OCTOBER 1992

COMMISSION DECISIONS/ORDERS
10-29-92
10-29-92

Carder, Inc.
Carder, Inc.

WEST 92-350-M
WEST 92-351-M

Pg. 1687
Pg. 1689

WEVA 92-246
CENT 92-362-RM
KENT 91-190
WEST 9-197-DM
CENT 92-72-M
KENT 90-59-D
WEVA 92-556
KENT 91-986-D
CENT 92-42-M
CENT 91-167-M
CENT 92-227-CM
CENT 92-228-CM
WEST 91-429
WEST 91-598-R
WEST 92-350-M
WEST 92-351-M

Pg. 1691
Pg. 1721
Pg. 1725
Pg. 1727
Pg. 1728
Pg. 1732
Pg. 1734
Pg. 1735
Pg. 1741
Pg. 1743
Pg. 1746
Pg. 1747
Pg. 1749
Pg. 1758
Pg. 1768
Pg. 1770

ADMINISTRATIVE LAW JUDGE DECISIONS
10-13-92
10-16-92
10-16-92
10-20-92
10-21-92
10-21-92
10-21-92
10-23-92
10-27-92
10-28-9~

10-28-92
10-28-92
10-28-92
10-28-92
10-29-92
10-29-92

Virginia Crews Coal Company
Aluminum Company of America
Pyre Mining Company/Costain Coal
Linda J. VanTassel v. Barrick Goldstrike
Robert Foster empl. by Sun Paving, Inc.
Ricky Hays v. Leeco, Inc.
Eimco Coal Machinery, Inc.
Roy Lee Stroud v. CBM Mining, Inc., et al.
Grefco Incorporated
Southway Construction Company, Inc.
Tim Ragland v. Culler Rock Quarry
Bill Burris v. Culler Rock Quarry
Mid-Continent Resources, Inc.
Wyoming Fuel Company
Carder, Inc.
Carder, Inc.

ADMINISTRATIVE LAW JUDGE ORDERS
10-08-92

Contest of Respirable Dust Samples
Oneida Coal Company

Master No. 91-1 Pg. 1773

1992

OCTOBER

Review

granted

was

of

Secretary
T•ST

in

(Judge
of

Company

Aluminum
CENT

92-362-•I.

Review

was

Secretary
Company,
September

MSHA

Labor,

91-251.

denied

Docket

Nos.

17,

1992)

West
Energy
September

Mining
ii,
of

Labor•

Maurer,

16•

1992)

MSHA

PENN

on

behalf

92-57-D,

case

of
PENN

October:

Docket

Company,

October

following

of

No.

1992)

Secretary

the

month

the

during

cases

v.

America

in

Labor,

v.

Lasher,

(Judge

of

following

the

the

during

Joseph
92-58-D.

A.

Smith

MSHA,

Docket

month

of

v.

(Judge

No.

October:

Helen

Maurer,

Mining

COMMISSION

DECISIONS

FEDERAL

MINE

SAFETY
1730

AND
K

HEALTH REVIEW

STREET

NW, 6TH

WASHINGTON,
October

MINE

FLOOR

20006

1992

29,

LABOR,

OF

SECRETARY

D.C.

AND

SAFETY

HEALTH

(MSHA)

ADMINISTRATION

Docket

V.

CARDER,

COMMISSION

No.

92-350-M

WEST

INC.

BEFORE:

Holen,

Backley,

Chairman;

Commissioners

Nelson,

Doyle,

ORDER

BY

COMMISSION:

THE

this

In

Health

and

civil

on

default

for
of

we

Labor
of

penalty
vacate

On

October

in

which

default

order

parties

in

issued,

Carder

believed
and

order
Mine

the

The

judge's

was

issued
and

be
may
Commission

sought

settlement

the

filing
30

a

Carder's
We

cretionary

review

Resources,

I0

will
of

FMSHRC

of

days

the
1130

a

Merlin

rescind

submit

this

over

letter

to

30

treat

the

Commission

letter

as

default
order.
judge's
1988).
(September

1687

between

2,
issued

the

default

order

was

Carder

Secretary.

the

to

agreement

terminated
C.F.R.

rules,
discretionary

the

October

judge

required.

case

decision.

the

follow,

previously

the

settlement

was

29

the

the

assessed
that

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his

time

in

by

proceedings.

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with

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judge
reasons

letter

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filed

further

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response

the

for

agreement

("Carder")

The
the

of

Order

an

Inc.

petition

For

case

Judge

29, 1992.
procedural
for
petition

Commission's

by

order.

would
further

jurisdiction
September

within

this

issued

Safety

Mine

Act"),

"Mine

cause.

Secretary.

that,
explains
negotiation

settlement

no

on

§ 2700.70(a).
default

a

Secretary

consequently

Act

requests

show

to

Commission

Carder
in

the

Federal

Carder,

civil

order

remand

that

case.

that
that

the

approve

was

penalty

and

1992,

Carder

this

the

either

order

6,

Merlin

judge's
proposed
by

$691

the

(1988)(the

seq.

Paul
Judge
finding
respondent

the

or

and

1992,
answer

default

the

1992,

to

et

Law

29,

failure

under

arising

§ 801

U.S.C.

Administrative

September

Secretary

proceeding

30

1977,

Chief

Commission
Default

civil

penalty

of

Act

when

relief

from
review

U.S.C.
seeks

a

his

§ 2700.65(c).

timely
See,

§

a

with

the
decision

judge's
the

823(d)(2);
relief

default
Under

from

petition

for

e._•g•.,

Middle

29
the
disStates

C.F.R.

judgers

It

for
Circle

to

present

record.

to

the

evaluate

judge,

See,

appropriate
§

U.S.C.

this

Carder

explanation
opportunity

this

final

Ii

FMSHRC

from

default

is

appropriate,

parties'

settlement

the

to

respect

we

grant
order,

Carder's
and

for

petition

the
he

judge
shall

also

Arlene

Holen,

Chairman

Richard

V.

A.

Clair

Inc.
721

Box

Colorado

Lamar,

81052

Kristi

Floyd,

Esq.

Office

of

Solicitor

U.S.

Department

1585

Federal

1961

Stout

the

of

Labor

Bldg.
St.

Denver,

CO

Chief

Administrative

Federal

Mine
K

80294

Law

Safety

Street,

Washington,

take

agreement.

discretionary
for
proceedings

this

Paulin

J.

position
is

review,

order.

Carder,

the
its

default

matter

remand

Distribution

1730

basis

present
If

2145.

at

unable,

are

of

the
to

Blue

e._•g•.,

We

from

relief

Circle,

L.

P.O.

on

Blue

•oyce

Ira

1989).,

the

whether

See

820(k).

Accordingly,
default
judge's

with

of

afford

(November

2145

explanation

plausible

a

order.

cause

relief

with

action

merits

determine

e_•g•_,
final

that

determines

the

shall

who

warranted.

30

the
will

We

2144,

FMSHRC

have

may
show

judge's

the

to

ii

Inc.,

Carder

that

record

respond

to

Atlantic,

however,

the

from

appears

failure

its

&

N.W.,
D.C.

Judge

Health
Suite

Paul
Review

Merlin
Commission

600

20006

1688

Backley,

Commissioner

Doyle,

Commissioner

Nelson,

Commissioner

consistent

vacate

FEDERAL

MINE

SAFETY
1730

AND

HEALTH

STREET

NW, 6TH

K

WASHINGTON,
October

SECRETARY

COMMISSION

FLOOR

20006

1992

29,

LABOR,

OF

HEALTH
(MSHA)

AND

SAFETY

MINE

D.C.

REVIEW

ADMINISTRATION

Docket

V.

92-351-M

WEST

No.

INC.

CARDER,

Doyle

Backley,

Chairman;

Holen,

BEFORE:

Nelson,

and

Commissioners

ORDER

BY

COMMISSION:

THE

this

In

Health

and

civil

Default

on

default

for

civil
we

of

Labor

penalty

of

the

vacate

On

October

in

which

1992,
default

order

parties

in

issued,

Carder

believed

that

and

that

order

judge's
by
proposed

$916

6,

this

and

30

within

order.

cretionary

review

Resources,

i0

of

FMSHRC

the
1130

this

29

of

the

letter

to

the

treat

the

letter

as

judge's

order.

default

(September

1988).

1689

the

the
order

default

was

Carder

Secretary.

when

§
relief

30
Commission

2,
issued

previously

the

to

agreement

U.S.C.
seeks

a

timely
See,

his

judge

from

a

the
decision

judge's
the

with

§ 823(d)(2);
relief

default
Under

2700.65(c).
review

discretionary

decision.

the

follow,

October

between

terminated
C.F.R.

rules,

for

the

assessed
that

dated
his

time

the

required.

case

1992.

29,

the

by

proceedings.

letter

settlement

was

procedural

days

will

We

the

judge

negotiated

with

filed

reasons

rescind

in

("Carder")

further

a

Merlin

response

petition

a

Carder's

§ 2700.70(a).
default

filing

for

agreement
at
that,

over

The
the

For

of

Order

an

petition

cause.

case

Act"),

Inc.

penalty

received

submit

further

no

this

issued

Safety

Mine

"Mine

Carder,

Secretary.

Judge

would

Secretary

Commission's

by

the

Merlin

show

explains
negotiation

settlement

jurisdiction
on
September

the

sought

Commission

settlement

Carder
in

the

issued

Act

maybe

a

approve

was

judge's

was

requests

that

case.

seq.

to

Commission

the

1992,

order

remand

and

order

Carder

(1988)(the

civil

the

either

the

default

and

1992,

Federal

the

under

Paul
Judge
respondent
finding

answer

or

consequently
The

Mine

to

et

Law

29,

failure

801

§

U.S.C.

Administrative

September

Secretary

30

1977,

Chief

Commission

arising

proceeding

penalty

of

Act

from

petition

for

e._•g•.,

Middle

29
the
disStates

C.F.R.

judge's

It

for
Circle

to

evaluate

to

warranted.

See,

determines

action

U.S.C.

the

FMSHRC
merits

of

afford

Carder

(November
explanation

this

the

Blue

Circle,

ii

from

default
to

parties'

settlement

we

Carder's

grant
order,

and

petition
this

remand

for

Holen,

•hairman

Distribution

J.

Paulin

Carder,

Inc.
Box

721
Colorado

81052

Kristi

Floyd,

Esq.

Office

of

Solicitor

the

U.S.

Department

1585

Federal

1961

Stout

Denver,

of

Bldg.
St.

CO

80294

Chief

Administrative

Federal

Mine

1730

Labor

Street,
Washington,

Law

Safety

&

N.W.,

K

D.C.

Judge

Health
Suite

Paul
Review

Merlin
Commission

600

20006

1690

Nelson,

position
is

judge
shall

discretionary
for

Clair

its

also

take

agreement.

matter

order.

L.

Lamar,

the
he

the

of

present
default

If

appropriate,

unable,

are

basis

§ 820(k).

this

P.O.

2145.

is

Arlene

Ira

at

from

Blue

e.g•,

We

the
to

relief

FMSHRC

the

on

explanation

See

1989).

opportunity
final

plausible

a

order.

cause

2145

whether

respect

have

may
show

2144,

relief

with

Accordingly,
default
judge's

with

Carder

judge's

determine

e__=g•,
final

that

appropriate

shall

the

to

will

We

who

judge,

that

record

the

record.

present
to
the

the

respond
Ii
Inc.,

Atlantic,

however,

30

from

appears
failure

its

proceedings

Commissioner

review,
consistent

vacate

ADMINISTRATIVE

LAW

JUDGE

DECISIONS

FEDERAL

MINE

SAFETY
OFFICE

OF

ADMINISTRATIVE

2

SKYLINE,
5203

LAW

lOth

FLOOR

LEESBURG

PIKE

VIRGINIA

CHURCH,

FALLS

REVIEW

HEALTH

AND

COMMISSION

JUDGES

22041

L}CT 3 1992

OF

SECRETARY

PENALTY

CIVIL

LABOR,

PROCEEDINGS

HEALTH

AND

SAFETY

MINE

Docket

(MSHA),

ADMINISTRATION

Petitioner

No.

92-246

WEVA
46-04702-03562

No.

A.C.

v.

No.

Docket
COAL

CREWS

VIRGINIA

No.

A.C.

COMPANY,

WEVA

92-247

46-04702-03563

Respondent
No.

Mine

14

DECISIONS

Patrick

Appearances:

L.

of

Petitioner;
David
J.
Hardy,

Office

Esq.,
Labor,

DePace,

Department

U.S.

the

of

Arlington,

Solicitor,
Virginia,

for

the

Before:

West

Virginia,

Judge

Koutras
of

Statement

proceedings

These

filed

penalties
section

to

30

1977,

C.F.R.

§

and

hearings

assessment

violation

Health

92-246,

of

mandatory

of

C.F.R.

30

No.

Docket

Act

concerns

standards

safety
and

pursuant

respondent
and

civil

of

92-247,

WEVA

standard

safety

75.400.

were

posthearing

filed
in
the

WEVA

No.

Docket

mandatory
75.208,

filed

respondent

The

Federal

820(a).
and

Proceedinqs

for
proposals
the
against
Mine
Safety

petitioner
the

of

(i),
alleged

an

concerns

30

§

violations

75.220(a)

§

of

U.S.C.

alleged
§

by

ll0(a)

Charleston

Kelly,

Respondent.

the

the

concern

the

&

Jackson

Esq.,
for

of

course

held

notices

timely
in

Charleston,

and
briefs,
my adjudication

of

The

Virginia,
their

considered

have

I

and

contests

of
West

these

answers,

parties

arguments

cases.

Issues

issues
constitute

The

practices
(2) whether
substantial
result
the

of

cited

the

(S&S);

presented

(3)

the
respondent's
and
standards;

the

of

were

cited

Unwarrantable

(4)

the

appropriate

1691

cited
standards;

significant

alleged

the

whether

the

whether

(i)

are

violations
violations
alleged

violations
failure
civil

conditions

or

and
were

to

comply

penalties

the

with
to

be

assessed

for

penalty

violations

the

criteria

assessment

Applicable

Statutory

I.

The

Federal

Mine

30

U.S.C.

§

et

2.

Sections

3.

Commission

301,

taking

into

in

section

found

and

ll0(i)

Requlatory

Safety

and

civil

the

account

of

the

Act.

ProviSions

Health

Act

of

1977,

of

the

e t

s_e_q.

se•.

104(d)

(i),

Rules,

ll0(a),

and

C.F.R.

§

29

ll0(i)
2700.1,

Act.

Stipulations
The

parties

i.

The

No.

2.

The

respondent

and

3.

The

presiding

judge

has

Gerald
issued

the

the

citation

these

stipulated

to

Mine

14

is

following

the

owned

and

mine

the

(Tr.

operated

7-8):

by

the

subject

are

the

to

jurisdiction

respondent.

to

hear

acting

in

Act.

and

decide

matters.

4,

MSHA

Inspector

capacity
5.

when

True

served

on

6.

The

for

the

7.

The
a

of

the

respondent

L.

of

history
print-out
cited

The

respondent
inspector.

an

good

orders

civil

official
orders.

properly

were

penalty

question

average
violations

will

sized

assessments

not
in

continue

to

mine

adversely
business.

operator,

shown

as

in

and
MSHA

an

P-l).
and

faith

his
and

agent.

ability

conditions
in

citation

and

its

in

prior
(Exhibit

of

was

contested

appropriate

is

respondent
low

Cook

or

violations
alleged
the
respondent's

computer
8.

copies

imposition

affect

has

he

practices

within

times

abated
fixed

issued

significant
by MSHA

were

the

by
by

the

the

Discussion
Docket

No.

This

WEVA

case

concerns

substantial
Gerald

(S&S)
L.

a

violation

and

the

92-246

Cook
of

condition

at

a

Citation
7:15

mandatory
or

section
No.

a.m.,

safety
practice

104(d)(1)

3740213,
April
16,
standard
cited
is

1692

1991.
30

described

and

Inspector

inspector

The
C.F.R.

§
as

75.220(a)(i)
follows:

cited

approved

The
the

the

that

of

face

and

bolts

Following

issuance
the
104(d)(1)
a
citing

April

1991,

16,

included

reference
cited

a

The

order.
The

visible

to

mining

on

ist

This

violation

Inspector

Cook

and

3

to

24

feet

in

off

the

and

April

and
of

he

the

follows:

and

inby

feet

last
with

posted

not

a.m.,

about

support

observed

prior

condition

No.

observed

deep

16

length

in

about
section

6

mains

roadways

and
on

overcast
feet.
1,000
accumulations
conditions
wet

following

up
from
2
ribs
also

locations

to

12

in

at

with
their

rock
this

about

is

entry
clean

areas

up

1693

1991,
Order,

the

follows:

present
and

70

mixed

been

16,
of

from

to

6

I0

areas.

was

inby

had
some

these

area

75.400.

left
return
accumulation

This

in

inches
this

the

3739989,

alleged

an

accumulate
wide
and

in

(003-0).

starting
extending

and

to
feet

18

and
Some

citing

allowed
to

placed

and

cycle

is

was

No.

C.F.R.
§
issued
April
in
support
described
as

3740213,

and

Order

30

practice

or

(I)
1991,

previously

the

dust

left

29,

standard

safety

coal

pushed

not

104(d)

inches

been
had
Accumulations

cleaned
return

as

condition

This

section
on

on

Citation
condition

coal

Loose

support

described

20

areas

This

(i)

cited

the

Cook

relied

104(d)

in

advanced

about

7:18

75.208,

§

roof

section.
section.

a

concerns

Inspector
of
mandatory

section

citation
is

Cook

at

C.F.R.

face

and

and

create

92-247

case

by

on

30

the

feet

20

3740214,

permanent

in
last

Inspector

No.

advanced

(003-0)

WEVA

had

support
warning.

started

left

No.

issued

roof

permanent

readily

Docket

left

that

of

of

row

turned

crosscut
row

place

6

about

citation,

the

Order

previous
or
practice

condition

working
last
inby

No.
feet

15

of

on

indicated

evidence

and

openings
supported.

"S&S"
violation
the

to

5

advanced

not

was

4-RC-5-76-

compliedwith
working
place
15(sic)
inby

about

been

past

that

No.

No.

supported

traveling

section

in

advanced

had

intersection

issued

not

section

not

right

bolted

not

(permit
being

Plan
was

been

had

crosscut

that

Control

2-20-91)
(003-0)

Left

ist

row

Roof

dated

11069-10

had

along
been
the

not

inby

feet

about

for

in

some

from

ranging
(This
dry.
program).

of

damp
company

the
to

is

Petitioner's

Section
MSHA

No.

Gerald

L.

April
previous

16,

Inspector
the

mine

on

the

began

section

foreman

and

that
1

through
or

No.

5

who

was

he

observed

which
No.

No.

entry

6

that

approximately
turned
right,

the
feet

15

working

continue
rode
in

No.

•hat

a

working

face

arrived

openings.
stated

that

(Tr.

19-25).

and

entry

6

had

indicated
that

this

that

the

right

was

had

advanced

right,

off

respondent

long

as

Cook

stated
that
advanced
that
the
crosscut
been
advanced

been

that

have

a

of

mined
posts

row

was

entries

in

concluded

that

support.

mine

(Tr.

to

the
had

work

had

been

He

confirmed

stated

that

finding

on

area

confirmed

the

crosscut

that

crosscut,

or

across

the

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cleaned

have

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been

mined
in

performed
that

this

was

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the
and

6

No.

supported
area
without

active

the

of

observed

from

that
an

heading,

mouth

No.

not

and

the

Cook

the

and

two

He

right

crosscut

the

that

Mr.

the

This

plan.
stated

opening.

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and

any
of

area

7

he

and

the

26-27).
Cook

substantial"
A.

into

permanently

support,

but

installed

and

roof

He

either

which

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that

roof

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was

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shoved

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bolts,
of

one

any

control

the

advanced.

not.

were

mining

by

pass

roof

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could

coal

some

Mr.

itself

before

roadway

the

of

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He

support.

row

also

to

opening
of

last

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6,

not

were

temporary

any
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had

other

areas

of

inby

violation

No.

cited

the

someone

the

heading

intersection

4

No.

6

the

page

the
the
Patton

supported.
violation
of
an
intersection
advance
past
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plan
(Exhibit
P-3),
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to
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3

confirmed

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Mr.

copy

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paragraph

supported,
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identified

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at

Richard
Mr.

inby

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section
Cook
from

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he

representative
examination.

6

day

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the
roof
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the
No.
7 entry,
had
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feet,
roof
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was
concluded
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these
conditions
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roof
control
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plan
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openings
must
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mining
can
back
and

the
of

travelling

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inspection

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copy

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75.220•a)

an

faces,

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he

§

confirmed

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to

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he
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he

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Cook,
1991,

C.F.R.

identified
issued
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working

6

30

He

inspected

he

Evidence

and

3740213

day,

crew.

citation

104(d)(1)
stated
No.

Citation

104(d)•l)

•isited
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Testimony

it's

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history
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of

fatalities.

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past

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based

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proved
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his

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the

they

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situation

opening

(Tr.

that

1694

have

to

want

this

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back

fatalities

several

as

and

28-29):

one

where

supported.

the

to
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in

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this

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.

