APRIL 1 995

COMMISSION DECISIONS AND ORDERS
04-07-95
04 - 25 - 95
04-26-95
04-26-95

Dunkard Mini ng Company
Buck Creek Coal, Inc.
Peabody Coal Company
Construction Materials Corp .

PENN 95 - 16
LAKE 94-72
KENT 93-369
YORK 94-73-M

Pg.
Pg .
Pg .
Pg .

497
500
508
517

KENT 94-436
LAKE 94-614-CM
PENN 94 - 333
KENT 94 - 908
PENN 94-400
PENN 94-571 - C
SE
94 - 417-M
WEST 92 - 340
CENT 93-188 - M
CENT 94 - 97-M
WEST 94-510-M
PENN 94-448
CENT 94-109-RM

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

521
523
529
561
563
576
578
585
593
600
609
610
611

KENT 94-969-D
KENT 94-1225
LAKE 94-126-M
YORK 94 - 71-M
KENT 93 - 63
WEST 94-236 - M

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

626
628
636
644
648
661

LAKE 94 - 704 - D
YORK 95 - 1 - M

Pg. 666
Pg. 673

WEST 95-10-D
LAKE 95-124
KENT 94-574-R

Pg. 679
Pg. 682
Pg . 684

ADMINISTRATIVE LAW JUDGE DECISIONS
04-03-95
04-04 - 95
04-05-95
04 - 06-95
04 - 06-95
04 - 06-95
04-06-95
04 - 06 - 95
04- 1 1-95
04-12-95
04-17-95
04-20-95
04-21-95
04-21-95
04-2 1 -95
04-24 - 95
04-24-95
04 - 27 - 95
04 - 27-95
04-28-95
04-28 - 95

Meshach Coal Company
USWA, Local 5024 v . Copper Range Co.
Tanoma Mining Company
R B Coal Company
Enl ow Fork Mining Company
UMWA, Local 1531 v. Jeddo-Highla nd Coal
Brown Brothers Sand Company
Wyoming Fuel/Basin Resources
Arkhola Sand & Gravel , Inc.
Walker Stone Company
Deatley Company, Inc.
Doverspike Brothers Coal Co.
Springfield Underground Inc .
Sec. Labor for Garis Martin v.
Branham & Baker Coal Company
Cougar Coal Company
Midwest Material Corporation
Carl B . Thomas Construction Corp.
Sunny Ridge Mining Company
Good Construction
Sec. Labor f or Kenneth Hannah, et. al.
v. Consolidation Coal Company
New Jersey Pulveriz i ng Co .

APMINISTRATIVE LAW JUDGE ORDERS
04-06-95
04-13 - 95
04-24-95

Sec. Labor for Robbie Smith v.
Centralia Mining Company
Amax Coal Company
Berwind Natural Resources, etc.

i

APRI L

1995

Reyiew wa s granted in the following cases during the month of April;

Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No . WEVA 94-19.
(Judge Fauver, February 27, 1995)
Secretary of Labor, MSHA v. Dunkard Mining Company, Docket No. PENN 95-16 .
(Chief Judge Merlin, unpublished Default issued March 13, 1995)
Secretary of Labor, MSHA v. Broken Hill Mining Co . , Docket No. KENT 94-1208.
(Judge Hodgdon, March 10, 1995)
Secretary of Labor, MSHA v. Construction Materials Corp., Docket No.
YORK 94-73-M. (Chief Judge Merlin, unpublished Default issued January 5, 1995)
Review was not granted in the following cases during the month of April:
Randall Patsy v. Big "B" Mining Company, Docket No. PENN 94-132-D.
Feldman, February 24, 1995)
Energy West Mining Company v. Secretary of Labor, MSHA, Docket No.
WEST 92-819 - R. (Judge Manning, March 9, 1995)

ii

(Judge

COMMISSION DECISIONS AND ORDERS

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

April 7, 1995

SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 95-16

v.

DUNKARD MINING COMPANY

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

ORDER
BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act"). On March 13, 1995, Chief Administrative
Law Judge Paul Merlin issued an Order of Default to Dunkard Mining Company ("Dunkard") for
failing to answer the proposal for assessment of penalty filed by the Secretary of Labor on
November 10, 1994, or the judge's Order to Respondent to Show Cause of January 4, 1995. The
judge assessed the civil penalties of$1,949 proposed by the Secretary.
On March 17, 1995, the Commission received a letter from Karl-Hans Rath, Dunkard's
general manager, in which Rath states that Dunkard had responded to the Secretary's penalty
proposal on December 8, 1994. Dunkard identified its response as Docket No. PENN 95-6, the
same docket number that had appeared on the Secretary's penalty proposal. 1 Rath states that
Dunkard mailed a copy of its December 8 response to the Commission three days after it
received the show cause order. Rath enclosed a copy of that response.
The judge's jurisdiction in this matter terminated when his decision was issued on March
13, 1995. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's procedural rules,
relief from a judge's decision may be sought by filing a petition for discretionary review within
30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We deem Dunkard's

1

The correct docket number for this case is PENN 95-16.

497

March 17 letter to be a timely filed petition for discretionary review, which we grant. See, e.g.,

Middle States Resources, Inc. , I 0 FMSHRC 1130 (September 1988).
On the basis of the present record, we are unable to evaluate the merits of Dunkard's
position. In the interest of justice, we remand this matter to the judge, who shall determine
whether default is warranted. See Hickory Coal Co., 12 FMSHRC 1201 , 1202 (June 1990).
For the reasons set forth above, we vacate the judge's default order and remand this
matter for further proceedings.

foyce A . Doyle, CommiSSiOJ1e

Arlene Holen, Commissioner

498

Distribution

Karl-Hans Rath
General Manager
Dunkard Mining Company
P.O. Box 8
Dilliner, PA 15327
Linda M. Henry, Esq.
Office of the Solicitor
U.S. Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W.
Suite 600
Washington, D.C. 20006

499

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

April 25, 1995

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

Docket Nos.

LAKE 94-72, etc.

v.

BUCK CREEK COAL INC.

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

DECISION
BY: Jordan, Chairman; Doyle and Marks, Commissioners
These consolidated contest and civil penalty proceedings arise under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"). On
February 17, 1995, Buck Creek Coal Inc. ("Buck Creek") filed with the Commission a petition for
interlocutory review of Administrative Law Judge T. Todd Hodgdon's February 15, 1995, Order
Continuing Stay (the "February 15 Order Continuing Stay"). By order dated March 27, 1995, the
Commission granted the petition. For the reasons that follow, we vacate the February 15 Order
Continuing Stay.
I.
Factual and Procedural Background

A. The September 8 Stay Order
This is Buck Creek's second request for interlocutory relief from an order staying
proceedings issued by Judge Hodgdon. Buck Creek's initial petition requested relief from a Stay
Order issued on September 8, 1994 C' September 8 Stay Order"), which stayed more than 300

500

contest and penalty proceedings then pending against Buck Creek as well as all subsequent cases
involving Buck Creek. 1
In granting the Secretary's motion to stay, the judge relied on the Secretary's referral to
the United States Attorney for the Southern District of Indiana of numerous violations for
possible criminal prosecution of Buck Creek and its officers, and on a letter from the Criminal
Division of the Justice Department stating that its criminal investigation could be.impaired by civil
proceedings before the Commission involving the same evidence and facts. S. Mot. for Stay at 1;
September 8 Stay Order at 3.
In that order, the judge stayed proceedings "for ninety days or until such time as the

United States Attorney ... makes a determination regarding prosecution of Buck Creek
... and any of its officers, whichever first occurs. 11 September 8 Stay Order at 4-5. The judge
stated that he would consider lifting the stay on a case-by-case basis "[i]f a subsequent case arises
which involves unique circumstances, such as a withdrawal order .... " Id. at 4 & n. 4. The
judge directed the parties to report the status of the criminal proceedings to him monthly. Id at
5.

On November 25, Buck Creek petitioned for interlocutory review of the September 8 Stay
Order. The Secretary. opposed interlocutory review. On December 7, the stay expired and the
Secretary moved for an extension. On January 10, 1995, the judge issued an Order Continuing
Stay and Notice of Prehearing Conference ("January 10 Order Continuing Stay"), which provided
in part:
When the stay was granted in September, I did not anticipate the unbroken wave of cases which have continued to be filed
in this matter. The cases involve citations issued at least as early as
July 1993 and proceed, as of the date of this order, through November 1994. It seems conceivable, as argued by counsel for Buck
Creek, that not all of these cases are connected or related to the
U.S. Attorney's criminal investigation. If that is the case, it may be
possible to dispose of some cases ....
January 10 Order Continuing Stay at 4.
The judge scheduled a prehearing conference for February 9, 1995, to determine whether
and under what conditions the stay should be continued. January 10 Order Continuing Stay at 4.
Because the September 8 Stay Order had expired and because the judge's January IO Order
Continuing Stay contemplated a closer examination on a case-by-case basis, the Commission

1

The order notes that 11 proceedings had been stayed by orders dated June 30, July 18
and July 22, 1994. September 8 Stay Order at 2 n.1.

so1

denied without prejudice Buck Creek's petition for interlocutory review of the September 8 Stay
Order on grounds of mootness. Buck Creek Coal Inc., 17 FMSHRC _(February 8, 1995).

B.

The February 15 Order Continuing Stay

At the February 9 prehearing conference, the Secretary requested that the stay be
continued for another 90 days. Tr. 17, 23 . He stated that he was not yet prepared to address
lifting the stay because of developments in federal criminal prosecutions against two Buck Creek
employees in an unrelated case, as a result of which access to certain material was strictly limited.
Tr. 9-10, 14. The Secretary represented to the judge that a forthcoming ruling in the unrelated
case would pennit examination of those documents and a decision on criminal prosecution within
the next 90 days. Tr. 15-18. He further represented that he would not renew his request for a
"complete stay" at the end of that period. Tr. 18. The Secretary supported his motion with a
letter from an Assistant U.S. Attorney stating that a continued stay would be "beneficial" to the
Government's investigation. 2
On February 15, the judge issued another Order Continuing Stay, which extended the stay
until May 16, 1995. February 15 Order Continuing Stay at 5. The order notices a status
conference for that date -to determine whether and under what conditions the stay would be
continued. Id. Buck Creek's petition for interlocutory review followed .

II.
Disposition
Buck Creek contends that the Secretary has failed to establish "special circumstances"
warranting a stay and that there is a strong public interest in the expeditious adjudication of these
civil proceedings. Pet. 1 at 4-8.3 It asserts that Thunder Basin Coal Co. v. Reich, 127 L.Ed.2d
29 ( 1994), requires that civil matters be resolved by the Commission before criminal prosecutions
can proceed in district court and urges the Commission to revisit its decision to the contrary in
Southmountain Coal, Inc., 16 FMSHRC 504 (March 1994). Pet. 1at9-14. Buck Creek argues
that, due to the mounting number of stayed citations, the blanket stay has denied it due process.
Pet. 2 at 4.
·

2

Letter from Sharon M. Jackson, Assistant United States Attorney, to Thomas A.
Mascolino, Deputy Associate Solicitor ofLabor, dated February 8, 1995.
3

In the instant petition, Buck Creek primarily relies on the arguments it made in its
petition for interlocutory review of the September 8 Stay Order. References to Buck Creek's
earlier and present petitions are in the form "Pet. 1 _" and "Pet. 2 ~" respectively.

5 02

The Secretary asserts that the judge did not abuse his discretion in granting the stay. S.
Opp'n 2 at 4.4 He argues that stays of civil proceedings pending the outcome of associated
criminal prosecutions are commonplace and warns that the criminal investigation may be impeded
if the stay is lifted. S. Opp'n 1 at 3-5 . . The Secretary argues that Thunder Basin has no application to the issue of whether a civil proceeding should be stayed pending parallel criminal investigations. Id at 6-8.
We review the judge's grant of the stay for abuse of discretion. Scotia Cool Mining Co., 2
FMSHRC 633, 636 (March 1980); see also Securities & Exchange Comm'n v. Dresser Indus.,
628 F.2d 1368, 1375 (D.C. Cir. 1980); Federal Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d
899, 902 (9th Cir. 1989). We conclude that the judge abused his discretion in continuing the
blanket stay on February 15.
A stay of civil proceedings may be appropriate "when the interests of justice seem[] to
require such action ... ." United States v. Kordel, 397 U.S. 1, 12 n.27, quoted in Dresser, 628
F.2d at 1375. From the precedent in this area, we distill several factors that are appropriate for
consideration in determining whether a stay should be granted: (1) the commonality of evidence
in the civil and criminal matters (see Peden v. United States, 512 F.2d 1099, 1103 (Ct. Cl. 1975),
civil proceedings properly stayed if they "churn over the same evidentiary material" as the criminal
case); (2) the timing of the stay request (see Campbell v. Eastland, 307 F.2d 478, 487-88 (5th
Cir. 1962), cert. denied, 371 U.S . 955 (1963), imminence ofindictment favors limiting scope of
discovery or staying proceedings); (3) prejudice to the litigants (see Peden, 512 F.2d at 1103-04,
failure to show prejudice undercuts claim that stay was improper; Campbell, 307 F.2d at 487-88,
discovery that prejudices criminal matter may be restricted); (4) the efficient use of agency
resources (see Molinaro, 889 F.2d at 903, including among stay factors "efficient use of judicial
resources" in case involving defendant's request for stay); and (5) the public interest (see Scotia, 2
FMSHRC at 635, noting "the public interest in the expeditious resolution of penalty cases").
Our review of the record persuades us that the judge failed to address these factors in his
February 15 Order Continuing Stay and that the record does not contain evidence sufficient to
support a finding that the criteria for a stay have been met. The Justice Department's assertion
that a stay would be "beneficial" to the Government falls short of the demonstration required to
support a stay.
We conclude that the first element listed above, commonality of evidence; is a key
threshold factor that has not been established on this record. The consolidated dockets now
contain more than 500 alleged violations, many characterized as resulting from low or moderate
negligence. The Secretary has presented no legal theory on which to conclude that indictments

4

The Secretary relies heavily on his opposition to the earlier Buck Creek petition for
interlocutory review. References to the Secretary's oppositions to Buck Creek's earlier and
present petitions are in the fonn "S. Opp'n 1 _"and "S. Opp'n 2 __,"respectively.

503

alleging willful or knowing violations of the Mine Act, if brought, can rest on citations alleging
low or moderate negligence. See section l IO(d) of the Act, 30 U.S.C. §820(d).
We also find the prospective application of the stay to be inappropriate. The record does
n.o t support a conclusion that current allegations of violations bear any relationship to the criminal
investigation.
In evaluating the hann that may be caused by granting or refusing to grant a stay, the
judge is required to balance the litigants' competing interests. Afro-Lecon, Inc. v. United States,
820 F.2d 1198, 1202 (Fed. Cir. 1987). Criminal defendants enjoy limited discovery compared
with the broad scope of discovery available in civil proceedings. Compare Rules 26 through 37,
Fed. R. Civ. P ., with Rules 15 and 16, Fed. R. Crim. P.~ see also Campbell v. Eastland, 307 F.2d
at 487. When the government moves for a stay, it is generally seeking to prevent the prejudice
that can result from a defendant's use of civil discovery to learn the government's strategy and
evidence in the criminal matter. See Campbell, 307 F.2d at 487. Accordingly, courts do not
pennit criminal defendants to employ liberal civil discovery procedures to obtain evidence that
would ordinarily be unavailable to them in the parallel criminal case. E.g., United States v. One
1964 Cadillac Coupe de Ville, 41 F.R.D. 352, 353 (S.D.N.Y. 1966), citing Campbell.
However, a complete stay of the civil proceeding is by no means the only method by
which to avoid prejudice to a related criminal prosecuti.on. The judge has the power to impose
limitations on the time and subject matter of discovery, which would permit the civil matter to
proceed without harming the criminal case. See Commission Procedural Rule 56(d), 29 C.F.R.
§ 2700.56(d); Milton Pollack, Parallel Civil and Criminal Proceedings, Address Before the
Transferee Judges' Conference (October 17-19, 1989), in 129 F.R.D. 201, 211-12.
In light of our conclusion that the nexus between the civil and criminal matters has not
been established, and that measures Jess drastic than a complete stay are available to prevent
prejudice to the government, we need not address the other criteria for determining whether a
stay is warranted. 5

5

We reject the operator's argument that Thunder Basin Coal Co.,127 L.Ed.2d 29,
requires that Commission proceedings be resolved before criminal proceedings can advance. The
Court in Thunder Basin held that "[m]ine operators enjoy no corresponding right [to resort to
district court in the first instance] but are to comJ,>lain to the Commission and then to the Court of
Appeals." Thunder Basin, 127 L.Ed.2d at 39 (footnote omitted). We disagree that the Court's
holding establishes a bifurcated enforcement scheme whereby the Commission first adjudicates
violations, following which the district court decides whether the violations were willful. In
Southmountain Coal Inc. , the Commission rejected a similar argument. 16 FMSHRC at 505 n. l.
We decline to overturn that holding.

50 4

III.
Conclusion
For the foregoing reasons, we vacate the February 15 Order Continuing Stay without
prejudice to the imposition by the judge, upon request, of a limited stay covering particular
proceedings based on the criteria set forth herein, including the commonality of issues and
evidence between the civil and criminal matters. The judge should also consider this commonality
of evidence when detennining the limits of discovery in order to permit civil proceedings to
advance without prejudice to criminal matters.

........··
Marc Lincoln Marks, Commissioner

505

Commissioner Holen, dissenting:
I respectfully dissent. I do not agree that the facts in this case establish that Administrative Law Judge T. Todd Hodgdon abused his discretion in granting his Order Continuing Stay of
February 15, 1995.
Courts have recognized that the government is entitled to stay civil proceedings pending
disposition of a related criminal case. See Peden v. United States, 512 F.2d 1099, 1103 (Ct. Cl.
1975). Beginning in June 1994, the judge issued a series of stays of short duration. September 8,
1994 Stay Order at 2 n.1. In July, the Secretary, for the first time, sought a 90-day stay because
of an ongoing criminal investigation and the possible interference that Commission proceedings
might pose. Motion for a Stay of Civil Proceedings, dated July 29, 1994. The judge, on
September 8, issued a stay of90 days, subject to the operator's showing of unique circumstances
in any matter that would lead to consideration to lifting of the stay. September 8 Stay Order
at 4 n.4. The judge required the parties to report to him monthly on the status of the criminal
proceedings. Id at 5. Following the expiration of the stay in December, the judge, on
January 10, 1995, issued a 30-day continuance of the stay. January 10, 1995 Order Continuing
Stay and Notice of Prehearing Conference. On February 9, the parties appeared before the judge~
the Secretary sought a 90-day stay, based on a request from the U.S. Attorney's office, noting that
a complete stay would not be sought at the end of the 90-day period. Tr. 7-10, 37-38 (February
9, 1995 Hearing). I do not conclude that the judge's deliberate approach, issuing two 90-day
stays under limited conditions, in response to an overlapping criminal investigation, was abusive.
I agree with the majority that a party seeking a stay bears the burden of showing the need
for it. See slip op. at 4. I also agree that, in deciding whether to grant a stay, a judge is, in
general, required to balance the interests of the parties, Afro-Lecon, Inc. v. United States, 820 F.
2d 1198, 1202 (Fed. Cir. 1987), slip op. at 5, and should take into account certain factors, which
the majority has drawn from legal precedent and has set forth. See slip op. at 4 (citations
omitted). These factors include the public interest and the efficient use of the Commission's
resources. Id. In deciding whether to grant a stay in a case such as thls, involving potentially
related civil and criminal proceedings, a judge must, of course, address specifically the commonality of issues and evidence. Id. at 4-5 (citations omitted).

Arlene Holen, Commissioner

50 6

Distribution
James G. Zissler, Esq .
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Suite 400
Washington, D.C. 20037
Susan E . Long, Esq .
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

507

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR

WASHINGTON, O.C. 20006

April 26 , 1995

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

Docket No. KENT 93-369

PEABODY COAL COMPANY

BEFORE: Jordan, Chainnan; Doyle, Holen and Marks, Commissioners
DECISION
BY: Doyle, Holen and Marks, Commissioners
This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S .C. § 801 et seq. (1988) ("Mine Act" or "Act"), presents the issue of whether
violations of 30 C.F.R. §§ 75.701 and 75.601 by Peabody Coal Company ("Peabody") were
significant and substantial ("S&S"). 1 Administrative Law Judge Arthur Amchan detennined that

1 30 C.F.R. § 75.701 provides:

Metallic frames, casings, and other enclosures of electric
equipment that can become "alive" through failure of insulation or
by contact with energized parts shall be grounded by methods
approved by an authorized representative of the Secretary.
30 C.F.R. § 75.601 provides in part:
Disconnecting devices used to disconnect power from trailing
cables shall be plainly marked and identified and such devices
shall be equipped or designed in such a manner that it can be
determined by visual observation that the power is disconnected.
The S&S tenninology is taken from section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(l),
which distinguishes as more serious in nature any violation that could "significantly and
substantially contribute to the cause and effect of a ... mine safety or health hazard .. .. "

508

the violations were S&S. 15 FMSHRC 2578 (December 1993) (ALJ). For the reasons that
follow, we vacate the judge's decision and remand.

I.
Factual and Procedural Backiround
On December 14, 1992, Darold Gamblin, an inspector from the Department of Labor's
Mine Safety and Health Administration ("MSHA"), inspected Peabody's Martwick Mine, an
underground coal mine in Muhlenberg, Kentucky. At the 3 South Panel entries, the inspector
observed that the external grounding device to a cathead was not properly colUlected. 15
FMSHRC at 2578-79. The inspector issued a citation alleging an S&S violation of section
75.701 because he was concerned that, if the insulation of the trailing cable were tom allowing
internal parts to contact the casing, the cathead casing could become energized. Id. at 2579-80;
Tr. 17; Jt. Ex. 1.
Inspector Gamblin also observed two catheads that were attached to cables from
continuous miners and connected to a transfonner; one was not labeled to identify the equipment
whose trailing cable was attached. 15 FMSHRC at 2584. The inspector issued a citation
alleging an S&S violation of section 75.601, based on his belief that there was a reasonable
likelihood that, if the wrong cathead were collllected to the transformer, an injury would result.
Id. at 2584-85; Jt. Ex. 2.
Peabody conceded both violations but contested the inspector's detennination that the
violations were S&S. The matter was heard by Judge Amchan.
The judge detennined that the only question at issue in evaluating the S&S nature of the
violations was whether the Secretary had established a reasonable likelihood of injury resulting
from the violations. 15 FMSHRC at 2579, 2585. Attempting to hannonize the test for a
"serious" violation under the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (1988)
("OSHAct"), with the Commission's S&S test, the judge construed U.S. Steel Mining Co., Inc., 6
FMSHRC 1573, 1574 (July 1984) ("U.S. Steel f'), as inconsistent with Cement Div., Nat'!
Gypsum Co., 3 FMSHRC 822, 825-26 (April 1981) and Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984). Id. at 2581-84.
With respect to the violation of section 75.701, the judge determined that, "unless the
record indicate[d] that the conditions cited do not pose the hazard to which the standard is
directed," injury is reasonably likely in the context of "nonnal mining conditions" because
"sooner or later, at this mine or at another, noncompliance with the standard will result in injury."
15 FMSHRC at 2583. The judge concluded that, because there was no evidence in the record
indicating that the cited conditions did not pose the hazards to which the standard was directed,
Peabody's violation of section 75.701 was S&S. Id

509

Applying the same analysis to the violation of section 75.601, the judge found that the
violation was S&S 11 [ e ]ven if injury [were] likely to occur only once every ten or twenty years."
15 FMSHRC at 2585. The judge also relied on his finding that this violation was factually
similar to an S&S violation of section 75.601 in US. Steel Mining Co. , 6 FMSHRC 1834
(August 1984) ("U.S. Steel II"). 15 FMSHRC at 258~.
The Commission directed review sua sponte of the judge's S&S determinations, granted
Peabody's petition for review, and allowed amicus curiae participation by twelve organizations.
II.
Disposition
Peabody argues that the judge applied an incorrect standard in determining whether its
violations of sections 75.701 and 75 .601 were S&S and that, in fact, the Mathies test had not
been modified by U.S. Steel I. It states that, in order to prove a violation S&S, the Secretary
must prove the existence of a "confluence of factors" necessary for injury to result and that the
Secretary failed to do so with respect to its violations. P. Br. at 11·14. Peabody asks the
Commission to reverse the judge's S&S determinations or, in the alternative, to remand for
application of Mathies. 2 . The Secretary agrees that the judge's analysis is inconsistent with
Commission precedent. He asserts, however, that he met his burden of proving the violations
S&S under Mathies and that application of Mathies by the Commission is appropriate. The
Secretary alternatively requests remand for a Mathies analysis by the judge. Sec. Br. at 16· 17.
The Mine Act sets forth a graduated enforcement scheme, including the designation of
violations as S&S (National Gypsum, 3 FMSHRC at 828); there is no comparable provision in
the less stringent OSHAct. See Allied Prod. Co. v. FMSHRC, 666 F.2d 890, 894 (5th Cir. 1982).
The Commission has determined that a violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. National Gypsum, 3 FMSHRC at
825-26. In Mathies, the Commission further explained:

In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: ( 1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard -· that is, a
measure of danger to safety·· contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.

2

The amici filed a joint brief generally supporting Peabody's position.

510

6 FMSHRC at 3-4. See also Austin Power, Inc. v. Secretary ofLabor, 861 F.2d 99, 103-04 (5th
Cir. 1988), ajfg 9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria).
We agree with the parties and the amici that the judge's analysis .of whether the violations
were S&S was inconsistent with longstanding Commission precedent. The judge erred in
looking to the test for a serious violation developed under the OSHAct; that law, unlike the
Commission's S&S test, does not require consideration of the likelihood of injury. Under the
OSHAct, the Secretary need only prove that an accident could result from a violation and that, if
an accident does occur, there would be a substantial probability of serious physical harm; the
Secretary need not prove the likelihood of an accident occurring. East Tex. Motor Freight, Inc.
v. OSHRC, 671 F.2d 845, 849 (5th Cir. 1982).
Moreover, the judge misconstrued US. Steel I. In that case, the Commission, in response
to an operator's argument that the seriousness of the violation should be evaluated on the basis of
conditions existing at the precise moment of an inspection, recognized that S&S determinations
were not limited to conditions existing at the time of citation. 6 FMSHRC at 1574. Rather, the
Commission held that evaluation of the reasonable likelihood of injury should be made assuming
continued normal mining operations. Id. The Commission did not suggest, however, that the
conditions in other mines or over extended periods were relevant. The judge also erred in
concluding that Peabody's violation of section 75.601 was S&S because he could not distinguish
the facts of this case from those in U.S. Steel II, in which the Commission found a violation of
section 75.601 to be S&S. 3 In cases decided under National Gypsum and Mathies, including U.S.
Steel I, S&S determinations have been based upon the particular facts surrounding the violation
in issue. E.g., Texasgulf, Inc., 10 FMSHRC 498, 500-01 (April 1988).

3

The facts of the two cases are not identical. U.S. Steel II involved a "keying system,"
which was deemed unreliable and which was frequently modified by miners. 6 FMSHRC at
1838.

511

Our dissenting colleague would affinn the judge's detennination that Peabody's violation
of section 75.601 was S&S because she finds that substantial evidence supports his decision and
because, like the judge, she finds the facts in this case to be similar to those in US. Steel II. To
the extent that she relies on a factual similarity between this case and US. Steel II, she errs. The
Commission's S&S detenninations are properly based upon the particular facts of record
underlying the violation in issue, not upon facts in other cases.4
The judge did not properly apply the Commission's S&S test. Accordingly, we vacate his
detenninations with respect to the two violations at issue, and remand for application of Mathies
consistent with Commission precedent. E.g., Energy West Mining Co., 15 FMSHRC 1836,
1839-40 (September 1993).

