee
contract with Cambria to deliver coal refuse, and remove ash 1
from the Co-Generation Facility . . RNS does not receive any
payment from Cambria based on the quantity of coal refuse it
delivers to Cambria.

The ash is a product of the burning of coal refuse at
Cambria .
1

1285

7. RNS has the following equipment at the site : A
hydraulic excavator to remove material from the pile and load
trucks, a water truck, a bulldozer, and a backhoe.
8. With the exception of a 4 inch grizzly to remove timbers
from the pile, there is no screening, crushing, sizing or washing
of the material at the subject site.
9 . The material removed from the pile is loose, and is not
being taken from its natural deposit.
10 . Testing of material removed from the pile indicates that
it shows the characteristics of coal.
11. The work being conducted at the No. 15 site by RNS is
under a no-cost government financed reclamation contract with the
Commonwealth of Pennsylvania. This contract calls for the
removal of refuse from the site, and the provision of cover and
revegitation.
12. The hazards at the site are associated with the collapse
of the highwall. Also present are hazards associated with
material falling off the highwall, as well as tripping and
stumbling hazards.
In addition, the material in the pile has the
potential to burn or explode.
Violations
On June 16, 1995, MSHA inspector Gary L. Boring inspected
the subject site. He issued a citation alleging the failure to
record the results of daily inspections at the site. He also
issued a citation alleging that RNS had not established a ground
control plan . RNS does not challenge the factual assertions set
forth in these citations, and agrees that the relevant mandatory
standards were violated . However, RNS challenges MSHA
jurisdiction over the subject site.

1286

Discussion
Section 4 of the Federal Mine Safety and Health Act of 1977
(the Act) provides as follows:
Each coal or other mine, the products of which enter
commerce, or the operations or products of which enter
commerce, and each operator of such mine, and every
miner in such mine shall be subject to the provisions
of this Act.
"Coal or other mine" is defined in Section 3(h) (1) of the
Act as follows:
[C]oal or other mine' means {A) an area of land from which
minerals are extracted in nonliquid form or, if in liquid
form, are ·extracted with workers underground, (B) private
ways and roads appurtenant to such arect, · and (c) lands,
excavations, underground passageways, shafts, slopes,
tunnels and workings, structures, facilities, equipment,
machines, tools, or other property including impoundments,
retention dams, and tailings ponds, on the surface or
underground, used in, or to be used in, or resulting from,
the work of extracting such minerals from their natural
deposits in nonliquid form, or if in liquid form, with
workers underground, or used in, or to be used in, the
milling of such minerals, or the work of preparing coal or
other minerals, and includes custom coal preparation
facilities.
In making a determination of what constitutes
mineral milling for purposes of this Act, the Secretary
shall give due consideration to the convenience of
administration resulting form the delegation to one
Assistant Secretary of all authority with respect to the
health and safety of miners .employed at one physical
establishment.
The Secretary argues that he has jurisdiction under the Act
under two theories. He first maintains that RNS was, in its work
.p erformed at the No . 15 refuse disposal site, "engaged in the
work of preparing coal 11 under Section 3(h) (2) (i) of the Act.
Under the latter section, "work of preparing the coal" is d.e f ined
as "the breaking, crushing, sizing, cleaning, washing, drying,

1287

mixing, storing, and loading of bituminous coal
and such
other work of preparing such coal as is usually done by the
operator of the coal mine."
In the instant cases, with the exception of the removal of
coal, none of the activities set forth in Section 3(h) (2) (i) of
the Act are performed at the site. The sole activities performed
at the site, those of the removal of material by a hydraulic
excavator, the loading of the material on trucks, and the
transporting of material to the Cambria facility are not
activities set for in section 3(h) (2) (i), supra.
In this connection, the operation at issue· is to be
distinguished from the cases relied on by the Secretary, in which
jurisdiction was found to exist over operations that performed
breaking, crushing, and sizing of coal. 2 I thus conclude that
the operation herein was not the work of preparing coal, and
hence does not fall within the definition of a mine as set forth
in Section (3 ) (h) (1), supra .
The Secretary also argues that the No. 15 refuse site meets
the definition of "coal or other mine" under Section 3(h) (1) of

