NOVEMBER 1988

COMMISSION DECISION
11-28-88 Local 2274 v. Clinchfield

VA 83-55-C

Pg. 1493

CENT 88-26-M
SE
87-116-M
WEVA88-244
VA
88-19-D
LAKE 88-54-M
LAKE 88-55-M
LAKE 88-58-M
LAKE 88-59-M
LAKE 88-62-M
WEVA88-6-R
PENN 88-152-R
WEVA 88-193
WEVA 88-169-R
WEST 87-186-C
CENT 88-157-DM
WEVA 88-176
KENT 88-13-R
WEST 88-157-D
WEVA 88-167

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LAKE 88-122-M

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ADMINISTRATIVE LAW JUDGE DECISIONS
11-02-88 Fleniken's Sand & Gravel
11-02-88 Hoover Incorporated
11-02-88 Consolidation Coal Company
11-04-88 Sec/D. Wagner v. Clinchfield Coal
11-07-88 Columbia Portland Cement
11-07-88 Columbia Portland Cement
11-07-88 Columbia Portland Cement
11-07-88 Columbia Portland Cement
11-07-88 Columbia Portland Cement
11-15-88 Southern Ohio Coal Co.
11-17-88 Rochester & Pittsburgh Coal Co.
11-23-88 U.S. Steel Mining Company
11-28-88 Marion Docks, Inc.
11-28-88 Local 9958 v. Kaiser Coal Corp.
11-28-88 UMWA/Paul Luce v. Unimin Corporation
11-28-88 Consolidation Coal Company
11-29-88 Green River Coal Company
11-29-88 E. Bruno v. Cyprus Plateau Mining
11-29-88 Oneida Coal Company
ADMINISTRATIVE LAW JUDGE ORDERS
10-04-88 Material Service Corporation

NOVEMBER 1988
Review was granted in the following case during the month of November:
Rochester and Pittsburgh Coal Company v. Secretary of Labor, Docket No.
PENN 88-194-R. (Judge Fauver, September 27, 1988).
Review was denied in the following case during the month of November:
Green River Coal Company v. Secretary of Labor, Docket No. KENT 87-202-R,
etc. (Judge Fauver, October 21, 1988).

COMM.ISSION DECISIONS

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

November 28, 1988
LOCAL UNION 2274, DISTRICT 28,
UNITED MINE WORKERS OF AMERICA

v.

Docket No. VA 83-55-C

CLINCHFIELD COAL COMPANY

BEFORE:

Backley, Doyle, Lastowka and Nelson, Commissioners

DECISION
BY THE COMMISSION:
This compensation proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act" or
"Act"). We previously remanded this matter for further proceedings to
determine whether a causal nexus existed between an imminent danger
withdrawal order and violations of mandatory standards and, if such a
nexus were found, to award specific sums of compensation due miners
idled by that order. 8 FMSHRC 1310 (September 1986). On remand, the
parties stipulated that such a nexus existed and Commission
Administrative Law Judge Gary Melick awarded compensation including
prejudgment interest but denied the claim of complainant United Mine
Workers of America ("UMWA") for attorney's fees and costs. 9 FMSHRC
1276 (July 1987)(ALJ). We granted petitions for discretionary review
filed by both parties. For the reasons that follow, we affirm the
judge's award of prejudgment interest on the compensation due and his
denial of attorney's fees and costs. We further announce a modification
in the method of calculating interest in both compensation and
discrimination cases arising under the Mine Act.
I.

Factual and Procedural
Background
The compensation claim at issue arose following an underground
explosion on June 21, 1983, at the McClure No. 1 underground coal mine
of Clinchfield Coal Company ("Clinchfield") located in Dickerson County,

1493

Virginia. On the morning of June 22, 1983, an_inspector of the
Department of Labor's Mine Safety and Health Administration ("MSHA")
issued to Clinchfield a withdrawal order, pursuant to section 103(k) of
the Mine Act, 30 U.S.C. § 813(k), affecting the entire mine. Later that
same morning, the inspector issued to Clinchfield an imminent danger
withdrawal order, under section 107(a) of the Act, 30 U.S.C. § 817(a),
also affecting the entire mine. The imminent danger order was
terminated on July 18, 1983, and on September 30, 1983, the UMWA filed a
complaint for one-week compensation pursuant to the third sentence of
section 111 of· the Act on behalf of the miners idled due to the imminent
danger order. l/
On March 26, 1984, MSHA issued to Clinchfield one citation and
four withdrawal orders pursuant to section 104(d)(l) of the Act, 30
U.S.C. § 814(d)(l), three of which alleged that the cited violations had
resulted in a methane ignition causing the June 21 explosion at the
McClure No. 1 Mine.
In a summary decision issued on July 23, 1984, the Commission

ll

In relevant part, section 111 of the Act, as codified, provides:
Entitlement of miners to full compensation
[l] If a coal or other mine or area of such mine
is closed by an order issued under section 103,
section [104], or section [107], all miners working
during the shift when such order was issued who are
idled by such order shall be entitled,-regardless of
the result of any review of such order, to full
compensation by the operator at their regular rates
of pay for the period they are idled, but for not
more than the balance of such shift. [2] If such
order is not terminated prior to the next working
shift, all miners on that shift who are idled by
such order shall be entitled to full compensation by
the operator at their regular rates of pay for the
period they are idled, but for not more than four
hours of such shift. [3] If a coal or other mine or
area of such mine is closed by an order issued under
section [104] or section [107] of this title for a
failure of the operator to comply with any mandatory
health or safety standards, all miners who are idled
due to such order shall be fully compensated after
all interested parties are given an oppor.tunity for
a public hearing, which shall be expedited in such
cases, and after such order is final, by the
operator for lost time at their regular rates of pay
for such time as the miners are idled by such
closing, or for one week, whichever is the lesser.

30 U.S.C. § 821 (sentence numbers added).

1494

administrative law judge originally assigned to hear the case denied the
UMWA's co~pensation claim. 6 FMSHRC 1782 (July 1984)(ALJ). Despite
tclking official notice of MSHA's accident investigation report, he
regarded as decisive MSHA's failure to actually modify the imminent
danger order to expressly allege a violation of a mandatory standard
and, accordingly, dismissed the compensation claim. 6 FMSHRC at 1784.
The Commission granted the UMWA's petition for discretionary review.
In our decision reversing the judge, we held that: the initial
section 103(k) control order did not preclude MSHA's subsequent issuance
of the section 107(a) i1TII!linent danger withdrawal order and, for purposes
of section 111 one-week compensation, the mine was closed "by" and the
miners were idled "due to" the imminent danger order; an imminent danger
order need not itself allege a violation of a mandatory standard in
order to trigger entitlement to one-week compensation; and allegations
of violations cited subsequently by MSHA in section 104 citations or
orders may supply the required nexus between the imminent danger order
and a violation of a mandatory standard. 8 FMSHRC at 1313-14. We noted
that Clinchf ield had not contested the subsequently issued section
104(d)(l) citation and withdrawal orders and that the UMWA had asserted
that the allegations of violation contained therein provided the
requisite nexus. 8 FMSHRC at 1314. We remanded for a determination
whether such nexus existed and, if so, for award of the specific sums of
compensation due the miners idled by the imminent danger order.
Id. '];/
In subsequent proceedings before Judge Melick, the parties
stipulated that "a causal nexus existed between the 107(a) order issued
to Clinchfield's McClure No. 1 Mine ... and a violation of a mandatory
standard in the ... Mine." 9 FMSHRC at 1277. '}_/ They also stipulated
to a list of miners on whose behalf the UMWA was seeking compensation,
their rates of pay as of June 23, 1983, and the amount of compensation
sought on behalf of each such miner. Id. The UMWA further requested
interest on the compensation award and-also sought attorney's fees and
costs. In preservation of its appeal rights, Clinchfield repeated the
same legal arguments in objection to compensation that it had raised
before the Commission during the preceding review of the case.
The judge rejected Clinchfield's objections to compensation as
having been disposed of by our first decision in this matter. 9 FMSHRC
at 1277. Based on the parties' stipulations, he found that a causal
nexus existed between the imminent danger withdrawal order and an
underlying violation of a mandatory standard. 9 FMSHRC at 1276-77.
Accordingly, he concluded that the miners on the stipulated list were
~/

Our Clinchfield decision was one of three similar cases issued the
same date resolving significant compensation issues. The other two
decisions were Loe. U. 1889, UMWA v. Westmoreland Coal Co., 8 FMSHRC
1317 (September 1986); and Loe. U. 1609, UMWA v. Greenwich Collieries,
Div. of Penn. Mines Corp., 8 FMSHRC 1302 (September 1986).

ll

Because the judge who had originally heard the case had retired
from the Commission, the case was reassigned on remand.

1495

entitled to the lost wages set forth in the list. Citing Peabody Coal
Co., 1 FMSHRC 1785 (November 1979) and Youngstown Mines Corp., 1 FMSHRC
990 (August ·1979), cases arising under the Federal Coal Mine Health and
Safety Act of 1969, 30 U.S.C. § 801 i l se_g. (1976)(amended 1977)("the
1969 Coal Act"), he granted the UMWA's request for prejudgment interest
on the compensation. Id. He ruled that the interest was to be
calculated according to the formula established for determining interest
on back pay awards in discrimination cases set forth in Secretary on
behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042 (December 1983).
Id. Finally, relying on Alyeska Pipeline Service Co. v. The Wilderness
Soc., 421 U.S. 240 {1975), he denied the UMWA's claims for attorney's
fees and costs. Id.
Before us the UMWA contests the judge's denial of attorney's fees
and costs. The UMWA additionally requests the Commission to modify the
methud of calculating interest to accord with the revised back pay
interest formula of the National Labor Relations Board ("NLRB")
announced in New Horizons for the Retarded, Inc., 283 NLRB No. 181, 125
LRRM 1177 (May 28, 1987). Clinchfield reasserts its legal objections to
awarding compensation in this matter. It also challenges the judge's
award of interest and, in any event, notes that the NLRB's new method of
calculating interest has caused the Commission's Arkansas-Carbona
formula to become outdated.
II.

Disposition
A.

Clinchfield's objections to compensation

Clinchfield has reiterated its basic objections to an award of
compensation in this case -- that the miners were not idled due to the
imminent danger order because the mine had been closed initially by the
section 103(k) control order, and that the imminent danger order cannot
trigger compensation because it did not allege on its face a violation
of a mandatory standard. These same points were raised, considered, and
decided adversely to Clinchfield in our first decision. See 8 FMSHRC at
1313-14. See also Westmoreland, supra, 8 FMSHRC at 1323-30. However,
in a letter submitted after its brief and served on all parties in this
case, Clinchfield asserts that the intervening decision in Int'l U.,
UMWA v. FMSHRC, 840 F.2d 77 (D.C. Cir. 1988), rev'g Loe. 5817, UMWA v.
Monument Mining Corp., etc., 9 FMSHRC 209 (February 1987), supports its
argument that an imminent danger order must allege on its face a
violation of a mandatory standard in or~er to initiate an award of oneweek compensation. We disagree.
Int'l U., UMWA involved the distinct issue of an owner-operator's
liability for compensation based upon a withdrawal order issued to an
independent contractor. In reversing a split opinion by the Commission
holding that "the 'operator' responsible for the conditions or
violations underlying the section 111 claim is the sole operator
responsible for compensating the idled miners" (Monument Mining, supra,
9 FMSHRC at 212), the Court commented upon one of its prior decisions

1496

concerning the compensation provisions of the 1969 Coal Act:
Some of the language in the ..• [Commission's
Monument Mining] opinion could be read ... to
suggest a role for the Administrative Law Judge in
the section 111 compensation proceeding in
determining whether the cited operator was alone
responsible for the underlying violation. Such an
interpretation would be in tension with this court's
holding (in a case under the Coal Act) that ~
compensation order could be based only on the
withdrawal order "as issued," and not on the
underlying facts which might have justified a
broader order. District 6, UMWA v. Department of
the Interior Bd. of Mine Operations Appeals, 562
F.2d 1260, 1263 (D.C. Cir. 1977).
840 F.2d at 80 n.5 (emphasis added). See also 840 F.2d at 84 n. 14.
The District 6 decision cited by the court was an opinion under the 1969
Coal Act affirming Billy F. Hatfield v. Southern Ohio Coal Co., 4 IBMA
259 (1975), which we discussed and distinguished in our Westmoreland
compensation decision. 8 FMSHRC at 1328-29 n.5.
In the District 6 proceedings, the D.C. Circuit and the Interior
Board of Mine Operations Appeals had rejected the UMWA's claim that it
should be permitted to allege and prove in a compensation proceeding
that an imminent danger withdrawal order was actually based on
conditions that would have justified issuance of a withdrawal order
pursuant to 30 U.S.C. § 814(c)(1976)(amended 1977), based on an
operator's "unwarrantable failure" to comply with a mandatory health or
safety standard. If established, such proof would have supported a
claim for one-week compensation. See 4 IBMA at 265-69; 562 F.2d at
1263-68. ~/ As we explained in we;:t;oreland, we believe that the
holding in District 6 was based on the conclusion that the UMWA's
attempt to prove unwarrantable failure in pursuit of a larger award of
compensation improperly usurped the Secretary's enforcement and
prosecutory role in issuing appropriate withdrawal orders. 8 FMSHRC at
1328-29 n.5. Here, however, the Secretary as the enforcer of the Act
has issued the requisite imminent danger order capable of supporting a
one-week compensation claim under section 111 since such order was
issued due to Clinchfield 1 s failure to comply with mandatory safety
standards. The UMWA has not been attempting to prove "underlying facts
which might have justified a broader order" (Int'! U., UMWA, supra, 840
F.2d at 80 n.5). A District 6 issue would be posed in this matter if
the Secretary had issued only the initial section 103(k) control order
and, absent an imminent danger order or a section 104 withdrawal order,
~/

Under the Coal Act only a withdrawal order based on the operator's
unwarrantable failure could trigger entitlement to one-week compensation. See 30 U.S.C. § 820(a)(1976)(amended 1977). In contrast, under
the third---;;ntence of section 111 of the Mine Act (n.1 supra), one-week
compensation may be triggered when imminent danger orders are issued
under section 107 or withdrawal orders are issued under section 104.

1497

the UMWA had sought to prove, in pursuit of a one-week compensation
claim, that the underlying conditions would have justified issuance of
an imminent danger order or a section 104 withdrawal order. Thus, the
concerns addressed in District 6, and referred to in passing by the
court in Int'l U., UMWA, are not present here. ll
Finally, we reemphasize our view that the argument that a section
107 imminent danger order must allege a violation on its face in order
to initiate one-week compensation is at odds with section 111, the
purposes of the Act, and the last sentence of section 107(a), 30 U.S.C.
§ 817(a), which expressly permits the subsequent issuance of a citation
for any violation allegedly involved in the imminent danger. See
Westmoreland, 8 FMSHRC at 1327-28. As was the case in this matter,
imminent danger orders are often issued under urgent circumstances. As
stated in Westmoreland:
[T]he overriding purpose of an imminent danger order
is the immediate withdrawal of miners .•.• [D]ue to
the dangerous conditions giving rise to the order,
inspection or investigation of the area to determine
the existence of any underlying violations may be
delayed necessarily until long after the order was
issued or until the imminent danger no longer
exists.
8 FMSHRC at 1328 (emphasis in original).
For the foregoing reasons, and as more fully discussed in our
prior decision, we reaffirm our rejection of Clinchfield's objections to
one-week compensation in this matter.
B.

Award of attorney's fees and costs

The UMWA seeks review of the judge's denial of its request for
attorney's fees and costs. The judge based his denial on Alyeska

ll

In this proceeding we have permitted the UMWA to attempt to
establish a nexus between the issuance of an imminent danger withdrawal
order and an underlying violation of a mandatory standard. However, a
showing of nexus -- since stipulated to by the parties -- does not usurp
any Secretarial role, because the Secretary fulfilled her role by
issuing the imminent danger order and a citation and several withdrawal
orders containing allegations of violations of mandatory standards.
Section 111 does not require the Secret~~y to set forth compensationrelevant nexus findings in her withdrawal orders or related enforcement
actions. See Westmoreland, 8 FMSHRC at 1327-30. As we made clear
recently in a similar context, citations and withdrawal orders issued by
the Secretary integrally pertain to the Act's enforcement and civil
penalty scheme, while the nexus concept referred to herein arises solely
in the compensation sphere. See Loe. U. 2333, UMWA v. Ranger Fuel
Corp., 10 FMSHRC 612, 620-21 (May 1988). As the D.C. Circuit observed in
Int'l U., UMWA, the Secretary plays no role in compensation proceedings.
840 F.2d at 81-82 & n.6.

1498

Pipeline, supra, in which the Supreme Court endorsed the "American Rule"
tl~at atto_rney' s fees are not ordinarily recoverable by the prevailing
party in federal litigation in the absence of statutory authorization.
See 421 U.S. at 247-71. In decisions issued one month after the judge's
decision in this matter, we concluded that private attorney's fees are
not awardable under the Mine Act to a complainant who retains private
counsel in a discrimination complaint proceeding brought by the
Secretary of Labor on the complainant's behalf pursuant to section
105(c)(2) of the Act, 30 U.S.C. § 815(c)(2). Odell Maggard v. Chaney
Creek Coal Corp., etc., 9 FMSHRC 1314, 1322-23 (August 1987), pets. for
review filed, No. 87-1494 (D.C. Cir. September 17 & 21, 1987); John A.
Gilbert v. Sandy Fork Mining Co., Inc., 9 FMSHRC 1327, 1339 n.6 (August
1987), pet. for review filed, No. 87-1499 (D.C. Cir. September 21,
1987).
We based our attorney's fees holding in Maggard and Gilbert upon
our acquiescence, absent contrary judicial authority, in the Fourth
Circuit's decision in Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639,
643-44 (4th Cir. 1977), reversing the Commission's former policy
announced in Secretary on behalf of Robert A. Ribel v. Eastern Assoc.
Coal Corp., 7 FMSHRC 2015, 2021-27 (December 1985). The Fourth Circuit
generally founded its rejection of private counsel fees and costs in
section 105(c)(2) discrimination proceedings upon Alyeska Pipeline's
affirmation of the "American Rule. 11 813 F.2d at 643. The Fourth
Circuit discerned no statutory authorization for private counsel fees
and costs in connection with a discrimination complaint brought by the
Secretary pursuant to section 105(c)(2), and contrasted that situation
with section 105(c)'s express allowance of such feas and costs to
successful complainants in a section 105(c)(3) proceeding. 813 F.2d at
644. Thus, under the "American Rule" applied to the Mine Act as set
forth in the Fourth Circuit's Ribel decision, attorney's fees are not
available to prevailing litigants under the Mine Act, except where the
Act specifically authorizes such fees.
Neither section 111 nor any other provision of the Mine Act
provides for an award of attorney's fees and costs in compensation
proceedings. The Act's legislative history is silent on this subject.
In the absence of specific statutory authorization, therefore, we follow
the "American Rule" in this context and affirm the judge's disallowance
of attorney's fees and costs. Alyeska Pipeline, supra; Ribel (4th
Cir.), supra; Maggard, ~ra; and Gilbert, supra.
C.

Interest issues

Two major interest issues are presented: whether interest is due
on compensation awards under section 111 and, if so, whether prejudgment
interest may be allowed; also, if interest is available, how are its
rate and amount to be calculated? In cases arising under the Coal Act,
the Commission allowed interest on compensation awards, and we perceive
no reason to adopt a more restrictive rule under the expanded
compensation provisions of the Mine Act.
1.

Interest on compensation awards and prejudgment
interest

1499

With respect to the first issue, interest is the compensation
allowed by law on the use or detention of money (~, 45 Am. Jur. 2d,
Interest and Usury § 1 (1969)), and reflects the value of money over
time. Interest is not a penalty but is merely an appropriate recompense
for the loss over time of the use of money. See, ~' Clark v. Paul
Revere Life Ins. Co., 417 F.2d 683, 686 (8th Cir. 1969); United States
v. United Drill & Tool Corp., 183 F.2d 998, 999 (D.C. Cir. 1950). As we
have analogously determined with regard to the Mine Act's antidiscrimination provisions:
The miner [who has suffered discrimination] has
not only lost money when he or she has not been paid
in violation of section 105(c), but has also lost
the use of the money. As the NLRB has stated with
regard to interest on back pay awards under the
National Labor Relations Act, "[t]he purpose of
interest is to compensate the discriminatee for the
loss of the use of his or her money." Florida Steel
Corp., 231 NLRB 651, 651 (1977).
Arkansas-Carbona, supra, 5 FMSHRC at 2050.
Section 111 compensation replaces pay that miners have lost as the
result of an idlement attributable to the issuance of withdrawal orders
specified in section 111. See generally Westmoreland, 8 FMSHRC at 132324. See also Int'l U., UMWA, supra, 840 F.2d at 81-82 & n.6; see also
S. Rep. No. 181, 95th Cong., 1st. Sess. 46-47 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong.,
2d Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 634-35 (1978) ("Legis. Hist.") When. miners lose pay because
of an idling order, they also lose the use of that pay. Thus, interest
on a section 111 award operates to compensate miners for the loss of use
of their money over a period of time.
Section 111, like its predecessor, section llO(a) of the Coal Act,
30 U.S.C. § 820(a)(l976)(amended 1977), does not expressly provide for
interest on compensation. However, as we recognized in approving
interest on compensation awards under the Coal Act, we conclude that
interest is implied within section lll's remedial pay protection scheme.
See Youngstown, supra, 1 FMSHRC at 995-96; Peabody, supra, 1 FMSHRC at
1792. As we observed in Youngstown: "It is well settled that the
omission of a mention of interest in [federal] statutes which create
obligations does not show necessarily a Congressional intent to deny
interest." 1 FMSHRC at 996, quoting Philip Carey Mfg. Co. v. NLRB, 331
F.2d 720, 729 (6th Cir.), cert. den., 379 U.S. 888 (1964). See also,
~· Int'! Bhd. of Operative Potters v. NLRB, 320 F.2d 757, 760-61
(D.C. Cir. 1963); United Drill & Tool Corp., supra, 183 F.2d at 9991000.
The principle that a federal statutory obligation may bear
interest even though the statute makes no provision for it is rooted in
Rodgers v. United States, 332 U.S. 371, 373-74 (1947). Under Rodgers,
interest is awardable in such contexts depending upon the purpose of the
statute, whether the statutory obligation in question is in the nature

1500

of a debt rather than a penalty, and the interplay of the relative
equities involved. 332 U.S. at 373-74. See also Philip Carey Mfg. Co.,
supra, 331 F.2d at 729-30; United Drill & Tool Corp., 183 F.2d at 999.
As emphasized already, the purpose of section 111 compensation is
to replace miners' wages lost as a result of idling orders.
Accordingly, the obligation to pay this statutory compensation is in the
nature of a debt owed by the operator to the miner. Plainly,
compensation under section 111 is not a penalty or fine, upon which an
~ward of interest would be improper.
See Rodgers, supra, 332 U.S. at
374-76; see also Legis. Hist., supra, at 634-35. Further, during the
period of time that a miner has not been compensated, the operator has
retained the use and benefit of that money. As we noted in Youngstown:
It is recognized under our legal system that wageearners are heavily dependent upon wages, which more
often than not constitute the sole resource to
purchase the necessities of life from day to day ....
Many wage-earners who are deprived of their wages
doubtlessly find it necessary to borrow money to
sustain themselves and their families, paying rates
of interest ... [to do so].
1 FMSHRC at 996, quoting Philip Carey Mfg. Co., supra, 331 F.2d at 730.
Thus, we perceive no inequity in requiring a mine operator, liable for
section 111 compensation, to repay miners for the time value of their
compensable pay. Therafore, we conclude in agreement with the judge
that interest may properly be included in a compensation award. See,
~·Youngstown, supra; Philip Carey Mfg. Co., supra; Int'l Bhd. of
Operative Potters, supra; United Drill & Tool Corp., supra. QI

QI
Courts have allowed interest on a wide variety of federal
statutory obligations even though interest was not mentioned in the
applicable statutes. For example, such interest has been permitted on:
back pay awards under the National Labor Relations Act, 29 u.s.c~ § 151
et seg. (1982)("NLRA"): ~·Philip Carey Mfg. Co., 331 F.2d at 729-31;
Int'l Bhd. of Operative Potters, 320 F.2d at 760-61; Reserve Supply
Corp. of L. I. v. NLRB, 317 F.2d 785, 789 (2d Cir. 1963); back pay
awards under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seg. (1982): ~· EEOC v. Wooster Brush Co. Employees Relief
Ass'n, 727 F.2d 566, 578-79 (6th Cir. 1984); Pettway v. American Cast
Iron Pipe Co., 494 F.2d 211, 263 (5th Cir. 1974); awards for wage
violations of Fair Labor Standards Act, 29 U.S.C. § 201 et seg. (1982):
~· Marshall v. Hope Garcia Lancarte, 632 F.2d 1196, 1199 (5th Cir.
1980); Hodgson v. American Can Co., 440 F.2d 916, 921-22 (8th Cir.
1971); awards to employees for underpayments by contractors under WalshHealey Act, 41 U.S.C. § 35 et seg. (1982): ~· Mitchell v. Riegel
Textile, Inc., 259 F.2d 954, 956 (D.C. Cir. 1958); and compensation
awards to returning veterans for wrongful refusals to reemploy under the
Veterans Reemployment Rights Act, 38 U.S.C. § 2021 et seg. (1982), and
its statutory predecessors: ~· Hembree v. Georgia Power Co., 637 F.2d
423, 429-30 (5th Cir. 1981); Travis v. Schwartz Mfg. Co., 216 F.2d 448,
456 (7th Cir. 1954).

1501

We reject Clinchfield's argument that because section 105(c) of
the Mine Act refers specifically to an award of interest on back pay and
section 111 does not expressly provide for interest, interest is
unavailable under the latter provision. In enacting the Mine Act,
Congress substantially amended the antidiscrimination provisions of the
Coal Act (30 U.S.C. § 820(b) (1976)(amended 1977)) to increase the
protection afforded miners and expressly permitted interest on back pay.
In section 111 of the Mine Act Congress also expanded the compensation
that had been available under section llO(a) of the Coal Act (see
Westmoreland, 8 FMSHRC at 1324-25, 1328-29 & n.5). Although it did not
mention interest in the amended compensation provisions, Congress was
addressing two discrete areas of concern in making these revisions. The
fact that interest was included in section 105(c) does not necessarily
imply its exclusion from section 111 -- particularly in the context of a
remedial health and safety statute. See, ~··Herman & McLean v.
Huddleston, 459 U.S. 375, 387 n.23 (1983); Bailey v. Federal
Intermediate Credit Bk., 788 F.2d 498, 500 (8th Cir. 1986), cert. den.,
U.S.
, 55 U.S.L.W. 3287 (U.S. Oct. 20, 1986)(No. 86-318); Car~ v.
OWCP, 75Y-F.2d 1398, 1401-02 (D.C. Cir. 1985).
It is beyond dispute that section 111 "is remedial in nature and
was not intended by Congress to be interpreted and applied narrowly."
Westmoreland, 8 FMSHRC at 1323. In explicitly recognizing interest on
back pay awards under section 105(c), Congress was codifying legal and
equitable principles that otherwise would have been implicit (under the
Philip Carey line of cases referred to above). It would be perverse to
conclude that codification of the right to interest in section 105(c) is
a repudiation rather than an affirmation of these legal and equitable
principles insofar as section 111 is concerned. See Carter, supra, 751
F.2d at 1402. Further, we find no express indication in the Mine Act's
legislative history that Congress considered and intended to exclude
interest on compensation or to abrogate the settled doctrine of federal
law that interest may be implied under federal statutory provisions
dealing with remedial or debtor-creditor relationships. See, ~' Tristate Terminals, Inc. v. Jesse, 596 F.2d 752, 755-56 & n.2 (7th Cir.
1979).
In this aspect of its position on review, Clinchfield seeks to
interpose the maxim of statutory construction that expressio unius est
exclusio alterius ("the expression of one thing is the exclusion of
another"). While we agree that this doctrine often plays a useful role
in determining statutory meaning, it is nevertheless only an aid to
construction and not an invariable rule of law. See, ~, 2A
Sutherland Statutory Construction§§ 47.23 & .25 (Sands 4th ed. 1984
rev.); U.S. Dept. of Justice v. FLRA, 727 F.2d 481, 491 (5th Cir. 1984).
All the interpretative considerations discussed above supporting our
recognition of interest in section 111 fairly effectuate the Act. Most
importantly, we discern in the remedial structure of section 111 a clear
congressional purpose requiring full compensation to idled miners within
the framework of that section -- a purpose that outweighs application of
that particular rule of construction. See, ~' 2A Sutherland, supra,
§ 47.25; Carter, supra, 751 F.2d at 1401-02; Tri-State Terminals, Inc.,
supra, 596 F.2d at 755-56.

1502

The essential reasons underlying our preceding conclusions
regarding section 111 interest dictate that it take the form of
prejudgment interest accruing from the date that the compensable pay
would normally have been paid by the operator until the date that the
compensation due is actually tendered. Prejudgment interest is not a
penalty but is a necessary element of complete compensation for withheld
funds. !.:lt:... Platora Ltd. v. Unidentified Remains, etc., 695 F.2d 893,
906 (5th Cir.), cert. den., 464 U.S. 818 (1983). Indeed, in the absence
of compelling equitable considerations to the contrary, prejudgment
interest is ordinarily the form of interest awarded on monetary
obligations due. !:..&..:..• Stroh Container Co. v. Delphi Indus., Inc., 783
F.2d 743, 752 (8th Cir.), cert. den., 476 U.S. 1142 (1986). As the
Supreme Court has explained:
Prejudgment interest is an element of complete
compensation ....

*

*

*

[I]t serves to compensate for the loss of use of
money due as damages from the time the claim accrues
until judgment is entered, thereby achieving full
compensation for the injury those damages are
intended to redress.
West Virginia v. United States, supra, 479 U.S. at 310-11 & n. 2. The
cases cited above in n.6 concerning the implication of interest in
federal statutes all contemplated generally, or authorized specifically,
the award of prejudgment interest. See,~· American Can Co., 440
F.2d at 922; Int'l Bhd. of Operative Potters, 320 F.2d at 760-61; United
Drill & Tool Corp., 183 F.2d at 999-1000. ZI
Here, from the time of the issuance of the imminent danger withdrawal order, Clinchfield has had the use of the compensable pay at
issue. See, e.g., Stroh Container Co., supra, 783 F.2d at 752; American
Can Co., 440 F.2d at 922. To make the miners whole for the time value
of their compensable pay, therefore, we hold in affirmance of the judge
that interest is appropriate on sums of compensation due from the date
that the compensable pay would have been paid but for the idlement until
the date that the compensation due is tendered. This result comports
with the interest approach followed in discrimination cases under
Arkansas-Carbona. 5 FMSHRC at 2051-53 & n.15.
We disagree with Clinchfield's argument that this outcome is harsh
or punitive. Prejudgment interest is an accepted component of just and
complete compensation. Clinchfield has not demonstrated any special
equitable considerations that might justify an exception in this

J_/

We note that 28 U.S.C. § 1961 (1982), authorizing postjudgment
interest on monetary judgments in federal civil cases, does not purport
to address the subject of prejudgment interest and does not bar its
award in appropriate cases. ~. Bricklayers' Pension Trust Fund v.
Taiariol, 671 F.2d 988, 989 (6th Cir. 1982).

1503

proceeding. While, as Clinchfield points out, this litigation has
followed a protracted course, Clinchfield nevertheless has retained the
benefit of the money involved throughout that period. Finally, although
we do not question Clinchfield's good faith, its good faith does not
preclude assessment of prejudgment interest. :!h..8..:..• Stroh Container Co.,
supra; American Can Co., supra.
2.

Rate and computation of interest

If interest is to be awarded, both parties urge us to cease
applying the interest rate formula set forth in Arkansas-Carbona, supra.
We conclude that there should be one interest rate method of computation
applicable to both discrimination and compensation cases, and we agree
that it is appropriate to modify the interest formula of ArkansasCarbona.
In Arkansas-Carbona, we approved simple interest on back pay
awards under section 105(c) of the Act to provide miners a "full measure
of relief" from illegal discrimination or retaliation. 5 FMSHRC at
2049, 2052. In choosing an appropriate rate of interest, we considered
"the potential cost to the miner both as a 'creditor' of the operator,
and as a potential borrower from a lending institution under real
economic conditions." 5 FMSHRC at 2050. In addition, we endeavored to
select an interest rate "flexible enough to reflect economic and market
realities, but not so complex in application as to place an undue burden
on the parties and on judges •••• " Id. In light of these criteria, we
adopted in that case the "adjusted prime rate" announced semi-annually
by the Internal Revenue Service ("IRS") under the then applicable
version of 26 U.S.C. § 6621 for purposes of fixing interest on
overpayment and underpayment of taxes. Arkansas-Carbona, 5 FMSHRC at
2050-51. ~/ In so doing, we followed the practice of the NLRB, which
applied the adjusted prime rate as the interest rate on back pay awards
under the NLRA. See Olympia Medical Corp., 250 NLRB 146, 147 (1980);
Florida Steel Corp., 231 NLRB 651 (1977). At the same time, we adopted
the "quarterly method" of calculating the amount of back pay and
interest due. 5 FMSHRC at 2051-54.
The Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2085 (1986),
however, changed the method by which the IRS computes interest on
overpayment and underpayment of taxes, as of January 1, 1987. Use of
the adjusted prime rate as determined by the Federal Reserve Board was
abandoned, and the IRS now uses the "short-term Federal rate." 26
U.S.C.A. § 6621 (Supp. 1988). This rate is determined by the Secretary
of Treasury based on the average market yield on outstanding marketable
obligations of the United States with r~maining periods to maturity of
three years or less. 26 U.S.C.A. § 1274(d)(l)(C)(i) (Supp. 1988). The
short-term Federal rate is determined for the first month in each
calendar quarter and applies during the first calendar quarter beginning

~/

The adjusted prime rate is a percentage of the average predominant
rates quoted by commercial banks to large businesses as determined by
the Federal Reserve Board and rounded to the nearest full percent.

1504

after such month. 26 U.S.C.A. § 662l(b) (Supp. 1988). 21 These rates
are rounded to the nearest full percent. 26 U.S.C.A. § 662l(b)(3)
(Supp. 1988). The overpayment interest rate (paid by the IRS on tax
refunds) is the short-term Federal rate plus 2 percentage points and the
underpayment rate (paid by the taxpayer on additional taxes) is the
short-term Federal rate plus 3 percentage points. 26 U.S.C.A. § 6621(a)
(Supp. 1988).
In response to this legislation, the NLRB in May 1987 abandoned
its use of the adjusted prime rate and chose the underpayment rate of
short-term Federal interest as its interest rate for back pay awards.
New Horizons, supra, 283 NLRB No. 181, 125 LRRM 1177. The NLRB
concluded that the short-term Federal rate corresponds to private
economic market forces, is subject to periodic adjustment, is relatively
easy to administer, and, because the rate is determined on a quarterly
basis, mirrors the quarterly method of back pay calculation. 125 LiffiM
at 1178.
We agree and select the short-term Federal rate applicable to
underpayment of taxes as the interest rate for compensation awards. The
short-term Federal rate, based on average market yields of marketable
federal obligations, is influenced by private economic market forces,
and captures the "economic and market realities" that a remedial
interest rate should embody. Arkansas-Carbona, 5 FMSHRC at 2050. It is
periodically adjusted.and responds to changing economic conditions.
Since the rate is publicly announced well in advance of the effective
date, it also offers reasonable notice to parties and our judges and
would be relatively easy to administer. Finally, the underpayment rate
is reflective of the cost to miners of borrowing money when deprived of
a paycheck and, therefore, tends to compensate them more fully for their
potential losses as borrowers. See Arkansas-Carbona, supra; Youngstown
Mines, 1 FMSHRC at 996.
We note that these same considerations apply with equal force to
the award of back pay under section 105(c) of the Act, the context in
which Arkansas-Carbona was decided. For that reason, and to enhance the
efficiency of the administration of the remedial aspects of the Act, we
adopt, for all cases in which decisions are issued after the date of
this opinion, the short-term Federal underpayment rate as the interest
rate on both compensation and discrimination awards. Because there
would have been no major differences between the adjusted prime rate
approved in Arkansas-Carbona and the short-term Federal underpayment
rate since January 1987, we exercise our discretion to apply the shortterm rate retroactively to January 1987. Cf. New Horizons, 125 LRRM at
1178.
The applicable interest rates with their corresponding daily rates
for back pay and compensation awards from January 1, 1978, through
December 31, 1988, are as follows:

21

For example, the rate determined in April of a given year applies
to the months of July, August and September of that year.

1505

January 1, 1978 to December 31, 1979 •••• 6% (.0001666 per day)
January 1, 1980 to December 31, 1981 ••. 12% (.0003333 per day)
January 1, 1982 to December 31, 1982 ••• 20% (.0005555 per day)
January 1, 1983 to June 30, 1983 ••••••• 16% (.0004444 per day)
July 1, 1983 to December 31, 1984 •••••• 11% (.0003055 per day)
January 1, 1985 to June 30, 1985 •.••••• 13% (.0003611 per day)
July 1, 1985 to December 31, 1985 .•••.• 11% (.0003055 per day)
January 1, 1986 to June 30, 1986 ••••••• 10% (.0002777 per day)
July 1, 1986 to September 30, 1987 •••••• 9% (.0002500 per day)
October 1, 1987 to December 31, 1987 ••• 10% (.0002777 per day)
January 1, 1988 to March 31, 1988 ••.••• 11% (.0003055 per day)
April 1, 1988 to September 30, 1988 •••. 10% (.0002777 per day)
October 1, 1988 to December 31, 1988 ••• 11% (.0003055 per day) 10/
As to the computation of interest awards, the Arkansas-Carbona
quarterly method has stood the test of time since its announcement in
1983. 5 FMSHRC at 2051-54. Therefore, we retain the quarterly method
of remedial award computation based on use of the four calendar quarters
and substitute the short-term Federal underpayment rates for the
adjusted prime rates.from January 1, 1987, forward. For purposes of
calculating such awards in the compensation sphere, the explanation and
computational example provided in Arkansas-Carbona (5 FMSHRC at 2051-54)
supply the needed guidance and are incorporated herein by reference • .!l/

10/
It is necessary to convert the interest rates announced by the IRS
to daily rates ("daily interest factors") in order to calculate interest
on periods of less than one year. See Arkansas-Carbona, 5 FMSHRC at
2051, 2052-53.

!lf

A Federal Register notice summarizing this interest calculation
holding will be published. In the future the Commission's Executive
Director will timely forward to the Commission's Chief Administrative
Law Judge, for dissemination to our judges, appropriate updated lists of
the applicable interest rates and the daily interest factors. The
public may also obtain the lists of relevant interest rates by
submitting written requests addressed to the Commission 1 s Executive·
Director, 1730 K St., N.W., Washington, D.C. 20006.

1506

III.