4

Commissioners Doyle and Holen believe that their dissenting colleague also errs in
citing Texasgulf, Inc., 10 FMSHRC at 503-04, and Michigan Wis. Pipe Line Co. v. F.P.C., 520
F.2d 84, 89 (D.C. Cir. 1975), to support her proposition that an S&S detennination can rest on
the facts of other cases. Slip op. at 8 n. l. The Commission's disposition in Texasgulf expressly
rested upon the particular facts of record considered under the Mathies test. In order to
emphasize the factual basis for its detennination that the violation at issue was not S&S, the
Commission compared that result with other cases where it found that violations under factually
similar, but not identical, circumstances were S&S: US. Steel Mining Co., 6 FMSHRC 1866,
1867-69 (August 1984); US. Steel Mining Co., 7 FMSHRC 1125, 1128-31 (August 1985); and
Youghiogheny & Ohio Coal Co. , 9 FMSHRC 673, 677-78 (April 1987). 10 FMSHRC at 503.
The Commission's statement in Texasgulfthat its conclusion was consistent with applicable
precedent referred to legal precedent. 10 FMSHRC at 500, 504.
In Michigan Wis. Pipe Line Co., the issue involved application of a pric~g "principle"
developed in an earlier case. 520 F .2d at 89. The court found that the .Principle could be applied
in subsequent proceedings, id., just as the Commission has applied Mathies. Contrary to our
dissenting colleague's assertion, the court did not ·conclude that the agency's decision could be
based upon the facts of the earlier case if the cases bore "something more than a modicum of
similarity." Slip op. at 8 n.1. Rather, the court found that a prerequisite to the application of the
principle was that the case "bear something more than a modicum of similarity to the case from
which the principle derives." 520 F.2d at 89. Further, the court criticized the agency for its
inappropriate reliance on the earlier case and remanded the matter for analysis of the evidence of
record . Id. at 90.

512

III.
Conclusion
1

For the foregoing reasons, we vacate the judge s decision and remand for further analysis
consistent with this opinion.

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

513

Jordan, Chairman, concurring in part and dissenting in part:
I agree with my colleagues that the judge's S&S finding with regard to Peabody's
violation of section 75.701 should be vacated and the matter remanded for application of
Mathies. With regard to Peabody's violation of section 76.601, however, I would affirm the
judge's S&S finding.
The judge found that there were two catheads attached to trailing cables from two
continuous miners. 15 FMSHRC at 2584. One of the continuous miners had been in the section
for "quite a while;" the other machine had been recently rebuilt and was to replace the older
equipment. Id. at 2585. The catheads plugged the trailing cables into a transformer. Id. at 2584.
The judge further found that one of the catheads was not marked to indicate the equipment to
which its trailing cable was attached. Id. The judge accepted that the cathead attached to the
trailing cable from the older continuous miner was dirtier than the cathead attached to the rebuilt
machine's trailing cable. Id. at 2585.
As noted by the judge, the parties' dispute centered around the reasonable likelihood of
injury, the third element of the S&S test set forth in Mathies Coal Co .. 6 FMSHRC 1 (January
1984). 15 FMSHRC at 2585. The MSHA inspector thought that there was a reasonable
likelihood that miners would confuse the catheads and energize the wrong piece of equipment,
thereby subjecting employees to electric shock or injury from a continuous miner's cutting head.
Id. In analyzing whether the Secretary had established the third Mathies criterion, the judge
rejected Peabody's argument that, since one cathead was labeled, miners could rely on a "process
of elimination" and therefore would be unlikely to confuse the catheads. Id. at 2586. Citing U.S.
Steel Mining Co., 6 FMSHRC 1838 n.4 ("U.S. Steel II"), the judge concluded that speculation
about the future behavior of miners did not negate the Secretary's proof of reasonable likelihood
of injury. 15 FMSHRC at 2586.
The judge acknowledged that in U.S. Steel 11, unlike the present case, the catheads could
not be differentiated on the basis of cleanliness. 15 FMSHRC at 2586. However, he declined to
distinguish U.S. Steel II on that basis, concluding that to do so would require him to "speculate
that an employee would in every situation make the logical connection between the appearance
of the cathead and its connection to the new or old mining machine." Id.
Based on the facts of record! I believe substantial evidence supports the judge's
conclusion that the Secretary established that the violation of section 75.601 was reasonably
likely to result in injury, and hence that the violation was S&S. I find the judge's conclusion

514

consistent with the Commission's resolution of the S&S question, based on similar facts, in US.
Steel Il. 1 Accordingly, I would affirm rather than remand this issue to the judge.

M ryL

1

Commissioners Doyle and Holen erroneously assert that my views "rest on the facts of
other cases." Slip op. at 5 n.4 . Like the judge, I rely on the facts of this case, and on precedent
from a prior Commission decision. While S&S determinations should be based on record facts,
the Commission also relies on "applicable precedent" in making S&S determinations. Texasgulf,
Inc., 10 FMSHRC 498, 503-04 (April 1988); see'also, e.g., Youghiogheny & Ohio Coal Co., 9
FMSHRC 673, 678 (April 1987) (citing as precedent U.S. Steel Mining Co., 7 FMSHRC 1125,
1130 (August 1985)). That the facts of U.S. Steel II are not "identical" with those in the present
case, slip op. at 4 n.3, is no impediment to reliance on U.S. Steel II as precedent here; it is
sufficient that the cases bear "something more.than a modicum of similarity" to each other.
Michigan Wisconsin Pipe Line Co. v. FP.C., 520 F.2d 84, 89 (D.C. Cir. 1975). I agree with the
judge's conclusion that they do.

515

Distribution

David R. Joest, Esq.
Peabody Coal Company
1951 Barrett Court
P.O. Box 1990
Henderson, KY 42420
Colleen Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Carl B. Boyd, Jr., Esq.
Meyer, Hutchinson, Haynes & Boyd
120 North Ingram Street
Henderson, KY 42420
Michael Duffy, Esq.
National Mining Association
1130 17th Street, N.W.
Washington, D.C. 20036
Administrative Law Judge Arthur J. Amchan
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

516

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

April 26, 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 94-73-M

v.

CONSTRUCTION MATERIALS
CORPORATION

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

ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988). On January 5, 1995, Chief Administrative Law Judge Paul
Merlin issued an Order of Default to Construction Materials Corporation ("Construction") for its
failure to answer the Secretary of Labor's proposal for assessment of civil penalty or the judge's
October 24, 1994, Order to Respondent to Show Cause. The judge assessed civil penalties of
$645.
In an April 7, 1995, letter to the Civil Penalty Compliance Office of the Department of
Labor's Mine Safety and Health Administration ("MSHA"), received by the Commission on
April 17, Construction states that it had responded to MSHA's enforcement actions in two letters
addressed to Judge Merlin, dated November 20, 1994, and January 10, 1995. In the November
20 letter, Construction requested reconsideration of the proposed penalty. In the January I 0
letter, Construction stated that it had timely responded to the show cause order by its November
20 letter, a copy of which it attached. The Commission received the January 10 letter, and its
attachment, on January 17.
The judge's jurisdiction over this case terminated when his default order was issued on
January 5, 1995. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be sought by filing
a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29
C.F.R. § 2700.70(a). Due to clerical oversight, the Commission did not act on the January 10
letter within the statutory period for considering requests for discretionary review. The judge's

517

default order became a final decision of the Commission 40 days after its issuance. 30 U.S.C.
§ 823(d)(l ).
Relief from a final Commission judgment or order is available to a party under Fed. R.
Civ. P. 60(b)(l) in circumstances such as mistake, inadvertence, or excusable neglect. 29 C.F.R.
§ 2700. l (b) (Federal Rules of Civil Procedure apply 11 so far as practicable11 in the absence of
applicable Commission rules); see, e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991).
On the basis of the present record, we are unable to evaluate the merits of Construction's
position. In the interests of justice, we reopen the proceeding, treat Construction's April 7 letter
as a late-filed petition for discretionary review requesting relief from a final Commis.sion
decision, and excuse its late filing. See, e.g., Kelley Trucking Co. , 8 FMSHRC 1867, 1868-69
(December 1986). We remand the matter to the judge, who shall determine whether final relief
from default is warranted. See Hickory Coal Co., 12 FMSHRC 120 I, 1202 (June 1990).

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

518

Distribution:
Christine Rodrigues
Construction Materials Corporation
810 Fish Road
Tiverton, RI 02878
Gail E. Glick, Esq.
Office of the Solicitor
U.S. Department of Labo
One Congress Street, 11th Floor
P.O. Box 8396
Boston, MA 02114
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

519

520

ADMINISTRATIVE LAW JUDGE DECISIONS

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

APR 3
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
MESHACH COAL COMPANY,
INCORPORATED,
Respondent

20006

1995

:

CIVIL PENALTY PROCEEDING

.
.

Docket No. KENT 94-436
A. C. No. 15-10274-03537

..
.•

Mine No. 1

DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

This case is before me pursuant to Commission Order dated
December s, 1994.
on December 7, 1994, I issued an order vacating the default
in this case an·d directing the Solicitor to advise whether there
had been a settlement in this matter and if so, to submit the
settlement motion. The operator advised .in its letter to the
commission seeking relief from the default that a settlement was
reached with a representative from MSHA.
The parties have now filed a joint motion to approve
settlement for the one violation in this case. A reduction in the
penalty from $2,000 to $500 is proposed. The citation in this case
was issued because the operator failed to take a valid dust sample
during a sampling cycle. The basis for the settlement is that the
operator is experiencing financial difficulties.
In addition, the
parties advise that the mine is closed.
I have reviewed the documentation and representations made
in this case, .and conclude that the proffered settlement is
appropriate under the criteria set forth in section llO(i) of the
Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that the operator PAY a penalty of $500 within
30 days of this decision.

=-~\~
Paul Merlin
Chief Administrative Law Judge

521

Distribution:
Donna E. Sonner, Esq., Office of the Solicitor, u. s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215
Mr. Vernon Morris, President, Meshach coal co., Inc., HC 81, Box
1532, Hinkle, KY 40953

/gl

522

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

APR

4 1995

UNITED STEELWORKERS OF
AMERICA ON BEHALF OF
LOCAL 5024,
Complainant

COMPENSATION PROCEEDING
Docket No. LAKE 94-614-CM

v.

White Pine Mine

COPPER RANGE COMPANY,
Respondent

SUMMARY DECISION
Before: Judge Maurer

STATEMENT OE THE CASE
This proceeding concerns a complaint filed by the United Steelworkers of America
(USWA), Local 5024, against the respondent pursuant to section 111 of the Federal Mine
Safety and Health Act of 1977, seeking compensation for its member miners employed at
the White Pine Mine who were allegedly idled by a section 103(k) order issued by MSHA
Inspector William Carlson at 12:30 p.rn., on May 11, 1994. The order, which did not
allege that the operator had violated any mandatory safety standards, stated as follows:
A mine fire was detected at 7:05 a.m., EST, in the area of 25/35
beltline (coordinates 23-G, 24-G & 23-H). All personnel have been
evacuated from the underground areas in the mine. This order prohibits reentry into underground areas until all have been checked for mine gases
and/or unsafe ground, and other unsafe conditions in the fire area.
The complainant asserts that as a result of this order, the miners on the first shift on
May 11, 1994, are entitled to compensation pursuant to the first sentence of section 111 of
the Act which states as follows:
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.

523

Procedurally, this case is presently before me upon cross-motions for summary
decision pursuant to Commission Rule 67, 29 C.F.R. § 2700.67. Both parties assure me
that there is no genuine issue as to any material fact and that this matter is ripe for
summary decision.

STIPULATIONS
The parties have stipulated to the pertinent facts as follows:

1. At about 7:05 a.m., Security was notified of smoke observed underground in the
area of 25 and 35 belt line. An evacuation alarm was immediately sounded by Security for
the Northeast Mine.

2. At 7:10 a.m., the evacuation alarm was sounded for the Southwest Mine B
Section.

3: At 7:30 a.m., the evacuation alarm was sounded to evacuate all Southwest Mine
personnel to the surface. No smoke had been observed in the Southwest section of the
mine at that time.

4. At 7:50 a.m., two mine rescue members were dispatched to Southwest Shaft to
check for gases.

5. By 8:00 a.m., all personnel had been evacuated and were accounted for.
Employees from day shift were either given additional training or were given work to do on
the surface.
6. At 8:45 a.m., smoke was observed south of C Section by mine rescue team
members.

7. At 8:50 a.m., the Mine Safety and Health Administration ("MSHA") office in
Marquette was contacted by telephone and given a report of the information available at
that time.
8 . At about 11 :30 a.m., the Company management made the decision to cease
operations until the problem could be corrected. Employees were notified at that time to
go home and that they would be notified when they could return to work. All employees
received at least four hours of pay pursuant to the Collective Bargaining Agreement for
"show-up pay" for May 11, 1994.

524

9. At 12:30 p.m., on May 11, 1994, MSHA Inspector William Carlson issued a
control order pursuant to section 103(k} of the Act. At the time the 103(k) order was
issued, al I employees had been evacuated from underground, operations suspended, and
the employees sent home until further notice. No employees were working in the area
affected by the 103(k) order.

ISSUE
The parties also agree that the only issue to be resolved is whether miners who are
voluntarily withdrawn from a working area because of a hazard against which a control
order is subsequently written are entitled to pay under section 111 of the Act.

DISCUSSION. FINDINGS. AND CONCLUSIONS
Both parties rely on Local Union 1261. District 22 UMWA v. Consolidation Coal
CQ..., 11 FMSHRC 160.9 (1989), aff'd sub noro. Local Union 1261 v. FMSHRC. 917 F.2d 42
(0.C. Cir. 1990). In th'at case, the primary issue that concerns us here was whether miners
are entitled to compensation under the first sentence of section 111 of the Act, ("shift
compensation"}, when the mine operator has voluntarily closed the mine for safety reasons
prior to the issuance of the section 103(k) control order that is later written by MSHA.
As here, once the control order was written, no miner could enter the mine nor
could mining activities resume until MSHA modified or terminated the order.
The Commission in Local Union 1261. 11 FMSHRC at 1613-14 held:
The meaning of the first [sentence] of section 111 is clear. If a specified
withdrawal order has been issued, "all miners working during the shift when
such order was issued who are idled by such order" are entitled to
compensation for the remainder of their shift. (Emphasis added}. . .. The
language is in nowise qualified.

*

*

*

*

*

Here, the preconditions for entitlement to shift compensation were
not met. At the time the order was issued, no miners were working nor had
they been since ... Consol had voluntarily withdrawn all miners in order to
guarantee their safety. Therefore, none of those for whom compensation is
claimed were "working during the shift when ... [the] order was issued."
. .. We therefore hold that the claimants, not having met these plainly stated
prerequisites, were not eligible to be compensated.

525

The Court of Appeals, on review, held that the Commission's interpretation of the
phrase "working during the shift," to mean that miners must be actually working when the
control order issues was a reasonable one. Local Union 1261. 917 F.2d at 47.
The Commission, in their decision, further rationalized that:
Apart from the plain wording of the statute, there are also practical
considerations. A statute should not be construed in a way that is foreign to
common sense or its legislative purpose. Sutherland Statutory Construction
§§ 45.09, 45.12 (4th ed. 1985). As discussed, the Mine Act involves a
balancing of the interests of mine operators, and miners, with safety being
the preeminent concern. Section 2 of the Mine Act specifies at the outset
that "the first priority and concern of all in the coal or other mining industry
must be the health and safety of its most precious resource - the miner," and
section 2(e) adds that "the operators of such mines with the assistance of the
miners have the primary responsibility to prevent the existence of [unsafe
and unhealthful] conditions and practices in such mines." The Mine Act was
not intended to remove from an operator the right to withdraw miners from a
mine for safety reasons. While MSHA has the authority to order such
withdrawal, it does not have that power exclusively.

•

•

•

•

•

Thus, apart from the fact that no miners were present in the mine
when the MSHA closure order was issued, it is apparent that the safety first
edict of section 2 was observed conscientiously by the mine operator here
and that it would be a departure from the clear intent and purpose of the
Mine Act to penalize the operator for voluntarily idling miners for their own
protection. To impose such liability could conceivably encourage less
conscientious operators in similar circumstances to continue production, at
risk to the miners, until the MSHA inspectors arrived to issue a control order
idling the miners. We do not believe that the Mine Act was intended to
stifle such safety conscious actions by operators, as Consol took here.
[footnote omitted].
·
The purpose and scope of shift compensation can also be determined
by another important concern expressed by Congress in adopting section
111 in its specific terms: insulating the mine inspector from any
repercussions that might arise from his. withdrawing miners and temporarily
depriving them of their livelihood. A key passage from the Report of the

526

Senate Committee setting forth the rationale for the miners' compensation
provision concludes by stating, "(t]his provision will also remove any
possible inhibition of the inspector in the issuance of closure orders." Leg.
Hist. at 635. This convinces us that Congress intended shift compensation
rights to arise only when the physical removal of miners is effectuated by the
inspector himself so that the inspector in carrying out his enforcement duties
is not inhibited or distracted by workplace considerations wholly extraneous
to the protection of miners.
11 FMSHRC at 1614-15
It thus would appear that the second section of the Commission's Local Union 1261
case contains the rule of the case as well as the Commission's rationale for so holding. It
also appears to be compelling precedent for deciding the instant matter adversely to the
complainant.
The USWA, however, relies on Part Ill of the same case to urge the opposite result.
Under Part Ill, which begins at 11 FMSHRC 1615, the Commission states that they do not
disavow earlier precedent which held that:
(A] miner who has been previously withdrawn from a mine can still
be "idled" by a subsequently issued withdrawal order in the sense that the
miner is barred by the order from returning to work and that miners so ialed
may be entitled to compensation.
·
11 FMSHRC at 1615.
But the Commission continued on and also stated that to be entitled to first sentence
compensation, miners must also be "working during the shift" when the subject order was
issued, and just two pages earlier, the majority had said that meant that miners must
actually be working when the order is issued. In the instant case they were not.
The United States Court of Appeals for the D. C. Circuit concluding that the
Commission was "less than forthcoming in dealing with [Commission] precedent," pointed
out that the Commission's majority had focused on the words "working during the shift" in
the first sentence of section 111 and had concluded that these words meant "actually
working" when the control order issued, rather than "scheduled to work". Local Union
1.2..6.L 917 F.2d at 45.
The court also agreed with the dissenting Commissioners that the majority had
departed from the reasoning and result of Peabody Coal Co .. 1 FMSHRC 1785 (1979), and
had therefore effectively overruled that decision. In the earlier Peabody Coal case, the
Commission had expressly rejected the operator's argument that the Mine Act provides first
sentence compensation only for miners actually at work when a withdrawal order issues.
Local Unjon 1261. 917 F.2d at 46-47.

52 7

In the final analysis, the court noted that the word "working" can indeed mean "onthe-job in the mine," and although they disagreed that the Commissions's position was the
only permissible interpretation, they did find that "[b]y attributing that meaning to section
111 's first prescription, the Commission reasonably maintains that it is advancing the
overriding mine safety aim of Congress." Local Union 1261. 917 F.2d at 47.
Accordingly, in my opinion, the stipulated facts of this case, as they relate to first
sentence compensation under section 111 of the Mine Act are subject to the controlling
precedent of the legal conclusions and the rule of law announced by the majority in J..Qca1
Union 1261. District 22 UMWA v. Consolidation Coal Company, cited .s.uma and affirmed
by the D.C. Circuit Court of Appeals. I am bound to follow this clearly applicable
Commission precedent.
In view of the foregoing, I conclude and find that the miners are not entitled to shift
compensation because of the issuance of the 103(k) order. Accordingly, the respondent's
Motion for Summary Decision is GRANTED, and the complaint for compensation is
DISMISSED.

aurer
in' trative law Judge
Distribution:
Harry Tuggle, Safety and Health Specialist, Health, Safety, and Environment Department,
United Steelworkers of America, Five Gateway Center, Pittsburgh, PA 15222 (Certified
Mail)
Ralph B. Sievwright, Esq., Twitty, Sievwright & Mills, 2702 North Third Street, Suite 4007,
Phoenix, AZ 85004-1142 (Certified Mail)
dcp

528

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

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 94-333
A.C. No. 36-06967-03832

v.
Tanoma Mine
TANOMA MINING COMPANY,
Respondent

DECISION
Appearances:

Susan M . Jordan, Esq., Office of the Solicitor, U.S. Department of
Labor, Philadelphia, Pennsylvania, for the Petitioner;
Joseph A. Yuhas, Esq., Barnesboro, Pennsylvania, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil penalty filed by the
petitioner against the respondent pursuant to section 11 O(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 820(a) seeking a civil penalty assessment of $3,000 for an
alleged violation of mandatory safety standard 30 C.F.R. § 75.325(b). A hearing was held
in Indiana, Pennsylvania, and the parties filed posthearing briefs which I have considered
in my adjudication of this matter.

The issues presented in this proceeding are (1) whether the condition or practice
cited by the inspector constituted a violation of the cited mandatory safety standard,
(2) whether the violation was "significant and substantial," (3) whether the violation
resulted from the respondent's "unwarrantable failure" to comply with the cited standard,
and (4) the appropriate civil penalty to be assessed for the violation, taking into account
the statutory civi I penalty criteria found in section 11 O(i} of the Act. Additional issues
raised by the parties are identified and disposed of in the course of this decisio~.

529

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 .et SfQ.
2. Commission Rules, 29 C.F .R. § 2700.1,

mSfil:l.

3. Mandatory safety standard 30 C.F.R. § 75.325(b).
Stipulations
The parties stipulated to the following (Exhibit G-8):
1.
The Tanoma Mine is owned and operated by the respondent, and it is
subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977.
2.
The presiding Administrative Law Judge has jurisdiction over the proceeding
pursuant to section 105 of the Act.
3.
Section 104(d)(2) "S&S" Order No. 3955721, and its two modifications and
termination were properly served by a duly authorized representative of the Secretary of
Labor upon an agent of the respondent at the dates, times, and places stated therein, and
may be admitted into evidence for the purpose of establishing their issuance.
4.
The parties stipulate to the authenticity of their exhibits but not to the
relevance or the truth of the matters asserted therein.

5.

The alleged violation was abated immediately after issuance of the order.

6.
The total annua.1production of the Tanoma Mine is approximately
600,000 tons of coal, making it a medium-sized mine. The respondent, Tanoma
Mining Company, Inc., is considered a small-sized operator.
7.
The computer printout (Exhibit G-7), reflecting the respondent's history of
violations is an authentic copy and may be admitted as a business record of the mine
Safety and Health Administration.
8.
Tanoma Mine had a history of 653 assessed violations in the 24-month
period from October 12, 1991 to October 12, 1993.
9.
The imposition of the proposed civil penalty will have no effect on the
respondent's ability to remain in business.

5 30

10.
There was no intervening clean inspection between Order No. 3955721 and
previously issued section 104(d)(1) citations or orders.
11.
The check that was part of the permanent stopping line in the first crosscut
between L1 and L2 had been taken down by the respondent to facilitate the transportation
of coal to the belt feeder.
Coal had been mine in L3 during the midnight shift on October 12, 1993
12.
while the check was down.
13.
There was not sufficient air movement in the crosscut between L1 and L2 on
October 12, 1993 to turn the vanes of the anemometer at the time the MSHA inspector
took his reading.
14.
There was methane in the amount of 0.1 percent detected in the last open
crosscut between L1 and L2 on October 12, 1993.
15.
On October 12, 1993, Tanoma Mine was on a 10-day section 103(i) spot
inspection program for methane liberation over 500,000 cubic feet per 24-hour period.
Discussion
Section 104(d)(2) "S&S" Order No. 3955721, issued at 10:05 a.m., on October 12,
1993, cites an alleged violation of 30 C.F.R. § 75.325(b), and the cited condition or
practice is described as follows:
When checked with an approved annometer (sk) the air in the
last open crosscut located between L1 and L2 entries could not be
measured due to the lack of air. The air in the last open crosscut could
not be measured with an annometer (sk) due to the next crosscut outby
being open. Evidence in the form of tracks and a discussion with the
mine foreman indicate the second crosscut back had been open to
accommodate transportation of coal on the previous shift. The section .
was not producing coal on this shift, and when checked the methane in
the last open was 0.1 ch4. This condition was present in the main C, left
side section 007. The faces of L1 and l2 'entries were in approximately
10 feet.

531

Petitioner's Testimony and Evidence
MSHA Inspector Lewis E. Kish testified that be has served in that capacity for
16 years and he described his duties and training, including 8 years of mining experience
in private industry (Tr. 17-20). He confirmed that he inspected the mine on October 12,
1993, and issued the violation in question because he found an insufficient amount of air
in the last open crosscut in violation of mandatory safety section 75.325(b) (Exhibit G-1 ,
Tr. 21-23). He reviewed a map of the Main C mine area and confirmed that it accurately
depicted the development of the section on the day of his inspection (Exhibit G-2;
r. 24-25).
Mr. Kish stated that he inspected the faces on the right side of the section and
then proceeded to inspect across the faces of the left side and took an air reading in the
last open crosscut, and he marked the location between the L1 and L2 entries with a red
"X" on the map [fr. 27). He stated that he used an approved and calibrated band held
anemometer that measures the velocity of air passing through the moveable vanes of
the instrument but he obtained no reading because the velocity of air was less than
50 revolutions per minute and the vanes would not turn. He took the measurement at
the last cut-through in the line of pillars where permanent stoppings were installed
between the intake and return air (Tr. 28).
Mr. Kish stated that he informed foreman Ed Stine, who was with him, that the
air movement was not sufficient to turn the anemometer in the last open crosscut, and
Mr. Stine stated that he knew there was no air in the last open crosscut because a curtain
was down in the next crosscut outby and that this was normal because coal was hauled
through the crosscut (Tr. 29).
Mr. Kish stated that he checked for methane at the same location where he made
bis air test and found one-tenth of one percent (Tr. 30). He then informed Mr. Stine that he
would issue an order, and they proceeded to the area where the curtain was down and he
marked the location with a black circle on the map (Tr. 30). He observed a check curtain
that appeared to have been purposely placed against the left rib and he observed
equipment tracks through that crosscut (fr. 31 ). He further stated as fol lows at (Tr. 31-32):

A. Mr. Stine told me that this was a normal procedure for them to run
coal through this crosscut, that they had 'been doing it rather than
installing a run through check curtain, which is a curtain installed with
slits in it to permit travel of equipment through this area without
adversely effecting the ventilation.