In Air Products & Chemicals. Inc . , 15 FMSHRC 2428 (1993)
the Commission held that the breaking, crushing, sizing and
storing of coal were activities usually performed by an operator,
and that accordingly the coal handling facility at issue was
subject to the Act's jurisdiction.
In Westward Energy
Properties, 11 FMSHRC 2408 (1989), the Commission concluded that
an operation in which coal mining waste was screened and crushed
was subject to the Act's jurisdiction . In the same f~shion, in
Alexander Brothers Incorporated, 4 FMSHRC (1982), it was held by
the Commission that an operation that included breaking,
crushing, sizing, cleaning, washing, drying, mixing, storing and
loading was engaged in the preparation of coal and hence was
subject to the Act.
In Mineral Coal Sales Incorporated, 7 FMSHRC
615 (1985), the Commission held that a company that stored,
mixed, crushed and sized coal was subject to the jurisdiction of
_the Act.
In RNS Services Inc. , 1.6 FMSHRC 1322 (Judge Melick)
(June 1994), Judge Melick found jurisdiction to exist where the
operation included activities of breaking, sizing, and cleaning
of coal.
2

1288

the Act in that "the area at issue constitutes lands ...
structures, facilities ... or other property . . . used in or
resulting from the work of extracting such minerals form their
natural deposits in non-liquid form .. . . "
In the instant cases, it is clear that the material being
removed was from a pile that was not in its natural deposit.
Rather, the refuse material had been deposited on the ground
after the completion of the coal preparation process.
In this
connection, Section 3(h) (i) of the Act refers to three different
mining activities: extracting materials, milling minerals, and
preparing coal or other materials . (Lancashire Coal Company v .
Secretary of Labor, 3d Cir. 968 F.2d 388 (1992)).
The scope of the definition of "coal or other mine" in the
Act with respect··' to extraction of minerals from their natural
deposits includes "lands, excavations ... structures ... used in
or to be used in,
or resulting from the work of extracting
minerals from. their natural deposits . . . . 11 The scope of the
Act's definition with respect to coal preparation is limited to
"lands ... or other property used in or to be used in the work of
preparing coal or other minerals." The definitional language
with respect to coal preparation does not include the phrase
"resulting from, 11 which is included with respect to extraction of
material from a natural deposit. The language with respect to
coal preparation is thus limited to lands, etc . , "used in or to
be used in 11 such work while the scope of the Act with respect to
mining itself is broader, also including lands, "resulting from"
the work of extracting such minerals.
In Lancashire, supra, the Court held that MSHA did not have
jurisdiction over the demolition and reclamation work done at a
coal silo, 3 part of an abandoned preparation plant.
In
Lancashire, supra, the Court took cognizance of the ·differences
in the wording with respect to mining, and preparing, as

This coal silo is located on a parcel of land that, prior
to January 1995, was part of the same parcel as the site at issue
in the case at bar. The silo is approximately 50 feet from the
pile at issue.
3

1289

well as the legislative history . The court held that buildings
resulting from the preparation of coal were not within the acts
jurisdiction.
In contrast, based on the wording of the Act,
buildings resulting from the extraction of coal are w~thin the
Act's jurisdiction.
Thus, focusing on the different treatments in the Act
between the activities of extraction and preparation of coal,
I find that the pile at issue did not result from the initial
extraction of coal, since the coal that was extracted had ben
subjected to subsequent preparation.
I find that the pile
resulted from the preparation plant, and from the preparation
of coal.
For all the above reasons, I find that the subject operation
was not a mine as defined in the Act.
I thus find that it was
not subject to the Act's jurisdiction . Hence, the notices of
contest are sustained, and the citations at issue, Nos. 3713378
and 3713379, are to be dismissed.
ORDER
IT IS ORDERED that Citation Nos. 3713378 and 3713379 be
DISMISSED .

~~.

.

,..·Avram Weisberger
Administrative Law Judge

Distribution:
R. Henry Moore, Esq., Buchanan Ingersoll, P . C., 57th Floor,
600 Grant Street, Pittsburgh, PA 15219
(Certified Mail)
James Brook Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 W~lson Blvd., Arlington, VA
(Certified Mail)
/ml

1290

22203

ADMINISTRATIVE LAW JUDGE ORDERS

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

July 5, 1995

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

CIVIL PENALTY PROCEEDINGS
Docket Nos. LAKE 94-72, etc .

v.