Conclusion
For the foregoing reasons, we affirm the judge's award of
compensation, his disallowance of. attorney's fees and costs, and his
award of prejudgment interest on the compensation due. As announced
herein, however, we modify the Arkansas-Carbona interest computation
formula by adopting the short-term Federal underpayment rate as the
interest rate applicable to both compensation and back pay awards,
effective as of January 1, 1987. Accordingly, Clinchfield is directed
to pay the complainants the stipulated sums of compensation due bearing
interest from the stipulated date (9 FMSHRC at 1278-84), as provided_for
in this decision. 12/

~!/~

J~e, ConuniSSiOr

~~~ ~ommissioner

~/Le.~
L. Clair Nelson, Commissioner

12/
Chairman Ford did not participate in the consideration or
disposition of this matter.

1507

Distribution
John T. Scott, III, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Edward H. Fitch, Esq.
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Earl R. Pfeffer, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1508

ADMINISTRATIVE LAW JUDGE DECISIONS

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

NOV 2 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 88-26-M
A.C. No. 16-01068-05504

v.
Fleniken Pit
FLENIKEN'S SAND AND GRAVEL,
INCORPORATED,
Respondent
DECISION
Appearances:

James A. Wirz, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
the Petitioner;
Lyman Fleniken, President, Fleniken's Sand and
Gravel, Clinton, Louisiana, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 820(a).
Petitioner seeks a civil penalty assessment in the
amount of $46 for an alleged violation of mandatory safety
standard 30 C.F.R. § 56.15020. The respondent filed a timely
answer contesting the alleged violation, and a hearing was
convened in Baton Rouge, Louisiana. The parties waived the
filing of any posthearing arguments, but I have considered
their oral arguments made on the hearing record in my adjudication of this matter.
Issues
The issues presented in this case are (1) whether the
conditions or practices cited by the inspector constitute a
violation of the cited mandatory safety standard, (2) the
appropriate civil penalty to be assessed for the violation,
taking into account the statutory civil penalty criteria found

1 i:::na

in section llO(i) of the Act, and (3) whether the violation
was "significant and substantial." Additional issues raised
by the parties are identified and disposed of in the course of
this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977;
Pub. L. 95-164, 30 u.s.c. § 801 et seq.

u.s.c. § 820(i).

2.

Section llOCi> of the 1977 Act, 30

3.

Commission Rules, 29 C.F.R. § 2700.1 et seg.
Discussion

Section 104(a) "S&S" Citation No. 2866525, issued by MSHA
Inspector Kenneth N. McCleary on September 9, 1987, cites a
violation of mandatory safety standard 30 C.F.R. § 56.15020,
and the condition or practice is described as follows:
While talking to the dredge operator and
loader operator, a life jacket is not worn
while performing duties on the dredge boat.
The railing around the perimeter of the boat is
approximately 36" high, the dredge operator at
times works in a kneeling position, therefore
could accidently fall into the water. The
water is 25-30 ft. deep and approximately
75 ft. to shore. The dredge boat platform sets
about 3 or 4 ft. above the water with no hand
holds to help him get out of the water. The
dredge operator works alone.
Petitioner's Testimony and Evidence
MSHA Inspector Kenneth N. McCleary, Sr., testified as to
his experience and training, and he confirmed that he
inspected the respondent's dredge on September 9, 1987, and
issued the citation in question. The dredge was located 75 to
100 feet from the shore of a 20-25 foot deep lake where it was
pumping sand and gravel through a pipeline into a separator
located on shore. Mr. McCleary stated that he motioned to the
dredge operator from shore, indicating that he wished to come
aboard for an inspection. The operator came down out of his
control tower, put on a life jacket, and got into a rowboat
and came ashore to pick him up. They went back to the dredge,
and the operator took off his life jacket and went back up
into the control tower (Tr. 8-13).

1510

Mr. McCleary described the duties of the dredge operator,
and stat~d that they included the changing of engine oil, turning the engine on and off, and keeping the deck clean. The
life jacket was kept on a hook at the base of the control
tower, and the dredge operator advised him that he did not
wear his life jacket at all times while performing duties on
the dredge. Mr. McCleary confirmed that his inspection took
an hour, and during this time, the operator was in the control
tower and was not wearing the life jacket (Tr. 14-15).
Mr. McCleary stated that the metal dredge decks become
slick during the rainy season, and a person could possibly
fall into the water.
If he did, it was doubtful that he could
get back to shore in time. Mr. McCleary described the dredge,
and stated that it was rectangular in size, resting on
·
pontoons, with two diesel engines on it for pumping sand and
gravel. He drew a rough sketch of the dredge, and indicated
that one engine was located approximately 2 to 3 feet from the
dredge perimeter, and the second engine was no more than
3 feet from the perimeter. He also located the position of
the engine start-stop switches on the dredge, and indicated
that they were located 3 to 4 feet from the perimeter. There
was a 36 inch high cable handrail installed around the
perimeter of the dredge deck, and the dredge was situated
approximately 3 to.4 feet out of the water, and there were no
hand holds on the sides (Tr. 15-2, exhibit G-1).
Mr. McCleary confirmed that the operator performed no
work on the deck while he was conducting the inspec~ion, but
advised him that his normal duties included the washing down
of the deck to remove any excess oil spill, and this would be
done once or twice a day on some occasions. Although he made
no determination as to whether or not the operator's duties
included the changing of engine oil, Mr. McCleary assumed that
this would be done since most operators assist maintenance
crews in the changing of oil. He did not determine whether
the operator in fact changed the oil. The operator would stop
and start the engines at the beginning and end of the shift.
Mr. McCleary believed that a wet and slick deck presented
a strong possibility that the operator could slip on the deck
while washing it down.
If he bumped his head or was possibly
knocked unconscious, he could fall into the water. He could
also slip and fall under the handrail and would have nothing
to hold on to.
If the operator were in a kneeling position
while wiping or cleaning up oil spills, this would expose him
even more to the possibility of falling into the water. The
hand rail would not prevent the operator from falling overboard because he could slip under it and could not reach it

1511

while slipping into the water. The operator would be positioned between the engines and the dredge perimeter while washing down the deck area around the engines. The barge had no
hand holds on its sides so that someone who fell into the water
could grab and possibly get back on to the deck. Mr. McCleary
confirmed that there are no MSHA standards requiring hand holds
(Tr. 22-32).
Mr. McCleary believed that due to the rainy season in
Louisiana, barge decks become wet and slick, and it was highly
likely that the dredge operator could fall off the barge and
into the water, and that his job duties would contribute to a
greater hazard exposure. In the event the operator struck his
head on the engine, deck, or handrail support poles, he could
be knocked unconscious, and without a life jacket on, he would
probably drown if he fell overboard. A life jacket would keep
him afloat if he were unconscious. Mr. McCleary confirmed
that the dredge operator worked alone, and since the engines
produce quite a bit of noise, he believed that any cries of
help from the operator would not be heard from the shore CTro
32-35). Based on all of these considerations, Mr. McCleary
believed that the violation was "significant and substantial"
(Tr. 36).
Mr. McCleary confirmed that he made a finding of "low
negligence" because the respondent had not previously been
cited for a violation of section 56.15020, during seven prior
inspections conducted during the period Oct6ber, 1985 through
September, 1987 (Tr. 36-37, exhibit G-2).
On cross-examination, Mr. McCleary confirmed that the
dredge was clean on the day of his inspection, and he believed
that the deck was smooth "on the operator's side." He agreed
that a diagram and sketch made by Mr. Fleniken depicting the
side view of the dredge, with the positioning of the engines,
operator's cabin, pump, handrails, and ladder leading to the
cabin was accurate. Although Mr. McCleary stated that he
could not recall the positioning of the engines, he had no
reason to question the sketch, and Mr. Fleniken confirmed that
all of his dredges are constructed as shown (Tr. 46-48).
Mr. McCleary confirmed that the dredge operator was in no
danger of falling into the water while in his control booth,
and would not be required to wear a life jacket while in the
booth. Once the operator left the booth and started down the
ladder, he would not be in danger of falling into the water
because there was a double handrail on the ladder way. He
also confirmed that he issued the citation on the basis of
what the dredge operator told him concerning his work duties,

1512

and that the cited standard does not per se require the wearing of a life jacket at all times while work is being performed
on the dredge. The standard only requires a life jacket where
there is a danger of falling into the water (Tr. 59-60).
In response to a question as to the absence of any danger
of falling while the operator was performing duties on the deck
of the dredge, Mr. McCleary responded that "the only time that
there would be a danger of falling would be performing duties
around the perimeter of the dredge" (Tr. 60). Mr. McCleary did
not observe the operator walking around the perimeter of the
dredge while he was there, nor did he observe him checking the
engines. Mr. McCleary believed that if the operator were walking around the deck inspecting the enginesr he would be
required to wear a life jacket (Tr. 61-62).
Respondent's Testimony and Evidence
Respondent's president, Lyman Fleniken, disputed the location of one of the engines drawn on the sketch by Inspector
McCleary, and he indicated that it was positioned parallel to
the perimeter of the dredge, rather than perpendicular as
shown on the sketch. Mr. Fleniken also stated that the rear
engine was located 6 feet from the edge. He drew a sketch of
the dredge, with the equipment in place (exhibit R-1, Tr.
42-44). Inspector McCleary confirmed that he made no notes or
diagrams at the time of his inspection (Tr. 42-43).
Mr. Fleniken stated that the deck of the dredge is constructed of "diamond plate," and that "it's like perforation
up and down the platform that you use so that you do not have
a skid. The skid factor is greatly reduced" (Tr. 50).
Inspector McCleary confirmed that he could not recall the "diamond
plating," and indicated that the deck on the operator's control side was a smooth surface. He described this location as
the area near the ladder leading to the control booth.
Mr. McCleary also stated that the rest of the deck around the
dredge perimeter was "probably rigid is the best I can
remember" (Tr. 52).
Mr. Fleniken stated that the operator's cabin is enclosed
with a door, and is equipped with a double guard rail. He
confirmed that the dredge operator had been instructed to wear
a life jacket when he comes down the ladder to the lower deck
to adjust the tail and head rope, but he is not requested to
wear the jacket while he is involved in duties on the deck
itself (Tr. 51). He also indicated that depending on the
amount of diesel fuel in the back engine compartment, the
dredge would sit deeper in the water. Conceding that someone

1513

could slip under the guardrail, Mr. Fleniken believed that if
someone fell into the water, he would only have to reach up
2 feet, rather than 4 feet, to grab the edge of the dredge
(Tr. 50).
Mr. Fleniken stated that the dredge was built in components, and that the main decking area containing the engines
and pump is 12 feet wide. Pontoons are located on both sides
of the decking area, and they are 6 feet wide and 38 feet long.
The guard rail is positioned all the way around the outside of
the dredge. Given the width of the pontoons, a person would
be 6 feet from the edge of the water while at one engine location, and 4 feet from the edge at the other engine location
(Tr. 53).
Mr. Fleniken stated that he has been inspected four times
during the past 2 years and that no other inspector has indicated that he needs an additional guard rail, or that a life
jacket was required to be worn if one steps outside the guard
rail. He was told that the operator did not have to wear a
life jacket while inside the enclosed cabin house (Tr. 51).
Mr. Fleniken stated that prior to Mr. McCleary 1 s inspection,
no other inspector requested him to install a mid-rail in
addition to the existing guardrail, and although Mr. McCleary
did not require him to install a mid-rail, he told him to
either install a mid-rail or require the dredge operator to
wear a life jacket the entire time he is on the lower deck.
Mr. McCleary confirmed that this was true, and that the citation was abated by requiring the operator.to wear a life
jacket while performing duties around the deck of the barge
(Tr. 56). Mr. Fleniken confirmed that he has now instructed
the operator and maintenance personnel to wear a life jacket
while on the lower deck hosing it down, changing oil, or performing maintenance and repair work (Tr. 55).
Inspector McCleary confirmed that in the event the respondent opted to install a mid-rail to the existing hand-rail
around the perimeter of the dredge, there would be no requirement for the wearing of a life jacket. He also stated that
"there a.ce no standards regulating mid-rails, but we have
accepted those in the past" (Tr. 57). Mr. Fleniken believed
that the installation of a mid-rail would be a foot and
one-half above the dredge decking, and it would be just as
likely that someone could slip under that rail (Tr. 58).
Mr. Fleniken pointed out that contrary to Mr. McCleary's
sketch, the oil plugs for changing the engine oil are located
on the inside of the engines as shown on exhibit R-2, rather
than the outside between the dredge perimeter and engines.

1514

Mr. McCleary confirmed that he did not see where the oil plugs
we~e located (Tr. 53-54).
Mr. Fleniken also confirmed that
the entire dredge deck is diamond plated, even up to the cabin
house, and that is the way he constructed the dredge (Tr. 54).
Mr. Fleniken confirmed that the dredge operator's job
description includes duties such as keeping the decks clean,
and occasionally helping out in changing oil and performing
maintenance. He also confirmed that a life jacket was available for the operator, and that he wore it while going back
and forth from the dredge to shore in a paddle boat (Tr.
77-78).
Mr. Fleniken confirmed that he personally constructed the
dredge approximately 3 or 4 years ago. His employees are·not
instructed to wear any particular type of shoes while working
on the dredge, but that most of them wear "work boots." No
employee has ever informed him that they had ever slipped on
the dredge, nor have they ever expressed a concern for their
safety. A water hose is used to wash down the deck, and it
can reach all areas of the deck, including the engines. He
conceded that the metal deck of the dredge is slicker when it
is wet, and that one has to be careful when it is wet. However, he knows of no one slipping or injuring themselves on
the deck, and no oil spills have ever occurred on the deck.
Any oil spilled during changes is soaked up by a powder solution, and then hosed down. No one has ever slipped and fallen
into the water from the dredge. Although people have slipped
into the water from a boat while connecting the pi~3line
together, life jackets were always worn in these instances
(Tr. 85).
Findings and Conclusions
Fact of Violation
The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 56.15020, which requires the wearing of life jackets or belts where there is a danger of falling into water. In order to establish a violation, the
petitioner has the burden of proof to establish by a preponderance of the credible and probative evidence that the cited
employee was not wearing a life jacket while performing certain work duties which may have placed him in danger of falling into the water.
In this case, the inspector issued the
violation on the basis of several assumptions and conclusions
which he made through observations of the barge and its equipment, general weather conditions, and a brief conversation
w~th the dredge operator, during which the operator informed

1515

him that he did not wear a life jacket at all times while
performing work on the dredge which was located approximately
100 feet from shore on a 20-25 foot deep lake where the dredge
was pumping sand and gravel to shore through a pipeline.
The evidence establishes that the dredge was equipped
with a life jacket which was hung on a hook at the base of a
stairway leading to the dredge operator's control booth. The
operator put the life jacket on when he went ashore with a
boat to bring the inspector to the dredge so that he could
inspect it, but took it off and hung it back at the stairway
location after the inspector came aboard. After a brief
conversation with the inspector, the operator returned to his
control booth without the life jacket and remained there until
the inspector completed his inspection. The dredge operator
was not called to testify in this case, and the petitioner
relies on the testimony of the inspector in support of the
alleged violation. The respondent relies on the testimony of
its owner and mirie operator who designed and constructed the
dredge, and who was thoroughly familiar with its operation.
The inspector confirmed that he made no notes or sketches
at the time of his inspection. Although he ~onfirmed that he
could not recall the positioning of the engines on the dredge,
during the hearing he presented a sketch showing the two
engines parallel to the handrail which was installed along the
perimeter of the deck, and he indicated that that the engine
oil changing plugs were located on the outside of the engines
4 feet from the handrail. If this were true, it would place
anyone kneeling and changing oil in the area between the
engines and the handrail, thus exposing him to a possible
hazard if he were to slip or fall under the handrail and into
the water.
Mr. Fleniken, who designed and constructed the dredge,
testified that one of the engines was perpendicular to the
handrail, that the oil change plugs were located to the inside
of the dredge engines, and that the dredge rested on pontoonS(e~hibit R-2).
The inspector confirmed that he had no reason
to question Mr. Fleniken's testimony, which I find to be more
credible and probative than the inspector's. Mr. Fleniken's
testimony also refutes the inspector's belief that anyone
changing the oil would be in danger of falling into the water
if he were to slip or fall while performing this work.
In
light of the inspector's belief that the only time anyone
would be in danger of falling would be while working around
the perimeter of the dredge, I find no basis for concluding

1516

that anyone changing or cleaning up oil around the engines
would be in danger of falling into the water.
The inspector agreed that the dredge operator would not
be in any danger of falling into the water while in his control booth, and would not be required to wear a life jacket
while in the booth. The inspector also agreed that no life
jacket would be required to be worn when the operator left his
booth and started down the access ladder to the dredge deck
because there was a double handrail at that location to prevent him from falling overboard. The inspector was concerned
about the absence of double, or mid-rails, around the perimeter
of the dredge to prevent anyone from slipping under the rail
into the water, and the absence of hand-holds on the side of
the dredge, which the inspector believed could be grabbed ·by
anyone falling overboard. However, the inspector conceded that
MSHA has no standards that require mid-rails or hand-holds to
be installed on a dredge.
In my view, if MSHA believes that
such safety devices are necessary to prevent persons from falling off a dredge operating over water, it should promulgate
standards covering this hazard. Requiring a miner operator to
comply with a safety jacket standard as a matter of expediency
or convenience in order to address what an inspector may perceive to ·be hazards associated·with the lack of hand-holds or
mid-rails can only lead to confusing and contradictory enforcement judgments by different inspectors, and gives little guidance or notice to a mine operator as to what may be required
for compliance.
In the instant case, the inspector admitted that he
required the respondent to either install a mid-rail around
the entire perimeter of the dredge, or to require his employees
to wear life jackets during the entire time they are on the
deck of the dredge performing any work. The citation was
abated after the respondent instructed his employees to wear
life jackets at all times while working on the deck, notwithstanding the fact that the standard only requires the wearing
of a life jacket where there is a danger of falling into the
water. Followed to its logical conclusion, and on the facts
of this case, it seems obvious to me that the inspector's
interpretation of section 56.15020, is that life jackets are
to be worn at all times while an employee is working on a
dredge deck, regardless of any objective finding as to whether
or not the employee is in danger of falling into the water.
I find the inspector's position in this case to be rather
contradictory. He conceded that he did not observe the dredge
operator walking around the perimeter of the dredge, and did
not ob~erve him go near the engines to inspect them, service

1517

them, or change the oil. Yet, he concluded that the operator
would be required to wear a life jacket if he were inspecting
the engines or changing oil or cleaning up any oil spills,
even though he believed that the only time there would be a
danger of falling into the water would be when someone would
be working around the perimeter of the dredge. In this case,
the engines were located on the deck some 6 feet from the
perimeter guarded by a handrail, with pontoons on both sides,
and with the oil change plugs to the inside of the deck away
from the perimeter of the deck.
With regard to the inspector's concern about someone
slipping on a wet deck during the "rainy season," and possibly
striking their head and falling into the water, this could
occur at anytime. However, in this case, there is no evidence
that the deck was wet or slick at the time of the inspection,
and in fact the inspector confirmed that it was dry and clean.
Further, Mr. Fleniken's testimony, which I find credible,
reflects that the surface of the entire deck was constructed
of "diamond plate," or perforated materials, so as to the
reduce the likelihood of any skidding. Mr. Fleniken also indicated that any oil spills are controlled by means of a soaking
powder, and that the deck is washed down by means of a water
hose which can reach any surf ace area of the deck. The inspector could not recall the perforated decking material, and
believed that part of the decking around the operator's compartment was smooth, and that the rest was "rigid." Since the
inspector took no notes when he inspected the dredge, and was
unsure as to the construction of the decking, I give more
credence to Mr. Fleniken's testimony since he designed and
built the dredge himself and he impressed me as a credible and
straightforward witness.
After careful review and consideration of all of the
testimony and evidence adduced in this case, I cannot conclude
that the petitioner has established that the prevailing conditions at the time of the inspection presented a hazard to the
operator falling overboard into the water without a life
ja.cket. On the facts of this case, it seems clear to me that
the inspector's conclusion that the operator was in danger of
falling overboard was based on the inspector's unsupported
speculations and assumptions that anyone performing any kind
of work on the deck of the dredge would ipso facto be placed
in jeopardy of falling overboard. Given the language of the
standard, I cannot come to this conclusion. In order to establish a violation, I believe it is incumbent on t~e petitioner
to establish a reasonable credible and probative factual basis
to support a conclusion that there was a danger of someone
falling into the water. I find no credible evidentiary basis

1518

for such a conclusion in this case. Under the circumstances,
I conclude and find that the petitioner has failed to establish a violation, and that the citation should be vacated.
ORDER
In view of the fo~egoing findings and conclusions, Cita. tion No. 2866525, September 9, 1987, citing an alleged violation of 30 C.F.R. § 56.150~0, IS VACATED, and the petitioner's
proposed civil penalty assessment is REJECTED. This case IS
DISMISSED.

~1ou~Administrative Law Judge

Distribution:
James A. Wirz, Esq., O~fice of the Solicitor, U.S. Department
of Labor, 525 South Griffin Street, Suite 501, Dallas, TX
75202 (Certified ~ail)
L. L. Fleniken, Jr., ?resident, Fleniken's Sand and Gravel,
Incorporated, Rt. 1, Box 160, Clinton, LA 70722
, (Certified Mail)
/f b

1519

FEDERAL MINE
SAFETY.AND
HEALTH
REVIEW"coMMISSION
.
.
·.
.
·...
.

'

OFFICE OF ADMINISTRATIVE LAW~ JUDGES
2 SKYLINE, 10th FLO.OR
5203 L,E£SBURG PIKE
FALLS CHURCH, VIRGINIA 22041

NOV 2 1988·

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

:

CIVIL PENALTY PROCEEDINGS

:

Docket No. SE 87-116-M
A.C. No. 40-00049-05508

.

v.

:
:

HOOVER INCORPORATED,
Respondent

Docket No. SE 87-i32-M
No. 40-00049-05509

A.C~

Donelson Pike'Quarry & Mill
DECISIONS
Appearances:

Michael L. Roden, Esq., Office of the
Solicitor, U.S. Departm~nt of Labor, Nashville,
Tennessee, for the P~titioneri
James H. Neely, Safety Director, Hoover, Inc.,
Lavergne, Tennessee, for the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern civil penalty proposals filed
by the petitioner against the respondent pursuant to section
llOCa> of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 820(a), seeking civil penalty assessments for two
alleged violations of certain mandatory safety standards found
in Part 56, Title 30, Code of Feder~l Regulations. The respondent filed timely answers contesting the proposed civil penalties and hearings were held in Nashville, Tennessee. The
parties waived the filing of posthearing proposed findings and
conclusions. However, all oral arguments made by the parties
on the record during the course of the hearings have been considered by me in the adjudication of these cases.
Issues
The issues presented in these cases are Cl) whether the
conditions or practices cited by the inspector constitute a
violation of the cited mandatory health standards, (2) the
appropriate civil penalty to be assessed for the violation,

1520

taking into account the statutory civil penalty criteria found
· in·section llOCi> of the Act, and (3) whether the violations
were "significant and substantial."
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 19771
Pub. L. 95-164, 30 u.s.c. § 801 et seq.

u.s.c. § 820Ci).

2.

Section llO(i) of the 1977 Act, 30

3.

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

Stipulations
The parties stipulated to the following CTr. 5-81 Pretrial
Joint Stipulations):
1. Hoover, Incorporated is a Tennessee
corporation which is in the business of surf ace
mining and producing crushed limestone for
resale in interstate commerce, and thus is
subject to the jurisdiction of the Federal Mine
Safety and Health Review Commission and its
administrative law judges.
2. As of June 1987, Hoover, Incorporated
operated the Donelson Pike Quarry and Mill in
Nashville, Tennessee, which employed 41 men and
produced approximately 5,331.33 tons of crushed
limestone per day. On October 2, 1987, Hoover,
Incorporated closed the Donelson Pike Quarry
and Mill and is no longer operating at that
site. All of its operations in the State of
Tenriessee are now located in Rutherford County.
From June 1987 through April 1988, Hoover,
Incorporated overall has employed 181 men and
produced an average of 9,734.64 tons of crushed
limestone per day.
3. Lawson Beech was the superintendent of
the Donelson Pike Quarry and Mill in June 1987.
T. s. Hoover was and is the president and
majority stockholder of Hoover, Incorporated.
4. The Donelson Pike Quarry and Mill began
operations in 1957, and remained in active operation until October 1987.

1521

5. On June 1, 1987, at approxima~ely
10:30 a.m., during a regular inspection of the
quarry site, MSHA Inspector ·Donald Baker
observed an employee sitting on an "I" beam
using a hammer to hit a metal chute obstructed
by crushed limestone. The employee was not
wearing a safety belt or line while performing
this task. The beam was approximately
8-1/2 feet above the level ground. It had been
raining earlier that morning, and the employee's
shoes were wet and muddy.
6. On June 18, 1987, in response to a
complaint by a former employee, MSHA Inspector
Lloyd Cloyd tested the brakes of a 35-ton Caterpillar truck, No. 505029, owned by Hoover,
Incorporated and used at the Donelson Pike
Quarry and Mill. The brakes were tested on an
inclined road in the quarry, with the truck
empty, and the inspector sitting in the seat
beside the driver. When the brakes were
applied, the truck did not come to a complete
stop. The truck was traveling between eight ,
and nine miles per hour when the brakes were
applied.
7. The truck was immediately taken to the
shop for repairs. A new equalizer, or slack
adjuster, was installed.
8. Two days earlier, on June 16, 1987,
the brakes on the truck had been worked on by a
repairman.
9. The total penalty assessment for both
cases of $147.00 would have a negligible effect
on the ability of Hoover, Incorporated to
continue in business.
Discussion
The contested citations issued in these proceedings are
as follows:
Docket No. SE 87-116-M. Section 104Ca) "S&S" Citation
No. 3052407, issued on June 1, 1987, by MSHA Inspector Donald
R. Baker, cites a violation of mandatory safety standard
30 C.F.R. § 56.15005, and the condition or practice is
described as follows:

1522

An employee was observed sitting on an "I"
beam using a hammer to hit a metal chute that
was hung-up with crushed limestone. The
employee wasn't wearing a safety belt and line
to prevent a fall to ground level if he slipped
off this "I" beam. The "I" beam was wet and
muddy. A fall of approximately ten feet to
ground level exists at this location. This
work was being performed at the primary crushing and screening plant.
Petitioner's Testimony and Evidence
MSHA Inspector Donald R. Baker testified as to his
experience and training, and he confirmed that he inspected
the subject mine on June 1, 1987. It had rained earlier that
morning, and the area around the crusher plant was wet and
muddy. The respondent's superintendent Lawson Beech, accompanied him during his inspection. They proceeded to the
secondary crusher plant which was down because a chute was
"hung up with lime~tone." Mr. Baker identified exhibit G-1 as
a photograph of the secondary plant and bins with the chute in
question. As they got out of Mr. Beech's pick-up truck,
Mr. Baker observed· an employee sitting on an I-beam using a
small sledgehammer hitting the metal chute to unclog the chute
and to help the material flow. The employee was seated in
front of the chute with his legs off to the side, but he was
not straddling the beam, and his legs were not resting on
anything. Mr. Baker took it for granted that the individual
was a maintenance man, and he was not wearing a safety belt.
He was located approximately 10 feet off the ground, and
Mr. Baker agreed that it could have been 8-1/2 feet as stipulated to by the parties. A pile of rock was located to one
side on the ground, and the ground directly under where the
man was sitting was level (Tr. 10-21).
Mr. Baker stated that the beam was wet and muddy, but he
could not tell whether or not the man's shoes were also wet
and muddy. Mr. Baker's shoes were wet and muddy from walking
around in the area. Mr. Baker stated that the man used a
ladder shown in the photograph to reach the beam, and then
walked out on the beam to reach the chute. Mr. Beech climbed
the same ladder and went out on the beam to speak with the
individual in question for a few minutes. Mr. Baker believed
that Mr. Beech also hit the chute with the hammer while he was
up on the beam, and then he and the other individual came down.
Mr. Baker asked Mr. Beech if any safety lines or belts were

1523

available, and Mr. Beech replied "we don't have any on the
property, but I can get some" (Tr. 21-24).
Mr. Baker believed that the individual on the I-beam
could have fallen off while seated on the beam, and while walking on it to reach the chute. In the event of a fall to the
ground, the individual could have suffered broken bones as a
minimum, or a concussion if he fell on his head. Mr. Baker
believed that the individual could have tied off on one of the
beam braces if he had used a safety belt. Mr. Baker confirmed
that he advised Mr. Beech that he was issuing a citation, and
served the written citation later (Tr •. 24-26; exhibit G-2).
Mr. Baker believed that an accident and .injury reasonably
likely would occur because of the fact that the individual was
sitting on a wet and slippery beam, and since he needed to
walk the beam to reach the chute location, there were several
places where he could have fallen off (Tr. 27). He also
believed that any injury would be a lost work time injury
because a broken bone would have required medical attention.
Under these circumstances, Mr. Baker concluded that the violation was significant and substantial (Tr. 28}. Mr. Baker confirmed that he made a finding of "low negligence" because on
prior inspections the respondent had a good compliance record,
and he did not believe the respondent realized what the hazard
was, and if it did, it would have made a safety belt and line
available (Tr. 29).
On cross-examination, Mr. Baker confirmed that he did not
see how the individual sitting on the beam got there, but he
did observe Mr. Beech climb on the ladder to the walkway, and
then cross over the conveyor to the beam CTr. 30). Mr. Baker
estimated that the individual sitting on the beam was approximately 3 feet from the chute, but he did not measure the distance. Mr. Baker stated that he would not argue with
Mr. Neely's assertion that the employee was 22 inches from the
chute, and Mr. Baker indicated that his estimate was based on
his "eyeballing it" from ground level. The individual was not
really "stretched out," and he would have been "pretty close"
to the chute (Tr. 33). Mr. Baker conceded that there could
have been some "buildup" of crushed stone on the ground under
the beam, but that "I really never noticed it" (Tr. 37}. He
confirmed that the distance that the individual had to stretch
to reach the chute was a consideration as to the danger
involved because "he's leaning forward using a hammer and if
he's gong to lose his balance, he could lose his balance that
way." He also agreed that a 22-inch stretch would have placed
the individual in a dangerous situation (Tr. 37).

1524

Respondent's Testimony and Evidence
James H. Neely, respondent's safety director, testified
that he did not believe there was a danger of falling in this
case because "with all the framework and braces that were
there, you would have had to have pushed the man off almost,
tied his hands and pushed him off to have gotten him to fall"
(Tr. 41). Referring to a photograph, exhibit R-3, similar to
petitioner's photograph, Mr. Neely explained that one could
not walk the beam in question without holding on to a beam
"because there's not that much room" (Tr. 41).
Mr. Neely stated that his position is that the individual
could not have fallen to the ground because there was ample
opportunity for him to grasp the braces and framework of the
structure shown in the photograph (Tr. 43). He also explained
that wet rock was being processed on the day in question, and
that when it "got bridged over" a hammer sometimes has to be
used to loosen it, but that this does not occur frequently
(Tr. 44). If it were an everyday occurrence, a walkway and
handrail would have been constructed to provide working access
to the chute (Tr. 45). He also believed that tieing off on a
slick beam would be more difficult than simply sitting on the
beam with an arm around a beam (Tr. 45).
On cross-examination, Mr. Neely stated that since the
steel beams had two quarter-inch flanges, they would provide a
"hand hold" for anyone to grab if he were falling, and this
would be true even if the beam were wet. He agreed that any
fall would occur "suddenly," but he saw no reason for anyone
falling because of the presence of braces for anyone to grab
or put their arms around. Referring to photographic exhibit
G-1, Mr. Neely stated that the individual was sitting on the
bottom beam as shown in the photograph, and that he could have
braced his feet against the crusher feed box. However, since
he did not observe the individual on the beam when the inspector did, Mr. Neely did not know for a fact that his feet were
braced against the box (Tr. 45-52) •
. Docket No. SE 87-132-M. Section 104(a) "S&S" Citation
No. 2862746, issued on June 18, 1987, by MSHA Inspector
Lloyd w. Cloyd, cites a violation of mandatory safety standard
30 C.F.R. § 56.9003, and the condition or practice is
described as follows:
The 35-ton Caterpillar Truck Co. No. 29
did not have adequate brakes. The brakes were
checked on the inclined road in the quarry with
the truck empty. When the foot brake was

1525

applied the truck was going between 8 and
9 miles per hour and continued to roll for
severai feet before stopping. This truck was
immediately taken to the shop for repairs.
Petitioner's Testimony and Evidence
In view of the unavailability of MSHA Inspector Lloyd w.
Cloyd, his pretrial deposition was taken on June 28, 1988,
with the respondent's representative Neely present, and the
transcript of Mr. Cloyd' s testimony, -including two photographic
exhibits, were received as part 0£ the record in this matter
(Tr. 7; exhibit G-1).
Inspector Cloyd confirmed that he inspected the cited
truck on June 18, 1987, and the brakes were tested that day on
the haulroad with an approximate grade of 15 percent. He was
seated next to the driver while the truck was driven down the
road at an approximate speed of 8 or 9 miles per hour, and the
truck was empty. Prior to the actual test, the driver advised
him that the truck brakes were "fair," and that the truck would
stop "sometimes" when the brakes were applied on the incline.
The driver applied the brakes while the truck was approximately
two-thirds down the inclined road, or approximately 200 to
300 feet down the roadway, at the location shown by an "X" mark
which he placed on a copy of a photograph shown on deposition
exhibit No. 1. Mr. Cloyd confirmed that he observed the driver
apply the brakes to the fullest exterit possible by raising up
off the seat and applying pressure to the brake pedal, and when
he did, the truck slowed, but continued to roll for approximately 30 to 40 feet before coming to a stop. After it
stopped, Mr. Cloyd checked the emergency brake, and found that
it was in working order (Tr. 6-15).
Mr. Cloyd stated that after completing his inspection of
the truck, Mr. Neely advised him that work was performed on
the truck brakes on the Tuesday prior to his inspection on
Saturday, June 18, 1987, but Mr. Neely did not advise him as
tq why the brakes needed work and did not identify any particular problem. Mr. Cloyd confirmed that he had received two
prior complaints about the brakes from the operator who stated
that "the brakes worked perfect most of the time, but sometimes he would mash on the petal and have nothing" (Tr. 16).
Mr. Cloyd further confirmed that repair work was done on the
brakes after the citation was issued, and that the Caterpillar
Company was immediately called to do the repairs. Mr. Neely
informed him that a new equalizer or slack adjuster was
installed on the truck, and that the purpose of the equalizer
was to provide equal air pressure to all of the wheels, and

1526

the lack of such pressure would hinder the brakes from
stopping the truck. The only reason for replacing the equalizer would be to replace one that is defective (Tr. 15-18).
Inspector Cloyd stated that he classified the violation
as "significant and substantial" because of the steepness of
the inclined roadway, and the fact that there was a 90 degree
curve at the bottom of the roadway, with a solid limestone
wall in front of it. He also considered the fact that the
past history of the cited truck indicated that there had b~~n
previous problems (Tr. 18-19). Inspector Cloyd confirmed that
after the truck was repaired, he checked it while it was
loaded at the dump, and found that the brakes "worked perfect."
He did not test the truck with a load before repairs were made
because he saw no reason to load it up with 30 tons of rock,
and he believed that a load would have further hindered it
from stopping. Mr. Cloyd confirmed that the citation was
abated on June 19, 1987, after the repairs were made, rather
than September 19, as previously noted (Tr. 24).
At the hearing, petitioner's counsel introduced a copy of
a work invoice indicating certain work which was done on the
truck brakes on June 15, 1987, and this work included the
installation of a hose to the left front wheel, two pistons on
the slack adjuster. or equalizer, and a diaphragm on the parking brake valve CTr. 11; exhibit G-4).
Respondent's Testimony and Evidence
Safety Director James H. Neely, introduced a statement
executed by William E. Reeves, the mechanic who inspected the
truck and performed the work on it after it was removed from
service on June 18, 1987. Mr. Reeves states that the brakes
"were in good working order," and that "the retarder and parking brake were also working well." Mr. Reeves also stated
that "I could find no indication that the brakes were unsafe.
As a preventive maintenance measure, I did replace two pistons
in the slack adjusted at the time of this brake check (Exhibit
R-5).

Mr. Neely asserted that the slack adjuster installed by
Mr. Reeves was installed "so that we could put the truck back
in operation, because I wouldn't attempt to take it after the
inspector would leave--take the truck back down there and put
it in operation without doing something" (Tr. 13-14).
Mr. Neely confirmed that shortly after Mr. Reeves arrived to
inspect the truck, they drove the truck around the shop area,
checked the hand brakes and retarder, and found that they both
worked and would stop the truck CTr. 15).

1527

Mr. Neely stated that the 30-40 feet within which the
truck stopped after being tested by Inspector Cloyd was just a
fraction over the actual length of the truck itself, and an
unloaded 80,000 ton truck going down a 15-degree grade on a
loose rock road cannot be expected to stop any quicker than
that distance. Mr. Neely explained the operation of the compressed air truck brakes, and indicated that the stopping distance of 30-40 feet for the truck when the brakes are applied
is normal (Tr. 17). Mr. Neely also pointed out that given the
fact that work started at 6:00 a.m. on the day of the inspection, and the truck was inspected by Mr. Cloyd at 9:00 a.m.,
the truck operator must have made 10 or 12 trips with the
truck, loaded and unloaded, and did not report any problems
with the brakes (Tr. 17).
Mr. Neely stated that mine management was aware of the
fact that the quarry was 410 feet deep, and presented dangerous conditions, and that was the reason why they had the truck
repaired. He stated that "we had it fixed at that time
because it was just too dangerous to take a chance" CTr. 17).
He confirmed that after the repairs, there was no reason to
know that there was anything wrong with the brakes, and when
they were checked, "there wasn't anything wrong with them,"
and all three brake systems were working (Tr. 18).
On cross-examination, Mr. Neely confirmed that he was not
at the mine site on June 18, 1987, when Mr. Cloyd conducted
his inspection. Mr. Neely confirmed' that.when he and
Mr. Reeves tested the truck after it was cited at the same
location while travelling 8 to 9 miles an hour, the speed at
which trucks are allowed to operate on the incline, the truck
travelled approximately 30 feet afte~ the brakes were applied
before it stopped. He reiterated that this was the normal
stopping distance for an empty truck of its size, but if it
were loaded, it would have rolled for 3 or 4 feet before
stopping because the added weight would give it more traction
(Tr. 20-22).
Mr. Neely confirmed that mechanical problems were
encountered with the cited truck, as well as the other trucks,
prior to the inspection by Mr. Cloyd, and that driving up and
down hills 12 hours a day does wear on the trucks. He also
confirmed that prior complaints were made about the cited
truck in question, but they would be taken care of immediately.
He described the complaints as "the brakes weren't working
adequate, or maybe the wheels would grab it before the other
one would." He also confirmed that the complaints indicated
that "the brakes were erratic and sometimes they would work

1528

and sometimes they wouldn't." When asked how long before the
ins·pection of June 18, the complaints were made, he responded
"it might be two weeks or it might be six months. You never
know when those things occur. It's just like any other piece
of machinery, you don't have any warning." Mr. Neely stated
that the complaints were not made regularly, and "no more than
the rest of them were," and since the cited truck was used
primarily to haul from the quarry to the crusher, "it got more
wear" than the other trucks which were not using their brakes
as much CTr. 22-24).
Mr. Neely stated that although the operable hand brake
and retarder would have stopped the truck, he conceded that
they were not the principal means for stopping the truck, and
that the first thing a driver would do to stop a truck would
be to apply the foot brakes (Tr. 25). Mr. Neely confirmed
that he was not with Inspector Cloyd when he tested the truck
after the brakes were repaired, but it was his recollection
that the truck was not tested at the same location where it