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be

to

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in

located
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order

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the

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they

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Bailey

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out

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section,

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entry.

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that

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6

be

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plan
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had
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supposed

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roof
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mean.
parts
situation,
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they

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to

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plan
everybody

by

the

know

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informed

because

me

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stated

section

a

to

supposed
they're

Cook

with

the

what

they

Mr.

spoke

on

way

mine
cited

the

failure"

that

know

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plan

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to

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in
top

plan,

they're
supposed

is

everybody

them

they're
plan

plan

known
to
deal

be

didn't

by

for

support
Cook

Mr.

control

roof

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to

because

violate

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up

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has

roof

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the
loose

approved
violate
they

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me

it,

and

whole

someone

into

32-33):

when

And

in

unsupported

coal

to
or

roof

that

32).

his

that

have

tell

stipulation

And

(Tr.

they
can

of

"it
did

top
the

evidence
any

visit

miners

further

that

(Tr.

broken

based

section

that

on

And

done

has
operator
It's
supposed

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Because

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that

first

he

that

following

the

on

pushing

evidence

you're
the

unsupported
area

saw

a

He

Cook

Mr.

the

the

any

top,
exposed

to

in

top,

killed".

confirmed

He

likely
fatalities

had

unsupported
have
can
they

29).

one

could

reasonably

company

(Tr.

it

pe•anent

person

exposed

was

fell,

have

unsupported

"the

area

it

32).

(Tr.
stated

Cook

Mr.

a

he

observe

areas

to

However,

this
his

was

not

miners

getting

no

no

when

that

unsupported

saw

we

under

are

of

would
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injured
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unsupported

lot

your

where

30).

(Tr.

past

extra

go

a

If

fact

and

you

through

scoop
and

been

fall

there.

was

breakthrough,
had

violation

observed

he

that

and

taken

the

exposing

criteria"

our

fall
while

back
before.

and
that
fatality"
unnecessarily"
top
miners
anytime

for
a
asking
to
unsupported
that
explained
not
roof

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bit

roof
"if

a

could

the

little

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we

done

of

you're

them

giving

chance
further

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that

even

had

"because

and

you're

your
it

--

believed

fatality

this"

that

miners

had
have

we've

and

fact

the

which

Cook

a

•cause

to

swinging,

supports,
Mr.

killed

miners

order

that

he

crew

and

and
roof

he
was

and

support

no

what
he
confirmed
roof

one

35-36).

(Tr.

case

had

up

to

no

one

observed
that

"was

the

control

opening

spoke
Since

they

and

had

created

the

without

a

violation

had

confirmed

that

temporary

supports

and
both

of

about
cited

to

know

which

the

any

Bailey's

Mr.

Cook

to

morning
did

(Tr.

40).

supposed
to

6

to

observations
in
was

Bailey

them

for

his

location

he

location

before

that

he

but

he

or

whether

and

before

entry

made

(Tr.43-44).
is

allowed

and

he

explained

procedures

he

recall

entry

to

in

the
followed

(Tr.

bolts

mine

a

distinct

two

were

No•

6

confirmed

heading,

two

(Tr.

55).

the

of

rows

illegal

to
He

roof

mine
stated

that

under

to

make

sure

(Tr.

42).

his

the

the

of

Cook
roof

at

the

both

measured

entry
stated

bolts,

control

from

of

roof

plan
bolts,

his

tape

and

row

of

angle

an

roof

in

was

Mr.

he

other

asked

of

with

his
that

he

or

the

he

the

45-47).

50-54).

Mr.

which

the

No.

6

mouth

of

the

bolts
into
the
No.
6 to
that
the
coal

Mr.

were

to

No.
No.

the

confirmed

not

supported,

break.

6

crosscut,

No.

7

break,

accumulations

1696

namely,
also

supported

were

it
and

would
vice

in

the

that

He

heading

he

and

under

Cook

7

identified

Cook

observed,
standing

while

measurements

(Tr.

made

row

last
made

in

he

entry
up
the

the

he

mine

was

he
he

last

squared

to

as

and

the

was

from

areas

and

if

that

with
been

of

plan

and

assumed

advanced
told
him

as

map
(Exhibit
R-3),
locations
which
he

roof

roof

the

known

be

do,

he

wanted

from

to

when

both

side

to

that

violation,

measurements

last
there
the

feet

four

made

of

stated

Cook

be

face

or

two

row

which

an

heading
He
initially

violation

the

and

mined

who

40).

not

Patton
he

measurements

to
Referring
unsupported
how
he
explained

the

Mr.

because

not

Mr.

6

was

the

his
the

it

issued

issuing

could

No.

measurements.

but

them

confident

was

supported

or

was

(Tr.

he

section,

supposed
approved

requires

the

at

entry,

1

Mr.
6

roof

No.

he

and

the

violation
an

not

but
not

mined

is

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did

that

on

It's

in

he

is

been

plan

plan"

that

break

arrived

no
was

danger

question,
stated

37).

saw

it

that

He

the

(Tr.
he

roof

38).

"the

the

that

(Tr.

control

stated
7

to

area

company.
what
it

know

roof

and

entries.
No.

the

No.

the

the

to

Cook

Mr.
No.

and

crews

Cook

that

in

one

issued

the

because

,

an

no

Mr.

any

had

past

and

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of

area

s•

he

confirmed

just

the

after
abate

that

the

about
mine

37).

knows

that

failure
coal

any
also

had

when

36).

kn•w
fir:

confirmed
indications

Cook

that
He

(Tr.

returned

intersection

confirmed

He

unwarrantable

it

permanently

Cook

crew

know

not

supposed

evidence

no

matter

the

not

assumed

(Tr.

installed

next

or

the
that

cut
crew

they

occurred

been
Mr.

saw

that

were

he

Mr.

had

attend

Mr.

he

38).

crew

that

not

dripping

and

(Tr.

believed

by the
they're
according

had

roof

fall,

areas

it

when

"•oss-examination'

On

evidence

should

that

entries

done"

was

the

not

was

Cook

supporting

that

citation,
vi•ation,

this
Mr.

up,

it

way

%uggested
,the

that

spoke

acknowledged
that
were
they

crew

plan

him

tell

the

not
versa

break

have

were
as

a

roughly

20

barrier

preventing
stopped

accumulations
know

to

accumulations

Mr.

Cook

clarified

that

miners

two
by the
had
to
they

heading
He

when

the

No.

In

response

finding,

6

Yes.

Mr.

Hardy:

Judge

Hardy:

The

Witness:
is

further

would

to

go

on

the

in

case,
the

violation

areas

in

to

what

the

had

to
going
you're
saying?

fact

that

--

Ahead.

Go

answer.

your

(Tr.

the

times

you

expose

them

up

having

to

whether

The

exposed

producing

coal,

not

know

cited

and
to

the

If

the

entry
keep

of

not.

or

more

normal

two

break
to

due

area

the

is

fact

it.

to

miners

And
to

chances

more

next

the
were

miners

roof

the
were

or

before
to

be

of
did

business

would

have

not

roof

areas

have

been

cleaning
abandoned

the
know

the

started.
had

miners

for

up

they
66).

the
would

violation
He
the
(Tr.
mark
shown
"X"
as
itself,
by an
In
the
was
supported.
permanently
and
the
straight
right
heading
needed
The
not
heading
supported.
into
under
the
break
from
going

abate

R-3),
to

he

but

mining

where

areas

to

course

unsupported
would
step

support

(Exhibit
6

of

going

them.

intersection

No.

that

miners

had

leads

timbered

the

area

"S&S"

regardless

that

the

on

did

mined,

map

the
mouth

you
were

you

Is

finish

S&S

You

that

the

in

you.

can

in

is

the

be

whether

not,

or

you

an

roof

and

to
be
supported
roof
unsupported

not

Please.

areas

that

tractor

is

Cook,
area

Thank

active

of

that
mine

all.

started

to

have

instant
ahead

is

done.

have

confirmed

did

the
tracks

been

his
concerning
(Tr.
62-64):

at

violation

S&S

an

stated

been
those

to

S&S

accumulations.

coal
still

Mr.

Well,

mining

already

follows

this
violation.

saying

sequence
confirmed

He

59).

in

an

miners

Cook

bolts.

across
or

scoop

saying,

It's

type
getting

the

had
coal"

questions

miners

Yes.

already

them

because

56).

someone

of

tired

as

That

we're

consider

not

of

row

(Tr.

that

stated

as

it's

them

crew

to

of

what
this

Mr.

(Tr.

Koutras:

Mr.

there

entry

It's

A.

last
there

"ridge

the

rubber

you're

What
Q.
evidence
this
write

He

of

Cook

Mr.

the

got

and

the

break

"evidence"

intersection

down

he

the

his

the
that
consisted

previously

but

into

"S&S"
previous
testimony
by stating
roof
to
the
when
areas
unsupported
exposed
they
that
and
he
are
concluded
openings
unsupported,
in
roof
the
area
No.
6
by the
unsupported
pass
into
coal
the
break
loose
was
(Tr.
pushed
57).

are

stated

the

before

the

did

deep,

entry

how

pass
that

inches

24

68).

1697

Section

104(d)

(i)

Inspector

observing

Order

Cook
neither

that

contained

areas

section

No.

confirmed

C.F.R..•

75.208.

issued

he

the

order

cited
previously
devices.
warnings

the

visible

requires

30

that

of

any

75.208,

3740214,

barriers

to

after

unsupported

roof

s•ated

He

prevent

that

from
persons
going
•nder
or
visible
unsupported
roof,
devices
such
as
warning
reflectors
or
ribbons
to
warn
miners
surveyor's
not
to
under
pass
roof.
In
the
case
at
unsupported
barriers
or
hand,
reflectors
should
have
been
located
at
the
last
row
of
bolts
at
both
the
No.
6 heading
and
at
the
No.
6 to
No.
7
crosscut
(Tr.
69-70).
Mr.
Cook
confirmed
that
these
areas
were
unsupported
a
of
part
the
active
and
he
working
could
find
section,
no
visible
warnings
or
barriers
to
alert
miners
physical
about
the
areas

(Tr.

unsupported

71).
Cook

Mr.
at

(Tr.
A.

them

By

that

this

area

and

he

explained

the

basis

having

any

for

his

"S&S

finding

follows

as

71-72):

was

be

from
wasn't

is

law

is

area

of

provided

means

to

could
supported,
person
from
under
before
supported
top
under
There
supported
was
top.
That
is
supported.
why we
place

out

it

this

kind

wasn't

out

showing
why

not
area

a

in,

they

so

unsupported.

So

miners

make

can

don't

you

need

into

he

realized

no

that

is
this

that

this

past

go

that

means
--

aware

to

show

go

area.

Why
a

did
you
fatality?

have

Because
been

in

the

evening

shift

might

have

mined

shift

could

have

thought

that

since

Q.
cause

A.

or

to

on

imminent

wasn't
Under
a

fatality

likelihood

of

evidence
was

no

So
was

the
day
there
flag
They

no

supported.

was

they

to

could
it
looks,

way

area.

there

would

realize

exposing

top,

themselves

right

top
danger,

and

imminent

to

show

and

but

mining
occurring?

the

that

fall?

roof

a

there.

evidence
be

normal

the

that

before

supported

anybody

here,

area

face

would

enough

Q.
of

bad

and

shows

likely

top.

no

There
bad

reasonably

was

provided
it

the

the

under

the

was

roof.

extremely
extremely
an

that

from

was

There

A.

up

this

means

As

into

unsupported

What

no

area.

means,
out

was

that

is

that

venture

the

Q.

there

visible

no

might
they

determine

I'm

show

to

imminent

to

danger,
top
there

operations,

1698

I

condition
was

not

that
fall.

what

area

it

If

fall
was

issued

this

area

going

to

the

was
was

have

would

in
a

specialist

a

this

occur.

likelihood

an

Again,

A.

roof,

increasing
say
have

that

And

this

it

the

is
to

exposed

provided
the

Mr.

Cook

is

effect,

part

of

what

needs

the

If

you're

parts
parts

unsupported
requirement
respondent's

the

law

pertain

aware

the

1991,

16,
intersection

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considered

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7:00

he

and

confirmed

a.m.,

that

that

Mr.

last

the

Mr.

in

break

the

legend

days,
footage.
morning

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of
the

reflects

map

have

in

been
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6

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the

April

Saturday,

on

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mine

130-141).

the

from

and

reports

those

14
been
concluded

Argon

has
stated

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of

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measured

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violations

the

and

6

have

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records,
cut

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could

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that

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than

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(Tr.

he

familiar

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up

day

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in

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to

row

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129).

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cross-examination,

see

the
past
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it"
(Tr.

that

mining

(Tr.

(Tr.

of

Argon

153).
have

bolts

roof

to
Mr.

20

feet,

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6

7

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and

(Tr.

feet

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No.

7,

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to

143Mr.

Steve

the

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7

1991

on

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have

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was

map

questions

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response
may
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stated

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advanced

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in
map

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may

153).

contained
mine

taken

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has

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made

to

testified

that

1991,

R-3),
been

have

(Tr.

which

break,

141-145).
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No.

cuts

measurement

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late

taken

intersection

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144).
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entry
(Tr.

had

roof

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might

stated

15,

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maximum

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believe

not

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7

With
it

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mining

speculated

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and

break

map
must

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cut

remember".

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of

16,
April
at
mining
Argon

to

7

He

Up yet,

(Exhibit

map

foot

like

34

1991

and

but

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cited

two

6

supported.

can't

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the
No.

ten

or

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and

years.
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violations
contested
question,
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citation
and
orders
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read
by
Inspector
mine
the
that
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(Exhibit
R-3),
map
prepared
locations
of
determine
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to
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notes
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used
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surveyors

April

that

three

the

mine

the

drove

president,
respondent's
in
engineering
mining
degree
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he
and
University,

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Guvenc

concerning

questions

to
response
in
No.
the
in
marked
are
orange
recalled
Patton
Mr.
and
6 entry
No.
the
that
stated
he
break,
it
in
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with

roof,
126).

(Tr.

marked
stated

he
at

were

unsupported

127).

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a

for
the

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Mr.

locations

holds

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was

was

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back,

one

(Tr.

z/uess"

he
he

where

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one

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measurements,
feet

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reports

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he

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1704

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information

beyond

to

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he

some

155-157).

into

there.

two

or

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to

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mined

prepare

corner

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Findinqs
Docket

No.

Fact

WEVA

92-246

Violation,

of

Citation

roof

plan,

suitable

to

mining

roof

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inspector
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respondent's

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respondent's
Cook

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Inspector

not

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conditions
in
fact

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plan

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1991,

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in

of

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by the
inspector
1991
February
20,
the
specific
plan
4,
pg.
paragraph
on

dated

found

inspections".

received

what

unusual

counsel
hearing,
respondent's
to
be
a
of
4
purports
of
copy
page
control
plan
3
of
(Tr.
90-91).
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the
same
in
found
the
roof
language
control
for
the
inspector
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of
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last

applicable

No.

if

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plan

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observing

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area

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sentence

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follows:

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intersection.

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petitioner

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course

and

at

followed

states

Exhibit

on

used

3740213,

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3.
that
Openings
permanently
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control
No.

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citation

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3740213,

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Cook

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respondent
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provide
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mining

Conclusions

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no

8

(Tr.

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that

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unsupported,
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Counsel
locations
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/

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48).
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According

official

Doug

Pauley

(Exhibit
the
during

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Mr.

Pauley

"Doug

supports

temporary

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conditions

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Patton,

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cited

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reconstructed

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Mr.

R-3),

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Inspector
have

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(Tr.

129).

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characterized

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might

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concerned,

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respondent's
that
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Further,
(Tr.
148).

about.

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row

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intersection
identified

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intersection

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bolts

reports.

were

he

four

had

Cook

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Argon,
president
company
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view
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the
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after
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and

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Mr.

Guvenc

in

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37).

he

different

witness,

a

violation,

mine

that

Director

However,

Inspector
the

plan,

be

Cook

abate

in

was

1991,

16,

location

would

issued

(Tr.

suggestion

where

respondent

Richard

boss

to

one
can

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he

you

Safety

numerous

after

in

or

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90).

been

supported

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of

confused

148).

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were

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(Tr.
installed

next

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had

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up.

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respondent's
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put
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supports

temporary
and

this

all

after

hours

able

was

(Tr.

were

one

roof

plan
respondent's
Pauley

testify

comments,

bench

to

go

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Mr.

that
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hearing

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to

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intersection
maintained

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certain

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Bailey
might
158).

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(Tr.

Although
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16,

that

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issuing

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assembled

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(Tr.

on

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it

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order

42).

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citation

crew

so

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entry,

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Patton
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Mr.

him

and

in

was

testified

credibly

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order,
could
(Cook)
speak
to
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at

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both
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mining

1991,

inspection

the

make

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he

Bailey

in

asked

Cook

that

Mr.

was

to

and

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his

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that

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about

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citation,

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point
testify,

visit

testimony

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that

Bailey

Clyde

about

them

his

findings

36).
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Inspector

Cook

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The

question.

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6

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break,

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plan

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inspector's
testimony
examination
by the
preshift
and
Mr.
Kennedy
(Exhibit
R-2),

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confirming

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cited

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and

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supported

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(Exhibit

R-3),

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observations

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7
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Docket

No.

•act

this

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WEVA

92-247

Order

of

75.400,

order,
provides

materials,

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ignition

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103).

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to

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acknowledged

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of

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combustibility

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may

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(Tr.
that

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absence

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(Tr.
105).
deposition,

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Enterprises,
wet

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103).

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counsel

of

support

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(Tr.

make

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inspector
he

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coal

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the

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combustible

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Inspector
of

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source

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respondent's

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dismissed

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Cook

Mr.

answer,

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be

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164-165).

to

was

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However,

to

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C.F.R.

testimony
and

accumulations

way

30

combustible
not
be
to
permitted
electric
on
equipment

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acknowledged
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accumulations

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deposited

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of

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locations

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75.400.

finding
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at

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observations

to

(Tr.

§

after

up

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164).

which

dust

C.F.R.

dust

coal

conceded

(Tr.

evidence

AFFIRMED.

follows:

in

counsel

30

workings,

Indeed,

respondent's

cited

cleaned

questions
clearly

it

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coal,

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active

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3739989,

coal

dust,
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Coal

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I

No.

loose

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the
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of

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issued

Cook

Inspector

Cook

and

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of

accumulations
described
§

preponderance

222

(February
did

not

1991),

preclude

a

violation
combustible.
ComDanv,

7

969

(May

also:

FMSHRC

1117

where

conclude

and

respect

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true
believe

deposition
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finding.

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credible

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unrebutted

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view

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Mr.

Cook's

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combustible

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section

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by
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while

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and

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me

testimony

foregoing,

the

of

evidence
rebuttal

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absence
still

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nonetheless

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and
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establishes

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pgs.

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I
the
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were

submitted
assertion
with

page
Cook's

Mr.

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accumulations

the

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violation

of

issue

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to

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coal
notice

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his

to

Mininq

1985);
965,
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Cook's

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Mr.

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as
charged
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With
regard
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that

observed

Commission

be

FMSHRC

12

Secretary,

the

may

(August

1120-1121

still

are

Coal

Black

v.

pgs.

v.

accumulations
Diamond

wet

Secretary
at

Company

1990),
accumulations
I

since

75.400,

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Power

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section

of

of
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AFFIRMED.

Siqnificant
A

"significant

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30

of

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illness
National

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Mathies
In
Commission
explained
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FMSHRC

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in
result
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1981).

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1984),

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of

facts

likelihood

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(April

to

establish

that

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term

prove:

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safety
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underlying
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the

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to

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substantial
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health

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§

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substantially

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of

(i)

104(d)

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contributed

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(3)
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further

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6

1984).

of
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U.S.

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In

support

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dripping
of

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"ride

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Cook

and

i0

FMSHRC
FMSHRC

the
back

confirmed
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past

your

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prior

498
2007

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roof

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1711

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facts

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confirmed
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while
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nature

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respondent's

at

opening

personally

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and
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Company,

on

Coal

account

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did

Ohio

FMSHRC

1984).

Texasgulf,

v.

&

6

based

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into

accidents

mining

be

and

cause

and

Inc.,

particular

must

the

3740213

Inspector
serious

(July

1834,

in
that,
104(d)(1),

Mining

Steel

there

FMSHRC

Company,

U.S.

any

substantial

6

Co.,

Mining

Steel

the
surrounding
violation,
of
Labor
involved,
Secretary
(April
1988);
Youghioqheny
(December
1987).
No.

must

(August
1984);
FMSHRC
1574-75
1573,

in

of
section
violation
to
be
significant

a

1125,

element

hazard
which

the

emphasized

language

hazard

a

have

We

FMSHRC

Secretary

the

event

an

Mining

Steel

with
the
contribution

accordance
it
is
the
effect
of
substantial.

1866,
Inc.,

U.S.

third

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that
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result

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a

7

Inc.,

follows:

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formula

injury."
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an

Citation

Company,

stated

We
of

Mining

Steel

Commission

fall,
supports"

and

(Tr.

if

the

that
an

immediate

that
it

he

was

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it

29).

Further,
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he

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"the

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up

(Tr.