Buck Creek Mine

BUCK CREEK COAL INC.,
Respondent
ORPER DIRECTING PRQDUCTION OF DECLARATION
bNDER SEAL FOR IN CAMERA CONSIDERATION
The Secretary, by coun~el, has moved for the stay of
approximately 80 violations in these cases which he asserts "are
subject to and within the scope of an ongoing criminal
investigation into possible willful violations of federal law and
mine safety standards at the Buck Creek Mine."
In order to
establish the commonality of issues and evidence between the
civil matters before me and the criminal matters, the Secretary
states that the Assistant U.S . Attorney "would be willing to ·
provide the Administrative Law Judge a more descriptive
declaration of the criminal investigation parameters provided
that the Administrative Law Judge would order that declaration
[be] viewed by him ex parte and under seal and the contents not
disclosed to anyone but the Administrative Law Judge . " Buck
Creek opposes this request.
In his motion, the Secretary states that the citations and
orders in question involve such violations as methane
accumulation, unreported ignitions, and serious permissibility
and face ventilation violations that were not recorded as
existing in record books of examination and which cause serious
safety risks at the mine. The .Secretary has not, however,
provided any information concerning the criminal investigation
from which it can be determined whether there is a commonality of
issues and evidence.

1291

In view of tne fact that apparently no cnarges have been
drafted nor indictments returned it is difficult to imagine what
information the Secretary could provide in open court that would
not compromise the ongoing investigation. Furthermore, as the
Secretary points out, Federal Rule of Criminal Procedure 6(e) (2),
prohibits a government attorney from disclosing matters occurring
before the grand jury. 1 Therefore, while I conclude that the
Secretary's motion does not establish a commonality of issues and
evidence necessary to meet the threshold requirements for staying
the requested 80 violations, I also conclude that there must be
some way that the· Secretary can meet this burden without
revealing the criminal case.
The Secretary proposes that this can be accomplished by
viewing the U.S. Attorney's sealed declaration in camera.
In one
of the leading cases on the issue of viewing matters in camera,
In Re Taylor, 567 F.2d 1183 (2d Cir. 1977), the court stated that
"[i]n camera proceedings are extraordinary events in the
constitutional framework because they deprive the parties against
whom they are directed of the root requirements of due process,
i.e. notice setting forth the alleged misconduct with
particularity a~d an opportunity for a hearing . " Id. at 118788(citations omitted). The court went on say that "the nature of
the Government interest must be balanced against the private
interests that are affected by the court's action" in determining
whether in camera proceedings are appropriate. · Id. at 1188 .
In that case, the court determined that the government's
interest in the secrecy of the grand jury proceedings was minimal
because Taylor was seeking only "a limited and discrete
disclosure of the factual basis" for denying him the right to his
chosen counsel, rather than seeking to review the entire
government case, and, furthermore, once Taylor appeared before
the grand jury whatever he was asked would no longer be a secret.
Id. at 1188-89. On the other hand, the same court has also held
11
that where an in camera submission is the only way to resolve
an issue without compromising a legitimate need to preserve the
secrecy of the grand jury, it is an appropriate procedure. 11
In
Re John Doe, Inc., 13 F.3d 633, 636 (2d Cir. 1994) (citation
omitted) .

Federal Rule of Criminal Procedure 6(e) (2) provides that
[a] grand juror, an interpreter:, a stenographer, an operator of
a recording device, a typist who transcribes recorded testimony,
an attorney for the government, or any person to whom disclosure
is made under paragraph (3) (A) (ii) of this subdivision shall not
11
disclose matters occurring before the grand jury .
11