was cited or under the same conditions (Tr. 31).
Mr. Neely stated that management had no knowledge that
the cited truck had a problem until the morning of June 18,
when Inspectors Cl9yd and Daugherty came to the mine in
response to complaint made by an employee who had been discharged. Mr. Neely confirmed that the repairs made on the
truck on June 15, were made in response to the truck operator's statement that one wheel was locking before the other
one while going downhill, causing the truck to slide, and the
operator was concerned that he might "wind up over against the
buffer over the hill." In light of this, "we took corrective
action right then" (Tr. 41).
Mr. Neely stated that his truck maintenance and service
records would show that similar conditions could be found for
all of the trucks from time-to-time, and in each instance, the
repair company would be called to the mine to make the necessary repairs (Tr. 42). In the case at hand, Mr. Neely did not
believe the citation was justified because all of the information available to management did not indicate any braking
problems with the cited truck (Tr. 42-43).
Mr. Neely confirmed that the quarry site where the citation was issued has been shut down and is no longer in operation, and petitioner's counsel agreed that with the exception
of the citation in issue in this case, the respondent had not
previously been cited for inadequate braking condition on any
of its trucks CTr. 44-45).

1529

Findings and Conclusions
Docket No. SE 87-116-M
Fact of Violation
In this case the respondent is charged with a violation
of mandatory safety standard 30 C.F.R. § 56.15005, •hich
requires the use of safety belts and lines when persons are
performing work where there is a danger of falling. The
credible unrebutted testimony of Inspector Baker establishes
that an employee was sitting on an I-beam approximately
10 feet off the ground banging on a metal chute with a hammer
while attempting to free up some material which had clogged
the chute. The employee was not wearing a safety belt or
line, nor was he tied off in any manner. He was seated on the
beam in front of the chute with his legs off to one side, and
he had to reach approximately 2 to 3 feet to strike the chute
with his hammer. The inspector was concerned that the
employee could have fallen from the beam while seated on it
and striking the chute, or when he walked on the beam to reach
his work location.
The respondent agreed that the employee in question was
not using a safety belt or line, and its defense is based on
its belief that the employee was in po- danger of falling
because of the presence of the steel framework of the structure in question. Respondent believed that the employee could
have grabbed the beam flange as a "hand hold" in the event of
a fall, and also argued that the employee· could not have
fallen while walking the beam because he could have held onto
the steel braces.
Respondent's Safety Director, James Neely, confirmed that
he did not observe the employee sitting on the beam without a
safety belt or line as did the inspector. Based on the credible testimony of the inspector who oonf irmed his observations
of the employee sitting on the beam and striking the metal
chute with a hammer, I conclude and find that a violation has
been established. The position of the employee on the beam
10 feet off the ground with a hammer in one hand striking the
metal chute without using a safety belt or otherwise being
tied off and secured to one of the nearby braces supports a
reasonable conclusion that he was in a precarious location
which clearly exposed him to a falling hazard. Such falls are
usually unexpected and may occur at any time while an employee
is preoccupied with his work. Mr. Neely conceded that any
fall could occur suddenly, and the fact that the employee
could have reacted by attempting to grab part of the structure

1530

on which he was seated while performing his work is not in my
view a reasonable defense to the violation. Under the circumstances, the citation IS AFFIRMED.
Docket No. SE 87-132-M
Fact of Violation
In this case the respondent is charged with a violation
of mandatory safety standard 30 C.F.R. § 56.9003, for havirJ
inadequate brakes on one of its haulage trucks. Section
56.9003 requires powered mobile equipment to be provided with
adequate brakes. Inspector Cloyd cited the truck after he had
the foot brakes tested by the driver while the truck was being
operated downhill and empty on an inclined haul roadway while
travelling at approximately 8 or 9 miles an hour. The
inspector was seated next to the driver while the test was
performed, and his unrebutted testimony reflects that when the
truck was approxim&tely 200 to 300 feet down the haulroad, the
driver applied the foot brakes to their fullest possible
extent by raising up on his seat, but the truck continued to
roll for approximately 30 to 40 feet before coming to a stop.
In Mr. Cloyd's opinion, the incline where the truck was tested
was not such as to present a problem for a truck with brakes
in proper working order from coming to a complete stop when
the brakes were applied (Deposition (Tr. 8). Mr. Cloyd also
believed that an empty truck travelling at 8 or 9 miles an
hour should have no problem in stopping once the brakes were
applied, and that the road conditions where the truck was
tested would not have made stopping the truck a problem (Tr.
10-11).
In addition to the actual testing of the brakes,
Inspector Cloyd confirmed that the driver advised him that the
brakes were "fair," and that the brakes would stop the truck
"sometimes" when the boot brakes were applied. Mr. Cloyd also
confirmed that he had received prior complaints from the truck
operator who advised him that while the brakes worked most of
the time, there were times when he applied the brakes and "had
nothing." Since the driver was not called to testify in this
case, Inspector Cloyd's testimony regarding the comments of
the driver are unrebutted.
The evidence establishes that after the truck was cited,
it was immediately taken out of service and repairs were made
by the installation of a brake equalizer or slack adjuster
which provided equal pressure to all of the truck wheels, and
Inspector Cloyd confirmed that the only reason for replacing
the equalizer would be to replace one that was defective. A

1531

statement by the mechanic who performed the repair work on
June 18, 1987, reflects that two pistons in the brake adjuster
were replaced as "a preventative maintenance measure" (Exhibit
R-5).

The respondent asserts that repairs were made on the truck
brakes prior to the time of the inspection and the issuance of
the citation, and the record establishes that this was the case.
In view of these prior repairs, respondent maintains that it
had no reason to believe that the brakes were in other than
operable condition, and that when the brakes were t~sted by the
mechanic after the citation was issued, he found them to be in
good working order and could find nothing to indicate that they
were unsafe.
In defense of the violation, the respondent relies on the
written statement by the mechanic expressing his opinion that
the brakes were in good working order and not unsafe. However,
the mechanic did not testify at the hearing, and neither he nor
Mr. Neely were present when the inspector had the brakes tested
in his presence under actual driving conditions. Consequently,
I have given little weight to the mechanic's statements.
I take particular note of the fact that the mechanic did
in fact replace some pistons in the brake slack adjusters, and
Mr. Cloyd's testimony is that the slack adjusters served as a
means of providing equal air pressure to all of the truck
wheels, and would not be replaced if they were not defective.
Given the fact that the driver had to raise up on his seat
while applying full foot pressure to the brake pedal while
they were being tested under actual driving conditions, I
believe one can reasonably conclude that the failure of the
truck to stop when the brakes were applied, and its continuing
to roll, was the result of a lack of· adequate and available
air pressure on the foot brakes. Although Mr. Neely stated
that the truck hand brakes and retarder were operable and
would stop the truck when it was tested by the mechanic, he
conceded that the retarder and hand prake were not the principql means for stopping the truck, and that the first thing a
drier would do to stop the truck would be to apply the foot
brakes. Mr. Neely also conceded that the cited truck was
subjected to more brake wear than otper trucks, and like other
pieces of equipment, failures are unpredictable and can occur
without warning.
Respondent's second defense is that the 30 to 40 foot
rolling distance that the truck travelled after the driver
applied the foot brakes was "normal." However, absent any
indication that Mr. Neely is a brake expert, and lacking any

1532

evidence as to the manufacturer's brake specifications or other
credible evidence reflecting the actual "normal" stopping distances for an empty truck driving at 8 to 9 miles an hour, I
find no basis for Mr. Neely's unsup~orted conclusion as to the
"normal" stopping distance for the truck, and I have given it
little weight. Further, I reject Mr. Neely's suggestion that
the repairs made to the brakes after the citation was issued
were made simply to abate the citation or to facilitate placing
the truck back into operation. I believe that the repairs were
made because they were needed, and the mechanic confirmed ~hat
he replaced the parts as a preventive measure. Inspector Cloyd
confirmed that once these repairs were made, the brakes "worked
perfect" when the truck was tested under a load.
In several reported cases interpreting the meaning of the
term "adequate brakes," such determinations were made by the
inspectors through their inspections of the braking systems
where certain defects were noted, or by tests conducted on the
trucks by operatin~ them on inclines to determine their braking or stopping capability.
In Concrete Materials, Inc., 2 FMSHRC 3105 (October 1980),
and Medusa Cement Company, 2 FMSHRC 819 (April 1980), Judge
Melick and Judge cook affirmed violations for inadequate brakes
on haulage trucks based on tests conducted by the drivers by
driving the trucks on inclines to determine their braking and
stopping capability. In the Medusa Cement case, an MSHA inspector defined the term "adequate" as "capable of stopping and
holding a loaded haul unit on any grade on the mine property."
Judge Cook found that the test conducted by the inspector and
his interpretation of the results obtained sufficiently established a prima facie case for inadequate brakes.
In Minerals Exploration Company, 6 FMSHRC 329, 342
(February 1984), Judge Morris affirmed an "inadequate brake"
violation based on an inspector's observation that the cited
water truck was "pulling very hard to the right." Testimony
by the operator's foreman reflected that the brakes on the
truck had been relined 2 weeks before the citation was issued.
In Turner Brothers, Inc., 6 FMSHRC 1219, 1259 (May 1984),
and 6 FMSHRC 2125, 2134 (September 1984), I affirmed violations
of section 77.1605(b), for inadequate parking brakes on a coal
haulage truck and an endloader based on tests which consisted
of parking the equipment on an incline and setting the brakes
to determine whether they would hold. In both instances, the
brakes would not hold the equipment, and I concluded that the
brakes were inadequate.

1533

In Greenville Quarries, Inc., 9 FMSHRC 1390, 1430 (August
1987), I affirmed a violation for inadequate brakes on two
haulage trucks based on tests conducted on an incline which
indicated that the brakes would not hold the truck and that
they were "slow to stop" when the brakes were applied. Upon
visual inspection of one of the trucks, the inspector found
that the rear brake fluid cylinder was empty, and that on a
second truck, the fluid cylinder was also empty, and the brake
hoses were disconnected. He also found that 50 percent of the
rear braking system on one truck was inoperative.
On the facts of the instant case, while it is true that
the inspector did not physically inspect the brakes or find
any specific defects, he nonetheless concluded that the empty
trucks travelling at a slow rate of speed should have been
capable of coming to a complete stop without rolling 30 to
40 feet after the foot brakes were applied by the driver, or
without the necessity of the driver raising up on his seat to
apply all of the available foot pressure to the brake pads.
Coupled with the fact that repairs were made to replace a
mechanism which controlled the air pressure for the foot
braking system, and my conclusion that the lack of adequate
air pressure to the brakes could reasonably have prevented the
truck from coming to a complete stop sooner than 30 or 40 feet,
I conclude and find that the petitioner has established by a
preponderance of the available credible evidence that the cited
truck foot brakes were in fact inadequate. Accordingly, the
citation IS AFFIRMED.
Significant and Substantial Violations
A "significant and substantial"' violation is described in
section 104(d)(l) of the Mine Act as a violation "of such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard." 30 C.F.R. § 814(d)(l). A violation is properly
designated significant and substantial "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will
re~ult in an injury or illness of a reasonably serious nature."
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 {April
19 81) •
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of
a mandatory safety standard is significant and

1534

substantial under National Gypsum the Secretary
of Labor must prove:
Cl> the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety-contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129, the Commission stated further as follows:
We have explained further that the third
element of the Mathies formula "requires that
the Secretary establish a reasonable likelihood
that the hazard contributed to will result in
an event in which there is an injury." U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in a.ccordance
with the language of section 104Cd)(l), it is
the contribution of a violation to the cause
and effect of a hazard that must be significant
and substantial. U.S. Steel Mining Company,
Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
'S't'eel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
With regard to Citation No. 3052407, I conclude and find
that the failure by the employee sitting on a wet and muddy
I-beam in question to wear a safety belt or line where there
was a danger of falling constituted a significant and substantial violation of section 56.15005. In the event of a fall, I
believe it would be reasonably likely that the employee in
question would have suffered injuries of a reasonably serious
nature.
I agree with the inspector's finding, and IT IS
AFFIRMED.
I also agree with the inspector's significant and substanfinding with respect to Citation No. 2862746, concerning
the inadequate brakes on the No. 29 Caterpillar truck. The
~ial

1535

respondent did not dispute the fact that the inclined baulage
road over which the truck normally .traveled during the course
of the working shift had a 90-degree curve at the bottom, with
a solid wall in front of it. The respondent also did not dispute the fact that the depth of the quarry adjacent to the
haulage road, as shown in the photograph exhibits G-2 and
Deposition exhibit No. 1, posed a hazard, and Mr. Neely confirmed that the repairs made on the truck brakes on June 15,
1987, were in response to the concerns of the driver that one
wheel was locking while going downhill, causing the truck to
slide towards the edge of the roadway adjacent to the open pit
below.
Given the fact that the inadequate brakes allowed the
cited truck in question to roll some 30 or 40 feet before
coming to a stop, I believe that one can reasonably conclude
that the condition of the brakes posed a discrete hazard of
the truck colliding with the wall at the foot of the haulage
road or running off the roadway to the pit below in the event
the driver applied his brakes while approaching the bottom of
the hill while making the right turn. Inspector Cloyd confirmed that during the testing of the brakes he had the driver
apply the brakes before reaching the curve at the bottom of
the road at a pre-determined location out of concern for the
curve in the road, as well as the wall, and he did so to allow
an additional margin of safety in the event the driver was
unable to completely stop the truck. The inspector confirmed
that he based his "S&S" finding on the fact that the haulage
road was steep and the presence of a 90-qegree curve at the
bottom with a solid limestone wall in front of it. He also
considered the fact that the cited truck had a history of
brake problems. Under the circumstances, I conclude and find
that the inspector's finding was reasonable, and IT IS
AFFIRMED.
History of Prior Violations
An MSHA computer print-out reflects that for the period
October 1, 1985 through September 30, 1987, the respondent
paid civil penalty assessments in the amount of $903 for 26
violations, twenty (20) of which ar~ "single penalty" $20
assessed violations (exhibit G-3).: For an operation of its
size, I cannot conclude that the re~pondent's compliance
record warrants any additional increases in the civil penalty
assessments which have been made for the violations which have
been affirmed in these proceedings._

1536

Size of Business and Effect of Civil Penalty Assessments on
the Respondent's Ability to Continue in Business
The record reflects that the subject limestone quarry and
mill operated by the respondent at the time the citations were
issued is not in operation and was closed on October 2, 1987.
During its operation, the respondent employed 41 miners at
that location and the facility produced 5,331.33 tons of
crushed limestone per day. From J·une 1987 through April 1988,
the respondent employed 181 miners in all of its operations
and produced an average of 9,734.64 tons of crushed limestone
per day.
I conclude and find that the respondent is a
medium-to-large mine operator, and the parties stipulated that
the payment of the proposed assessed civil penalty assess~ents
for the violations in question would have a negligible effect
on the respondent's ability to continue in business. I adopt
this stipulation as my finding and conclusion on this issue.
Good Faith Compliance
The record establishes that the cited truck was immediately taken out of service and taken to the shop for repairs,
and a new equalizer, or slack adjuster, was installed. With
regard to the safety belt citation, the record reflects that
when the employee was observed sitting on the eye beam without
a safety belt or line; the respondent's quarry superintendent
spoke to the employee and ordered him off the I-beam, and the
respondent provided two safety belts and lanyards for use by
its employees in the primary crusher area. I conclude and
find that the respondent exercised good faith compliance by
timely and rapidly abating both of the violations.
Negligence
I conclude and find that both of the violations which
have been affirmed resulted from the respondent's failure to
exerci~e reasonable care, and the negligence findings made the
inspector's with respect to both violations, ranging from
"low" to "moderate," are affirmed.
Gravity
On the basis of my findings and conclusions affirming the
significant and substantial findings made by the inspectors, I
conclude and find that both of the violations which have been
affirmed in these proceedings were serious.

1537

Civil Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llOCi> of
the Act, I conclude and find that the following proposed civil
penalty assessments are reasonable and appropriate for the
violations which have been affirmed in these proceedings:
Docket No. SE 87-116-M
Citation No .•

Date

30 C.F.R. Section

Assessment

3052407

06/01/87

56.15005

$ 42

Docket No. SE 87-132-M
Ci ta.ti on No.

Date

30 C.F.R. S.ection

Assessment

2862746

06/18/87

56.9003

$105

ORDER·
The respondent IS ORDERED to pay the civil penalties
assessed in these proceedings within thirty C30) days of these
decisions and order. Upon receipt of payment by the petitioner, these cases are dismissed.

d_.4~

~Koutras.

Administrative Law Judge

Distribution:
Michael L. Roden, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail>'
Mr~

James H. Neely, Safety Director, Hoover, Incorporated,
1205 Bridgestone Parkway, P.O. Box 1700, Lavergne, TN
37086-1700 (Certified Mail)

/fb

1538

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

November 2, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

.
.
:
..
:

CONSOLIDATION COAL COMPANY,
Respondent

CIVIL PENALTY PROCEEDING·
Docket No. WEVA 88-244
A.C. No. 46-01318-03819
Robinson Run No. 95 Mine

.
DECISION

Appearances:

Before:

Joseph T. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Michael R. Peelish, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for Respondent.

Judge Merlin

This case is a petition for the assessment of three civil
penalties filed by the Secretary of Labor against Consolidation
Coal Company. At the hearing, the parties advised that they had
reached settlements in all three orders and were prepared to make
their recommendations on the record. As appears herein, this was
done. This hearing took place at the same time as other cases
involving the parties were heard on the merits.
Order No. 2897149 was issued for a violation of 30 C.F.R.
75.400 because combustible material had accumulated along the
No. 1 mother belt conveyor and loose coal had accumulated under
and along the belt at intermittent locations. The original
assessment was $1100 and the parties recommended a settlement of
$850. The Solicitor reported at the hearing that negligence was
not as high as had originally been thought. He stated that at
the time the order was issued the operator already had
individuals in the process of cleaning up. There had been an
intermittent but recurring problem with the belt which was
constantly being repaired causing spillage to occur. However,
the operator was attempting to deal with the problem. Operator's
counsel pointed out that this was a very long belt which could
become unaligned very quickly and when the operator attempted to
realign the belt, spillage happened. The violation admittedly
was serious. I accept the representations of counsel and based
§

1539

thereon approve the recommended settlement which remains a
substantial amount.
Order 2897348 was issued for a violation of 30 C.F.R.
75.1403 because a left track switch had a missing barrel,
making it unsafe to throw the switch. The order was based upon a
prior safeguard which required all track switches be provided
with switch throws, bridle bars and barrels. The original
assessment was $1000 and the parties recommended a settlement of
$650. Here again, the Solicitor advised at the hearing that
negligence was not as high as had originally been thought. ·
According to the Solicitor, the condition was first observed
between one a.m. and three a.m. on Sunday morning. The mine was
idled on the Sunday day shift and there was no repair crew
available to make the correction on that shift or on the
subsequent evening shift. The first repair crew did not operate
until the next morning on the 12 a.m. to 8 a.m. shift. That crew
was en route on the next morning to repair the missing barrel
when they found a broken rail which had to be immediately
replaced. While the crew was repairing the rail, the inspector
cited the subject condition. In any event, the cited condition
was corrected within fiftee~ minutes of the time it was
discovered by the inspector. The crew caught up to the inspector
and abated the condition forthwith. The violation was serious.
I accept the representations of counsel and based thereon,
approve the recommended settlement which remains a substantial
amount.
§

Order 2897200 was issued for a violation of 30 C.F.R.
75.200 because the approved roof plan was not being met with
respect to pillar blocks. The plan required that prior approval
be obtained from the district manager before splitting the pillar
blocks. The operator failed to obtain approval. The original
assessment was $700 and the proposed settlement is for this
amount. The Solicitor represented that although a violation
existed, it was not significant and substantial because
occurrence of an adverse event was unlikely. At the hearing I
rejected this rationale and found that .the violation was serious,
pointing out that gravity is not synonymous with significant and
substantial. I approve the recommended settlement because it is
consonant with a serious violation.
§

In light of the foregoing, it is Orde.red that the
recommended settlements be Approved.

1540

It is further Ordered that the operator pay $2200 within 30
days from the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Joseph T. Crawford, Esq., Office of the Solicitor, U.S.
Department of Labor, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail>
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
slk

1541

FEDERAL MINE SAFETY AND HEALTH REVIEw-·coMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

NOV 4 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF DENNIS WAGNER,
Complainant

v.

.

DISCRIMINATION PROCEEDING
Docket No. VA 88-19-D
NORT CD 87-8
McClure No. 1 Mine

CLINCHFIELD COAL COMPANY,
Respondent
ORDER APPROVING SETTLEMENT
AND DISMISSING PROCEEDING
Before:

Judge Broderick

On February 12, 1988, the Secretary of Labor (Secretary)
filed on behalf of Dennis Wagner, a complaint alleging that
Respondent violated Section 105(c)(l) of the Act, when it
suspended and discharged Wagner because he reported a safety
violation to a federal inspector.
The Secretary sought an order directing Respondent to pay
interest on lost wages (Wagner was paid the wages he lost as a
result of an arbitration decision), an order directing Respondent
to reimburse complainant for private attorney fees incurred as a
result of the discrimination, an order'.directing Respondent to
comply with section 105(c), an order assessing a civil penalty,
and an order directing Respondent to post a notice at the mine
that it will not violate section 105Cci.
Complainant Wagner intervened in this proceeding pursuant to
29 C.F.R. § 2700.4(b}(2}. He also filed a separate proceeding
against Respondent Clinchf ield, Pittston Coal Group, three
employees of Clinchfield or Pittston, the Secretary of Labor, the
Mine Safety and Health Administration (MSHA}, and two employees
of MSHA. That proceeding was docketed as VA 88-21-D, and is
presently before the Review Commission wh_ich directed the case
for interlocutory review.
On October 17, 1988, the Secretary filed a motion to approve
a settlement agreed to by the Secretary and Respondent
Clinchf ield. The settlement provides that Clinchf ield will pay
complainant Wagner interest at the adjusted prime rate on all
wages lost as a result of his suspension; that Clinchf ield agrees

1542

that it will comply with section 105Cc), and will not
discriminate against Wagner in violation of section 105(c); that
Clinchf ield agrees that its employees have the right to make
safety complaints to MSHA, and that it will neither institute nor
enforce any policy that requires such complaints be first made to
Respondent; that Clinchf ield will post a notice at the mine
stating that it will not violate section 105(c) of the Act; that
Clinchfield will expunge· from its records all adverse statements
concerning events leading up to, resulting in, or following
Wagner's June 26, 1987, suspension; that Respondent will pay a
civil penalty of $700 to MSHA. Respondent does not, by agreeing
to the settlement, admit that it violated the act.
The complaint in this case was filed by the Secretary.
I must determine whether the proposed settlement is in the public
interest, that is, whether it furthers the purposes of section
105(c) of the Act. One factor to be considered is whether the
complainant on whose behalf the case was filed approves the
settlement. But more important that his approval or disapproval
is a consideration of what the complaint sought, and a comparison
of what was sought with the result if the Secretary were to
prevail in a contested case.
The settlement proposal achieves all the Secretary's prayer
for relief except Cl> a finding of discrimination and (2)
reimbursement of complainant's private attorney's fees.
Under
recent case law, attorneys fees are not authorized in cases where
the Secretary filed the complaint pursuant to section 105(c)(2).
Eastern Associated Coal Co. v. FMSHRC, 813 F.2d 639 C4th Cir.
1987); Maggard v. Chaney Creek, 9 FMSHRC 1314 (1987).
I conclude that the proposed settlement substantially
achieves what the complaint sought and is in the public interest.
Therefore, the settlement agreement is APPROVED, and,
subject to Respondent carrying out its terms, this proceeding is
DISMISSED.
1

j

~

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James A. Broderick
Administrative Law Judge

1543

Distribution:

.s.

Craig w. Hukiil, Esq., u
Department of t.abor, OJ: flee of the
soii~itor; 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203
(certified Mail>
Jerry o. T2llton, II, Esq., 222 East Main street, :Frorit Royal, VA
22630 <certified Maii>

w. Challen Walling, Esq., Box 2009, Bristol, VA 24203 (Certified
Mail)
slk

1544

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

November 7, 1988

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 88-54-M
A. C. No. 33-03990-05521
Jonathan Limestone Mine

v.

COLUMBIA PORTLAND CEM~NT
COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

This case is a petition for the imposition of civil penalties for 20 violations originally assessed at $20 each for a
total of $400. The proposed settlements are for the original
amounts. On June 30, 1988, the Solicitor submitted a motion for
approval. On September 7, 1988, I issued an order approving one
settlement (Citation No. 3058715) and disapproving th~ remaining
nineteen because the motion contained insufficient information.
On October 18, 1988, the Solicitor submitted an amended motion
with additional information.
·
Citation No. 3058714
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.14006, because the guard for the
self-cleaning tail pulley on the No. 9 auxiliary belt conveyor
was not securely in place while the machine was in operation.
I originally disapproved this settlement because the Solicitor
failed to support his conclusions. In his amended motion the
Solicitor explains that the probability of contacting the
unguarded pulley was unlikely since the belt conveyor was not in
motion. He further advises that the area near the belt conveyor
was not a regular travelway or walkway.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3059190
According to the Solicitor, this citation was issued for a
violation of 30 C.F.~. § 56.12025, because the conduit used as a
grounding conductor for the stop switch on the No. 9 auxiliary

1545

feed belt in the finishing mill was broken in two places. I
originally disapproved this settlement because the Solicitor
failed to support his conclusions. In his amended motion the
Solicitor explains that the probability of a ground fault
happening was unlikely since it would have to occur on the stop
switch or conduit simultaneously with an employee making contact
with the switch. He further advises that the conduit was in an
area not readily accessible to employee contact.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3059192
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12032, because the junction box cover
for the tailing screw beside the No. 2 elevator in the basement
of the baghouse was missing, exposing the conductors to damage.
I originally disapproved this settlement because the Solicitor
failed to support his conclusions. In his amended motion the
Solicitor explains that the junction box was in a location that
was not a regular travelway or walkway.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3Q59193
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12025, .because the 120 volt fan
located at the loading dock door of the bag storage room was not
equipped with a grounding conductor. I originally disapproved
this settlement because the Solicitor failed to support his conclusions. In his amended motion the Solicitor explains that the
probability of a ground fault occu~ring was unlikely since the
fan was not plugged in. Also, no employees worked in the area.
Finally, he advises that before an injury could happen, a ground
fault would have to occur simultaneously with an employee
contacting the fan.
Based upon the foregoing additional information, l approve
the $20 settlement.
Citation No. 3059194
According to the Solicitor, t~is citation was issued for a
violation of 30 C.F.R. § 56.12025, because the conduit on the
alarm switch at the No. 5 packer station in the baghouse was
broken. The citation recites that the condition put added strain
on the connections in the switch • .I originally disapproved this
settlement because the Solicitor f~iled ·to support his conclusions. In his amended motion the. Solicitor explains that the
probability of a ground fault occurting:was unlikely since the

1546

alarm·switch was not readily accessible to employee contact. He
further advises that before an injury could happen, a ground
fault would have to occur on the alarm and conduit simultaneously
with an employee making contact with the conduit.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3059196
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12025, because the conduit holding
the light outside the car shop was broken. I originally disapproved this settlement because the Solicitor failed to support
his conclusions. In his amended motion the Solicitor explains
that the probability of a ground fault occurring was unlikely
since the light was not readily accessible to employee contact.
He further advises that before an injury could happen, a ground
fault would have to occur on the conduit simuitaneously with an
employee making contact with it.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3058720
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.11001, because a spill of limestone
had accumulated on the first landing below the top floor of the
raw mill building. The citation recites that the condition put
excess weight on the floor. I originally disapproved this settlement because the Solicitor failed to support his conclusions. In
his amended motion the Solicitor explains that no employees were
working in the area below the spill of material and that the area
in question was not a regular travelway.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3059385
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12028, because the continuity and
resistance of the grounding system for the plants and mine had
not been tested on an annual basis. I originally disapproved
this settlement because the Solicitor failed to support his conclusions. In his amended motion the Solicitor explains that the
probability of a ground fault occurring was unlikely since the
grounding system was in good condition at the time of the
inspection, even though more than one year had passed since the
last test.

1547

Based upon the foregoing additional information, I approve
the $20 settlement.
Citation

~o.

3059386

According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12034, because the 110-volt light
bulb on the extension light in the machine shop was not guarded.
I originally disapproved this settlement because the Solicitor
failed to support his conclusions. Jn his amended motion the
Solicitor explains that the probabi)ity of an employee contacting
the light bulb ~as unlikely since no work was being done in the
area.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3059388
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12008, because the 440-volt cables
did not enter the metal frame of the No. 3 motor control center
through proper bushings and fittings. The motor control center
was located on the fourth floor of the raw mill. I originally
disapproved this settlement because: the Solicitor failed to
support his conclusions. In his amended motion the Solicitor
explains that the probability of the cables coming loose was unlikely since the motor control center was mounted in a stationary
position. No strain was being put on the cables and no
vibrations were noted.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3059422
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.420l(a)(l), because the fire
extinguishers located in the raw mill ·were not inspected on a
monthly basis. I originally disapproved this settlement because
the Solicitor failed to support his conc~usions. In his amended
motion the Solicitor advises that the extinguishers were found to
be in working order when tested.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3059392
According to the Solicitor, t~is citation was issued for a
violation of 30 C.F.R. § 56.12020, -because an insulation mat was
not provided for the disconnect switches and breaker contr~ls
located in the basement of the packhouse. I originally dis-

1548

approved this settlement because the Solicitor failed to support
his conclusions. In his amended motion the Solicitor explains
that the probability of an injury happening was unlikely since a
ground fault would have to occur and energize the switches and
breaker controls simultaneously with an employee making contact
with the controls.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3059393
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12034, because guards were not prbvi ded for two light bulbs in the west tunnel of the packhouse. I
originally disapproved this settlement because the Solicitor
failed to support his conclusions. In his amended motion the
Solicitor explains that the probability of an employee contacting
the light bulbs was unlikely since the light bulbs were not
readily accessible to employee contact.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3059394
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12025, because the grounaing conductor on the motor for the fan in the packhouse was not adequately affixed. I originally disapproved this settlement because the
Solicitor failed to support his conclusions. In his amended
motion the Solicitor explains that the probability of an accident
happening was unlikely since a ground fault would have to occur
on the motor simultaneously with an employee making contact with
it .

Based upon the foregoing additional information, T approve
the $20 settlement.
Citation No. 3059397
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12020, because an insulation mat was
not provided on the concrete floor in the motor control center
for the precipitator building. I originally disapproved this
settlement because the Solicitor failed to support his conclusions. In his amended motion the Solicitor explains that the
probability of an injury happening was unlikely since a ground
fault would have to occur on the motor simultaneously with an
employee making contact with it.
Based upon the foregoing additional information, I approve
the $20 settlement.

1549

Citation No. 3059398
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12030, because the cdnduit for the
motor for the No. 5 side gather up screw conveyor was broken in
two places. I originally disapproved this settlement because the
Solicitor failed to support his conclusions. In his amended
motion the Solicitor explains that the probability of a ground
fault occurring was unlikely since the screw motor was not
readily accessible to employee contact. He further advises that
before an injury could happen, a ground fault would have to occur
on the motor simultaneously with an employee making contact with
i t •

Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3059423
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.4102 because of an accumulation of
oil on the floor of the compressor room in the basement of the
packhouse. I originally disapproved this settlement because the
Solicitor failed to support his conclusions. In his amended
motion the Solicitor explains that the electrical components were
some distance off the floor. He furt~er advises that nobody was
working in the area and that a fire extinguisher and two exits
were in the area.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No.

3059~24

According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.17001, because illumination was not
sufficient to provide safe working conditions in the east tunnel
of the packhouse. I originally disapproved this settlement
because the Solicitor failed to support his conclusions. In his
amended motion the Solicitor explains ~that no work was being
conducted in the area at the time in question.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3059404
According to the Solicitor, this :citation was issued for a
violation of 30 C.F.R. § 56.12032, be~ause the cover plate on the
junction box at the head pulley of the coal incline belt was
missing. The citation recites that the condition exposed conductors on the junction box to damage~ I originally disapproved

1550

this ·settlement because the Solicitor failed to support his conclusions. In his amended motion the Solicitor explains that the
probability of damaging the conductors was unlikely since the
junction box was not readily accessible to employee contact.
Based upon the foregoing additional information I approve
the $20 settlement.
Conclusions and Order
As set forth above, the proposed settlements for the
remaining ni~eteen citations in this docket are Approved.
However, the parties are cautioned that a number of th~
citations herein appears to be a rather generous use of the
single penalty assessment. Also, the parties are reminded that,
as stated in my prior Order of Disapproval, penalty assessments
are de novo before the Commission which is not bound by the
MSHA""IS proposed assessments or penalty regulations. Bearing this
in mind, in the future before the Solicitor submits any proposed
settlement, he should review it in light of the statutory
criteria set forth in section llO(i), 30 U.S.C. § 820(i).
Finally, it should be a matter of concern to MSHA that within a
very short period of time this operator was cited for 72 violations. See also Docket ~os. LAKE 88-55-M, LAKE 88-56-M,
LAKE 88-58-M, LAKE 88-59-M, and LAKE 88-62-M.
It is further ORDERED that the operator pay $380 within 30
days from the date of this decision.

:__.,._\29.
\

,J

Paul Merlin
Chief Administrative Law Judge

Distribution:
Christopher J. Carney, Esq., Office of the Solicitor, U. S. Department of Labor, 881 Federal Office Building, 1240 East Ninth
Street, Cleveland, OH 44199 (Certified Mail)
Michael M. Roman, Vice President, Industrial Relations, Columbia
Portland Cement Company, P. 0. Box 1531, Zanesville, OH 43702
(Certified Mail)

I g1

1551

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

November- 7, 1988

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

:

CIVIL PENALTY PROCEEDING
Docket No. LAKE 88-55-M
A. C. No. 33-03990-05522
Jonathan Limestone Mine

v.
COLUMBIA PORTLAND CEMENT
COMPANY,
Respondent

DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

This case is a petition for the imposition of civil penalties for 20 violations originally assessed at $20 each for a
total of $400. The proposed settlements are for the original
amounts. On June 30, 1988, the Solicitqr s~bmitted a motion for
approval. On September 7, 1988, I i~sued an order approving four
settlements (Citation Nos. 3059430, 3059431; 3059434, and
3059439) and disapproving the remaining sixteen because the
motion contained insufficient information. On October 18, 1988,
the Solicitor submitted an amended motion with additional
information.
Citation No. 3059412
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12008, because the feed cable for the
portable reducing transformer located on the burner floor did not
enter the metal frame through proper bushings and/or fittings.
I originally disapproved this settlement because the Solicitor
failed to support his conclusions. In his amended motion the
Solicitor explains that the probability of the feed cable coming
loose was unlikely since the transformer was stationary and not
vibrating. He further advises that there was no strain on the
connections.
Based upon the foregoing additional information, I approve
the $20 settlement.
Ci t at i on No • 30 5 9:413
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12025, b:ecause the grounding jumper
1552

around the flexible conduit on the motor of the No. 5 separator
in the fi.nishing mill was not connected to the frame of the
motor. I originally disapproved this settlement because the
Solicitor failed to support his conclusions. In his amended
motion the Sqlicitor explains that the probability of a ground
fault occurring was unlikely since there was limited access to
the motor. He further advises that before an accident could
happen, a ground fault would have to occur simultaneously with an
employee making contact with the motor.
Based upon the foregoing additional information, I approve
the $20 ~etttement.
Citation No. 3059414
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12008, because the 440-volt feed
cable for the portable welder in the car shop did not enter the
metal frame of the welder through proper fittings and/or
bushings. I originally disapproved this settlement because the
Solicitor failed to support his conclusions. In his amended
motion the Solicitor explains that the probability of the cable
coming loose was unlikely since the cable was in good condition
and there was no strain on the connections.
Ba~ed uqon the foregoing additional information, I approve
the $20 settlement.

Citation No. 3059432
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.14006, because the guard was not in
place for the coupling between the motor and chain drive for the
gyp belt feeder for the No. 7 mill. I originally disapproved
this settlement because the Solicitor failed to support his conclusions. I,n his amended motion the Solicitor explains that the
probability of contacting the coupling was unlikely since the
coupling was not readily accessible to employee contact. He
further advises that an employee could contact the hazard only
through an intentional act.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3059435
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.14006, because the guard for the
sawblade for the electrical saw located in the car shop was not
in place. I originally disapprdved this settlement because the
Solicitor failed to support his conclusions. In his amended
motion the Solicitor explains that the probability of contacting

1553

the sawblade was unlikely since the saw:was oat in Gper~tion and·