63).

having

again

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them

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to

chances

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acknowledged
concerned

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miners
times
to

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through

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fact

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type
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to

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and
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in

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roof

on

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mine

them"

roofs

can
fall
without
inherently
dangerous
good
Consolidation
Coal
6 FMSHRC
37
warning.
Company,
34,
(January
has
also
stressed
the
fact
that
It
roof
remain
falls
the
1984).
in
of
death
cause
mines,
Roof
leading
underground
Mininq
Co.,
1211
& n.
8
4
FMSHRC
1207,
(July
1982);
Halfway
Incorporated,
8
FMSHRC
13
Coal
supra.
Consolidation
1986);
8,
(January
Company,

and

are

In

Consolidation
affirmed
which
pattern

my

6-months,

and

the

Commission

bolting
period
injured

of

during

there

period

does

likelihood

Mininq

Steel

concerning
a
along
supply
that
fact
"[T]he
not
facto
•so

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of

inc.,

Company,

away,"

and

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that
found
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a
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it
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the
roof
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his
belief
that
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condition

he

the

inspector

Judge

1984),

significant
that

foreman
and

In

measurements.

(May

1986),

(1984),

in

Judge
support

of

an

constituted

had

his

of

not
the

at

8

issues

a

operative
into

Coal

substantial

and

finding
with
of

directly
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that
hazard
citation

was

FMSHRC

1369

(May

1366

condition

was

not

from

"right

unsafe

because
certain

taking
8

FMSHRC

820

819,
6

Company,
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mine

a

fall

FMSHRC

1

condition

roof

in

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Commission

concerning

upheld
roof

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the

fact

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precise

Commission

stated

exposed
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at

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12:

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reasonable

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3FMSHRC

supra,
6

FMSHRC

I

agree

testimony
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section,
in
intersection

it

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to

occur,

I
or

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believe
miners

would

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that

of

circumstances,

No.

3740214
Cook
based
visible
a

of

the
in
coal

that

anyone

roof

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could
Cook

believed

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that

visible

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roof
a

of

miners

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hours
fact
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no

before
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entry.
warning

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safety
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and

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ventureout

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Kennedy's
testimony
installed
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No.
6
tape
two
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warning

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examiner

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confirmed

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Inspector
Mr.

6

areas.

out

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to

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operations
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could

the

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under

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finding
device
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No.
6 to
been
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had

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serious

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and
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did
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Mr.

his

warning

entry

6

accumulations
in
were
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question
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No.

I
was

that

reasonably

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intersection

supported

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of

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exposed
occurred,
be

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reasonably

was

these

AFFIRMED.

absence

roof
where

Co.,

would

fall

roof

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injuries

IS

beyond

also

Gypsum,
Inc.,

1984).

intersection
If

sustain

Inspector
the

fall.
it

Cook's

IT

Mining

Steel

(July

the

roof

that

Inspector

U.S.

but

National

Cook's
credible
and
unrebutted
Inspector
in
the
context
of
continued
mining
operations
miners
would
be
to
the
hazards
of
a
roof
exposed
twocited
roof
areas
to
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in
the
No.
6 entry,
and
that
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roof
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back
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intersection.
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past
supported
believe
one
conclude
that
miners
reasonably
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825;

1574

citation,

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ride

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at

1573,

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fall

to
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prior
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1713

I

take

note

Inspector
when
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of

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Mr.

was

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it

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Under

fall

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circumstances,

No.

3739989

on

unsupported
a
miner,

of
injuries
inspector's

or

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of

fall

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were

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roof.
believe

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reasonably

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AFFIRMED.

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In

of

absence

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(Tr.
any

in
substantial

the

petitioner's
granted
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did
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not

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Respondent's
entry
(Tr.

19).

modify

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bench,

97),

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in
of

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the

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and

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Failure

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Zeiqler

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that

Under

to

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modified

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request,

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any
believe

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16-17).

he

and

case,

violation

herein

(Tr.

he

104-105)
ignition
damp return

the

determined

now

substantial

methane,

of

absence

of

support

and

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violation

present

inspector
this

petitioner's
by the
inspector

made

In

97).

ignitions

of

coal

wet

16,

hearing,

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any

liberation

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of

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(Tr.
that
the
stated
not
was
significant
confirmed
that
that

the

definition

of

Coal

Company,

Act,

1969

it

and

Violations
failure

was

(1977),

decided

unwarrantable
7

in

held

IBMA

280

pertinent

part

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follows

at

295-96:

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light

inspector

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reasonable

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than

violation

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(December

which

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to
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mandatory

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have

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or

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a
or

lack
lack

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care.

several

concluded

that

constituting
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operator

existed

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foregoing,

was

comply
operator
practices
practices

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the
find

caused
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with
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standard

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failure,"

of

should

subsequent
application

decisions

and

Commission
it

further

of

concerning
the
refined

term

the

"unwarrantable

and
this
explained
term,
"aggravated
conduct,
constituting
in
relation
to
ordinary
negligence,
by a mine
operator
of
the
Act."
9
FMSHRC
1997
Mininq
Emery
Corporation,
& Ohio
Coal
9
FMSHRC
2007
1987);
youqhioqheny
Company,
of
Labor
v.
Rushton
1987);
Secretary
Mininq
Company,

the

that

means

1714

i0

the

(March

249

FMSHRC

Minina

Emery

youqhiogheny

Ohio,

at

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Commission

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9

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appropriate
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conduct
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distinct

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FMSHRC

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phrase

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prior

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the

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1988).

Third

Webster's

New

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2514,
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characterized
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"inattention."
and
"inadvertence,"
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930-31
ed.
Conduct
Law
Black's
(5th
Dictionary
1979).
inexcusable
is
is
and
the
result
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justifiable
than
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International

Comparatively,

("Webster's").

inattention.

*

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30

Date

the

and

affirmed:

been

Section

C.F.R.

3740213

4/16/91

75.220(a)

3740214

4/16/91

75.208

Citation

all

92-246

No.

No.

good
adopt

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Assessments

assessments

violations

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to

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findings
assessment
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the

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ll0(i)

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of

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question

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degree

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queszion.

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WEVA

Assessment

$275

(1)

$150

92-247

No.

30

Date

3739989

Section

C.F.R.

Assessment

$225

75.400

4/29/91

ORDER

IT

IS

ORDERED
The

3740213,

April
IS
(i),

§ 75.220(a)
citation,

IS

and

16,

1991,

MODIFIED

to

modified,
3.

IT

MODIFIED

modified,

IS

to
IT

IS

a

IT

IS

"S&S"

citing

of

section

"S&S"

104(a)

of

30

C.F.R.

"S&S"

104(a)

AFFIRMED.

violation

a

Citation
violation

section

104(d)(1)

Order
30

No.

C.F.R.

3740214,
§ 75.208,
and
as

citation,

AFFIRMED.

section

a

to

a

section

citing

1991,

29,

16,

MODIFIED

section

initial

The

April

a

"S&S"

104(d)(1)
citing
1991,

modified,

as

initial

The

April

section

initial

i.
No.

2.

THAT:

104(d)(1)
a

violation

104(a)

non-"S&S"

AFFIRMED.

1719

"S&S"
Order
of
30
C.F.R.

citation,

No.

§

3739989,
75.400,
and

as

IS

The

4.

respondent

the

amounts

have

been

shown
affirmed.

thirty

(30)

receipt

of

three

penalty
(3)

is
decisions

to

be

these

days
payment,

these

proceedings

pay
for

above

Payment
of

civil
the

shall

to

MSHA

which
within

Order,

mand

upon

made
and

dismissed.

are

Geo.rge/A..Kou•ras

Admlnlstratlve

in

assessments

violations

_

Law

.

Judge

Distribution:
Patrick
of

L.

Labor,

DePace,

Esq.,

Wilson

4015

Office

of

the
Room

Boulevard,

Solicitor,
Arlington,
516,

U.S.

Department
VA

Mail)

(Certified
David

J.

P.O.

Box

Hardy,
553,

Esq.,
Charleston,

&

Jackson
WV

Kelly,

25322

/ml

1720

1600

(Certified

Laidley
Tower,
Mail)

22203

FEDERAL

MINE

AND

SAFETY
OFFICE

HEALTH

OF

ADMINISTRATIVE

2

SKYLINE,
5203

FALLS

REVIEW
LAW

lOth

FLOOR

LEESBURG

PIKE

CHURCH,

VIRGINIA

COMMISSION

JUDGES

22041

OCT 1 6 ]992

COMPANY

ALUMINUM

AMERICA,

OF

PROCEEDING

CONTEST

Contestant
V.

OF

SECRETARY

No.

Point

Comfort

No.

CENT

92-362-RM

9/11/92

4107581;

LABOR,

SAFETY

MINE

Docket
Order
AND

HEALTH

(MSHA),
Respondent

ADMINISTRATION

Mine

Operations

41-00320

ID

DECISION

Timothy

Appearances:

P.

Gretchen

Esq.
of

for

Judge
This

Health

Act

section

parties

order
held

hearing.
I

record

and

their

legal

all

at

to
the
decision

purposes
all

the
Rules

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a

of

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the

testimony

section

103(k)

order

record

in

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was

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contami-

Facility.

Comfort
this

before
decision

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order

103(k)
onthe

aswell,

instant

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on

expert

benoh

and

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testimony

factual

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on

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of

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of

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written

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Safety

Alumina•Plant

Bayer

moved

conclusions
device
legal

appropriate
nation

as

Federal
and

legality

1992,

filed
Mine

Contest

hearing

6,

participated

vacated.
For
the

accepted

the

its

at

contestant
be

of

of

the

October

and

herein

motion,

Arlington,

Notice

expedited

An
on

rested,

issue

&

Contestant;

Solicitor,
Virginia,

the

of

Labor,

105

issued

1992.

ii,

a

section

challenging

103(k)

appeared

the

concerns

to

1977,

Secretary

Office

for

Maurer

of

September
subsequently

at
at

Lucken,
Department
Respondent.

proceeding
pursuant

contestant

Cherin

Seamans

Pennsylvania,

U.

S.

Eckert

Esq.,

Pittsburgh,

Mellott,

Before:

Ryan,

I

this

Commission•
rendered

at

the

hearing.
Order
Act
as

No.

4107581,

September
follows:

II,

on

Mercury

contamination

facility

and

the

paved

to

1992,

area

roadway

issued
by

to

pursuant
Supervisory

has

occurred

at

approximately

70

to

parallel

1721

the

section
Inspector

all

feet

the
west

R-300

103(k)
Fink,

R-300

extending
to
facility

of
states

the

be
the

covered

by

health

and

this

this

District

Manager

of

103(k)
In

the

Secretary,
the

coal

or

shall

the

approval

obtain

with

when

feasible,

such

mine

is

the
does

by

to
or

included

in

the

Mine

of

definition
30

type
Act.

Nor

Legal
the

"accident"

niceties
Mine

is

the

very
contested

the

30

C.F.R.

in

a

proper

aside,

the

in

person
mine

or

issuance
it

an

"accident

is

investigais

not

meant

contamination,

mercury
contamination

is

not

section

by

situation

included

regulations

found

of

of

accident

list

the

provided

MSHA

but
candid

to

Part

56.

case,

Secretary

3(k)
in

the

at

and

safety
basis

purposes.
for
my

testimony

of

testified
force
He

section

that

compliance
also
agreed
107(a),

I

vacation
Inspector

103(k)

order
the
with

in
section
several

that
was

1722

that

as

broadly

to

urges

interpreted

be

the

section

issued

the

should

Act

Fink

Inspector
actually

or

type

in

health

proposition

issued

that

in
mine
in

such

committee

"accident"

this

he

as

Simply
calling
an
forming

that

spills

coal

tothe
discernible

no

although

of

a

the

50.2(h).

important

its
that
bar

Likewise,
note

in
of

normal.

been

whatever

is

to

case.

chemical

of

definition

the

person

of

precondition
has

I

the

any

any
other

or

mine

such

exhaustive,

be

with
address

orders
of

recover

Furthermore,

the

§

statute,

make

the

must

representative,
representatives,

coal

necessary
there
in
this
it
so.

make

or

of

C.F.R.

a

not

be

exclusive
indeed
any

operator

to

the
of

Secretary

does
committee,"
an
"accident."
ting

the
such

and

not

safety

State

plan

any

such

the
of

recover

order

103(k)

issue

and

areas

"accident"

An

section

proven
"accident"

of

affected

return

occurring

appropriate

to

or

to

representative
may

mine,

it

disagree

chosen

accident

insure

to

at

and

area

only

has

Secretary

states:

Act

present,

other

consultation

adjacent

Mine

the

contamination

has

of
any
authorized

when

that

Secretary

an

appropriate

question

I

the

from

the
further

of

pending
hazard.

better.

of

event

mine,

deems

a

the

protect

approval

mercury

and

to

prohibited

the

of

the

means

other

or

no

facility

the

Section

is

sooner

the

of

incidence

R-300

order
are

representative

extent

there

The

legality
problem.

his

or

the

In

persons
with

except

of

opinion,
my
serious
a
up

contestant's
dealt
with.

all

area,

investigation
In

order.

safety,

entering

turned

103(k)

the

a
remedial
effectuate

certainly
of

Fink,
the

the

first

104

usual

who

man

order

sections

more

at

instance.

103(k)

section

with

agree
order

the

of

was

of

the

Act

compliance

or

admitted

that

the

mandatory
inspector

have

testified

Okay,

Q.

enforced,

with

this

A.

103(k)

to

Tr.

by

issuance

by

court,

the

enforcement

regular

section

the

of

104

of

the

Act.

if

they

133:

those

.

.

standards,

.

everything

do

that

want

you

to

do

correct?

order,

if

sir,

Yes

obtained

at

would

questioning
the

been

basically

so

were

to

by

pursuant

also

standards

the

The

response
obtained

result

could

order

103(k)
of

in

importantly,

Most

tool.
he

they

all

by

enforced,

were

parties

concerned.

By

qualification,

his

enforcement
believe
I

I

believe

also

103(k)

to

the

to
In

Mine

a

But

in

withdrawal

But

force

it

is

option
precondition

to

terminology,

simply

viable

in

103(k).

its

be

action
the

107(a)
order
"accident"

involved,

as

with

enforce-

embarked

fix

if

at
an

could
not

is

they
on,

thought

time
any
imminent
be
issued.

MSHA

legally
statutory

a
a

torturing

without

found

107.

case,

was

law
when

mechanism

legal

quicker

is

the

standards

involved,

control
and

issuance,

of
of

section
An

stretched

apace

Moreover,

situation.
cannot

were

is

danger

accident

this

favor

citations
contaminated

proper

proceeded

course

in

under

103(k)

the

the

was

compliance

of

mercury

in

issue

to
MSHA

lack

a

standards

This
MSHA

order

section

a

to

previous

the

or

have

section
imminent

an

to

104

should

by

that

danger

mandatory

104.

because

impermissibly
applicable
mandatory
usable
and
readily

of

section

directed

MSHA
the

section

abandoned

available

be
determines

regard

in

MSHA

was

manager
to
be

concerning

ALCOA

existing,

an

were,

under

of

manner,

that

Fink

district

with

violations

later

to

104

complied.
if

operator

perceived

they

with

has

Act

If

ment

section

that
the
the
company
section
104

reluctant

the

part

company
reactive

exactly

apparently
but

what

compliance

force

do

if
in

Inspector

by

the

on

area.

meant

most

that

order

about

concerned

disposition
issued

the

even

upon

inspector
effective
exists

used.

instant

the

be
mechanism

the

that

compliance
properly

to

the

only

would

the

herein.

ORDER

In
contested

September
by the

•iew

of

ii,
contestant

foregoing

the

section

103(k)
IS

1992,
IS

Order

VACATED,

findings
No.

and

and

the

conclusions,
issued

4107581,
Notice

the
on

of

Contest

GRANTED.

Law

Admi•s•ative
1723

Judge

filed

Distribution:
Timothy
Cherin
15219

Gretchen
of

Labor,

(Certified

P.

Ryan,

Esq.,

Mellott,
(Certified

600

&

Lucken,
4015

William
Grant

Klemick,

J.

Street,

Mail)
Esq.,
Wilson

Office

Boulevard,

of

the

Solicitor,

Room

516,

Mail)

dcp

1724

Eckert

Esq.,

Floor,

42nd

Seamans

Pittsburgh,
U.

Arlington,

S.

PA

Department
VA

22203

FEDERAL

MINE

SAFETY

AND

OFFICE

OF

ADMINISTRATIVE

2

SKYLINE,
5203

FALLS

HEALTH

REVIEW
LAW

lOth

FLOOR

LEESBURG

PIKE

CHURCH,

VIRGINIA

COMMISSION

JUDGES

22041

OCT 1 61992
SECRETARY

CIVIL

LABOR,

OF
SAFETY

MINE

PROCEEDING

PENALTY

HEALTH

AND

Docket

(MSHA),

ADMINISTRATION

Petitioner

No.

91-190

KENT

A.C.

No.

15-13881-03749

Pyro

No.

9

v.

PYRO

Slope

COMPANY,

MINING

Respondent
INCORPORATED,

COAL

COSTAIN

Successor-In-Interest
DECISION

Stephen
Solicitor,
Arlington,

Appearances:

APPROVING

Turow,

D.

penalty

Safety

and

filed

a

the

is

case

civil

case.

proposed.

I

have

settlement
Section

ll0(i)

on

the

hearing
appropriate
at

of

$1,200

within

the
the
is

30

the

,

case,
and

the

hearing,

agreement

conclude

I

for
assessment
Mine
Federal

At

$i,500
representations
the
including

under

that

criteria

Petitioner

ands:to

dismiss

$i,200

was

to

and

documen,

:

representations
the•proffered
forth:in

set

Act.

motion

for

ORDERED

days

the

from

penalty

considered
this

petition

of
105(d)
(the
Act).
settlement

a

in

in

WHEREFORE,
and
it
GRANTED,

Labor,
Petitioner;

Affairs
Legal
Manager,
Kentucky,
Sturgis,

a

upon

1977

approve

reduction

submitted
record
is

me

Section
of

Act
to

A

tation

the

Melick

before
under

Health

motion

of
of

the

Judge
This

of

Office
the

Virginia,for
A.
Lamey,

Mining
Company,
Respondent

Pyro

Before:

Esq.,
Department

U.S.

Catherine
for

SETTLEMENT

of

this

a•pr•al:of

tha•

sett•en•

•es•••ena

•••

Gary

Me•±ck

is
•

"

•

Law•udge

Admini•ative
1725

Distributioni
Stephen
U.S.
VA

D.
Turow,
Department
22203
(Certified

Catherine
P.O.

A.

Robert

Louisville,

I.

Labor,

Legal

Sturgis,

Cusick,
KY

4015

of
the
Wilson

Solicitor,
Boulevard,

Arlington,

Mail)

Lamey,

267,

Box

Office

Esq.,
of

Esq.,
40202

KY

Affairs
42459-0267

Wyatt,
(Certified

Manager,
Pyro
(Certified

Tarrant

Mail)

/lh

1726

and

Combs,

Mining

Company,

Mail)
Citizen

Plaza,

FEDERAL

MINE

SAFETY
1244

AND
SPEER

REVIEW

COMMISSION

#280

CO

80204-3582

844-5266/FAX

(303}

DENVER,

(303}

HEALTH
BOULEVARD

844-5268

'i I'.:'f 2 01992
J.

LINDA

VAN

TASSEL,

DISCRIMINATION

PROCEEDING

Complainant
Docket

No.

WEST

91-197-DM

be

dismissed

V.

WE

BARRICK

GOLDSTRIKE,

MD-04

INC.,

Respondent

ORDER

Before:

DISMISSAL

Morris

Judge

parties

The

OF

moved

the

above

is

CANCELED.

that

case

with

prejudice.
motion

The
for

Nevada,

is

GRANTED

October

27,

1992,

hearing

the

and

in

scheduled

V Adminis

Law

Elk.,

Judge

Distribution:
Victor

Alan

Perry,

SPANN,

P.C.,

6130

Charles

R.

LIST,

CHTD.,

(Certified

Zeh,
i00

Esq.,
Plumas

Esq.,
West

Gloria

Street,
BECKLEY,

Liberty

M.

Basterrechea,

Reno,

NV

SINGLETON,
Suite
Street,

Mail)

ek

1727

Esq.,

89509

DE

PERRY

i(Certified

JEMISON
LANOY,
NV
700,
Reno,

&

Mail)
&i
89501

FEDERAL

MINE

SAFETY

OFFICE

AND

OF

HEALTH

ADMINISTRATIVE

SKYLINE,

2

5203
FALLS

LAW

COMMISSION

JUDGES

FLOOR

lOth

LEESBURG

CHURCH,

REVIEW

PIKE

VIRGINIA

22041

OCT Z ! ;992

SECRETARY

OF

MINE

LABOR,

SAFETY

CIVIL

AND

(MSHA),

ADMINISTRATION

PENALTY

PROCEEDING

HEALTH
Docket

Petitioner

No.

A.C.

No.

Four

Mile

CENT

92-72-M

41-03504-05520

v.

ROBERT

FOSTER,

SUN

Draw

Employed
by
INCORPORATED,

PAVING

Respondent
DECISION

Phillip

Smith,
Department
Petitioner;

Appearances:

J.