1292

Applying the balancing test in these cases, I conclude that
the only way to determine whether there is a commonality of
issues and evidence between the criminal and civil matters is to
view the U.S. Attorney's declaration in camera. Unlike Taylor,
the government's interest in the secrecy of the grand jury
proceedings is significant and requiring the declaration to be
made in public would involve much more than a limited and
discrete disclosure. Against this interest, Buck Creek's only
legitimate reason for having the information disclosed would be
to more precisely articulate its objection to the stay request .
In such a case, I conclude that "any resultant limit on their
ability to rebut the government's submission [is) of marginal
importance and not violative of due process." John Doe, Inc.
at 636.
Accordingly, it is ORDERED that the Secretary provide me on
or before July 12, 1995, with the sealed declaration of the
Assistant U.S. Attorney to be viewed in camera for the purpose of
ruling on the motion to stay .
I will not disclose the contents
of the declaration to anyone unless the U. S . Attorney agrees to
its disclosure or I am directed to do so by competent higher
authority.

'!~~

Administrative Law Judge
(703) 756-4570

Distribution:
Henry Chajet, Esq., Fiti A. Sunia, Esq., Patton Boggs, L.L.P.,
2550 M Street, N.W., Washington, DC 20037-1350 (Certified Mail)
Rafael Alvarez, Esq., Office of the Solcitor, U.S. Department of
Labor, 230 South Dearborn Street~ Chicago, IL 60604 (Certified
Mail)
Thomas A. Mascolino, Esq., Deputy Associate Solicitor, Office of
the Solicitor, Mine Safety and Health, U.S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
/lbk

1293

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

July 17, 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION . (MSHA ) I
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket Nos. LAKE 94-72, etc.

v.

Buck Creek Mine

BUCK CREEK COAL INC.,
Respondent
ORPER
GRAN'TING MQTIQN FOR STAY OF PROCEEDINGS
~

DENYING MOTION TO CQMPEL
The Secretary has requested that 80 orders and citations in
34 civil penalty dockets involving the Respondent be stayed for
90 days because "they are subject to and within the scope of an
ongoing criminal investigation into possible willful violations
of federal law and mine safety standards at the Buck Creek Mine."
The Respondent has filed a motion to compel the production of
notes prepared by MSHA inspectors concerning the 80 orders and
citations that the Secretary seeks to have stayed. Buck Creek
opposes the motion to stay and the Secretary opposes the motion
to compel.
For the reasons set forth belvw, the motion to stay
is granted and the motion to compel is denied.
Motion for Stay
Initially, all proceedings concerning the orders and
citations issued to Buck Creek were stayed for 90 day periods by
orders dated September 8 1 1994, and February 15, 1995. On
April 25, 1995, the Commission issued a decision concluding that
"the record does not contain evidence sufficient to support a
finding that the criteria for a stay have been met" and lifted
the February 15 stay. Buck Creek Coal Inc., 17 FMSHRC 500; 503
(April 1995) . As a result of that decision, the Secretary filed
a new request for stay of approximately -275 orders and citations,
or about one-half of the total, pending against Buck Creek.
This

1294

request was denied on May 31, 1995, because the Secretary had not
met the criteria for stay set out in the Commission·•s April
decision.
Buck Creek Coal Inc., 17 FMSHRC 845 (Judge Hodgdon,
May 1995) . The Secretary now requests that 80 orders and
citations be stayed.
In its April decision, the Commission set out five factors
that should be considered in determining whether a stay should be
granted:
(1) the commonality of evidence and issues in the civil
and criminal matters; (2) the timing of the stay request;
(3) prejudice to the litigants; (4) the efficient use of agency
resources; and (5) the public interest .
Id . at 503. The
Commission emphasized that "the first element listed above,
commonality of evidence, is a key threshold factor" that must be
established in the record.
Id . It was at this threshold that
the Secretary failed before the Commission and failed in its
request denied on May 31.
The Commission did not discuss how the Secretary might
establish a nexus between the civil and criminal matters.
Obviously, when charges have been drafted and indictments
returned it would be easy to compare the charges and indictments
with the citations and orders. However, when the investigation
is still ongoing, there are numerous reasons why the government
may not want to reveal to the public, and particularly to those
being investigated, exactly what the investigation involves.
Among these reasons are the protection of witnesses and evidence,
the possibility of attempted obstruction of the investigation,
the possibility of flight by those being investigated, the
bringing to bear on the investigation of other outside
influences, as well as the protection from unfavorable publicity
of those who are ultimately exonerated.
With regard to the Respondent's assertion that the Secretary
has not explained how citations ~lleging moderate negligence can
support a criminal indictment, it is noted that the determination
~f an inspector when writing a citation is not even binding on the
Secretary for whom he works. Since the Secretary, as well as an
administrative law judge and the Commission, can modify a citation
and increase the level of negligence, it would be surprising
indeed to conclude that the U.S. Attorney is precluded from filing
a criminal charge for a violation solely because the MSHA
inspector had determined that it involved moderate or lower