Q. Did Mr. Stine indicate to you at all when coal had last been mined
or run through there?

532

A. Yes, he indicated that coal had been run through that shift prior,
which would have been on the midnight shift.

Q. The midnight shift of October 12th?
A. Yes.
Mr. Kish stated that the check curtain was reinstalled within 2 to 3 minutes and he
took a methane test and found none present, and another check with his anemometer
indicated there was sufficient air in excess of 15,000 dm (Tr. 33). He confirmed that no
mining was going on while he was on the section, and that it was a maintenance shift.
However, mining would normally again resume on the afternoon second shift
(Tr. 34).
Mr. Kish confirmed that he took notes regarding the violation (Exhibit G-3), and that
he cited section 75.325(b), because it requires 9,000 cfm of air in the last open crosscut
regardless of whether the unit is in production or not. He explained why he believed that
his air reading was made in the last open crosscut (Tr. 35-36).
Mr. Kish stated .that Mr. Stine did not indicate to him that the location where he
checked the air and methane was not in the last open crosscut and the preshift ~xam
ination book indicated that the preshift examiner made an air reading at the last open
crosscut between the L 1 and l2 entries, as he did, and recorded 15, 120 cfm of air. Since
the location of the crosscut was shown as L 1 to L2, Mr. Kish assumed that was the correct
place to take the air readings (f r.38).
Mr. Kish stated that he reviewed the preshift and onshift mine examiner reports for
October 12, 1993, and the air readings on both reports for the last open crosscut is shown
as 15, 120 cfm (Exhibits G-5 and G-5). The mine examiner stated that these air readings
were taken at crosscuts L 1 and l2, and Mr. Kish believed that these air readings were for
the last open crosscut "because that's where the last open crosscut is located" and the
operator "would have no reason to take an air reading at that location if it was not the last
open crosscut" (Tr. 62). He stated that these air readings were taken between 5:00 and
6:00 a.m., and he was of the opinion that the check curtain was down at that time because
"once that machine was moved over to the right side, I see no reason why they would
have reinstalled it and taken it back down. It doesn't make sense" (Tr. 61-62).
On cross-examjnatjon. Mr. Kish referred to the mine map (Exhibit G-2), and stated
that for some purposes of the Mine Act, the last open crosscut extends from the R3 entry to
the L3 entry, and "that is the line of last open crosscut across, yes" (Tr. 72). For purposes
of the definition of "working place area inby the last open crosscut," that entire area would
be the last open crosscut (Tr. 72). The cited "last open crosscut" at issue in this case is a

533

particular location in that area that is given for an air measurement, and on the day the
order was issued there were two last open crosscuts for purposes of air measurement in the
main C section. The "gist" of the violation is that the last open crosscut on the left side did
not have 9,000 dm of air. In his opinion, the location for the air measurement was the
areas between the L1 and L2 entries (Tr. 73).
Mr. Kish stated that if the respondent's use of the check curtain in question to
ventilate the main C section was part of its approved ventilation plan there would still be a
violation of section 75.325(b) "because a statutory provision cannot be superseded with a
plan that will undermine that statutory provision" (Tr. 74). He confirmed that the location
of the last open crosscut for air measurement purposes can change when the miner is in
the L3 entry, and in that case, the last open crosscut would be between the L2 and L3
entries (Tr. 74).
Mr. Kish confirmed that there are two MMU (mechanized mining units) sections
shown on the mine map, and he identified them as the 001 and 007 that coincide with
the continuous mining machine. He believed this was the only mine area that had
two MMU's. He further stated that other mine sections were ventilated the same as the
main C section with a double split of air, but they were continuous haulage sections that
loaded on bridge conveyors and did not use shuttle cars (Tr. 77-78).
Mr. Kish stated that he did not know the volume of air passing thru the
6-1/2 x 19 foot cited crosscut area where he took his air reading and he did not check
the air direction because he did not have a chemical smoke tester with him. Although
he could have checked the air direction by emitting dust from his gloves, he did not do
so (Tr. 80). He stated that the L2 entry was a return, and confirmed that the two checks
located between the L2 and L3 entries outby the last open cross-cut as shown on the map
were in compliance with the ventilation plan (Tr. 82).
Mr. Kish confirmed that there is no requirement that 9,000 cfm's of air be maintained in the entire last open crosscut from R3 to L3, and that the applicable 9,000 cfm
pursuant to section 75.325{b), would only be at a specific location in that area (Tr. 89).
On further redirect, Mr. Kish confirmed that regulatory section 75.360(c){1 ), states
where the location of the last open crosscut is in relation to the taking of an air measurement during the preshift examination. The regulation states that the last open crosscut "is
the crosscut in the line pillars containing the permanent stoppings that separate intake air
courses and the return air courses." He identified this location as the area marked with an
"x" in the yellow area shown on map Exhibit G-2 (Tr. 92).
Mr. Kish testified about alternate methods of ventilating the face areas, and he stated
that the air passing through the last open crosscut between L1 and L2 was insufficient, but

534

he did not know if there was positive air movement (Tr. 93-98). He stated that in the split
system of ventilation in use there are two crosscut locations where the air must be
measured and where 9,000 cubic feet of air must be maintained (Tr. 99).
On further cross-examination, Mr. Kish identified Exhibit R6, at pgs. 49 and 50, as
an MSHA "question and answer" document compiled to clarify and interpret the new
November, 1992 ventilation regulations. He stated that the document reflects that the
definition of "last open crosscut" for purposes of an air read ing was not changed. He
confirmed that there was such a definition in the old regulations but did not know where
that might have been (Tr. 101-103).
Inspector Kish confirmed that he initially issued the order as a non-"S&S" violation,
but modified his finding to "S&S" the following day after having "second thoughts about
the circumstances involved." He stated that "in hindsight, I figured that it was S&S, and I
also checked with the supervisor to see what his feelings were on it and he agreed with it"
(Tr. 40).
Mr. Kish stated that in making his "S&S" determination he considered the fact that
the mine was on a 1O:.day section 103(i) spot inspection cycle for at least 2 years because it
liberated 500,000 to a million cubic feet in a 24-hour period, and that productipn equipment would be passing through the cited area during normal production and he believed
this presented an ignition hazard because of the methane ac.c umulation (Tr. 40). He
further stated as follows at (Tr. 40-41):

Q. Did you believe that a methane accumulation in the explosive range
was reasonably likely?
A. Yes, I did.

Q. Why?
A. Because this air in the last open crosscut, there was a minimal
amount of air passing through this area.

*

*

*

*

*

*

*

A. Because of the equipment passing through that area, also.
Q. But my question right now is about the methane accumulation?
A. Okay. The methane accumulation - there was an accumulation of
one-tenth of one percent, which was diluted and carried out when we

535

did re-install the check the next crosscut outby. Therefore, I have to say
that an accumulation was possible to continue growing in that area had
there not been sufficient ventilation to render a dilutant.
Mr. Kish stated that the mine had a prior methane ignition in 1985. The
approximate methane liberation for the C main section at the time of inspection was
18,000, and although 0. 1 methane was detected, he believed it was likely that methane
would continue to accumulate because "this is a virginal area of the mine, there's nothing
mined out around it. So it would be assumable that you would either maintain that or
possibly go up in methane" (Tr. 45-46).
Mr. Kish believed that a methane ignition was reasonably likely to occur "if the
conditions were left go" because of equipment such as scoops, shuttle cars, roof bolters,
and continuous miners normally passed through and operated in the area. The scoops
were used as part of the clean-up cycle and when the metal bucket is pressurized against
the rock-based mine floor sparks can be created. Other potential ignition sources included
the mining machine and shuttle cars used in cleaning up and loading rock, permissibility
equipment faults that may occur, and roof sparks generated by the roof bolter bits when
drilling into the roo((Tr 47-57). Mr. Kish confirmed that in his experience, he was aware
of permissibility problems and violations connected with shuttle cars and scoops (Tr. 55,
58).
Mr. Kish stated that he never examined any of the mining equipment used in the
cited area prior to his inspection, but that a week later during an inspection he found
permissibility violations on the shuttle car, scoop, and roof bolter. He did not know
whether these violations existed during his October 12, 1993, inspection (Tr. 59). He
o the cited hazard, and they would likely be the
believed that three people were exposed t_
miner operator, helper, and shuttle car operator (Tr. 59-60).
Mr. Kish confirmed that at the time he issued the order he was aware that the mine
was on a 103(i) spot inspection cycle and that equipment traveled through to the L1 to L2
areas. When asked if his supervisor told him to modify the order to "S&S" the next day,
Mr. Kish responded "not that I'm aware of. I don't recall that" (Tr. 77). He explained his
initial non-"S&S" determination as follows at (Tr. 76):

A. Mainly because I wanted to be fair with the company. Basically, I
didn't have the time to investigate that - I really didn't know at that
time for positively what was really scrambled in my head at that time. If
anything, I was more lenient. Like I say, I don't like to wham the
company. But then on reviewing it again, it just was too overwhelming
for me to let go as a non S&S.

536

Mr. Kish stated that the explosive range of methane is 5 to 15 percent and that the
two MMU's on the cited section were liberating 18,000 cubic feet of mett"lane per 24-hour
period (Tr. 48). He confirmed that he cited no equipment permissibility violations on the
section at the time of his inspection and he believed that during the course of mining at the
L3 face there would not have been any problem with air quantities at th~ face. The L3 face
would have been the face that was mined on October 12, and even if one were to assume
that the check curtain was down, there would still be sufficient air to ventilate the L3
working face (Tr. 85).
Mr. Kish did not believe that any mining was taking place on the left side of the
section between 5:00 a.m. and 6:00 a.m., or that the air read ing at the crosscut between
L1 and L2, was over 15,000 cfm's because there was no reason to reinstall or take down
the curtain once it was installed, and Mr. Stine told him the curtain was taken down while
the area was mined (Tr. 121). Mr. Kish could not state that preshift examiner McGary
fabricated the air readings recorded in his report (Tr. 125).
Inspector Kish stated that there were a number of reasons for his unwarrantable
failure finding, including previously issued citations for having less than 9,000 cfm of air in
a last open crosscut, and foreman Stine's "directness" in telling him that it was "a normal
practice" to move the curtain to facilitate coal haulage through the area (Tr. 60). Mr. Kish
stated that it was not possible to maintain 9,000 cubic feet of air in the last opeh crosscut
when the air is short cutting through the outby crosscut (Tr. 61).
Mr. Kish confirmed that he was aware of the previously issued citations of section
75.325(b) at the time he issued his order "mainly through conversations with our
inspectors out in the field offices and overhearing them talk about them" (Tr. 65). He
reviewed MSHA's records for copies of the prior citations after he issued the order
(Exhibit G-6).
Mr. Kish confirmed that foreman Stine did not hesitate or in any way try to cover up
the fact that the curtain was removed while mining, and that he indicated that this was
normal loading procedure on the left side (Tr. 86). Mr. Kish stated that the prior citations
were "a large factor" in his unwarrantable failure determination, as well as his. belief that
Mr. Stine should have been aware that 9,000 dm's of air was required in the last open
crosscut (Tr. 87}. Mr. Kish confirmed that his belief in this regard was based on the
assumption that the L1 to L2 area was the last open crosscut (Tr. 87). He believed that
one prior citation not included among those in Exhibit G-6, was issued on the main C
section. He further stated that there is no prohibition against simultaneous preshift and
onshift examinations (Tr. 90}. He subsequently confirmed that prior Citation No. 3955590,
for only 5,832 dm of air thru the last open crQsscut between the belt and track entry was
issued on the left side of the C main section, but was subsequently modified to reflect it
was issued on the right side (Exhibit G-6; Tr. 100).

537

In response to bench questions,.Mr. Kish stated that based on the 15, 120 and
14,320, air readings recorded in the preshift report and examination book the ventilation
curtain in question would have had to been up. He confirmed that foreman Stine told him
that it was a practice to take the curtain down, and although this purported admission is
not recorded in his notes, he reiterated that Mr. Stine stated that it was a practice to take
the curtain down to allow the shuttle car to haul through the crosscut (Tr. 109-1 10).
Respondent's Testimony and Evidence
Walter McGary testified that he has 20 years of mining experience and has served
as a supervisor at the mine for the past 10 years and holds mine examiner and assistant
mine examiner's papers. He was the section foreman on the main C section on the third
shift from 11 :00 a.m., October 11, 1993, to 7:00 a.m., October 12, 1993. He confirmed
that the section map (Exhibit G-2), represents the section as he remembered it at that time
(Tr. 127).
Mr. McGary explained the mining that was taking place on October 12. After
completing mining,on L3 left side, the shuttle cars moved to the right side and the roof
bolter moved to the.'left side to bolt the l3 area, and the crew had problems "getting the
machines squared around." He returned to the right side to check on a rock that had rolled
out of the rib and hit one of the men. While he was being transported out, the~roof bolters
from the left side informed him that the bolter was stuck and could not be moved. The
check curtain was taken down to allow a shuttle car to go in and pull out the bolter, but
the shuttle car operator forgot to put the curtain back up, and by the time the bolter was
taken out of the area "it was quitting time and we man tripped out" (Tr. 128-130).
Mr. McGary confirmed that the check curtain was down when the l3 entry was
being mined, and he stated as follows at (Tr. 131 )·:

Q. And why did you mine with that check out?
A. In order to run two shuttle cars, we run one in the top side and one
on the bottom side and we took it down. Once we were done mining,
we come back out and we put that check back up to take care of our
areas.

Q. Are you permitted to mine in that fashion?
A. I never thought any other way. I was always mining that way. I've
mined that way with other Federal inspectors in there with me and there
was nothing said about it.

538

Q. The same way you would be mining on the L3 entry on that
particular day?
A. The same way I was mining on the left side, yes.
Mr. McGary stated that the production report for October 12, reflects that he was
loading coal in L3 from 2:05 to 3:30 a.m. He left the section at 6:30 a.m., and no one was
there when he left. Mr. Stine and Mr. Kish were never in the section during his shift
(Exhibit R-2; Tr. 133).
Mr. McGary stated that his preshift report for October 12, 1993, reflects that he
measured 15, 120 dm of air "on my last open crosscut which was taken between L1 and
L2" (Exhibit R-3, Tr. 134). He took the reading between 5:00 and 6:00 with an
anemometer and "the check was up down below" because it is always put back up when
mining is finished and when mining and the equipment moved from the left side to the
right side, the check curtain goes back up again (Tr. 134). He found no methane at the
faces or at the last open crosscut (Tr. 135).
On cross-examjnatjon, Mr. McGary explained the location of the bottom and top
crosscut routes, and he stated that the top crosscut route from L2 to L1 on map ~xhibit G-2,
passes through the crosscut where the curtain was down (Tr. 138). He stated that shuttle
car operator Andy Scott put the check curtain back up at 3:30 a.m. when the L3 mining
was completed and he knew this because his air reading in the last open crosscut showed
15, 120 dm of air. He did not personally see Mr. Scott put the curtain up, but he would
not have obtained the air reading if it were down. He confirmed that except for taking the
curtain down while mining is taking place, it always remains up so that adequate air
readings may be taken in the last open crosscut, L1 to L2 (Tr. 139-140).
Mr. McGary reiterated why the curtain was taken down during his shift, and he
explained the route of travel for the shuttle car that went to the L3 area to pull out the roof
bolter (Tr. 140-144).
Mr. McGary stated that when he took his air reading at crosscut L1 to L2, as
recorded in his preshift report, (Exhibit G-4), he considered that location to be the last
open crosscut, and he agreed that 9,000 cfm of air is required to be maintained in the
last open crosscut (Tr. 145). He denied that he may have taken his air reading in the
crosscut between L2 and L3 because there was equipment in that area (Tr. 145-147).
Mr. McGary stated that he only learned that the violation was a (d)(2) order "a
couple of weeks ago," and that the only discussion he had with Mr. Kish was after the
violation was issued when he told him that "I didn't think that I did anything wrong."
He further stated as fol lows at (Tr. 148-149):

539

Q. Do you recall telling Mr. Kish that the mine was going to install run
through checks on the section now?
A. No. I told Mr. Kish that the way we run that is so we wouldn't have
to operate with run through checks. But after that violation we had to
use run through checks or else not run through it after that. But prior to
that, we didn't have to use run through checks.

Q. You never brought to Mr. Kish's attention the allegations that the
shuttle car operator had put the check back up and then taken it back
down; did you?
A. I don't recall. I don't know if I did or I didn't. I honestly couldn't.
But I'm telling you that I did so what- would that have any bearing on
Mr. Kish?

Q. Thank yol:', sir. You've answered my question. Thank you.
Mr. McGary stated that shuttle car operator Scott never indicated to him that after
the check curtain had been reinstalled he took it down again. He stated that fv!r. Scott
"told me on the way going out that he forgot to put the check back up" (Tr. 150).
When asked in response to a further question by the petitioner's counsel if he ever
informed foreman Stine or anyone else that Mr. Scott forgot to put the check curtain
back up, Mr. McGary stated as follows at (Tr. 159):

A. No, I did not. There was so much confusion outside with him being
hurt and I was talking to the State inspector at the time and he asking me
questions. I never got around to him.
Thomas Naljsnick testified that he has been employed by the respondent for
12 years and has served as its chief mining engineer since 1988. His duties include the
submission of ventilation and roof control plans, and the drawing of mine maps and
projections. He holds a B.S. degree in mining engineering and is a professional engineer.
He is personally involved with the submission·of mine plans to MSHA and deals directly
with the District Two office in connection with the development and submission of
ventilation plans (Tr. 159-161 ).
Mr. Nalisnick identified Exhibit R-4 as a typical face print that "roughly" shows the
mining method used on the main C section on October 12, 1993, and he confirmed that
this was part of the approved plan in effect that day (Tr. 163). He believed that the mining
of the L3 entry, with the check curtain down one crosscut outby the last open crosscut

540

between the L1 and L2 entries presented no problem and that the plan permitted mining
and ventilating in that fashion (Tr. 163). He agreed that not all of the 15,000 dm of air
would travel up the L2 entry, through the crosscut L2 to L3, and to the working face, and
he explained the air direction and mining method (Tr. 164-166). He stated that the mining
method was safer because it eliminates the "run through" check curtains while still diluting
gases.
Mr. Nalisnick identified Exhibit R-5, as a letter dated December 13, 1993, to him
from MSHA D istrict Manager Joseph J. Garcia relating to ventilation drawing Exhibit R-4
(Tr. 167). Mr. Nalisnick stated that he spoke with MSHA's district ventilation
representative Zilko on December 8, 1993, and he explained as follows at (Tr. 167-168).
A. Actually, I talked to Mr. Zilko on December 8th. We had our first
conversation. He called me up and he was told that we had to
reeva luate our main C face ventilation with these check curtains and
that. And we discussed it and we both agreed that the best way is the
way we have it worded now since the main ventilation is more not
typical or there 's more variables in the main ventilati.on. You want to
have some flexibility in moving the canvases. You just can't make a
plan and say, these canvasses w ill be right here. It's not practical and I
think it's-.
Mr. Nalisnick believed that the mining conducted on the midnight shift on
October 12, and the ventilation method used at that time, was in compliance with the
ventilation plan and regulations and that the section was being ventilated (Tr. 186).
On cross-examination, Mr. Nalisnick stated that the L2 location on map Exhibit R-1
is a projected return air course and that the designated stoppings are for the purpose
of separating the intake from the return. He confirmed that it was necessary to take the
check curtain down across the crosscut between L1 and L2 so that a shuttle car would not
have to go through a run-through check. He confirmed that the purpose of the typical face
ventilation print, Exhibit R-4, is to minimize the need for run-through checks, but he
acknowledged that under the type of mining in question there was no need for run-through
checks (Tr. 190-192).
Mr. Nalisnick confirmed that L1 and L2 are working places, and that the ventilation
method used on the section at the time of the inspection was the safest way of doing it
(Tr. 193). Mr. Nalisnick stated as follows with respect to the December 13, 1993, letter
from Mr. Garcia (Exhibit R-5; )"r. 194-195):

5 41

Q. Looking at the letter that you received on the 13th of December, I
point you to the third paragraph. It's a one-sentence paragraph. Would
you read that sentence aloud, please?
A. The location of the stopping line is used to determine the quantity of
air in the last open crosscut. Reference 30 C.F.R. §§ 75.325(b) and
75.360(c)(1 ).

Q. And do you happen to know what these two sections of the
regulations are, sir?
A. 75.325(b) I know for sure and 360(c)(1) I'm not quite positive on that.

Q. Would it surprise you if I told you that the 75.325(c) points out the
need for maintaining - or 325(b), excuse me, points out the need for
maintaining 9,000 dm in the last open crosscut and the 75.360(c)(1)
designates where the last open crosscut is and that, in fact, on that map
there under 75.360(c)(1) it is between L1 and L2?
A. If you're going by the definitio:i of stopping lines, I would assume
that's where the law states its at.
Petitioner's Areuments
The petitioner argues that the cited section 75.325(b), requires at least 9,000 cubic
feet of air per minute at the last open crosscut in any pair or set of developing entries,
and that the term "last open crosscut," for purposes of air readings is defined by sections
75.360(c)(1) and 75.362(c)(l ), as "the crosscut in the line of pillars containing the
permanent stoppings that separate the intake air courses and the return air courses."
The petitioner asserts that the location where Inspector Kish took his air reading
between the L 1 and L2 entries was the last open crosscut and proper location for
determining compliance with section 75.325(b). In further support of its argument, the
petitioner points out that the respondent's preshift and onshift examination books showed
that air readings were taken at that same locati.on by section foreman McGary, that
Mr. McGary acknowledged that the last open crosscut between the L 1 and L2 entries was
the location where 9,000 cubic feet of air per minute was required, and that mine foreman
Stine, who was with Mr. Kish during his inspection, never indicated that the area between
the L1 and L2 entries was not the prior location for taking an air reading.

542

Respondent's Arguments
The respondent argues that the phrase "last open crosscut" has several meanings,
and for permissibility purposes, the entire width of the section from the R-3 entry to the
L3 entry could be considered the last open crosscut for purposes of defining a working
place area inby the last open crosscut. In the instant case, the respondent asserts that it is
undisputed that the "last open crosscut" for purposes of taking an air reading pursuant to
section 75.32S(b), is a point within that line of crosscuts, and that the critical issue is the
location of that point in the Main Cleft side at the time of the inspection on October 12,
1993.
The respondent takes the position that the L l to L2 crosscut area identified and
cited by the inspector js not necessarily the last open crosscut, and that for purposes of
an air measurement pursuant to section 75.325(b), the l2 to L3 area can also be the last
open crosscut. In support of this argument, the respondent relies on the inspector's
acknowledgment that it was possible for the last open crosscut location to change to the
area between L2 and L3 when the mining machine is in L3, and that the stopping line as
shown in Exhibit G-2, ·does not always separate the intake air courses from the return air
courses.
The respondent argues that Inspector Kish failed to consider the followiflg language
in the November 9, 1992, Ventilation Questions and Answers, published by MSHA to
interpret section 75.325 (Exhibit R-6): "Section 75.325(b) does not require that previously
accepted development systems be abandoned, does not require new or additional ventilation controls, and does not require additional or duplicative locations where 9,000 dm
must be maintained."
The respondent argues that this language clearly grand-fathers all existing, approved
ventilation plans that were in effect in August of 1992, when section 75.325, became
effective, and that it had a plan provision that became a part of its 1982 plan that was
updated in 1989 and is part of its currently approved plan. That provision, which depicts
the mining system in place in the Main C section on October 12, 1993, and shows checks
directing air to the working faces, states as follows (Exhibit R-4): "The location of these
checks may vary, so as to provide positive ventilation to all working places and minimize
the need for run through checks, depending on the place being mined."
The respondent maintains that it has always construed this plan provision to permit
it to take down the check curtain that was taken down while mining the L3 entry, and that
this was obviously the opinion of many other MSHA inspectors who have observed the

543

section foreman ventilate in this manner while mining the Main C section, and never
indicated that taking the curtain down to eliminate the use of a run through check was a
violation of the plan or section 75.325(b).
The respondent states that as a result of the order issued in this case, the aforementioned ventilation plan provision and mining procedure was revisited by its Chief
Engineer Nalisnick and MSHA district office ventilation representative Zilko, and the plan
provision was not changed and is still a part of its approved plan.
The respondent points out that even though foreman Stine and McGary read ily
admitted that the L3 entry would have been mined with the check removed, the
respondent was not cited for violating its plan because taking down the check while
mining is the L3 entry was not a plan violation. The respondent further points out that the
undisputed result of removing the check is that the majority of the air would move over
one crosscut and travel through the L2 to L3 crosscut rather than the L 1 to L2 crosscut,
and if that crosscut remained the last open crosscut for purposes of an air measurement
pursuant to section 75.325(b), it would never be in compliance while mining the L3 entry.
The respondent concludes that the proper location for the last open crosscut air reading
pursuant to section 7S.325(b), while the check is removed, is the L2 to L3 crosscut, and it
is undisputed that it had well over the required 9,000 cfm of air at that location.
Relying on the inspector's agreement that the L2 to L3 crosscut can be the last open
crosscut, and that the location of the last open crosscut for taking an air reading can
change, the respondent argues that if the check is up, the proper air reading location is the
L1 to l2 crosscut, and if the check is down, the proper air reading location is the l2 to L3
crosscut. The respondent concedes that its ventilation plan does not permit less than
9,000 cfm in the last open crosscut. However, it believes that its plan does.permit the
location for an air reading to move, and that MSHA recognized this fact in its previously
cited ventilation "questions and answers."
The respondent concludes that since the L2 to L3 area was the last open crosscut
while the check curtain was down, and that it had more than the required 9,000 cfm of air,
the petitioner has failed to prove a violation of section 75.325(b).
Findings and Conclusjons
Fact of Violation
The respondent is charged with a violation of mandatory safety standard 30 C.F.R.
§ 75.325(b), which provides as follows:

544

§ 75.325 Air guantjty.

•

•

•

•

•

•

*

(b) In bituminous and lignite mines, the quantity of air reaching
the last open crosscut of each set of entries or rooms on each working
section and the quantity of air reaching the intake end of a pillar line
shall be at least 9,000 cubic feet per minute unless a greater quantity is
required to be specified in the approved ventilation plan. This minimum
also applies to sections which are not operating but are capable of
producing coal by simply energizing the equipment on the section.
In Secretary of Labor v. Peabody Coal Company, 11 FMSHRC 4, (1989), the
Commission stated in regard to the term "last open crosscut" that:
Although ' last open crosscut' is not defined in the Mine Act or
the Secretary's regulations, the Act and regulations contain repeated
references to the term. [Footnote reference omitted.] As noted, a
'crosscut' is a passageway or opening driven across entries for
ventilation and haulage purposes. In general, the last open crosscut
.
thus refers to the last {most inby) open passageway between entries in a·
working section of a coal mine. [Footnote reference omitted.] The last
open crosscut "is an area rather than a point or line .... " Henry Clay
Mining Co,, 3 IBMA 360, 361 (1974).
Sections 75.360(c)(1 L and 75.362(c)(1) covering preshift and onshift examinations,
requires the persons conducting the examination to determine the volume of air at the
following areas if anyone is scheduled to work in the areas during the oncoming shift:
(1) In the last open crosscut of each set of entries or rooms on
each working section .... The last open crosscut is the crosscut in the
line of pillars containing the permanent stoppings that separate the
intake air courses and the return air courses.
The evidence establishes that Inspector Kish arrived at the Main C section at
approximately 9:00 a.m., on October 12, 1993, and accompanied by mine foreman
Edward Stine, started his inspection in the right side, taking air readings between
the R2 and R3 entries, and then proceeding to the left side where he continued across the
faces until he reached a location that he believed was the last open crosscut between the
L 1 and L2 entries. He marked the location with a red "X" on a mine sketch of the area
(Exhibit T-2), and his inspection notes reflect that he reached that location at 10:05 a.m.
(Exhibit G-3).

545

After reaching the cited crosscut location, Mr. Kish tested for methane with his
hand-held methane detector and found 0.1 percent methane. He then took an air reading
with an anemometer at that same location and could not get a reading because the
anemometer vanes would not turn. Since the anemometer was calibrated to measure a
minimum of 50 cubic feet of air per minute, Mr. Kish concluded that the air current was
less than that. His inspection notes state that "veins in anemometer will not tum. No air
movement." Under these circumstances, Mr. Kish cited a violation of section 75.325(b),
which requires that a minimum of 9,000 cubic feet of air per minute be maintained at the
last open crosscut of each set of entries or rooms on each working section and the intake
end of a pillar.
Mr. Kish concluded that the cited location was the last open crosscut as described
by the regulation because it was the last cut through in the line of pillars where permanent
stoppings were installed between the intake and return air (Tr. 28, 35-36). He also relied
on the preshift and onshift examination records of examiner Walt McGary who recorded
air readings at the L 1 and L2 crosscut, and he confirmed that mine foreman Stine did not
deny that the cited location was in fact the last open crosscut (Exhibits G-4, G-5; Tr. 36-37).
Mr. Kish further confirmed that preshift and onshift air readings are required to be taken at
the last open crosscut, and since Mr. McGary noted his readings at the L 1 and L2 crosscut,
he (Kish) assumed that this was the correct location to take the required air reading (Tr. 38) .

.

Mine foreman Stine did not testify in this case. Mine examiner Walter McGary,
who was the third shift section foreman on October 12, 1993, agreed that the mine map
sketch (Exhibit G-2), was an accurate representation of the section on that day. He also
confirmed his air reading at the "last open crosscut which was taken between L1 and L2"
(Tr. 134). He further referred to that location at L1 to L2 as the "last open crosscut"
(Tr. 139), and agreed that when he made his air reading he considered that location to be
the last open crosscut and that 9,000 cubic feet of air per minute was required at that
location (Tr. 144-145).
Respondent's chief mining engineer Thomas Nalisnick confirmed that locations L 1
and L2 were working places,. and he "assumed" that the cited location between L1 and L2
was the last open crosscut pursuant to section 75.360(c)(1), where 9,000 cubic feet of air
per minute must be maintained pursuant to the cited section 75.325(b) (Tr. 194-195).
After careful review and consideration of all of the credible evidence and testimony
in this case, including the arguments advanced by the parties in support of their respective
positions, I conclude that the petitioner's position is correct and that its credible testimony
and evidence supports a violation of section 75.325(b).