Before:

Robert

Foster,

Texas,

for

Office

Esq.,

U.S.

of

Solicitor,

the

Arlington,

Labor,

Michael

of

Virginia,

Harrison,

F.

E1

for

Paso,

Respondent.

Barbour

Judge

BACKGROUND

This

case

penalties

by
("MSHA"),
to
pursuant

Administration

Respondent,
and

Health

civil

of

penalty
in

Part

carried

answer

and

Paso,

Texas

On

56,

subject

the

case

was

September

29,

was

received

a

telephone

at

counsel's

settle

by
in

hotel

to

the

E1

matter

Federal
the

as

Federal

at

THE

PROCEEDINGS

for

from

Respondent

the

ordered
filed

an

in

E1

A.M.

start

the

of

Secretary
on

thatRespondent
in
full
paying

1728

of

merits

the

the

and

by

Safety

seeks

non-metal

on

before

shortly

Mine

authorized,
Respondent

8:30

Counsel

Health

certain
mines
The
Regulations.
of
mine
agent
corporate
and

hearing

1992,

and

Foster,

Petitioner
violations

The
for

Paso

the

civil

Safety

Robert

knowingly

29,

1992,
call

metal

of

docketed

advised

I

surface

violations.

September

on

two

Code
30,
Respondent,
Incorporated,

the

820(c).
alleged
§

Title
that

of

ll0(c)

for

of

Labor,

against

U.S.C.
for

out

hearing,

wished

30

standards

alleges
Sun
Paving

operator

Section

1977,

assessment
Mine

for
of

Petitioner,

assessments

safety

Secretary
or

the

Act

mandatory
found

proposals
Secretary

concerns

filed

he

had

night

previous
had

the

the

that
stated

proposed

he

civil

penalties

for

advised
resolution

Respondent
of

such

violations.

the
the

result

would

When

Counsel

that

although

case

as

far

have

to

be

Respondent,

as

further

stated

this

would

the

Secretary
by me.

approved

be

that

he

concerned,

was

any

representing

arrived
at
the
himself,
conferred
Secretary
briefly
their
I
Following
convened
the
conference,
hearing
Counsel
for
the
on
the
Secretary
record
explained
the
circumstances
of
the
call
and
further
telephone
stated
that

hearing
private.

he

and

Counsel

proposed
Secretary
violations

the

and

Secretary.

Tr.

admitted

Paving

Sun

is

he

the

assessed

in

he

the

or

administrative

are

violations
The

the

Tr.

in

3448601

further

No.

states

3448601

loader

to

holding

or

stopping

maximum

grade

the
traveled.

Respondent
a

loose

it

knowingly
steering

operate
loader

the

Respondent
for

with

permitted

the

mechanism.

1729

the

withdrawal

of

civil

proposed

and

penalty

a

amounts

C.F.R.
Assessment

$700
$300

56.14101

Citation

been
instance

had

ii.

56.1400(b)

that
without

of

manager

Counsel

Section

11/5/90
11/5/90

end

with

He

company
first

in

order

an

and

had

8.

Finally,

8-9.

whether
he

the

was

involved

matter.

cited

this

had
me

operating
the

contacting

Date

3448615

Order

the

that

Tr.

general

Tr.

in

citation

No.

front

for
to

by

and

"Yes."

been

30

Citation

the

Counsel

follows:

as

and

appropriate

asked

occurred

past

had

are

order,

that

although

Order/

a

be

in

the

acceptable

When

and

process.

tardiness
this

regarding

IThe

record

that

in

company

his

for

citation.

to

stated,

and

hearing

apologized
Secretary

full

stated

was

the

on

he
them,
president

Incorporated,
civil
penalties

which

in

pay

penalties
resolution

stated

authorized
that

to

further

agreement
accurately.
the
violations
had

that

knowingly

wished

and
Counsel

this

that

then

their

stated

the

6-7

Respondent
described
he

for

admitted
liability
i
civil
penalties,
believed
the
proposed

Respondent

had

satisfactory

a

knowingly

Respondent
a

its
No.

front

service

brake

typical

load

end

on

states

3448615

loader

permitted
of
capable
the
that

to

operate

Respondent
great

deal

of

unnecessary

future

he

would

resolve

emphasized
proposal,

I

that

and
with

experience
instance.

matters

only

that

the

in

serious
In

timely

fashion.

medium

applicable

proposed

Secretary

and

for

appropriate,

first

his
this

in

so

the

the

by

conclude

civil

minute
last
circumstances.

in

that

agreements

in

only

by

keeping

a

has

a

for

fully

penalties
accurately

The
will

the

Counsel

penalties
I

patties

is
are

such

accept

extraordinary

most

support

civil

criteria.
future

in
Counsel
mind
in
is

Secretary

proposed
civil

the
the

in
and

statements

made

the
the

of

proposed
penalty

the

however,

the

and

that

haulage

a

violations.
of

full

to

violations
in
size

small

Respondent,
in

statutory

the

is

the

violations

the

the

matter

assurance

payment
I

abated

this

of

authorizing

and

consideration

and

resolution

notice,

on

I

was

do

find
that
contributed

further

I

have
could
that
they
addition,
Respondent
Respondent
Finally,
of
previous
history

that

reflect

basis.

this
I

a

parties'

the

because

liability

find.

so

Secretary's

the

satisfied

put

I

review

After
the

timely

to
the

CONCLUSIONS

AND

acknowledged

Respondent
and
violations,

of

a

accept
would

process

FINDINGS

accident.

I

to

government
in
expected

i0-ii.

Tr.

were

to

the

that
on

required

not

was

explained

I

put

and

expense,
such

explained
hearing

I

had

procrastination

his

that

but

apology,

Respondent's

accepted

I

of

ORDER

Respondent
in

penalties

in

violations

thirty
payment,

(30)
this

to

ORDERED

IS
the

amounts

question.

date

proceeding

is

of

above

Payment
the

days

in

pay

shown

of

is
this

to

full

the

in

satisfaction
be

decision

made

civil

proposed
of
MSHA

within

and

upon

receipt

DISMISSED.

Administrative

(703)

1730

756-5232

the

to

Law

Judge

of

Distribution:
J.

Phillip

of

Labor,

(Certified
Mr.

Suite

Smith,

Esq.,
Wilson

4015

Office

of

Boulevard,

the

4th

U.S.
Solicitor,
Floor,
Arlington,

Department
VA

Mail)

Robert

ii0,

Foster,
E1

Paso,

Mr.
TX

Michael
79936

F.

Harrison,

(Certified

/epy

1731

1840

Mail)

Lee

Trevino,

22203

FEDERAL

MINE

BAFE•

KHD

OFFICE

HEKLTH

ADMINISTRATIVE

OF

2 SKYLINE, lOth
5203
LEESBURG

LAW

COI•TBBION

JUDGES

FLOOR

PIKE

CHURCH, VIRGINIA

FALLS

22041

2 1 ]992

0

RICKY

REVIEW

HAYS,

DISCRIMINATION

;

PROCEEDING

Complainant
V.

LEECO,

:

Docket

:

MSHA

:

No.

No.

KENT

Case

90-59-D

No.

BARB

remand

from

CD

89-32

INC.,

Respondent
DECISION

APPROVING

Mine

62

SETTLEMENT

an__dd
ORDER

Before:

Judge

OF

DISMISSAL

Koutras

of

Statement

This

is

case

States

Court

of

•eeco,

Inc.

v.

August

3,

1992,

Commission
basis

onthe

agreement

of

consider

the

"Hays

this

matter".

have

dispute
court

the

reconsider

aspect

that
the

of

Mine

Act

their
and

attorneys

fees,

without

the

confidential,

there

is

need

for

the

given

the
Commission's
settlements
is

"Oversight
Commission's
in

is,

settlement

appropriate

proposed
adjudicative
committed
general,

notwithstanding

and

issued

of

an

order

with

disposition.

1732

this

and

that
for

that

the

since
it
Commission

fully
to
comments

important

an

responsibilities
the

to
the

directing

agreement

stated

that

of

need

that

However,

to

stated

and

matter.

1992,

further

counsel
settlement

further

sound

of

necessary,

for

Counsel

and

discretion",
I
settlement,

22,

is

no

settlement

a

opinion.

resolved

fully

into

September

final

of

be

proceedings.
the

remand

matter

with
the
dismissed

remand

complainant's
and

motion

a

on

instructions

Court's

full

a

been

agreement
the
matter,

resolves

the

On

the

with

me

if

and,

dismiss,

to
reached

to

United

the

Circuit,
(1992).

remanding

filed

on

matter

dismiss

including

settlement

copy
review

the

1081

Court

entered

Thereafter,

with

has

have

Leeco

Columbia

F.2d

965

FMSHRC,

and

to

motion

parties

further

the

that

consistent

litigation,
their

of

the

motion

his

In

&

on

District

the

Hays

remanded

proceedings
the

Commission

the

for

after

Commission

the

on

Ricky

Case

of
the
judgment
for
complainant
Ricky
Hays
that
the
requesting
proceeding

counsel

case,

before

Appeals

the

the
me

under

Commission's

confidentiality
parties
for

my

in

the

of

to

file
camera

a

Discussion
The

parties

settlement

have

complainant's
complied
complainant

counsel
the
terms

with

Ricky
that

request

I

with
been
filed
confirmed

complied

agreement

has
has
of
the

approve

and

my
the

that

settlement

the

camera

of
copy
review.

parties

have

•n

e

agreement,
Leeco,

the
respondent
settlement

and

Hays

Order

my
for

and

their
The

fully

and

that

Inc.,

jointly

this

matter.

dismiss

the

Conclusion
After

supporting

careful
settlement

settlement

disposition

Accordingly,
motion

review

the
dismiss

to

consideration

and

agreement,
is

of

conclude

reasonable

and
the

in

and

disposition

settlement
IS

I

is

the
motion
find
that

interest.

public

APPROVED,

and

the

and

the

GRANTED.

ORDER
In

this

view

of

this

case,

the

mutually

matter

IS

settlement

agreeable

disposition

of

DISMISSED.

Administrative

Law

Judge

Distribution:

Tony
Oppegard,
Esq.,
630
Kentucky,
Inc.,
(Certified
Mail)

Timothy
Main

Joe

Street,
(Certified

Walker,
P.O.

Appalachian
Maxwelton

Esq.,
Drawer

Research

Reece,
5087,

Defense

&

Lexington,

Court,

Lang
London,

Mail)

/ml

1733

&

Fund
KY

Breeding,
KY

40745-5087

40508

400

South

of

MINE

FEDERAL

SAFETY
OF

OFFICE

FALLS

10th

FLOOR

LEESBURG

PIKE

SKYLINE,
5203

22041

VIRGINIA

CHURCH,

JUDGES

lAW

ADMINISTRATIVE

2

COMMISSION

REVIEW

HEALTH

AND

l 2 11992

SECRETARY

OF

MINE

LABOR,

SAFETY

AND

CIVIL

ADMINISTRATION

Docket

(MSHA),
Petitioner

A.

No.

C.

COAL

PROCEEDING

WEVA

92-556

46-01456-03501

No.

Federal

Vo

EIMCO

PENALTY

HEALTH

No.

JDC

2

MACHINERY,
INC.,
Respondent
DECISION

Javier

Appearances:

I.

Romanach,
for
VA,

Arlington,
James

WV,
Before:

Judge
the

At

Virginia,

the

Liotta,

A.
for

Respondent.
Fauver

hearing
parties

on

For

reasons

agreement.

September
moved

the

Esq.,
Petitioner;
Esq.,
Fairmont,

22,

stated

at

1992,

approval

for

of
the

on

Morgantown,
a

West

settlement
the

record,

motion

is

GRANTED.

Accordingly,
civil

agreed

it

penalty

is

ORDERED

of

$140

that

Respondent
30
from
days

within

shall

the

pay
date

the

this

of

Decision.

Administrative

Law

Judge

Distribution:
Javier

Department

Romanach,
of
Labor,

VA

(Certified

I.
22203

Box

Liotta,

Esq.,

1509,

First

National

(Certified

4015

of

the

Solicitor,

Boulevard,

Room

U.

516,

S.

Arlington,

Mail)

A.

James

Office
Wilson

Esq.,

Liotta
Bank

&

Janes,

Building,

Mail)

/fcca

1734

Attorneys

Fairmont,

at

Law,
WV

26554

P.

O.

FEDERAL

MINE

SAFETY

AND

OFFICE

OF

ADMINISTRATIVE

2

SKYLINE,
5203

FALLS

HEALTH

REVIEW
LAW

lOth

FLOOR

LEESBURG

PIKE

CHURCH,

VIRGINIA

COMMISSION

JUDGES

22041

0 F,T 2, 3 1992

ROY

LEE

STROUD,

DISCRIMINATION

PROCEEDING

Complainant
Docket

V.

CBM

MINING,

ROY

F.

INC.,

PIKE

COLLIER

JAMES

H.

No.

CD

KENT

91-986-D

Research

&

91-09

AND

BOOTH,

No.

Mine

2

Respondents
DECISION

Appearances:

Tony

Oppegard,

Fund

of

Appalachian

Esq.,

Kentucky,

Lexington,

Inc.,

Defense

Kentucky,

for

Complainant;
Michael
&

Judge

Before:

This

both

30

corporate

respondents,

Roy

part-owners

section

i05(c)

U.S.C.

of

post-hearing
which

in

this

Complainant,

i.

respondent,
sister,

Roy

Over

Stroud

the

had

the

who

pursuant
Act

of

to

1977,

in

conducted

was

both

Subsequently,

findings
entire

making

the

following

in
OF

FACT

Roy

Lee

AND

and

is

Stroud,
is

Paintsville,
filed
parties
conclusions,

record

CONCLUSIONS

Collier

several
previous
sought
employment

businesses

Collier's
and

and

OF

the
married

of

decision.
LAW

brother-in-law

of

Stroud's

to

Patricia.

2.

1986,

Booth,

CBM,
Health

and

the

Collier.

F.

H.

of

proposed
with
along

case

FINDINGS

Inc.
James

as

Stroud,
(CBM),

Lee

"Act").

1992.

and/or

and

Safety

hearing

a

considered

proceedings

Respondent.

complaint,
Roy

officials

Mine

15-16,

briefs
have

I

Collier

(the

s_e_q.

notice,

to

April

on

for

complainant,
CBM
Mining,

F.

Federal

the
e t

Pursuant

Kentucky,

Schmitt

Porter,

discrimination

corporate

and

801

§

Wells,

Kentucky,

a

by the
respondent,

the

individual
are

concerns

filed

amended,

against

Esq.,

Maurer

proceeding

presently

Schmitt,
Paintsville,

J.

Walker,

family

Stroud

for

long

history

to

relationship
a
variety
of

no

and

avail.
Collier

years,
at
one

personal

reasons.

animosity

between

them.

back

the

or

They had
absolutely

of

1735

going
a

The

However,

to

other

very
did

poor
not

record

at

least

of

personal
like
reflects

Collier's

a

wife,

him

wanted
Patricia,
finally
gave
was
subsequently
His

career

first

day

of

work

day.

The
off
his

next

3.

walked
about
him
that
Collier

quite

the

at

Of

CBM

over

a

to

shoveler

job,

so

work

for

30,

He

he

with

going

to

and

was

later,

whip

to

$6.00

that

hours

and

the

about

it,

next

time

told

When
he
became
he
saw

hour.

per

teased

Stroud

Stroud's

superintendent
erroneously

had
be

he

hour.

hours

8
2

mine

the

superintendent

and

per

worked

worked

point

one

CBM

however.

1991.

1991,

at

$8.00

at

short-lived,
29,

was

this
of
threatened

and

Stroud

dispute

a

pay

brother

for

was

The

of

her
belt

a

January
January

pay.

rate

learned

upset

as

was

day,
job

rate
his

to
give
approval

his
hired

he

him.
4.

Stroud
filed
of
a
5,
1991,
complaint
that
fired
he
had
been
MSHA,
alleging
falsely
beltline
a
shoveler,
by Superintendent
Tommy
because
he
had
1991,
ostensibly
31,
complained

February

On

discrimination
his

from
Rouse
to

with

job

as

January

on

Rouse

about

his

smoking

5.

MSHA

mailed

two

discrimination

complaint
informing

letter

cover

complaint
against

One

CBM

the

6.

section

on

Stroud

about

or

actually
of

I

Stroud

filed

a

that

was

taken

7o

In

1991,

Collier

would

stop

paycheck
was

not

the

office

clerks
came

by

into

between

becoming

the

mine

seeking
Gladys
the

to

were

both

not

to

have

known

Booth

complaint

with

before

(See

Finding

the
and

with

the

activity,

to

adverse

the

MSHA

assault

preponderance
did

respondents
protected

prior

the

and

event

any
1991

later,

have

i.e.,
action

him.

days

his

angrier
frequently

pay

15,

he

1991•

had
but
Collier

check°

Parsons,

1991
with

30,

January
still

office

hours

I0

addressed

was

sometime
Collier
both

i05(c)

complaint,

February

there,

that

8,

Booth

complaints

In

was

the

until

accordance
find
the
that
all
in
had
engaged

i05(c)
against
the

for
until

February

on

filed

been

to

claim

Booth

in

a

1991.

7,

and

had

Act

The

section

1991,

with

each

1991,

letter

4).

complaint
strong

infra).

8,

evidence
that
section

knowledge

7,

Mine

other

February

a

5,

addressed

the
No.

filed

had

No.

that

is

February
place

took

Conclusion

3);

Stroud's

discrimination

a

the

and

i05(c)
evidence

that

knew

of
was

Collier

though

Even

this
about
circumstantial

that

letters

Exhibit
No.
(Complainant's
Exhibit
Rouse
(Complainant's
received
on
by the
company

of

February

on

company

I05(c)
the

of

copies

separate
to

section

under
it.

underground.

to

notify

office.

1736

and

trying
coming°
Stroud
had
him

February

Stroud
to

pick

The
continued

regular

asked
the

8,

because

to
one

next

he

up

his

payday
in
stop

of
the
time
Stroud

8.

On

mine

office

office,
Kentucky.
wasstanding

Stroud

him

followed

the

and

February

8,

to

check

drove
When
Stroud
outside

simultaneously
female

the

Stroud.

hose.
Stroud

He

office

the

him

struck

attempted
in

participate
Prior

9.

the

assault.

to

February

relationship

personal
this
in
Stroud.

record
The

himself,

whose

the

to

prove
evidence

effect

an

up

the

hydraulic

and

back

while

then

not

Stroud

had

credible
in
the

no

participated

Booth
that

that

clear

office

the

did

and

find

I

but

to

Collier
with
head

Booth
and

whatsoever;

saw

picked

he

into

Booth

blows.

1991,

8,

the

on

Collier

noon,
Booth

Booth

and
went

requested.
Stroud
whipping
blows

off

fend

office
and

the

separately,

told

was

multiple

to

and

arriving

front
hose

he

as

around

Collier

to

way

to

Beauty,

Collier

office,

the

started

and

home

his

on

way

nearby

Booth.

later.

of

did

Booth

in

home

hydraulic

of

was

his

On

Collier's

the
minutes
out

piece

long

after
entered

paycheck.

with
mine

to

few

again

once

Collier's

passed
talking

employees

18-inch

his

on

by

him
a

Stroud

1991,

no

evidence
assault

on

only
zero.
The
fact
that
mere
credibility
approaches
did
in
office
not
to
aid
the
and
come
the
of
Booth
was
present
Collier
not
amount
to
to
does
adverse
Stroud
or
taking
stop
try
the
of
Booth.
I
action
Stroud
on
am
Therefore,
part
against
this
dismissal
of
Stroud's
Booth
on
complaint
against
ordering

basis

to

from

comes

Stroud

alone.
On

I0.

February

injuries
telephone

the

for

MSHAby

of

3,
violation

1991,

April

On

opinion,

Stroud
he
that
violations

a

then

filed

had

been

assault,

MSHA

thereafter

his

of

at

hospital

a

notified

Stroud

investigated
filed

previously

section

he

by

had

reporting

meaning

i05(c)
with

CBM

also

determination
had

the

not

been

to

alleging

safety
officials

by

"beaten

in

that
occurred.

Commission

reporting

for

violations
safety
discrimination

original

the

its

complaint

se

pro

that

and

company"

a

issued

MSHA

of

discharged

after

Labor,

part

the

case.

Ii.

its

assault.
as

discrimination

during

the

examined

being

after

1991,

claim

assault

Stroud's

8,
received

he

the

of

the

Department

of

filed

compliant

with

MSHA.
12.

October

On

his

pro
counsel.
had
been

Mine
Act,
officials

Stroud's

amended

discharged

by

retained

but
of

the

company

complaint

complaint

Collier

based
on

on

February

added
Stroud's

8,

CBM

he

allegation

and

was

represented

dropped

his

violation
in
claim
that

because
with

of

he
In

had

filing

that

1991.

1737

amend

by
that

i05(c)

been

he
of

assaulted
his
original

of

addition,

individual
Collier
and

as

to

claim

section

of

the

MSHA.

Booth

motion

Stroud's

granted
time

complaint

the

discrimination

I

1991,
By this

22,

complaint.

se

the

the

by

amended

respondents,
Booth

assaulted

him

PISCUSSION

under

a

Act,

(2)

the

rev'd

Coal

other

on

663

F.2d

Robinette
1981).

v.