1295

negligence. Furthermore, even if the inspector's characterization
were binding on the government, that does not mean that there
could not be a commonality of evidence or issues between the
citation and a criminal charge.
The same can be said about Buck Creek's latest argument that
in taking the depositions of MSHA inspectors, the inspectors have
stated that t he citations that they issued were not involved in
the criminal investigation and that they did not find any
evidence of wilful or knowing violations. Those inspectors not
involved in t he criminal investigation presumab l y wou l d not k now
what it involves and whether an individual inspector believes
that he found evidence of wilful or knowing violations wou l d in
no way prec l ude the U.S. Attorney from reaching a different
conclusion . 1
In this case, I find that the Secretary has made a good
faith effort to limit his stay request to the minimum number of
orders and citations necessary to protect the integrity of the
criminal investigation. While his motion does not establish a
commonality of evidence and issues between the civil and criminal
matters, since nothing concerning the criminal investigation is
revea l ed, the nature of the orders and citations that he seeks to
have stayed gives some indication as to what is being
investigated.
In view of the fact that a grand jury is
apparently now looking into these matters, which adds an
additional responsibility on the government to maintain secrecy,
see Federal Rule of Criminal Procedure 6(e) (2), I might be
inclined to grant the requested stay based solely on the
submissions in the Secretary's brief.
However, the Secretary has gone a step further and offered
an explanation of the criminal investigation from the Assistant
U.S. Attorney handling the case, to be reviewed in camera, to
meet the threshold requirement for a stay . Having concluded that
this is appropriate, Order Direc~ing Production of Declaration

One might well ask why the Respondent was asking these
types of questions if its interest in conducting discovery is to
resolve the civil cases.
Indeed, the fact that such questions
are being asked points out why the Secretary wants to stay the
civil proceedings .

1296

under Seal for In Camera Consideration, July 5, 1995, I have
viewed the declaration in camera and determine that there is a
commonality of evidence and issues between the civil and criminal
matters. Accordingly, I find that the Secretary has met the
threshold requirement for demonstrating that a stay should be
granted.
Turning to the other criteria for granting a stay, I
conclude that they also indicate that the granting of the
Secretary's stay request is appropriate . Since the grand jury
has already begun investigating these matters, it would appear
that indictments may be imminent which the courts have held
favors staying proceedings. See Campbell v. Eastland, 307 F.2d
478, 487-88 (5th Cir . 1962), cert. denied, 371 U.S. 955 (1963).
Buck Creek has alleged no specific prejudice that it will
suffer as a result of granting the stay other than arguing that
it will disrupt its discovery.
In view of the fact that Buck
Creek can still conduct discovery on at least 420 other orders
and citations and the fact that "courts do not permit criminal
defendants to employ liberal civil discovery procedures to obtain
evidence that would ordinarily be unavailable to them in the
parallel criminal case. E:g. United States v. One 1964 Cadillac
Coupe de Ville, 41 F.R.D. 352, 353 (S.D.N.Y. 1966), citing
Campbell," Buck Creek at 504, I find no prejudice to the
Respondent.
In addition, granting the stay will not result in an
inefficient use of agency resources or be against the public
interest in expeditious resolution of penalty cases because of
the limited number of cases being stayed.
It would appear highly
unlikely that the remaining cases can be heard within the next
90 days, thus there would be no effect on agency resources.
Furthermore, it is possible that the disposition of the_ criminal
matter will also dispose of th~ civil matters. See e.g.
Southmountain Coal, Inc. et al, 17 FMSHRC 1081 (Judge Melick,
June 1995} .
Accordingly, it is ORDERED that Order No. 3843585 in Docket
No. LAKE 94-8; Order Nos. 3843374, 3843376 and 3843377 in Docket
No. LAKE 94-21; Citation No. 3843525 in Docket No . LAKE 94-41;