5 46

As noted earlier, section 75.325(b} requires a mine operator to maintain at least
9,000 cubic feet of air per minute at the last open crosscut of a working section. This
minimum amount of air quantity is required even though the section is not operating but is
capable of coal production by simply energizing the equipment. In this case, even though
the section was not in production at the time of the inspection, it was in a "productionready" mode within the language of the regulation that clearly applies in this case.
Having viewed Inspector Kish in the course of his testimony, and considering his
16 years of inspector experience and 8 years of experience in the private coal mining
sector, including employment as a state certified mine examiner and assistant mine
foreman, I find him to be a credible witness with respect to the interpretation and
application of the requirements found in section 75.325{b).
It appears to be undisputed in this case that the lack of perceptible air movement
at the cited crosscut location was the result of a ventilation curtain located outby being
taken down to allow for shuttle cars to l_Tlove through the crosscut. The curtain was not
re-installed at the end of the production shift, but the air was immediately restored by
re-hanging the curtain to abate the v iolation on the ensuing maintenance shift.
The critical issue here is whether or not Inspector Kish took his supporting air
reading at the proper crosscut location where 9,000 cfm of air was required to be maintained. For compliance purposes pursuant to section 75.325(b), the definition of the "last
open crosscut" location for air readings by the preshift and onshift mine examiners to
insure at least 9,000 dm of air at that location is found in sections 75.360(c)(1) and
75.362{c){1 ), which define the term "last open crosscut" as "the crosscut in the line of
pillars containing the permanent stoppings that separate the intake air courses and the
return air courses."
Inspector Kish was most specific in pin-pointing and defining the location of the
"last open crosscut" area where he took his air reading and where he believed 9,000 cfm
of air was required to be maintained in order to comply with section 75.325{b). I find his
testimony to be credible with respect to the line of stoppings between the pillars located
betweei1 the L-1 and L-2 entries on the left side of the section separating the intake and
return air courses, and I conclude that his explanations are in accord with the aforementioned regulatory definition of "last open crosscut" for purposes of compliance with
section 75.325(b).
'
I also find support for Mr. Kish's determination in the testimony of mine examiner
McGary, including his examination reports, which support Mr. Kish's location of the L1
and L2 crosscut location, and Mr. Kish's unrebutted testimony that foreman Stine did not
object or voice any difference of opinion with respect to the proper place for taking an

547

air reading. I further find no credible or probative testimony by respondent's engineer
Nalisnick that persuades me that Inspector Kish was incorrect in his determination of the
critical "last open crosscut" issue in this case.
The respondent's reliance on its ventilation plan as a defense to the violation is
rejected. I also reject its "estoppel" theory that numerous MSHA inspectors approved
of its method of mining which resulted in the violation in this case. I have, however,
considered these arguments in my findings and conclusions regarding the inspector's
"unwarrantable failure" finding.
I conclude and find that the evidence adduced by the petitioner in this case
supports a violation of section 75.325(b), and the inspector's finding and citation in this
regard IS AFFIRMED.
Significant and Substantial Violation
A "significant and substantial" vio lation is described in section 104(d)(1) of the Mine
Act as a violation "of such nature as could significantly and substantially contribute to the
cause and effect of a toal or other mine safety or health hazard." 30 C.F.R. § 814(d)(1). A
violation is properly designated significant and substantial, "if, based upon the particular
facts surrounding the violation there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature. Cement
Division. National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co. 6 FMSHRC 1, 3-4 (January 1984), the Commission explained its
interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum the
Secretary of Labor must prove: (1) the underlying violation
of a mandatory safety standard; (2) a discrete safety hazard-that is,
a measure of danger to safety-contributed to be 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 Mjnine Company. Inc,, 7 FMSHRC 1125, 1129, the
Commission stated further as fol lows:
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 w ill result in an event in which there

5 48

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 contri butjon of a violation to the cause and effect of a
hazard that must be significant and substantial. U.S. Steel Mining Company.
~ 6 FMSHRC 1866, 1868 {August 1984); U.S. Steel Mining Co,, Inc,,
6 FMSHRC 1573, 1574-75 Ouly 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 (Apri l 1988);
Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December 1987). Further, any
determination of the sign ificant nature of a violation must be made in the context of
continued normal mining operations.
Inspector Kish initially determined that it was unlikely that the violation would
result in an injury or illness, or any lost workdays, and he concluded that the violation was
non-"S&S. " However, " in hindsight" and after having "second thoughts about the
circumstances involv~d, " he modified his finding to 11S&S" the next day after consulting
with his supervi sor who agreed with his re-evaluation.
In making his revised "S&S" determination, Mr. Kish stated that he considered the
fact that the mine was on a 10-day 103(i) spot inspection cycle because of methane
liberation, and that the equipment passing through the cited area presented an ignition
hazard because of methane accumulation. He admitted that he was aware of these facts
when he made his initial non-"S&S" finding, and denied that his supervisor ordered him
to modify his finding to "S&S." He commented that he was trying to be fair w ith the
respondent, but did not have time to investigate "what was really scrambled in my head at
that time." After reflection, he concluded that "it was too overwhelming for me to let go as
a non-"S&S."
Confirming the fact that he detected only 0.1 percent methane at the cited crosscut,
and that the main C section was liberating an estimated 18,000 cubic feet of methane at
the time of his inspection, Mr. Kish pointed out that the methane he detected was diluted
and carried out after the check curtain in question was re-installed .
·
Mr. Kish expressed concern that with the check curtain down during the resumption
of mining, there would be insufficient ventilation at the cited crosscut areas to dilute any
accumulated methane. Since that location was in a virgin coal area, with little mining
around it, he believed that in the normal course of mining, methane would continue to
accumulate in the absence of ventilation, and that a methane ignition was reasonably likely
because of the potential ignition sources from the scoop, bolter and continuous miner that
would be operating in the cited area once normal mining operations were continued. He
5 49

believed that an equipment permissibility problem or sparks from the scoop bucket striking
the mine floor, or from the ·roof bolter drilling into the roof, could spark a methane
ignition, and that the scoop, miner, and roof bolter operators would be at risk and exposed
to a methane explosion hazard.
The petitioner argues that a violation of section 75.325(b) has been established, and
that the safety hazard contributed to was a methane accumulation and ignition, and that a
methane accumulation in an active working place where potential ignition sources exist
present a "measure of danger" to the safety of miners.
The petitioner asserts that there was a reasonable likelihood that methane would
have accumulated and become ign ited had the cond ition continued to exist. Conceding
that the methane level detected by the inspector was clearly not yet in the explosive range,
the petitioner find s it significant that methane was detected in measurable amounts, even
though no mining was taking place, and there was no measurable amount of air going
through the cited area to dilute the methane which was beginning to accumulate.
The petitioner·.further points out that the mine was on a 10-day section 103(i) spot
inspection cycle because of high methane production levels. The petitioner argues that
methane is unpredictable and can be encountered at any time, and that this concerned the
inspector because the main C section was "virgin" mining territory where meth~ne can be
more unpredictable and more likely. Under the circumstances, the petitioner concludes
that continued liberation and accumulation of methane was reasonably likely, and that the
respondent's chief engineer, Nalisnick, confirmed the inspector's concerns in this regard
(Tr. 192-193).
The petitioner asserts that a continuous miner, roof bolter, shuttle car, and scoop
were· on the left side of the section, and were the most likely potential ignition sources
working or traveling through the face areas because such equipment "can be faulty through
defects or problems with perm issibility." The petitioner suggests that sparks generated by
hot bits of the ripper type mining machine would have ignited any explosive amounts of
methane accumulations, particu larly in an area where a large rock had fallen and needed
to be broken up and removed before further mining could be done at the mouth of the L2
to L3 entries.
The petitioner further asserts that the roof bolting machine also presented a
potential ignition source while drilling and it points out that it was located in the last open
crosscut between the L2 and L3 entries when the violation was issued and was at the face
of the L3 entry at the end of the last shift.

550

The petitioner believes that the shuttle cars presented potential ignition sources in
the event of trailing cable defects and that the scoop buckets which cleaned up the
floors could create sparks which would ignite any methane. The petitioner believes that
all of the mining equipment on the section could have caused an ignition through a permissibility problem, and states that the inspector had observed permissibility defects in his
past experience. Although the inspector did not examine the equipment in question when
he issued the violation, he did so at a later time a~d found permissibility violations on the
roof bolter, scoop and a shuttle car.
The petitioner concludes that in the event of a methane ignition, it was reasonably
likely that there would have been very serious injuries to the miners on the section
resulting from an explosion or fire. Given the unpredictable and ·constant threat of
methane and the fact that there were potential ignition sources in the area, the petitioner
further concludes that the likelihood of a methane ignition was reasonable on the day of
the inspection, and that in the event of an explosion, serious injuries would have resulted.
The respondent points out that the inspector made an initial finding of non-"S&S,"
but modified the orde.r to "S&S" the next day after consulting his supervisor. The
respondent suggests that the inspector was told by his supervisor to modify the order to
"S&S," even though the supervisor had no opportunity to observe and evaluate the
conditions. Further, the respondent points out that the facts relied on by the inipector to
justify his modification of the order to "S&S" were known to him when he made his initial
non-"S&S" finding.
The respondent asserts that there is no evidence that a reasonably serious injury was
reasonably likely to occur during the course of normal mining operations. In support of
this conclusion, the respondent argues that only 0.1 percent methane was detected in the
cited crosscut, which was well below the combustible range of 5 to 15 percent, and that
no equipment was operating in the area at that time. The respondent concludes that there
was no possibility of methane being ignited by equipment, and that in the context of
continued mining operations, there was no reasonable likelihood of methane accumulating
to explosive levels and being ignited by equipment.
The respondent points out that the L2 to L3 area was not an area of concern, and
that there was sufficient air volume and no detectable methane in that area. The
respondent asserts that even though the inspector's anemometer vanes would not turn
when he measured the cited crosscut, he did not deny the existence of air movement and
chief engineer Nalisnick bel ieved that even with the check curtain down, crosscut L2 to L3
would have more than the minimum amount of air, and the other areas would receive
enough air to dilute any methane (Tr. 185-186).

551

The respondent maintains that the only requirement for air volume in the cited
crosscut area would be the amount sufficient to dilute and render harmless any liberated
methane, and concludes that the 0. 1 percent found by the inspector is ample evidence of
this.
The respondent asserts that under normal mining conditions, the check curtain is
replaced when mining is completed in the L3 entry, and that this results in the majority of
the air being directed again through the L1 to L2 crosscut and results in undetectable levels
of methane. The respondent suggests that the inspector observed "a worst case scenario"
because the check curtain was left down for as much as five hours after the shuttle car
operator forgot to replace it after it was taken down to facilitate the removal of an
inoperative roof bolter. Even though the check curtain remained down much longer than
normal during mining, the respondent asserts that methane had not accumulated to any
levels even approaching explosive ranges, and the facts show that methane was being
diluted and carried away, rather than accumulating.
The respondent argues that the inspector's assertion that the mine liberates between
500,000 and one-million cfm of methane in a 24-hour period does not support his S&S
finding because the c,ited main C section only liberated 18,000 dm in a 24-hour period
(Tr. 45), and liberates very little methane as compared to the overall mine.
The respondent believes that the inspector's permissibility violation concerns are
based on pure speculation, and it points out that no permissibility violations were cited,
and that in the course of continued mining operations, permissibility checks are made on a
weekly basis. Further, the respondent states that there is no evidence of any methane
ignitions originating at the continuous miner or at any place because of a scoop bucket
spark, and it views these events as speculative.
After careful review and consideration of all of the evidence adduced in this case,
including the arguments advanced by the parties, I conclude that the petitioner has the
better part of the argument and has established by a preponderance of the credible
evidence that the violation was significant and substantial (S&S).
I have concluded that a violation of section 75.325(b} has been established.
further conclude and find that the failure by the respondent to maintain the required air
ventilation at the cited crosscut location would reasonably likely result in a continued
build-up and accur:nulation of methane were mining to continue on the ensuing shift, and
that this condition presented a discrete hazard of a methane ignition, fire or explosion, and
exposed at least three miners who would be working at the cited location to these hazards.

55 2

Although it is true that the methane level of 0.1 percent detected by the inspector at
the cited crosscut was well below the explosive range, I find credible and unrebutted his
testimony that the area was a virgin coal area where methane emissions are unpredictable.
Without adequate ventilation to remove and/or dilute such methane, and in the presence
of potential ignition sources, such as scoops, roof bolters and continuous mining machines
operating during the normal mining cycle, I conclude and find it was reasonably likely that
a methane ignition, fire, and possibly an explosion, would occur. This is particularly true
in this case where it is unrebutted that the respondent routinely took down the check
curtain and someone forgot to re-insta l I it before leaving the area at the end of the shift.
Since the curtain was left down between shifts, it is just as likely as not that it may not be
re-installed before the oncoming shift resumed production, and any accumulation of
methane would stil l be present and would present a potentially serious ignition and
explosion hazard.
The respondent's reliance on the fact that the L2 to l3 area was not a problem, and
its suggestion that some of the air at that location would somehow find its way to the cited
crosscut area and provide adequate ventilation to sweep away any methane from that area
is rejected as speculative and unsubstantiated. I also reject the respondent's suggestion
that the 0.1 percent methane found by the inspector when he issued the violation proves
that there was sufficient air to dilute methane and that the air that was present complied
with the requirements of section 75.325(b). It is undisputed that the methane reading by
the inspector was taken when no mining was taking place, and I do not find his concern
that the lack of the minimum required ventilation would allow the methane to continue to
accumulate unabated to be unreasonable.
I further conclude and find that if a methane ignition were to occur and result in a
fire or explosion, it would be reasonably likely that the miners working in or around the
cited crosscut location would suffer injuries of a reasonably serious nature, including fatal
injuries, depending on the severity of those events. Under all of the aforementioned
circumstances, I conclude and find that the violation in question was significant and
substantial (S&S), and the inspector's finding in this regard IS AFFIRMED.
Unwarrantable Failure Violation
The governing definition of unwarrantable failure was explained in Zeigler Coal
Company. 7 IBMA 280 (1977), decided under. the 1969 Act, and it held, in pertinent part,
as follows at 295-96:
In light of the foregoing, we hold that 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
involved has failed to abate the conditions or practices constituting

5 53

such violation, conditions or practices the operator knew or should have
known existed or which it failed to abate because of a lack of due diligence,
or because of indifference or lack of reasonable care.
In several decisions concerning the interpretation and application of the term
"unwarrantable failure," the Commission further refined and explained this term, and
concluded that it means "aggravated conduct, constituting more than ordinary negligence,
by a mine operator in relation to a violation of the Act." Energy Mining Corporation.
9 FMSHRC 1997 (December 1987); Youghjogheny & Ohio Coal CoDJ.Qany, 9 FMSHRC
2007 (December 1987); Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 249
(March 1988). Referring to its prior holding in the Emery Mining case, the Commission
stated as follows in Youghiogheny & Ohio, at 9 FMSHRC 2010:
We stated that whereas negligence is conduct that it 'inadvertent,'
'thoughtless' or 'inattentive,' unwarrantable conduct is conduct that is
described as 'not justifiable' or 'inexcusable.' Only by construing
unwarrantable failure by a mine operator as aggravated conduct constituting
more than ordinary negligence, do unwarrantable failure sanctions assume
their intended'distinct place in the Act's enforcement scheme.
In Emery M ining, the Commission explained the meaning of the phrase
"unwarrantable failure" as follows at 9 FMSRHC 2001:
We first determine the ordinary meaning of the phrase
'unwarrantable failure.' 'Unwarrantable' is defined as 'not justifiable'
or 'inexcusable.' 'Failure" is defined as 'neglect or an assigned,
'expected, qr appropriate action.' Webster's Third New International
Dictionary <Unabridgedt 2514, 814 (1971) ('Webster's'). Comparatively,
negligence is the failure to use such care as a reasonably prudent
and careful person would use and is characterized by 'inadvertence,'
'thoughtless,' and 'inattention.' Black's Law Dictionary. 930-11 (5th ed.
1979). Conduct that is not justifiable and inexcusable is the result of
more than inadvertence, thoughtlessness, or inattention. ***
Although Inspector Kish alluded to "a number of reasons" in support of his
unwarrantable failure finding, he admitted that the prior citations were "a large factor"
in his determination. He also relied on his belief that foreman Stine should haYe been
aware that 9,000 dm of air was required in the last open crosscut, and Mr. Stine's candid
admission that check curtains are taken down as a normal and routine practice to permit
the passage of equipment.

5 54

With regard to Mr. Kish's belief that foreman Stine was aware of the requirement
for 9,000 dm of air at the last open crosscut, Mr. Kish qualified his testimony when he
stated that his belief was based on the assumption that the L1 and L2 area· was in fact the
last open crosscut.
With regard to the prior citations relied on by Mr. Kish, he admitted that at the time
he issued the order, he had no personal knowledge that they had in fact been issued and
was aware of them only through overhearing conversations by other field office inspectors.
More importantly, he admitted that he found records of these citations
he issued the
order in this case. Further, although Mr. Kish alluded to another prior citation that was
issued on the main C section, that citation was not produced and it is not in evidence in
this case. Mr. Kish also confirmed that one of the prior citations issued on the left side of
the C main section was later modified to cite the right side.

a

Although the issuance of prior violations of section 75.325(b) may be a relevant
factor in any "unwarrantable failure" determination, the weight to be ascribed to these
prior events must be based on credible, relevant, and probative facts. In the instant case,
it is undisputed that the lack of perceptible air movement at the cited crosscut in question
and the failure to maintain the required 9,000 dm of air at the cited crosscut were the
direct result of the taking down of the ventilation check curtain one crosscut Ol!tby.
However, there is no evidence that the failure to maintain 9,000 dm in connection with
the five prior violations relied on by the petitioner to support the inspector's unwarrantable
failure finding involved the deliberate removal of any ventilation check curtains. I take
note of the fact that all of these prior violations were issued as section 104(a) citations, with
"low" negligence findings in two instances and "moderate" negligence findings in three
instances. Further, two of the prior citations were terminated after the existing check
curtains were tightened, one was terminated after the existing check curtain was repaired,
one was terminated after a new curtain was apparently installed, and there is no indication
as to what was done to restore the air with respect to the remaining citation.
The record reflects that the five prior citations were issued in February, March,
April, and August 1993. I find it rather inconsistent that none of the inspectors who issued
these series of section 104(a) citations did not considered the later ones to constitute
"aggravated conduct" based on the issuance of the earlier ones.
Mr. Kish conceded that even if the respondent's use of the check curtain in question
to ventilate the main C section was part of its approved ventilation plan, the respondent
cannot rely on a plan provision that undermines regulatory section 75.325(b). However,
since the requirement for maintaining 9,000 dm of air at the last open crosscut depends
on that precise location at any given time, and given the definitional language found in
regulatory sections 75.360(c)(1) and 75.362(c){1 ), Inspector Kish's testimony that the
location of the last open crosscut can change from circumstance to circumstance, and

555

MSHA's additional references to regulatory sections 75.333(b)(1) and 75.371(f}, in
determining the locations for maintaining 9,000 dm of air, I find merit in the respondent's
suggestion that the requirements of section 75.325(b), are less than crystal clear.
I take note of the last sentence of the fol lowing explanatory answer stated on page
49 of MSHA's "Ventilation Questions and Answers," November 9, 1992, cited and relied
on by the respondent in this case (Exhibit R-6):
Section 75.325(b) does not require that previously accepted
development systems be abandoned, does not require new or additional
ventilation controls, and does not require additional or duplicative
locations where 9,000 dm must be maintained.
I also take note of the last sentence of the paragraph that follows on page 50, that
states as follows:
Where hybrid or unusual room development systems are used .QL
where confusion may exjst regard ing the examination location, the
m ine ventilation plan ma¥ specify a location under 75.371 (0.
(Emphasis added)
I conclude and find that respondent's simultaneous mining of the left and right areas
of the C main section presented a rather unusual mining situation at the time of the
inspection. Mr. Kish admitted as much when he confirmed that a split ventilation system
was in use, that the cited area was the only mine area where two mechanized mining units
were in use, and that the location of the last open crosscut for air measurement purposes
can change depending on the location of the continuous miner. Under these circumstances, I conclude and find that the respondent was not unreasonable in believing or
relying on MSHA's "Questions and Answer" advise that it need not abandon its previously
accepted mine development system and that additional ventilation controls would not be
required.
Citing the "reasons" set forth in section llB, page 7, of her posthearing brief,
petitioner's counsel contends, at page 16, that "the respondent was not permitted to
remove the ventilation curtain without some other ventilation control. 11 Aside from the
apparent recognition that the curtain could possibly be removed under certain conditions,
such as additional controls, I find nothing in the cited arguments that constitute any
"reasons" alluded to by counsel.
Section foreman McGary confirmed that 9,000 dm of air was required to be
maintained in the last open crosscut. He also readily admitted that the check curtain outby
the cited crosscut was taken down to facilitate the passage of equipment, and he explained

556

that it was taken down in this case by the shuttle care operator when he traveled through
the area to remove a roof bolting machine, and that he forgot to re-install it after the bolter
was removed and the working shift had ended.
·
Mr. McGary also confirmed that check curtains were routinely taken down when
the shuttle cars were moving through the curtain areas, and they were always re-hung
when mining was completed. He found nothing wrong with this practice, and stated that
he has always mined in this fashion while in the presence of other inspectors who did not
question the practice. He also believed that the mining procedure he was following was
proper in that it eliminated the need to use "run-through" check curtains. These types of
curtains apparently remain in place while equipment passes through them through
openings in the curtain.
Respondent's chief engineer Nalisnick, whose duties included the submission of
mine ventilation plans to MSHA, and personal contacts with MSHA's district ventilation
personnel, believed that the respondent's approved plan permitted mining with the outby
check curtain down one crosscut outby the cited crosscut in this case. He believed the
method of mining foUowed by Mr. McGary was safer because it eliminated the need for
"run- through" check curtains, provided more flexibility for the moving of curtains, and
was more practical given the variables in the main ventilation system.
With regard to Mr. Nalisnick's understanding that 9,000 cfm of air was required to
be maintained at the "last open crosscut" pursuant to section 75.325(b), and as determined
by section 75.360(c)(i), Mr. Nalisnick assumed that this is what is required if one
considered the definition of stopping lines.
In reply to the petitioner's assertio_n that the respondent's admission that the check
curtain would be down while mining the L entry indicates aggravated conduct or an
ignorance of the requirement for 9,000 cfm of air in the last open crosscut, the respondent
argues that the inspector did not issue a citation for a plan violation and that he was
obliged to do so if he believed that was the case. Respondent suggests that no ventilation
plan violation was issued because it was permitted to take the curtain down under its plan.
With respect to the petitioner's suggestion that foreman Stine did not known that the
regulation required 9,000 cfm of air in the last open crosscut, the respondent maintains
that there is no dispute as to the amount of air required, and that the only dispute is to the
·
location where the air is to be measured.
I find nothing in the respondent's ventilation plan (Exhibit R-4) that clearly and
directly states that ventilation check curtains may be taken down while mining is in
progress. The plan language relied on by the respondent states as follows:

55 7

The location of the checks may vary, so as to provide positive ventilation
to all working places and minimize the need for run through checks
depending on the place being mined.
The petitioner has not rebutted the fact that this plan provision was in effect at the
time the violation was issued. In addition, the petitioner has not rebutted Mr. Nalisnick 1 s
testimony that he spoke with a MSHA district ventilation representative after the violation
was issued and was advised that its use of ventilation check curtains needed to be
re-evaluated . Although Mr. Nalisnick conceded that there was no need for run-through
check curtains and undercuts the respondent's argument that the taking down of the
curtain was to preclude the use of run-through checks, the unrebutted testimony is that the
ventilation plan was not changed, and is indeed still in effect.
Although I have concluded that the plan language does not specifically authorize
the taking down of check curtains, it does state that the location of check curtains may vary
in order to minimize the need for run-through checks, depending on the place being
mined. When th is plan provision is read together with MSHA's "Question and Answer"
advise, I cannot conclude that the respondent 's belief that the taking down of
the curtain was not prohibited is implausible or incredible.
I further find that the December 13, 1993, letter to Mr. Nalisnick from MSHA's
district manager Joseph G. Garcia, which acknowledges in relevant part that "it has come
to our attention that there has been a misunderstanding concerning the installation of
check curtains" lends support to the respondent 's suggestion that it was reasonable for it
to conclude that it was authorized to take down the outby check curtain for the stated
reasons, and seriously undercuts the petitioner's "aggravated conduct" argument. I take
particular note of the fact that while the district manager's letter further stated that a revised
plan print statement was necessary to correct the condition to insure that the proper
stopping line location be used pursuant to sections 75.325(b) and 75.360(c)(1 ), there is no
evidence that this was done. In the absence of a revised plan provision, the Garcia letter
permits the respondent to continue following its approved face ventilation plan.
I conclude and find that the credible evidence in this case supports the respondent's
assertion that it had a good faith belief that it was in compliance with the requirements
of section 75.325(b}, and that a reasonable misµnderstanding existed with respect to the
proper use of its check curtains. Under the circumstances, and based on the aforementioned findings and conclusions, I cannot conclude that the petitioner has established
that the violation was the result of "aggravated conduct" amounting to an unwarrantable
failure. Accordingly, the section 104(d)(2) order IS MODIFIED to a section 104(a)
citation.

558

Although I have modified the order, it should be clear to the respondent that if it
continues to mine with a check curtain down, it again runs the risk of being out of
compliance if it results in less than 9,000 dm of air at the last open crosscut determined
by the prevailing facts at any particular point in time. In short, I reject the respondent's
reliance on its ventilation plan provision as a defense to the violation of section 75.325(b),
since the evidence in this case clearly establishes that it did not maintain 9,000 dm of air
at the cited crosscut location. I have, however, accepted as credible the respondent's
reliance on the plan, ~nd MSHA's recognition that there was a misunderstanding
concerning the use of check curtains, in mitigation of the respondent's negligence, and
supports its argument of no aggravated conduct amounting to an unwarrantable failure.
Size of Business and Effect of Civil Penalty Assessment on
the Respondent 's Ability to Continue in Business
The parties stipulated that the respondent is a small operator and that payment of
the civil penalty assessment for the violation in question will not adversely affect the
respondent's ability to continue in business. I adopt these stipulations as my findings on
these issues.
History of Prior Violations
MSHA's computer printout for the subject mine for the period October 12, 1991
through October 12, 1993, reflects that the respondent paid civil penalty assessments for
588 violations. For an operator of its size, I cannot conclude that the respondent has a
particularly good compliance record, particularly with respect to past ventilation and
permissibility violations. I have taken this into account in the penalty assessment that I
have made for the violation that has been affirmed.
Good Faith Comp I jance
The record reflects that the required air ventilation was restored within minutes of
the issuance of the order after Inspector Kish and foreman Stine re-installed the ventilation
curtain that had been taken down, and the order was terminated 15 minutes after it was
issued. I conclude and find that the cited condition was rapidly abated by the respondent
in good faith.
(jrayjty

Based on my "S&S" findings and conclusions, I conclude and find that the violation
that I have affirmed was serious.

559

Neeliaence
I conclude and find that the violation of section 75.325(b) was the result of the
respondent's failure to exercise reasonable care amounting to a moderate degree of
negligence.
Cjyjl Penalty Assessment
On the basis of the foregoing findings and conclusions, and taking into account the
civil penalty assessment criteria found in section 11 O(i) of the Act, I conclude and find that
a civil penalty assessment of $1,600 is reasonable and appropriate in this case.
ORDER
In view of the foregoing, IT IS ORDERED AS FOLLOWS:

1.

Section 104(d)(2) "S&S" Order No. 3955721,
October: 12, 1993, 30 C.F.R. 75.325(b), IS MODIFIED
to a section 104(a) "S&S" citation, and as modified,
IT IS AFFIRMED.