United

by
the

the

activity
Eastern

Assoc.

1987);

Donovan

Cir.

1983)
test).

(specifically
Cf.
U.S.

NLRB

393,

is

There

The

makes

he
the

form

of

Collier's

complainant's

filing

The

coincidence

two

events

in

Collier
case.

has,

that
he

activity,
that

Stroud's

was

he
he

would

that

his

by
reason

958-59

Cir.

(6th

195-96

Pasula-Robinette

Corp.,
identical

test

in
protected
discrimination

constitutes

Act

that

be

false

also

no

is

doubt
the

on

contains

complainant

that
of
the
the

motivated

filed

he

preponderance

of

that

least

in

part

by

with

complaint
convince

to

was

after

effect

at

discrimination
is
enough

action

Stroud

days

3

the

at

adverse

person

some

Furthermore,
to
clearly

activity
complaint

protected

complaint
by the

1991,

was

alone

a

if
to

is

however,

maintains

complainant
for
that

Mine
even

the

time

Cir.

(4th
954,

MSHA.
that

me

the

related.

are

He

filing

of

the

of

194,

nearly

engaged

Stroud

on

also

642,
F.2d

Commission's

Stroud

evidence

assault

was

have

See

732

F.2d

it

Act).

There

circumstantial

719

an

also

would

639,

Manaqement

assault
physical
on
February
8,
complaint.

a

by Collier
discrimination

that
the

them.

If

unprotected

F.2d

(approving

known

are

813

that

so

the

Co.,

the

adverse

manner,
that
it

su_•p_ra.

mere

of

is

that

this
and

Robinette,

FMSHRC,

v.

i05(c)

for

Construction

doubt

which

event

FMSHRC,

v.

Relations

And

allegations

activity

Labor

no

section

activity.

unprotected

(1983)

instance.

under

proving

any

the

activity.

protected

facie

approving
Transportation

v.

case

by

397-413

National

by

of

(April
by showing

that

or

v.

behalf

on

facie

occurred

su_9•/_a;

Boich

1984);

this

prima

the

1980),

Co.

817-18

affirmatively

Stafford

v.

FMSHRC

by

v.

(October

Secretary

3

and

part

any

Coal

1981);
Co.,

the

proof

and

Pasula

2797-2800

in

Pasula,
Coal
Corp.

(D.C.

taken

Cir.

in

in
of

case

action

adverse
alone.

behalf

2786,

establish
of

order

motivated

was
on

Coal

defend
miner's

may

taken

in

Castle

In

Consolidation

(3rd

1211

of

no

nevertheless
motivated

time

nom.

rebut
operator
may
protected
activity
in
motivated
was
no
part
cannot
rebut
the
prima
that

operator

in

FMSHRC

The

either
action

under

2
sub

Co.,

qrounds

Marshall,

462

complained
Secretary

activity.

that
protected
Consolidation

discrimination

of

to
under
section
105(c)
burden
of
production
in
protected
activity

bears
the
he
engaged

(i)

that

action

adverse

CONCLUSIONS

analysis

discrimination

of

AND

settled.

well

are

miner

establishing

FINDINGS

governing

act

case

complaining

a

in

Mine

the

facie

prima

FURTHER

principles

general

The
cases

WITH

have

unprotected

But
at

motivated

taken

the

activity

I

in
this
adverse
alone.

1738

defense

to

activity
since

least

that

urges

affirmative

an

was

unprotected

alone.
motivated
then

he

raised

and

have

in

already

part

by

is

mixed
action
a

assault

in

this

the

fact

him

assaulted

determined

Stroud's
motivation
in
any

above

protected
case

event

for

and

is
trial

There

record
between
bar.
several
occasion.
material

of

They
prior

there

have

been

the

dependent
involves
would

the

his

own

Stroud.

only

when

lasted

2

embarrassed
him
about
Office
the

called

his

finally
into

the

on

Collier,

that

the
be

a

at
on
on

over

of
part
ne'er-do-well,

one

Collier's
Collier

particularly

many

it

when

Collier
businesses

that

for

years

grated
him

on

job,
gave
he
That
day before
quit.
when
others
teased
especially
Sexton
at
the
Mine
CBM
Inspector
Collier
at
time
that
quit.
relented

and

a

second

Mine

State

on

to

ways

assault
blows

Stroud

fact

his

of

one

both

this

most

The

in

job

hours

day

family,

Patricia.

a

part

perceives
of

of

him

this

feelings

have

disdain

did

same

been

police
is

Collier

as

coming

to

There

grated

and

it,

of

jealousy

charity
wife,

Then

to

the

he

him

give

not

prior

on

because

on

years
threshold

The

possessions.
Stroud

hostile

for

on

occasions.
is
There

been

have

Collier

and

in

evidence

adequate

than

more

that

Stroud

towards

he

certainly

Stroud

time
to
Stroud
the
next
he
him.
saw
Stroud
promised
whip
situation
to
the
aggravate
by frequently
stopping
by
office
his
to
for
time
the
short
trying
pick
paycheck
up
did
Collier
this
he
work.
his
as
harassment
of
perceived
he
received
word
I
am
Finally,
help.
somehow,
quite
filed
that
Stroud
had
the
discrimination
with
complaint

already

continued
mine
the
that

clerical
sure,
MSHA.

is

It

difficult

Collier
point
perpetrate
little

in

record

from

was

the

illogical
witnesses,

this
to

assault

the

and

is
family,
side
that
particular
are
over
siblings
split
and
his
wife,
Patricia,
This

is

involved

complainant.

The

issues.

health
as

easily

have

Perhaps
tort
result

the

filing

of
was

two

the
based

lengthy

credibility

wife,

Rose.

employment

is

wound

safety

or

could
stations.

concurrently
for
Kentucky

a

gas

also

in

up

the

case

Collier's

court

Collier

was

mine
the

the

which

of

of

with

of
on

that

mine

to

of
and

family

case

rise

there

just
civil

damages

as

a

assault.
the

evidence

parties,

upon
and
would
men,
the
discrimination

this

side

do

of

one

state

admitted

reviewing

arguments
the

in

pending

After

Collier

in

out

in
the

to

is

there

Stroud

coal

to

that

inconsistent

of

giving

incident

his

a

nothing

has

played

exact

intent

help

the

on

relations
because
situs

the

as

are

and

domestic

simply
case

by

The

they

Stroud

appropriately,

more

action
of

a

The

contained
find
I

supports.

or

Commission

peripherally

not

what
the

the
of
the
testimony
supporting
consists
of
various
members
direct
conflict
depending

whether

basically

this

before

does

tainted

be

to

primarily
in
mostly
witness

Stroud

formed

involved.

Booth

at

and

evidence

And

which

limit
It

credible

principals

the

determine

to

case

his
Stroud.

on

of

way

Collier,
testimony.

Stroud,

in

pushed

I

once

find

that

long-standing
have

again

and

assault

the

place

complaint.

1739

with

the

by

Stroud

on

animosity

personal

taken

considering

or

without

Accordingly,

I

between

Stroud
find

that

Collier

would
of
the

because
alone°

view

In

basis

the

complainant
the

preponderance
this

in
failed

to

relief

ARE

of

action
the

findings
of

Accordingly,

for

adverse

activity

foregoing

the

of

Act.

claims

the

taken

unprotected

of
a
adduced
has

evidence
of

have

all
the
I
conclude

case,
establish
a
his
complaint

complained
complainant,

herein

of

Stroud,

and
and
conclusions,
credible
testimony
and
find
that
the
violation
of
section
IS

DISMISSED,

and

on

and

I05(c)
his

DENIED.

Adm•?rative

Law

Judge

Distribution:

Oppegard,

Tony
Defense
KY

J.

Main

(Certified

Mine

Kentucky,
(Certified
Mail)

40508

Michael
327

Esq.,
of

Fund

Schmitt,
Street,

Inc.,

Oo

Box

Project,
630

Wells,

Esqo,
P.

Safety

1179,

Mail)

dcp

1740

Maxwelton

Porter,

Paintsville,

Appalachian
Court,

Schmitt

&
KY

Research

Lexington,
Walker,
41240-5179

&

FEDERAL

•INE

SAFET%•

SPEER

•EV•W
#280

CO

80204-3582

844-5266/FAX

(303)

DENVER8

(303)

•EALT•
BOULEVARD

•%ND

1244

COM•IX•SXON

844-5268

2 7 J992
OF

SECRETARY
MINE

CIVIL

LABOR,

SAFETY

AND

ADMINISTRATION

Docket

(MSHA),
Petitioner

PROCEEDINGS

CENT

No.

A.C.

No.

Grefco

V.

GREFCO

PENALTY

HEALTH
92o42uM

29-01433-03526

Inc.

INCORPORATED,

Respondent

DECISXON

Fitz,

A.

Robert

Appearances:

UoS.

Department

Michael

Conley•

ment

documents

The

agreement

on

commencement

Mexico,

que,
their

September

Order

(citation
(T.

for

3448924

drawal
Section
modification

is
here
Section

the

of
Order

order

also

issued

the

of
ASSESSED.

from
The
Citation

104(d)
(i)
104(d)
104(d)
l)

a

chain.

Citation
such

orders)

under
modified.

not

enforcethree
involved.

approved

3446523

as

respectively,
of
the
part

In

effectuation

entered:

1741

No.

Withdrawal

(i)

With-

authority

of
with

Thus,

the

(1)

Citation,

such

Citation

for

104(d)(1)

Petitioner
No.

bench

the

settlement

Citation.

the

104(d)

underlying

the

$13,500,

and

a

to

104(d)

for

is

was

3446523

became

penalties
were
$18,500
to
the
payment
here

to

Act

No.

in

3448925

Order

the

AFFIRMED.

Section

of
an

document

agreed
are
penalties
the
following

and

such

3448925,

(i)
of

No.

considered

Albuquer-

announced

parties

covering
withdrawal

in

matter

the

two

of

from

No.

104(d)

appropriate
3448925

8)

3446523

enforcement
Order

and

this

1992u

settlement

modification

the

Order

was

withdrawal

the

and
No.

a

9,

and

reached

record

called

of

in

hearing

of

on

accomplishment
the

REFRACTORIES

Lasher

Judge

the

Texas,

Pennsylvania,

Cynwyd,

COMPANY,
for
Respondent°

New

Solicitor,

the

Dallas,

GENERAL

Esq.,

Bala

At

of

Labor,

of

Petitioner;

for

Before:

Office

Esq.,

agreed
and
and

settlement.
this
of

Order

that
No.

Respondent
Such

settlement,

ORDER

Citation

i.

Withdrawal

2.

nature
104

from

(d)

No.

Order

Section

a

is

3448924

No.

VACATED.

is

3446523

MODIFIED

Withdrawal

104(d)(i)

to

its

change

to

Order

a

Section

Citation.

(i)

section

3.

Withdrawal

104(d)(i)

Order

No.

is

3448925

AFFIRMED.
4.

within

if

Respondent,
30

Secretary
penalties

days
of

from
Labor

here

the
the

it

has

date

of

total

not

previously

issuance

hereof,

$31,500

of

sum

done
and

as

SHALL,

so,
to

PAY

the

for

civil

the

assessed.

,

Michael

A.

f

Jr.

Lasher,

Administrative

Law

Judge

Distribution:
Robert

A.

Labor,
(Certified

525

Fitz,

Esq.,

Griffin

Office

of

Suite

Street,

the

Solicitor,

501,

U.S.

Dallas,

TX

Department
75202

Mail)

Michael

Conley,

Avenue,

Bala

Esq.,

Cynwyd,

GENERAL
PA

19004

REFRACTORIES

(Certified

ek

1742

COMPANY,

Mail)

225

City

of

FEDERAL

MINE

SAFETY

AND

1244

REVIEW

CO

COMMISSION

#280

BOULEVARD

DENVER,

(303)

HEALTH

SPEER

80204-3582

844-5266/FAX

(303)

844-5268

OCT 2 81992
OF

SECRETARY

CIVIL

LABOR,

SAFETY

MINE

AND

PENALTY

PROCEEDING

HEALTH

ADMINISTRATION

(MSHA),

Docket

:

Petitioner

CENT

No.

A.C.

No.

Goat

Ridge

91-167-M

29-01880-05501

BY

V.

CONSTRUCTION

SOUTHWAY

Mine

COMPANY,:

INCORPORATED,

Respondent

DECISION

William

Appearances:

E.

U.S.

Department

Petitioner;

Mr.

John

TION

CO.,
INC.,
Respondent.

The

30

A

April

U.S.C.

§

hearing

on

7,

1992.

behalf

on

under
et

801,

CONSTRUC-

Mine

in

held

was

Safety

and

Construction
Health

and

Safety

"Act").

waived

parties

Mine

violatingsafety

Federal

(the

seq•

the

Southway
with

the

merits

the
The

of

charges

("Southway")

Incorporated
promulgated

regulations

SOUTHWAY

Colorado,

Alamosa,

Labor,
(MSHA),

Administration

Company,

Act,

of

Secretary

Engineer,

Ungefug,

T.

Morris

Judge

Before:

Health

of

for

for

Solicitor,
Regional
Deputy
Labor,
Dallas,
Texas,

Everheart,

the

Alamosa,
of
filing

Colorado,

on

post-trial

briefs.
At

withdraw

the

commencement

its

3900556.

The

of

notice

of

motion

hearing,

the

contest
should

to

as

Southway
Citation

moved

No.s

to

3900555

granted.

be

STIPULATION

The
i.

parties
Southway

stipulated
is

subject

follows:

as

to

the

jurisdiction

Commission.

i743

of

the

and

2

2.
3.

civil

Citations
will
business.

The

penalties

continue

in
The
Lucina

4.

is

owner

size

operator's

The

is

herein

Goat

affect

Ridge

Mine

of

in

abated

were

not

hours

57,690

the

is

per

and

ability

owned

by

year.

faith

good

operator's

not

work

to

Southway.

The

Mine.
ISSUE

issue

The

suitable

is

Citation

WILLIAM

silica
pit
ployees

at

trucks.

were

no

by

no

is

of

call

mining,
There

3

of

Mine

this

Southway
loaders,

belts,
mine

the

the

the

For

foreman

(d)

"Operator"

other

person

supervises
pendent
construction

means

who
a

states

quotes
RI-RS).

said

he

achieved

as

copies

and

coal

or

contractor
such

[Act],

controls,

other

mine;

1744

mine

the

lessee,

owner,

performing
at

follows:
this

of

any

and

There

was

working

was

as

operates,

em-

had

radio.

a

purposes

open

owner.

Abatement

(Ex.

Act

mine

owner

four

conveyor
for

activities.

the

that
the

mine

the

DISCUSSION

Section

not

inspected
were

submitted

further

termination

of

Southway

that

He

party.

system.

with

confirmed

a

another

was
system
provides
be
at
provided
emergency,."

numbers.

foreman

the

•GEFUG

and

the

by

obligation

the

inspection,

the

after

knew

one

an

communication

the

contractor.

start-up

of

event

in
experienced
1991.
April
2,
mine
a
using
crusher,
was
Southway
crushing
the
on
site.
employees

presence
JOHN

crusher

the

provide

to

56.18013

§
shall

on

morning

but
the

the

Lucina

The

radio

owned

TANNER,
mine

haul

required

communication

C.F.R.

system

it

provide

to

a

a

30

maintains

Southway
(Lucina)

alleges

communication
assistance
in

obtain

at

regulation,

The

is
mine

Southway
system

3900557

provided.
suitable
"[a]
to

whether

qommunication

or
or

or

services

any

indeor

the
of

a

The
within

ii

Company,

1285

(1991)

FSMHRC

1899

1896,

that

"operator"
(1989),

an

Services,

is

Southway
Otis

cf.

aff'd,

921

13

FMSHRC

Inc.,

F

2d
1354

.

Southway
supervising
ral
portion
was
Southway
is
Southway

the

was

the
of

be

that

mineral

the

furnish

to
event

of

an

criteria

the

penalties

the

operator,
operation.

controlling
is
an
operation
Accordingly,
process.
of
the
Act.
meaning
both

suitable

a

communication
Citation
No.

emergency.

under
assessed

and

This

extraction
within
the

operator

an

obligated

Considering
find

crusher

crushing

in
the
affirmed.

used

be

should

I

of

Transportation

Bulk

(1990);

establishes

definition

statutory

Elevator

to

evidence

uncontroverted
the

Section
herein

of

llO(a)

integAs

such,

system
3900557

the

Act,

appropriate.

are

ORDER

I.
are

AFFIRMED.

are

AFFIRMED.

are

AFFIRMED.

the

sum

2.

3.

Citation

No.

3900555

and

the

proposed

penalty

of

$98

Citation

No.

3900556

and

the

proposed

penalty

of

$20

Citation

No.

3900557

and

the

proposed

penalty

of

$20

of

Labor

Respondent

4.

$138

of

is

ORDERED

within

40

days

TO
of

PAY
the

to

Secretary

the

date

this

of

decision.

Law

dmini•ative

Judge

Distribution:
William
E.
fin
Square

Everheart,

Building,

Esq.,
Suite

Regional
Deputy
TX
Dallas,

501,

Solicitor,
75202

525

Grif-

(Certified

Mail)
Mr.

Pine

John

Drive,

T.

Ungefug,
Alamosa,

SOUTHWAY
CO

81101

CONSTRUCTION

(Certified

ek

1745

CO.,

Mail)

INC.,

117

White

•

FEDERAL

MINE

SAFETY

AND

OFFICE

ADMINISTRATIVE

OF
2

lOth

FLOOR
PIKE

VIRGINIA

CHURCH,

FALLS

LAW

LEESBURG

SKYLINE,
5203

COMMISSION

REVIEW

HEALTH

JUDGES

22041

0 CT 2, 81992

TIM

RAGLAND,

COMPENSATION

PROCEEDING

Complainant
v.

CULLOR

Docket
ROCK

QUARRY,

No.

Mine

CENT

No.

92-227-CM

23-01924

Respondent

Judge

Before:

For

the

is

granted.

the

a

for

stated

reasons

This
in

DISMISSAL

is

therefore

authority

for

in

complainant,

the

for

to

the

captioned
permission
with

DISMISSED

scheduled

matter

is

request

compensation

by

case

this

Missouri

Joplin,

filed

has

his

hearing

OF

Feldman

complainant
complaint

The

withdraw

ORDER

November

case.

to

withdraw

prejudice
5,

1992,

and

in

canceled.

•

Feldman••

Administrative

(703)

Law

Judge

756-5233

Distribution:
Mr.

Tim

(Certified
Mr.

Missouri

Cullor,

Jim

Ragland,

2123

W.

Austin,

Missouri

Nevada,

64772

Mail)
Cullor,

Cullor

64744

(Certified

Incorporated,

Rock

20th

Rt.

Quarry,
Mail)
and

Sidney,

/vmy

1746

i,

Ft.

Eldorado

Scott,

Springs,
Kansas

66701

FEDERAL

MINE

SAFETY
OFFICE

AND

HEALTH

OF

ADMINISTRATIVE

2

SKYLINE.
5203

FALLS

REVIEW
LAW

lOth

FLOOR

LEESBURG

PIKE

CHURCH,

VIRGINIA

COMMISSION

JUDGES

22041

3CT 3 8 ]992

BILL

BURRIS,

COMPENSATION

PROCEEDING

Complainant
Docket

v.

CULLOR

ROCK

No.

Mine

QUARRY,

CENT

92-228-CM

23-01924

No.

Respondent

Judge

Feldman

hearing

in

Before:

A
November

5,

September
a

for

interested
that

I

Burris

Mr.

i,

failed

13,

1992,

his

complaint.

not

have

failure

that

he

to

with

was

Tim

Mr.

Burris

In

to
he

no

also

informed

may

Ragland

Mr.

letter

a

contact

on

not

reply

or

be

my

wished

to

proceed.

would

be

construed

to

timely

respond

no

longer

interested

my October
Burris

to
Mr.

before
issued

compensation.

for

Despite

my
repeated
is
he
interested

that

ACCORDINGLY,
the
is

in

October

i,
to

19,

The

1992,

show

cause

prosecuting

with

order

request,
(explain

why a
prejudice

1992,

dismissing

matter

is

the

requests,
in

delivered

Mr.

Burris

has

his

complaint.

prosecuting

and

with
canceled.

is
by default
hereby
compensation
complaint
prejudice.
Consequently,
the

entered
filed
the

Jerold

by
hearing

Feldman

Administrative

(v03)

1747

vs6-5233

Law

failed
in

•••
Judge

on

default
his
via
express

was

judgement

respondent
DISMISSED

dated

office

still

mail.

convey

a

Ragland,
complaint
longer

his

Burris

Mr.

of

course

withdrawn

has

whether

me

for

the

telephone.

a

Mr.

ordered

I

should

complaint

that

his

writinq

decision

who

inform

During

case.

Having
in

why)

matter

advised

requested

to

scheduled

was

conversation

was

did
I

1992,

compensation

October

matter

Missouri.

this

pursuing

within
ten
days
I
indicated
that
as
an
indication
his

DEFAULT
DISMISSAL

captioned

the

in

in

October

Of
OF

in
1992,
Joplin,
17,
1992,
telephone

co-complainant
compensation,

me

ORDER
ORDER

favor
Mr.

in

to
of

Burris
this

be

Distribution:
Mr.