no employees .were working in the car shop.··
.:~~ .. ,~ \
.
•

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t

Based upon the foregoing additional informati6n; •1approve
the $20 settlement.
,; ~'.
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·,

.,

Citation No. 3059418

~

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;

.

• i.:

According to the Solicitor, this citation was~issued.for a
violation of 30 C.F.R. § 56.12020, because the breaker and control box for the pump at the settling pond was not:·prbvtded with
a dry wooden platform or insulation mat. I origtnallJ~dts~
approved this settlement because the Solicitor failed to support
his conclusions. In his amended motion the Solicitor explains
that the probability of a ground fault occtirring was unlikely
since the area was dry and the controls were·seldom~used~ He
further advises that no employees were in the area.j, , ;.'
'

.

:

..

Based upon the foregoing additional informati-0n1 .happrove
the $20 settlement.
Citation No. 3059436
According to the Solicitor, this citation was ·issued for a
violation of 30 C.F.R. § 56.11001, because the ladder used to
climb in and out of a haulage truck did not constit·ut.e·a·..safe
means of access. I originally disapproved this·settlement
because the Solicitor failed to support his conclusions. In his
amended motion the Solicitor explains that a ladder was in fact
provided, but was not positioned on the truck in such a way so as
to provide the safest means of access into the trwck· ·e;a.ll.· He
further advises that al though pl aceme.nt of the ladder. was. not the
best, the probability of an accident happening was wnl·ii<ely even
the way it was placed.
1
- ; :~ : .~· -~ ..

Based upon the foregoing additional information, I" approve
the $20 settlement.
:;
Citation No. 3059441

.lot

• \v

According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12020, because a woodeni. p.l .atform or
insulation mat was not provided for th~ controls at the 3 inch
water pump. I originally disapproved this settlement because the
Solicitor failed to support his conclusions. In his amended
motion the Solicitor explains that the probability of a ground
fault happening was unlikely since it would have to ~c~~r on the
c o nt r o 1 p a ne l s i mu l t a ne o us l y wi t h an em ·p 1 oye e ma k i ng., co .n t a ct wi t h
the controls.
.
. ,,,··. , .
Based upon the forego i n g add i ti on al i nformat i o,n ~ I., a pp _rove
the $20 settlement.
.. .

1554

Citation No. 3059442
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12025, becaus~ the grounding conductor was not connected to the frame of the portable light located
in the underground shop. I originally disapproved this settlement because the Solicitor failed to support his conclusions. In
his amended motion the Solicitor explains that the light was not
readily accessible to employee contact. He further advises that
before an accident could happen, a ground fault would have to
occur on the light frame simultaneously with an employee making
contact with the light frame.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3059445
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12020, because a dry wooden platform
or insulation mat was not provided for the controls on the #3250
portable water pump. I originally disapproved this settlement
because the Solicitor failed to support his conclusions. In his
amended motion the Solicitor explains that before an accident
could happen, a ground fault would have to occur on the·control
panel simultaneously with an employee making contact with the
panel.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3059446
According to the Solicitor, this citation was issued f6r a
violation of 30 C.F.R. § 56.12020, because a wooden platform or
insulation mat was not provided for the controls at the high
pressure wash bay located at the underground wash station. I
originally disapproved this settlement because the Solicitor
failed to s~pport his conclusions. In his amended motion the
Solicitor explains that before an accident could happen, a ground
fault would have to occur on the control panel simultaneously
with an employee making contact with the panel.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3059448
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12030, because the 440-volt feed
cable to the main exhaust fan located at the underground crusher
station was damaged and had a conductor showing through. I
originally disapproved this settlement because the Solicitor

1555

failed to support his conclusions. tn his amended motion the
Solicitor ex~lains that the probability of contacting the cable
was unlikely since the cable was not readily accessible to
emplpyee contact. He further advises that ~mployees were not in
the area.
Based upon the foregoing additional information, I approve
the $20 settlement.
Citation No. 3059450
According t6 the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12025, because the conduit used as a
grounding conductor for the 110-volt light in the walkway of the
underground bin conveyor was broken. I originally disapproved
this settlement because the Solicitor failed to support his conclusions. In his amended motion the Solicitor explains that the
probability of~ ground fault occurring was unlikely since the
light was not readily accessible to employee contact. He further
advises that before an accident could happen, a ground fault
would have to occur simultaneously with an employee making
contact with the light frame.
Based upon the foregoing additional information, t approve
the $20 settlement.
Citation No. 3059452
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12025, because the conduit used for a
grounding conductor for the 110-volt outlet at the top landing
for the underground man lift was broken. I originally disapproved this settlement because the Solicitor failed to support
his conclusions. In his amended motion the Solicitor explains
that the probability of a ground fault happening was unlikely
since it would have to occur simultaneously with an employee
using the outlet.
Based upon the foregoing
the $20 settlement.

additio~al

information, I approve

Citation No. 3059453
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12020, because the cover plate for
the junction box located near the walkway for the 4A belt was
missing, thereby exposing the conductor to damage. I originally
disapproved this settlement because the Solicitor failed to
support his conclusions. In his. amended motion the Solicitor
explains that the probability of a ground fault occurring was
unlikely since the conductor was not damaged. He further
advises that before an accident could happen, a ground fauft on

1556

the conductor would have to occur simultaneously with an employee
making contact with the conductor.
Based upon the foregoing additional information,
the $20 settlement.

I approve

Citation No. 3059454
According to the Solicitor, this citation was issued for a
violation of 30 C.F.R. § 56.12025, because the conduit used as a
grounding conductor was broken on the 4A underground belt
conveyor. I originally disapproved this settlement because the
Solicitor failed to support his conclusions. In his amended
motion the Solicitor explains that before an accident could ·
happen, a ground fault would have to occur on the motor for the
conveyor simultaneously with an employee making contact with the
conveyor.
Based upon the foregoing additional information, I approve
the $20 settlement.
Conclusions and Order
As set forth above, the proposed settlements for the remaining sixteen citations in this docket are Approved.
However, the parties are cautioned that a number of the citations herein appear to be a rather generous use of the single
penalty assessment. Also, the parties are reminded that, as
stated in my prior Order of Disapproval, penalty assessments are
de nova before the Commission which is not bound by MSHA's proposea-issessments or penalty regulations. Bearing this in mind,
before the Solicitor submits any proposed settlement, he should
review it in light of the statutory criteria set forth in section
llO(i), 30 U.S.C. § 820(i ). Finally, it should be a matter of
concern to MSHA that within a very short period of time this
operator was cited for 72 violations. See also Docket Nos.
LAKE 88-54-M, LAKE 88-56-M, LAKE 88-58-M, LAKE 88-59-M, and
LAKE 88-62-M.
It is further ORDERED that the operator pay $320 within 30
days from the date of this decision
'

Paul Merlin
Chief Administrative Law Judge

1557

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

20006

November 7; 1988

CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 88-58-M
A. C. No. 33-03990-05524
Jonathan Limestone Mine

v.

COLUMBIA PORTLAND CEME~T
COMPANY,
Respondent
OECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

This case is a petition for the· i-mposition of civil penalties for 20 citations which were originally assessed at $2,603.
On June 30, 1988, the Solicitor submitted a motion to approve
settlements in a reduced total amount of $1,463.80. On
September 7, 1988, I issued a Decision Disapproving Settlements
and Order To Submit Information. On October 18, 1988, the
Solicitor submitted an amended motion to approve settlements.
The amended motion abandons the attempt to reduce the original
assessments and instead recommends settlements for these amounts.
The circumstances of each citation in this case are set
forth in my decision and order of September 7, 1988. There is no
need to repeat them here since the amended motion sets forth no
new facts or considerations, but merely repeats what is in the
citations and based thereon returns_to th~ original assessments.
I stated in my prior order that the original assessments are
modest and upon further examination in light of the amended
motion, I adhere to that view. However, I conclude that these
amounts may be approved in this instance.
The parties are reminded that ftS I previously pointed out,
penalty assessments are~ nova before the Commission \'1hich is
not bound by MSHA's proposed assessments, original or otherwise.
An original assessment may prove too high or too low. Bearing
this in mind, before the Solicitor ~ubmits a proposed settlement
to a Commission administrative law Judge, he should review it in
light of the statutory criteria ·set forth in section llO(i), 30
U.S.C. § 820(i), most particularly ~ravity and negligence.
Finally, it should be a matter of concern to MSHA that within a
v~ry short period of time this- operator was cited for 72

1558

violations.
See also Docket Nos. LAKE 88-54-M, LAKE 88-55-M,
LAKE 88-56-M, LAKE 88-59-M, and LAKE 88-62-M.
It is ORDERED that proposed settlements be APPROVED and that
within 30 days of the date of this decision the operator pay
$2,603.

\\
Paul Merlin
Chief Administrative Law Judge
Distribution:
Christopher J. Carney, Esq., Office of the Solicitor, U. S. Department of Labor, 881 Federal Office Building, 1240 East Ninth
Street, Cleveland, OH 44199 (Certified Mail)
Michael M. Roman, Vice President, Industrial Relations, Columbia
Portland Cement Company, P. O. Box 1531, Zanesville, OH 43702
(Certified Mail)
/gl

1559

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

November 7, 1988

-, CIVIL PENALTY PROCEEDING

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

. 0o c k e t

No • L AK E 8 8-5 9 -M
A. C. No. 33-039g0-05525

Jonathan Limestone Mine

v.

COLUMBIA PORTLAND CEMENT
COMPANY,
Respondent
DECISION APPROVING S~TTlEMENT
ORDER TO .PAY
Before:

Judge Merlin

This case is a petition for the imposition of civil penalties for six citations which were originally assessed at $831.
On June 30, 1988; the Solicitor submitted a motion to approve
settlements in a reduced total amount of $467.50. On
September 7, 1988, I issued a Decision Disapproving Settlements
and Order To Submit Information. On October 18, 1988, the Solicitor submitted an amended motion to approve settlements. The
amended motion abandons the attempt to reduce the original assessments and instead recommends settlements in these amounts.
The circumstances of each citation in this case are set
forth in my decision and order of September 7, 1988. There is no
need to repeat them here since the amended motion sets forth no
new facts or considerations, but m~rely repeats what is in the
citations and based thereon returns to the original assessments.
I stated in my prior order that the original assessments are
modest and upon further examination in light of the amended
motion, I adhere to that view. However, I conclude that these
amounts may be approved in this instance.
The parties are reminded that. as~I previously pointed out,
penalty assessments are ~ nova before the Commission which is
not bound by MSHA's proposed assessments, original or otherwise.
An original assessment may prove too high or too low. Bearing
this in mind, before the Solicitor submits a proposed settlement
to a Commis.sion administrative l·aw juage, he should review it in
light of the statutory criteria set f~rth in section llO(i), 30
U.S.C. § 820(i), most particularly gravity and negligence.·
Finally, it should be a matter of concern to MSHA that within a

1560

very short period of time this operator was cited for 72
violation~.
See also Docket Nos. LAKE 88-54-M, LAKE 88-55-M,
LAKE 88-56-M, LAKE 88-58-M, and LAKE 88-62-M.
It is ORDERED that proposed settlements be APPROVED and that
within 30 days of the date of this decision the operator pay
$831.

-Paul Merlin
Chief Administrative Law Judge
Distribution:
Christopher J. Carney, Esq., Office of the Solicitor, U. S. Department of labor, 881 Federal Office Building, 1240 East ~inth
Street, Cleveland~ OH 44199 (Certified Mail)
Michael M. Roman, Vice President, Industrial Relations, Columbia
Portland Cement Company, P. 0. Box 1531, Zanesville, OH 43702
(Certified Mail)
I gl

1561

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

20006

November 7, 1988

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 88-62-M

A~· C. No. 33-03990-05526

Jo.nathan Limestone Mine

v.

COLUMBIA PORTLAND CEMENT
COMPANY,
Respondent
DECIStON APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

This case is a petition for the:imposition of civil penalties for five violations. Two of the violations were originally
assessed at $20 each and the remaining three violations were
originally assessed at $371. On June 30, 1988, the Solicitor
submitted a motion for approval advising that the operator agreed
to pay the originally assessed amounts for the two $20 violations
and proposed settling the remaining three violations for $208.70.
On September 7, 1988, I issued an order approving one of the
$20 violations (Citation No. 3059478) and disapproving the remaining four violations because the motion contained insufficient
information. On October 18, 1988, the Solicitor submitted an
amended motion with additional information with respect to the
$20 violation. The amended motion also abandons the attempt to
reduce the original assessments for the other three.
According to the Solicitor, Citation No. 3060312 was issued
for a violation of 30 C.F.R. § 56.12025, because the equipment
grounding conductor for the west screw in the basement of the
packhouse was broken off the drive motor. I originally disapproved this settlement because the- Solicitor failed to support
his conclusions. In his amended motion the Solicitor explains
that before an accident could happen a ground fault on the drive
motor would have to occur simultaneously with an employee
contacting the motor or screw.
Based upon the foregoing additional information, I approve
the $20 settlement.

1562

The circumstances of the three rema1n1ng citations in this
case are set forth in my decision and order of September 7, 1988.
There is no need to repeat them here since the amended motion
sets forth no new facts or considerations, but merely repeats
what is in the citations and based thereon returns to the
original assessments. I stated in my prior order that the
original assessments are modest and upon further examination in
light of the amended motion I adhere to that view. However, I
conclude that these amounts may be approved in this instance.
The parties are reminded that as I previously pointed out,
penalty assessments are de nova before the Commission which is
not bound by MSHA's proposecraS"sessments, original or otherwise.
An original assessment may prove too high or too low. BeariAg
this in mind, before the Solicitor submits any proposed settlement to a Commission administrative law judge, he should review
it in light of the statutory criteria set forth in section
llO(i), 30 U.S.C. § 820(i). Finally, it should be a matter of
concern to MSHA that within a very short period of time this
operator was cited for 72 violations. See also Docket Nos. LAKE
88-54-M, LAKE 88-55-M, LAKE 88-56-M, LAKE 88-58-M, and LAKE
88-59-M.
It is ORDERED that proposed settlements be APPROVED and that
within 30 days of the date of this decision the operator pay
$391.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Christopher J. Carney, Esq., Office of the Solicitor, U. S. Department of Labor, 881 Federal Office Building, 1240 East Ninth
Street, Cleveland, OH 44199 (Certified Mail)
Michael M. Roman, Vice President, Industrial Relations, Columbia
Portland Cement Company, P. O. Box 1531, Zanesville, OH 43702
(Certified Mail)
I gl

1563

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

NOV 151988
SOUTHERN OHIO COAL COMPANY,
Contestant

CONTEST PROCEEDINGS

v.

Docket No. WEVA 88-6-R
Order ~o. 2894708; 9/3/87

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

..
.

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

Docket No. WEVA 88-7-R
Order No. 2894711; 9/4/87
Martinka No. 1 Mine
Mine ID No. 46-03805
CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 88-88
A. C. No. 46-03805-03831

v.
Docket No. WEVA 88-104
A. C. No~ 46-03805-03835

SOUTHERN OHIO COAL COMPANY,
Respondent

Martinka No. 1 Mine
DECISION
Appearances:

David M. Cohen, Esq., Southern Ohio Coal Company,
Lancaster, Ohio, for the Operator;
Evert H~ VanWijk, Esq., Office of the Solicitor,
u. s. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary.

Before:

Judge Weisberger

Statement of the Case
In these consolidated cases, the Operator (Respondent)
sought to challenge the following Citations/Orders issued to it
by the Secretary (Petitioner):
2894708
2894711
2894510
2289 451·8

alleged violation of 30 C.F.R. § 75.316
alleged failure to timely abate Citation 2892710
alleged violation o~ 30 C.F.R. § 77.400Cc)
alleged violation of 30 C.F.R. § 75.1403.

The S~cretary sought civil penalties for alleged violations by
the Operator of the above cited sections except Order No. 2894711.
On February 22, 1988, Respondent filed a Motion for a Summary
Decision concerning Docket No. WEVA 88-6-R (Order No. 2894708).
This Motion was denied by Order dated June 3, 1988. On March 3,
1988, the Parties were notified that Docket Nos. WEVA 88-88,
WEVA 88-6-R, and WEVA 88-7-R would be called for hearing on
March 28, 1988, in Falls Church, Virginia. Subsequently, based
upon a request from Counsel for both Parties, these cases wer~
rescheduled for March 30, 1988, in Pittsburgh, Pennsylvania. On
March 28, 198~, in a telephone conference call between Counsel for
both Parties and the undersigned, Counsel for Petitioner requested
an adjournment on the ground that one of its witnesses had to
investigate a fire in a mine on the date the hearing was scheduled.
The hearing set for March 30, 1988, was subsequently rescheduled
for June 7, 1988, in Pittsburgh, Pennsylvania. On May 17, 1988,
pursuant to Petitioner's Motion which was not opposed by Respondent,
Docket No. WEVA 88-104 was consolidated for hearing with Docket Nos.
WEVA 88-6-R, 88-7-R, and 88-88. Subsequently, pursuant to a request
by Counsel for both Parties, the above cases scheduled for hearing
on June 7, 1988, in Pittsburgh, Pennsylvania, were rescheduled and
heard on that date in Morgantown, West Virginia. Homer W. Delovich,
Joseph Gary Pastorial, David C. Workman, and James A. Tennant testified for Petitioner. Wesley H. Hough, James w. Latham, III,
James David Gump, John Metz, Glenn Spitznogle, Ira McDaniel, and
William Robert Laird testified for Respondent.
Petitioner filed its Post Hearing Memorandum and Proposed
Findings of Fact on August 26, 1988, and Respondent filed its
Post Hearing Briefs on August 25, 1988. A Reply Brief was filed
by Respondent on October 4, 1988.
Findings of Fact and Conclusions of Law
Order No. 2894708 (WEVA 88-6-R)
On September 3, 1987, MSHA Inspector Homer W. Delovich issued
a section 104(d)-2 Order alleging that Respondent had not complied
with its ventilation plan in the D-3 longwall section, alleging,
as pertinent, "· • . in that a check stopping curtain was not
installed outby the longwall face at the tailgate entry to deflect
or direct the air to the bleeder system along the gob and to the
bleeder tap. • .
"
oelovich testified that, in general, in a longwall mining
operation, when retreating, the procedure is to knock out the
stopping between Entries 1 and 2, and then erect a curtain in the
return entry immediately outby the crosscut in which the stopping
had been knocked down. He testified, in essence, that when he ·

1565

inspected the D-3 longwall section of Respondent's Martinka Mine
No. 1 on s·eptember 3, 1987, he walked down the tailgate Entry
No. 1 outby the face, and at a crosscut approximately 650 feet
from the face, observed that there was no stopping between
Entries 1 and 2. He indicated that no curtain had been installed
outby this crosscut. He considered this to be a violation of the
ventilation plan and issued Citation/Order 2894708.
In support
of its position, Petitioner submitted a diagram entitled Typical
Longwall ventilation, which was indicated to be part of
Respondent's ventilation plan in effect on September 3, 1987,
(Government Exhibit 2). This diagram indicates a curtain was
placed in the No. 1 tailgate entry immediately outby a crosscut
between Entries No. 1 and 2 without any stopping in the entry.
Delovich indicated that MSHA had not approved any plans with
regard to the ventilation of the working face since the last
inspection in February 1987. Delovich, in essence, testified
'that prior to inspection, a review of the ventilation plan
revealed no changes to the ventilation of the D-3 working face.
Delovich further testified that on September 3, 1987, Respondent's
Superintendent, Wesley Hough, told him that Respondent had submitted a revised plan for the swag area, but that the plan was not in
effect as they were not yet in the swag area.
_ Joseph Gary Pastorial, a union fire boss employed by
Respondent, indicated that he performs weekly examinations of the
intake and return entries, and also is Chairman of the Union's
Health and Safety Committee. He indicated that when the operator
proposes revisions to a ventilation plan, the Safety Committee is
notified. He indicated that in appro~imately 1978, the ventilation plan was revised to require that a curtain be built 500 feet
outby the face, at a point outby a crosscut in which the stopping
had been knocked down. He said that this revision was made as
there was a dust problem. He said that this revision was in
effect on September 3, 1987, and he was not aware of any revision
to this plan. He said that a revision to the ventilation plan in
order to cure a geological problem was submitted to him and was
approved, but was limited to the D-1 and D-2 Sections.
In contrast, Wesley Hough, who indicated that he is respousibl·e for Respondent• s ventilation plan, testified that he told
Delovich on September 3, that a revised ventilation plan for the
D-3 Section had been approved on July 25, 1986. He indicated
that the revision was submitted because there was a geological
problem, and thus it superseded the typical longwall ventilation
diagram (Government Ex. 2) for the D-3 Section. SOCCO Exhibit 1
documents that, on July 25, 1986, MSHA approved Respondent's
proposed ventilation plan for longwall Panel D-3 as well as
D-2 and D-4. Hough further indicated that a diagram of its
proposed ventilation plan had been submitted to MHSA for its
approval. This diagram shows the ventilation of the longwall

1566

Panel D-3 and does not indicate any curtain in the tailgate Entry
No. 1 ·outby the crossing between Entries 1 and 2 for which there
is no stopping.
CSOCCO Ex. 2) I find that Petitioner's evidence
is insufficient to contradict a plain re~ding of SOCCO Exhibits 1
and 2, that the Phase II Ventilation Plan, including the D-3
longwall panel, was approved by MSHA on July 25, 1986. I also
found Hough's testimony to the same effect to be persuasive.
The diagram of the plan CSOCCO Ex. 2~ does not depict any
curtain outby a crosscut not containing a stopping. Inasmuch ~s
SOCCO Exhibit.2 is clearly labeled to pertain to the longwall
Panel D-3, and had been approved on July 25, 1986, I find that it
had the effect of amending the typical longwall ventilation
(Government Ex. 2). As such, I find that on September 3, 1987,
the approved ventilation plan CSOCCO Ex. 2) did not require the
placement of a curtain immediately outby the face at the tailgate
entry as alleged in the citation in issue. Accordingly, I find
that it had not been established that the ventilation plan was
not being complied with, and therefore, Citation No. 2894708
should be vacated, and the Petition of Assessment of Civil
Penalty CWEVA 88-88) is dismissed.
Citation No. 2894711 CWEVA 88-7-R)
On September 3, 1987, at approximately 10:30 a.m., Delovich
issued Citation No. 2894710 citing Respondent for having black
coal float dust deposited on the floor of the returr. entry on the
D-3 longwall section, approximately 600 feet from spad No. 34 + 20
to 28 + 20. In essence, Delovich said that after issuing the
Citation, he met with Respondent's employees Hough, Jim Latham,
Pastorial, Dave Workman, and Rick Flint and told them to abate the
Citation, that 600 feet needed to be rock dusted by 4:00 p.m. that
day. Delovich said that when he returned to the section on
September 4, at 12:30 a.m., he observed that outby the curtain,
that was being erected at the Entry No. 1 to 28 + 20, the floor
was still black. Delovich said that he came upon crosscut 34 + 40
on the section, and asked two men who were building a stopping
whether they were going to rock dust, and they said "no, we were
just told to rock dust up to the stopping" CWEVA 88-7-R, Tr. 15).
Delovich said that no request had been made to extend the time to
abate the Citation, and he issued Citation No. 2894711 citing the
Respondent as follows:
"Little effort was made to abate the Citation
No. 2894710 statement time was 1600 hours on 09-03-87,
at 0130 hours on 09-04-87 only 200 feet of the 600 feet
of coal float dust in the tailgate return of the D-3
longwall section was abated. The company rock dusted
200 feet over top the coal float dust outby the tailgate and then build a permanent stopping closing off
the remaining 400 feet which still existed in the tailgate return."
(sic.)

1567

James David Gump, Respondent's Assistant Mine Supervisor,
testified, in essence, that after the original citation had been
issued, Delovich had indicated that approximately 600 feet had to
be rock dusted, but that Delovich asked him why Respondent does
not build a stopping in the entry to cut down the dust. Gump and
John Metz, Respondent's General Supervisor, testified that after
discussing the conversation that Gump had with Delovich with
regard to abatement, the men presently working on the shift were
told to rock dust as far as they could by the end of the shift,
and then build a stopping across the entry.
I find that Delovich had indicated that in order for the
original citation to be abated, approximately 600 feet would have
to be rock dusted. The evidence establishes that when observed
by Delovich at 12:30 a.m. on September 4, 1987, the area outby
the stopping that was being erected to spad 28 + 20 had not been
rock dusted. It is clear that abatement was not satisfied by
erecting a curtain and not rock dusting outby that curtain. In
this connection, I note that upon cross-examination, Gump agreed
that Delovich had not said to just rock dust until the stopping.
Also Metz acknowledged, upon cross-examination, that in the area
outby the stopping, coal would have been a hazard if it was not
rock dusted. Metz also indicated that it was intended subsequent
to installing the curtain to rock dust outby that curtain, but
that he was concerned with complying with the time limit to abate
the citation.
When observed by Delovich on September 4, 1987, the violation
previously cited on September 3, had. not been totally abated, in
that the area had not been completely rock dusted as previously
directed by Delovich. Further, I find that Respondent had not
requested an extension to fully rock dust the area. Indeed, I
note that the workers, observed by Delovich on September 4, told
him that they were just told to rock dust up to the stopping.
Based on these circumstances, I can not conclude that Delovich
acted unreasonably in not unilaterally extending the time to abate.
Accordingly, I conclude that Order No. 2894711 was properly issued
in that Citation No. 2894710 had not been abated within the time
limits set in that Citation, and there was no unreasonableness in
not extending the time to abate.
Order No.2894510 (WEVA 88-104)
On September 10, 1987, David c. workman, a Mine Safety and
Health Administration Inspector, inspected Respondent's Preparation
Plant at the Martinka No. 1 Mine and cited Respondent for a violation of 30 C.F.R § 77.400(c). Workm~n alleged that "The guard is

1568

missi~g

off the head drum roller, river side, exposing the head
roller and belt on the ninth floor of the Preparation Plant."
Respondent acknowledges that the guard was not in place, but maintains that the violation herein was not the result of its
unwarrantable failure, nor was it significant and substantial.
James A. Tennant, Respondent's Preparation Plant Mechanic,
testified that approximately 1 to 2 weeks prior to the date the
citation herein was issued on September 10, 1987, he was completing work on the belt brake or back stop which had been
started the shift before. Tennant indicated, in essence, that
the guard that had been taken off to perform the repairs was
leaning against a tank • He was asked whether the guard was in
plain sight or hidden behind the tank and answered that it was
out in front between the tank and belt drum (WEVA 88-104,
Tr. Vol I, P. 41). According to Tennant, before he had an
opportunity to replace the guard, his foreman, Ira McDaniel,
ordered him to go to another work assignment. Tennant did not
indicate to his supervisor that the guard had not yet been
replaced nor did he later on check to see if it had been replaced.
Tennant further testified that a day or two before the citation
was issued, he was in the area and saw the guard still on the
floor, but did not replace it. Nor did he tell his supervisor
that it still had not been replaced. David C. Workman, MSHA
Investigator, entered Respondent's Preparation Plant on
September 10, 1987, in response to a section 103Cg)(i) complaint
that various employees of Respondent had mentioned to Respondent's
managers and supervisors that the guard in question had not been
replaced. However, there is no documentary evidence or testimony
which would indicate that any of Respondent's supervisors or
managers knew that the guard in question was not in place.
According to Tennant, the belt had to be shut down in order to
replace the guard, and that shutting down the belt line was the
responsibility of the supervisor. Glenn Spitznogle, Respondent's
day shift foreman, and Ira McDaniel, Respondent's foreman, both
testified that they did not know that the guard in question was
not in place.
When Tennant was asked whether it was obvious that the guard
was missing, he indicated that if one walked through the area and
saw the guard on the ground "· • • you'd wonder where it went"
(WEVA 88-104, Tr. Vol I, P. 46). However, Workman indicated that
it was not obvious to him that the guard belonged where it did on
the back stop. Although Spitznogle indicated on cross-examination
that in the 2 years prior to July 1988, possibly he was on the
9th floor of the olant hundreds of times, ne stated that he is not
there daily, and ~pecifically did not notice that the guard was
missing from the cited area.
It was McDaniel's testimony, in
essence, that he never saw the guard up against the tank and did
not know it belonged at the location from where it was missing.
I

1569

conclude that neither Spitznogle nor McDaniel actually knew that
the guard in question was not in place. However, based upon the
testimony of Tennant, and taking into account the size of the
guard (estimated by Tennant to be 2-- 2 1/2' X 3' ), I find that
they each should have observed the guard in the area and should
have realized that it was not in its proper place. Clearly
Tennant was remiss in not reporting to his supervisor the fact
that the guard had not been replaced, especially after he saw it
again a day to two before the citation was issued, and approximately a week after he performed work on the belt. I find under
the circumstances of this case, taking into account all the above,
that Respondent's malfeasance herein amounted to an aggravated
conduct. As such, I conclude that the violation resulted from
Respondent's unwarranted failure.
(See Emeory Mining Corp.,
9 FMSHRC 1997 (Dec 1987)).
In essence, it was Workman's testimony that maintenance
persons or others coming into the area could trip or fall with
the risk of their hand or other limb being inserted in the area,
unprotected by the guard, causing the whole body to be dragged in
or causing the person to suffer bruises and the lost of a finger
or limb. The unguarded area was located on a platform approximately 2 1/2 feet from the edge of the platform. Spitznogle
admitted that one could get one's foot caught and trip on the
edge of the 1 foot high platform. Also the platform is hosed
daily, and the water is not cleared up as it is allowed to drain
and evaporate. Spitznogle also indicated that oil has leaked
from the gear case in the past. However, according to Workman
there was neither an accumulation of -oil or grease, nor were
there stumbling hazards in the immediate area. Moreover, it has
not been established that in the normal operations persons would
climb up the platform. The only person regularly working on the
9th floor (the level where the cited condition is found) is a
plant attendant. The evidence indicates merely that his job is
to check the equipment, but there is no evidence establishing
that in the normal course of his duties he would be in close
proximity to the unguarded area. Nor has it been established
that one hosing the platform would stand or walk on the platform.
I further find the following facts, as s~t forth in Respondent's
Brief at pages 11-12:
Cl) people fire boss the area and gas
checks are needed to be taken somewhere on the 9th floor, but not
necessarily at the location specified in the Order;
(2)
once
every month or two the grease canister needs to be refilled and
occasionally the oil needs to be changed in a ge2r box, but both
the grease canister and the gear box are on the opposite side of
the head roller from the location of the missing guard;
(3)
light bulbs might need to be changed,-but these are not done in
the immediate vicinity of the location in which the guard was
missing.

1570

Accordingly, I conclude that although there was a possibility
of the violation herein of an unguarded area contributing to the
hazard of some one falling or stumbling and being injured, I
conclude that there was not a reasonable likelihood that the
hazard contributed to would result in an injury, as it has not
been established that it was reasonably likely for a hazard to
occur. As such, the violation herein is not significant and
substantial.
(c.f. Mathies Coal Company 6 FMSHRC 1 (January
1984).
I find that Respondent herein was negligent to a high degree
in that Tennant knew of the missing guard and did not communicate
this to his supervisor, and that the latter should have known the
guard was missing. Also I find that the gravity herein was
moderately serious (although not significant and substantial), as
in the event of a person inadvertently coming in contact with the
unguarded portion of the belt, a reasonably serious injury could
have resulted. Taking into account the remaining factors of
section llOCi) of the Act, as stipulated to by the Parties, I
conclude that a penalty herein of $200 is appropriate.
Order No. 289518 CWEVA 88-104)
On September 7, 1987, Inspector David Workman was told by
Miner's Representative Pat Grimes of the existence of a broken
switch on the 12-left track haulage of the North Mains. Upon
arriving at the 12-left track, Inspector Workman noted that the
barrel to the switch was disconnected, the bottom ear of the
female joint C-bolt was broken, and the connecting bolt was
lying in the adjacent dirt. Workman opined, in essence, that in
light of the area being highly traveled by personnel carriers,
locomotives, and jitneys, it was very likely that with the rail
not being secured, vibrations could dislodge the alignment
causing a derailment.
Workman testified that the miners' representative told him
that he had reported this condition to three individuals who are
a part of mine management. Workman said that he talked to two of
these three individuals.
William Laird, Respondent's foreman on the midnight shift,
testified that on October 5, 1987, 2 days before the date of the
issuance of the Order, he signed a preshift report stating that
the switch throw was broken and then corrected by installing the
bolt in the switch barrel.
Laird said that on October 5, 1987, he also reported to the
dispatcher the need for new ears or possibly a new barrel, and
that on October 6, 1987, he repaired the switch. At the time he
made the repairs, he checked at least five time to see if the
switch would operate correctly and determined that it did.

1571

Laird testified that he had repaired the broken switch by
placing the bolt back through the barrel and that he did not
observe a nut to be placed on the bottom of this bolt. It was
his opinion that most of the track haulage switches do not have
nuts that go with such bolts, but he conceded that most C-bolts
do not have a broken c piece.
On October 7, 1987, workman issued Order No. 2894518 which
provides that "The 12-left track haulage switch in North Mains
was found to be disconnected from the barrel, one ear was broken
off the barrel, and the bolt and nut was found laying down under
the throw part of the switch • • •
"
This Order essentially was issued based on Safeguard 814335
dated February 7, 1979, which states as follow:
The track haulage set out switch for the superintendent's jitney is not properly aligned, causing track
haulage equipment passing over it to whip sideways.
This is a notice to provide safeguards requiring that
all track haulage at this mine shall be properly maintained and aligned.
Respondent has challenged the validity of the instant safeguard upon which the Citation in question was issued. Respondent
argues that the safeguard was improperly issued as its requirements should have been the subject of rule making. Subsequent to
the hearing, the Parties, in a telephone conference call,
initiated by the undersigned, on September 2, 1988, were allowed
to file Supplemental Briefs on the applicability to the issues
herein, of the recent Commission decision in Secretary v. Southern
Ohio Coal Co, 10 FMSHRC 963, (August 1988). Briefs were filed by
the Parties. Respondent filed a Reply Brief; none was £iled by
Petitioner.
In essence, it is Petitioner's position that the lack of
maintenance of the equipment in question created a hazard that
was not covered by mandatory standards, but which is addressed by
the ~afeguard herein. In contrast, Respondent maintains that the
safeguard requiring all track haulage to be properly maintained
is of general applicability, and as such, is invalid as it was
not promulgated pursuant to section 10l(a) of the Act.
The Commission in Secretary v. Southern Ohic Coal Co.,
supra, at 967, noted that the Court of Appeals of the District of
Columbia Circuit in Zeiglar Coal Co. v. Kleppe, 536 F2d 389
CD.C. Cir. 1976) "has recognized that proof that ventilation

1572

requirements are generally applicable, rather than mine-specific,
may provide the basis for a defense with respect to alleged
violations of mandatory ventilation plans." The Commission in
Southern Ohio, supra at 967 further anal~zed Zeigler as follows:
• [Tlhe court considered the relationship of a
mine's ventilation plan required under section 303(0)
of the Act, 30 u.s.c. § 863(0), to mandatory health and
safety standards promulgated by the Secretary. The
court explained that the provisions of such a plan cannot "be used to impose general requirements of a
variety well-suited to all or nearly all coal mines"
but that as long as the provisions "are limited to
conditions and requirements made necessary by peculiar
circumstances of individual mines, they will not
infringe on subject matter which could have been
readily dealt with in mandatory standards of universal
application." 536 F.2d at 407; See also Carbon County
coal Co., 6 FMSHRC 1123, 1127 (May 1984) (Carbon County
f); Carbon County Coal Co., 7 FMSHRC 1367, 1370-72
(September 1985) (Carbon County II).
In southern Ohio, supra, the Commission did not resolve the
question of whether a defense to a safeguard may be based on its
being generally applicable, as it found that there was no
evidence of whether the safeguard was general or mine-specific.
In contrast, in the case at bar, I find the following evidence in
the record, as summarized by Respondent in its Brief at page 3:
"The inspector estimated that he had been in over 100 underground
mines and that approximately 80% have tracks and track haulage
switches. Further, the inspector testified that the problem with
track haulage switches not being maintained did not pose a greater
hazard or safety problem in the Martinka Mine than in other mines
that have track haulage switches, that the associated hazards
would be the same at other mines as in the Martinka Mine, and that
there was no reason why the contents of the Safeguard would be
more applicable to the Martinka No. 1 Mine than to other mine"
(sic). In contrast, Petitioner did not offer any proof with
regard to the circumstances under which the safeguard was issued,
the specific need for the safeguard at the subject mine, or
whether similar safeguards had been issued for other mines.
I find that generally, in allocating the burden of proof,
one factor taken into account is which Party has the best knowledge of the particular disputed facts (Lindahl v. Office of
Personnel Management 776 F2d 276 (Fed. Cir. 1985). The burden is
not placed upon a Party to establish facts particularly within
the knowledge of its adversary. In this connection, it appears
that Respondent would have particular knowledge as to the circumstances under which the safeguard was issued, and the existence

1573

or need of similar safeguards at other mines (See Southern Ohio,
supra, at 967~968.
In addition, it has been held that generally
MSHA has the burden of putting forth a prima facie case of a
violation (Miller Mining Co, Inc. v. Federal Mine Safety and
Health Review commission 713 F2d 487 (9th Cir 1983) See also Old
Ben Coal Corp. v. IBMA 523 F2d 25, 39 (7th Cir. 1975)). As such,
it had the burden of establishing all elements of the citation
including the validity of the underlying safeguard.
I thus conclude, based on all the above, that Petitioner has
failed to establish that the safeguard in issue was mine-specific
to the subject mine. As such, based on the rationale of Zieglar,
supra, that I find applies with equal force to the case at bar, I
conclude that because it has not been established that the safeguard was mine-specific, it therefore is invalid as it was not
promulgated pursuant to the rule making procedures of section 101
of the Act. Accordingly, I find that the Order herein, should be
dismissed inasmuch as it was predicated upon an invalid safeguard.
·
ORDER
It is ORDERED that:
1.

The Notice of Contest, Docket No. WEVA 88-6-R is

2.

Citation No. 2894708 be VACATED.

3.

Docket No. WEVA 88-88 be DISMISSED.

4.

Order No. 2894710 was properly issued.

5.

Notice of Contest, Docket No. WEVA 88-7-R be

SUSTAINED.

DISMISSED.
6. Order No. 2894510 be AMENDED to reflect the fact
that is is not significant and substa~tial.
7.

Order No. 289518.be VACATED.

8. Respondent shall pay, within 30 days of this
Decision, the sum of $200 as a Civil Penalty for the violation
found herein.

~~

Avram Weisberger
Administrative Law Judge

1574

Distribution:
David M. Cohen, Esq., Southern Ohio Coal Company, American
Electric Power Service Corporation, P. O. Box 700, Lancaster, OH
43130 <Certified Mail>
Evert H. vanWijk, Esq., Office of the Solicitor, u. S. Department
of Labor, 14480-Gateway Builqing, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
dcp

1575

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIV~ LA.W JUDGES
2 SKYLINE, 10th FLOOR •. ·
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

NOV 171988
CONTEST PROCEEDINGS

ROCHESTER & PITTSBURGH COAL
COMPANY,
Contestant

Docket No. PENN 88-152-R
Order No. 2885050; 2/25/88

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

.
.
..

..

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

.

v.
RpCHESTER & PITTSBURGH COAL
COMPANY,
Respondent

.
.

.

Docket No. PENN 88-153-R
Citation No. 2885051; 2/25/88
Greenwich Collieries No. 2 Mine
Mine I.D. No. 36-02404
CIVIL PENALTY PROCEEDINGS
Docket No. PENN 88-188
A. C. No. 36-02404-03707
Docket No. PENN 88-189
A. C. No. 36-02404-03708
Greenwich Collieries No. 2 Mine

DECISION.
Appearances:

Before:

James Culp, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania
for the Secretary of Labor;
Joseph A. Yuhas, Esq., Pennsylvania Mines
Corporation, Ebensburg, Pennsylvania for
Rochester & Pittsburgh Coal Company.

Judge Melick

These consolidated cases are before me under section
105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et seq., the "Act" to challenge five
citations and one imminent danger withdrawal order issued by
the Secretary of Labor against the Rochester and Pittsburgh
Coal Company Cthe Company) and for:review of civil penalties
proposed by the Secretary for the ~elated violatipns.

Docket No. PENN 88-188
Citation No. 2879226 alleges a "significant and
substantial" violation of the regulatory standard at
30 C.F.R. § 75.1707 and charges as follows:
The designated intake escapeways for the Maint,
T-6, T-4, T-1, and P-9 active working sections were
not separate from the Main P and Main T belt
haulage entry. Air readings were taken in the belt
entries of Main T, T-6, T-4, T-1 and P-9 for a
total air quantity of 601236 cfm air readings taken