1297

Order No . 3843511 and Citation Nos. 3843584 and 3843587 in Docket
No. LAKE 94-42; Citation Nos. 3843532, 4055892 and 4055893 in
Docket LAKE 94-50; Order No. 3843667 in Docket No. LAKE 94-72;
Order No. 4055899 in Docket No. LAKE 94-81; Citation No. 3843958
in Docket No. LAKE 94-111; Citation Nos . 4262051 and 4262257 in
Docket No . LAKE 9~-600; Citation No. 4262267 in Docket No. LAKE .
94-601; Citation Nos. 4259169, 4259170, 426270, 4262307, 4262308,
4262313 and 4262314 in Docket No . 94-602; Citation Nos. 4056454
and 4261722 in Docket No. LAKE 94-603; Citation No. 4261725 in
Docket No. LAKE 94-604; Citation No. 4259243 in Docket No . LAKE
94-605; Citation No. 4262486 in Docket No . LAKE 94-606; Citation
Nos. 4262128 and 4259175 in Docket No. LAKE 94-669; Citation Nos .
3037100, 3847801, 4050834, 4261721 and 4262130 in Docket No. LAKE
94-677; Order Nos. 4259813, 4259814, 4262068, 4262080, and
4262275 and Citation Nos. 3.843968, 4261879, 4262303, 4262304,
4262305 and 4262334 in Docket No . LAKE 94-708; Order Nos.
4259171, 4261728, 4262075 and 4262317 in Docket No . LAKE 94 - 709;
Order No. 4261735 and Citation Nos. 4261928 and 4261929 in Docket
No . LAKE 94-710; Citation No . 3843979 in Docket No . LAKE 94-745;
Order No. 4262078 in Docket No. LAKE 94-746; Citation Nos.
3037098, 4050835 and 4261934 in Docket No. LAKE 95-24; Order Nos.
4259848, 4262374, and 4262375 and Citation Nos. 4260432, 4262277,
4262278 and 4262279 in Docket No. LAKE 95-49; Citation No .
4260037 in Docket No. LAKE 95-50; Citation No. 4260428 in Docket
No. LAKE 95-51; Citation No. 4262497 in Docket No. LAKE 95-52;
Citation Nos. 4262541 and 4386058 in Docket No. LAKE 95-74;
Citation No. 4262561 in Docket No. LAKE 95-87; Order No. 3843970
in Docket No. LAKE 95-94; Citation No: 4260192 in Docket No. LAKE
95-111; Citation No. 4259854 in Docket No. LAKE 95 - 173; Citation
No. 4259597 in Docket No. LAKE 95-185; Order No. 4260193 in
Docket No. LAKE 95-206; Order Nos. 4260185, 4260191 ~nd 4262565
in Docket No . LAKE 95-214; and Citation No . 4260035 in Docket No.
LAKE 95-232 are STAYED for 90 days from the date of this order. 2

2

The dockets listed are civil penalty dockets. In those
cases where a notice of contest was filed concerni ng one of the
orders or citations listed, the contest docket is also stayed.

1298

Hotion to Compel

In view of the staying of the above orders and citations,
the Respondent's motion to compe~ the production of the
inspector's notes for those orders and citations is moot .
Accordingly, the motion to compel is DBNIBD .

0'~~

Administrative Law Judge
(703) 756-4570

Distribution :
Henry Chajet, Esq . , Fiti A. Sunia, Esq., Patton Boggs, L.L.P.,
2550 M Street, N.W., Washington, DC 20037-1350 (Certified Mail)
Rafael Alvarez·! Esq., Office of the Solcitor, U.S. Department of
Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified
Mail)
Thomas A. Mascolino, Esq., Deputy Associate Solicitor, Office of
the Solicitor, Mine Safety and Health, U. S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
/lbk

1299

1 300

o U. S. GOVER.\"'liENT PUNTING OFflCE:l 99 5- 3 8 7 - 7 2 0 / 4 3 3 7 6