Bill

(Certified
Mr.

Bill

(Certified
Cullor,

(Certified

Burris,
Mail)

1002

E.

Burris,
Mail)

2123

W.

Incorporated,
Mail)

(Old

Berry

Nevada,

Austin,
Address)
20th

and

MO

Missouri

Nevada,

Sidney,

/vmy

1748

64772

Ft.

Scott,

64772

Kansas

66701

FEDERAL

MINE

SAFETY
1244

AND
SPEER

REVIEW

COMMISSION

#280

CO

80204-3582

844-5266/FAX

(303)

DENVER,

(303)

HEALTH
BOULEVARD

844-5268

OCT2 81992
OF

SECRETARY

LABOR,

SAFETY

MINE

AND

CIVIL

:

ADMINISTRATION

(MSHA),
Petitioner

V.

PROCEEDINGS

:

Docket

:

A.C.

No.

05-02342-03509

:

Coal

Basin

Mine

RESOURCES,

No.

Docket

:

MID-CONTINENT

PENALTY

HEALTH

INC.,:

WEST

No.

91-429

91-595

WEST

A.C.

No.

05-00351-03501

Bear

Creek

Mine

Respondent

DECISION

Tambra

Appearances:

U.S.
for
Edward

Leonard,
Department
Petitioner;
Mulhall,

tioner•

cases

the

Resources,
and

Safety
"Act").
mandatory

Secretary

of

on

hearing
February

Act

on

Docket

No.

tion

104(b)

order

Citation
§ 75.1711.

No.

C.F.R.

Work

to

elapsed
ventilated

P.C.

BALCOMB,

initiated
penalty
proceedings
by PetiMid-Continent
Labor,
against
Respondent,

of

30

1977,

pursuant
U.S.C.

here
penalties
sought
promulgated
pursuant
the

merits

was

held

26,

1992.

The

parties

WEST

commenced

&

DELANEY

Esq.,

Colorado,

("Mid-Continent"),

Health
The
civil

regulations

A

rado,

civil

are

Inc.

Denver,

Solicitor,
Colorado,

Morris

Judge

These

the

of

Respondent.

for

Before:

Labor,

Jr.,

Springs,

Glenwood

office

Esq.,
of

failure

seal

this

et

for

to
Glenwood
filed

reads

inactive
after
the
of

(the

se•

violation

of

Act.

Springs,
post-trial
Citation

104(a)

a

Mine

Federal
the

the

Mid-Continent

Citation

promptly
which
during
by means

the

Colobriefs.

and

a

abate.

alleges

3410979
The

to

to

801,

are

in

contains

91-429

for

§

a

the

violated

as

follows:

mine

was

90-day

not

period

mine
not
was
main
fan.

1749

30

Sec,

The

regulation

provides

75.1711

sealing
[STATUTORY

On

after

or

coal
operator,

any
the

a

§

No.

be

involves

91-595

reads

map

was

Secretary

a

90-day

S

mine

was

provides

as

Mine

75.1204

Section

Citation.

violated
follows:

as

filed

not

in

104(a)

Mid-Continent

Citation

after

regulation

all

persons.

a

alleges

3410732

the

pre-

unauthorized

mine

date

be

of
Openings
adequately
protected
to
by the
Secretary

revised

the

manner

a

or

shall

Secretary.

by

The

by

closed,

days,

90

in

of

inactive

permanently

operator

opening

the

1970,
declared

than

shall

WEST

75.1204.

A

The

is

entrance

No.

Citation
C.F.R.

30,

prescribed

manner

prevent

Docket

PROVISIONS]

more

mines

other

m•nes.

is

or

by the
by the

scribed

of

that

for

sealed

follows:

March

mine

abandoned

as

with

the

period

elapsed

permanently

closed.

from

follows:

filing

olosure;

of

map

with

Seoretary.
[STATUTORY

PROVISIONS]

closes
or
permanently
closes
or
a
mine,
temporarily
mine
coal
for
of
a
than
90
more
period
days,
he
shall
the
of
promptly
notify
Secretary
Within
such
closure.
60
of
the
days
permanent
closure
or
abandonment
of
the
or
mine,
is
mine
the
when
the
temporarily
closed,
upon
of
of
a
90
from
the
period
expiration
days
Whenever

abandons

the

of
closure,
Secretary

and

supplemented

date

Such

by
neer

of

copy
a

operator

an

coal

a

the
a

the

registered
of

the

State

operator

copy

of

to

the

mine

the
date

surveyor
in
which

1750

of

shall

map
or

revised
map
closure.
the
be

certified

registered
the

wi•h

file

shall

mine

mine

engiis

io-

30

cated

shall

and

be

available

for

public

inspection.
ISSUES

issues

The

tions.

If

so,

are

whether

what

penalty

BRIEF

Phillip
tified

the

James
On
the

29,

1989,
mine

silo

had

also

been

Gibson

July

8,

1991,

Mid-Continent

January

25,

not

The

company's

was

no

to

The

ceased

(Tr.

77,

Smith

H.

Gibson

mechanically
57,
(Tr,_335,
made

and

tes-

inspected

the

ventilated

58).

and

Further,
being

•i

No.

the

was

3410979.

Extensions

Coal

Mine

(Tr.

106).

In

concluding
condition
physical
of
and
the
miners,
Ex.
181;
P-4).

the

evidence

MSHA's

since

position
they

taken

AND

is

i03(i)

abandoned,

were

of

were

on

Mid-Continent

mine

(Tr.
produced

off

cannibalizing

is

mines

after

94,

1983.

95).

There

according

to

97).

mines,

here

here

being

the

of

sealed.

its

Smith,

H.

removed.

coal

any

was

DISCUSSION

The

Lee

been

mines

the

been

in

involved

(Tr.

Basin

not

78).

had
was

had

operations

all

reports.

1981.

portals

mines

two

nor

the

Supervisor

MSHA's

employment

of

had

equipment

Mid-Continent's

sealed

an•-Lee

Frey,

Citation

one

1991.

According
ventilate

did

i,

issued

EVIDENCR

Inspector
not

being

not

regula-

granted.

On

ber

MSHA
was

the

Mid-Continent.

removed.

were

violated

THE

K.

Gary

for

The

coal

OF

testified

Mine.

examinations
daily
Mr.
produced.
were

Jr.,

September

Basin

Coal

Kiser

E.

SUMMARY

Gibson,
Secretary.

R.

for

Mid-Continent
is
appropriate?

the

equipment.

essentially

on

Smith
and

(Tr.

Octo-

considered

reassignment
128,
129,

FINDINGS

uncontroverted.
mines

by

1751

Mr.
removal

FURTHER

that
the
"abandoned"

status

in

question

the

operator.

should
Mid-

be

Continent

takes

"abandon"

the

the

of

is

It

in

30

C.F.R.

although
meaning

"abandon,"

resolution
conflict.

and

did

operator

the

urges

not

mines.

regulations,

The
term

the

view

contrary

a

appropriate

of

slightly

the

term

would

certain

place

to

and
different

75.1711

§
in

both

7_5.1204

§

use

fashion.
to
resolve

appear

A
the

evidence

uncontroverted

focus:

the
the

from

cars

Mid--Continent
silo

and
1982,
continuous
Basin
Coal

1981

After

equipment,

and

removed
diesel

the

the

miner,

Dutch

and

main

the

removed

operator
loading

equipment.

In

addition,

belt,

the

basically

a

mines.

a

It

was

shuttle

and

conveyor

Creek

fans,

face-mining

the

machines,

coal

salvage

operation.

not
no

September

On

firmed

the

seal

1989,

29,

activity

of

lack

Section

areas"

in

Mid-Continent

facts.
on

the

Bear

(Houghton

by

the

con-

to

prima

a

American
Mifflin

and

a

finding

this

Part

of

abandonment

75.

operator

must
with

together

non-use

to

and
exam-

working

for

in

75.2(h),

a

con-

abandon.

intentions

evidence

concerning

its

intentions

cannot

override

clearly
basis,

based

be

establish

that

the

abandoned

the

Coal

to

objec-

the

operator
Basin

had,
Mine

Mine.

Creek

support

facie

panels,

or

does

75

Part

Section

ventilated

elements:

future
facts

These

and

the

two

such

but

least

from

of

Mid-Continent's

find

at

In

D

of

sections,

required

Subpart

argues

congruence
intention

credible

tive

Inspector,

"abandoned"

term

section
in

area"

not

are

manner

under

places

I

was

Mid-Continent

of

the

means

that
the

define

"abandoned

of

areas

ined

be

MSHA

an

failure

definitional

the

but

"Abandoned

current

the

not

does

75.1711

other

the

Gibson

were

mines.

the

and

1983

mine.

the

"abandoned
mine,"
definition
contain
a
which
provides:

on

After

Mr.

examinations
Mid-Continent

daily

removed,

were
all
Further,
personnel
coal
and
was
no
produced.
made,
ventilating
mechanically
longer

of

its

views,

Heritaqe
Co.,

Mid-Continent

Dictionary,
1976),

wherein

1752

cites
Second
"abandoned"

the

Colleqe
is

definition
Edition
defined

66
as:

[Abandoned
2.

dictionary

The

technical
lished

the

cordingly,
In

Sewell
to

properly
of

rejected

Order

No.

failure

of

and

The

ventiAc-

Judge

1978,
the

operator's

"abandoned"
in

Further,
on

the

MSHC

at

within
the

Sewell,
definition

of

1642;

Judge

Steffy

the
the
not

were

•ecord

8,

1991,

when

that

the

mine

was

told

was

K.
3410979.

Order

(Tr.

could

T•e

67-72)
briefs;

files.

for

the

Secretary

and

its

modifica-

consider

decision

Inspector
Frey
by Mid-Continent

for

Frey

post-trial

Order

the

Gary
No.

Commission

counsel

Judge

completely

not

their
the

the

rendering
that

he

in

and

the

in

the

of

in

of

agreed

Inspector
Citation

Order
appear

facsimile

reflects

July

by
abate
issuance

advised

so
a

further

affirmed.

issued

to

does

Judge

They

Order

unit

the

1

to

modificiations

The

30,

ruling

relied

be

was

as

Order

the

its

and

should

3586533

parties

tions.

March

1641,

deserted."

or

addressed

the

forwarded

definition.

result

and

Mid-Continent

parties

the

MSHC

75.2(h).

defense

a

testified

however,

neither

75

renders

§

3410979

Inspector

were

Part

estab-

contention.

Citation

the

the

over

evidence

Mines
the

similar

a

C.F.R.

as

this

1

Company,

forsaken,

up,

precedence
The

Creek

by

ventilate

raised

operator

take

75.2(h).

Bear

reached
30

shameless.

"abandoned."

Coal

Steffey

meaning

"given

and

were

C.

forsaken,

or

cannot

required

as

they

Richard
failure
the

Basin

Coal

examined

nor

Deserted

unrestrained;

definition
in
Section

definition

lated

i.

...

Recklessly

in
issued

the
this

Order
case.

the

Order

sealed.

The
(Tr.
67,
70).
Gibson's
Citation
Inspector
The
Order
read
"no
effort
was
made
apparent
by the
to
seal
the
mine."
On
July
i0,
1991,
Inspector
Frey
the
Order
to
read
from
"no
effort"
to
"little
apparent
for

was

3410979.

operator
modified

failure

a

to

abate

effort."
The
Order

uncontroverted

properly

was

firmed.
none

Since
will

be

the

Citation
operator

map

was

the

operator's

I

no

evidence

establishes

issued

and

Order

penalty

was

sought

No.

in

the
the

Section

104(b)

should

3586533

penalty

be

af-

proposal,

assessed.
No.

not

violated
filed

again

reject
future

issued

3410979
30

with

C.F.R.

on

representatives

for

the

75.1204

§

Bear

in

Creek
that

a

Mine
final

alleged
mine

MSHA.

Mid-Continent's
intentions

to

1753

renewed

argument

operate

these

concerning
mines.

No.

based

the

on

authority'to

mistaken

assumption

determine

whether

abandoned

fact,

facts

abandoned
facts

has

operator

sufficient

than

that

areas

the
there

threat

Contrary

to

could
serious

ventilation
both

-

meaning

in
the
examined."

mine

of

75.2(h)

§

definition

Secretary

urges
"abandoned

section

in

75.2(h)

in
reladiscrete

to

to

mine.
mines

working
other

Sewell

decision

applies

when

However,
is
idled,

conclude

I

deficiency

enough

broad

[not]

and

include

to

with-

area"

ventilated

not

"areas

means

accumula-

"abandoned

sum,

of

lack

very
methane

and

In

hazards

other

the

fact,

In

is

The

an
mo•e

were

conclusions.

views,

oxygen
hazards.

cause

with

whether

case,

in

and

law

disagree

I

Steffey's

a

Mid-Continent's
ventilation.
of
lack

besides

in

are

ventilation.

the

to

no

exist
tion

which

mine

entire
is

has,

there

section
in

ultimate

determine

this

latter

abandoned
unconnected
is

being

are

a

Judge
applied

The

the

mine.

MSHA's

correctly

supra,
Company,
§ 74.316-2(c).

to

operator

In

that

states

MSHA

MSHA

justify

has

that

closed

mine.

a

arguments

Secretary's

mine

not

and

to

Mid-Continent
Coal
tion

a

temporarily

or

The

argument.

this

the

that

contends

Mid-Continent

entire

an

mine.
The

definition

of

Commission

the

in

found

mine"

analogize

to

§

C.F.R.

30

the

to

which

57.2

provides:
stopped
with

responsible

a

decline

relationship
Part

75

of

30

underground

meaning.
rior

1968).
intention
abandoned

further
accordance

in

it

an

analogy.

charge

has
work
office
is
no

Section
which

coal

mines

asserts
with

the

abandon

are

workings

as

57.2

has

no

controlled

are

by

caved

or

which

further

required.

The

inspected
Safety

traditional
of

Department

U.S.

Related

and

indicates

both

that
at

DMMRT

2

page

mining

is

not

which

are

U.S.

regularly.
Code--Bituminous

1754

and

intended
not

in

and

deserted

are

and

ventilated

BuMines
Coal

Federal
and

Liqnite

and

non-use

either

Excavations,

Inte-

(DMMRT)

Terms

follows:

workings

opening

and

historical
the

define

should

Commission

R-I

Workimgs:
that
scaled,

.Abandoned

its
to

Mineral

of

Volume

Mine

the

refers

example,
Dictionary
A,
Exhibit
Respondent's
For

to

at

an

C.F.R.

Mid-Continent
"abandonment"

such

make

to
to

and

in
mine.

person

maintained

all

means

premises

mine

the

on

longer

I

mine

[a]bandoned

[A]n

defines

Mines,

Pt.

is

It

true

However,
is

contained

in

to

essary

to

Co.,
rests

proving
evidence

and

the

Supp.
party

1256,

rests

upon
with

convincing
but

the

burden

is

F.2d

1139

511

OSHRC,

Mid-Continent
mine
15

to

Rev.

Stat.

parison

not

warranted.

mines.

On

the

other

of

Colorado

seeks

I

cluded

the

of

their

Mines

have

ration

of

abandonment
the

the

the
not

learn

has

been

Real.

Such

Vol.).

com-

underground
and

Rights

Water

much

did

not

broader

MSHA

Mid-

contact

intentions.

given

However,
have
only

could

con-

irrespective

abandoned

evidence

Secretary's

claiming

for
been

of

its

man-

Mid-Continent's

of

stated

was

Mid-Continent
state

and

federal

Mid-Conti-

Basin

Coal

It

require

natural

with

deals

the

abandoned.

would
to

area

loss

law,

regulates
Irrigation
objectives

evidence,

motives

Creek

restore

underground
citing

an

intentions.

portion
possible

A

556(d).

§
of

on

Brennan

Colorado

Smith,

Lee

to

mines

two

future

nent's

of

other

uncontroverted

that

agement's

law

supervisor,

management

objective

the

proof

and
rests

mines.

MSHA's

agree

Continent's

the

accomplish

to

regulatingcoal

than

in

hand,

"clear

U.S.C.

under
C.F.R.

of

convincing

evidence.

the
5

(1990
75

the

burden

that
of

abandonment

Part

Further,
the
and

burden

1975);

right

fact
Eaton

v.

it.

of

37-92-103(2)

§

is

unnec-

of

States

statement

water

a

already

question

a

clear

by

The

compares

of

DMMRT.

is

It

1977).

asserting

preponderance
Cir.
(9th

a

57.

Finally,
be

party

further

abandonment

Colo.

must

Mid-Continent's
is
required.

evidence"

Part

Colo.

(D.
it.

abandon

to

"abandon"

is
United

abandonment

evidence.
1274

the

of

refers
of

definitions.

asserting

to

disagree

I

the

intention

an

MSHA

F.
on

that
all

8,

frequently

other

for

states

October

definition
section

a

definition

from

433

Shale

noted,
elsewhere

Mid-Continent
determined

be

Commission

the

the

explore

burden

v.

that

previously

as

Mines,

Underqround
(Ex.-R-I).

1953.

and

Bear

that

a

abandonment

coal

decla-

reclaim

to

and
result

may

(Tr.

lease.

177-

178).
I
not

am

lamation

Supp.

the

as

or

Mid-Continent
mine
was
the

states

the

by
expert

an

14

Act,
1991)

advances
she

persuaded

not

qualified

Rev.

the

federal

further

permanently
argument
mine

foregoing
either

on

Colo.

on

the

Stat.

§

the

Mr.

Mined
to

leasing
Citation

argues
that

evidence.
Colorado

34-32-101

mineral

Secretary

abandoned

or

1755

125

Smith

No.

(1984

3410732

alleges

Mid-Continent

cannot

prevail

temporarily

closed.

was

Land

program.

Accordingly,

closed.

was

the

because

Recand

Section
circumstances.
of

Since
it

abandonment,
to

form

requires

75.1204

parties
appropriate

is

citations

Both

herein

criteria

statutory
in

Section

the

crew

remains
The

company
at

in

of

must

is

briefed

amend

be

affirmed.

the

the

Citation

to

issue
con-

U.S.C.

a

small

producing

longer

is
no
decision

this

Act,

penalties

30

considered

be
no

civil

assess

the

are

820(i).

§

coal

con-

operator
and
only

especially

$20
proposed

penalties

small

a

mine.

the

operator

assessed

to

various

under

map

and

PENALTIES

to

ll0(i)

Mid-Continent
since

a

litigated

should

CIVIL

The

of

evidence.

the

tained

filing

the

the

business

in

longer

the

are

same

and

the

those

as

by

the

Secretary.
By
had

pany

no

in

evidence

the

the

two

indicates

ending

years

two

years

ending

September

28,

company
mine
a

was

negligent

in

it

map.

gravity

of

the

for

and

history

of
previous
violations

way

the

November

1989.

com-

(Exs.

4,
P-l,

seal

the

1990,

P-2).
The

file

and

The

placed

at

of

the

the

did

mine

low

was

as

to

no

miners

mine

but

the

not

promptly

seal

the

it

promptly

the

penalties

herein

are

subject

to

I

the

the

approval

Court.

above

herein

stated

reasons

enter

following:

ORDER

DOCKETNO.

.

mine

were

map.

of
Payment
Bankruptcy
For

violations

the

failed

risk.

Mid-Continent
filed

that

Citation

No.

WEST

3410979

and

the

a

failure

91-429

proposed

penalty

are

AFFIRMED.

Order

No.

3586533

for

1756

to

abate

is

AFFIRMED.

DOCKET

Citation

3.

No.

NO.

WEST

and

3410732

91-595

the

proposed

under

Chapter

penalty

are

AFFIRMED.
4.
Code

in
will

Court

$40

of

ment

as

a

claim

in

bankruptcy
approval

upon

Case

No.

be

assessed

Petitioner

and

case

its

operating
Accordingly,

penalties

amount

a

is

and

in-possession.
Bankruptcy
civil

filed

Respondent

ruptcy

91-11658

PAC,

against
is

Respondent's

ii

estate

of

the

as

a

of

the

United

it

is

ordered

States

that
in

Respondent

the

authorized

to

bankruptcy

case.

assert

Adm•istrative

Bank-

debtor-

such

Law

the
assess-

Judge

Distribution:

Federal

Office
Office

(Certified

Mail)

Tambra

Leonard,

Labor,

1585

CO

80294

Edward
Glenwood

Esq.,

Mulhall,

Springs,

Jr.,

Esq.,
CO

81602

of

the

Building,

Solicitor,
1961

U.S.
Stout

DELANEY & BALCOMB,
(Certified

ek

1757

Mail)

Department
Street,
Denver,

P.C.,

Drawer

790,

of

FEDERAL

SAFETY

MINE

AND

1244

SPEER

CO

80204-3582

844-5266/FAX

(303}

DENVER,

(303)

REVIEW

HEALTH

COMMISSION

#280

BOULEVARD

844-5268

-OCT2 81992
WYOMING

FUEL

PROCEEDING

CONTEST

COMPANY,
Contestant

Docket

SECRETARY

OF

MINE

AND

ADMINISTRATION

SECRETARY

Mine

AND

I.D.