at the intake regulator 2x-cuts inby the portal
between the belt and track entry together with an
air reading take [sic] at the second overcast in
the belt entry outby the portal resulted in 14,591
cfm of air available to ventilate the belts.
Subtracting this total from the total air on the
belts indicates 45,645 cfm air entering the belt
entries from the intake escapeways.
The cited standard provides as follows:
In the case of all coal mines opened on or after
March 30, 1970, and in the case of all new working
sections opened on or after such date in mines
opened prior to such date, the escapeway required
by this section to be ventilated with intake air
shall be separated from the belt and trolley
haulage entries of the mine for the entire length
of such entries to the beginning of each working
section, except that the Secretary or his
authorized representative may permit such
separation to be extended for a greater or lesser
distance so long as such extension does not pose a
hazard to the miners.
The parties do not disagree that in the context of the
above regulatory requirement (that the "intake air shall be
separated from the belt and trolley haulage entries") it is
understood in toe mining industry that the separation need
only be "reasonably airtight" (See Exhibit 0-2 page 2). The
disagreement in this case concerns the definition of the term
"reasonably airtight". The Secretary maintains that based
upon the undisputed volume of air entering the belt entry
from the intake, calculated by MSHA Inspector and ventilation
specialist Samuel Brunatti at 45,645 cubic feet per minute
(cfm), the separation was not "reasonably airtight". The
Secretary's experts, Brunatii~~n~supervisory MSHA Inspector
James Biesinger (formerly a venti~ation specialist himself)
support this view. While the Company does not dispute the
calculations of air "leakage" it argues that 45,645 cfm of

1577

air entering the belt entry from the intake does not prove
that the separation was not "reasonably airtight". Not
surprisingly the testimony of its experts, Paul Enedy and
Michael Ondeco, both graduate mining engineers with
significant underground mining experience, support the
Company's view.
To further muddy the waters, the Secretary acknowledges
that she has not established any standard of measurement of
air leakage for determining whether a separation is
"reasonably airtight". Moreover there is significant
divergence of opinion, even between the MSHA experts, as to
the amount of air leakage necessary to show that a separation
is not reasonably airtight".
Within this framework it appears that even reasonably
prudent persons familiar with the mining industry widely
disagree over what constitutes a "reasonably airtight"
separation. See Alabama By-Products, 4 FMSHRC 2128 (1982)
and U.S. Steel Corp., 5 FMSHRC 3 (1983). Accordingly there
is no standard of air leakage by which a violation herein may
be measured. I have also observed that none of the 155
~toppings within the affected area were found not to be
"reasonably air tight". Indeed the Company had examined each
of these stoppings applying inspection standards accepted by
~he Secretary in reaching this conclusion.
Finally, I note that in abating this citation the
Company was not required, and did not need, to alter any of
the stoppings separating the intake and belt entries and
was permitted to actually increase the "leakage" of air onto
the belt entry by further opening an air regulator. Under
all the circumstances I cannot find that the Secretary has
sustained her burden of proving a violation of the cited
standara. Citation No. 2879226 is accordingly vacated.
Citation No. 2885015 was ~he suoject of a Motion for
Settlement filed in this proceeding in which a reduction in
penalty from $168 to $120 was proposed. As grounds for the
reduction the Secretary stated as follows:
Further investigation has revealed that the
operator's negligence in this matter should be
reduced from moderate to low. This bar [for
deenergizing the motor on a was regularly tested
during weekly electrical equipment examinations and
had been tested the previous week. There was no
indication in the electrical examination books that
the bar would not deenergize,..the motor. The chief
electrical engineer h~s explained that the bar did

1578

.in fact depress the button (stop switch) which
would deenergize the motor.
Immediately after the
citation was issued, he depressed the bar and the
bar hit the button which deenergized the motor.
He
was able to do this without a lot of pressure.
It
is undisputed that in view of the inspector's test,
that the bar would not hit the button fully when
hit at certain angles. The bar did have the
capacity to work, however it is uncertain how often
it would not fully operate. It appears as though
there was a judgment call as to the capacity of
this bar to work.
In view of the foregoing the
operator's negligence should be reduced to very
low.
I have considered the representations and documentations
submitted with respect to this proposed settlement and I
conclude that it is appropriate under the criteria set forth
in section llOCi> of the Act.
Dockets No. PENN 88-189, PENN 88-152-R and PENN 88-153-R
Citation No. 2885051 alleges a "significant and
substantial" violation of the standard at
30 C.F.R. § 75.1722Ca) and charges as follows:
Observed Robert Coy CUMWA) working under the Main T
No. 1 belt conveyor Cnear the belt head) along the
Main T belt/track entry. The belt conveyor was in
motion exposing Mr. Coy to possible injury if
contacted in that a guard was not provided for the
bottom belt conveyor. The clearance between the
bottom of the belt and the coal accumulation on the
mine floor is 64 inches. This citation was one of
the factors that contributed to the issuance of
Imminent Danger Order No. 2885050 dated 02-25-88;
therefore, no abatement time was set.
The cited standard, 30 C.F.R. § 75.1722(a), provides as
follows:
Gears; sprockets; chains; drive, head, tail, and
takeup pulleys; flywheels couplings, shafts;
sawblades; fan inlets; and similar exposed moving
machine parts which may be contacted by persons,
and which may cause injury to persons shall be
guarded.
Accordin·g to Gerry Boring·, ag. MSHA coal mine inspector,
the unguarded moving machin~ p~rt!tiere at issue was the

1579

moving belt coal conveyor.
Boring was concerned that the
subje~t miner in proceeding beneath the exposed moving belt
might be struck if the belt should break or that he might be
dragged into a roller by a bad splice. The evidence shows
that this miner was about 67 inches tall and that the belt
was between 72 to 79 inches above the solid mine floor,
considering the 8 to 15 inches of wet accumulations on the
floor beneath the belt and that it was 64 inches from the top
of these accumulations to the bottom of the belt.
The Company maintains that the cited conveyor belt
was not a "similar exposed moving machine part" within the
meaning of 30 C.F.R. § 75.1722(a) and that therefore there
was no violation of that standard.
In Secretary of Labor v.
Mathies Coal Co., 5 FMSHRC 300 (1983), the Commission
observed that this regulatory standard applies to the
specific machine parts listed plus other exposed moving
machine parts similar to those listed.
In the Mathies case
the Commission found that an elevator cage did not meet the
definition of "similar" within the scope of the standard.
It
quoted the definition of the word "similar" as "l} having
characteristics in common; very much alike ••• 2) alike in
substance or essentials ••• 3a} having the same shape;
differing only in size and position •••• " citing Webster's
Third New International Dictionary at p. 2120 (unabridged
19 71} .
Applying this definition to the conveyor belt at issue I
observe that although a conveyor belt has a common
characteristic with the enumerated items i.e. motion, it is
not "very much alike", "alike in substance or essentials" or
of the "same shape" as the others. Indeed a conveyor belt
clearly does not resemble, in form. or function, those
machine parts specifically listed in the standard. Under the
circwnstances I must agree with the Company that the conveyor
belt at issue is not a "similar exposed moving machine part"
under 30 C.F.R. § 75.1722(a} and that therefore there was no
violation of that standard in this case. The citation is
aceordingly vacated.
Related Order of Withdrawal No. 2885050, issued pursuant
to section 107(a} of the Act, reads as follows:
Observed Robert Coy CUMWA} standing under the
operating Main T No. 1 belt conveyor (near the belt
head}. The clearance between the bottom of the
belt and the coal accumulation on the mine floor is
64 inches. Mr. Coy had .. been repairing a water line
and was retrieving 3 block fi;:.om underneath said
belt when observed. E~posed!machine parts which

1580

. may be contacted by persons, and which may cause
injury to persons shall be guarded, 30 C.F.R.
75.1722(a).
Section 107(a) of the Act provides in part as follows:
If, upon any inspection or investigation of a coal or
other mine which is subject to this Act, an
authorized representative of the Secretary finds
that an imminent danger exists, such representative
shall determine the extent of the area of such mine
throughout which the danger exists, and issue an
order requiring the operator of such mine to cause
all persons except those ref erred to in section
104(c), to be withdrawn from, and to be prohibited
from entering, such area until an authorized
representative of the Secretary determines that
such imminent danger and the conditions or
practices which caused the imminent danger no
longer exist.
Section 3(j) of the Act defines "imminent danger" as
the existence of any condition or practice in a coal or other
mine which could reasonably be expected to cause death or
serious physical harm before such condition or practice can
be abated." The limited issue herein is whether such a
condition or practice existed at the time this order was
issued.
According to MSHA Inspector Boring, the imminent danger
order was issued because of a "condition" in which he
observed coal miner Robert Coy proceed beneath the belt
conveyor and retrieve a cement block. Inspector Boring
maintained that this "condition" constituted an "imminent
danger" because the belt might break and slap the miner, a
defective splice in the belt might catch the miner and drag
him into the rollers or belt structure, the miner might
contact the belt (presumably by extending an arm) and
break a finger or be knocked against a wall and sustain
serious eye injuries from debris falling off the belt. While
there is no evidence in this case that the belt was worn or
otherwise likely to break or that any of the splices were
deficient, I nevertheless find that the other hazards were
such that the cited condition "could reasonably be expected
to cause serious physical harm" if not discontinued.
Accordingly I find that there was an imminent danger and
affirm Order No. 2885050.

1581

Citation No. 2885053 alleges a "significant and
substantial" violation of the standard at 30 C.F.R. §
75.1713-7(c) and charges as follows:
The first-aid supplies being maintained along the
R-1 intake entry near survey station No. Xl710 in
the active T-4 (011) working section are not being
kept sanitary, dry and clean. The metal box
housing the first-aid supplies is wet Cl/4 inch
deep water near middle with the remainder of the
floor damp and dirty).
The cited standard provides that "[a]ll first-aid
supplies required to be maintained under the provisions of
paragraphs (a) and (b) of this section 75.1713-7 shall be
stored in suitable, sanitary, dust tight, moisture proof
containers and such supplies shall be a.ccessible to the
miners".
It is undisputed that splints are first-aid supplies
under section 75.1713-7(b)(l2). It is also undisputed that
the cited metal box housing the first-aid supplies had water
inside and that the inflatable splints inside the box were
also wet. It may therefore reasonably be inferred that first
aid supplies required to be maintained by section
75.1713-7 were not stored in a moisture proof container. The
violation is accordingly proven as charged.
The Secretary has failed however to sustain her burden
of proving that the violation was 11 signif icant and
substantial". At best Inspector Boring could conclude only
that the wet splints, if used over an open wound "could have
led to the possibility of infection". The mere "possibility"
of infection does not meet the test of reasonable likelihood
that the wet splints could result in injuries of a reasonably
serious nature. See Mathies Coal Co., 6 FMSHRC 1 (1984).
In
any event I find it highly unlikely that a splint would be
applied directly upon an open wound where clean and dry
banqages are available. Under the circumstances the
contemplated hazard of infection would be too remote to
warrant a "significant and substantial" finding herein.
I also find that the violation was the result of but
little negligence.
Inspector Boring observed that there is
no regulatory requirement that first-aid supplies be
regularly examined or inspected and it is not a part of the
face boss examination to check such supplies. Under the
circumstances a penalty of $!00 is appropriate.

1582

At hearing the parties agreed to a settlement of
Citation No. 2884901 proposing a reduction in penalty from
$259 to $205. I have considered the representations and
documentation subnitted concerning that citation and I
conclude that the proffered settlement is appropriate under
the criteria set forth in section llOCi> of the Act.
ORDER
Citation No. 2885051 is vacated and Contest Proceeding
Docket No. PENN 88-152-R is granted. Order No. 2885050 is
affirmed and Contest Proceeding Docket No. PENN 88-153-R is
dismissed. Citation No. 2879226 is vacated. Citations
No. 2885015, 2884901 and 2885053 are affirmed and the
Rochester and Pittsburgh Coal Company is directed to pay
civil penalties of $120, $205, and $100 respe ively, for the
violations charged in those citations within
days of the
date of this decision.

Distribution:
Joseph A. Yuhas, Esq., Rochester & Pittsburgh Coal Company,
P.O. Box 367, Ebensburg, PA 15931 (Certified Mail)
James E. Culp, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
nt

1583

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

22041

NOV 2 31988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 88-193
A.C. No. 46-05907-03574

v.
Shawnee Mine
U.S. STEEL MINING CO., INC.,
Respondent
DECISION
Appearances:

Before:

Mark R. Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Secretary of Labor {Secretary);
Billy M. Tennant, Esq., Pittsburgh, Pennsylvania,
for the Respondent.

Judge Broderick

STATEMENT OF THE CASE
The Secretary seeks civil penalties for two alleged
violations of the mandatory standard in 30 C.F.R. § 75.1102 which
requires that underground belt conveyors be equipped with
sequence switches. It is the Secretary's position that in the 3
Right Section of the subject mine two sequence switches, one on
the 8 left belt, the other on the North Mains 3 belt were
inoperative. Respondent contends that the switches were in fact
operative, and the Secretary's method for testing the switches
was faulty.
Pursuant to notice, a hearing was held in
Charleston, West Virginia on October. 18, 1988. Gerald L. Smith
and Junior Farmer testified on behalf of the Secretary; Peyton
Lee Hale, Gaines Davis, and Henry Sessions testified on behalf of
Respondent.
Both parties waived the right to file post hearing
briefs. I have considered the entire record and the contentions
of the parties, and make the following decision.
FINDINGS OF FACT
At all times pertinent hereto, Respondent was the owner and
operator of an underground coal mine in Wyoming County, West
Virginia known as the Shawnee Mine.

1584

On January 27, 1988, Gerald L. Smith, a Federal Coal Mine
electrical inspector, conducted an electrical spot inspection at
the subject mine. He was accompanied by regular inspector Junior
Farmer, and by K.T. Miller, a representative of the United Mine
workers union. A management repres~ntative did not accompany the
inspection party. Among other things, inspector Smith inspected
sequence swit~hes on conveyor belts. Sequence switches are
designed to cause the shut.ting down of the "inby" belt when the
"outby" or "mother" belt stops. Their purpose is to avoid coal
spillage which would necessarily occur if the inby belt continned
operating after the outby belt stopped.
In.the subject mine, the belts were shut down every day from
about 3:30 p.m. until about 5:00 p.m., between shifts. It was
Respondent's practice to test the switches at that time by
shutting down the main belt, and to grease the bearings, etc., as
part of its belt maintenance program. In late 1987 and early
1988, Respondent's maintenance foreman and chief electrician
discussed the question of testing sequence switches with
Inspectors Smith and Farmer. The inspectors requested that
Respondent fashion a metal plate to insert between the sensor and
the switch box in accordance with the instruction manual of the
Appalachian Electronic Company which manufactured the switches:
according to the manual, the insertion of such a metal plate
should stop the inby belt if the switch is operating properly.
The switch operates by means of a sensor which generates a
magnetic field which in turn produces a pulse, and if the pulse
is blocked or reduced the controlled device will stop. The
testing procedure, by interjecting ferrous metal between the
magnets and the sensor, blocks the entire magnetic field.
During the January 27, 1988 inspection, Inspector Smith
tested the sequence switch at the tail of the 8 left belt by
using the metal plate which Respondent provided. He inserted the
plate between the sensor and the roller. The 3 right belt (the
inby belt) did not stop. The switch was a hybrid, however.
It
consisted of a control box manufactured and supplied by
Appalachian Electronics and a sensor called "Hawkeye" from a
different supplier, American Mine 'Resources. Henry Sessions,
Executive Vice President of Appalachian Electronics, who devised
the testing procedure in Appalachian's manual, testified that he
could not state whether the hawkeye switch was compatible with
the Appalachian control box. There were substantial
accumulations of loose coal, coal dust and float dust on the mine
floor near the junction of the belts.
Inspector Sinith testified
that these accumulations most likely resulted from the fact that
the sequence switch did not operate properly, that is, it did not
stop the 3 right belt when the 8 left belt stopped. There was no
evidence of other possible causes of the accumulations, such as
misaligned belts, large pieces of rock on the belts, etc.

1585

Inspector Smith then tested the switch at the North Mains No. 3
belt in the same manner. The 8 left belt Cinby the North Mains
#3) failed to stop. The entire switch system, including the
control box and the sensor, was supplied by Appalachian
Electronics.
Again, there were accumulations of loose coal, coal
dust and float dust on the mine floor. Again, there was no
evidence of misaligned belts or large rocks on the belt.
Inspector Farmer testified that the umion representative tested
the switch by stopping the North Mains No. 3 belt. This resulted
in the 8 left belt stopping.
Inspector Smith denied that such a
test was made.
He stated that after he completed his test using
the metal plate, he asked the union representative to shut down
both belts. The union walkaround representative was not called
to testify at the hearing.
I find as a fact that the switch was
not tested by shutting down the outby belt during this inspection.
I accept Inspector Smith's testimony, and believe that Inspector
Farmer's testimony was in error.
The citation involving the North Mains No. 3 belt switch was
abated by adjusting the cut out speed in the control box.
Following this, Inspector Smith tested the switch by inserting
the metal plate between the sensor and the magnetic wheel, and
the inby belt began to shut down immediately.
Inspector Smith
was not present when the citation involving the 8 left belt
switch was abated, but he terminated the citation upon checking
the switch following the same procedure as on the North Mains No.
3 belt switch.
Citations were issued to Respondent for the accumulations
of loose coal and coal dust described above. They are not part
of this proceeding.
ISSUES
1. Were the cited sequence switches in operable condition
on January 27, 1988?
2.
If violations were established, were they significant
and substantial?
3.
If violations were established, what are the approp.riate
penalties?
CONCLUSIONS OF LAW
Respondent is subject to the provisions of the Mine Safety
Act in the operation of the Shawnee Mine, and I have jurisdiction
over the parties and subject matter of this proceeding.

1586

The Secretary has the burden of establishing that the
sequence switches were not properly operating on January 27,
1988, that is, they were not shutting down the inby belt when the
outby belt stopped operating. There was considerable testimony
as to the best way to test the ope~ation of the switches. The
issue, however, is not the proper test, but the functioning of
the switch.
Shutting down the outby belt is a valid, and
probably the best way to test the switch. However, if the
manufacturer's instructions concerning testing are properly
followed a functioning switch should stop the inby belt when tre
metal plate is inserted between the sensor and the magnetic
wheel. Therefore, I conclude that the test performed by
Inspector Smith on the sequence switch on the North Mains No. 3
belt established that it did not operate properly to stop the 8
left belt. The citation no. 2736047 is therefore affirmed.
However, the evidence does not establish that the switch on the 8
left belt was not operating properly. There is some evidence to
support such a finding, namely, the existence of coal
accumulations. The test of the switch, however, based on the
manufacturer's (Appalachian) suggestion, was not a conclusive
test since the switch had components from two different
manufacturers, and there is no evidence as to the validity of the
test in such a case. I conclude therefore that the Secretary has
failed to carry her burden of proof with respect to citation no.
2736042.
The failure of a sequence switch to operate properly will
cause coal spillage and ultimately accumulations of loose coal,
coal dust and float dust. This in turn can result in the danger
of a mine fire.
Shawnee Mine experienced such a fire three or
four years prior to the citation. I conclude that the violation
was serious, and was likely to result in serious injury.
Therefore it was significant and substantial under the
Commission's test in Cement Division, National Gypsum, 6 FMSHRC 1
(1984).

Respondent's witnesses testified that they tested the
switches daily, when the belts were shut down between the first
and second shifts. The violation here was cited at 12:07 p.m.
I
conclude that Respondent's testing procedure was a valid one.
'I'herefore its negligence is reduced. However, the accumulations
of loose coal on the mine floor around the belt should have
alerted Respondent to the problem.
Respondent is a large operator. Its history of prior
violations was moderate. The abatement of the violation was
timely and carried out in good faith.
I conclude that an
appropriate penalty for the violation is $50.

1587

ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1.

Citation 2736042 issuec} January 27, 1988 is VACATED.

2. Citation 2736047 issued January 27, 1988 is AFFIRMED,
including the findings that the violation charged is significant
and substantial.

3. Respondent shall within 30 days of the date of this
decision pay a civil penalty in the amount of $50 for the
violation found herein.

,-k- 1'

U<:S

'/

~

/~/fvz..,rh i-ic:fl-

~ ~ames A. Broderick
L-

Administrative Law Judge

Distribution:
Mark R. Malecki, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203
(Certified Mail)
Billy Tennant, Esq., 600 Grant Street, Rm. 1580, Pittsburgh, PA
15219-4776 (Certified Mail)
slk

1588

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

22041

NOV 2 81988
MARION DOCKS, INC.,
Contestant

..

v.

:

CONTEST PROCEEDINGS

:

Docket No. WEVA 88-169-R
Order No. 2896051; 3/1/88

..

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

:
:

Docket No. WEVA 88-170-R
Citation No. 2896052; 3/1/88

:

Docket No. WEVA 88-171-R
Citation No. 2896053; 3/1/88

..
:
:

Docket No. WEVA 88-172-R
order No. 28960541 3/1/88
Docket No. WEVA 88-173-R
Order No. 28960551 3/1/88

.
Docket No. WEVA 88-174-R
: Order No. 28960561 3/1/88
.

Docket No. WEVA 88-175-R
Order no. 2896057; 3/1/88

No. 1 Mine
Mine ID 46-06904
DECISIONS
Appearances:

w. Henry Lawrence IV, Esq., Steptoe & Johnson,
Clarksburg, West Virginia, for the Contestant;
Joseph T. Crawford, Esq., Office of the
Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern Notices of Contest filed by the
pursuant to section 105Cd> of the Federal Mine
Safety and Health Act of 1977, challenging the legality of the
contest~~t

1589

captioned citations and orders issued p~rsuant to the Act. The
contestant takes the position that its Marion Docks loading
facility is not a mine within the stat~tory definition of that
term as found in 30 U.S.C. § 802(h)(l). ·The record reflects
that the contestant did not contest or seek review of the civil
penalty assessments made by MSHA with respect to the contested
citations and orders. Contestant's counsel confirmed that the
contests which are the subject of these proceedings are based
on the contestant's jurisdictional arguments, and assuming an
adverse decision with respect to this issue, counsel confirmed
that the contestant will pay the proposed civil penalty assessments and will not contest the fact of each violation or the
amounts of the civil penalty assessments (Tr. 5-7).
The respondent filed timely answers to the contests, and
it takes the position that the loading facility in question is
a mine within the statutory definition at 30 U.S.C.
§ 802Ch)(l), and that the contestant is subject to MSHA's
enforcernent jurisdiction. A hearing was conducted in Fairmont,
west Virginia, and the contestant has filed.. posthearing arguments in support of its jurisdictional position. The respondent filed no posthearing brief, and relies on its pretrial
jurisdictional arguments filed in its Memorandum in response to
the contestant's motion for summary decision, which I previously denied.
I have considered all of the arguments made by
the parties in these proceedings, including those made on the
record during the course of the hearing.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seg.
2.

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

The issue presented in these proceedings is whether or
nQt the contestant's Marion Docks loading facility is a mine
subject to MSHA's inspection and enforcement jurisdiction.
Discussion
The contested citations and orders, which include "significant and substantial" (S&S) findings, were all issued by MSHA
Inspector Homer W. Delovich during the course of an inspection
~hich he conducted on March 1, 1988, and they are as follows:

1590

Section 104(d)(2) Order No. 2896051 cites an alleged violation of mandatory safety standard 30 C.F.R. § 77.1102(d),
and the condition or practice is described as follows:
At the diesel fuel tank storage, coal and
coal dust was accumulated and completely
covered up the backside of the 12 foot tank to
the top and halfway up both ends. Condition of
the tank was due to the coal storage pile
loaded too high and against the tank. Presents
a fire hazard and hazard to the workmen when
walking and putting fuel in the tank. Tom
Visnans, foreman of this shift, and tank stored
next to the office and weight house where (sic)
readily visible and condition has existed for a
period of time. No one working to clean around
the tank when observed. Tank holds 400 to 500
gallons of fuel.
Section 104(a) Citation No. 2896052 cites an alleged violation of mandatory safety standard 30 C.F.R. § 77.1104, and
the condition or practice is described as follows:
"Combustible materials of grease, oil and coal are accumulated on the
frame, motor housing inside, radiator and sides of the Beckwith 966 Front End Loader. Tom Visnans foreman."
Section 104(a) Citation No. 2896053 cites an alleged violation of mandatory safety standard 30 C.F.R. § 77.1104, and
the condition or practice is described as follows:
"Combustible materials of grease, oil and coal dust were accumulated in
the frame, motor housing inside, radiator and sides of the 980
Front End Loader. Tom Visnans, foreman."
Section 104(d)(2) Order No. 2896054, cites an alleged
violation of mandatory safety standard 30 C.F.R. § 77.205(b),
and the condition or practice is dascribed as follows:
The walking platform at the outer side and
front of the slate picker's platfonn and at the
bottom of the ladder landing to the crusher
platform and area of between the two ladders
were obstructed by coal spillage accumulations
over the toe boards of approximately 12 to
18 inches in height across the walkway platforms. For a distance of 15 feet at the slate
picker's platform and 8 feet at the crusher
platform. Conditions present a trip and stumble hazard. Rick Love-slate picker laborer and
Tom Visnans foreman.

1591

Section 104(d)(2) Order No. 2896055 cites an alleged violation of mandatory safety standard 30 C.F.R. § 77.1104, and
the condition or practice is described as follows:
Combustible materials of oil, grease and
coal dust were accumulated and caked on the
front, back and sides of the 4 foot x
6 1/2 foot crusher housing and coal dust was
covering the floor of the platform housing the
crusher. Tom Visnans, foreman.
Conditions
present an ignition and fire hazard.
Section 104(d)(2) Order No. 2896056 cites an alleged violation of mandatory safety standard 30 C.F.R. § 77.205Cb), and
the condition or practice is described as follows:
The elevated stacker belt ramp walkway was
obstructed at the entrance by piles of coal,
accumulation of coal approximately 2 feet high
on the ramp at the entrance for approximately
9 feet and coal lumps inby up the ramp to the
top. Condition presents a stumbling and
tripping hazard. Tom Visnans, foreman.
Section 104(d)(2) Order No. 2896057 cites an alleged violation of mandatory safety stand(3.rd 30 C.F.R. § 77.202, and
the condition or practice is des.cribed as follows:
The roller drum and bottom belt for approximately 5 feet were turning and running in
accumulations of coal dust, the roller drum and
pillar bearings were completely engulfed in
coal dust. Condition presents an ignition and
fire hazard. Tom Visnans, foreman.
Conditions
of coal and coal dust were ~t the roller drum
and bottom belt of the Stacker Belt.
~e~pondent's

Testimony and Evidence

MSHA Inspector Homer W. Delovich confirmed that he conducted an inspection of the contestant's dock facility on
March 1, 1988, and that this was his first inspection there.
However, from a review of MSHA's "mine profile," which includes
information concerning past violations, respirable dust and
noise sampling, training, and the mine legal identification
information, he learned that the facility had previously been
inspected by MSHA twice a year since 1985 (Tr. 17-22, exhibits
R-1 through R-3). Mr. Delovich confirmed that the Mine ID

1592

infprmation reflects that the facility is a coal or barge
loading facility, and he described the operation as follows at
(Tr. 22-23):

Q. Well, coal/barge loading facility.
they do there, do you know?

What do

A. Yes, sir. They load coal, they weigh it,
they blend it, they crush it, and they convey
it into barges, across the road to the river.
They have two draw-off tunnels that we inspect.

Q. I'm sorry.
sir?

That was two draw-off what,

A. Draw-off tunnels underneath the coal bins
when they dump it which we inspect for methane
and stuff. We have three conveyor belts. We
have a crusher. We have a weight house. We
have two endloaders there and, plus, we have
the fuel tanks and scale house.

Q. When you conducted your inspection, did you
have a chance to observe the operation?
A.

Yes·, sir.

Q. How is the operation performed from the
time the coal comes in, do you know?
A. The coal is brought in by a truck and
weighed at the scale house. That is where the
foreman has his office. Then it is taken
either -- if they are dumping into the barges,
it is taken to the barges by dumping into the
coal bin. That is if they have barges
available to load. If they don't, then they
stock the coal in a pile and blend it that way.
Mr. Delovich stated that he has observed coal being
cleaned and crushed, and through conversations with superintendent Frank Miller, Mr. Sorbello., Mr. Bealko, and Mr. John
Markovich, he learned that coal was also blended at the facility. Mr. Delovich explained that Mr. Sorbello, Mr. Bealko,
and presumably Mr. Miller, buy coal, and also produce coal
from mines which they own and operate. He identified them as
the Deconder Mine, M & J Coal, Wasco Fuels, and a new mine
which he identified as the Manley Mine, and confirmed that
they are all located in West Virginia (Tr. 25). Mr. Delovich

1593

stated that he met Mr. Miller, Mr. Sorbello, and Mr. Bealko
through his inspections at the M & J Coal Company. He also
stated that the coal produced at these m.ines is brought out of
the mines by conveyor belts, dumped and loaded onto trucks,
and then transported to the contestant's loading facility.
Mr. Delovich stated that he has inspected three other
coal mines which sell or contract ·coal from the Sewickley and
Pittsburgh seams to Mr. Sorbello, Mr. Bealko, and Mr. Miller,
and he identified them as "the LaRosa Fuels on the Meredith
job, the Patterson Brothers, and Thompson, the river mine"
(Tr. 27). Mr. Delovich explained that the Sewickley coal is
high in ash and "dirtier coal, 11 and that the Pittsburgh coal
"is probably the best Pittsburgh coal in the United States as
far as sulphur content is and the cleanliness of it" (Tr. 27).
In order to fill its orders, and to keep the coal below a
certain ash content, lvir. Delovich believed that the contestant
blended the Pittsburgh low sulphur coal with the Sewickley
coal, and he confirmed that he learned this through conversations with the company and other inspectors (Tr. 28).
Mr. Delovich stated that while he was present at the
M & J Coal Company mine for 10 or 12 days in connection with
the sealing of a mine fire area, he spoke with Mr. Sorbello,
Mr. Miller, and Mr. Bealko, and they were concerned that they
needed to have the mine in operation because the coal was low
in sulphur and ash and they had to blend it with their other
coal in order to sell it at the Marion Docks. Mr. Delovich
confirmed that Mr. Miller is the superintendent at the Marion
Docks facility (Tr. 29). In response to a question as to
whether he had ever observed blending being done at the Marion
Docks, Mr. Delovich responded as ·follows (Tr. 29):
A.
I was talking to Frank Miller and them when
we was writing their notices and the trucks was
coming in, and if the truck comes in from one
company and it is the type of. coal they need to
put in, you know, they load so much trucks from
one outfit and then they loaded so much and
then they dump it in there and they try to
blend it. When they stock it, they probably
try to blend it that way.

Q.

But you saw the trucks coming in.

~.

Yes, sir, I saw the trucks coming in.
I
didn't know where they were coming from but
that is how it was done.

1594

· Mr. Delovich confirmed that he has observed coal crushing
taking place at the Marion Docks facility.
He stated that
crushing was required "because of the large size of coal
coming through," the need to get rid of the large lumps of
pyrite coal which will not sell or ruin the crusher. He
described what he observed as follows (Tr. 30):
THE WITNESS: The coal is dumped in a bin and
goes down in the draw-off tunnel and comes up
the chute where they have a man cleaning and
picking slate. Then, underneath it, it drops
into a crusher and then comes out and falls
onto the belt and it takes it up to another
pile which goes to another draw-off tunnel and
to the river barge it is conveyed to.
Mr. Delovich believed that the coal shipped from the
Marion Docks facility goes to the Willow Island Electric Power
Company located at Parkersburg, west Virginia, and that it is
transported along the Monongahela, Allegheny, and Ohio Rivers.
The power company burns the coal to furnish electrical power,
and he learned that Willow Island was one of the contestant's
customers through conversations with Mr. Miller and Mr. Bealko.
In addition, one of the employees, John Martin, advised him
that Willow Island had returned some barges of coal "because
of dirty coal and that at that time that is why they had to
watch how they blended their coal" (Tr. 31). He also learned
this from another company who sells coal to the electrical
company (Tr. 32).
Mr. Delovich stated that he observed two endloaders, two
draw-off tunnels, and three conveyor belts at the Marion Docks
facility, and he described the function of the draw-off
tunnels as follows (Tr. 32-33):
THE WITNESS: Well, we dump coal into a bin on
the first draw-off tunnel and it goes down
underneath the ground. Then the belt is down
there and it dumps onto the belt and it comes
up where the slate picker is and then it drops
into the crusher and then the crusher drops it
out onto a little conveyor belt that takes it
up and drops it into a pile and then they push
it into a draw-off tunnel -- again, another
one -- which goes over across the road and to
the river to the barges.
In clarifying his previous testimony that some of the
coal transported to the facility is trucked and dumped directly

1595

into a barge if it were~~eadily available for loading, or stockpiled if there was no barge available, (Tr. 24), Mr. Delovich
again confirmed that this was the case, but explained that
"they don't dump it in the barge. They dump it into the coal
chutes • • • " (Tr. 34). When again asked whether the coal is
taken directly to the barge, he replied as follows at (Tr.
34-35):
THE WITNESS: With the truck.
It is taken to
there and then -- well, I don't know how they
determine which coal they are blending. Now,
of course, if it comes from one mine, I know we
have two trucks coming out of M & J Coal and I
have talked to those men. When I talked to the
truck drivers there up at the mine, the M & J,
they told me they needed the coal real bad.
And, Mr. Markovich told me he has got to mine
coal so that they can blend it or they can't
sell their coal.
Mr. Delovich identified a copy of the MSHA Mine Identification Number (ID), assigned to the M & J Coal Company, and
confirmed that it is part of the mine profile maintained in
MSHA's records for that mine (exhibit R-4, Tr. 37-38). He
confirmed that Charles Sorbello is listed as the President of
M & J Coal Company, and that he is also shown as the
Secretary-Treasurer of Marion Docks in MSHA's legal identification file (Tr. 38, exhibit R-1).
Mr. Delovich confirmed that he has previously inspected
the M & J Mine, and he estimated that it is 5 miles from the
Marion Docks facility. He confirmed that it is still operational, and was operational at the time he inspected Marion
Docks in March, 1988 (Tr. 40). He also confirmed that Marion
Docks has never previously questioned MSHA's jurisdiction to
inspect its facility (Tr. 41). In addition to the M & J Mine,
Mr. Delovich believed that Mr. Sorbello has an ownership
interest in the No. 2 Williams M~ne, which he understands
leases the mine to the "DeConder brothers," who sell the coal
to Mr. Sorbello. Mr. Delovich also believed that Mr. Sorbello
has an ownership interest in ~he Wasco Mine, which reclaims
gob coal through a tipple and ships it to Marion Docks (Tr.
42-43). Mr. Delovicn did not believe that Wasco Coal was controlled by Marion Docks, but that-Mr. Sorbello is an officer
in both companies (Tr. 45). Mr. Delovich later stated that he
has no knowledge that Wasco, which is also known as Wash
Fossil Fuels, actually sh..i.p3 coal to Marion Docks, but that
the Williams and M & J mines do (Tr. 47).

1596

. Mr. Delovich stated that in his prior conversations with
Marion Docks superintendent Miller concerning MSHA's enforcement jurisdiction, questions were raised about two other dock
loading facilities across the river, and he identified them as
the Seccuro and Agerwald facilities. Mr. Delovich stated that
Seccuro loads gravel and is under OSHA jurisdiction, and that
Agerwald was conducting "test trial runs" at its loading facility to determine whether it was working properly (Tr. 41).
On cross-examination, Mr. Delovich confirmed that therP
are three other loading facilities operating in the vicinity
of Marion bocks, and he identified them as Seccuro, Agerwald,
and Preston Energy. He stated that Seccuro is the only one
which has not been inspected by MSHA. He explained that ·
although Seccuro loads coal at its dock, it also loads gravel,
and that MSHA's legal identification information for that
facility reflects that it is under OSHA enforcement jurisdiction and is inspected by that agency and not by MSHA (Tr. 49).
Although Seccuro has one conveyor belt and one loading bin for
loading coal on barges, since it also loads other rock
minerals, the jurisdictional interpretation communicated to
him (Delovich), is that Seccuro is subject to OSHA, rather
than MSHA, jurisdiction (Tr. 50). Mr. Delovich confirmed that
he has never inspected the Seccuro facility, although he has
visited the site to observe the operation, and he stated that
"from what I understand, they load rock too.
I have no
jurisdiction" (Tr. 50).
With regard to the Agerwald loading facility, Mr. Delovich
stated that when he visited that site to conduct an inspection,
he was informed that coal was being loaded "for a trial run."
Upon return to his office after that visit, Mr. Delovich stated
that Agerwald apparently called the MSHA district office, and
that off ice advised him (Delovich) that "they said something
about a trial run and that he was not under our jurisdiction
and that in all probability he wouldn't be under our jurisdiction because he did not fit into the guidelines of what a barge
loading facility would be" (Tr. 52). When asked about any MSHA
guidelines concerning jurisdiction, Mr. Delovich responded "If
they are loading other things such as rock or anything or don't
own a mine" (Tr. 52). He confirmed that the Marion Docks facility loads only coal, while Agerwald loads coal, rock, and lime,
and other minerals. When asked whether the kinds of minerals
which are loaded is the determining factor as to whether OSHA
or MSHA jurisdiction applies, Mr. Delovich responded" • . . it
is not for me to determine.
I question it too" (Tr. 53). He
also stated that" . • . we are told that if they size the coal,
blend the coal or clean the coal--that is under our
jurisdiction" (Tr. 54 >.

1597

In response to a bench inquiry of MSHA' s counsel .as to
any applicable MSHA guidelines for determining jurisdiction,
counsel responded as follows (Tr. 53):
MR. C"RAWFORD: No, there were no guidelines
other than the case law, Your Honor, but it has
been my understanding that because there were
other facilities and they were loading lime and
other materials, it was felt that they didn't
fall under the jurisdiction, plus they were not
treating in the same manner.
Mr. Delovich stated. that it was his understanding that
MSHA Inspector Ron Myer was dispatched to the Agerwald loading
facility to obtain the information for a determination of
jurisdiction, and that the information was taken back to the
MSHA district off ice for a determination by district manager
Ron Keaton (Tr. 55). Mr. Delovich confirmed that he has never
discussed the Marion Docks case with Mr. Keaton, and that he
did not report the fact that Marion Docks was loading coal to
Mr. Keaton. Mr. Delovich did not know who may have made such
a report. Mr. Delovich identified his supervisor as Steve
Kuretza, from MSHA's Fairmont field office, and confirmed that
he has never discussed the jurisdictional question concerning
Marion Docks with Mr. Kuretza (Tr. 57). He also confirmed
that he has never seen a copy of a March 9, 1988, letter from
Marion Docks counsel Lawrence to Mr. Kuretza questioning
MSHA's enforcement jurisdiction (Tr. 57). Mr. Delovich stated
that since the issuance of the contested orders of March 1,
1988, he has inspected the Marion Docks facility for respirable.
dust compliance and has done so as part of his regular inspection assignments by Mr. Kuretza (Tr •. 58 >.
Mr. Delovich could not identify by name the trucking
companies which have transported coal to the Marion Docks
facility, and he surmised that they were independent trucking
companies. He confirmed that he has inspected these trucks
for brakes and back-up horns once they enter the Marion Docks
property, but has no jurisdiction to inspect them while on the
highway in transit (Tr. 60). He also confirmed that MSHA has
inspected Marion Docks since it first started its operation in
1985, and that the mine ID information for that facility was
filed with MSHA by Marion Docks. Mariah Docks also filed its
training program information with MSHA (Tr. 61-62).

1598

Contestant's Testimony and Evidence
Kevin J. Bealko, President, Marion Docks, testified that
his company is a coal loading facility which was constructed
"to tipple coal for various producers here in Marion County
because the main reason being that the B & O Railroad was
putting us out of business up here and we wanted to get on the
river and stay active in the coal fields" (Tr. 74). He confirmed that the corporate officers consist of himself as
president and one-third owner, and co-owners Charles Sorbello
and Frank Miller. He stated that the dock is used solely as a
means of accommodating 15 different mine operators that haul
coal to the facility for the purpose of selling it. Marion
Docks does not take title to the coal, has no direct sales.
contracts with any of the utility companies, and all of the
sales are handled through brokers. Marion Docks owns no coal
mines or coal reserves, conducts no mining operations, and has
no connection with any mines. Its sole occupation is that of
a dock facility (Tr. 75-76).
Mr. Bealko stated that Marion Docks does not purchase the
coal that is shipped to the dock by the producers, but does
have an "agent account" whereby brokers act as agents for
Marion Docks for the purpose of handling the coal for the utility customers who purchase it from the brokers. Marion Docks
has no direct sales contracts with any utility customers, but
it does have sales agreements with brokers who in turn have
utility sales contracts. In further explanation of these
broker-customer arrangements, Mr. Bealko stated as follows
(Tr. 76-77):

Q.

Okay. So, then is it correct that the
broker has the contract with the utility or
with the customer, the ultimate customer?
A.
Right, correct. They order up our barges
and they tell us what spec as you have to hit