2.

The respondent IS ORDERED to pay a civil penalty
assessment in the amount of $1,600 for the violation in
question. Payment is to be made to MSHA within
thirty (30) days of the date of this decision and order, and
upon receipt of payment, this matter is dismissed.

~tfo~
Administrative Law Judge

Distribution:
Susan M. Jordan, Esq., Office of the Solicitor, U.'S. Department of Labor,
14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
Joseph A. Yuhas, Esq., 1809 Chestnut Avenue, Barnesboro, PA 15714 (Certified Mail)

/lh

560

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 6 1995
SECRETARY OF LABOR,
MINE AND SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 94-908
A.C. No. 15-08293-03578

v.

: Docket No. KENT 94-942
A.C. No. 15-08293-03580

R B Coal Company,
Respondent

RB No. 4 Mine
DECISION

Appearances:

Donna E. Sonner, Esq., Office of the Solicitor, U.S. Deparcment of
Labor, Nashville, Tennessee, for the Petitioner;
Susan C. Lawson, Esq., Harlan, Kentucky, for the Respondent.

Before:

Judge Feldman

These proceedings concern petitions for assessment of civil penalties filed by the
Secretary of Labor against the respondent pursuant to section 11 O(a) of the Federal Mine
Safety and Health Act of 1977 (the ActL 30 U.S.C. § 820(a). The petitions in these cases
sought to impose a total civil penalty of $42,320 for the alleged violations of the cited
mandatory safety standards.
These matters were called for hearing on March 14, 1995, in Pineville, Kentu~ky.
At the commencement of the hearing, the parti~s informed me they had reached a
settlement. Consequently, the parties moved for my approval of their agreement that
results in a significant reduction in total civil penalties from $42,320 to $5,690. The
settlement terms include vacating Imminent Danger Order No. 4235989 in Docket
No. KENT 94-980. The parties' agreement with respect to Docket No. KENT 94-942
includes modification of 104(d}(1) Citation No. 4239646 to a 104(a) citation as wel I as
modification of 104(d)(1) Order Nos. 4239645, 4239654, 4239655 and 4239657 to 104(a}
citations. These modifications lower the degree of negligence attributable to the
respondent for the cited violations from high to moderate. Finally, the agreement
contemplates the removal of the significant and substantial designation from modified
104(a) Citation No. 4239645 and Citation No. 4240176 in Docket No. KENT 94-942.

561

ORDER
I have considered the representations of counsel presented at the hearing in support
of the proposed agreement and I conclude that the settlement terms are appropriate under
the criteria set forth in section 11 O(i) of the Act, 30 U.S.C. § 820(i). Accordingly, the
parties• joint motion for the approval of settlement IS GRANTED and IT IS ORDERED that
the respondent pay a penalty of $5,690 within 30 days of the date of this order. Upon
timely receipt of payment, these cases ARE DISMISSED.

Jerold Feldman
Administrative Law Judge

Distribution:
Donna E. Sonner, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard
Jones Road, Suite B-201, Nashville, TN 37215 (Certified Mail)
Susan C. Lawson, Esq., Wheeler Building, Suite 301, 103 North First Street, P.O. Box 837,
Harlan, KY 40831 (Certified Mail)
/rb

562

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

APR 6 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
ENLOW FORK MIN ING COMPANY,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 94-400
A.C. No. 36-07416-03658
Docket No. PENN 94-259
A.C. No. 36-07416-03651
Enlow Fork Mine
DECISION

Appearances :

Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of
Labor, Philadelphia, Pennsylvania, for the Petitioner;
Elizabeth S. Chamberlin, Esq., Consolidation Inc.,
Pittsburgh, Pennsylvania, for the Respondent.

Before:

Judge Weisberger

These cases, consolidated for hearing, are before me based upon Petitions for
Assessment of Civil Penalty filed by the Secretary (Petitioner) alleging violations by Enlow
Fork Mining Company (Respondent) of 30 C.F.R. § 75.360(b)(1), 30 C.F.R. § 75.360(b)(c),
and 30 C.F.R. § 75.400. Pursuant to notice, the cases were heard in Steubenville, Ohio on
January 10, 11 and 12, 1995. Respondent filed a Post Hearing Brief on March 28, 1995.
Petitioner filed Proposed Findings of Fact and a Memorandum of Law on March 29, 1995.
Findings of Fact and Discussion
1.

Citation No. 3659960 and Order No. 3660021 (Docket No. PENN 94-400).
A.

Introduction
1.

Testimony of the Inspector

On November 15, 1993, MSHA Inspector Joseph Melvin Hardy inspected the B-3
Longwall Section of the Enlow Fork Mine. The section's tail drive, consisting of a gear box
fluid coupler and an electric motor, was located at the tailgate. The tail drive was covered
on top and also at the end farthest away from the headgate, and at the side next to the pan

563

line. The side closest the tailgate and the end next to the shields were not covered. After
each pass of the longwall shear, the shields were moved forward one at a time.
Hardy indicated that approximately 9:05 a.m., he observed an accumulation of float
coal dust around the legs of the shields, all the flat surfaces of the shields, and on the
diagonal lemniscates of shields numbered 148-152, which were the shields closest to the
tailgate. Hardy described coal dust that was black in color, and "very dry to the touch"
(Tr. 34) on the electrical boxes and control units of shields numbered 148-152. He said
that the amount of coal dust was more than normally seen on inspections.
Hardy indicated that he also saw loose coal scattered around the shields, and on the
gear case of the fluid coupler, and the drive motor. He also said that there were "heavy
accumulations" (Tr. 25) of float coal dust, hydraulic oil and coal, packed in and around the
gear case and surrounding areas. Hardy described the coal as saturated with hydraulic
gear oil. Hardy said that there was no evidence of water mixed with the oil. He said that
the material was loose on the top but packed at the bottom. Hardy said that 90 percent of
the housing of the fuel coupler was covered with float dust and oil, and 95 percent of the
entire gear box was covered with float dust and oil. He said that there was an
accumulation of hydraulic oil under the motor fluid coupler and gear box. He estimated
that the area of the accumulation was 4 feet by 10-15 feet. Hardy also observed rags
saturated with oil over the top of the fluid coupler. He also indicated that there was coal
packed on the floor to a height of 2 1/2 feet. Hardy said that the hydraulic oil is
combustible. According to Hardy, the coal being mined was part of the Pittsburgh Seam,
which he described as being highly violatile.
Hardy issued a section 104(d)(1) order alleging a violation of 30 C.F .R § 75.400
which provides, as pertinent, as follows: "Coal dust including float coal dust deposited on
rockdusted surfaces, loose coal, and other combustible materials, shall be cleaned up and
not be permitted to accumulate in active workings .... "
A preshift examination of the area was performed at 5:06 a.m. on November 15, but
none of the conditions testified to by Hardy were noted or reported. In this connection,
Hardy issued a section 104(d)( 1) citation alleging that an adequate examination had not
been performed in violation of 30 C.F.R. § 75.360(b)(3).
2. Testimony of Respondent's W-itnesses
Timothy C. Ferrell, a shield-man who worked the day shift on November 15,
testified that there was a normal amount of dust on the drive, and a normal accumulation
of loose coal between the legs of the shields. He indicated that there was oil on the toes of
the last three shields. He said that at about 8:30 a.m., he hosed the top of the tail drive,
and under the tail drive, and shields numbered 148-152. He said that there was a film of

564

oil that extended several inches around the torque converter breather which he washed
·
down.
Ferrell indicated that he did not notice any oily rags wedged on top of the hydraulic
coupler, or anywhere around the tailpiece. He said that after he washed the various pieces
of equipment, he did not see any dust or oil on top of the housing.
Ferrell indicated that when the cover was removed from the drive unit, he observed
coal and rock packed on the face and tailgate end of the gear box. He said that the material
was "mostly rock" (Tr. 326). He said the material was wet, but not oil soaked.
He indicated that no mining took place between the time he finished washing the
equipment at 8:30 a.m., arid 9:00 a.m.
Tim Keen, Respondent's Safety Inspector, was with Hardy on November 15. He
noted oil on top of water accumulations between the toes of the shields, and a film of oil
on the gear case and torque converter. Keen observed some dust in the rear of shields
numbered 148-152 between their legs. He said that he saw rock dust on the lemniscates,
but no coal dust.
Keen indicated that he did not consider any of the oil or coal that he observed to be
a hazard. He indicated that he could not recall seeing any oil soaked rags. He said that
when the cover of the tail drive was removed, he saw some coal, and a lot of rock dust
between the face plate and the end plate. He said that the material looked wet, but he did
not handle it. He did not consider that any of the conditions observed presented any fire
or explosion hazard. He indicated that Hardy had pointed out float coal dust mixed with
oil in the gear case.
William K. Stewart, was the longwall maintenance coordinator on November 15.
In essence, he indicated that he did not see the conditions observed by Hardy.
B.

Discussion

1.

Violation of 30 C.F.R. § 75.400

I note the conflict in the testimony between Hardy and Respondent's witnesses who
were present in the area in question at the time of the inspection on November 15,
regarding the existence of the conditions testified to by Hardy. I observed Hardy's
testimony and found him to be a credible witness. There is no evidence in the record of
any improper motive on the part of Hardy. (See, Texas Industry. Inc., 12 FMSHRC 235
February 1990 Uudge Melick). Importantly, Hardy's testimony finds support in notes taken
by him contemporaneously with the inspection (GX-3). In contrast, the testim9ny of
Respondents' witnesses as to conditions observed on the~ shift November 15, was

565

based upon their recollection of conditions they observed· more than a year prior to their
testimony. None of Respondent witnesses' proffered any contemporaneous written notes
to support their testimony.1 For these reasons, I accept Hardy's testimony and find that on
9:00 a.m., November 15, there existed accumulations of coal dust, loose coal, and oil, that
had not been cleaned up. I thus find that Respondent violated Section 75.400, .s..!.!Q@.
2. Violation of 30 C.F.R. § 75.360
In essence, Hardy opined that it defi nitely took more than a shift for the material to
have become packed on the gear box. He further indicated that the oi l under the floor of
the gear case was very obvious, and could be seen without bending down. Hardy said that
the coal mixed with the oi l on the drive motor was visible from the walkway. According to
Hardy, loose coal, dust, and oil were visible when he first entered the area at issue, and he
did not have to lift anything, or bend down to observe these conditions. He reasoned that
these conditions would had been observed, reported, and noted in the preshift
examination four hours prior to the time the conditions were cited.
William W. Young, worked the midnight to 8:00 a.m. shift on November 15, 1993.
He indicated that he started his preshift examination at the tailgate at 5:00 a.m., and
observed a film of oil on the toes of shields numbered 148-152. He indicated that he did
not see any float coal dust or loose coal between the shields on the lemniscates. Nor did
he see any layer of float coal in that area. According to Young, he did not see any
accumulation of oil soaked coal in and around the tailpiece, and did not see material
behind the gear box. He indicated that he did not see any oil soaked rags. He indicated
that he did not consider "the conditions around the tailpiece to be hazardous" (Tr. 236).
He also opined it does not take more than one shift for packed coal to be created.
According to Young, at 3:30 a.m., on November 15, he cleaned the light film of oil
that he had observed on the motor drive and gear box with a "degreaser", (Tr. 206) and he
also hosed off the motor, tensioning unit, and gear box. In a written statement prepared by
Young on November 16, he indicated that at 12:45 a.m., on November 15, he had
instructed a shield-man, Terry Pozum, to wash the oil film off the "toes of shields at the
tailgate and tailgate drive area". Both Posum and Raymond L. Touvell, another shieldman, who worked primarily at the headgate, testified to having washed shields numbered
148-152 and the tail drive, at various times during the night. Touvell indicated that the last
time he was at the tailgate, he did not see any hydraulic fluid covering the floor, and did

Section Foreman W illiam Young prepared a statement on November 16, 1993, setting
forth his actions relating to the cleaning of the area in the midnight shift November 15. It does
not set forth in any detail the conditions observed by him on the shift, with the exception of
some oil on the bottom mixed with water, and "oil film" on the toes of shields.
1

566

not see dry float dust covering the shield plates or the lemniscates. He also indicated that
there was no coal dust black in color and hydraulic oil on the gear case, fluid coupler or
drive motor. He stated that he also did not observe hydraulic oil on the cover of the drive
box, and did not notice material packed in the rear of the gear case.
I find Young 's testimony credible, based upon my observations of his demeanor,
that he did perform a preshift examination at approximately 5:00 a.m., in the area in
question on November 15. In essence, Hardy opined that the conditions that he observed
had existed four hours prior at the preshift examination, because the packed accumulations
definitely had not occurred in one shift. However, he did not elaborate upon the basis for
this conclusion. Coal dust is produced in the areas in question by the normal longwall
mining process. The section continued to produce coal subsequent to the preshift
examination, but there is no documentary evidence or eyewitness testimony of the number
of passes made by the shear between the preshift examination, and 9:00 a.m., when the
area was cited by Hardy. Touvell indicated that in general the shear makes six passes over
a three hour period, and Young estimated that the shear had made six passes between
5:00 a.m., and the end of the shift. The record does not convincingly establish when the
accumulations of oil o!:>served by Hardy occurred. Both the gear case and tensioning unit
are equipped with oil breathers which are designed to expel oil if pressure builds up in
these items. Oil can be expelled when the equipment is started and stopped. William K.
Stewart, the longwall maintenance coordinator, opined that if the belt "is shutting off and
on, you could have as much as a gallon (of oil) on top of the unit" (Tr. 361).
Based on this record, I conclude that it has not been established that it was more
likely than not that the accumulations observed by Hardy were in existence at the time of
Young's preshift examination. I thus find that it has not been established that Young's
examination was inadequate. I thus find that it has not been established that Respondent
violated Section 75.360(b}, .s.!J.Qia.
3. Unwarrantable Failure
According to Hardy, in essence, the conditions that he observed were obvious and
easily seen without even bending down. For the reason set forth above, I have concluded
that these conditions were not in existence at the time of the preshift examination. Hardy
indicated that he did not see anyone cleaning the accumulations when he made his
inspection. On the other hand, Ferrell, who testified later on at the hearing, stated that
when Hardy arrived at the tailpiece, "I believe I had a shovel and was cleaning the loose
coal out from underneath the drive motor" (Tr. 321 ). Hardy, who testified on rebuttal, did
not contradict this testimony of Ferrell.
Hardy indicated that, prior to the issuance of the citation and urder at issue, he had
discussed preshift procedures with various management officials. In the same connection,
MSHA Supervisory Inspector Robert W. Newhouse, testified that on October 7, 1993, he

56 7

discussed with management the basic elements of a preshift examination, and the proper
course of action to be taken when it is determined that a hazard exists . .He said they also
had a discussion about what constitutes a hazard. Newhouse stated that in the first quarter
of 1993, he discussed with Mine Management the need to clean accumulations.
Hardy indicated that on October 7, 1993, he met with mine management. He told
them that he was not satisfied with the cleanup including the areas in question.
I do not find this testimony not probative of the degree of Respondent's negligence
in allowing the specific materials at issue to have accumulated. Within this context, I find
that the level of Respondent's was ordinary, and did not reach the level of aggravated
conduct. (See, Emery Mining Corp., 9 FMSHRC 1997, 2203-2204 (1987). I thus find that
the violation found, herein, was not the result of Respondent's unwarrantable failure.

4. Significant and Substantial
A "significant and substantial" violation is described in section 104(d)(1) of the Mine
Act as a violation "d( such nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard." 30 C.F.R. § 814(d)(1). A
violation is properly designated significant and substantial "if, based upon the particular
facts surrounding the violation there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement
Division. National Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 Uanuary 1984), the Commission explained
its interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum the Secretary of Labor
must prove: (1) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard-that is, a measure of danger to 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)(1 ), it is

568

the contribution of a violation to the cause and effect of a hazard that must
be significant and substantial. U.S. Steel Minim~ Company. Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company. Inc., 6 FMSHRC
1573, 1574-75 Ouly 1984).
The critical element for analysis is whether the evidence establishes that there was a
reasonable likelihood of an injury producing event, ie, a fire or explosion contributed to by
the violation of Section 75.400, £.!Jl(a. According to Hardy, the materials that had
accumulated were combustible. Also, he noted the presence of ignition sources including
the bearings on the drive shaft and gear case, and a 4160 volt drive motor connected to the
drive case. However, the record does not establish that the physical condition of these or
other potential ignition sources would have made the event of ignition reasonably likely to
have occurred. The mine does liberate methane. However, there is no evidence that
methane was present in an explosive range. Nor is there evidence that liberation of
methane in explosive concentrations was reasonably likely to have occurred. According to
Hardy, there were rags over the top of the fluid coupler and dry coal dust on electrical
boxes. Although thes.e conditions contributed to the possibi I ity of an ignition, there is
insufficient evidence to conclude that such an event was reasonably likely to have
occurred. Hardy indicated that the gear box was very hot to touch and he could not keep
his hand on it. There is no evidence of the specific temperature of the gear case, especially
in relation to the flash point and autoignition temperature of the oils at issue. Hardy
opined that because the accumulations on the gear box were packed, the cooling effect of
air passing over the gear box would be impeded. He concluded that it was reasonably
likely that the temperature of the gear box would reach the flash point of the oil issue of
325 degrees, and reach the autoignition temperature of 650 degrees. However, he did not
provide any basis for these conclusions.
Stewart indicated that the gear box is cooled internally by water, and that this
cooling system runs constantly. He also indicated that he takes the temperature of the gear
box, and he has never seen it register a temperature of more than 197 degrees Fahrenheit.
Within the context of the above evidence, 1 find that it has not been established that
a fire or ignition was reasonably likely to have occurred as a consequence of.the
accumulation of materials noted by Hardy. I thus find that it has not been established that
the violation was significant and substantial (Se~, Mathies, supra: U.S. Steel, supra).
Taking into account the amount of the accumulations found by Hardy, and the
presence of shield-men regu larly working in the area, I find that should a fire or explosion
have occurred, these persons could have suffered serious injuries. 1 thus find that the
gravity of violation was relatively high. 1 find that a penalty of $2,000 is appropriate.

569

II.

Section 1Q4(d)(1) Order No. 3660375
(Docket No. PENN 94-400l and Section 104(a}
Citation No. 3660374. (Docket No. PENN 94-259).
A.

Petitioner's Evidence

In normal operations in the 2N belt entry, a scoop dumps coal on the feeder unit.
Coal is then transported to the crusher where is crushed. The coal then is moved to the
tailpiece and transported and dumped on the B-6 belt. In all these processes fine coal is
created which falls on the belt structures and the floor.
On December 8, 1993, Joseph F. Reid, an MSHA Inspector, inspected the 2N belt
feeder outby to the B-6 belt. He indicated that starting at the belt feeder, and extending
200 feet outby, there was an accumulation of dry black coal dust. Reid indicated that there
was dry loose coal on the mine floor, and very dry, fine, black float coal dust that was on
and around the belt feeder unit. He described a pile of fine float coal dust on the floor that
measured 4 feet by 16 feet, and 5 inches deep. Reid also observed a pyramid shaped pile
of coal dust that, at the deepest point, was 18 inches deep, and was 2 feet long, and 3 feet
wide. He said that the edge of this pile was under the belt, and was 6 inches removed
from the belt. Reid also observed coal dust on the cross members of the belt. He said
these accumulations were black and very dry. According to Reid, there was coal dust on
the belt structure that varied between an eighth of an inch to 2 inches deep. On direct
examination he termed some of these materials float coal dust, but on cross examination
indicated that the materials were a mixture of float coal and coal dust. Reid indicated that
he touched all the areas that he cited and that none of the cited areas were wet "to ·my
recollection". (Tr. 673). He also indicated that he examined the preshift examiner's
records which indicated that a preshift examination was made of the area in question
between 5 a.m. and 7 a.m., on December 8, and no hazards were noted.
Reid issued an order alleging a violation of Section 75.400 s.u.p,ra, and a citation
alleging a violation of 30 C.F.R. § 75.360(b)(1 ).
B.

Respondent's Evidence

Donald E. Watson, a safety supervisor, was with Reid during the inspection.
Watson testified that he did not find any accumulation of dust on the cross-members and
bed-rail of the belt structure that Reid wanted cleaned. He indicated that Reid also wanted
an 18-inch pile of float coal dust cleaned. Watson testified that the material was fine coal.
He said that only the top was dry, but the bottom was wet. He indicated that he did not
observe any float dust in the entry that was "distinctively" black in color. (Tr. 605).

5 70

Robert K. Price, the section foreman who was present on December 8, noted the
presence of loose coal in front of the feeder, under the feeder, and behind the tail roller.
According to Price, he said he did not see any hazardous float dust on the belt. He also
indicated that he did not see any dust that was black. He describe the entry as being offwhite. Price was asked to describe the thickness of the float dust on top of the feeder. He
said "there was just like a haze going across it" (Tr. 625). He indicated that he could see
the white color of the feeder through the "haze". He said that in order to abate the
violation the float dust on the feeder was hosed off, "and the rest of the stuff was broomed
wiped off or hit with a broom real quick" (Tr. 624).
Howard A. McDaniel, was the belt foreman on the shift at issue. He indicated that
the belt had been rock dusted on November 17. He described the area as being off-white.
According to McDaniel, the bottom of the entry contained rock dust to a depth of 2 to
4 inches. He said that there were only 4 or 5 shovelfuls of material present behind the
tailpiece. McDaniel said that he did not see any float dust that was dark in color. He said
that he walked the tight side, and did not see any black material. He said that it took about
10 minutes to clean up the spi 1lage material on the walk side.
C. Discussion
1. Violation of 30 C,f .R. § 75.400
I find the testimony of Respondent's witnesses insufficient to contradict the
testimony of Reid that there was a pile of coal dust, 2 feet by 3 feet, approximately
18 inches deep,2 and another pi le on the floor 4 feet by 16 feet, 5 inches deep, and other
accumulations, 200 feet outby the tail on the belt structure. I thus find that Respondent
violated Section 75.400, s..u.QLa.

Watson testified that he was standing with Reid "side-by-side" (Tr. 588) ·when the latter
examined the pyramid-shaped pile he cited. Watson indicated that Reid did not measure the
pile. Watson was asked whether Reid could have taken various measurements and not have
been observed by him. Watson responded by stating that by Reid "was never out of my sight
that day". (Tr. 611). It was elicited from Watson that at one point during the inspection he
left Reid's presence in order to get the foreman, Robert Price. In response Watson testified
that he did not go very far.
2

Based on my obervation of his demeanor, I find Reid's testimony credible regarding the
various measurement, he took of the cited accumulations. I find that the testimony of Watson
is insufficient to rebutt Reid's testimony as to measurements actually taken by him.

571

2. Violation of 30 C.F.R. § 75.360(b)(1}
Essentially, Reid opined that an 18 inch pile of coal dust takes 1 to 2 shifts to
accumulate, but he did not provide any basis for this opinion. He further opined that the
the accumulations occurred over more than 1 shift because (1) the materials that had
accumulated in various areas were very black, (2) there were "heavy" (Tr. 474)
accumulations on the floor, and belt structures, and (3) there was dust on the electric box,
and on and around the feeder. He also indicated that the float dust on the belt structures
and the side of the feeder. unit "was very visible all the way to the B-6 transfer area.
(Tr. 464). In essence, it is Petitioner's position that these conditions existed at the time of
the preshift examination, and should have been noted by the preshift examiner. There is
no conclusive evidence as to how long the conditions noted by Reid had existed. Reid
opined that it took more than one shift for the materials to have accumulated, but did not
provide any basis for his opinion. In the same fashion, Watson opined that he did not
think that the conditions were present "very long" (Tr. 589). He said "It could have been
one shuttle car. It could have been two shuttle cars" (Tr. 589). However, he did not
provide any basis for- that opinion. Price estimated that the conditions had been in
existence for 1 to 2 hours, but did not provide any basis for that opinion.
Weaver was asked whether he saw any float coal dust that was black in color. He
stated that he did not notice any that was "clear black (Tr. 534). Weaver stated that he
could not recall seeing "black accumulations" (Tr. 548) on the belt structures, but that
there may have been areas that were gray. He was asked whether the cross-members of
.the belt structure had "a dark deposit" on them (Tr. 546), and he answered that there may
have been some gray material deposited. Weaver stated that he did not see any of the
conditions noted by Reid, and did not feel that there were any hazards present.
11

Due to the extent of the accumulations observed by Reid, I conclude that it is more
likely than not that at l east~ of them, in the condition observed by Reid, had existed
4 hours earlier during the preshift examination. Since these accumulations were not
reported, I find that preshift examination was not adequate, and hence that Respondent did
violate Section 75.360(b)(1 ), fil.!.P,!:a.
3. Unwarrantable Failure
According to Reid, he had previously issued a citation, alleging a violation of
Section 75.400 fil.!P.ra, and at that time had discussions with management concern ing the
hazards of not recording an examination, and the necessity to clean the belts. I accept
Reids testimony that the material on the belt structure, and left side of the feeder unit was
visible al l the way to B-6. I find that Respondent's conduct constituted more than ordinary
negligence, and reached the level of aggravated conduct. Accordingly, I find that it has

572

been established that the violation herein resulted from Respondent's unwarrantable
failure. (See Emery, ma).
4.

Significant and Substantial

According to Reid, the material that had piled up to 18 inches adjacent to the belt
could, with continued operation, continue to grow, and then come in contact with the
rollers. This contact could produce friction. However, Watson indicated that belt material
used as a guard separated the accumulated coal dust from the rollers. Reid, on rebuttal,
did not specifically rebut the positive testimony of Watson. Reid indicated on rebuttal that
this guard would not have protected the fine coal from contacting the tail roller. His
explanation is as fol lows:

Q.

So where you have this 18-inch pi le located, would the guard that is
enclosed in blue have protected that 18-inch pile from contacting the tail
roller?
A.

No.

Q.

Why is that?

A.
Well, it was at the outby right side of the rubber guarding, which it only
extended-

Q.

What on Iy extended?

A.
The rubber guarding only extended to that point. This pile, which
from previous testimony I heard, these piles normally occur on both sides.

Q.

When you say the guarding only extends to "that point," what point
are you referring to?
A.

Where the pile of coal was.

Q.

So are you saying that the rubber guarding is extended to the point where the
pile of coal was and did not extend behind the pile of coal?

A.

No-yes.

Ms. Henry: It's confusing.
Judge Weisberger: The Witness' testimony is not clear.

573

Don't lead him.

Ms. Henry: Yes, you're right.
BY MS. HENRY:

Q.

Where this rubber guarding was, the point where this pile of coal
fines was, where was it in relationship to the rubber guarding?
A.

It was a little past the end, the right end of the rubber guarding.

Q.

So when you say it was "a little past" the right end of the rubber
guarding, was there rubber guarding behind this coal pile?

A.

No.

(Tr. 672-673).

I find that this testimony is unclear and cannot be relied upon .
There is no evidence of any frozen rollers. Nor is there any evidence that the belt
was not aligned properly, and was rubbing the vertical structures of the belt. Nor is there
any evidence that any float coal dust was in suspension. Although the existence of frozen
rollers, hot rollers, and. friction caused by the belt rubbing against the support legs are all
possible, I find that it has not been established that such conditions were reasonably likely
to have occurred. I thus find that it has not been established that there was a reasonable
likelihood of an injury producing event, i.e., a fire or explosion occurring as a
consequence of the accumulation of coal herein. I thus find that it has not been
established that the violation was significant and substantial (See, Mathies, .s.u.m.a;
U.S, Steel, s..u.w:a).
Ill.

Penalty

I find that since it was possible that as a result of the violations a fire or explosion
could have occurred that the violations were of a high level of gravity. I find that a penalty
of $500 is appropriate for Citation No. 3660374 and that a penalty of $5000 is appropriate
for Order No. 3660375.

IV.

Order

It is hereby ORDERED that Citation No. ·3569960 be dismissed. It is FURTHER
ORDERED that Order No. 3660021 be amended to indicate a violation that was not
significant and substantial and not the result of Respondent's unwarrantable failure. It is

574

further ORDERED that Citation No. 3660374 and Order No. 3660375 be amended to
reflect the fact that the violations cited were not significant and substantial. It is further
ORDERED that Respondent pay a total civil penalty of $7,500 within 30 days of this
decision.