05-02820

PENALTY

Docket

(MSHA),
Petitioner

A.C.

PROCEEDING

WEST

No.
No.

Golden

V.

FUEL

Mine

HEALTH

ADMINISTRATION

WYOMING

7/28/91

3244426;

Eagle

CIVIL

LABOR,

SAFETY

91-598-R

HEALTH

(MSHA),
Respondent

OF

MINE

No+

Golden

LABOR,

SAFETY

WEST

No.

Order

V.

92-335

05-02820-03616

Eagle

Mine

COMPANY,

Respondent

DECISION

W.

Charles

Appearances:

Newcom,

SHERMAN

&

Esq.,

Office

of

Labor,

Denver,

Esq.,

HOWARD,

Denver,

Colorado,
for
Contestant;
Department

U.S.
for
Before:

of

WEST

In

challenged
under

30

Section

in

filed

post-trial

Denver,

et

seq•

Contestant
No.

104(d)
notice

After

place

801,

§

(2)
to

issued

3244426

the

Colorado,

of

the

(the

and

Safety
"Act").

Health

("WFC")

Fuel
Wyoming
company
by the
Secretary

of

Labor

Act;
a

hearing

on

December

i0,

1991.

parties,
on

Mine

Federal

the

under

U.S.C.

91-598-R
Order

Solicitor

the

Colorado,

Morris

arise

cases

1977,

of

Respondent.

Judge

These
Act

Miller,

A.

Margaret

briefs.

1758

the

merits
The

took

parties

On

June

WEST

1992,

30,

proceedings

by

of

agreement

consolidated

were

with

parties,
penalty

the

the

civil

the

regulatory

the

contest

proceedings,

92-335.

is

WFC
C.F.R.

§
The

with

charged

contested

Order

No.

operator

.The

methane

11-15-90,

ranging
in

#2

air

shaft

to

cross-cut

In

the

tailgate

pumped

on

in

this

the

#2

accumulated
of

the

headgate

#70

to

would

back

#73

water

fire

A

the
coal

adopted
by
form
on
printed
shall
show
plan
anical

the

the

every

a

methane

methane

and

system

the

Secretary

operator

the

type

and
June

and

equipment
such

months.

1759

and

The

1980.
of

may

mech-

the

and
im-

or

require,

reaching

each

information
Such

in

out

installed
additional

other

the
shall

set

28,

air

to
of

location

Secretary
of

dust

suitable

mining
by

before

ventilation
in
the

6

and

thereof

or

proved

least

cross-cut

making

from

and

mine,
the
as
equipment
the
and
quantity
velocity
and
such
working
face,
the
require.
Secretary
may
reviewed
by the
operator
operated

from

revisions

approved

be

a

of

entry

Provisions]

and
and

cross-cut

plan.

system

plan
conditions
mine

being

conditions

the

control

ventilation
and

pump

not

#3

In

system

dust

at
of

Water

#74

boss

Ventilation

air

no
was

and

all

[Statutory

control

#70

accumulated

the

and

cross-cut

feet.

#75,

prevent

tailgate
starting

headgate.

of

70

exhaust

the

was

#i

the

room

Water

entry

to

in
the

there
area.

about

E,

allowed

was

of

to

apcontrol
in
that

at

#69

cross-cut

75.316

28"

bleeder

between

distance

the

dust

starting

entries,

installed

with

locations

#I

shaft

follows:

Item

37,
to

rooms

air

exhaust

4"

different

bleeder

entries.
the

standard

as

and

p.

from

accumulate
and

complying

not

was

dated

water

reads

324442

ventilation

proved
plan

S

violating

I

715.316.

as

plan
Secretary

shall

be
at

at

30

WFC

denies

it

the

operator

is
found,
stantial

("S&S"),

rantable

failure."

S-2,

part
provides

that

accumulates

The

violated
nor

of

ventilation
it
was

the
contends

it

was

result

a

ventilation

the

that

in

of

the

be

sufficient

as

contained
to

quantity

violation

a

and

operator's

installed

plan,
will

"[p]umps

If

plan.

significant

not

in

Exhibit
water

remove

depth

or

sub-

"unwar-

to

present

a

hazard."

July

On

inspected
2
WFC
io,
it

and

(Tr.

20).
boots.'

Statement

1991,

MSHA

28,

WFC's

Golden

fire

was

his

Brief

He

walk

the

water

in

to

necessary
the

of

Shiveley

Mr.

water

followed

run.

(Tr.

22,

23).

ranged

from
28-inch

to

28

inches.

the

water

water

was

to

4

to

up

Mr.

along

walk

(Tr.

cut

68

When

(Tr.

not

to

Costello
he

On

July

28

if

they

NED
25.

were

written.

fall

hazards

electrical

G.

the

pumps.

Misspelled

the

high

making

his

of

the

water

In

some

as

normal
in

walked

27).

the

areas

It

unsafe

was

pumps

No.
water

and

the

violation

considered
not

were

pumps

operating

the

out

the

mining

water.

"Caustillo"

after

1760

slip,

trip,

feet
believe

MSHA's

in

citations

installed

hundred
not

on

no

and

engineer,
Six
did

transcript.

and

the
of

he

citations

did

28.

mine

the

40).

Shiveley

and

were

cross-

waders.

(Tr.

Mr.

22

there
his
order.

wrote

Thompson
operational
(Tr.
127).

as

but

operating

believed

from

his
S&S.

of

parts

when

room

wearing

operating
July

were

pumps

WFC

bleeder

2

between
various

Zamarripa
Mr.
Shiveley

July
22,
operational.

on

in

Mr.

pumps

water

get

the

THOMPSON,
pump

air

(Tr.

the

to

inspected

installed.

and

water.
as

Costello

waders.

entered

day

when

to

Mr.

hip

knee-deep

were

Mr.

RONALD

gotten

the

that

On

equipment
laid

was

ZAMARRIPA

July

was

73

the
was

depth

"belly."

observed

Shiveley

know

who

the

Costel-

crosscut

avoid

bleeder

2

26).
on

Costello's

first

69,
Mr.

No.

28

(Tr.

putting

attempting

Mr.

36).

the

at
to

Shiveley

Gene

ribs.

the

Mr.
Shiveley
was
Felthager
33,
34).

Mr.

accumulations
rib
line

July

On

after

accompanied

He

Costello

Mr.

daily

Melvin

Inspector

Mine.

saw

Evidenc•

the

mine

coal

Eagle

boss.

Some

of

pipe

was

have

could
for

RONALD

equipment

G.

gotten

pump
installed.
air
the
pumps

electrical

pumps.

laid

and

During
inches.

the

Thompson
operational
(Tr.
127).

weekend

addition

testified

Ron

primarily

the

down

July
and

Gene

mining
from

21

29.

McClain
MSHA's

hazards

have
for

wend
on

was

could

Costel-

engineer,
excessive

an

accumulation.

water

Discussion

initial

The

plan.

control

The

an

to

present

Mr.

system.

There

necessary

to

presented

a

Costello

the

of

the

its
is

record

sufficient

a

ventilation
whether

there

quantity

testimony.
boss
inspected

fire

throughout

ascertain

depth

or

whether

the
of

areas

July

On

the

he

28
bleeder

bleeder

stem

water

accumulation

but

it

is

the

area

rib

line

hazard.

that
it

73
of

by

the

as

water

was

Accumulations
some

violated

WFC

Shiveley's

Inspector

followed

whether
framed

water

Findinqs

Further

hazard.

a

crosscut

is

of

credit

I

and

issue
issue

accumulation

was

28

water

REIT2E,

concerning

he

citations

installed
Daniel

WILLIAM

pipe

of

believe

not

the

22,

the

feet

MSHA's

were

Thompson,

WFC.

hundred

after

July

pumps

to
for

testified

of

installed

engineer,
Six
did

water.

Mr.

additional

Two

In
io

the

out

mining

WFC

THOMPSON,

to

the

water

depth

of

locations.

in

68

walked

through

to

for

#2

the

the

When

crosscut

presented

necessary

was

Costello

69,

he

the

28-inch

men

from

4

to

in

water

the

high.

boot

inches

28

#2

the

deep

deep

walk

was

entered

in

were:

to

room

waist

was

hazard

bleeder

ranged

water

Mr.

a

the

water.
to

do

the

July

different
from

room

Mr.

and

On

in

bleeder

of

Costello

bleeder

evaluation.
The
on

use

issue

the

bleeder

excessive
are

Water

up

depth

to

sum,

I

agree

with

Shiveley

to

Mr.

Costello

In

water.

Mr.

Costello
credit

further
Reitze

I

ripa,

and

water

in

the

footing

in

walking

the

cause

a

bleeder

that

standard

to

Costello's

Mr.

a

issue

persuasive
in

hazard
in

belly

the

an

under-

would

be

of

a

hazard.

the

uncontroverted
that

the

testimony

of

1761

a

bit"

of

statement.
Messrs.

hazards

possibility

"quite

was

the

the

by

statement

there

with

the

particularly

presented

hardly

The
system.
water,
possible

line,

is

Costello

agreed

concerning

unclear
rib

Mr.
water

Waders

mine.

coal

sufficient

Mr.

waders

of

system.

ground

by

of

caused

hazards

are

weak
of

Shiveley,
by the

Zamaraccumulated
unstable

numerous:

the
ribs,
drowning,

necessity
as

well

of
as

the

hazard

so

to

present

The

Judge

McClair,
mulations

is

Mr.

In

DANIEL

(Tr.

on

inches.

(Tr.

lation.

(Tr.

opinions

in

gate

July

22.

(Tr.

that

Mr.

He

be

walked

persua-

the

Monday,
replaced

bleeder

July

29

of

the

the

July

15.

The

with

air

pumps.
in-

Shiveley's

Mr.

citations

No

164).
and

all

testified

with

testified
24th

written

were

the

dropped

water

on

i0

to

with

Mr.

Zamarripa

did

27th

for

the

water

accumu-

certain

legal
170-176).

also

issues

there

agreed

expressed
in

the

as

to

a

person

(Tr.

case.

inches

24

was

differed
he

that
or

witness

noted

addition,
in

water

the

on

examiner's

12

of

it

whether

was

head-

the

hazardous

a

slip

could

in

water

not

con-

fall

or

dry

on

issue,

hazard

MSHA's

witnesses

reports

from

bleeders

the

July
as

credit

I

are

by

WFC's

through

July

28.

21,

condition."

"hazardous

a

MSHA's

confirmed

.

is

COSTELLO

fire

was

day.

not

in

WFC,

for

pumps

The

he

In

EUGENE

mine.

is

area

181).

mine
preshift
describe
They

1991,

pumps
infra.

issue,

S-3).

around

involved

the

on

previously

he

director

22

agreed

ground.

WF-2)

installation
air

the

on

system

on

order

further

169).

However,

(Ex.

he

persuasive.

166).

dition.

As

indicated
Exhibit

blue

(Tr.

July

but

witnesses.

every

was

connection

corner

bleeder

accu-

water

not

failure
walk

Daniel

of

the

testimony

not

electric

McClain

McClain

Mr.

to

as

His

the

safety

Mr.

McClain
citations

any

in

107(a)

a

Between

Mr.

write

fairly
depth

Thompson,

issue
is

testimony

to

Shiveley

Mr.

(marked

that

spection
22.
July

Ron

-

did

as

he

McCLAXN,

required
162).

sufficient

138).

received

company
order

136,

contrast,
system

record

a

the

on

their

pumps.
unwarrantable

the

testimony

(Tr.

bleeder

to

indicates

he

The
of

principally

the

related

since

was

However,

testified
air

of

hole.

witnesses

hazards,

Thompson

operation
principally
Mr.
Thompson's

sump
water

WFC's

Costello.

related

and

system.

of

aware

Gene

and

of

hazard.

a

and

large

a

accumulation

the

as

sive

into

stepping

of

establishes

Mr.

boss
Costello

checked

Costello

his

on

diesel

mechanic

for

The

pumps

pumper.

met

some

put

a

and

Shiveley

Mr.

the

on

pumps
waders

that

way

at

WFC.

the

into

bottom

the

morning

On

so

July

28,

working

were

of

on

the

bleeders.
he

get

wouldn't

wet.

feel

There
was
it
presented

in

water
a

hazard

the

bleeder

in

that

firebossing

1762

morning
the

but
area.

he
Water

didn't
has

never

bothered

deep,

you

remember

The

deepest

part

he

how

in

water

would

be

did

not

being

the

is

water

inches

several

bottom.

described

Costello

Mr.
not

a

the

see

if

Even

Costello.

Mr.
can

up
when

his

took

to

his

he

was

readings.

belly
going

that
to

out

could

He

197).

(Tr.

day.

check

or

move

pump.
Costello

Mr.

critical

of

area

foregoing

the

For

contradict

the

hazard.

presented

a

3244426

should

No.

Order

reasons,

in

witnesses

MSHA's

depth

water

the

whether

be

affirmed.

Siqnificant

contends

the

violation

findings

should

be

WFC

special

"significant

A

section
as

104(d)

and

(i)

of

effect

upon

the

exists
will

a

reasonable

result

in

nature."

injury
Division,

Cement

(April

facts

such

illness

cause

A

"if,
there

contributed
3

Gypsum

Co.,

3-4

(January

to

serious

reasonably

a

the

hazard."

substantial
violation

the

hazard

of

National

to

and

the

nature

such

health

or

in

described
"of

FMSHRC

822,

1984),

the

825

1981).
Mathies

In

Commission

Coal

its

substantial

under
of

Labor

violation
discrete
a

of

danger
violation;
the
injury
serious
ably

to

United
the

States

Commission

of

that

"Significant

term

the

must
a

violation

of

significant

and

a

is

standard
National

safety

mandatory

In

I,

establish

to

order

of

FMSHRC

interpretation

follows:

as

tary

6

Co.,

explained

Substantial"

In

1129,

safety

that
or

is

violation
contribute

a

significant
surrounding

likelihood
an

as

mine

designated

properly
particular

based

accordingly

and

violation
Act

other

or

S&S

substantially

and
coal

a

is

violation

and

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the

significantly

could

not

was

stricken.

substantial"

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of

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and

(I)
safety

prove:

mandatory

(3)
in

is,

measure

a

by

to

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will

question

(2)

standard;

safety--contributed
a

underlying

the

hazard--that

safety

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the

Gypsum,

be

of

a

the
that

a

reason-

nature.

Steel

Mininq

stated

further

Company,
as

1763

follows:

Inc.,

7

FMSHRC

1125,

We

explained

have

element

of

the

Secretary

hood

that

sult

in

the

1834,
that,

in

tion

must
Steel

Inc.

and

2007,

2011-12

Mininq
(July
specific
any
the
on
parti-

violation.

498,

that

Co.,
1987).

violated

WFC

the

(April

500-501
Coal

(December

has
plan
Accordingly,

a

FMSHRC

1574-1575

Ohio

establishes

here

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plan.
regulation.

6

based

Youqhioqheny

a

hazard

Steel

the

FMSHRC

sec-

substantial.

whether
be

i0

FMSHRC

of

U.S.

surrounding

facts

effect

1573,

must

of
of

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of

S&S

FMSHRC

emphasized

language

and

FMSHRC

question

The

Texasqulf,
.1988).

mandatory

6

6

Inc.,

contribution

and

re-

in-

an

have

the
the

cause

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cular

is

significant
Mininq
Company,
(August
1984);

is

record

with
it

be

violation

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We

the

1868

1866,
Company,
1984).

tilation

Co.,

1984).

to

that

9

Mininq

(i),

violation

to

is

(August
accordance

104(d)

U.S.

contributed
which
there

that

likeliwill

reasonable

a

in

third

the

"requires

Steel

U.S.
1836

that
formula

hazard

event

an

jury."

further

Mathies
establish

the

force

and

first

the

its

ven-

effect

of

criteria

a

is

established.
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by

second

facet,

discrete

a

safety

is

hazard,

established

evidence.

the

connection

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Shiveley

with

that

lar,

insecure

the

hazard.

by

where

the

feature,

would

themselves
mine

I

S&S.

was

footing

Waders

ticularly

third

the

violation

the

an

obvious
the

is

bottom

with

agree

40,

cause

be
can

(Tr.

Inspector

particu-

In

43).
contribution
to

wearer

neither

apparent

to

the

slip,
parnot
easily

seen.

I

further

likely
ous

injury
Drowning,

the

nature.

possibility

WFC

cites
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top

of

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across

the

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described

loose

a

serious

violation

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and
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bleeder

as

far

843,
of

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1764

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as

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boots.

would

reasonably
serithe

system,
to

appear

accumulations

were

is

reasonably

a

all

existed

16-inch

it

that
of

be

factors

injury.

13

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the

down
cause

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no

argues

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witnesses
will
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the

MSHA's

question

misstepping

of
pulling
reasonably

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with
in

concur

that

the

support
1991.
May

murky

water

exposed

Weisberger

water

to

extended

Inspector
to

thereof

could

slipping
held

the

20
see.

hazards.
hazard

the
feet

"can

mitigated

be

objects
On

sion

July

28,

not

element

level

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in

holding

14

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sion's

to

feel

for

13

FMSHRC

at

847.

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brief

was

filed,

the

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14

FMSHRC

1119.

that

the

"exercise
violation
a

said

and

within

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Mininq
Youqhioqheny

Emery
and

(December
aggravated
by a mine
gence,

means

conclusion

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in

judicial
is

tive,"

the

the

Act,

at

failure

"unwarrantable

to

violation

a

meaning

of

unwarrantable

of

stated

failure

failure

"inattenis
conduct

Emery,

supra,

or

unwarrantable

an

and

negligence

while

"thoughtless,"
"inexcusable."

or

term

history,

that

Act."

the

the

of

legislative

Commission

negli-

ordinary

than

ordinary
Act's

2010

2007,

9

2001.

was

testimony
attempting

testimony

(supra),

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(December

FMSHRC

more

purpose
the

justifiable"

"not

FMSHRC

mony

on

"inadvertent",
constituting

conduct

WFC

relation

based

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2000-2004
9

that

is

that

is

that

operator

in

precedent.

conduct

held

constituting

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the

affirmed.

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1997,
Co.,

Coal

conduct,

Mine

the

FMSHRC

Ohio

&

failure,"

"unwarrantable

sanctions

is
to

the

of

should

Commission

was

rises

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9

Corp.,

the

1987),

Speci-

caution"

of

criteria

the

allegations

Unwarrantable

1987),

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1124.

is

designation

S&S

rulings

whether

at

submerged

WFC's

Commission
noted
in
determining

the
an

after

1992,

the

cautiously

avoided."

be

may

reversed

fically,

walking

by

they

so

since

he

The

Secretary's

WFC's

by
to

comply

describes
the

was

"hands

witness
with

MSHA's

these

efforts.

G.

Ronald

Mr.

in

Thompson's

credit

I

engineer

on"

indicates

Thompson

order.

testi-

his
of

charge

the

effort.

events

that

MSHA's

order.

I

is

since

of

the

hardly

in

a

he

"no

operating

had

reasonable
should

two

by

MSHA's

depth

position
July

the

circumstances

effort

to
be

the

water

idea"

between

Given
failure

in

persuaded

not

am

recollection
he

post-trial

occurred

brief

relies

on

weeks

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view.
on

22.

to

refute

WFC's

of

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extent

to

22

and

July

comply

involved
and

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stricken.

1765

28.

(Tr.

49,

here,

allegations

had

I

no

Further,

50).

efforts
the

issued

Shiveley

(Tr.

which

of

sequence

Shiveley

Mr.

July

the

at

pumping

pumps

were

50).

conclude

WFC

of

unwarrantable

made

a

Pursuant
91-598-R

the

as

to

the

company,

as

indicated

size

of

tons.

the

size

the

of

ability
By

continue

way

of

prior

In

the

period

the

Act

in

presented

WEST

19,

WEST

92-335•

consideration

mandates

May

on

six

of

cri-

penalty.
proposed

assessment,
production

19,539,257
itself

order

is

is

should

and

in

in

PENALTIES

this

company

to

violations

1991.

in

the

CIVIL

Secretary's
by its
Mine
Eagle

Golden

penalty

The

issues

case,

civil

filed

parties

the
all

penalty

the

of
a

According
large

of

address

should

Section
ll0(i)
in
assessing

The

stipulation

the

well

as

teria

19

to

decision

the

1992,

is
not

a

tons.

production

675,916
in

appropriate

is

WFC

affect

relation

to

the

operator's

WFC

was

business.
Exhibit

history:
period

from

June

before

June

I,

S-I

i,
1991,

shows

1991,

to

no

violations

assessed

September

24,
were

assessed.

The

lated
lations

operator's

water

was

not

were

gravity

The

viously

was
negligence
as
noted
extensive,
sufficient
a
always

of

moderate.

depth

violations

the

Exhibit

on

to

high

was

While

the

S-3,
present

such

for

accumuaccumua

the

hazard.

reasons

pre-

discussed.
demonstrated

WFC

faith

good

in

attempting

to

achieve

prompt

abatements.
For

the

herein,

stated

reasons

I

the

following:

failure

in

enter

ORDER

In

The

I.
3244426

91-598-R

of

unwarrantable

Order

No.

Order

STRICKEN.

are

2.

allegations

WEST

The

contest

of

In
3.

Order

4.