in any coal that you load at any place, whether
you are Consol or little Marion Docks. You
have to hit a certain specification. That may
be size or that may be ash or that may be
sulphur or it may be all three. Our brokers
notify us when the barges are coming and what
specification we have to meet on those barges,
as anyone does, like Consol or Island Creek or
Peabody or no matter who you are, or Seccuro or
Agerwald. They have got a spec they have to
hit. That is just the nature of the coal
business. You just don't load a coal from a

1599

particular job that hits that spec.
It is a
spec that may fit one job but when you are
loadi~g three different types of orders that we
have, you have got to do it over a period of 15
jobs to make it all work through the course of
a month.
Mr. Bealko confirmed that upon arrival of the coal at its
site, it is weighed, and if it is oversized and does not meet
the broker's specifications, it is processed and crushed
through belt hoppers and bar grizzlies that take out all of
the coal fines. Approximately 10 percent of the larger coal
of more than 4 inches goes to picking tables and crushers. He
confirmed that the larger coal sizes cannot pass through the
tipple or the bucket unloaders at the utility power plants,
and that the utilities do not like any coal sized larger than
"four by zero" (Tr. 78).
Mr. Bealko also confirmed that his facility receives coal
which is already sized at "four by zero." This coal, which
amounts to 10 percent of each load, is taken directly to the
surge hopper without crushing, and is dumped into the barges
by means of conveyor belts. The coal under 4 inches never
crosses the picking table or the crusher (Tr. 79). No coal
washing or cleaning takes place, and only 4 percent of the
coal ever "gets picked" at the picking table, and most of it
goes to the crusher (Tr. 80).
Mr. Bealko stated that his facility uses equipment such
as belt conveyors and front-end loaders, but it does not have
cyclones, washer plants, or scalpers to remove different
pyritic impurities, and he described the equipment which is
used as follows (Tr. 80-81):
A. We have two high-lifts. We have the
facility itself which is two bins that goes
onto a belt that goes up to this bar grizzly
that takes the fines away and that goes up to a
radial stacker that drops into this surge
hopper that goes over to the barges. The other
part is the product that doesn't cross the
grizzly that goes on to the picking table and
goes into the crusher and at that point it
winds up on the radial stacker and it goes up
into the stockpile to the surge hopper that
goes into the barges.
Mr. Bealko confirmed that his company does not own the
barges that transport the coal from his facility, or the

1600

~rucks that haul coal to the site.
The truckers are independent contractors who "order up their trucks depending on what
coal they have to haul" (Tr. 82). With regard to the inspector's reference to the Willow Island power plant, Mr. Bealko
denied that his company has ever shipped coal to that utility.
He confirmed that it does load coal for the Pleasants power
plant, and other plants as determined by the coal brokers (Tr.
83).

Mr. Bealko confirmed that Mr. Sorbello owns one-half of
the M & J Coal Company, a deep coal mine producing low sulphur
coal, and that the majority of that coal comes to Marion
Docks, and constitutes one-sixth of all coal production that
comes to the dock from all mines. Mr. Markovich is also an
owner of that mine. Mr. Bealko stated that he and Mr. Miller
have no ownership interest in any coal mines, either as stockholders or corporate officers (Tr. 84).
Mr. Bealko stated that prior to the design and construction of the Marion Docks facility, he operated tipples on the
B & O railroad. The Bell Mining Company and other coal
companies loaded coal at that facility, and he was aware of
the fact that since coal was tippled at this facility, it was
subject to MSHA's jurisdiction. Since his Marion Docks plant
was the "same type of plant" as Bell Mining Company, and since
MSHA inspectors advised him that Marion Docks would be
inspected when it became operational, he took great pains to
insure that his facility would be approved by MSHA and stay in
compliance with MSHA's safety requirements. For these reasons, he filed for an MSHA mine ID number and operated for
2-1/2 years loading coal and being inspected by MSHA. However, when he learned from MSHA inspectors that three other
docking facilities in 'his area who operated facilities similar
to his were not being inspected by MSHA, he then began to
question MSHA's jurisdiction over his facility because "our
identity and our dock is no different from any identity over
any of the other docks up in our area (Tr. 85-86).
Mr. Bealko indicated that #ith the exception of the
Seccuro Dock, which also loads stone, the other docks do
precisely what his does. He stated that the R. P. Agerwald
Dock only crushes and loads coal from independent coal producers, and "comingles it to hit certain specs just like we
have to do, and he puts it in barges which are ordered up from
brokers just like we have to do" (Tr. 87).
Mr. Bealko explained that the operator of the Agerwald
Dock retained an attorney who contacted Inspector Delovich's
supervisor, Mr. Kuretza. As a result of this, Inspector

1601

Delovich inspected the Agerwald operation arid reported to
Mr. Kuretza "that there were many problems with that facility
as far as cbming under MSHA to be approved, and Mr. Kuretza
said, hey, leave it alone; we got a phone call from their
attorney that says they are not ander our jurisdiction~ they
are under OSHA, which I know is not pertinent to our situation
but maybe it is because he is right across the river from us
tippling coal just like we are" (Tr. 89).
on cross-examination, Mr. Bealko stated that the coal
broker is the customer who provides the coal specifications to
Marion Docks, and Marion Docks provides the coal according to
those specifications. He confirmed that Marion Docks has
never had any of the coal which it has loaded for shipment
ever rejected because it did not meet the required specif ications. He indicated that the "specifications" concern the
size of the coal for unloading purposes, as well as the
quality of the coal in terms of ash and low and high sulphur
content, "as all specifications do," and that Marion Docks
brings in coal to meet those specifications (Tr. 93-94).
Mr. Bealko stated that "the broker kind of orders the
coal from the mine. All we do is wait for the coal to show up
on the dock and then we put that coal in the barges for those
producers" (Tr. 94). Marion Docks knows that the coal which
is shipped meets the required specification, and it receives
payment from the broker and not the utility, and the broker
takes title to the coal when it is shipped from the dock.
Marion Docks is aware of the locations where the coal is
shipped to in accordance with the specifications from the
brokers who ordered the barges, and Mr. Bealko stated that "we
have to in order to, you know, hit that specification that
they are calling for." The receiving plant transmits its
required specifications through the broker to the coal producer, and Marion Docks handles the coal at the dock for the
producer so that it meets the specifications before it leaves
the dock (Tr. 95).
Mr. Bealko confirmed that Mr. Sorbello, one of his partners in Marion Docks, is the only shareholder who holds an
ownership interest in the M & J Coal Company and the Bell Mining Company, a soft surface mine. Mr. Bealko also confirmed
that Marion Docks accepts coal fo~ shipment from the M & J
mine, and at times from the Bell mine (Tr. 96-97).
Mr. Bealko confirmed that only 10 percent of the coal
received at the Marion Docks for shipment goes to a picking
table, and only 3 or 4 percent of tha~ ever gets picked.
Picking is done to prevent big rocks and roof bolts from

1602

accidentally reaching and ruining the crusher, or causing
problems .when it is off-loaded at a plant (Tr. 97). In the
event the specifications call for the crushing of the coal, it
is crushed by Marion Docks, but only 10 percent of the coal
that reaches the picking table is crushed. The reason for the
crushing is to meet a particular specification or to insure
that it can be loaded in the barge and off-loaded at the plant.
He further explained as follows (Tr. 99-100):
A. Well, specifications are one thing. That
is an analytical point of view on moisture,
ash, sulphur, BTU. Sizing is something else.
That is a whole separate specification, if you
want to call it. It is a sizing specification
versus an analytical specification.

Q.

Do you have to consider both when you load?

A.
For particular orders, yes.
some no.

Some yes and

JUDGE KOUTRAS: Well, he has got to consider
what the broker orders up, don't you?
THE WITNESS:

Exactly.

JUDGE KOUTRAS:
If a broker orders up all
·crushed coal, fines, from a customer, then you
are going to have to ship it, aren't you?
THE WITNESS:

Well, like I say --

JUDGE KOUTRAS: Or else reject the broker and
tell the broker to find some other shipper.
THE WITNESS: Somebody else to load it, right.
But most of our coal is a four by zero product
for our particular plants that our coal winds
up to.
JUDGE KOUTRAS:
But the point is that you have
to deliver and load coal that is specifically
to the specifications of the customer who goes
to the broker who, in turn, tells you, hey,
this is the coal that has to go to customer
"A" isn't that true?
THE WITNESS:

Correct.

1603

Mr. Bealko confirmed that Marion Docks ships coal from 15
different coal producers who truck coal to the facility, and
in response to a question as to whether or not he tests the
coal for BTU, ash, and sulphur content, or rejects any coal
and sends it back to the producers, Mr. Bealko stated as
follows (Tr. 102-103):
A. We have a general understanding of what
mines are corning in. The broker takes most of
the samples out in the field at the mines prior
to coming into the loading facility.
We know
at that point what coal goes on what order
because the broker is more or less handling the
sample. They have their own lab and everything.
As far as Marion Docks actually doing any of
the sampling, it is out of our hands because
the broker handles most of that. What we Know
is that coal company "A" is hauling in and it
is at a certain spec and that is what it is
supposed to hit. We put it into the barge.
You know, it is up to the broker and the
pr.oducer to make sure that that happens.
All
we are doing is sizing the coal and putting it
into the barge.
And, at (Tr. 120-122):
A. The broker organizes the sampling of the
coal as it goes into the barges.

Q.

Well, he organizes, but where is it done
physically? Where is the sampling done? Is it
done there at the dock?

A.
It is done at the plant but they do a
preliminary sampling when the coal is being
loaded into the barges periodically to make
sure the coal is being.loaded, you know, prior
to going to the customer correctly.

Q.

What plant are you talking about?

A.
The power plant.
In other words, the coal
gets sampled at the plant.
It is done through
an automatic sampler.
Q.

Okay.

1604

A. On occasion, most brokers will spot check
the coal being loaded at the docks.
Q.

Okay.

A. So, they will come in with an independent
lab that goes in and samples the barges prior
to it being shipped down river so they know the
specification of the coal prior to it going to
the plant, so they can represent to their
customer that here is what we have loaded and
here is what is coming to you.

Q. And, Marion Docks is not involved in that
at all.
A. No, no, we leave that strictly up to the
broker. That is their connection with the
plant. All we do is, like I say, the handling
of the coal that goes into that barge.
Mr. Bealko confirmed that all of the coal shipped from
Marion Docks goes to utility companies in the "tri-state
area," and in some circumstances the coal is shipped out of
state (Tr. 105). In the event barges are unavailable for a
shipment of coal which has been ordered to a particular specification, the coal is stock piled at Marion Docks.
If a barge
is available, the coal is processed through the facility, and
is sized.
If it is already sized, it is taken to a surge
hopper, dumped in a bin, and transported by a conveyor belt to
the barge. Some of the coal which has been previously sized,
screened, or washed at the mine, goes directly to the barge
(Tr. 107). In response to a question as to what would occur
if coal is trucked to Marion Docks from different coal producers and no barges are readily available for immediate shipment, Mr. Bealko responded as follows (Tr. 108-110):
JUDGE KOUTRAS: And, what happens to them?
they stockpiled in 15 different piles?

Are

THE WITNESS: No. Normally in our plant right
there, we can crush coal or size coal or stockpile coal ahead of the barges getting there.
JUDGE KOU'rRAS: Okay.
customer's needs are.

Knowing what the

THE. WI'rNESS: Exactly. we will know from the
broker which barge is ordered up, and we can go

1605

ahead and crush or size or just place coal over
the bin on five to six barges prior to the
barges showing up.
JUDGE KOUTRAS:
So, you do, in fact, then, if
you pardon the expression, and it might bring a
twinge to counsel over there at the table,
Mr. Lawrence, but you do custom blending, don't
you, loosely stated?
THE WITNESS: Or we use one particular coal for
one order and one particular -coal for another
order and some of it gets stockpiled and some
of it gets processed for the barges coming in.
JUDGE KOUTRAS: But depending on what the
broker tells you, theoretically you could
THE WITNESS: Load what -- there is not one
particular coal for a particular order that
comes in down there.
JUDGE KOUTRAS: That's what I'm saying. So,
you crush and blend and size and stockpile
awaiting the barge to the specification of the
customer, of a customer; isn't that true?
THE WITNESS:

In most circumstances.

*

*

*

THE WI'rNESS:
loader.

*

*

*

*

We are just more or less the

JUDGE KOUTRAS:
I know but in order for you to
ship the right coal, the right blend of coal -THE WITNESS: Oh, we have to know the
specifications.
JUDGE KOUTRAS:
don't you?
THE WITNESS:

-- you have to know the specs,
Exactly.

JUDGE KOUTRAS: And, you do, in fact, do the
blending process, don't you?

1606

THE WITNESS:
we do it.
JUDGE KOUTRAS:
it.
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

If the coal needs to be blended,
If it needs to be done, you do
We do it, right.
And, if it doesn't
Right.

JUDGE KOUTRAS:
In other words, if all of this
was done prior to coming to Marion Docks, all
of the sizing and the blending and the washing,
and it is just ready to be shipped, then it
will simply go from the mine, already
processed, to truck and to the barge, right?
THE WITNESS:

Exactly.

JUDGE KOUTRAS: There wouldn't be any need to
go through this intermediary stop.
THE WITNESS:

Exactly.

In support of its motion for summary decision, the contestant submitted the affidavit of Charles J. Sorbello, Marion
Docks Vice-President, and it states in relevant part as
follows:
1. Marion Docks is a privately-owned
West Virginia corporation. It is not a
subsidiary or division of any other corporation, nor is it the parent or holding company
for any corporation.
2. Marion Docks owns and operates a coal
loading facility and dock located on the
Monongahela River in Fairmont, West Virginia.
It does not own or lease any other real
property.
3. At this loading facility, Marion Docks
receives coal which is trucked on to its site
and loads such coal onto river barges. The
coal that is received at the site is transported from deep and surface mines not owned or
leased by Marion Docks. When the coal arrives

1607

at the Marion Docks' site, it is dumped and
stockpiled on pads. The coal is then loaded
into a tipple where the coal is crushed and
then loaded into river barges. Marion Docks
does not own or operate a washing or preparation plant, nor does it blend the coal before
loading it onto barges.
4. Marion Docks does not own the coal
which it receives for shipment.
5. Marion Docks' facility is not located
on land from which minerals are extracted, nor
is it appurtenant to such a mining area.

6. Marion Docks' facility is not a
facility used in conjunction with the work of
extracting minerals from the ground.
Contestant's Arguments
In support of its assertion that its Marion Docks loading
facility is not a mining operation within th6 meaning of the
Act, the contestant advanced the follcwing factual and legal
arguments.
·
Marion Docks is a privately-owned West Virginia corporation. It is not a subsidiary or a division of any other
corporation, nor is it the parent or holding company for any
corporation. Marion Docks owns and operates a coal loading
facility and dock located on the Monongahela River in
Fairmont, West Virginia. It does not own or lease any other
real property.
At its loading facility, Marion Docks receives coal which
is trucked on to this site. The coal which is received at the
site is transported from deep and surface mines not owned or
leased by Marion Docks. The coal is hauled by independent
operators, not employed by Marion Docks.
In addition, the
trucks driven by such operators are not owned or leased by
Marion Docks.
When the coal arrives at the barge loading facility, it
is dumped and stockpiled on loading pads. The coal is then
loaded into a tipple where it is loaded into river barges.
Marion Docks does not own or operate a washing or preparation
plant nor does it blend the coal before loading it onto barges.
Marion Docks does not take title to the coal which it receives
for shipment.

1608

The Marion Docks facility is not located on land from
which minerals are extracted nor it is appurtenant to such a
mining area. Marion Docks' facility is not a facility used in
conjunction with the work of extracting minerals from the
ground.
Marion Docks owns no coal reserves or coal leases.
Marion Docks' customer is a coal broker with a contract for
supplying coal to a utility located along the Ohio River. The
broker is a separate corporate entity unrelated to Marion
Docks. Neither the broker, nor Marion Docks, share common
officers, shareholders, or directors. The broker orders the
coal directly from one of a dozen mines which ship coal to
Marion Docks. The broker also schedules delivery and arrival
of the coal trucks to Marion Docks. The coal broker also
arranges for arrival of river coal hauling barges at the
Marion Docks facility. The broker is aware of the mineral and
Btu qualities of the coal produced by each of the mines trucking coal to the Marion Docks facility. Marion Docks does not
conduct tests to determine the specifications of any coal
delivered to it. The broker either checks the specifications
at the mine or at the Marion Docks facility.
The loading facility used by Marion Docks consists of a
tipple facility comprised of moving conveyor belts. In the
tippling process, the coal is crushed to pieces smaller than
4 inches square for ease of loading and unloading onto the
river barges. In addition, the coal is passed over sizing
screens thereby allowing all coal of the proper dim2nsions to
pass onto a conveyor belt for direct loading onto the barges.
Approximately 10 percent of the material does not drop through
the sizing screens but is conveyed onward to a picking table
for removal of rocks, bolts, other metal, and oversize chunks.
This function serves a dual role of protecting the loading and
unloading equipment and removal from the coal of nonspecific
materials.
Inspector Delovich testified that he is informed by his
superiors that a loading facility is subject to MSHA jurisdiction if it sizes, blends or cleans coal. He believed that
Marion Docks sized and blended coal at its loading facility,
although he agreed that the coal was not cleaned at the facility.
Inspector Delovich also indica~ed that he has been
instructed that if a loading dock is engaged in the loading of
materials other than coal <~·~· gravel) then that facility is
not subject to MSHA jurisdiction. He referred to a loading
facility located adjacent to the Marion Docks facility which

1609

loaded both coal and gravel and indicated that to his knowledge MSHA had not exercised jurisdiction over that facility
because of the gravel loading operations.
Contestant concludes that its Marion Docks facility does
not fall within the statutory definition of the term "coal or
other mine" because it is not "an area of land from which
minerals are extracted" nor is it the "private ways and roads
appurtenant to such areas" as provided for in the geographic
parameters of a mine as defined in 30 U.S.C. § 820(h)(l).
With regard to the functional definition of a mine facility
used in the extraction or preparation of coal, contestant
asserts that it is the term "work of preparing the coal" as
defined in 30 U.S.C. § 802(i) which provides that Marion Docks
is not subject to the jurisdiction of the Act. Contestant
points out that this definition defines coal preparation as
"the breaking, crushing, sizing, cleaning, washing, drying,
mixing, storing, and loading of bituminous coal, lignite, or
anthracite, and such other work of preparing such coal as is
usually done by the operator of the coal mine."
(Emphasis
added.)
In support of its argument that it is not subject to
MSHA's enforcement jurisdiction, contestant cites the case of
Secretary of Labor v. Oliver Elam, Jr., Company, Inc.,
4 FMSHRC 15 (1982), a case in which the Commission affirmed a
Judge's decision that Elam's loading facility was not a "mine"
subject to the Act. Contestant points out that in Elam the
Commission indicated that the proper inquiry should focus on
the nature of the operation and not solely upon whether or not
one or more of the activities listed in section 802(i) of the
Act was performed. Contestant argues that the Commission
focused on several factors which are also present in its case,
including the fact that the loading dock did not contract with
either the mine operators from whom it received the coal nor
with its customers to whom it delivered the coal, and concluded that although the coal was loaded through a tipple
facility which included a hopper, crusher and conveyor belts,
those facilities were used for loading the coal rather than
for preparing it to meet market specifications.
In addition to the Elam case, contestant cites a decision
by the United States District Court for the Southern District
of Indiana, Donovan v. Inland Terminals, Inc., 3 MSHC 1893
(March 1985), in which the court found that MSHA lacked
enforcement jurisdiction over a loading facility whose operator had no contracts directly with the coal operators from
whom it received the coal nor with the customers who used the

1610

coai, and where the breaking, crushing and loading of coal was
done to facilitate the loading operation.
Contestant maintains that its case is similar to the Elam
and Inland Terminals cases, and dissimilar from the cases
cited by MSHA in support of its jurisdictional argument,
namely, Little Sandy Coal Sales, Inc. v. Secretary of Labor,
7 FMSHRC 891 (June 1985), and Secretary of Labor v. Mineral
Coal Sales, Inc, 7 FMSHRC 615 (May 1985). In Little Sandy
Coal Sales, Inc., the Commission found jurisdiction because
the facility purchased raw coal from local mines, custom processed it, sized it to meet market specifications depending
upon customer demands, and then loaded it onto barges for
delivery to users. In Mineral Coal Sales, the Commission _
affirmed my jurisdictional finding that the "operation carried
out by Mineral includes the custom blending and loading of
coal to meet the • • • specifications and needs of its brokers
and customers," and found that the various operations taking
place at the Mineral Sales single site, when viewed as a
collective whole, indicated that the facility was a mine.
In
essence, the Commission found no distinction between the
loading facility and the broker who arranged such shipments
and sales, and oversaw the custom blending. Contestant views
this fact as a critical distinction from its case "where the
Marion Docks facility is owned and operated primarily by Kevin
Bealko, who has no interest in either the broker or any of the
mines which ship coal through the facility."
Findings and Conclusions
The Jurisdictional Question
Section 4 of the 1977 Mine Act, 30 U.S.C. § 803, states:
"Each coal or other mine, the products of which enter
commerce • • • shall be subject to the provisions of this
Act."
Section 3(h)Cl> of the Act, 30 u.s.c. § 802Ch)(l)CC),
defines "coal or other mine" in relevant part as:
"CC) lands,
• • • structures, facilities, equipment, machines, tools, or
other property . • • used in, or to be used in, or resulting
from . . • the work of preparing coal or other minerals, and
includes custom coal preparation facilities."
Section 3(i) of the Act, 30 U.S.C. § 802Ci), defines the
term "Work of preparing the coal" as follows:
"'[W]ork of
pceparing the coal' means the breaking, crushing, sizing,
cleaning, washing, drying, mixing, storing, and loading of
bituminous coal, lignite, or anthracite, and such other work

1611

of preparing such coal as is usually done by the operator of
the coal mine."
The critical issues in this case are whether or not the
loading operations taking place at the Marion Docks facility
involve the "work of preparing the coal," and whether or not
that facility is a "mine" subject to MSHA's inspection and
enforcement jurisdiction. Contestant relies on the decisions
in Secretary of Labor v. Oliver Elam, Jr., Company Inc.,
4 FMSHRC 5 (January 1982), and Donovan v. Inland Terminals,
Inc., 3 MSHC 1893 (March 1985), in support of its argument
that MSHA lacks jurisdiction in this case. MSHA relies on the
decisions in Little Sandy Coal Sales, Inc., v. Secretary of
Labor, 7 FMSHRC 891 (June 1985), and Secretary of Labor v.
Mineral Coal Sales, Inc., 7 FMSHRC 615 (May 1985), in support
of its argument that MSHA has jurisdiction in this case. An
examination of these precedent decisions involving coal loading and preparation facilities engaged in activities similar
to those by Marion Docks follows below.
The Elam case concerned a commercial dock operator whose
loading facility loaded steel, ingot cars, pipe, tar pitch,
and coal onto barges. Approximately 40 to 60 percent of the
tonnage loaded at the dock was attributable to coal which was
shipped to the customers of coal brokers who paid Elam to load
the coal for shipment to customers designated by the brokers.
Elam also owned construction equipment such as cranes, trucks,
and bulldozers which it leased to others, and its employees
were used interchangeably in its dock and equipment rental
operations. The coal which was crushed by Elam was essentially
crushed to one size solely to facilitate the barge loading
process, and Elam did not prepare coal to market specifications
or for any particular use, nor did it separate waste from coal
or add any material to it.
In Elam, the Commission held that inherent in any determination--as-to whether an operation is properly classified as
"mining" is an inquiry not only into whether the operation
performs one or more of the activities listed in section 3(i)
of the Act, but also into the nature of the activity performing such activities. Upon examination of F.lam's activities
with respect to its "work of preparirig the coal" to make it
"suitable for a particular use or to meet market specif ications," the Commission concluded that Elam's handling of the
coal, which included storing, breaking, crushing, and loading,
was done solely to facilitate its loading business and not to
meet customer's specifications or to render the coal fit for
any particular use.
4 FMSHRC, at 7-8 (January 1982).

1612

· The Inland Terminals case was before the Court on a
motion by the Secretary of Labor for a preliminary injunction
enjoining Inland from denying entry to MSHA inspectors who
sought to inspect Inland's operations. The facts in that case,
as found by the court, reflect that Inland was a commercial
dock operator who in addition to loading coal onto barges for
its coal broker customers, also engaged in the business of
repairing, rigging, and cleaning barges for any customers
requiring such services. Upon instructions from its coal
broker customers, to load a certain amount and type of coal,
Inland ran the coal through its crushers, and occasionally
blended different types of coal based upon the specifications
which the broker customers found necessary to fulfill its
contracts. Of the four crushers used by Inland to facilitate
its loading operation, only one had the capability to separate
coal from rock or other waste materials, and approximately
10 percent of the coal loaded bypassed the crushers and was
loaded directly onto the barges. Notwithstanding the fact that
Inland on occasion blended coal to customer specifications, the
Court, relying on the Commission's Elam decision, found that
Inland was not a mine covered by the Act, and stated as follows
at 3 MSHC 1895:
The Court recognizes that certain factors
in this case are distinguishable from the facts
in Elam. However, based upon the facts presented at the hearing the Court concludes that,
like Elam, the nature of Inland's operation
militates more strongly toward a finding that
Inland is a shipping or loading facility that
handles coal and is not a "mine."
In the Mineral Coal Sales, Inc., case, the cited operator
owned a facility known as Mineral Siding, which handled solely
coal, and the facility consisted of a railroad siding, a
storage yard, and a trailer that housed laboratory equipment
for testing coal. Equipment at the site included a truck
scale, a mobile tipple that crushed coal and conveyed it to
railroad cars, a stationary tipple, grading tipple, and
front-end loaders used to transfer coal from various stockpiles to the tipples. Mineral Coal Sales extracted no coal
itself and was not affiliated with any producing mine or
transportation company. The coal handled at its facility was
purchased by coal brokers from producing mines or independent
truckers. The brokers arranged for delivery of coal by truck
to Mineral Siding and, after loading, for delivery by rail
to the various customers of the brokers. Mineral Coal Sales
charged the brokers a flat rate per ton of coal loaded onto
the railroad cars.

1613

Coal trucked to Mineral Siding was weighed on a truck
scale by an employee of Hubbard Enterprises, a coal broker
operating at Mineral Siding. Coal of substantially the same
quality was stockpiled together, and once the coal was stockpiled, Hubbard tested it to determine BTU, ash, and sulphur
content, and its free swelling index. When coal was ready to
be loaded for shipment to a customer, Hubbard informed Mineral
Sales as to how many scoops of coal should be taken from
particular stockpiles in order to fill the appropriate number
of railroad cars comprising the order. Mineral Sales would
then draw off the proper nllinber of scoops from the stockpiles
and dumped them into the hopper of the mobile tipple. A
Mineral Sales employee operated the tipple and oversaw the
loading of the railroad cars. The coal passed from the tipple
hopper into a crusher unit where it was crushed to a uniform
size. The coal then traveled on the tipple conveyor belt for
loading into the railroad car. Once the car was loaded,
Hubbard again sampled and tested the coal to ensure that the
load met the specifications of the respective order. A
stationary grading tipple was also present at the Mineral
Siding facility. Coal passed over various sizing screens to
separate "lump," "egg," and "stoker" coal, and the tipple was
used primarily to produce coal for domestic ~onsumption.
In contesting MSHA's enforcement jurisdiction, Mineral
Coal Sales maintained that it was not a mine operator and that
its Mineral Siding facility was not a mine. In my decision at
6 FMSHRC 809 (April 1984), I rejected both arguments, and
found that unlike the operation involved in the Elam case, the
coal loading process carried out at the Mineral Siding facility included a procedure and practice whereby the coal which
was ultimately loaded and shipped to the customers of the
broker (Hubbard) was mixed to their specifications and standards.
I further found that the operation carried out by
Mineral Coal Sales included the custom blending and loading of
coal to meet the specifications and needs of h~bbard's
customers.
6 FMSHRC at 840.
Upon review of my decision, the Commission affirmed my
jurisdictional findings and conclusions, and stated as follows
at 7 FMSHRC 620:
[W]e have no difficulty concluding that the
business engaged in at Mineral Siding constitutes "mining" under the Act. At this facility
coal is stored, mixed, crushed, sized, and

1614

loaded--all activities included in the statutory definition of coal preparation. Furthermore, an examination of the nature of the
Mineral Siding operation reveals that, unlike
the commercial loading dock in Elam at which
was coal crushed merely to facilitate loading
and transportation on barges, at Mineral Siding
all of the above listed work activities are
performed on the coal to make it "suitable for
a particular use or to meet market specif ications."
• • • Thus, coal preparation occurs
at Mineral Siding and MSHA properly asserted
its inspection authority over the facility.
In response to Mineral Sales' contention that its
employees at the Mineral Siding facility merely loaded coal
from two or three different stockpiles under the direction and
control of the broker Hubbard, a separate entity, the
Commission ruled thc.t the operations taking place at a single
site must be viewed as a collective whole. Given the active
presence and control exercised by Mineral Sales at the site,
including the intermingling of personnel and functions among
the various entities at the site, and the operation and supervision of the site by Mineral Sales after it terminated the
various lease arrangements, the Commission concluded that
Mineral Sales was properly found to be the operator of the
mine.
Little Sandy Coal Sales, Inc. concerned a coal processing
plant which purchased coal from local mines and processed it
for household and commercial sales. Judge Melick relied on
the Mineral Coal Sales decision in finding jurisdiction, and
concluded that the storing, mixing, crushing, sizing, and loading of coal by Little Sandy to make it "suitable for a particular use or to meet market specifications," constituted a mining
operation, and that MSHA properly asserted its inspection
authority over the facility.
The facts in this case show that the contestant operates
a coal loading tipple facility which loads and ships coal by
river barges to several utility customers who purchase the
coal from brokers. The brokers arrange for the purchase and
sale of the coal which is produced at several mines and then
shipped to Marion Docks by independent truckers. The contestant's president, Kevin Bealko, confirmed that he had previously operated coal tipple facilities on the B & 0 Railroad,
and that he loaded and shipped coal produced at several local
mines from that facility.
Upon cot1struction of the Marion
Docks facility, which Mr. Bealko characterized as the "same

1615

type of plant" as the previous tipple facility, and believing
that MSHA would begin inspecting the new facility "just like
any other ti~ple that they inspected," the contestant filed
for and received an MSHA Mine ID number. The facility was
then inspected on a regular basis by MSHA for a period of
2-1/2 years, and the inspections have continued to the present.
Mr. Bealko confirmed that his jurisdictional question was
raised when he recently learned that other similar dock
facilities in close proximity to his are not inspected by MSHA.
Mr. Bealko identified one in particular, the R. P. Agerwald
Dock, and he claimed that it is identical to his operation,
but is not inspected by MSHA because of an asserted lack of
jurisdiction.
The evidence adduced in this case establishes that the
Marion Docks facility handles and processes coal which is
trucked there from approximately 15 producing mines. The
facility is equipped with a scale house, endloaders, hoppers,
crushers, conveyor belts, chutes, draw-off tunnels, picking
tables, bar grizzlies, stackers, bins, and hi-lifts, all of
which are used to process and prepare coal for loading and
shipment to utility customers. Although the coal is not
washed, some of it is conveyed to picking tables where slate
and other debris is "picked" from the coal.
Some of the coal
which has been sized or crushed at less than 4 inches before
its arrival at the facility may be taken directly to a barge
for loading, if one is readily available.
If not, the coal is
stockpiled. Coal which is larger than 4 inches and cannot
pass through the loading tipple or the bucket loaders which
receive it at the utility is conveyed to the crushers and picking tables, and coal which does not meet the broker's specifications is processed through hoppers and bar grizzlies which
remove all of the coal fines.
The thrust of the contestant's jurisdictional argument is
that it has no ownership interest or connection with any of
the producing mines which ships coal to its facility, has no
connection with the coal brokers, and that the coal processed
through its facility is processed solely for the purpose of
facilitating the loading of the coal at the dock, and the
unloading of the coal at the point of destination. The contestant denies that it is engaged in any "custom coal blending,"
and it takes the position t~at none of its activities in
connection with the "work of preparing the coal" involves the
preparation of coal to meet customer market specifications.
While it is true that there is no evidence that the contestant, as a corporate entity, has any ownership interest in any
of the producing mines which ship coal to its facility, one of

1616

its· corporate officers, Charles Sorbello, has an ownership
interest. in at least two mines which sells and ships coal
through the contestant's facility. However, I cannot conclude
that these facts are particularly critical to any jurisdictional determination in this case. The fact that a coal
preparation facility may have no connection with the coal
extraction process or the mine operators who extract the coal
is irrelevant to the question of whether or not jurisdiction
attaches under the Act. See,~-~·' Marshall v. Stoudt's Ferry
Preparation Co., 602 F.2d 589 (3d Cir. 1979), cert. denied,
444 U.S. 1015 (1980}; Marshall v. Tacoma Fuel co:-;
No. 77-0104-B (W.D. Va. June 29, 1981}; Secretary v. Carolina
Stalite Company, 6 FMSHRC 2518 (Nov. 1984}; Secretary v.
Alexander Brothers, Inc., 4 FMSHRC 541 (April 1982}.
With regard to the question as to whether or not the contestant's coal processing activities include custom blending
of coal to meet customer or market specifications, I take note
of Mr. Sorbello's affidavit in which he denies that any coal
blending is done before the coal is loaded for shipment. I
also take note of the fact that Mr. Sorbello did not testify
in this case, and that Mr. Bealko was the only witness called
by the contestant in support of its case.
Inspector Delovich testified that he observed coal being
weighed, cleaned, crushed, stockpiled, and loaded at the
Marion Docks facility. Although he observed no blending
taking place, Mr. Delovich stated that in conversations with
Mr. Bealko, Mr. Sorbello, Mr. Markovich, and other inspectors,
he learned that blending was done at the facility.
Mr. Delovich believed that low sulphur Pittsburgh coal was
being blended with the high ash Sewickley coal, and that this
was done as it was dwnped and stockpiled. Mr. Delovich testified that during an inspection at the M & J Coal Company mine
in connection with a mine fire, Mr. Bealko, Mr. Sorbello, and
Marion Docks superintendent Frank Miller all expressed their
concern in keeping the mine open because of the need to blend
its low sulphur and ash coal with the other coal handled at
the facility in order to sell it.
During a bench colloquy with the contestant's counsel
regarding his motion for summary decision at the close of
Mr. Delovich's testimony, counsel conceded that the contestant
engaged in some of the activities connected with the breaking,
crushing, sizing, cleaning, washing, drying, mixing, storing,
and loading of coal (Tr. 70). Except for the washing and
drying of coal, it seems clear to me that the evidence in this
case supports a conclusion that the contestant's facility
engaged in the other enumerated activities.

1617

With regard to any custom coal mixing or blending
activities,_ contestant's counsel agreed that Mr. Delovich's
testimony reflects that the coal processed at the facility is
subjected to some kind of a mixing process before it is loaded
for shipment.
In the context of coal blending, counsel stated
that "I think it is nothing more than taking a scoop from one
pile and a scoop from another. To the extent that the loading
facility does something other than that, there has been no
testimony to that" (Tr. 69).
Mr. Bealko testified that all of the coal handled and
processed at the Marion Docks facility must meet the customer's
specifications before it is loaded for shipment. At several
points during the course of his testimony, Mr. Bealko alluded
to the fact that his facility does mix and blend coal to meet
the specifications of a particular customer. For example, he
stated that any coal which arrives at the facility which does
not meet the broker's specifications is crushed and processed
in order to meet those specifications (Tr. 78).
Brokers who
"order up barges" also inform Marion Docks as to the particular
coal specifications which must be met before the coal is loaded
for shipment, and these specifications may include the size of
the coal, and its ash or sulphur content (Tr. 77). Marion
Docks must insure that the coal meets the customer's specifications before it leaves the dock (Tr. 95). Although crushing
and sizing may be done to meet the customer's coal size specification to facilitate the loading and unloading of the coal,
some particular customer orders include analytical specif ications to insure that proper moisture, ash, sulphur, and BTU
content are met (Tr. 99).
Conceding that MSHA had jurisdiction over a prior coal
tipple loading operation which he operated prior to the construction of his Marion Docks facility, Mr. Bealko characterized his prior operation as the "same type of plant" as the
Marion Docks facility (Tr. 85).
In explaining the coal loading and crushing operation carried out by the R. P. Agerwald
Dock operating near his facility, Mr. Bealko stated that it
"comingles it to hit certain specs just like we have to do,
and he puts it in barges which are ordered up from brokers
just like we have to do" (Tr. 87) (emphasis added).
Although Mr. Bealko confirmed that some of the coal which
is received at the Marion Docks facility is already sized and
prepared for shipment directly to a customer, he also confirmed that if a barge is not readily available for loading,
coal is crushed and sized according to the customer's needs
and then stockpiled while awaiting the arrival of a barge for

lo~ding (Tr. 108-109).
Mr. Bealko candidly admitted that in
most circumstances, the coal processed at the facility is
crushed, sized, and blended at that facility in accordance
with the customer's specifications (Tr. 109). In response to
a direct question as to whether or not his facility is engaged
in the blending process, Mr. Bealko responded "if the coal
needs to be blended, we do it" (Tr. 110) (emphasis added).

After careful review and consideration of all of the
testimony and evidence adduced in these proceedings, I conclude and find that the activities carried out at the contestant's Marion Docks facility constitutes "mining" under the
Act, and that those activities place the contestant within its
jurisdiction. The evidence establishes that the sole proquct
handled at the facility in question is coal which is mixed,
crushed, sized, stored, and loaded. All of these activities
fall within the statutory definition of "coal preparation,"
and brings the contestant within the Act's jurisdiction. I
reject the contestant's contention that its handling and processing of coal is merely to facilitate its loading and unloading. To the contrary, while it is true that some of the coal
is processed for this purpose, the testimony and evidence
adduced reflects that coal is also in fact custom blended,
mixed, crushed, and sized at the facility in order to meet a
particular customer's needs and specifications.
I reject the contestant's reliance on the Elam and Inland
Terminals decisions. Those decisions were based on facts which
indicated that the "work of preparing the coal" was accomplished solely to facilitate the coal loading process, rath~r
than rendering the coal fit for any particular customer's needs
or specifications. In my view, the facts presented in the
instant proceedings are more akin to those presented in Mineral
Coal Sales, Inc., supra, where my finding of jurisdiction was
affirmed by the Commission.
Fact of Violations
As stated earlier, the contests were filed by the contestant for the purpose of contesting MSHA's jurisdictional
claims, and the contestant confirmed that in the event of an
adverse decision and rejection of its jurisdictional arguments, it will not contest the violations further and will pay
any proposed civil penalty assessments for the violations in
question. Under the circumstances, and in view of my rejection of its jurisdictional claims, all of the aforementioned
contested citations and orders issued by Inspector Delovich on
March 1, 1988, ARE AFFIRMED as issued.

1619

ORDER
In view of the foregoing findings and conclusions, the
NoticeE; of Contest filed by the contestant ·in these proceedings ARE DENIED AND DISMISSED. The previously filed motions
by the contestant for summary decisions in its favor ARE
LIKEWISE DENIED, and the contested citations and orders are
all AFFIRMED.

~otL~
~f
strative Law Judge
Distribution:
W. Henry Lawrence IV, Esq., Steptoe & Johnson, Union National
Center East, P.O. Box 2190, Clarksburg, WV 26302-2190
(Certified Mail>
Joseph T. Crawford, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia PA 19104 (Certified Mail)

/f b

1620

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

LOCAL UNION 9958, DISTRICT 22,
UNITED MINE WORKERS OF
AMERICA,
Complainant

v.
KAISER COAL CORPORATION,
Respondent

NOV 2 81988

.: COMPENSATION PROCEEDING
: Docket No. WEST 87-186-C
..: Sunnyside No. 1 Mine
.
.:

DECISION
Appearances:

Brad Rayson, Esq., United Mine Workers of America,
Denver, Colorado,
for Complainant;
John A. Macleod, Esq., Crowell & Moring,
Washington, o.c.,
for Respondent.

Before:

Judge Cetti
Introduction

The United Mine Workers of America, Local 9958, District 22,
CUMWA) pursuant to Section 111 of the Mine Safety and Health Act
30 u.s.c. S 821, (Mine Act), filed this action seeking one week
compensation for miners at Kaiser Coal Corporation's (Kaiser's>