~~

Avram Weisberger
Administrative Law Judge
Distribution:

Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market
Street, Room 14480, Gateway Building, Philadelphia, PA 19104 (Certified Mail)
Elizabeth S. Chamberlin, Esq., Consol Inc., Consol Plaza, 1800 Washington Road,
Pittsburgh, PA 15241-1421 (Certifi~d Mail)

/ml

575

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

APR
UNITED MINE WORKERS OF
AMERICA, LOCAL 1531, DIST. 2,
Complainant

6 1995
COMPENSATION PROCEEDING
Docket No. PENN 94-571-C

v.
Mine: No. 7 Breaker
JEDDO-HIGHLAND COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before: Judge Amchan
This case is before me upon a complaint for compensation filed by the
United Mine Workers of America, Local 1531, District 2. Respondent has filed a
motion to approve settlement agreement. The terms of the settlement are that
Respondent has agreed to pay each of the miners named on the Application for
Compensation for the hours listed by each of their names by Complainant, at their
regular ~ate of pay. Payment shall be included in each of the miners' next paychecks.

I have considered the representations and documentation submitted and
I conclude that the proffered settlement is consistent with section 111 of the Act.
ORDER

WHEREFORE IT IS ORDERED that the motion for approval of settlement is
GRANTED and Respondent shall pay the compensation agreed upon in the settlement
agreement. Upon such payment this case is DISMISSED.

~~m1~

Administrative Law Judge

576

Distribution:
Paul F. Rento, United M ine Workers of America, Local 1531, District 2,
52 Cedar St., Hazelton, PA 18201
David H. Swisher, Esq., P.O. Box 450, Pittston, PA 18640
\lh

577

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

APR

6 1995

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

CIVIL PENALTY PROCEEDING
Docket No. SE 94-417-M
A.C. No. 09-00265-05518

v.

Junction City Mine

BROWN BROTHERS SAND COMPANY,
Respondent
DECISION
Appearances:

john A. Black, Esq., Office of the Solicitor, U.S. Department of Labor,
Atlanta, Georgia, for the Petitioner;
Steve Brown, Partner, Brown Brothers Sand Company, Howard, Georgia,
for the Respondent.

Before:

Judge Feldman

This proceeding concerns a petition for assessment of civil penalty filed by the
Secretary of Labor against the respondent pursuant to section 1OS(d) of the Federal Mine
Safety and Health Act of 1977 (the Act), 30 U.S.C. § 801 fl~ (the Act). The Secretary's
petition seeks to impose a total civil penalty of $336 for five alleged violations of
mandatory safety standards, four of which were designated as nonsignificant and
substantial.
This matter was called for hearing on January 31 , 1995, in Butler, Georgia, at which
time the respondent stipulated that it is a mine operator subject to the jurisdiction of the
Act. The Secretary called Mine Safety and He~lth Administration (MSHA) Inspectors
Kenneth Pruitt and Donald L. Collier. The respondent relied upon the testimony of Greg
Brown, a partner in the respondent company. The parties ' posthearing briefs are of record.
This proceeding involves two citations issued by inspector Pruitt for alleged
guarding violations and three citations issued by inspector Collier for alleged electrical
violations during their March 22, 1994, inspection of the respondent's Junction City Mine
site. The respondent extracts sand at its mine site by spraying a high pressure stream of
water against the bank of an open pit causing the sand on the bank to slough off into a sink
hole. A pump station transports the sand by pipeline from the sink hole pit ontQ shaker
screens where the sand is separated from waste material such as roots and clay balls. The
578

waste material is removed by the chalk conveyor belt. The sand falls through the screens
into a horizontal tank and is transported through another pipeline to the classifier. The
classifier separates the sand according to granule size. The finer sand is used for mortar
and the coarser sand is used for concrete. The sand leaves the classifier through a chute
and is transported by grade to either of two conveyor stockpile belts. These belts stockpile
the mortar and concrete sand.

Citation No. 4301221
During the March 22, 1994, inspection, Pruitt observed that the guard for the head
pulley on the concrete sand stacker conveyor belt was not secured in place. The guard
had been removed and tied to the V-belt guard. The concrete sand stacker conveyor belt is
approximately 134 feet long pitched at a steep angle above the ground. The head pulley is
accessed by a walkway the full length of the belt. The head pulley (end of the conveyor
belt) has a vertical height of 43 feet above the ground. The walkway is adjacent to the belt
rollers the full length of the belt as well as the head pulley at the top of the belt. ~Resp.
Ex. 1).
As a result of the unguarded head pulley, Pruitt issued Citation No. 4301221 for an
alleged nonsignificant and substantial violation of the mandatory safety standard in section
56.14112(b), 30 C.F.R. § 56.14112(b), which provides:
Guards shall be securely in place while machinery is being operated, except
when testing or making adjustments which cannot be performed without
removal of the guard. (Emphasis added).
Guarding is intended to prevent the inadvertent contact of fingers or extremities
from the pinch points of moving machinery. Guarding is not intended to prevent the
intentional contact with moving parts or to protect maintenance personnel that must access
the equipment. In this regard the Commission has stated:
[llhe most logical construction of [a guarding] standard is that it imports the
concepts of reasonable possibility of contact and injury, including contact
stemming from inadvertent stumbling or falling, momentary inattention, or
ordinary human carelessness .... Apply.ing this test requires taking into
consideration all relevant exposure and injury variables,~ accessibility of
the machine parts, work areas, ingress and egress, work duties, and as noted,
the vagaries of human conduct. Under this approach, citations for
inadequate guarding will be resolved on a case-by-case basis. (Emphasis
added). Thompson Brothers Coal Company. Inc,, 6 FMSHRC 2094, 2097
(September 1984).

579

Consistent with the Commission's reasonable possibility of inadvertent contact test
in Thompson. the cited mandatory standard in section 56.14112(b) exempts guarding
requirements during maintenance. Section 56.14107(b), 30 C.F.R. § 5614107(b), also
exempts guarding "where the exposed moving parts are at least seven feet from walking or
working surfaces" as there is no exposure to moving parts.
Here, the Secretary asserts there is a violation of the guarding standard because
there are no barriers or signs prohibiting employees from walking up the steep 134 foot
long walkway to the head pulley at a vertical height of 43 feet above ground. However, it
is obvious that the walkway on the subject stacker conveyor depicted in Respondent's
Exhibit 1 is used exclusively by personnel maintaining the head pulley and rollers and that
other employees would not ordinarily traverse the walkway. This conclusion is based
upon the testimony of Greg Brown that the walkway is used by maintenance personnel for
periodic greasing of roller bearings and the head pulley and that such maintenance
activities can only be performed when the belt is deenergized as such activities require
climbing on the belt. (Tr. 47-48). I also credit Brown's testimony that most employees are
afraid "to go up there." (Tr.48).
The Secretary asserts that the provision in section 56.14107(b) exempting guarding
at locations at least seven feet from walking or working surfaces is inapplicable to the head
pulley because the head pulley is within seven feet of the walkway. However, ·as noted
above, the walkway is used by maintenance personnel who must first deenergize tre
conveyor. Pruitt conceded that if this 43 foot elevation was accessed by ladder, the head
pulley would not have to be guarded. (Tr. 35-36). It follows that the guarding exemption
should also apply if the operator provides a safe walkway exclusively for maintenance
purposes in lieu of the instability of a ladder. Consequently, in view of the Thompson
decision, as well as the maintenance and remoteness from working area exceptions to
guarding in Part 56, I conclude that the Secretary has failed to establish a violation of the
cited mandatory standard. Accordingly, Citation No. 4301221 shal I be vacated.

Citation No. 4301222
The Junction City facility has two shaker screens that were placed in operation
approximately two weeks prior to Pruitt's inspection. (Tr. 19, 49; Resp. Ex. 2). The
screens are accessed by climbing steps to a platform that is approximately four to six feet
wide. The total length of the platform around the perimeter of the screens is approximately
25 feet. (Tr. 52). Brown testified that it is conceivable that someone could traverse the
walkway when the screens were operational as the walkway could be used to view the
screens' operation. There was an unlocked cable 35 inches above the ground in front of
the platform steps. However, this cable could not prevent someone from entering the
platform. (Tr. 20, 33, 41, 52).

5 80

AV-belt runs between the pulleys on a motor and pulleys to the screens, causing
the screens to shake to separate debris from sand. (Tr. 18-20, 55). The shaker screen
platform is located next to the V-belt drive. (Tr. 52-54). Pruitt observed that the V-belt
drive of the No. 1 shaker screen was not guarded. Consequently, Pruitt cited the
respondent for a guarding violation of section 56.14107(a) that, in pertinent part, requires
guarding "to protect persons ... from contacting moving parts that can cause injury."
Pruitt concluded that this unguarded belt drive could cause permanently disabling injuries
such as amputation of fingers or a hand. (Tr. 21). Such injuries could occur to anyone on
the platform who inadvertently contacted the belt drive while observing the operation of
the shaker. {Tr. 40, 54-55). However, Pruitt felt injury was unlikely and characterized the
violation as nonsignificant and substantial because the platform was routinely accessed by
personnel who performed maintenance on a daily basis while the screens were
deenergized. {Tr. 49-50).
At the outset, l note that none of the circumstances warranting an exemption of the
guarding requirements of the conveyor stacker head pulley in Citation No. 4301221 are
present in Citation No. 4301222. Unlike the conveyor walkway constructed for the sole
purpose of maintenah.ce and located high above the ground, the shaker platform is easily
accessible by climbing a few steps. Moreover, it is constructed around the perimeter of the
shaker screens and serves as an observation deck. The unguarded V-belt's proximity to
this platform creates the precise hazard, .i.&.., inadvertent contact with the V-belt drive by
non-maintenance persons traversing the platform, that the guarding standard seeks to
prevent. Thus, the absence of guarding violates the cited mandatory standard.
Having concluded that guarding was required, I am unconvinced by the
respondent's assertion that the cable in front of the steps satisfied the guarding
requirement. Even if the cable was an effective method of preventing access to the
platform, which it was not, perimeter guarding is not an acceptable alternative to site
specific guarding of moving parts. ~ .e...g.., Moline Consumers Company, 15 FMSHRC
1954 (September 1993) (ALJ); Moline Consumers Company, 12 FMSHRC 1953 (October
1990) (ALJ); Yaple Creek Sand & Grayel, 11 FMSHRC 1471 (August 1989) (ALJ).
I am similarly unpersuaded by the respondent's contention that similar cables
barring access to shaker screens at other locations at its facility were not cited during
previous MSHA inspections. The CommissiQn has held that prior inconsistent
enforcement of a safety standard does not constitute a defense to a violation. ,S,e,e .U..S...
Steel Mining Company. Inc .. 15 FMSHRC 1541, 1543 (August 1993) and cases cited
therein. Any other interrpretation would provide an operator with immunity from the
enforcement and abatement requirements of the Act for any hazardous condition that was
overlooked during a previous inspection.

581

Therefore, the cable does not satisfy the guarding requirements of section
56.14107(a) and the respondent has presented no justifiable defense to the cited violation.
Accordingly, consistent with the penalty criteria in section 11 O(i) of the Act, 30 U.S.C.
§ 820(i), the $50 civil penalty proposed by the Secretary for nonsignificant and substantial
Citation No. 4301222 shall be affirmed.
Citation No. 3606005
Electrical inspector Donald Collier accompanied Pruitt on the March 22, 1994,
inspection. During his inspection, Collier determined the metal frames on the disconnect
boxes for the chalk conveyor and for each of the two shaker screens were not grounded.
Collier's conclusion was based on his observation of the plant side screen disconnect box
that was open and dee.1ergized. Collier observed a missing bonding screw inside the box.
A bonding screw connects a terminal mounted in the disconnect box to the frame
providing a ground for the box itself. (Tr. 62). Collier used an ohm meter to determine
that the metal frames of the two other energized disconnect boxes were also not
grounded. (Tr. 61-62, 99-100; Resp. Ex. 3). In addition, Collier found the light switch
boxes for the shaker screen tower were not grounded. (Tr. 69-70). As a result of his
findings, Collier issued Citation No. 3606005 for violation of section 56. 12025, 30 C.F.R.
§ 56.12025, which requires the grounding of all metal enclosures encasing electrical
circuits.
The cited disconnect boxes and light switches are located outdoors, mounted on a
plywood panel approximately four and one-half feet off the ground. (Tr. 65; Resp. Ex. 3).
The disconnect boxes are used to deenergize and lockout circuits when work is done on
the screens or chalk conveyor. (Tr. 63). Collier characterized the violation as significant
and substantial because the absence of grounding exposed employees, who disconnected
equipment on a daily basis, to electrocution.
Collier's uncontroverted testimony establishes the occurrence of the cited violation.
The question of whether this violation is significant and substantial must be resolved
based on the particular facts surrounding the violation. Texasgulf. Inc,, 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December 1987).
In this instance, the facts support the citation was properly designated as significant and
substantial for it was reasonably likely, if minin~ operations continued despite the
defective grounding conditions, that the electric shock hazard contributed to by the
violation would result in an injury of a reasonably serious nature. ~Halfway. Inc.. 8
FMSHRC 8, 12 Uanuary 1986); U.S. Steel Mining Co,. Inc,, 6 FMSHRC 1573, 1574 Ouly
1984); Mathies Coal Co .. 6 FMSHRC 1 Uanuary 1984); Cement Division. National
Gypsum. 3 FMSHRC 822, 825 (April 1981). This conclusion is based on the disconnect
boxes' 220 volt three phase circuitry, the outdoor location that subjected the boxes and
switches to water and dampness, and, the frequency of use of the defectively grounded
boxes and switches.

5 82

The Secretary initially proposed a civil penalty of $136 for Citation No. 3606005
based on the respondent's moderate degree of negligence. The Secretary n0w seeks to
increase the civil penalty to $500 asserting that the respondent's failure to use a licensed
electrician to install the switches and boxes constitutes high negligence. Hqwever, the
Secretary has cited ·no authority for the proposition that such installations are. required to be
performed by a licensed electrician. Moreover, the ground wires for the power cables
coming into the boxes and the ground wires out to the starter motors were properly
installed. (Tr. 98-99). The failure to place a bonding screw in each disconnect box and the
failure to connect the grounding wire to the switches are attributable to ordinary
negligence, moderate in degree, rather than the high degree of negligence belatedly
asserted by the Secretary. Thus, the initial $136 civil penalty for Citation No. 3606005
shall be affirmed.
Citation Nos. 3606006 and 3606007
Collier inspected the respondent's transformer building. The building is constructed
with metal walls and a wood floor. It is approximately 10 feet wide by 16 feet long. The
building is located approximately 30 feet from the main barge below ground level in the
pit. (Tr. 105-108). The· building houses two 2300 volt cylindrical transformers
approximately three to four feet tall and two and one-half feet in diameter with a metal
casing similar to a water heater. (Tr. 76-77, 80; Resp. Ex. 5). There is a power't:Hsconnect
switch outside the building. There is also a danger sign posted on the building.
Collier observed that the transformer building door was secured by a chain tied in a
knot that was not locked. Collier opened the door and determined that, although the
power cables into the transformers were grounded, the metal frames housing the
transformers were not grounded. Consequently, Collier issued Citation No. 3606006 for a
nonsignificant and substantial violation of section 56.12068, 30 C.F .R. § 56.12068, that
requires transformer enclosures to be locked to prevent unauthorized entry. Collier also
issued Citation No. 3606007 for violation of section 56.12025 that specifies that metal
enclosures containing electrical circuits must be grounded. Collier designated these
violations as nonsignificant and substantial because he believed it was unlikely that an
employee would enter the transformer building while the circuits were energized, and,
because a short was unlikely since the transformers were sheltered from the weather. (Tr.

77-78, 83-84, 113).
With respect to the fact of occurrence, section 56.12068 prohibits unauthorized
entry. Therefore, it is reasonable to conclude that this standard requires locked transformer
buildings. Thus, the respondent's chain, which secured the door in a closed unlocked
position, could not prevent the entry of an unauthorized individual. Consequently, this
condition was properly cited as a violation of section 56.12068. The uncontroverted
testimony of Collier establishes that the transformers frames were not grounded as required

583

by section 56.12025. Consequently, the record establishes a violation of the cited
standard in section 56.12025.
However, the likelihood of injury as a result of these violations is remote given the
remote location of the transformer building, the danger sign posted on the building, the
shut-0ff switch outside the building, the properly grounded incoming cables, and, the
sheltered transformers making a short unlikely. Accordingly, the low gravity of these
citations warrants a civil penalty of $25 for each citation.

ORDER
In view of the above, Citation No. 4301221 IS VACATED. Citation Nos. 4301222,
3606005, 3606006 and 3606007 ARE AFFIRMED. Consequently, IT IS ORDERED that the
respondent pay a total civil penalty of $236 in satisfaction of the four affirmed citations in
this matter. Payment is to be made to the Mine Safety and Health Administration within
30 days of the date of this decision. Upon timely receipt of the $236 payment,
Docket No. SE 94-41 7-M IS DISMISSED.

/~f)~

__-.,

Jerold Feldman
Administrative Law Judge

Distribution:
John A. Black, Esq., Office of the Solicitor, U. S. Department of Labor, 1371 Peachtree
Street, N.E., Room 339, Atlanta, GA 30367 (Certified Mail)
Steve Brown, Brown Brothers Sand Company, Highway 90, Box 82, Howard, GA 31029
(Certified Mai I)

/rb

584

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
12 44 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844- 3577/FAX 303-844-5268

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

v.

6 1995
CIVIL PENALTY PROCEEDINGS
Docket No. WEST 92 - 340
A.C. No. 05-02820- 03621
Docket No . WEST 92-384
A.C . No. 05- 02820-03627

WYOMING FUEL COMPANY, n/k/a
BASIN RESOURCES, INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Golden Eagle Mine

CIVIL PENALTY PROCEEDING
Docket No . WEST 93 - 186
A. C . No . 05 - 02820 - 03657

v.
Golden Eagle Mine
EARL WHITE, employed by
BASIN RESOURCES, INC.,
Respondent
DECI SION

Appearances :

Margaret A. Miller, Esq., Office of the Solicitor,
U.S . Department of Labor, Denver, Co l orado,
for Petitioner;
Charles W. Newcom, Esq., Sherman & Howard, Denver,
Colorado, for Respondents.

Before:

Judge Manning

These cases are before me pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C . § 801 et
seq. (1988} ("Mine Act" or "Act") following a remand from the Commission.
16 FMSHRC 1618 (August ·1994). The Commission affirmed
in part , reversed in part , and remanded in part, the decision of
Administrative Law Judge John J . Morris in these cases.
The
only issue on remand is whether Order No. 3244406 issued to Basin

585

Resources, Inc. ("Bas in Resources") 1 on June 2 5, 19 91 1 for making
unauthorized changes to its ventilation system, constituted a
significant and substantial violation of 30 C . F . R. § 75.316
(1991).
For the reasons the follow, I conclude that the violation was significant and substantial.
I.

BACKGROUND

On Sunday, June 23, 1991, Basin Resources changed its venti lation system in the Northwest No. 1 longwall section without
notifying the Department of Labor's Mine Safety and Health Administration ("MSHA") in advance. MSHA first learned of the
ventilation change during a telephone conversation between MSHA
Inspector Donald L . Jordan and Golden Eagle Mine General Manager
Earl R . White on ~onday, June 24, 1995 . Inspector Jordan went to
the mine ear l y on June 25, and issued an order of withdrawal
(Order No. 3244406) alleging a significant and substantial
("S&S") violation of the mine's ventilation plan. He determined
that the alleged violation was the result of Basin Resources'
unwarrantable failure to comply with the ventilation plan.
He
charged Basin Resources with a violation section 75 . 316 . 2
In his decision, Judge Morris affirmed the violation, found
that the violation was S&S, but determined that it was not caused
by Basin Resources' unwarrantable failure to comply with the
safety standard.
15 FMSHRC 1968, 1970-78 (September 1993).
On
Effective June 1, 1991, KN Energy (Wyoming Fuel company)
sold the Golden Eagle Mine to Enteck, Inc. (Basin Resources,
Inc.)
(Tr. 205-06) .
2

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

On November 16, 1992, this safety standard was superseded by
30 C . F.R. § 75.370, which imposes similar requirements.
586

review, the Commission affirmed the judge's finding that a violation occurred and that the violation was not caused by Basin
Resources' unwarrantable failure.
16 FMSHRC at 1619 n. 3. The
Commission vacated the judge's conclusion that the violation was
S&S and remanded that issue for further analysis consistent with
the Commission's decision.
16 FMSHRC at 1626-27. On March 13,
1995, these cases were reassigned to me for an appropriate resolution.
I have reviewed the hearing transcript and exhibits and
make the following findings of fact based on the evidence.
II.

DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

Mr. Earl White became General Manager of the Golden Eagle
Mine on June 1, 1992. Between June 1 and June 23, he became
concerned that the mine's ventilation system was not diluting and
removing methane from the Northwest No. 1 longwall section.
Following meetings with his staff on Friday, June 21 and Sunday,
June 23, Mr. White decided to make a number of changes to the
ventilation system in this longwall section. For purposes of
this remand, twd major changes in the ventilation system were
made:
(1) the No. 3 entry on the headgate side was changed from
a return to an intake aircourse, and (2) stoppings between the
gob and the No. 3 tailgate entry were opened in the Nos. 62 and
63 crosscuts. Mr. White did not confer with or obtain the approval of MSHA before making these changes. As stated above,
Inspector Jordan determined that, by making these changes in the
ventilation system, Basin Resources violated section 75.316.
Judge Morris agreed and the Commission affirmed his decision.
The only issue on remand is whether Basin Resources' violation was S&S. As the Commission stated:
The S&S terminology is taken from
section 104(d) of the Mine Act, 30 U.S.C.
§ 814(d), and refers to more serious violations. A violation is S&S if, based on the
facts surrounding the violation, there exists
a reasonable likelihood that the hazard contributed to by the violation will result in
an injury or illness of a reasonably serious
nature.
16 FMSHRC at 1625 ('citation omitted) . The Commission has
established a four part S&S test, as follows:
In order to establish that a violation
of a mandatory safety standard is significant
and substantial ... , the Secretary of Labor
must prove:
(1) the underlying violation of
a mandatory safety standard; (2) a discrete
hazard
that is, a measure of danger to
safety -- contributed to by the violation;
587

(3) a reasonable likelihood that the hazard
contributed to will result in an injuryi and
(4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
Mathies Coal co., 6 FMSHRC 1, 3-4 (January 1984). An evaluation
of the reasonable likelihood of an injury should be made assuming
continued normal mining operations. U.S. Steel Mining Co., 7
FMSHRC 1125, 1130 (August 1985).
On remand, there is no dispute that the first element of the
Mathies test has been met, an underlying violation of a safety
standard. With respect to the second step, the parties disagree.
Basin Resources contends that any explosive levels of methane
that might have existed in the longwall section on June 25 did
not relate back to the violation, because the ventilation system
was changed back to the previously approved system soon after the
unwarrantable failure order of withdrawal was issued.
It states
that the changes, made to the ventilation system on June 23 no
longer existed by the afternoon of June 25. The Secretary contends that Basin Resources did not change the ventilation system
back to its former condition and that conditions found by the
inspector on the afternoon of June 25 directly relate to the
violation. 3
I find that the Secretary established, by a preponderance of
the evidence, that the ventilation system was not changed back to
the approved system before the afternoon of June 25.
In making
this finding I rely on the testimony of Inspector Jordan, Steve
Salazar, who was General Mine Foreman, and David Huey, who was
Manager of Mine Operations.
{Tr. 71, 73, 87, 99, 374 -76, 379)
They each testified that the ventilation system was not changed
back on June 25 to the system set forth in the approved plan.
Id.
Inspector Jordan's testimony was supported by his contemporaneous notes.
(Tr. 374-76, 379i Ex. BR-3). I find that the
violation of the ventilation plan contributed to a discrete
safety hazard. My findings in this case are not dependent upon
the methane measurements taken by Inspector Jordan on the afternoon of June 25. As discussed more fully below, I believe that
the violation created a risk of a fire or explosion because of

3

During an inspection of the longwall section on the
afternoon of June 25, Inspector Jordan detected methane levels of
4% to 5% and more at crosscuts 62 and 63 between the gob and the
No. 3 tailgate entry. He issued an imminent danger order and a
citation. The Commission vacated the citation on the ground that
the Secretary failed to prove that the inspector measured the
methane at proper locations. 16 FMSHRC at 1630-31. The imminent
danger order was not contested by Basin Resources.

588

the potential for explosive leve.l s of methane to accumulate in
the tailgate entries near the longwall face. 4
Basin Resources also contends that the Secretary failed to
establish the third step of the Mathies S&S test. Basin Resources states that there were no ignition sources because the
section was deenergized on June 25. It also states that, although production was resumed on June 24, methane readings show
that the highest methane reading obtained on that date was 0.5%.
Basin Resources maintains that the changes ultimately approved by
MSHA in the ventilation plan were essentially the same as the
changes made by Basin Resources on June 23.
It contends that the
fact that these changes were approved by MSHA establishes that
the Secretary failed to prove the third element of the Mathies
test.
It further states that the high methane readings obtained
by the inspector on June 25 were invalid because they were taken
at an improper location and that these readings and the imminent
danger order issued as a result should not be used to support an
s&s finding.
I reject Basin Resources' arguments for a number of reasons.
First, in evaluating whether there is a reasonable likelihood that the hazard contributed to by the violation will
result in an injury, one must assume continued normal mining
operations. U.S. Steel, 7 FMSHRC at 1130. Whether or not the
longwall section was energized or high methane readings were
found in the two days following the ventilation change does not
resolve the issue. The question is whether there was a reasonable likelihood of an injury if Basin Resources' ventilation
changes remained in place in the face of continued normal mining
operations. I find that the Secretary established that there was
such a reasonable likelihood.
The amendment to the ventilation plan approved by MSHA on
June 28, 1992, was not the same as the changes implemented by .
Basin Resources on June 23 in at least one important respect that
is relevant here.
(Tr. 89-93, 97, 125-27, 279-80; Ex. M-2). The
difference relates to the method by which methane in the gob is
diluted and removed from the longwall section. After Basin
Resources changed the ventilation system on June 23, methane from
the gob ("gob gas") traveled through crosscuts 62 and 63 into the
tailgate return entries.
(Tr. 85-86, 87-88, 91, 123, 175-76; Ex.
M-2). As a consequence, the gob gas exited the gob through an
area that was about 50 to 100 feet from the tailgate side of the
longwall face.
(Tr. 54, 95, 106 , . 123-24, 142, 149, 187;
4

I also believe that the dispute whether the ventilation
system was changed back on June 25 is largely irrelevant. The
issue is whether, assuming continued normal mining operations,
the ventilation changes made on June 23rd significantly and
substantially contributed to a mine safety hazard.
589

Ex. M-2). Under MSHA's subsequently approved plan, those
crosscuts were closed and a bleeder connector entry, referred to
at the hearing as a bleeder tap, was opened up at the back of the
gob in crosscut 67.
(Tr. 88, 90-91, 105, 126, 149-50, 166, 17475; Ex. M- 2) . The plan approved by MSHA on June 28, specifically
required Basin Resources to establish "a pressure drop to the
back of the gob" so that the gob gas would be directed away from
the longwall face to the back of the gob .
(Tr. 126- 27, 149, 166;
Ex. M-2).
In addition, an intake air shaft was located at the
back of the gob near the bleeder connector at crosscut 67, which
would help dilute the methane .
(Tr . 88; Exs. M-2, M-8) . The
difference between the two ventilation systems is significant
because the MSHA approved system moved the point where explosive
methane is mixed with return air from an area adjacent to the
face, where ignition sources are present, to the back of the gob,
where ignition sources are not usually present.
Basin Resources' witnesses correctly stated at the hearing
that a gob can ·contain a high level of methane, up to 100% concentration, and that at some location in the mine this methane
must be diluted and removed from the mine. The Commission has
recognized that explosive ·mixtures of methane and oxygen may
sometimes accumulate in the gob area.
Island Creek Coal co., 15
FMSHRC 339, 347 (March 1993}. A hazard is created if explosive
methane exists where an ignition source is present.
In many
underground coal mines using the longwall method, separate
bleeder entries are present along the back of each set of
longwall panels to remove the gob gas away from active areas of
the mine.
See, ~' Island Creek, 15 FMSHRC at 340; VP-5 Mining
Co . , 15 FMSHRC 1531, 1532 (August 1993} . At the Golden Eagle
Mine, however, the gob gas is removed through the tailgate
entries .
Under the ventilation system implemented by Basin
Resources on June 23, the point where the ~ob gas exited the gob
and mixed with return air to dilute the methane was near the
longwall face . As a consequence, ignition sources were close to
this mixing point . Under the plan approved by MSHA on June 28,
the mixing point was further away from the face at the back of
the gob.
I find that the presence of bleeder connectors in
proximity to the tailgate side of the longwall face contributed
to a safety hazard and that there ,was a reasonable likelihood
that the hazard contributed to would result in an injury,
assuming continued normal mining operations . The hazard was a
fire or explosion of methane . 5
I have considered a number of other factors in reaching my
conclusion that the violation was S&S . First, the Golden Eagle
Mine is a highly gassy mine liberating over one million cubic
5

The fourth element of the Mathies S&S test has been met
because it is reasonably likely that the injury in question would
be of a serious nature.
590

feet of methane during a 24 - hour period.
(Tr . 25) . . In fact, the
mine liberates more methane than any other underground coa l mine
in MSHA's District 9.
(Tr. 183). Second, this mine experienced
a serious methane explosion in the same longwall section severa l
months before the citation was issued.
(Tr . 52). MSHA's investigation of the explosion revealed that someone removed a stopping, which allowed methane to accumulate near the face .
(Tr.
142, 184, 199-200) . Although the section was not in production
at the time of the explosion, the circumstances are similar because, in both cases, stoppings were opened which could allow ·
methane to accumulate near the longwall face.
Finally, a major
change in a ventilation system will often have unintended adverse
effects that are difficult to determine in advance.
{Tr. 185 86) . One of these unintended effects is the accumulat i on of
methane in ttunknown areas, '' i . e . unanticipated areas of the mine .
(Tr . 139-42; 185-86). One of the reasons that the safety standard requires prior approval of significant vent i lation changes
is to allow MSHA to think about such unintended effects and
conduct a through investigation "to make sure that t h ere isn't a
hazard associated with that change."
(Tr. 185 - 86). By unilaterally making the ventilation change, MSHA was unable to study
whether methane might accumulate in areas where ignition sources
are present.