A

civil

No.

is

3244426

penalty

WEST

of

3244426

is

DISMISSED.

92-335

AFFIRMED.

$200

is

ASSESSED.

•M°trvieS
Law

1766

Judge

No.

Distribution:
Charles

W..

Newcom,

Denver,

CO

80202

Margaret
ment

Denver,

A.
of

Labor,
Colorado

Esq.,

(Certified

Miller,

Esq.,
Federal

1585
80294

&

SHERMAN

HOWARD,

633

17th

Street

#2000,

Mail)
Office

of

Office

(Certified

ek

1767

the

Solicitor,
1961
Building,
Mail)

U.S.
Stout

DepartStreet,

FEDERAL

MINE

SAFETY

AND

1730

HEALTH

STREET

K

NW.

WASHINGTON.

October

SECRETARY

SAFETY

20006

1992

29,

CIVIL

AND

COMMISSION

FLOOR

6TH

D.C.

LABOR,

OF

MINE

REVIEW

PENALTY

PROCEEDING

HEALTH

(MSHA),

ADMINISTRATION

Docket

Petitioner

No.

A.C.

No.

WEST

92-350-M

05-04117-05507

v.

Screening
CARDER

ORDER

VACATING

SETTLRMRWT

ORDER

TO

ORDER
Before:

This

TO

PAY

before
1992.

review

of

the

me

pursuant

file,

I

to

find

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of

that

relief

to

approve
is

the

Commission

from

the

default

warranted.

Solicitor
in
the

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reduction
Solicitor

also

3451191,

filed

has

penalty

3451194

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section
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of

light

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is

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case,
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settlements.

proposed.
3451187,

the

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3451188,

significant

possibility

and

representations

and

I

conclude

that

the

criteria

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injury

of

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the

proffered

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in

Act.

1992,
ORDERED

is

it

be

and

is

that

the

that

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ORDERED

that

hereby

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motion

for

default

the

approval

of

GRANTED.

further
and

$359

to

to

and

foregoing,

29,

further

settlements

considered
this

the

of

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to

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are

ll0(i)

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have
in

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submitted

motion

$691
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modified

be

designation

tation

a

from

requests

and

substantial

to

is
29,

case

October

Upon

MODIFY

Merlin

Judge

dated

to

#2

DEFAULT

DECISIONAPPROVING

is

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INCORPORATEDo
Respondent

3451194

designation

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be

modified
and

to

unlikely.

1768

Nos.

to

delete

reduce

the

3451187,

3451188,

thesignificant
possibility

and
of

injury

is

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within

$359

further

ORDERED

30

of

days

the

that

the

date

of

operator
decision.

Paul

Merlln

Chief

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By

Kristi

Floyd,

Labor,

1585

CO

80294

Ira

J.

Paulin,

Certified

Esq.,
Federal

Carder,

a

pay

this

of

penalty

Administrative

Law

Judge

Mail

office
office

Solicitor,•U.

the

of

Building,

Inc.,

P,

O.

/gl

1769

1961

Box

721,

S.
Stout

Lamar,

Department
Denver,
Street,

CO

81052

of

FEDERAL

MINE

SAFETY

AND

1730

HEALTH

STREET

K

NW.

WASHINGTON,

SECRETARY

OF

MINE

6TH

D.C.

October

AND

CIVIL

PENALTY

Docket

No.

A.

V.

C.

WEST

92-351-M

05-04209-05507

No.

Operation

Crusher

CARDER

PROCEEDING

HEALTH

Petitioner

#2

INCORPORATEDo
Respondent
ORDER

VACATING

DECISION

This

is

before

29,

1992.

case

October

review

Upon

PAY

TO

Merlin

Judge

dated

SETTLEMENT
MODIFY

TO

ORDER
Before:

DEFAULT

APPROVING
ORDER

is

FLOOR

1992

(MSHA),

ADMINISTRATION

COMMISSION

20006

29,

LABOR,

SAFETY

REVIEW

of

the

me

pursuant

file,

I

to

find

Order

of

that

relief

to

approve
is

Commission

the

from

the

default

warranted.

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in
the

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reduction
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3629195,
cant

3629196,

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light

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dated

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is

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injury

further
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3629195,
cant

of

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further

3629196,
substantial

and
to

to
to

considered
this
case,

in
of

the

the

foregoing,

29,

be

1992,
ORDERED

reduce
the
and

appropriate

are

110(i)

and

settlements.

A

proposed.
3451182,
3629194,

Nos.

modified

be

have

submitted
settlements
section

in

forth

I

$474

to

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proffered

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3629197

unlikely.

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I

under

delete

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signifipossibility
and
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conclude

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the

criteria

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of

set

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it
and

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ORDERED

that

hereby

VACATED.

motion

for

the

approval

default

of

GRANTED.

ORDERED
and

that

3629197

designation

be

Citation
modified
and

unlikely.

1770

Nos.
to
to

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3451182,
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3629194,

signifipossibility
the

of

is

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within

$474

ORDERED

further
30

days

of

the

that

the

date

of

operator

By

Kristi

Floyd,

Labor,

1585

CO

80294

Ira

J.

/gl

Paulin,

Esq.,

Carder,

of

Law

Judge

Department

of

Mail

Certified

Federal

penalty

Administrative

Chief
Distribution:

a

pay

decision.

this

Office
Office

of

Solicitor,

the

Building,

Inc.,

P.

O.

1961

Box

721,

U.
Stout

Lamar,

S.

Street,

CO

Denver,

81052

1772

ADMINISTRATIVE

LAW

JUDGE

ORDERS

MINE

FEDERAL

SAFETY
OFFICE

HEALTH

AND

OF

ADMINISTRATIVE

2

SKYLINE,
5203

FALLS

LAW

lOth

FLOOR

LEESBURG

PIKE

CHURCH,

VIRGINIA

OCT-8
IN

RE:

CONTESTS
DUST

OF

REVIEW

RESPIRABLE

COMMISSION

JUDGES

22041

1992
MASTER

DOCKET

NO.

91-1

ALTERATION

SAMPLE

CITATIONS

CONTEST
ONEIDA

COAL

COMPANY,

PROCEEDINGS

INC.,

Contestant,

Docket

Nos.

through

WEVA

91-I041-R

WEVA

91-I055-R

V.

Citation
SECRETARY
MINE

OF
SAFETY

LABOR,
AND

9862040
9862054

HEALTH

(MSHA),

ADMINISTRATION

Nos.

through
Oneida

Mine

No.

Docket

No.

WEVA

1

Respondent.

ONEIDA

COAL

COMPANY,

INC.,

Contestant,

Citation

V.

SECRETARY
MINE

OF
SAFETY

LABOR,
AND

COAL

Oneida

Mine

Docket

Nos.

9862222

No.

4

HEALTH

(MSHA),
Respondent.

ADMINISTRATION

ONEIDA

No.

91-I056-R

COMPANY,

INC.,
Contestant,

through

WEVA

91-I057-R

WEVA

91-I065-R

V.

Citation
SECRETARY
MINE

OF
SAFETY

ADMINISTRATION

LABOR,
AND

Nos.

9862257

through

9862265

HEALTH

(MSHA),
Respondent.

Oneida

1773

Mine

No.

11

COMPANY,

COAL

ONEIDA

)
)
)
)
)

INC.,
Contestant,

Vo

OF

SECRETARY

Citation

WEVA

91-I066-R

WEVA

91-I073-R

Nos.

9862311

through

HEALTH

(MSHA),
Respondent.

)
)

Oneida

Mine

No.

Docket

No.

WEVA

AND

ADMINISTRATION

Nos.

)
)

LABOR,

SAFETY

MINE

Docket

through

9862318
12

)
COMPANY,

COAL

ONEIDA

)
)
)
)
)
)

INC.,
Contestant,

V.

OF

SECRETARY

AND

9862687

Mine

No.

16

)
)
)

HEALTH

(MSHA),
Respondent.

ADMINISTRATION

No.

Oneida

)

LABOR,

SAFETY

MINE

Citation

91-I074-R

)
DENYING

ORDER

April

On
34

4,

citations

(Oneida).

the
mines

1991,
five

to

April

On

29,

Commission

for

all

that

was

no

alleged,

and

the

On

occur.

until

June

1991,

the

May

not

25,
act

On

and

in

in

1991,

each

17,

1991,
to

the
Oneida

$1,400
part:

for

the

Pursuant

to

from
either

30

of

receipt

of

the

30

C.F.R.

in

the

for
contest

of

become

a

not

i0),
proceedings

the

On

cases.

15,
I

stay.

issued
Secretary
proposed
of
penalties
proposing
violations.
The
alleged

C.F.R.

100.7,

this

proposed

final

May

inadvertence,

of

you

have

30

assessment

MSHA
that
the
or
notify
penalty,
pay
wish
the
assessment
to
contest
proposed
you
a
on
the
and
that
hearing
request
you
in
before
violations
the
Federal
question
Review
Commission.
Mine
and
Health
Safety
exercise
the
herein
not
do
rights
you
within
of
this
described
30
of
receipt
days
this
assessment
assessment,
proposed
proposed

will

as

did

May

stay

Because

me.

Inc.

70.209(b)
citation

Commission

the

motion

to
for

notices

a

of

assigned
motions

the

on

by

and

answer

were

June

$1,300,

an

the

(received

1991

9,

issued

Labor
(Secretary)
Oneida
Coal
Company,
filed
notices
of
contest
citations.
notice
Each
of

Oneida
of

DISMISS

by

violation
described

actions

the

cases

assessment
states

that

filed

Secretary

did

there

Secretary
operated

1991,

asserted

with

TO

MOTION

order

1774

of

the

Commission

penalty
$1,200,
form

days
to

If

notice

will

and

be
Mine

Federal
notice

the
operator
Oneida
did
it
wished
before

to

return

the

contest

blue

the

Office

Compliance
penalties
penalties

letters

sent

the

proposed

on

deemed

by

June

used

notify
and

the

1991,

Hearing
be

Oneida

17,

on

the

ground

of

law

final

MSHA

request

demanding

that

hearing
Penalty

a

Civil

MSHA

to

by

assessment.

otherwise

or

30,

for
to

penalty

penalties

July

On

the

1977.

intended

the

card

of

"Request

card")
on

of

Act

entitled

proposed

Commission.

the

form

a

provisions
Health

and

"blue
(the
a
hearing

request

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to

under

Safety

included
Commission"

Each
Review

with

enforced

payment

for

that
the
"became
30
after
the
delinquent
final
days
order
of
the
Review
Commission."
On
Oneida's
August
Ii,
1991,
Safety
Director
wrote
to
the
Office
it
Compliance
that
Oneida
informing
filed
had
notices
of
contest
for
each
of
the
citations
on
1991.
MSHA
April
29,
dated
replied
October
by letter
15,
1991,
that
because
Oneida
failed
to
a
Commission
request
within
hearing
30
of
its
of
the
days
receipt
proposed
the
penalty
...

assessments,

penalties

were

Commission.
does
civil

proposed
wrote

further

It

citations

intention

to

also

the

that
its

Oneida
intention

related

penalty."

to

notices

of

timely

request

motion

the

than
filed

to

our

but

letter
had

contest
and
that

one

year
motion

a

argued
indicated
further

a

of

1992,

2,

after

the
dismiss

to

Oneida

that

notices

the

October

counsel
record

unnecessary.

ground

after
On

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was

the

the

the

themselves,

penalties."

(more
Secretary

hearing

for

of

of

underlying

associated
Oneida's

1991,

citations

notices
citations

the
documents

on

the

of

the

orders
the

of

"reiterating

1992

served.

to

5,

civil

cases
a

were

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contest
November

the

the

contest

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only

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penalty

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payment),

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opposition

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proposed

demanding

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to

response

stated

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operation

letters
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dismiss.
Issue

question

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failure
their

receipt

notices

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to

presented

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mandates
contest.

dismissal

Section
Section
105(a)
to
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notify

fails
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Secretary's
that

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proposed

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operator

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of

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paid

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and

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9

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pages

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105

penalty

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consistently

between
civil

true."

the

section

rather

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as

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in

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become

of

at

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assertion

its

notice

that

that

view

the

length

have

at

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considered

of

interrelationship

proceeding

a

We

section
review

substantive
it.

file

observed

whole.

construed

share

penalty
challenge

provisions

interrelated

not

some

and

(1987)

and

civil

211.

subsections

two

the
pay
Commission

the

do

held

the

and

is
regarded
Commissioner

opinion,
operator

the

Act

mine

the

after

penalties

the

underlying
citation,
must
an
payment,
operator
Secretary's
subsequently
proposed

to

a

the

urgent

an

Commission

the

Commission
violation

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existence

the

an

(1985),

proceeding

penalty.

concurring

agree
thereafter

contested,
contest

a

for

absent

would
be
proceeding
the
penalty
case,
and
for
ripe
hearing."

with
205

penalty

a

that

contest

FMSHRC

violations

reflect

In

209.

7

proposed
the
deny
penalty

contained

"while

the

105(d)
immediately

citation

consolidated

reviewing

after

section

of

stated

hearing,

Fuels

Energy

that

abated

an

Commission

The

Coal
Company,
the
dismissal

operator

found

assessment

subsequently
is
penalty
proposed,

"the

Old
affirmed
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...

prior

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Act,

the

Act,

Commission,

the

contest
to

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charged.

time

of

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(1979),

299

operator

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at

decision

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citation.

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(b)

hearing.

a

assessment

of
this
section"
shall
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Commission
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Act,

or
(a)
Secretary
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subsection

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their

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eschewed

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with

recently,

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Commission

the

276

275,

to

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Westmoreland
"where
civil
a

that

(1989),

genuine

respect

of

the

Coal

Company,

ii

penalty

has

payment

in

stated

penalty,
FMSHRC

been

paid

by

to
contest
the
violation
operator's
right
be
lost."
not
In
a
2333
v.
compensation
may
proceeding,
•ocal
I0
FMSHRC
618
the
Commission
held
that
Fuel,
612,
(1988),
Ranger
civil
is
or
"once
a
becomes
a
final
order
paid
penalty
by
section
of
the
assertion
of
violation
contained
operation
105(a),
citation
in
the
cannot
be
contested
in
a
subsequent
proceeding
Mine
under
the
Act."
In
Rivco
(emphasis
added).
Dredging
i0
FMSHRC
624
the
Commission
vacated
an
Corporation,
(1988),
dismissal
order
of
of
contest
because
the
proceedings
operato•
in
misunderstood
the
need
to
apparently
acting
faith,
good
object
to
the
in
assessment
addition
to
its
proposed
penalty
prior

mistake,

the

the

citations

of

contest

"in

that

like

cases

should

operate

not

objections

filing

this,
to
deny
or

orders.',

Secretary,

v.

notice

of

of

Secretary,
Cetti,
during
proceedings,
in
part
granted
to
resulting
pay

Company

ii

FMSHRC
of

Ii

contest

which
order

See

(1989)

a

its

failure

Rule

60(b)

(allowed

late

Creek

Coal

Beaver

Commission
merits

(ALJ),
the

between
motion

operator's

from

(ALJ)

on

settlement

a

the

to

to

its

present

Diamond

In

(1989)
hearing

1213
of

stated

alone

Blue

also

citation).

course

the

the

2629

approved

order

missteps
to
opportunity

procedural

FMSHRC

the

Commission

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party

a

contest

v.

Judge

orders.

innocent

citations

to

Company

and

of

parties
the
final
penalty

vacate

the

contest

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assessments.

Commission's

The

Commission

by

pertinent

any

..."

Procedure

principles
Rules

Civil

of

relieve

a

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denial

of

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based
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such

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Oneida's

deemed

was

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waited

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for

final

of

the
to

than

October
one

or

if

case,

from

to

file

1777

of

the

I

her

note

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on

proposed
did

so

that
motion

Federal
motion

to

of

neglect,
60(b)
time,

require
requires
and

if

neglect,
proceeding
assessment

on

motion,
Secretary's

the

1992.

Civil

excusable
order
or

the

it

Commission,
the
Secretary's
i,

year

reasonable

judgment,

the

relief

for

until
more

a

surprise,
this

In

Rule

However,

within

after

year

response
motion

excusable

or

motion.

practicable

of
that

because

order

or

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as

court

a

judgment

filed

argues

60(b)(1)

authorizes

surprise,

that

far

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Rule

which
a

provide
so
guided

Federal
Oneida

2700.1.

taken."
order

filed

the

underlying

be

one
or

be

inadvertence,

than
a

be

C.F.R.

policies
Procedure,

mistake,

more

1991.

of

motion

entered

became

provisions

from
party
inadvertence,
the
Secretary's
a

on

was

judges

"shall

29

and

Rules

Procedural

its

and

July

17,

which
it
asks
demand
orders,
the
Secretary
to

dismiss.

However,

I

Oneida's

counsel

order.
to

I

consider

cannot
to

the

MSHA

conclude

as

a

for

under

Rule

relief

that

5,

letter

1991

relief

from
final

from
a
is
not

60(b)

available

Oneida.

Mistake,
It

is

clear

Director

of

contest
sufficient

filed

in

theperson
believed
with

Training,

and

April

on

29,1991,

indicate

to

it

that

penalty

assessments.
its
that
belief
was
Oneida
was
represented

indicate

Unlike

Rivco,

Creek,

Oneida's

Missteps

Procedural

Oneida

that

Safety

subsequent
to

November
motion

is

counsel

has

handled
cases
before
many
notices
the
of
the
proposed
counsel
he
had
filed
although
before
and
the
was

Edward
the
Commission
of

the

contested
There
other

is

nothing

than

assessments

the

faith

good

a

counsel.
in
mine
experienced
the
Commission.

and

in

by

safety

Beaver

matters
and
other
hand,
to
Oneida's

Onthe
not

the
record

mistake.

Unlike

were

of

were

citations

the

its

Bauer,
notices

that

sent

the

contest
cases
months
many
his
aware
of
I
representation.
conclude
that
Onelda's
failure
to
file
notices
the
contesting
assessments
resulted
from
a
faith
penalty
good
misunderstanding
of
"the
need
to
to
the
two
different
object
separately
aspects
the
same
The
supra.
dual
dispute."
Rivco,
of
requirements
sections
and
and
their
105(a)
105(d),
are
relationship
misunderstood
mine
and
by many
I
was
operators
one
attorneys.
the
drafters
of
the
Commission's
Interim
Procedural
Rules
in
and
less
than
were
clear
to
1978,
they
me.
A
crystal

Secretary

misunderstanding

such
is

and

occurrence

here

happened

as

is

not

an

uncommon

surprising.

not

Prejudice
In

the
is

the

a

that

she

was

to

with
time
comply
limitations,
to
the
other
prejudice
party
The
has
not
Secretary
failure
to
file
by Oneida's
and
is
not
assessments,
prejudice
me.
I
conclude
that
Therefore,
in

resulted
consideration.

she

was

of

the

contests

failure

any
it

whether

important

very

contended

timely
apparent

of

case

question

prejudiced
penalty

from
the
record
not
prejudiced.

before

Substance

Realistically,
contest

citations.

filing
the
notify

by

assessments

It

is

there

citations

the

the
indicated

and

clearly
notices

of

contest.

Secretary
(a "different

that

it

the

Formalism

v.

no

doubt

that

violations

intention
to
the

to

the

to

the

Oneida

to

the

proposed

Secretary
again
penalty

same

dispute"

as

Requiring

1778

in

alleged

that

objected
of
aspect

intended

Oneida

the

of

of

order

•vco
Oneida's

failure

to

proposals
Secretary

was

a

or

the

penalize
objections

Oneida

where

return

mistake.

hold

the

final

of

contesting
has

substance.

over

the
misled

not

penalty
the

operate

severely

to

to
opportunity
present
in
penalties
proceedings

the

the
circumstances
notices
of
contest
to
contest
the

under

timely

mistakenly

but

assessments,
orders

it

I

formalism

shouldnot

It

that
filed

operator

citations,

elevate
the
forms
The
mistake

Commission.

I

the

to

anddeny
the
proposed

to

Commission.

is

it)

terms

failed

citations
the
Commission.

proposed

and

its
before

present
of

the

here,
the

proposed

penalty

penalties

did

the

captioned

not

become

ORDER

Accordingly,
contest

the
is

cases

motion

to

dismiss

above

DENIED.

Broderick

A.

ames

Administrative

Judge

Law

Distribution:

Timothy
Esq.,

M.

Biddle,

Esq.,

Crowell

&

Moring,

Washington,
Douglas
Solicitor,
Arlington,

D.C.

N.

White,
U.
VA

S.

Thomas

C.

Means,

20004

Pennsylvania
(Certified
Mail)

Esq.,

Mark

Esq.,
Avenue,

i001

Department
22203
(Certified

R.
of

Malecki,
Labor,
Mail)

Esq.,
4015

Wilson

J.

Michael

Klise,

N.W.,

Office

of

the

Boulevard,

/fcca

1

ed.
defined

Language

recognized

Concise Oxford
is
defined
in
the
Dictionary
"excessive
adherence
to
forms
..."
prescribed
the
American
of
the
Heritage
Dictionary
English

Formalism

1990)as
in

(3rd
forms

ed.

1992)

as

"[r]igorous

..."

1779

or

excessive

adherence

(8th
is

It

to

1780