Sunnyside No. 1 Mine, for the period of time in 1987 during which
they were idled, allegedly as a result of a Section 104Cd)(l)
withdrawal order issued on March 27, 1987 (and subsequently
vacated>, by the Mine Safety and Health Administration CMSHA).
Issue
The primary issues are whether all or only some of the
miners are entitled to compensation and the period of time for
which the miners are entitled to compensation.
Conclusion
After careful consideration of the facts and the law I have
determined that Cl) all the miners working on the 21st left and
20th left longwall section were idled as a result of the Section
104Cd>Cl> Order issued on March 27, 1987; (2) that they are
entitled to up to a shift and a half of compensation at their

1621

regular rate of pay under the first two sentences 1/ of Section
111 of the Mine Act but are not entitled to a weekTs compensation under the third sentence 2/ of Section 111 because the
Order never became final.
STIPULATIONS
At the hearing the parties entered into stipulations as
follows:
1. A closure order was issued under Section 104Cd>Cl> of
the Mine Act at the Sunnyside mine at 8:00 a.m. on March 27, 1987
(Ex. 1).

2. All miners working the day shift at the Sunnyside mine
on March 27, 1987 were paid for the balance of the shift. The
shifts at the Sunnyside mine run from 7:00 a.m. to 3:00 p.m.1
2:00 p.m. to 10:00 p.m. and midnight to 8:00 a.m.
3. Kaiser contested the closure order under Section 105 of
the Mine Act. The case was docketed as WEST 87-116-R and
1/

The first two sentences states:

ll

If a coal or other mine or area of such mine is closed by an
order issued under section 103, section 104, or section 107,
all miners working during the shift when such order was
issued who are idled by such order shall be entitled,
regardless of the result of any review of such order, to
full compensation by the operator at their rates of pay for
the period they are idled, but for,.not more than the balance
of such shift. If such order is not terminated prior to
the next working shift, all miners on that shift who are
idled by such order shall be entitled to full compensation
by the operator at their regular rates of pay for the period
they are idled, but for not more than four hours of such
shift.
The third sentence of Section 111 provides:
If a coal or other mine or area of such mine is closed by
an order issued under section 104 or section 107 of this
title for a failure of the operator to comply with any
mandatory health or safety standards, all miners who are
idled due to such order shall be fully compensated after
all interested parties are given an opportunity for a public
hearing, which shall be expedited in such cases, and after
such order is final, by the operator for lost time at their
regular rates of pay for such time as the miners are idled
by such closing, or for one week, whichever is the lesser.
(emphasis added)

1622

assigQed to Administrative Law Judge Melick. The United Mine
Workers of America intervened in that proceeding.
4. The closure order was modified by MSHA a number of times
to allow mining to continue under specified conditions while
settlement negotiations in the contest proceeding were ensuing
(Ex. 2). The modifications were issued pursuant to negotiations
between Kaiser and MSHA.
5. The contest proceeding was ultimately settled by Kai~~r
and MSHA by a.Memorandum of Understanding dated April 24, 1987.
Paragraph four of the Memorandum of Understanding states in part,
nupon the granting of the petition for modification or the
completion of the development of the 21st left section which ever
occurs first, MSHA shall vacate the order under contest in Docket
No. WEST 87-116-R. Until the order is vacated it shall remain in
effect subject to the terms of the modification issued by MSHA on
April 24, 1987, incorporating the requirements set forth in
attachment A to this agreement.n
6. Kaiser sought leave to withdraw its notice of contest on
April 29, 1987. Administrative Law Judge Melick granted leave
and dismissed the proceeding with prejudice (Ex. 3).
7. The United Mine workers of America did not seek
Commission review of Administrative Law Judge Melick's dismissal
of the contest proceeding.
8. MSHA subsequently sought to assess a civil penalty
against Kaiser based on the closure order (Ex. 4).
9. Kaiser contested the imposition of a civil penalty,
contending before Administrative Law Judge Merlin in WEST 87-228,
that since the order was to be vacated, there was no violation to
which any civil penalty could attach (Ex. 5).
10. By Order dated October 19, 1987, Administrative Law
Judge Merlin dismissed the civil penalty proceeding CEx. 6).
11. The UMWA did not seek Commission review of any of MSHA's
Orders modifying that closure order of March 27, 1987.
12. In accordance with the settlement agreement, the closure
order issued March 27, 1987 was vacated by MSHA. The action
vacating the Order was taken by MSHA inspector Bruce Andrews at
8:45 a.m. on February 16, 1987 (Ex. 15).
13. April 1st (1987) was a contractual holiday and the
miners were paid for that day.

1623

Statement of the case
Kaiser at its Sunnyside No. 1 Mine was developing the 21st
left section in the mine to accommodate longwall mining. In this
develop~ent Kaiser was driving only two entries and was using one
of these entries as both a belt haulageway and as an air course.
On March 27, 1987, at 8:00 a.m., MSHA Inspector Larry Rameriz
issued a section 104Cd) Cl> Order citing an alleged violation of
30 C.F.R. § 75.326 because "[t]he belt haulage entry in the 21st
left section was not separated and was being used as a [sic]
air course" (Exhibit 1). The Order did not expressly require any
miners to be withdrawn from the 21st left section or from any
other part of the mine. The Order by its terms applied only to
the 21st left conveyor belt. However, since that conveyor belt
was the only economically feasible means to transport the coal
mined in the 21st left section to the surface, the Order did
effectively preclude further developme~t of that section.
Consequently, after the Order was issued Kaiser withdrew all the
miners working on the section and directed them to complete their
shifts working on the surface.
The only other section that was being mined at the time of
inspection was the adjacent 20th left section which was being
mined with longwall equipment. When the March 27, 1987 Order was
issued Kaiser withdrew the miners on the 20th left longwall
section and directed them to complete their shifts on the surface.
Thus, all miners working the day shift.in both sections completed
their shifts working on the surface and at the end of the day
shift the miners working on both sections were told to not report
back to work until the mine reopened.
When the miners working the afternoon shift reported for
work on the day the withdrawal order was issued, Kaiser also
directed the miners working on the 21st left and the 20th left
longwall section to work on the surface. No one.went underground.
After working four hours Kaiser sent the miners on the afternoon
shift home with the same instruction it gave the miners working
on the day shift. Kaiser told them not to report back to work
until the mine reopened.
The miner working on the 21st left and 20th left were idled
until they returned to work when the mine reopened at 6:23 p.m.
on April 7, 1987.
The only reason given to the miners for their idlement was
the action taken by MSHA on March 27, 1987 when it issued the
104Cd)Cl) withdrawal order. The testimony presented indicates
that prior to the issuance of the withdrawal order both sections
were working 3 shifts a day, six days a week and there had been
no discussion by the miner's supervisors about curtailing
operations. They had in fact been talk about expanding the work
forces and claimant asserts that this· in fact was done after the
mine resumed operations.
1624

Kaiser contends that any compensation awarded under Section
111 must be limited to those miners who were working on its 21st
left section. It points out that this withdrawal order by its
terms applied only to the 21st left section. Kaiser contends
that its withdrawal of miners working on the 20th left longwall
section was an independent business decision. In support of its
contention it offered into evidence the transcribed testimony of
former Kaiser President, Charles McNeil, given during the contest
proceeding in Docket No. WEST 87-116-R before Judge Melick. Mr.
McNeil on direct examination by Kaiser's counsel John A. Mcleod,
starting on page 108, line 14 of the transcript, testified as
follows:
·
Q. Now, let me call your attention to the Sunnyside mine,
Mr. McNeil. How many active sections do you have in the
Sunnyside mine?

A. Two sections, a longwall section a continuous miner
development section.
Q. What is the designation of the longwall section?

A. Twentieth left.
Q. Twentieth left?

A. Hm-hmm.
Q. And that is on retreat, is it not?

A. Yes, it is.
Q. Taking out the longwall panel?

A. Yes , it is •
Q. What is the designation of the development section?

A. That is 21st left.
Q. What's the relative proximity of that section to the
longwall section?

A. It is one panel down from the 20th left longwall panel.
And the continuous miner development section, 21st left,
is developing the adjoining panel for the next longwall
panel.
Q. When you say it's developing for the next longwall
panel, does that mean it's framing out the panel?

1625

A. Yes. It's blocking out a block of coal that will be
roughly 500 foot face and about 5,000 foot long. Roughly
a mile long.
Q. As it's doing its development work, what type of mining

equipment is utilized?
A. We have a continuous miner with a shuttle car and a
rough boulder and then, also, belting in that entry, in
those sections.
Q. It's a continuous mining operation, driving two entries?

A. Yes.
Q. All right.
Is coal actually mined in the process of that
development effort?

A. Yes, it is.

x

x

x

x

x

x

x

Is there a relationship, a timing re:~tionship, between
the work being done on the development section and the work
being done in the longwall section?
Q.

A. Yes, we're very critical, right now, in our development
as far as the fact that we have to retreat-- for every one
foot of retreat we have to advance our development section
at 1.7 feet, otherwise we will be at the point where the
longwall will be completed on its panel and we will have
not completed development for the next panel and, therefore,
would not be able to move the longwall and the mine would
be shut down while we completed development for that next
panel on 21st left.
Q. What do your present projections show in terms of when
~he

mining of the longwall panel would be completed?

A. We have roughly 86 days left on the longwall panel. And,
right now, assuming we can maintain the productivity we
are projecting them, the development panel, we have 85 days
to get it completed.
Q. Mr. McNeil, you are familiar with the Order that's

involved in this case?
A. Yes.
Q. Are you aware, sir, that by its terms, it closes down

the 21st left section?

1626

A. Yes.
Q. What is the reason that the 20th left section is closed

down as well?
A. Right now it's a case of, as I mentioned, we either shut
down now or shut down later. If we don't keep the development sections advanced at the rate that is of that ratio I
just mentioned, that the longwall panel will be shut down
later. We do have adequate inventory, right now, in our
stockpile, where we can make our shipments during this
period of time. And later on we will not have that inventory so it's a decision that we're better off to take the
shut down now because it will occur anyway if you're not
in the development process.
Q. Did the timing of miner's vacation enter into that
decision at all?

A. Yes, we're trying to structure that around our longwall
move would coincide with miners' vacation. And the extent
you run the longwall, again, without continuous development on the development section, we will be in a position
where we will not be able to move over miners' vacation.
Q. What is the current bank account that Kaiser enjoys?

A. Roughly, within Kaiser Coal, we have roughly $3 million.
Q. And when you're in a situation, with Sunnyside shut down,
as you have been this past week, what are the costs
associated with operating the mine?

A. Right now, in our idled mode, we're running at a cost
of about $200,000 a week, of the continued monitoring of the
mine from the fire boxing standpoint, the pumping of the
mine, the ventilation of the mine, and continuing of our
salaried work force.
Q. Mr. McNeil, have you given any thought to the implications of a continuation of the Closure Order that we're
talking about here in terms of Kaiser's legal status?

A. Yes, the main concern, as I see it, would be the fact
that we do run out of cash at a point that in two or three
months it forced Kaiser Coal into the Chapter 7, which
would shut the mines down and the Canpany would be liquidated, which would ultimately cause the liquidation of
Kaiser Steel.

1627

THE REQUIRED NEXUS WAS ESTABLISHED
The evidence presented demonstrates a sufficient causal
relationship between the issuance of the withdrawal order and the
idlement of the miners working on the 20th left longwall section
(as well as on the 21st left section) to constitute the causal
nexus required to entitle the miners to compensation under the
first two sentences of Section 111.
Furthermore, it appears to me that the essential question is
whether Kaiser would have shut down the 20th left section during
the week in question but for the issuance of the March 27, 1988
withdrawal order. The evidence clearly demonstrates that the
work on both sections of mine would have continued through the
period of idlement in question but for the 104(d)(l) withdrawal
order.
THE WITHDRAWAL ORDER WAS VACATED AND NEVER BECAME FINAL
Kaiser is correct in its contention that it challenged the
validity of the withdrawal order and it never became a final
Order. On March 27, 1987, the same day that the Order was
issued, Kaiser filed a Notice of Contest and h~quest for
Expedited Hearing contending that the Order was improper because
the safety standard cited, 30 C.F.R. § 75.326, was expressly
inapplicable to Kaiser's Sunnyside No. 1 Mine. After notice to
the parties there was a hearing on April 7, 1987, before the
Commission's Administrative Law Judge Melick in Docket No. WE
87-116-R. The UMWA, represented by Mr. Earl Pfeffer, intervened
and was a party to that proceeding. There were settlement
discussions and negotiations. By agreement of the Order was
modified on April 7, 1987, to permit the 21st left conveyor belt
to resume operations subject to a number of conditions.
On April 24, 1987, Kaiser and MSHA entered into an agreement
to settle the contest proceeding. One aspect of that settlement
was the express understanding that the Order would be vacated by
MSHA either when the 20th left section, the longwall, was mined
out or when Kaiser's then pending Petition for Modification was
granted, whichever occurred first.
Kaiser contends that based
upon MSHA's commitment to vacate the Order, Kaiser filed a motion
to withdraw its Notice of Contest. Without objection by the UMWA
or any other party Judge Melick granted that motion and dismissed
the proceeding with prejudice on April 29, 1987. 3; The parties
stipulated that the withdrawal order was vacated by MSHA on
February 16, 1988 (Ex. 15).

11

Kaiser also points out that Chief Administrative Law Judge
Merlin on October 19, 1987, dismissed the related civil penalty
proceeding in Docket No. WEST 87-228 on the grounds that MSHA's
decision to vacate the Order eliminated any violation for which a
penalty could be assessed.
·

1628

DISCUSSION
It is a fundamental principle of statutory construction that
courts must start with the plain language of the statute. Rubin
v. United States, 449 U.S. 424, 430 Cl981). Where Congress has
addressed an issue, •the plain meaning of the statute decides the
issue presented." FERC v. Martin Exploration Management Co., 108
s. Ct. 1765, 1768 Cl988)Ccitations omitted).
In this case, Congress has spoken directly to the issue. In
enacting Section 111, it established a graduated scheme of
compensation entitlement triggered incrementally by the gravity
of an operator's conduct. See UMWA v. Westmoreland Coal Co., 8
FMSHRC 1317. Thus, the first two sentences of Section 111
provide that miners who are idled by an order are entitled to
full compensation •for the period they are idled, but not for
more than the balance of [their] shift • • • [or for] more than
four hours of [the next working] shift." (Emphasis added.) The
third sentence, however, is expressly predicated upon the
existence of an actual violation1 that is, it applies only where,
after an opportunity for a public hearing, the closure order is
"final."
Miners are to be paid up to a shift and a half by an
operator even where the operator is innocent of wrongdoing1 to
receive a week's compensation by the operator, however, requires
a showing of culpability on the operator's part -- a showing,
after he had an opportunity to defend himself at a public
hearing, that he had committed a violation which caused the
miners to be idled. The requirement of a •final order" after an
"opportunity for a public hearing" plainly confirms Congress'
intent to limit the availability of third sentence compensation •.
As a Third Circuit held in Rushton Mining Company v. Morton, 520
F.2d 716, 720 C3rd Cir. 1975):
[I]t is clear that in drafting S 820 Ca> [the predecessor
to Section 111 of the Mine Act] Congress understood the
difference between an order which is ultimately upheld
and one which is ultimately vacated, that in [the third
sentence] Congress intended to compensate miners only
where the order is ultimately upheld, but that in [the
first two sentences] • • • Congress intended to compensate
miners even where the order is ultimately vacated.
REIMBURSEMENT OF COST, EXTRA EXPENSE
AND ATTORNEY'S FEES ARE DENIED
Kaiser contends that the UMWA should be required to pay
Kaiser its reasonable expenses, including attorney's fees,

1629

"occasioned by UMWA's misconduct." This contention is rejected.
Section 111 does not provide for recovery of costs or attorn~y's
fees in compensation proceedings and furthermore on review of the
record as a whole it is determined that: it would be ~njust in
this case to award Kaiser such expenses under Federal Rule 37.
Kaiser Motion for reimbursement is denied.
Likewise Kaiser's motion to dismiss UMWA's claim for lack of
prosecution and "gross noncompliance with Commission'~ rules is
denied.
A third motion taken under submission was Kaiser's motion to
dismiss UMWA's claim for a week's compensation under the thirq
sentence of Section 111 of the Mine Act. This motion is moot in
view of my findings and conclusion of law that the miners are
entitled to compensation only under the first two sentences of
Section 111.
The parties agreed that it would not be necessary to
indicate in the first instance individual amounts for individual
miners if the rulings were sufficiently specific to indicate in
general terms the miners working on which shifts, and in which
section or sections of the mine are entitled to compensation. If
there are disagreements over whether individual miners might have
been scheduled to work, jurisdictio~ is reserved to resolve those
matters.
It is concluded that all the miners working both day and
swing shift on the 21st left and 20th left longwall section of
Kaiser's Sunnyside No. Mine were idled as a result of the Section
104Cd)(l) Order (Order No. 3043010) issued March 27, 19871 said
miners are entitled to compensation at their regular rate of pay
for the period of time provided in the first two sentences of
Section 111 of the Mine Act.
ORDER
_Kaiser Coal Corporation, if it has not already done so, is
directed to pay compensation to the mi:ners working the day and
swing shift on the 20th left and 21st left sections of Kaiser's
Sunnyside No. Mine, at the miners regular rate of pay for the
period of their idlement by Withdrawal Order No. 3043010 not to
exceed the period of time provided by .the first two sentences of
Section 111 plus interest calculated in accordance with the
formula set forth in Secretary v. Arkansas Carbona Co., and
Walker, 5 FMSHRC 2042 (1986), within 30 days of the date of this
decision.

~~Cik
t F. Cetti
nistrative Law Judge

1630

Distribution:
Brad Rayson, Esq., United Mine Workers of America, 1563 Gilpin
Street, Denver, CO 80218 (Certified Mail)
·
John A. Macleod, Esq., Crowell ' Moring, 1001 Pennsylvania
Avenue, N.W., Washington, D.C. 20004-2505 (Certified Mail)

/bls

1631

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

·, ·.

RQOM 280, 124'1 SP!=ER 801,!LEVARD ,

ROGER THOMPSON, UNION PRES.,
ON BEHALF OF
PAUL LUCE,
Complainant,

v.

DENY.ER, CO 8020.4

. DISCRIMINATION PROCEEDING
.
Docket No. CENT 88-157-DM
. MD
87-60
.
Silica Sand Plant

UNIMIN CORPORATION,
Respondent
DECISION
Before:

Judge Lasher

By letter dated November 15, 1988, counsel for Complainant,
Paul Luce, indicated that Mr. Luce "has decided nut to pursue
the above cause of action." Attached to the letter is a document
entitled Discontinuance of Discrimination Complaint signed by
Mr. Luce which is construed to be a withdrawal of the Complaint
herein. Pursuant to Commission Rule 11 (29 C.F.R. 2700.11) a
party may withdraw such pleading at any time with the approval
of the Commission or the Judge. Such approval is here granted
since it appears that the withdrawal is voluntary. Accordingly,
this proceeding is dismissed with prejudice.

~~11¢~if,

.fr.

Michael A. Lasher,
Administrative Law Judge

Distribution:
Ben Hill Turner, Esq., 2 East Chambers, Cleburne, TX 76031
(Certified Mail)
Mr. Paul Luce, 704 South Robinson, Cleburne, TX 76031
Mail)

(Certified

George J. Kalapos, Jr., Esq., Unimin Corporation, 258 Elm Street,
New Canaan, CT 06840
<Certified Mail>
/ot

1632

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

November 28 ,. 1988

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 88-176
A. C. No. 46-01453-03803
Humphrey No. 7 Mine

v.
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Joseph T. Crawford, Esq., Office of the
Solicitor, U. S. Department of Labor,
Philadelphia, Pennsylvania, for Petitioner
Michael R. Peelish, Esq., Consolidation
Coal Company, Pittsburgh, Pennsylvania, for
Respondent.

Be.fore:

Judge Merlin
Statement of the Case

This case is a petition for the assessment of a civil
penalty filed by the Secretary of Labor against Consolidation
Coal Company for an alleged violation of 30 C.F.R. § 50.10. A
hearing was held on October 18, 1988.
The subject citation reads as follows:
A roof fall accident - unintentional
fall of ro~f above the anchorage zone of roof
bolts which interfered with passage of
persons - occurred at the face of the 2
southwest longwall section, 043-0 MMU, at
approximately 2:00 PM on 11-13-87. This
accident was not reported to MSHA until
3:58 PM 11-13-87.
30 C.F.R. § 50.10 provides:
If an accident occurs, an operator shall
immediately contact the MSHA District or
Subdistrict Office having jurisdiction over
its mine. Jf an operator cannot contact the
appropriate MSHA District or Subdistrict

1633

Office it shall immediately contact the MSHA
Headquarters Office in Washington, O.C., by
tel~phone, toll free at (202) 783-5582.
30 C.F.R. § 50.2(h) states in pertinent part:
(h) "Accident" means.

*

*

*

*

(8) An unplanned roof fall at or above
the anchorage zone in active workings where
roof bolts are in use; or, an unplanned roof
or rib fall in active workings that impairs
ventilation or impedes passage;
At the hearing the parties agreed to the following
stipulations:
(1)

the operator is the owner and operator of the subject

mine;
(2) the operator of the mine is subject to the Federal Mine
Safety & Health Act of 1977;
(3)

the administrative law judge has jurisdiction in this

case;
(4) the inspector who issued the subject citation was a
duly authorized representative of the Secretary;
(5) a true and correct copy of the subject citation was
properly served;
(6) copies of the subject citation and termination of the
violation in this proceeding are authentic and may be admitted
into evidence for purposes of establishing their issuance, but
not for the purpose of establishing the truthfulness or relevancy
of any statements asserted therein;
(7) imposition of a penalty will not affect the operator's
ability to continue in business;
(8)

the alleged violation was abated in good faith;

(9) the operator's history of prior violations, as shown on
the printout which was subsequently admitted as· a government
exhibit, is correct;
(10)

the operator's size is large; and

1634

c·11> the roof fall which occurred in this case was an
unplanned ~oof fall within the purview of 30 C.F.R., Section
50.2(h)(8).
Discussion and Analysis
The inspector testified that during his investigation on
November 16, 1987, the Monday following the accident, the mine
superintendent told him that at the time of the roof fall in the
belt entry at the headgate, production was ceased and that the
miners in the-area were evacuated through the tailgate (Tr. 18).
The inspector further stated that the superintendent told him the
normal route of travel through the headgate was blocked
(Tr. 18-19). The operator's safety supervisor, the company .
official responsible for notifying MSHA, acknowledged that at
2:00 p.m. he was informed of the roof fall and was told that the
men were retreating through the tailgate (Tr. 32, 35, 53, 55).
After being so advised, the safety supervisor went underground to investigate (Tr. 35). The safety supervisor explained
that the roof had fallen in on the crusher which was located in
the entry at the headgate (Tr. 44, 48). Immediately behind the
crusher was the stage loader (Op. Exh. No. 1). There was a 3 to
3! foot clearance on each side of the crusher, but debris 2' to
2! feet deep had fallen on each side (Tr. 49, 50). The
supervisor said· that it would have been hard to get through on
the left side because the roof had fallen down there (Tr. 43).
The supervisor expressed the opinion that if necessary men could
crawl over the top of the crusher or over the debris (Tr. 49, 53).
He further testified that as soon as he arrived on the sc~ne he
and all others present immediately began timbering the area to
make it safe (Tr. 40, 42-43).
1

The longwall coordinator who had called the accident out to
the mine superintendent on the surface, testified that he did not
specifically report passage was impeded, but that he did say the
men were coming out through the tailgate, that he needed someone
to give them a ride and that he needed help in timbering the
headgate side of the fall (Tr. 67).
The first question to be resolved is whether this roof fall
constituted an "accident" within the purview of 30 C.F.R.
§ 50.2(h), quoted supra. 1 conclude it did. The evidence clearly shows that passage was impeded. There is no dispute that
instead of using the headgate which was the normal route of
travel, miners in the area exited through the tailgate. The roof
had fallen in on the crusher and there was debris 2-2! feet high
on both sides of it. Moreover, after the fall, the remaining
roof was unsecured and dangerous which was why everyone on the
scene immediately started timbering. Under these circumstances I
reject the opinions of the operator's witnesses that men could
climb over the crusher or the debris. Even assuming this were
physicallv possible, such action would have been a violation of

1635

the man da tor y standards and extreme 1 y dangerous beca'u·s e the men
would have had to go under unsupported roof. The operator's
safety supervisor himself stated he would not w~~t t~e ~~n to go
under unsupported roof and that for a 11 pr act ica 1 p·urposes
the h·eadgate was impassable unti 1 the roof was supported (Tr. 54).
Based up-0n the foregoing, I find passage was imped~d.
The next issue is whether there was immediat- ftotification.
The fall occurred at 2:00 p.m. The inspector t~stified that the
mine foreman became aware of the fall at 2:30 p.~. (Tr. 15, 16).
However, the safety supervisor who, as already noted~ is t~e
company official responsible for notifying MSHA testified that he
first had knowledge of the fall around 2:00 p.m. close to immediately after it happened when he was told by the safety escort.
He further testified that the safety escort learned of the fall
from the mine foreman and that he was inform~d of the fall within
zero to five minutes (Tr. 32, 33). 1/ As already set forth, the
safety supervisor was told men were-tet~eating through the tailgate (Tr. 35, 53, 55). He then went underground tb investigate
(Tr. 35). He stated that it is the operator's policy to investigate falls before reporting them to MSHA unless there happens to
be definite information that passage~is impeded (Tr. 37). Under
the circumstances of this case I find.the procedures followed by
the safety supervisor and other management officials failed to
satisfy the requirements of the regulations. The longwall ·coordin~tor advised the mine superintendent that men were exiting
through the tailgate which was not the normal route of travel
(Tr. 67). He also asked for help in.,timbering (Tr. 67). This
information was sufficient to alert mine management to inquire
and seek more specifics about the fall. Indeed, no company
official above ground in the long chain of communication from the
mine superintendent, who received the longwall coordinator's
call, to the safety supervisor, who made the decision when to
call MSHA, asked those questions which would have enabled them to
decide whether or not immediate notification of MSHA was required.
Although the safety supervisor asked about injuries and whether
1/

The safety supervisor's statement that he learned of the
fall almost immediately after it happened is supported by
his chronology of subsequent events. He stated that it ·took
him approximately 30 minutes to reach the section (2:30
p.m.) and an additional three to five minutes to reach the
fall area (2:35 p.m.) (Tr. 38, 39). He then spent 45
.
minutes conducting an investigation of the area (3:20 p.m.)
and an additional 20 to 25 minutes to return to the surface
(3:45 p.m.) from where he called MSHA (3:58 p.m.) (Tr. 50
52). Based upon, these time frames it appears that the '
safety supervisor knew of the roof fall at approximately
2:00 p~m. rather than 2:30 p.m~ as the inspector testified.
I so f1nd.

1636

people were stuck at the face (Tr. 35), he otherwise relied upon
what he was told him and did not attempt to ascertain the facts
upon which he could have made an informed decision on immediate
notification. If the safety supervisor or others had taken the
moment or two necessary to ask the obvious questions, they would
have known immediate notification was required and so would have
called MSHA before going underground.
I recognize that the fall created a stressful situation for
all concerned. But the requirements of the regulations are clear
and mine management must remain sensitive to them even while it
copes with other aspects of the situation. The time lapse from
2:00 p.m. (or even 2:30 p.m. under the inspector's version), ~hen
the supervisor found out about the fall, until 3:58 p.m., when
the fall was reported, was much too long to constitute immediate
notification. See Western Fuels-Utah, 10 FMSHRC 832, 842-844
(June 1988). The argument 1n the operator's brief (p. 7) that
the operator must have an opportunity to conduct a "reasonable"
investigation before notification cannot be accepted as a justification for its conduct in this case. Here with minimum effort,
the facts necessary to determine the propriety of immediate notification would have been readily available to management
officials. Adoption of the operator's position in this case
would mean that instead of being "immediate", notification would
be- virtually the last thing to be done and accorded little, if
any, priority.
In this connection it also must be noted that even after
his investigation, the operator's safety supervisor waited until
he was above ground to notify MSHA although he could have
telephoned MSHA from below ground 20 or 25 minutes earlier
(Tr. 52, 56). On this basis as well, the regulation was
violated.
The inspector testified that the violation was not serious
(Tr. 19). The Solicitor expressed the same view (Tr. 23). The
position that this reporting violation is not serious is wholly
at odds with the views the Secretary expressed in other reporting
cases involving this operator. In Consolidation Coal Company, g
FMSHRC 727, 733-734 (April 1987), I accepted the Secretary•s view
that Part 50 violations are serious, stating:

" * * *, it is clear that the settlement
motion is on strong ground in asserting the
violations involved a high degree of seriousness and negligence. Gravity cannot be
doubted in view of the fact that Part 50 is
the cornerstone of enforcement under the Act.
Since Part 50 statistics provide the basis
for planning, training and inspection

1637

activities, accurate reporting is essential.
Moreover, failure accurately to report could
have extremely dangerous consequences by concealing problem areas in a mine which should
be investigated by MSHA inspectors. In
short, without proper compliance by -the
operator under Part 50, the Secretary could
not know what is going on in the mines and,
deprived of such information, he would be
unable to decide how best to meet his
enforcement responsibilities. * * *"
The violation in this case was serious. The inspector
explained that the purpose of this reporting requirement is to
afford MSHA the opportunity to send an .inspector to the scene as
quickly as possible to determine the cause of the roof fall and
prevent future occurrences (Tr. 20, 21, 25). Failure to
immediately notify MSHA frustrates this important policy.
Accordingly, the Secretary's position in this case that the
violation was not serious, is wrong and negates effective
enforcement of the reporting regulations.
I find the operator was guilty of ordinary negligence and
reject the inspector's finding of high negligence as contrary to
the evidence. There is nothing in the record indicating recklessne.ss, willfulness or any other such conduct which would justify a
higher degree of fault.
I have reviewed the briefs filed by counsel. To the extent
that the briefs are inconsistent with this decision, they are
rejected.
As already noted, the stipulations regarding the remaining
criteria under section llO(i) of the Act, have been accepted.
In light of the foregoing it is ORDERED that a penalty of
$500 be assessed for this violation.
It is further ORDERED that the Operator Pay $500 within 30
days from the date of this decision.

Paul Merlin
Chief Administrative Law Judge

1638

Distribution:
Joseph T. Crawford, Esq., Office of the Solicitor, U. S. Department of labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Larry Hull, Vice President, Consolidation Coal Company, P. O.
Box 100, Osage, WV 26543 (Certified Mail)

M~.

Michael H. Holland, Esq., UMWA, 900 15th Street, N.W.,
Washington, DC 20005 (Certified Mail)
/gl

1639

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

~2041

NOV 291988
GREEN RIVER COAL COMPANY1
INCORPORATED,
Contestant

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

·CONTEST PROCEEDINGS
:
:

Docket No. KENT 88.;;.13-R
Ord.er No. 2836161·1 10/19/87

:

Docket No~ KENT 87-243-R
Order No. 2835472: 9/2/87

:

Docket No. KENT 87~244~R
Order No. 2836053) 9/10/87
No. 9 Mine

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

v.

CIVIL PENALTY PROCEEDINGS

.
.

Docket No. KENT 88-63
A. C. No. 15-13469-03635
Docket No. KENT 88-92-B
A. ·c. No. 15-13469-03643

GREEN RIVER COAL COMPANY,
INCORPORATED,
Respondent

Docket No. KENT 88-98
A.C. No. 15-13469-03645
Green River No. 9 Mine
DECISION

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor
U.S. Department of Labor, Nashville, Tennessee
for the Secretary of Labor;
Flem Gordon, Esq., Gordon ~ Gordon, P.S.c.,
Owensboro, Kentucky and· B. R. Paxton, Esq., Paxton
& Kusch, P.S.C., Central City, Kentucky, on the brief
for Green River Coal Company, Inc.
Before:

Judge Melick

These consolidated cases are before me under section 105(d)
of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et~., the "Act," to challenge citations and
withdrawal orders issued by the Secr~tary of Labor against the
Green River Coal Company, Incorporated (Green River) and for

1 r. .. -

review of civil penalties proposed by the Secretary for the
related violations.
Docket No. KENT 88-98
Order No. 2844181, issued pursuant to section 104(d)(2) of
the Act, alleges a "significant and substantial" violation of
the mine operator's roof control plan under the regulatory
standard at 30 C.F.R. § 75.316 and charges as follows:l/
The ventilation system and methane and dust control
plan was not being followed in the working section in
entries left off Northwest parallel (No. 1 unit 001)
in that (1) There was no perceptible movement of air
reaching the end of the line curtain in No. 6 entry
(used smoke to determine velocity> (2) Only 675 cubic
feet of air a minute was reaching the end of the line
curtain in No. 5 entry (used smoke). Methane was
detected in the faces of these places. Methane
content 1.4 percent. The plan requires that at least
1,200 cubic feet of air be reaching the end of line
curtain in all faces except those being cut, loaded
and/or drilled.
~/ Section 104(d) of the Act provides as follows:

(1)

If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that
there has been a violation of any mandatory health or
safety standard, and if he also finds that, while the
conditions created by such violation do not cause
imminent danger, such violation is of such nature as
could significantly and substantially contribute to
the dause and effect of a coal or other mine safety or
health hazard; and if he finds such violation to be
caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards,
- he shall include such finding in any citation given to
the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine
within 90 days after the issuance of such citation, an
authoriz.ed representative of the Secretary finds
another violation of any mandatory health or safety
standard and finds such violation to be also caused by
an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area affected
by such violation, except those persons referred to in
subsection (c) to be withdrawn from, and to be
prohibited from entering, such ~rea until an
authorized representative of the Secretary detarmines
that such violation has been abated.

1641

In .relevant part the ventilation. plan <E.X:hibit G~2>
provides that "all other working faces shall have _a line
brattice (wing curtain) installed within 15 fe~t df th~ face
with a minimum of 1,200 c.f .m. when measured at '-the ·~no of the
wing curtain."
It is undisputed that Inspector Louis Stanley'of the
Federal Mine Safety and Health Administration (MSHA> found on
October 2, 1987, no perceptible aic movement at the end of the
line curtain at the No. 6 entry and only 675 cubic fee·t per
minute (cfm) at the end of the line curtain at the No. 5
entry--locations where 1,200 cfm is required. 1.4 percent
methane was also found in each of the cited entries and,
according to Stanley this methane concentration woutd be
expected to increase without proper ventilation. Stanley also
observed that the roof bolter was e~pected to operate in the
cited areas "fairly quickly" in the mining sequence thereby
providing a potential ignition source for the methane. Under
these circumstances Stanley opined that a methane explosion was
"highly likely" and the ten miners working on the section would
be seriously injured. Within this framework of credible
evidence I conclude that the violation is proven as charged and
was "significant and substantial". See Mathies Coal Company,
6 FMSHRC 1 (1984).
In order to sustain the order under section 104(d)(2) of
the Act the Secretary has the burden of proving inter alia that
the violation charged therein was caused by the "unwarrantable
failure" of the mine operator to comply with the cited
standard.fn.l/ supra. "Unwarrantable failure" means aggravated
conduct constituting more than ordinary negligence, in relation
to a violation of the Act. Emery Mining Corp., ' FMSHRC 1997
(1987), appeal filed Janaury 1988 (D.C. Cir. No. 88-1019) In
the Emery case the Commission compared ordinary negligence as
f n_!/ (cont'd)

(2)

If a withdrawal order with respect to any area in a
coal or other mine has been issued pursuant to
paragraph Cl), a withdrawal order shall promptly be
issued by an authorized represeptative of th~
Secretary who finds upon any subsequent inspection the
existence in such mine of violations similar to those
that resulted in the issuance of the withdrawal order
under paragraph Cl) until such time as an inspection
of such mine discloses no similar violations.
Following an inspection of such-mine which discloses
no similar violations, the provlsions of paragraph Cl>
shall again be applicable to that mine.
.....:~···

1642

conduct that is "inadvertent" "thoughtless", or "inattentive"
with· conduct constituting an unwarrantable failure, i.e. conduct
that is "not justifiable" or "inexcusable". According to
Inspector Stanley the violation at issu~ was the result of "high
negligence" and, presumably "unwarrantable failure" because the
section foreman "should have known" of the insufficient air and
that the foreman was working .in the nearby No. 3 entry. This
testimony is clearly not sufficient to meet the stringent
standards for unwarrantibility set forth in the Emery decision.
In addition Assistant Mine Superintendent and General Mine
Manager Thomas Morris testified that after the instant order was
issued he discovered that a root fall in an entry located 20 to
25 crosscuts from the unit at issue had crushed a stopping
impeding the air entering the unit. After the stopping was
repaired and the roof timbered the ventilating air was then
increased to the required amount. In addition, according to an
out-of-court statement by Section Foreman Steve Jones, Jones had
"made his faces" indicating that he had completed his on-shift
examination before the order was issued. According to that
statement Jones arrived on the unit at 8:30 a.m. and took an air
reading at the intake at 8:45 a.m. where he found 12,150 "feet
of air". According to the statement, Jones found 3,360 "feet of
air" behind the wing curtain at the face of the No. 4 entry at
around 9:30 that morning and 3,420 "feet" behind the wing
curtain of the face at the No. 3 entry at around 9:45 that
morning. The order at bar was issued at 10:00 a.m. and
according to Jones' statement he learned that the intake air was
lost at 9:50 a.m. This undisputed evidence further supports a
finding that the violation was the result of ordinary negligence
and not conduct that was "not justifiable" or "inexcusable".
Accordingly, the order at bar must be modified to a citation
under 104(a) of the Act.
Order No. 2844183, also issued pursuant to section
104(d)(2) of the Act, alleges a violation of the regulatory
standard at 30 C.F.R § 75.1306 and charges as follows:
"[t]he
magazine used Ear storage of explosives for the working se6tion
and entries left oEf Northwest parallel (No. 1 Unit 001) was
sitting [sic] in the No. 1 entry about 20 feet from the face
with two doors open and two boxes of explosives half in and half
out of the magazine".
The cited standard, 30 C.F.R. § 75.1306, provides in
relevant part that "when supplies of explosives and detonators
for use in one or more working sections are stored underground,
they shall be kept in section boxes or magazines of substantial
construction"

1643

It is undisputed that the cited magazine was constructed
with sliding doors from which 250 pound boxes of explosives were
protruding "halfway out". The violation has accordingly been
proven as charged.
Inspector Stanley opined that the explosives
would not likely be run into or set off because there were no
ignition sources nearby nor traffic in the cited entry. The
violation was therefore not of high gravity. He believed
however that the violation was the result of "high negligence"
and presumably "unwarrantable failure" because the sect.ion
foreffian "knew or should have known of the location of the
explosives magazine".
Again however the proof does not support
the allegations.
The evidence does not show that acts of, or omissions by,
the section foreman were the re3ult of more than ordinary
negligence or that they were "not justifiable" or "inexcusable".
In addition, according to Assistant Safety Director Grover
Fischbeck, the section foreman first inspects the faces upon
arriving on the section before directing the miners to their
duties.
Fischbeck th('=oriz~d that th.e foreman may have seen the
magazine with its doors closed and that later the shot firer may
have removed some explosives leaving other explosives halfway
outside.
In support 0£ this theory FischbecK noted that the
"shooter" did in fact have explosives in his possession at the
time the violation was cited. In any event it is clear that the
Secretary has not met her burden of proving the high degree of
negligence required to support a finding of "unwarrantable
failure".
The order must accordingly be vacated and modified to
a citation under section 104(a) of the Act.
Order No. 2844182, also issued pursuant to section
104(d)(2) of the Act alleges a "significant and substantial~
violation of the standard 30 C.F.R. § 75.304 and charges as
follows:
The on-shift examination for hazardous conditions was
not adequate on the working section in entries left
off Northwest parall [sic] (No. 1 unit 001) in that
Cl) Only 5,760 cubic feet a minute of air was
present at the last stopping on the intake side of the
section: (2) Methane at a concentration of 1.2 percent
to 1.4 percent was detected in all six of the working
faces: (3) The air volume at the end of the line
curtain in two of the six workin~ places was less than
the minimum required by the ventilation system and
methane and dust control plan. The working section
had power on equipment and equipment was working in
the face: (4) The explosive magazine for the working
section was sitting in the No. 1 entry about 20 feet
from the face with the doors open and two boxes of

1644

explosives half in and half out of the magazine. A
·sample of the atmosphere at the face of the No. 5
entry was taken 10 feet from the face 6 feet from the
rib and 1 foot from the roof.
The cited standard, 30 C.F.R. § 75.304, provides in part
that "at least once during each coal producing shift, or more
often i.E neces:;r.tl'."Y l:oc ,;afety, each working section shall be
examined for haiacdou::; conditions by certified persons
designated by the operator to do so".
Accordirig to Inspector Stanley, the existence of the four
conditions cited in the order was evidence per se that the
working section was not being examined sufficiently. According
to Stanley even though an onshift examination had been performed