III.

CIVIL PENALTY

Judge Morris analyzed the civil penalty criteria in section
llO(i) of the Mine Act, 30 u.s.c. § 820{i), and determined that a
civil penalty of $300 . 00 was appropriate for th i s violation .
15
FMSHRC at 1982. 6 Since I am affirming, in result, Judge Morris's
conclusion that the violation was S&S, I adopt his analysis of
the penalty criteria and find that a penalty of $300.00 is appropriate.

IV.

ORDER

Accordingly, I find that the violation described in Order
No. 3244406 in WEST 92 - 384 significantly and substant i ally
contributed to the cause and effect of a coal mine safety hazard.
Basin Resources, Inc. is ORDERED TO PAY the Secretary of Labor
the sum of $300 . 00 within 30 days ~f the date of this decision.

Richard w. Manning
Administrative Law Judge
6

In his decision, Judge Morris used an incorrect citation
number when referring to this violation .

591

Distribution:

Margaret A. Miller , Esq . , Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, suite 1600, Denver, co 80202-5716
(Certified Mail)
Charles W. Newcom, Esq . , SHERMAN & HOWARD L.L.C., 633 Seventeenth
Street, Suite 3000, Denver, co 80202 (Certified Mail)

RWM

592

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

APR 1 11995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 93-188-M
A. C. No. 33-00394-05521

v.
Muskogee Dredge Mine
ARKHOLA SAND & GRAVEL, INC.
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

CIVIL PENALTY PROCEEDING
Docket No. CENT 94-174-M
A.C. No. 34-00394-05525 A

P~titioner

v.
Muskogee Dredge Mine
VERNON MCMAHON, Employed by
ARKHOLA SAND & GRAVEL, INC.,
a Division of APAC-ARK, INC.,
Respondent
DECISION
Appearances:

Jennifer L. Walls, Esq., Office of the Solicitor, U.S. Department of
Labor, Dal las, Texas, for the Petitioneri
Hugo Swan, Jr., Esq., McGlinchey Stafford Lang, Fort Smith, Arkansas,
for the Respondents.

Before:

Judge Feldman

This consolidated civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 .et~' (the Act). This matter concerns a conveyor
belt accident that occurred on January 28, 1993, after the belt was prematurely restarted
before a miner who had been performing maintenance could clear the belt. The Secretary,
pursuant to section 1OS(a) of the Act, 30 U.S.C. § 81 S(a), has filed petition for civil penalty
against the corporate respondent (Arkhola) seeking to impose a $1,000 civil penalty for
Arkhola's alleged unwarrantable failure to comply with the mandatory safety standard in
section 56.12016, 30 C.F.R. § 56.12016. This mandatory safety standard provides:

593

Electrically powered equipment shall be deenergized before mechanical
work is done on such equipment. Power switches shall be locked out or
other measures taken which shall prevent the equipment from being
energized w ithout the knowledge of the individuals working on it. Suitable
warning notices shall be posted at the power switch and signed by the
individuals who are to do the work. Such locks or preventative devices shall
be removed only by the persons who installed them or by authorized
personnel.
The Secretary also sought to impose personal liability on Arkhola supervisor Vernon
McMahon alleging that he "knowingly authorized, ordered or carried out" the violation of
section 56.12016 as contemplated by section 11 O(c) of the Act, 30 U.S.C. § 820(c).
Docket No. Cent 93-188-M had been stayed since November 22, 1993, pending
completion of the Secretary's 11 O(c) investigation involving McMahon.
This matter was heard on February 7, 1995, in Tulsa, Oklahoma at which time
Arkhola stipulated that it is a mine operator subject to the jurisdiction of the Act. On
March 30, 1995, the Secretary filed a Motion to Withdraw Citation No. 3556635 issued to
McMahon. The motion was based on the Secretary's conclusion that the testimony does
not adequately reflect that McMahon knew or had reason to know that his subordinate,
Tony O'Bannon, would continue to violate Arkhola's lock out procedures shortly after
McMahon had admonished O'Bannon for disregarding those procedures. The Secretary's
Motion seeking dismissal of the charge against McMahon shall be granted. The parties'
post-hearing briefs addressing Citation No. 3556635 issued to Arkho la are of record.
Preliminary Findings of Fact
Arkhola operates a sand plant in Muskogee, Oklahoma wherein glass sand,
construction sand and blasting sand are extracted from the Arkansas River. The operations
include dredging sand from the riverbed and pumping the river sand into pits. Front-end
loaders then transport the sand from the pits to a hopper for distribution onto a conveyor.
The sand is conveyed into the first dryer (South Dryer) where water is removed. the sand
proceeds to other conveyors for further cleaning drying and sorting.
The dryer conveyor operator activates the conveyor with controls in a concreteblock operations shack located in close proximity to the conveyor. The shack has
windows on all four sides, one of which looks directly out on the dryer conveyor at the site
of the conveyor belt accident. The conveyor controls are directly below the window. The
main electrical control panel for the dryer conveyor, which was cited for not being locked
out, is located in a building 30 feet from the operations shack. The dryer conveyor belt
cannot be seen from this electrical control panel.

59 4

Arkhola's Muskogee facility is operated with three shifts. The subject conveyor belt
accident occurred on January 28, 1993, during the second shift that begins at 2:00 p.m.
and ends at 10 p.m. There are 8 to 12 employees working on this shift at plant locations
covering a large geographical area. On the afternoon of the accident, second shift
employees Everett Staton and Tommy Duncan were assigned by Shift Foreman Vernon
McMahon to a maintenance project in the area of the South Dryer. Staton and Duncan
were instructed to contact first shift South Dryer operator Roy Kendry for instructions
regarding changing the "skirts" on the South Dryer's conveyor at the point where sand from
the hopper falls onto the dryer's conveyor. The skirts guide the sand from the hopper to
the conveyor to minimize spillage. Staton and Duncan were to remove and replace the
old rubber skirting with new skirting. They were instructed to secure the assistance of
Tony O'Bannon, the second shift South Dryer operator.
After the skirting had been replaced, O'Bannon contacted first shift Mechanic
Welder Joe McCracken, who had been working on the elevator (a process further up the
conveyor line) to ask McCracken if McCracken's repair work was completed to the point
where McCracken could unlock the elevator so that sand could be processed through the
system to check the skirting. McCracken replied affirmatively and went to unlock the
elevator.
·
McMahon was not present in the area while the skirting was being replaced.
However, McMahon arrived after the skirting was changed. McMahon was present when
McCracken returned from unlocking the elevator and McMahon heard McCracken ask
O'Bannon if O'Bannon had locked out the South Dryer conveyor belt for it was
O'Bannon's responsibility, as the dryer conveyor operator, to lock out the belt. O'Bannon
had a lock for locking out the conveyor at the electrical control panel and had received
training in company lock out procedures.
When O'Bannon replied that he had not locked out the belt, McCracken "blew up."
McCracken told O'Bannon, "If you work on the [expletive deleted] again, lock the S. 0. B
out. 11 (Tr. 154-155). Foreman McMahon was c;hocked by McCracken's strong language.
However, he agreed with McCracken and added his own criticism. McMahon and
McCracken testified that McMahon told O'Bannon, "Yes, Tony, if you work on it again,
lock it out before anybody works on it." (Tr. 36, 42, 45-46, 155, 157). McMahon
believed that McCracken's strong admonishmer;it and his own warning would be sufficient
to impress upon O'Bannon the importance of following lock out procedures. (Tr. 52-54,
106).
After the elevator was unlocked, sand was transported through the South Dryer
conveyer system. The men determined the new skirts were not properly channeling the
sand from the hopper onto the conveyor and the conveyor was again shut down. Although
McMahon did not observe O'Bannon lock out the conveyor, he assumed O'Bannon would
do so given the earlier incident. There is no evidence O'Bannon did not lock out on this

595

occasion. McMahon stayed to watch Staton and Duncan remove, cut and reinstall the
skirting.
After reinstalling the skirting, the men could not restart the conveyor because an
elevator fuse had blown. McCracken replaced the fuse and the conveyor was restarted.
McMahon felt the repair was complete and returned to the office to attend to other duties.
After McMahon left the area, the men concluded the second installation of the skirting was
unsatisfactory. Unknown to McMahon, the men decided to replace the skirting.
O'Bannon made the decision not to lockout because, as he admitted in his arbitration
hearing, "[I] was just going to run a test that wasn't going to take long and I didn't think
there was any need to lock out. 11 ITr. 186).
After Staton and Duncan once again replaced the skirting, O'Bannon went into the
operations shack to restart the conveyor. A few moments later, Staton remembered he had
left a tool on the inside of the conveyor belt. As Staton stepped on the belt to retrieve the
tool, O'Bannon, without looking out the operations shack window to ensure that the
conveyor was clear, activated the conveyor. Staton sustained serious injuries when he was
flipped off the dryer conveyor to the ground.
Staton's accident was investigated by Bill Scarbrough, Arkhola's Director of Safety
and Industrial Relations. As a result of this investigation, O'Bannon was discharged for
"willful negligence" under the plant's union contract. O'Bannon's discharge was sustained
in a union arbitration proceeding during which O'Bannon admitted intentionally ignoring
the company's lockout procedures and failing to look to see if the conveyor belt was clear
before starting it.
Mine Safety and Health Inspector Norman LaValle investigated this incident.
As a result of his investigation, on February 17, 1993, LaValle issued 104{a) Citation
No. 3556635 citing a violation of section 56.12016 attributable to moderate negligence for
Arkhola's failure to lock out the South Dryer conveyor at the time of Staten's injury at
6:10 p.m., on January 28, 1993. The citation was modified to a 104{d)(1) citation charging
unwarrantable failure after it was learned in a March 5, 1993, health and Safety conference
that McMahon had cautioned O'Bannon shortly before the accident for O'Bannon's failure
to lock out the conveyor.
Further Findings and Conclusions
Section 104(a) of the Act requires that "[each citation shall be in writing and shall
describe with particularity the nature of the violation .... 11 104(d)(1) Citation No. 3556635
cited the following condition associated with the alleged violation of section 56.12016:

596

On 1-28-93 at 6:10 pm a lost time injury occurred to a maintenance
employee while working on the south dryer raw feed conveyor installing
conveyor skirt rubbers. After the job was completed the injured employee
was crossing back over the conveyor when the conveyor was inadvertently
started by the dryer plant operator. The maintenance man was flipped off
the belt and when he landed on the ground he had suffered a fracture to his
upper left leg. The distance from the conveyor belt to the ground level is
54 inches. The conveyor is provided with a stop cord device. The conveyor
was not tagged and locked out by the employees while performing their
jobs. (Emphasis added).
Thus, the January 28, 1993, accident, that purportedly occurred as a result of
O'Bannon's failure to lock out the conveyor, was the fundamental reason for issuing
Citation No. 3556635 to McMahon and Arkhola. However, at trial, both inspector Lavalle,
and, MSHA Charlottesville, Virginia, Field Office Supervisor Dale Robert St. Laurent,
conceded that O 'Bannon's failure to lock out the conveyor at the main electrical control
panel located in a building 30 feet from the operations shack was not a contributing factor
in this accident. {Tr. 113-115, 140-142). The site of the accident along the conveyor could
not be seen from the main electrical control panel.
Rather, the operations shack, with its controls and windows overlooking the
conveyor, is the proper site for determining if the area is clear before restarting the belt.
The proximate cause of this accident was O'Bannon's admitted failure to look through the
operations shack window to make certain the belt was clear before consciously pushing
the button to restart the conveyor. There is no evidence, as LaValle suggests in Citation
No. 3556635, that O'Bannon "inadvertently started" the dryer conveyor, or, that the
accident was otherwise attributable to O'Bannon's failure to lock out. Another
contributing factor was Staton's contributory negligence in climbing on the belt after it was
apparent that maintenance was completed and the belt was cleared.
Having erroneously concluded the failure to lock out the conveyor caused the
accident, inspector LaValle proceeded to cite the Jock out mandatory standard in section
56.12016 which is not the applicable standard in this case. The basic purpose of section
56.12016, which is contained in Subpart K under the heading "electricity," is to protect
miners from electrical hazards rather than mechanical hazards. This conclusion is based
on Phelps Dodge Corporation v. FMSHRC, 681 ·F.2d 1189, 1192 (Ninth Cir. 1982),
wherein the Court, considering the failure to lock out an electrically powered conveyor
belt that carried ore forward for smelting, held the purpose of the lock out provisions of
section 56.12016 "is manifestly to prevent the accidental electrocution of mine workers." 1

Phelps Dodge involved former section 55.12-16, 30 C.F.R. § 55.12-16, which
contained provisions that are identical to those found in section 56.12016.
1

597

In Phelps Dod~e the Court noted the regulations immediately preceding the subject section
set forth procedures to ensure that workers will not be exposed to energized wires. Sf.e
sections 56. 12001 through 56.12014. The Court also noted that the antecedent section to
the subject section required that "power circuits be deenergized before work is done" on
them. S.ee section 56. 12017. Finally, the Court concluded these regulations (Subpart K)
"simply do not address the hazards arising from the accidental movement of electrical
equipment while mechanical work is being done thereon." kl
Mandatory standards to prevent hazards associated with the movement of
equipment are contained in Subpart M entitled "machinery and equipment." The correct
mandatory standard given the circumstances of this case is found in Subpart M in
section 56.14201 (a), 30 C.F.R. § 56.14201 (a), entitled "conveyor start-up warnings."
Section 56.14201 (a) provides:
When the entire length of a conveyor is visible from the starting switch, the
conveyor operator shall visually check to make certain that all persons are in
the clear before starting the conveyor.
Here, as noted above, O'Bannon admitted in his arbitration proceeding testimony
that "he did not look out the [operat ions shack] window to see where his fellow employees
were before he pushed the button to turn on the conveyor belt." (Resp. Ex. 2, p. 5). While
O'Bannon's conduct would have provided a basis for Arkhola's liability under the strict
liability application of the Act if section 56.14201 (a) had been cited, O'Bannon's
negligence with respect to not ensuring the belt was clear, absent a showing of inadequate
supervision, could not be imputed to Arkhola to establish an unwarrantable failure.
Moreover, O'Bannon 's negligent act does provide a basis for establishing McMahon's
personal liability under section 11 O(c) of the Act.
In summary, the gravity of a violation is determined by whether there is a likelihood
that the hazard contributed to by the violation will result in serious injury. Cement
Division. National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In this case, it was the
violation of section 56. 14201 (a), rather than cited section 56.12016, that contributed to the
conveyor start-up hazard that resulted in Staten's injuries. Consequently, 104{d)(1) Citation
No. 3556635, which cited an inapplicable mandatory standard, must be vacated.

59 8

ORDER
In view of the above, the Secretary's Motion to Withdraw Citation No. 3556635 as
it applies to Vernon McMahon IS GRANTED and Docket No. CENT 94- 174-M IS
DISMISSED. IT IS FURTHER ORDERED that 104(d)(1) Citation No. 3556635 as it applies
to Arkhola Sand & Gravel Company IS VACATED and Docket No. CENT 93-188-M

IS DISMISSED.

Jerold Feldman
Administrative Law Judge

Distribution:

Jennifer L. Walls, Esq.,· Office of the Solicitor, U.S. Department of Labor,
525 South Griffin Street, Suite 501, Dallas, TX 75202 (Certified Mail)
Hugo Swan Jr., Esq., McGlinchey, Stafford, Lang, 101 North 10th Street, Suite D,
Fort Smith, AR 72901 (Certified Mail)
/rb

599

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

APR 1 2 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 94-97-M
A. C. No. 14-00164-05520

v.
Kansas Falls Quarry & Mill
WALKER STONE COMPANY, INC.,
Respondent
DECISION
Appearances: Ann M. Noble, Esq., Office of the Solicitor, Department of Labor,
Denver, Colorado, for the Secretary;
Keith R. Henry, Esq., Weary, Davis, Henry, Struebing & Troup,
Junction City, Kansas, and Katherine S. Larkin, Esq., Jackson & Kelly,
Denver, Colorado, for Respondent.
Before:

Judge Maurer

STATEMENT OF THE CASE
This case is before me upon the petition for civil penalty filed by the Secretary of
Labor pursuant to section 1OS(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S. C. § 801 .et .ie.Q., charging Walker Stone Company, Inc., with two violations of the
regulatory standards found in Part 56, Title 30, Code of Federal Regu lations, as the result of
an MSHA investigation into the cause of a fatal machinery accident at the respondent's
Kansas Falls Quarry & Mill, located at Chapmal"), Dickinson County, Kansas. The general
issues before me are whether the respondent violated the cited regulatory standards and, if
so, the appropriate civi I penalty to be assessed in accordance with section 11O(i) of the
Act.
Pursuant to notice, the case was heard at Fort Riley, Kansas, on October 26-27,
1994. At the hearing, Inspectors Roger G. Nowell and Lloyd R. Caldwell testified for the
Secretary of Labor. M r. David S. Walker, the President of Walker Stone Company, Inc.,
testified for respondent. The parties simultaneously filed briefs on January 9, 1995, w hich I
have duly considered in making the following decision.

600

STIPULATIONS
At the hearing, the parties entered the following stipulations into the record (Tr. 16,
Joint Ex. No. 1):
1. Walker Stone, Inc. is engaged in mining and selling construction aggregates and
road building materials.
2. Walker Stone, Inc. is the owner and operator of Kansas Falls Quarry and Mill,
MSHA l.D. No. 14-00164.
3. Walker Stone, Inc. is subject to the jurisdiction of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801..fil ~· ("the Act'').

4. The administrative law judge has jurisdiction in this matter.
5. The subject citations were properly served by a duly authorized representative of
the Secretary upon an agent of respondent on the date and place stated therein and may be
admitted into evidence for the purpose of establishing their issuance, and not for the
truthfulness or relevancy of any statements asserted therein.
6. The exhibits to be offered by respondent and the Secretary are stipulated to be
authentic but no stipulation is made as to their relevance or the truth of the matters
asserted therein.
7. The proposed penalties will not affect respondent's ability to continue in
business.
8. The operator demonstrated good faith in abating the violations.
9. Walker Storie, Inc. had 54,977 manhours of production in 1992.
10. The certified copy of the MSHA Assessed Violations History (dated March 16,
1994) accurately reflects the history of this mine for the 2 years prior to the date of the
citations.

THE ACCIDENT
The accident occurred on June 25, 1993, at the primary crushing plant of the Kansas
Falls Quarry and Mill, owned and operated by the Walker Stone Company, Inc.

601

Dan Robert Boisclair, a general clean-up man and alternate truck driver, with one
year of mining experience, was fatally crushed while helping the crusher operator and
other employees unclog the primary impact crusher. 1 Because a truck dri'yer had quit the
previous day, on June 25, 1993, Boisclair's job was to haul blasted rock from the quarry to
the crusher. Work progressed normally throughout the day until approximately 3:00 p.m.,
when the impact crusher plugged up and stalled the drive motor. As was the established
procedure in this circumstance, Roy Brooner, the crusher operator, signaled the truck
drivers by turning the green light at.the rock bin off and turning the red light on. A red
light meant for the truck drivers to stop dumping their trucks' limestone loads into the
hopper and to proceed to the crusher to assist the crusher operator in unplugging the
crusher. By 3:30 p.m., the men had succeeded in unplugging the crusher and went back
to their regular routine.
At approximately 5:00 p.m., barely 30 minutes before quitting time, the crusher
jammed again, stalling the diesel drive motor. Brooner again turned the red stoplight on at
the rock bin and the truck drivers, including Boisclair, went to assist him, as was the usual
practice.

of

The upper part the crusher has three access openings; the opening on each side is
pinned closed while the crusher is in operation; the other is a hydraulically operated "flop
gate," 52 inches wide and 38 inches high. The "flop gate," when down, provides access to
the impeller or rotor, which can be gained by crouching or crawling through the "flop
gate" opening onto the impeller. The cylindrical impeller or rotor inside the crusher
housing contains three metal bars about 3 inches high running horizontally along the
impeller drum. When the impeller rotates, it crushes the rocks and/or throws the rocks
against the crusher's walls until the rocks break into pieces small enough to exit the
crusher.
When the truck drivers arrived at the crusher, the "flop gate" was opened and
Boisclair, along with Bill Scott, entered the interior of the crusher. They used a sledge
hammer to break up one or two large boulders they found on top of the rotor. Boisclair
and Scott thereupon exited the crusher and Brooner, the operator, tried to move the rotor
by "jogging" it with the "flop gate" still open. 2 He did this by pressing the sta·rt button on
the diesel engine with the clutch engaged. But the impeller would not rotate and thus they

1The primary impact crusher is designed to break larger rocks into smaller pieces which

can then be processed by the milling operation into a saleable product.
2

The crusher operator duty station is normally in a small operating house located above
the crusher and the diesel engine. When the crusher gets clogged, however, the operator moves
down to a location which is right next to the diesel engine so that he can "jog" the engine to
determine whether the crusher's impeller is free.

602

knew the crusher was still clogged. At this point, Scott and Brooner agreed that Scott
would go down on the conveyor belt below the impact rotor and see if a rock had gotten
caught in the area of the splash pan. Meanwhile, Boisclair, unbeknownst to Brooner,
reentered the interior of the crusher. Frank Esterly, another truck driver, was behind
Boisclair just inside the "flop gate," but outside the crusher compartment. From this
position, Esterly could see Scott as he was working below the rotor. While Scott was
cleaning out the exit area of the crusher, Boisclair was on his hands and knees on top of
the rotor, cleaning out some small wedged-in rocks on the top side of the crusher with his
hunting knife. At some point, Esterly called down and asked Scott if he needed any help.
Scott rep I ied that he thought he had removed the problem rock and was about ready to
leave. Esterly told Boisclair to hurry and get out of the crusher as Scott was about done
below. While Scott was climbing out from below, Boisclair started to turn around on the
rotor to exit. As Boisclair was exiting, but not yet out, Brooner, cleared by Scott, but
unaware that Boisclair had reentered the crusher, "jogged" the rotor to see if it was free.
This time the impeller turned. As it turned, Boisclair's foot was caught by an impeller bar,
dragging him partially into the crusher and crushing him between the impeller drum and
the wall of the crusher·. The cause of death was "massive crushing injuries to the upper
·
and lower torso."
The next day, June 26, 1993, MSHA began its investigation of the accident. It's
report was released on August 11, 1993, and is included in this record as Petitioner's
Exhibit No. 1.
The two inspectors who subsequently wrote the report, Nowell and Caldwell,
concluded that the direct cause of the accident was the failure to ensure that all employees
were in a safe location before initiating movement of the crusher. They also found other
contributing causes, such as: (1) the failure to provide and use an audible warning device
or other effective means to warn employees of impending crusher movement; (2) the
failure of the victim to notify the crusher operator of his intention to reenter the crusher
compartment; and (3) other unrelated factors that might have caused the employees to
hurry the unplugging of the crusher, like the hot weather, the fact that the plug-up occurred
just 30 minutes prior to quitting time and paychecks were to be distributed at the end of
the shift.
As a result of their accident investigation~ Inspector Nowell issued two
section 104(a) citations to the operator which are the subject of this proceeding.

603

DISCUSSION. FINDINGS. AND CONCLUSIONS
Cjtatjon No. 4337450
Citation No. 4337450, issued on June 28, 1993, alleges a "significant and
substantial" (''S&S") violation of the standard at 30 C.F.R. § 56.14105 3 and charges as
follows:
Al l employees were not effectively protected from hazardous motion
of the Impact rotor of the Pettibone universal 5165 primary impact crusher.
An employee was fatally crushed at approximately 5:20 p.m., on June 25,
1993, when the crush er operator jogged the drive engine starter switch. Five
employees had been working to free the rotor from a rock jam and all had
exited the crusher interior. The victim reentered the crusher interior without
the crusher operators knowledge and was caught between the rotor and
stripper bar when the starter was jogged. Procedures for accurate accounting
of all employees present during hazardous unplugging operations of the
crusher and/or .a positive mechanical device to prevent movement of the
rotor were not provided.
Respondent's first line of defense against this citation is that no "repair" or
"maintenance" work was being performed on the crusher, and therefore this standard is
inapplicable to the facts of this case. I agree. The standard speaks to "repairs" to or
"maintenance" of the machinery or equipment in question. In this case, the crusher. The
respondent's employees were not performing any mechanical, maintenance or repair work
on the crusher or making any structural modification to the crusher. The only thing they
were actually working on were the rocks, breaking them up with a sledgehammer, and/or
otherwise dislodging them from the crusher.

3 30 C.F.R.

§ 56.14105 provides:

Repairs or maintenance on machinery or equipment shall
be performed only after the power is off, and the machinery or
equipment blocked against hazardous motion. Machinery or
equipment motion or activation fa permitted to the extent that
adjustments or testing cannot be performed without motion or
activation, provided that persons are effectively protected from
hazardous motion.