at 8:30 that morning ongoing examinations should have been made
to discover any violations subsequently occurring.
While it is not disputed that the conditions existed as
alleged, it is noted that the two former conditions cited in the
order were not violations of any statute, regulation or policy.
The latter two violations charged in the order were identical to
the violations affirmed in this decision in Order Nos. 2844181
and 2844183.
While evidence of the existence of a number of violative
conditions can raise an inference that a violation of the cited
standard has occurred, See e.g. Secretary v. Manalapan Mif!in~
Co., 9 FMSHRC 355 (1987) and Secre~ v. Peab<2_~-~~~~-~o_.,
4 FMSHRC 678 (1982), the evidence in this case does not raise
such an inference. Two of the four conditions cited in the
order were admittedly not violations of any regulation or
statute and the remaining two conditions were found not to be
the result of significant negligence. These two conditions
could have arisen rapidly following the onshift examination
performed by section foreman Jones between 8:30 a.m. and the
time the section was energized at 9:25 a.m.
Indeed the first
orders citing problems in the section were issued at 10:00 a.m.
There was also credible evidence that the ventilation problem
may have arisen suddenly shortly after Jones' onshift
examination that morning when a stopping became crushed as a
result of a roof fall short-circuiting the ventilation. Under
the circumstances I do not find that the Secretary has sustained
her burden of proof. Accordingly, Order No. 2844182 must be
vacated.
Order No. 2836279, also issued pu~sua~t t0 i~ctl~n
104(d)(2) of the Act alleges a "significant and subatantial~
violation of the operator's roof control plan under the
regulatory standard at 30 C.F.R. § 75.200 and alleges that "the

1645

approved roof control plan was not be,ing followed as the No. 5
entry on the No. 7 unit was 27 feet wide at the third row of
roof bolts 6utby the face area." The operator's roof control
plan provides in relevant part that "the eritry width cannot
exceed 20 feet maximum" (Exhibit B-3).
As MSHA Inspector Allan Head entered the No. 4 entry on
December 4, 1987, he observed that ribs had been ~rounded out".
He measured the width with a 50 foot fiberglass tape and found
it to be 27 feet to 23 feet wide over 7 to 10 feet linear
distance. Head concluded that without additional support over
this span there was the danger of slate falling on miners
working in the area. Head also concluded that the violation was
result of high negligence because the condition was "very
obvious" and that the next cut beyond the widened area was
"narrower". According to Head, rock from the roof only three
inches to six inches thick falling upon a miner could cause
disabling injuries. Head estimated that mining had occurred in
the entry from 4:00 p.m. until 10:00 p.m. the night before his
inspection and he opined therefore that the face boss
should have seen the excessive width. Indeed, according to
Head, even with the wing curtain on one side of the entry in
place the entry was "obviously" in excess of the required 20
foot width. Head acknowledged however that the violation could
have resulted from "inattentiveness".
Within this framework of evidence I find that the violation
is proven as charged. The Secretary has failed however to
sustain her burden of proving that the violation was
"significant and substantial" or wa& the tesult of high
negligence or "unwarrantable failure". Inspector Head conceded
that the violation may have been the result of mere
"inattentiveness". See Ei~ery Mini!!_g__co~e-, s11£;:.~. The order is
therefore modified to a citation under Section 104(a) of the Act.
ORDER
Order No. 2844182 is vacated. Order Nos. 2844181, 2844183
and 2836279 are modified to citations under section 104(a) of
the Act and Green River Coal Company, Inc., is directed to pay
civil penalties of $500, ~300, and $200 respectively, within 30
days of the date of this decision.
Docket No. KENT 88-63 and KENT 87-244-R
Order No. 2835472, issued pursuant to section 104(d)(2) of
the Act, alleges a "significant and ~ubstantial" violation of
the operacor.'s ventilation plan under the regulatory standard at
30 C.F.R § 75.316 and charges a8 follows:

1646

The old No. 5 unit set up was not being ventilated
properly as to keep methane from accumulating in the
old dead end heading. There was 1.3 percent CH4
present at the last row of roof bolts in the left
breaks between No. 6 and 5 entries. There was no
perceptible movement of air at the end of the line
brattice (curtin) [sic] in this heading when checked
with a smoke tube. Also the block curtin [sic]
between No. 6 and 5 entries the second crosscut outby
the faces was down on the mine floor.
The ventilation plan provides in relevant part that "all
dead-end places shall be ventilated, and when practical,
crosscuts will be provided at or near the face of each entry
room before the place is abandoned".
(Exhibit B-2).
According to Inspector Head, beginning on August 31, 1987,
and continuing on September 1, and on September 2, he found
methane exceeding one percent in the cited area. On the latter
date and when the order was issued, he discovered 1.3 percent
methane and found no air movement. According to Head, methane
could build-up in the cited area and should there be an ignition
from a roof fall there could be an explosion or fire. The
explosions or fire could extend the 200 to 300 feet to the
active sections where eight workers would be exposed to burns
and "broken ear drums". He observed that the mine was also
known as a "gassy mine" with two-million c11bic feet of methane
liberated every 24 hours. He concluded therefore that it was
likely to have methane build up to explosive levels.
Head concluded that the violation was the result of high
negligence because the same type of violation was found for
three consecutive days. On August 31, and on September 1, he
had issued section 104(a) citations for the same violation. In
mitigation Dave Harper testified on behalf of the operator that
a ventilating curtain was found lying on the mine floor and
speculated that it may have been dislodged by a scoop cleaning
up the area. Such speculation can however provide but little
mitigation under the circumstances of this case.
Within this framework of evidence I conclude that the
violation was the result of high negligence and of the
"unwarrantable failure" of the operator to comply with the cited
standard. The repeated violation of the same standard at the
same location for three consecutive days cleacly warrants a
finding that the violation was a result of conduct that was "not
justifiable" and "inexcusable". See Youghgiogheny and Ohio Coal
Co., 9 FMSHRC 2007 (1987). Based on the undisouted evidence of
Inspector Head I also conclude that the violation was
"significant and substantial". See Mathies Coal Com~, supra.

1647

At hearing the parties agreed to a proposal for settlement
of Order No. 2836053 in which Green River agreed to pay the
proposed pen~lty of $600 in full.
I have considered the
documentation and representations in support of the motion and I
conclude that it comport3 witn the requirements of section
llOCi> of the Act. Accordingly the motion is accepted.
ORDER
Contest proceedings Docket Nos. KENT 87-243-R and
KENT 87-244-R are denied. Order No. 2835472 is affirmed. Order
No. 2836053 is also affi-r:med a.nd G-reen River Coal Company, Inc.,
is directed to pay civil penalties of $900 and $600,
respectively within 30 days of the date of this decision.
Docket No. KENT 88-92-B
At hearing the parties move to approve a settlement
agreement with respect to the two citations at issue in this
proceeding, Citation Nos. 2836161 and 2836172. Green River has
agreed to pay the proposed civil penalties of $900 and $800,
respectively, in full.
I have considered the representations
and documentation submitted in this case and I conclude that the
proffered settlement is appropriate under the criteria set forth
in section llOCi> of the Act.
ORDER
Green River Coal Company, Inc., is hereby directed to pay
civil penalties of $1,700 within 30 days of the date of this
decision.
Docket No. KENT 88-13-R
Green River withdrew its contest of this proceeding at
hearing in conjunction with the proposed settle.aent of the
citatio~ ~t issue in Civil Penalty Proceeding
Docket No. KENT 88-92.
ORD
Contest Proceeding KENT 88- 3-R is dis issed.

1648

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

NOV 2'91988
ERNIE L. BRUNO,
Complainant
v.

CYPRUS PLATEAU MINING
CORPORATION,
Respondent

..

.
.
.:
.

DISCRIMINATION PROCEEDING
Docket No. WEST 88-157-D
DENV CD 88-07
Starpoint No. 2 Mine

DECISION
Appearances:

Before:

Gregory J. Sanders, Esq., Kipp & Christian,
Salt Lake City, Utah,
for Complainant;
Kent w. Winterholler, Esq., Parsons, Behle &
Latimer, Salt Lake City, Utah,
for Respondent.

Judge Morris

This case involves a discrimination complaint filed
pursuant to the Federal Mine Safety and Health Act of 1977,
30 u.s.c~ S 801, et seg.
The applicable portion of the Mine Act, Section 105Cc>Cl>,
in its pertinent portion provides as follows:
Discrimination or interference prohibited;
complaint; investigation; determination; hearing
No person shall discharge or in any manner
discriminate against or cause to be discharged
or cause discrimination against or otherwise
interfere with the exercise of the statutory
rights of any miner, representative of miners
or applicant for employment in any coal or
other mine subject to this [Act] because such
miner, representative of miners or applicant
for employment has filed or made a complaint
under or related to this [Act], including a
complaint notifying the operator or the operator's agent, or the representative of the
miners at the coal or other mine of an alleged
danger or safety or health violation in a coal
or other mine •4•• 30 u.s.c. S 815Cc)(l).

1649

After notice to the parties a hearing on the merits was held
in Price, Utah_ on September 13, 1988.
Complainant filed a trial brief and respondent filed a posthearing brief.
Applicable Case Law
The general principles of discrimination cases under the
Mine Act are well settled. In order to establish a prima facie
case of discrimination under Section 105(c) of the Act, a complaining miner bears the burden of production and proof in
establishing that (1) he engaged in a protected activity, and
(2) the adverse action complained of was motivated in any part
by that particular activity. Secretary on behalf of Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October
1980), rev'd on other grounds sub !!2!!!· Consolidation Coal Co.
v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf
of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(April 1981). The operator may rebut the prima facie case by
showing either that no protected activity occurred or that the
adverse action was in no part motivated by protected activity.
If an operator cannot rebut the prima facie case in this manner,
it nevertheless may defend affirmatively by proving that it also
was motivated by the miner's unprotected activity and would
have taken the adverse action in any event for the unprotected
activity alone. Pasula, supra; Robinette, supra. See also
Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir.
1987)~ Donovan v. Stafford Construction Co., 732 F.2d 954,
958-59 CD.C. Cir. 1984)~ Boich v. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983) (specifically approving the Commission's PasulaRobinette test). Cf. NLRB v. Transportation Management Corp.,
462 U.S. 393, 397-413 (1983) (approving nearly identical test
under National Labor Relations Act).
Issues
The issues are whether the complaint herein was timely
whether complainant was engaged in a protected activity
at the time of the alleged discrimination and whether the
operator would have taken adverse action in any event against
complainant irrespective of any protected. activity.
filed~

1650

Filing of Complaint
The discharge of Ernie L. Bruno, on December 12, 1983,
generated two lawsuits. The initial lawsuit was filed in the
State of Utah District Court some 19 months after the termination. Bruno had instructed his attorney to get his job back
because "he was judged on a different basis than anyone else".
Bruno's claim was denied in the Utah trial court as well as on
appeal (Tr. 43, 44, i6, Ex. R-5).
After talking to another miner Bruno learned for the first
time that he had a right to file a complaint with MSHA. Such a
complaint was filed and after its investigation MSHA concluded
that no violation of Section 105(c) had occurred. Bruno filed a
statement disagreeing with MSHA and on March 28, 1988, he filed a
pro se complaint with the Commission. The basis of his complaint
was that he had been fired for being in a fight. Specifically,
he had been treated differently than any other employee.
(The
Judge agrees that fighting may be unsafe, but it is clearly not
an activity protected under the Act), Hollis v. Consolidation
Coal Company, 6 FMSHRC 21 (1984).
Subsequently, on April 18, 1988, Bruno filed additional
information with the Commission setting forth allegations involving coal float dust and giving this as the real reason for
his dismissal. Bruno states that if he had known about his
Section 105(c) rights in 1983, he would have immediately filed
with MSHA. But he had never seen a poster advising him of such
rights. 1/ (Tr. 32, 41-42, 46, Ex. R-10).
Witness Stan Warnick, Manager of Human Resources for Cyprus
Plateau Mining Company, was not involved in the decision to
terminate Bruno (Tr. 278-279). Paul Kelley and Bill Bergamo
investigated a fighting incident between Bruno and Steve Stoker.
Their decision to terminate was confirmed by their supervisor,
Larry Rodriguez (Tr. 279-280). The company's investigation revealed that Bruno assaulted Steve Stoker, a fellow worker. The
assault occurred in the company kitchen. He was discharged for
that reason (Tr. 281).

1/ I credit the operator's evidence that there were many MSHA
posters in prominent places in the mine. If there had not been
such informational posters, an MSHA inspector would have issued
a citation to the operator. No such citation was ever issued.
(Tr. 224-227, 255, R-llA through I). Further, Bruno's witnesses
Marchello, O'Herron and Lander confirm that the posters were
present <Tr. 116, 117, 166, 168, 188).

1651

Bergamo, the underground superintendent, is no longer with
the company and lives in California. Kelley is no longer with
the company and lives in the Salt Lake City area. Rodriguez
does not have a current position with Cyprus Plateau Mining
Company and Warnick understood that he was with Texaco (Tr. 281283). Warnick did not know how to reach Rodriguez. However,
he supposed he could find Bergamo but he had not made any atten1pt
to find Kelley (Tr. 292-293).
Discussion
The commission has held that the time limitations contained
in Section 105(c) of the Act were not intended to be jurisdictional and dismissal of a complaint for late filing is justified
only if the operator shows a material legal prejudice attributable to the delay.
Secretary ex rel. Hale v. 4-A Coal Company,
Inc., 8 FMSHRC 905 (1986); Herman v. Imco Services, 4 FMSHRC 2135
(1982).
In this case such material legal prejudice exists: the
individuals who investigated and determined that Bruno should
be fired are no longer with the company. In addition, after
a delay of over four years, it is questionabl~ whether these
individuals would have a present recollection of the events surrounding Bruno's alleged discrimination and termination. This is
particularly true inasmuch as the uncontroverted evidence shows
that the persons involved in the decision to terminate Bruno for
fighting had not been advised of any alleged protected activity
involving the float coal dust.
For these reasons I conclude that the complaint filed herein, more than four and one-half years after the incident, was not
timely filed.
However, it is appropriate to review the case on the merits.
Protected Activity
In December 1983, Bruno was working a normal workweek
running a shuttle car and he was part of a nine-man crew.
Roger
Skaggs was the face foreman.
Bruno's duties required him to operate his shuttle car in
an unsafe area.
In particular, one of the entries was "clear

1652

full" of float coal dust. 2/ Some of it was suspended and about
a foot deep in some places: This condition plugged up his nose
and his visibility was impaired (Tr. 25). The first day when he
started running his car through the area he told Skaggs about it
(Tr. 45-47). Skaggs said he would check with the material man
who was responsible for watering down the roadways and maintaining them (Tr. 27). The situation remained the same. When
Skaggs was again approached on the subject, he explained that
the material man had not gotten to the problem CTr. 28). After
five days the condition remained the same, so Bruno shut down his
buggy and went over and watered down the area. The watering took
15 to 20 minutes (Tr. 30-31). The same day that he had watered
the area down, Skaggs asked him if he had shut down the shuttle
car. When he confirmed that he had shut it down, Skaggs started
·"screaming and yelling" and told him never to shut down the
shuttle car. 3/ If he did he would be taken off of the buggy
(Tr. 31). Bruno replied that he should have the right to shut
down the shuttle car and water the float coal dust (Tr. 32).
Several days after the conversation about shutting down the
shuttle car Skaggs told Bruno that it was Steve Stoker who had
told him that Bruno had shut down the car. (Stoker had been
Bruno's helper for many years.) (Tr. 33). When Bruno confronted
him, Stoker denied having made such a statement. Bruno told
Stoker not to make any more trouble (Tr. 33-35).

2/ The Secretary's regulation, 30 C.F.R. § 75.400 provides as
follows:
[Statutory Provision]
Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal
and other combustible materials, shall be
cleaned up and not be permitted to accumulate
in active workings, or on electric equipment
therein.
3/

Skaggs admits he "got on" Bruno for shutting down production
A continuous miner
will not operate without water (Tr. 79)~

but not for watering the entry (Tr. 209).

1653

Ten days to two weeks later, about December 8, 1983, Bruno
again became irritated with Stoker. This arose because some
miners were not wearing safety glasses; Stoker thought the
company should know about it CTr. 35-36).
When Bruno went to lunch that day he was relieved by fellow
worker Ron Dalton who described Stoker as a "troublemaker".
Bruno was upset. As he went to the lunchroom he thought about
Stoker and slowly came to a "boiling point" (Tr. 37).
Stoker came into the lunchroom. Bruno immediately got up
and approached him. Bruno said Stoker was nothing but a troublemaker. He then struck him a couple of time. Stoker didn't hit
back; he had a bloody nose. The incident lasted five or six
seconds (Tr. 37-38, 104-105).
Bruno then apologized for hitting him and they talked to
each other and then went back to work (Tr. 39). Bruno finished
the shift and went home. He later received a call from Paul
Kelley, head of the Human Resources Department. At a conference
with Bruno, Bill Bergamo, and Rulen White, the men asked Bruno
about the fight and he was asked if he had struck Stoker. When
he admitted it he was told to call back to learn of the committee's decision. On December 12, 1983, Bruno was told to
choose between being fired or resigning. Bruno decided to resign
because he ~as going to be fired (Tr. 40-42, 65, 76, Ex. R-4).
Bruno instructed his original attorney that he wanted to be
reinstated (Tr. 72, 73). The float coal dust incident was not
raised in the earlier State of Utah lawsuit (Tr. 77).
Discussion
The threshold matter to consider here is whether Bruno's
affirmative action of self help in watering down the entry was
an a~tivity protected under the Act.
In Robinette, supra, the Commission observed that occasions
will arise where mere ceasing of work will not eliminate or
protect against hazards while adjusting or shutting off equipment
will do so. In such cases such affirmative action may represent
the safest and most responsible means of dealing with the hazard.
Robinette, 3 FMSHRC at 808; Wiggins v. Eastern Associated Coal
Corporation, 7 FMSHRC 1766 (1985).
It could be argued that Bruno's act of shutting off the
continuous miner and watering down the entry was not an integral
part of a protected work refusal. However, on the authority of
Robinette and Wiggins, I assume that the activities of Bruno in
shutting down the miner and watering down the entry were protected under the Act.

1654

Accordingly, it is necessary to further evaluate the
evidence.
The Commission has previously observed that direct evidence of motivation is rarely encountered in a discrimination
case and that motivation may be drawn from circumstantial
evidence showing such factors as knowledge of the protected
activity, coincidence in time between the protected activity
and the adverse action and disparate treatment. Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (November
1981), rev'd on other grounds, 709 F.2d 86 CD.C. Cir. 1983)i
Schulte v. Lizza Industries, Inc., 6 FMSHRC 8 (1984). It i~,
accordingly, appropriate to analyze the evidence concerning
these cardinal features.
Knowledge of Protected Activity
The face boss, Roger Skaggs, knew Bruno had shut down the
miner to water the entry. But Skaggs did not relay this information to anyone else. Skaggs' testimony on this point is both
credible and uncontroverted. Skaggs neither participated in the
decision to fire Bruno and the float coal dust incident was never
reported to the committee that considered the discipline for the
Bruno/Stokes fight (Tr. 206). This view of the evidence is
further confirmed by Bruno who agrees he didn't have an opportunity to say anything about the float coal dust incident when
he was fired (Tr. 76). Nor was it raised in the earlier State of
Utah law suit (Tr. 77). In addition, Bruno admits the ~ompany
was first made aware of his discrimination claim in June 1988
(Tr. 84).
Coincidence in Time
I do not find any coincidence in time between Bruno's
protected activity and his discharge. Approximately ten days
to two weeks elapsed from the protected activity and the fight
in the lunchroom between Bruno and Stoker. No adverse action was
taken during this period. On the other hand, it was only a few
days from the time of the lunchroom fight until Bruno was discharged. This indicates Bruno was fired because of his fight
with Stoker.
Disparate Treatment
A review of the evidence concerning disparate treatment is
necessary since Bruno claims he received disparate treatment.
Specifically, other miners had engaged in fights and had not been
terminated.
(This was Bruno's contention when he originally
filed his case in Utah District court.)

1655

The evidence shows that Bruno had observed other fights in
the mine (Tr. 46). He had observed a fight between Chad Tabor
and Larry Mardoch (Tr. 50). He was also present on three
different occasions when altercations occurred. Two of them
were in the section where he was working and one was in the
bathhouse (Tr. 50). In addition, fighting has always gone on
and it was a common occurrence at the mine (Tr. 84). Bruno had
never had a fight with any supervisory personnel or any other
fellow employee at the mine (Tr. 105). However, on a previous
occasion, Bruno admits he was involved in an incident with fellow
employee, Meade. This occurred when Meade swore at Bruno on two
different occasions. On the second occasion, Bruno pushed him
and told him not to talk to him like that (Tr. 109). According
to Bruno it was not a fight <Tr. 110). However, at the time of
the termination interview with Bergamo, Bruno was asked about the
Meade incident (Tr. 111).
Witness EARL MARCHELLO had observed fighting on the company's premises. Particularly he recalled Bob Bennett and Ben
Darling (Tr. 117). The Bennett fight occurred underground and it
was after Bruno had been terminated. Skaggs was a supervisor of
the crew but did not see the fight (Tr. 117-121).
Witness IVAN GAGON had seen a fight between Chad Tabor and
Bud Weaby where blows were exchanged. The men were not terminated for fighting.
The witness also heard of other fights
over the years but was not aware of any employee dismissed for
fighting (Tr. 128-130). However, both men were called in and
were "talked to" by Bergamo and Snyder (Tr. 133).
Witness KEVIN WOODS had seen three or four fights over
the years at the mine. He had seen a foreman present at those
fights on two occasions. The witness himself was involved in one
altercation and received a letter of reprimand from the company
in May 1984. Woods was not dismissed but he did receive time off
(Tr .. 137-139). Bruno was the only one terminated for fighting
(Tr. 140). The witness was not aware of anyone terminated for
fighting (Tr. 146).
The witness was involved in a fight in the mine with Daniel
Gagon (Tr. 148). The fight occurred at the Twenty-Mile Coal Mine
in Colorado managed by Plateau and still owned by it. A letter
of reprimand was issued (Tr. 151) (Ex. R-13). As a result of the
fight Gagon received a similar letter (Tr. 151). Both men were
suspended for three days (Tr. 152) •.

1656

Witness MAYO O'HERRON.had observed four or five fights
over the years and been involved in fights himself.
In 1979 he
received three days off without pay and he was told if he lost
his temper again he would be fired (Tr. 163). O'Herron was not
aware of anyone who had been terminated for fighting in the mine
(Tr. 164)
Witness ERNEST PRETTYMAN had a fight about five years ago
on the mine premises with John Haughter. Prettyman was not
terminated because the other party "had it coming". PrettymaL
knew it was against company policy to fight on the premises
(Tr. 170, 173).
Witness VOPEL LANDER had seen fights, one involving a
company official who took off his miner's hat and belt and
called on the entire crew to fight him. This was in 1981 or
1982. The company official was Cary Jensen (Tr. 182-183).
The witness also broke up the fight between Chad and Buddy Weaby.
The face foreman witne8sed this fight and Weaby quit rather than
go back into the mine (Tr. 184-185). He also saw a fight between
Chad Tabor and Randy Mabbutt (Tr. 185). The Tabor-Mabbutt fight
was in 1977 but no company officials were present (Tr. 186).
He also heard about Bruno's altercation as well as Prettyman's
altercation (Tr. 187).
Respondent's witness ROGER SKAGGS indicated the committee
stated they had to make an example of Bruno and it was hoped the
fighting would quit on the property (Tr. 206-207). Bruno was
terminated for fighting (Tr. 207).
Witness DAVE DONALDSON, Human Resources Representative for
the respondent, has been so employed for three and one-half years
(Tr. 217).
In 1983 it was against company policy to fight underground and you could be terminated if you were caught fighting
(Tr. 219-220).
The standards of conduct at the Getty Oil Company prohibited
fighting CTr. 221).
Donaldson started working at this site in 1981 for the
then operator, United Nuclear Company. The next owner-operator
was Getty Oil in 1982 and the subsequent operator Cin 1984) was
Texaco (Tr. 242-243). Cyprus Minerals Company acquired the
property in March 1986. Plateau Minerals is the parent company
of Cyprus Plateau Mining Company (Tr. 244).

1657

The Getty booklet contains a prohibition against fighting
or horseplay. The booklet states that disciplinary action may
be taken. It may include discharge (~r. 248).
Witness ARNOLD SHAW, Director of Safety for Plateau Mining,
described how safety complaints are handled at the company.
The witness had never had a complaint about float coal dust
(Tr. 250-254).
~
Witness STAN WARNICK, Manager of Human Resources for
respondent, felt that the discharge of Bruno was consistent
with company policy concerning assaults or fights. Company
policy stated that discipline would be invoked if it appeared
appropriate for the incident CTr. 281). As a result of the
altercation with Bruno and Stoker, Stoker received a written
warning that any further involvement would result in further
discipline. There are two sets of rules relating to fighting:
one is a safety guideline that prohibits it, and the second is
Getty's standards of conduct that prohibit it. Both documents
state that discipline could be imposed depending upon the
circumstances (Tr. 286).
According to the company's records three employees have
been terminated for fighting. One was Bruno and the others
were Buddy Weaby and Dennis Craig who was terminated in April
1982 (Tr. 287). There has always been some form of discipline
when management was aware that the fighting had taken place.
The company's policy remains the same, (Tr. 288).
In the witness's view, Bruno was terminated for assaulting
another employee. An assault is more serious than a fight
(Tr. 300). However, there is nothing in the company guidelines
that distinguishes assault from any other kind of a fight
CTr. 300-301).
Evaluation of the Evidence
In evaluating the evidence concerning disparate treatment
I credit the operator's evidence. Br.uno's witnesses, as to
fighting on the premises, would no doubt know the circumstances
under which a particular fight occurred. However, Warnick, as
manager of Human Resources would be in a position to know whether
employees who have engaged in fights known to the company had
been terminated. He testified that Weaby and Dennis Craig (and
Bruno) were terminated (Tr. 287, 288).

1658

Further, I am not persuaded by Bruno's arguments that he
received disparate treatment: it is not necessary to distinguish
whether the Stoker incident was an assault or a fight but, in any
event, Bruno was clearly the aggressor. In whatever fashion the
incident is categorized, the Stoker fight was not Bruno's first
incident. Bruno indicates the event involving Leroy Meade was
"not a fight" (Tr. 110). However, it was a fact discussed during
Bruno's termination interview with Bergamo (Tr. 111).
In sum, if Bruno had established that he was terminated in
part because of protected activity, I would nevertheless conclude
that respondent was motivated by unprotected activities and.would
have taken the adverse action for the unprotected activities
alone; i.e., Bruno's fight with fellow worker Stoker in the
lunchroom.
For the foregoing reasons, I conclude that complainant has
not established that respondent discharged or otherwise discriminated against him in violation of Section 105Cc) of the Act.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED that the complaint and proceedings herein are
dismissed.

orris
rative Law.Judge

Distribution:
Gregory J. Sanders, Esq., Kipp & Christian, City Centre I, 1330,
175 East 400 South, Salt Lake City, UT 84111-2314 (Certified
Mail)
Kent W. Winterholler, Esq., James M. Elegante, Esq., Parsons,
Behle & Latimer, 185 South State Street, Suite 700, P.O. Box
11898, Salt Lake City, UT 84147-0898 (Certified Mail)
/ot

1659

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

22041

NOV 2 91988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 88-167
A.C. No. 46-06557-03539

v.
Oneida Mine No. 11
ONEIDA COAL COMPANY, INC.,
Respondent
DECISION
Appearances:

Before:

Anita D. Eve, Esq., U.S. Department of Labor,
Office of the Solicitor, Philadelphia,
Pennsylvania, for the Petitioner;
w. T. Weber, Jr., Esq., Weston, West Virginia,
for the Respondent.

Judge Maurer
STATEMENT OF THE CASE

This case is before me upon a petition for assessment of
civil penalty under section 105Cd) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801, et seq., th~ "Act," in which
the Secretary has charged the Oneida Coal Company (Oneida) with
two violations of the mandatory safety standards. Prior to the
commencement of taking testimony in this case, however, the
parties moved to settle that portion of the case concerning
§ 104Cd)(l) Order No. 2901009, alleging a violation of 30 C.F.R.
§ 75.400 and proposing a $1000 civil penalty.
There was no
reduction in the assessed penalty proposed and based upon the
representations made at the hearing and in the record, I conclude
that-the proffered settlement is appropriate under the criteria
set forth in section llOCi> of the Act.
The remaining section 104(d)(l) citation, alleging a
violation of the mandatory safety standard found at 30 C.F.R.
§ 75.200 and proposing to assess a civil penalty of $950 was
tried before me at a scheduled hearing on July 15, 1988, at
Slatyfork, West Virginia.
The general issues before me are whether Oneida violated the
cited regulatory standard, and, if so, whether that violation was
of such a nature as could significantly and substantially

contr~bute to the cause and effect of a mine safety or health
hazard, i.e., whether the violation is "significant and
substantial." If a violation is found, it will also be necessary
to determine the appropriate civil penalty to be assessed in
accordance with section llOCi> of the Act. An additional issue
in this case is whether the inspect:or's "unwarrantable failure"
finding should be affirmed.

DISCUSSION
Citation No. 2700376 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. § 75.200 and specifically
charges as follows:
There was a violation of the approved roof control
plan, in that only 5 breaker post and no turn post were
installed in the Wo. 2 block pillar split, A-5 panel
section, where coal was being mined by continuous miner.
Dan Matz, was the Section Foreman. The approved plan
requires eight (8) breaker post and four (4) turn post
be installed prior to taking the first cut from the
pillar split. The Foreman knew or should have known of
this requirement.
Oneida does not dispute the factual allegations set forth in
the citation at bar nor does it dispute that such allegations
constitute a violation of its roof control plan and therefore the
cited standard. Oneida maintains, however, that the violation
was neither "significant and substantial" nor caused by its
"unwarrantable failure" to comply with its roof control plan.
Inspector Veith testified that the operator's roof control
plan required that they have eight breaker posts and four
turn posts installed prior to starting the pillar split. He
observed five breaker posts installed and no turn posts.
He
asked the continuous miner operator if he knew what the roof
control plan required and the miner ostensibly replied that yes,
he did, but he did not have any posts available.
The inspector further opined that every time you split a
pillar block, you increase the chance of a roof fall and
therefore the chance of serious injury. The risk of serious
injury in this case being to the miner operator who was right
beside the machine even though this particular continuous miner
had r.9Jllote control capability.
It was also the inspector's opinion that this violation was
"unwarrantable" because the section foreman knew or should have
known that this miner operator was going to start mining in the

1661

affected area before the roof control plan had been complied with.
He testified at CTr. 30):
It's the section foreman's responsibility to see to
that, and he should have know~. It should have been
checked to be sure that the proper amount of roof
support had been installed. That's part of his
responsibility.
Mr. Bauer, Director of Safety and Training for Oneida, also
testified. He stated that he investigated this incident and
found by interviewing Randell Mullins, the continuous miner
operator, that he (Mullins) had moved the miner to the number two
block and was mining there for approximately five to ten minutes
when the inspector came up and issued the citation. He further
stated that Danny Matz, the section foreman, knew about the roof
control plan requirements.
Danny Matz also testified. He stated that before the
inspector arrived he personally had checked the area around the
number two block and at that time all the breaker posts were in
and standing. Later, he returned to the area with Inspector
Veith and observed that three of the eight breaker posts had been
knocked down by falling material. He acknowledged, however, that
there were no turn posts in number two,- either earlier or when he
came back with the inspector, which was okay as long as no mining
was taking place there.
Forffinan Matz maintains that he did not instruct the miner
operator to make a pillar split or cut on the number two block
and he did not know that the-miner ooerator would be mining on
the number two block without his pri~r approval. He states the
miner operator should have let him know that there were no
"timbers" in there prior to starting that pillar cut. However,
on cross-examination he a~~itted that he would not have routinely
had to be there for the miner operator ~o start cutting on the
nwnber two block and he would ordinarily just assume the miner
operator would put up the required turn posts.
Significant and Substantial Violation
A "significant and substantial" vi~lation is described in
section 104Cd>Cl) of the Mine Act as a violation "of such nature
as could significantly and su~stantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30
C.F.R. § 814(d)(l). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to ~ill result in an injury or

1662

illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpreta.tion of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove:
Cl) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to
safety-contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a
reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula 'requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury.'
U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d){l), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
I conclude and find that a violation of the cited
standard did occur as alleged in Citation No. 2700376, and
~s admitted by Oneida.
Furthermore, a discrete safety
hazard in the form of an increased danger of a roof fall was
contributed to by the violation. Additionally, I accept and
£ind credible the inspector's opinion that there was a
reasonable likelihood that the hazard contributed to could
result in a reason3.bly serious type injury, which is usually
the case in a roof fall type accident. I therefore conclude
that the violation was "significant and substantial," and
serious.

1663

The Unwarrantable Failure Issue
The Secre~ary further urges that this violation was
caused by the operator's "unwarrantable failure" to comply
with the mandatory standard, and I ,agree.
In Zeigler Coal Company, 7 IBMA 280 (1977), the
Interior Board of Mine Operations Appeals interpreted the
term "unwarrantable failure" as follows:
An inspector should find that a violation of any
mandatory standard was caused by an unwarrantable
failure to comply with such standard if he determines
that the operator has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have known
existed or which it failed to abate because of lack of
due diligence, or because of indifference or lack of
reasonable care.
The Commission has concurred with this definition to the
extent that an unwarrantable failure to comply rr.ay be proven by a
showing that the violative condition or practi~e was not
corrected or remedied prior to the issuance of a citation or
order, because of indifference, willful intent, or serious lack
of reasonable care. United States Steel_ Corp. v. Secretary of
Labor, 6 FMSHRC 1423 at 1437 (1984). And more recently, in Emery
Mining Corp. v. Secretary of Labor, 9 FMSHRC 1997 (1987), the
Commission stated the rule that "unwarrantable failure" means
aggravated conduct, constituting more than ordinary negligence,
by a mine operator in relation to a violation of the Act.
In this case, Foreman Matz testified and I specifically find
that testimony to be credible, that when he inspected the area
all eight of the required breaKer posts were then in place.
However, none of the required turn posts were installed. At this
point in time, Matz knew the turn posts were not installed and he
also knew that the number two block was scheduled to be cut on
that_shift. Now theoretically, the miner operator was supposed
to tell Matz that he was going to start cutting on the number two
block and this would have given Matz the oppotunity to make sure
the required turn posts were installed, as both he and the
continuous miner operator knew they should be prior to the start
of any mining. For whatever reason, this did not happen and as
Matz candidly admitted, this did not completely surprise him.
In
effect, Matz totally relied on and expected the miner operator to
install the turn posts before he started cutting.
I find this to
be an abdication ~£ Matz' responsibilities as the section
f oceman, and a serious lack of reasonable care on his part to see
that the standard was complied with. This negligence is clearly

1664

imputable to the operator. Accordingly, I conclude and find that
that ·portion of the violation pertaining to the missing turn
posts was an "unwarrantable failure" to comply with the standard
cited. With regard to the missing breaker posts, I accept the
operator's explanation that three of the eight posts had been
knocked down since Matz had earlier that shift observed them
standing in place. This last finding is reflected in the civil
penalty assessed by me for this violation.
Civil Penalty Assessment
In assessing a civil penalty concerning this citation, I
have also considered the foregoing findings and conclusions and
the requiranents of section llOCi) of the Act, including the fact
that the operator is small in size and does not have a
significant history of violations. Under these circumstances, I
find that a civil penalty of $750 is appropriate.
ORDER
Citation No. 2700376 and Order No. 2901009 ARE AFFIRMED, and
Oneida Coal Company is hereby directed to pay a civil penalty of
$1750 within 30 days of the date of this decision.

urer
rative Law Judge
Distribution:
Anita D. Eve, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
W. T. Weber, Jr., Esq., 208 Main .Avenue, Weston, WV 26452

(Certified Mail)
slk

1665

ADMINISTRATIVE LAW JUDGE ORDER

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

.

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

October 4, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
MATERIAL SERVICE CORPORATION,
Respondent

.

.
.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 88-122-M
A.C. No. 11-00070-05507
Romeo Quarry

ORDER DENYING PROPOSED SETTLEMENT
NOTICE OF HEARING
On August 11, 1988, the Secretary of Labor filed a
petition for assessment of a civil penalty before this
Commission proposing a penalty of $8,000 for one violation of
the mandatory standard at 30 C.F.R. § 56.9054. The citation
charges as follows:
An employee was fatally inju.red on October 27, 1987
when the Euclid R-50 co.#54-6929 haulage truck he
was operating went over the edge of the live
stockpile and fell approximately 50 feet
overturning and landing upside down on the Quarry
floor.
Berms, bumper blocks, safety locks, or
similar means to prevent overtravel and overturning
was not provided at this dumping location at the
time the incident occurred.
In a motion to approve settlement filed with this
Commission on September 12, 1988, the Secretary sought to
reduce the proposed penalty to $5,000 and, as grounds
therefore, stated as follows:
1) A high degree of gravity is involved in the
present citation because the event that the cited
standard is trying to prevent actually occurred.
2) A high degree of negligence is present in this
citation because the mine operator knew or should
have known that an adequate berm or a similar type
of device was required to prevent overtravel and
overturning at the dumping location. On
September 2, 1988, the undersigned attorney
discussed this case with Michael J. Bernardi,

1666

.Director of Safety for the Material Service
Corporation. Mr. Bernardi stated that during .the
afternoon prior to the date of the accident a berm
had been constructed at the cited location.
However, at the time of .the accident the material
that was removed from the berm had not been totally
replaced leaving a berm that was not adequate to
prevent an accident.
3) The mine operator demonstrated its good faith by
abating the cited condition within the time granted
the MSHA inspector.
4) The mine operator had no assessed violations
during the 24 month period preceding the issuance
of the present citation. See copy of Proposed
Assessment Data Sheet, marked as Exhibit A,
attached hereto and made a part hereof.

5) During the calendar year· preceding the issuance
of the present citation the mine involved in this
case accumulated a total of 128,522 hours of work
and the controlling entity had a total of 1,687,359
hours of work during the same period.
6) Payment of the penalty agreed to in this
settlement will not affect the mine operator's
ability to remain in business.
Section llO(k) of the Act provides that "no proposed
penalty which has been contested before the Commission under
section 105(a) shall be compromised, mitigated, or settled
except with the approval of the Commission." Penalty
proceedings before the Commission are de novo. Neither the
Commission or its Judges are bound by the Secretary's
proposed penalties. Rather, they must determine the
appropriate amount of penalty, if any,. in accordance with the
six criteria set forth in section llO(i) of the Act.
Secretary v. Phelps Dodge Corp., 9 FMSHRC 920 (Chief Judge
Merlin 1987); Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147
(7th Cir. 1984).
The Commission recently reaffirmed these principles in
Secretary v. Wilmot Mining Co., 9 FMSHRC 684 (1987):
Settlement of contested issues and Commission
oversight of that process are integral parts of
dispute resolution under the Mine Act.
30
U.S.C. § 820(k); see Pontiki Coal Corporation,

1667

8 FMSHRC 668, 674 (May 198'6). 'Th'e Commission has
held repeatedly that if a Judg·e disagrees with a
penalty proposed in a settlement he is free to
rej_e.~t the settl.ement and direct the matter for
h.earin-g. See e.g. Kno~ County Stone Compa:n,y, 3
.FMSHRC 2478, 2480-81 (1981). A judge 1 s oversight
of the settlement process "is an adjudicative
function that necessarily involves wide
discretion." Knox Count¥, 3 FMSHRC at 2479.

In this case the citation at bar: sets forth a . serious
regulatory violation leading to a fatality. The settlement
motion also confirms that the fatality was the result of a
"high degree~ of negligen6e and the purported excuse or
justification for reducing the level of negligence is
incomprehensible. !rt addition the other grounds advanced
do not justify the proposed reduction . . !/
Accordingly the Motion is denied and this case is set
for hearing on the merits at 9:00 a.m. on December 13, 1988,
in St. Louis, Missouri. The specific courtroom in which the
hearing will be held will be designated at
later date.

I; The Secretary was
tunity to supplement her
Motion in this case to furnish add tiona,l information to
justify ber proposed redbction in penalty but declined.

1668