604

Accordingly, Citation No. 4337450 will be vacated herein. The mandatory
standard cited simply does not apply to the facts of this case. In my opinion, that standard
was written to apply to repair or maintenance evolutions, as those terms are commonly
used and not relatively minor annoyances that arise during the on-line production usage of
the machinery or equipment, that do not involve any adjustments, maintenance or repairs
to the equipment itself.
Citation No. 4337451
Citation No. 4337451, also issued on June 28, 1993, alleges a "significant and
substantial" (''S&S") violation of the standard found at 30 C.F.R. § 56.142004 and charges
as follows:
An audible warning or other effective means was not being
used to warn all employees working on or around the
Pettibone universal 5165 primary impact crusher of impending
moverhent. On June 25, 1993, at approximately 5:20 p.m.,
the crusher rotor was moved by jogging the diesel engine
starting switch. The rotor movement fatally crushed an
employee, who had reentered the crusher interior without the
crusher operator's knowledge. The victim and four other
employees had been working to remove large rocks which had
jammed or plugged the impact rotor.
Respondent's argument with regard to this citation is that there was no violation of
the cited standard because the crusher was being "jogged", not "started", but even if
"jogging" is construed to be the same as "starting" in this instance, other effective means
were used to warn persons potentially exposed to any hazard.
I disagree on both counts. First of all, the potentially dangerous movement of the
crusher is in fact movement of the impeller itself. When the crusher was "jogged", the
impeller moved, Danny Boisclair was caught by that impeller and crushed to death. He
was without a doubt a person exposed to a hazard from the equipment.

4

30 C.F.R. § 56.14200 provides:
Before starting crushers or moving self-propelled mobile
equipment, equipment operators shall sound a warning that is
audible above the surrounding noise level or use other effective
means to warn all persons who could be exposed to a haz.ard from
the equipment.

605

Secondly, once the cited standard is deemed applicable to the factual situation, the
inquiry turns to whether that standard was satisfied by either of the two allowable methods.
I find it was not. It is undisputed that there was no audible warning sounded before the
crusher was "jogged." That leaves us with the issue of whether other effective means were
used to warn persons potentially exposed to any hazard from the equipment. Again, I find
that there were not.
The Secretary argues that in order to be effective, the rule should be to the effect
that the operator will make certain that all persons are clear before "jogging" the crusher.
agree that would be an ideal means to comply with this standard, but I am aware of the
decision in the case of Secretary v. Morgan Corp., 12 FMSHRC 40 Uanuary 1990) (ALJ), 5
wherein Judge Koutras compared the mandatory standard at bar with its predecessor,
30 C.F.R. § 56.9005, and I understand that the standard cited herein, section 56.14200,
does not contain language requiring an equipment operator to be certain that all persons
are in the clear before starting his equipment. Although the old section 56.9005 did
require an equipment operator to determine with some degree of certainty that all persons
were in the clear befpre moving the equipment, I am fully cognizant that this requirement
has been deleted from the revised standard and it now only requires that either audible
warning be given or other effective means be used to warn persons potentially exposed to
a hazard from the equipment.
Respondent urges that the company had policies in effect that employees were not
to work in the crusher by themselves and that they were not to work "above" other
employees. Respondent maintains that all employees, including Boisclair, were aware of
these policies even through these rules were not written down anywhere and there is no
direct evidence that Dan Boisclair had ever received these instructions. I find that even if it
were so, this is plainly not a sufficiently effectjye means to warn employees who would be
unclogging the crusher that at least some degree of coordination between the crusher
operator and the "uncloggers" was required in order to address the hazards attendant to
such an operation.
It is clear to me that the violation of the cited standard is proven as charged.
Clearly, the violation was also "significant and substantial" and serious. It was a significant
contributing cause to a fatal accident.

5

The Commission granted Morgan's petition for discretionary review of Judge Koutras'
decision in this matter, but while pending on their docket, subsequently approved the parties'
settlement of the case and dismissed the proceeding. Secretary v. Mor2an Corp.,
12 FMSHRC 394 (March 1990).

606

Respondent also argues that it should not be charged with significant negligence in
this instance because the most direct and proximate cause of the accident and Dan
Boisclair's death was his own unpredictable conduct in returning to the interior of the
crusher unbeknownst to the crusher operator. I agree that Mr. Boisclair was certainly
negligent and played a major role in causing his own death. I would also assess a portion
of negligence to the crusher operator, who moved the impeller without knowing where
Boisclair was even though he knew he was in the area. These two men (Boisclair and
Brooner) were rank-and-file employees of the respondent and I am not assigning their
negligence to the respondent for purposes of assessing a penalty in this case. Southern
Ohio Coal Co., 4 FMSHRC 1459, 1463-65 (August 1982). However, there is plenty of
negligence left to go around in this instance. More particularly, I find the respondent was
negligent by not having an effective safety policy in place that specifically concerned
unplugging the crusher, an operation that reoccurred on a relatively frequent basis and
obviously could be hazardous duty for the "unpluggers" who actually enter the interior of
the machine. Once inside, they are clearly dependent on the crusher operator to know
where they are at al I times and to ascertain that they are clear before he moves the
crusher's impeller. It is unreasonable for the respondent to have believed that some
general knowledge about the crusher and a couple of general rules about working "above"
others and working by oneself would be sufficient to avoid the type of accident which in
fact occurred.
In summary, the evidence in this record persuades me to conclude that the
respondent had no effective means to warn al I persons who could be exposed to the
hazards of unplugging the crusher. Accordingly, I find the respondent is chargeable with
"moderate," or ordinary negligence in this case.
In assessing a civil penalty in this instance, I have also considered the respondent's
size, history of violations, and good faith abatement of the violation. Under the
circumstances, I find that a civil penalty of $7500 is appropriate, reasonable, and will
satisfy the public interest in this matter.
ORDER

Citation No. 4337450 IS VACATED and Citation No. 4337451 IS AFFIRMED .
The Walker Stone Company, Inc., is ORDERED to pay the Secretary of Labor a civil
penalty of $7500 within 30 days of the date of this decision.

J. Maurer
inistrative Law Judge

60 7

Distribution:
Ann M. Noble, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716 (Certified Mail)
Keith R. Henry, Esq., Weary, Davis, Henry, Struebing & Troup, 819 North Washington
Street, Junction City, KS 66441 (Certified Mail)
Katherine Shand Larkin, Esq., Jackson & Kelly, 1660 Lincoln Street, Suite 2710, Denver,
CO 80264 (Certified Mail)
dcp

608

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

APR 1 7 1995.

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 94 - 510- M
A.C . No. 10 - 01776 - 05517

v.
Plant No. 3
DEATLEY COMPANY, INC.,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Manning

This case is before me upon a petition for assessme nt of a
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 19·7 7, 30 U.S. C . § 801 et ~ (the " Act" ) . The .
parties filed a motion to approve settlement and order payment of
the proposed penalty. Respondent has agreed to pay the $252 . 00
penalty originally proposed for the single citation.
I have con sidered the representations and documentation submitted in t hi s case , and I conclude that the pro f fered sett l ement
is appropriate under the criteria set forth in Section llO(i) of
t h e Act.
Accordingly, the motion for approval of settlement is
GRANTED , and Respondent is ORDERED TO PAY the Secretary of Labor
the sum of $252.00 within 30 days of the date of this decision,
if it has not already been paid.

Law Judge
Distribution :
Matthew L . Vadnal , Esq . , Office of the Solicitor, U.S. Department
of Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101- 3212
Bria n DeAtley , Crushing Manager, DEATLEY COMPANY, INC . , 3665
Snake River Avenue, P.O. Box 648, Lewiston, ID 83501

RWM

609

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINI STRATIVE LAU JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH , VIRG IN IA 22041

APR 2 0 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No . PENN 94-448
A . C. No. 36-08191-03527

v.

Clutch Run Mine
DOVERSPIKE BROTHERS COAL CO.,
Respondent
DECI SI ON APPROVING SETTLEMENT

Before :

Judge Weisberger

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety
and Heal t h Act of 1977 (the Act) . Petitioner has filed a motion
to approve a settlement agreement and to dismiss the case. A
reduction in penalty from $3,200 to $2,200 is proposed .
I have
considered the representations and documentation submitted in
this case, and I conclude that the proffered settlement is
acceptable under the criteria set forth in Section llO(i) of
the Act.
WHEREFORE , the motion for approval of settlement is GRANTED ,
and it is ORDERED that Respondent pay a
nal t y of $2,200 within
30 days of this order.

A am Weisberger
Administrative Law Judge
Distribution:
Gayle M. Green, Esq., Office of the Solicitor, U. S. Dep artment
o f Labor, 14480 - Gateway Bldg., 3535 Market Street,
Phi l adelphia, PA 19104
Randall Rearick, General Manager o f Mining, Doverspike Brothers
Coal Co., Inc., R.D. #4, Box 271, Punxsutawney , PA 1 5767
\ml

610

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

_APR 2 11995

SPRINGFIELD UNDERGROUND, INC.,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. CENT 94-109 -RM
Citation No. 4321784; 1/11/94

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

Docket No . CENT 94-110 -RM
Citation No. 4321786; 1/12/94
Docket No. CENT 94-111-RM
Order No. 4321787; 1/12/94
Plant No . 1 Mine & Mill
Mine ID 23-00094
CIVIL PENALTY PROCEEDINGS

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

Docket No . CENT 94-131-M
A. C. No. 23-00094-05543

v.
Docket No. CENT 94-201-M
A. C. No. 23-00094-05546

SPRINGFIELD UNDERGROUND, INC.,
Respondent

Plant No. 1 Mine & Mill
CIVIL ' PENALTY PROCEEDING

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

Docket No. CENT 94-91-M
A. C. No. 23-00094-05542

v.
Plant No. 1 Mine & Mill
GRIESEMER STONE COMPANY,
(n/k/ a SPRINGFIELD
UNDERGROUND, INC. ) ,
Respondent

611

DECISION
Appearances:

Kristi Floyd, Esq. , Office of the Solicitor,
U. S. Department of Labor, Denver, Colorado, for
the Secretary;
Bradley S. Hiles, Esq., Peper, Martin, Jensen,
Maichel & Hetlage, St. Louis, Missouri, for
Contestant/Respondent.

Before:

Judge Maurer

These consolidated proceedings concern a proposal for
assessment of c ivil penalty filed by the Secretary of Labor
{Secretary) , against the mine operator (Springfield Underground,
Inc., hereinafter referred to as Springfield), pursuant to
section llO (a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 82 0 (a), seeking a combined civil penalty of $2,772,
for four alleged violations of the mandatory safety standard
found at 30 C.F.R. § 57 . 3200. 1 The various issues presented in
the civil penalty cases include the fact of violation, and if so
found, whether the violation(s) were 11 significant and substantial", whether some of the violation(s ) were "unwarrantable
failures 11 , and the appropriate civil penalty assessments to be
made for the violations, should any be found. The contest cases
filed by Springfield challenge the legality and propriety of the
cited violations.
Pursuant to notice, the cases were heard at Springfield,
Missouri, on January 4-5, 1995. Both parties have filed posthearing briefs.
I have considered the entire record and the
contentions of the parties and make the following decision .
1

30 C . F.R.

§

57.3200 provides as follows:

Ground conditions that create a hazard to
persons shall be taken down or supported
before other work or travel is permitted in
the affected area . Until corrective work i s
completed, the area shall be posted with a
warning against entry and, when left
unattended, a barrier shall be i nstalled to
impede unauthorized entry .

612

STIPULATIONS
The parties agreed to the following (Tr. 14-17):
1.
Springfield is engaged in mining and selling of crushed
and broken limestone in the United States, and its mining
operations affect interstate commerce.
2.
Springfield is the owner and operator of Plant No. 1
Mine & Mill, MSHA ID No. 23-00094.
3. Springfield is subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C . § 801
t l ~ ("the Act").
4.
matter.

The administrative law judge has jurisdiction in this

5.
The subject citations were properly served by a duly
authorized representative of the Secretary upon an agent of
respondent on the date and place stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, but not for the truthfulness or relevancy of any
statements asserted therein.
6. The proposed penalty will not affect respondent's
ability to continue in business.
7. The operator demonstrated good faith in abating the
violation (s) .
8. Springfield is a small mine operator with 78,118 hours
of production in 1992.
The "Loose Ground" Issue
As a general matter central to all four of the violations
alleged by the Secretary in these cases, I note that the terms
"hazardous ground conditions " and "loose ground" or "loose
material" are not specifically defined in the regulations.

"Loose'' is defined as "not rig i dly fastened or securely
attached." Webster's Third World New International Dictionary
(Unabridged) 1335 (1966). The term 11 loose ground" is defined as
"[b]roken, fragmented, or loosely cemented bedrock material that
tends to slough . . . . As used by miners, rock that must be
barred down to make an underground wo:r:kplace safe . . . . " Bureau
of Mines, U.S . Department of Interior, A Dictionary of Mining.
Mineral and Related Terms 658 (1968). In Amax Chemical Company,
8 FMSHRC 1146, 1148 (August 1986 ) , the Commission interpreted the
term "loose ground" to refer "general ly to material in the roof
(back), face, or ribs that is not rigidly fastened or securely
attached and thus presents some danger of falling."
For the operato r ' s empl oyees who testified concerning the
terminology, their working definition of "loose ground" was "any
material that would fall on its own. 11 The operator's position at
trial and in their post-trial brief wou l d add to that definition
"any material that could be 'barred down' using a hand scaling
bar . "
For the MSHA inspector who testified on behalf of the
Secretary, the paramount factor he used to determine "loose
ground" was more or less a hindsight test. If the material, once
tentatively identified as "loose," could be brought down by any
means necessary, then that demonstrated it was "loose . "
In a somewhat related case involving the roof in an
underground potash mine, Aillax Chemical Corp., supra, 8 FMSHRC at
1149, the Commission stated that a variety of factors should be
considered in determining whether loose ground is present,
including but not limited to the results of sounding tests, the
size of the drummy area, the presence of visible fractures and
sloughed material, "popping" and "snapping" sounds in the ground,
the presence, if any, of roof support, and the operating
experience of the mine or any of its particular areas. In this
case, however, as a practical matter the Secretary's evidence was
largely limited to the results of a visual inspection of the
cited areas and the subsequent scaling operations. The inspector
admitted he did not consider the operating experience of the mine
with respect to loose ground, the presence or absence of sloughed
material, or popping or snapping sounds in the ground. He also
admittedly is not familiar with the rock formation of the mine .

614

With that general outline in mind, I proceed to the
individual matters at bar.
DISCUSSION, FINDINGS, AND CQNCLUSIONS
I.

Docket No. CENT 94-91-M

Citation No. 4111868 was issued by MSHA Inspector
Michael R. Roderman on October 13, 1993 under section 104(a) of
the Mine Act, and alleges a violation of the mandatory safety
standard found at 30 C.F.R. § 57.3200. The condition or practice
cited by the inspector is described as follows:
The operator of the Tamrock Drill was observed
drilling in a heading in the underground mine area
known as the "Southwest Corner." There were large
pieces of loose material on the rib directly behind and
to the left of the driller. A person could not safely
walk around the drill without being exposed to possible
"fall of ground." The back height in this area is
about 30 feet high. The fall of the amount of rock
observed from these heights could easily result in
death.
The drill was immediately removed from the
area, and scaling started.
On the day in question, Inspector Roderman, accompanied by
Mr. Tony Brasier, the Safety Director and Mining Engineer for
Springfield, observed what he felt to be loose material
approximately 20 feet high on a rib in the "Southwest Corner."
He described this as large pieces of loose material directly
behind and to the left of an area where drilling was taking
place. He later observed that this loose material was brought
down "quite easily," but does not recall what method was used to
bring it down. He testified that ' the mine used both hand scaling
and a mechanical scaler with a hydraulically operated tooth.
In fact, it was brought down by the Gradall 880 mechanical
scaler, and according to the employee who actually performed the
scaling activity, none too easily.

615

The Gradall 880 is a large machine weighing 26 1/2 tons and
having a reach of 42 feet in the air . The cab of the Gradall
sits more than 6 feet high and the operator's eye- l evel is
approximately 10 or 11 feet off the floor.
The Gradall 880 also
has powerful lighting, with six high intensity lights, plus a
spotlight for the operator. The machine is capable of illuminating any rock surface it faces.
The lights are evenly
distributed from low running lights, to l ights on the top and
sides of the cab attached to the boom, which can reach to the top
of the mine. The Gradall has a single telescopic arm, or boom,
with a large t ooth on the end . Th rough the use of a joy stick,
the Gradall operator may manipulate the large tooth in the same
directions and with the same motions as a person moves his hand.
The tooth is capable of delivering enormous force -- 16,000
pounds of curling force.
In addition, the boom can deliver up to
19,000 pounds of force when it attacks a rock face.
The Gradall
is capable of e _x cavating rock with tons of force and enormous
leverage.
Mr. Shannon Davis, the employee who operates the
Gradall 880, and performed the scaling activity which the
inspector witnessed, very credibly testified to the effect that
the materia l in question was not "loose." He is an hourly
employee of the company, a member of the Operating Engineers
Union, and an experien ced scaler . Mr. Davis testified that when
. he initially positioned his scaler in front of the rib in
question, he did not observe any loose ground . He did bring
material down from the wall, but only after exerting "full power 11
with the mechanical scaler. He brought down "a very small rock
that was basically excavated off the wall. 11 By his account, the
mechanical scaler actually broke the rock away from the other
stone on the rib . He also opined that that rock could not have
been brought down by hand scaling nor would it have fallen on its
own.
This version of events was corroborated by Mr. Brasier. He
testified that although material was brought down by the Gradall
scaler, it had to be pounded and scraped down. He described the
machine as 11 shaking violently . .
. [y]ou could see the machine
sit there and shake and take a lot of abuse."

616

Based on the preponderance of evidence available on this
point of contention, I conclude that the material was not
"loose . " The testimony of Mr. Davis was very significant on this
point.
If the material has to be pried off the rib with
thousands of pounds of mechanical force, it is not "loose . "
Accordingly, I find no hazardous ground conditions existed as
·alleged in Citation No. 4111868 and it will therefore be vacated
herein.
II.

Docket Nos. CENT 94-109-RM and CENT 94-131-M

Citation No. 4321784 was also issued by Inspector Roderman
under section 104(a) of the Act on January 11, 1994.
It alleges
a violation of 30 C.F.R. § 57.3200, and states as follows:
Loose material was observed on the left pillar in
"Knob Tunne·l 11 area at Grid 375-550. The mechanical
scaler had earlier scaled the face in this area, but
had not checked for loose on the pillars before
reaching the face. The amount of loose that was scaled
down (approximately 2 loader buckets full) and the ease
with which it came down indicate that someone ~ould
have easily been fatally injured in this area. The
driller was the next scheduled person to ent~r this
area after the loader cleaned up the debris.
According to Inspector Roderman, this loose was 25-30 feet
above the floor level and filled approximately two full front
loader buckets after it was scaled down.
Once again, however, there is a serious difference of
opinion concerning the threshold issue of whether the material
was "loose" in the first place.

.

Shannon Davis was again the Gradall operator who scaled the
pillar at the inspector's direction. He testified that the
material he brought down was "broken" off the pillar by the
Gradall. He started with a rock that stuck out from the top of
the pillar and, at Mr. Brasier's direction, used the full power
of the Gradall to bring it down.

617

An experienced scaler with the hand bar as well, Mr. Davis
opined that the rock could not have been brought down by hand;
nor would the vibrations from nearby scaling or drilling have
caused the rock to fall. After bringing down the rock at the
top, Mr. Davis "hit" the pillar repeatedly with the Gradall
tooth, breaking off more rock.
Another discrepancy with this citation involves the amount
of rock excavat ed off the pillar by the Grada l l.
Inspector
Roderman recorded the volume on the citation as "two loader
buckets full. 11 Shannon Davi s, as it turned out, also operated
the loader which picked up the scaled-down stone. He testified
that the volume was only about one - third of on e bucket, a
difference of several tons in volume from Inspector Roderman•s
estimate. Tony Brasier•s recollection supported Mr. Davis.
The Secretary bears the · burden of proving these violations
by a preponderance of the evidence and in this instance it just
is not here.
Once again, I made the critical credibility choice
in favor of Mr. Davis and find that the material brought down by
the Gradall was not "loose," does not constitute a hazardous
ground condition under the standard cited, . and is therefore not a
violation of that standard. Determining material is "loose"
based on the fact that it can be brought down by such tremendous
force goes well beyond what can reasonably be contemplated by the
standard at bar. Accordingly, Ci tation No. 4321784 will be
vacated herein.
III. Docket No. CENT 94-110-RM (Citation No. 4321786
assessed in Docket No. CENT 94-201-M)
Citation No. 4321786 was issued by Inspector Roderman on
January 12, 1994, under section 104(d) (1) of the Act. Like the
others, this citation alleges a vio~ation of 30 C.F.R. § 57.3200.
The condition or practice alleged by the inspector is as follows:
Loose material was observed on the ribs and
pillars in the "Skinny Pillar" area of the mine. A
front-end loader and two haul trucks were mucking a
heading in this area. The trucks were traveling
directly by large amounts of loose. The loose measured
about 3 foot diameter to about 6 foot by 12 foot by
l foot thick, in some locations. Even though all
persons observed were in their vehicles, if a fall of
ground did occur, they could still be seriously
618

injured.
It was determined that the company did not
take all steps necessary to prevent this occurrence, as
they did not insure that the area was properly checked
for loose after blasting and prior to mucking. This is
an unwarrantable failure.
The inspector testified that numerous factors might cause
what he considered to be loose material to fall, including
vibrations from equipment or equipment bumping against the ribs
or pillars.
The scaling in this instance was done by hand, with scaling
bars in a highlift to reach the affected area.
The inspector was
not present. However, the hand scalers abating the citation
admittedly brought down several "fist-size" pieces of loose
material. This is considerably less than the inspector described
but is still su~f icient to create a "hazard to persons" and
violate the cited standard. Employees were working in the area
and were exposed to the hazard presented by this 11 loose. 11
The inspector also marked t he citation "significant and
substantial" ( 11 S&S 11 ) •
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could s i gnificantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division.
National Gypsum Co., 3 FMSHRC 825 (April 1981).
In Mathies Coal Co., 6 FMSHR~ 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove:
(1)
the underlying violation of a
mandatory safety standard;
(2)
a discrete safety
hazard--that is, a measure of danger to safety-contributed to by the violation;
(3)
a reasonable
619

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 (August 1985), the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U. S . Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d) (1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U. S. Steel
Mining Company. Inc., 6 FMSHRC 1866, 1868 (August
1984); U. S. Steel Mining Company . Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
The violation of the cited standard has been proven to my
satisfaction.
F~rthermore, I find that if the condition were
left unabated, continued vibrations from further blasting could
adversely effect the status of the loose material.
It would
likely continue to deteriorate over time . The rock, which was
already loose, was not going to get any tighter over time; it
would only get looser. Assuming no one corrected the condition,
it would eventually fall, and I concur with the inspector that a
fist-size rock falling from overhead would be reasonably likely
to cause a serious injury to a person or persons below . I
therefore find that the violation was "S&S" and serious .
The Secretary also argues that the violation was the result
of Springfield's unwarrantable failure to comply with the
standard at bar.
In Emery Mining Cox:p . , 9 FMSHRC 1997, 2004 (December 1987),
t he Commission determined that unwarrantable failure i s aggravated conduct constituting more than ordinary negl i gence. This
determination was derived, in part, from the plain meaning of
"unwarrantable" ("not justifiable" or "inexcusable " ), "failure"
("neglect of an assigned, expected or appropriate action"), and
" negligence " (the failure to u se such care as a reasonably

620

prudent and careful person would use, and is characterized by
"inadvertence," "thoughtlessness," and "inattention"). 9 FMSHRC
at 2001 . Unwarrantable failure is characterized by such conduct
as "reckless disregard, 11 "intentional misconduct," "indifference"
or a "serious lack of reasonable care. 11 9 FMSHRC at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94
(February 1991) . The Commission has also stated that use of a
"knew or should have known" test by itself would make unwarrantable failure indi stinguishable from ordinary negligence, and
accordingly, the Commission rejected such an interpretat ion. A
breach of a duty to know is not necessarily an unwarrantable
failure. The thrust of Emery was that unwarrantable failure
results from aggravated conduct, constituting more than ordinary
negligence. Secretary v. Virginia Crews Coal Co., 15 FMSHRC
2103, 2107 (October 1993) .
The evidence does not support any 11 indifference, willful
intent or serious - lack of reasonable care" on the part o f the
operator with regard to the 11 loose material" in the "Skinny
Pillar" area .
First, I found the previously issued citations (October 13,
1993 and January 11, 1994) citing "loose ground" as a hazardous
ground condition were not violations. Therefore, these previous
citations cannot serve as a basis for the Secretary's contention
that respondent was 11 indifferent 11 (i.e . , that respondent was
aware of the violative conditions yet failed to correct them) .
Secondly, Inspector Roderman testified that the mine
foreman, Mr. Vandenburg, had inspected the area the morning the
citation was written but failed to correct obvious "loose."
However, the operator provided credible testimony that the
scalers could not readily identify the "loose" and questioned
whether they were even in the correct area. I find that there is
at least a good faith, honest difference of opinion concerning
what constitutes loose material. I do not believe it was as
"obvious" as the inspector thinks it was . In this particular
instance I am giving the inspector the benefit of the doubt in a
close factual case that the material was in fact "loose" and apt
to fall. I also find that the operator is chargeable with but
ordinary or moderate negligence in this instance.

621

Therefore, .I conclude that the violation of the cited
standard due to the presence of "loose" in the "Skinny Pillar"
area was not an unwarrantable failure, and the section (d) (1)
citation will be modified to an "S&S 11 citation issued under
section 104(a) of the Mine Act.
After considering the statutory criteria contained in
section llO(i) of the Act, I assess a civil penalty of $100 for
the violation found herein.
IV .

Docket No. CENT 94-111-RM (Order No. 4321787 assessed
in Docket No. CENT 94-201-M l

Section 104(d) (1) Order No. 4321787 was issued on
January 12, 1994, by Inspector Ro derman, and alleges a violation
of the mandatory standard found at 3 0 C.F.R. § 57.3200. The
condition or pr..~ctice alleged by the inspector is as follows:
Loose material was observed on the ribs and
pillars in the "Sump Run" area of the mine. A frontend loader and two haul trucks were mucking a heading
in this area. The mucking crew had been sent to this
area after the area they had been in earlier had been
"shut down" due to loose in that area also. Management
was notified of the loose problem in the mine and the
need to change the current mining cycle to include
scaling prior to mucking commencing. The loose that
was observed in this area varied in size and was from
about 10 feet above ground level near the back (about
30 feet) and although all persons were in their
vehicles, they still could be seriously injured. This
is an unwarrantable failure.
The hazard alleged in this Order is that of a "serious
injury" from the fall of loose material onto cabs of a front-end
loader and two haul trucks. According to Inspector Roderman's
testimony, the mine employee exposed to the greatest risk was the
loader operator who, by the inspector's account, was parked under
a large rock perched 30 feet high on a pillar "gaped open so
seriously, I am not even sure how it was hanging there . "
Respondent's witnesses agree that the large rock in question
was there and that it came down "easily .." Shannon Davis used the
Gradall to bring down the rock. By his account, he used "full
622

throttle" and "basically dragged it off" of a ledge. Tony
Brasier recalled that Mr . Davis used the Gradall to break the
rock in two before taking it off the ledge . Davis and Brasier
also opined that the size and weight of the rock was such that
normal vibrations throughout the mine would not have caused it to
fall.
Whether or not this particular rock was "loose," there
remains a question of whether it created a present hazard to
persons in the affected area.
I will discuss that issue later in
this decision.
At the inspector's immediate direction, Davis proceeded to
scale other pillars in the vicinity. He moved the Gradall to at
least 16 other locations, on the various sides of six other
pillars. By the account of witnesses Brasier, Vandenburg, and
Davis, Inspector Roderman would direct the Gradall operator to
scale a pillar by shining his (Roderman's) mining light on that
pillar. When the scaling was done to Inspector Roderman's
satisfaction, he would flash his light into the operator's cab as
a signal to move on to another area . Mr. Davis testified that he
did not observe any loose material in this area and opined that
he would not have wasted his time scaling these pillars. Mr.
Brasier testified that referring to one of these pillars, the
inspector had claimed there was loose and directed it to be
scaled down. When Mr. Davis proceeded to scale it with the
Gradall and nothing would come down despite Davis' best efforts,
the inspector said:
"That's tight. Lets go somewhere else."
Mine Foreman Marty Vandenburg likewise did not see any loose. He
did see a few rocks come down that Davis was able to break loose
with the Gradall, but in his opinion, they were not loose to
begin with.
It occurs t~ me that this particular inspector may just have
an overly acute sense of what material is "loose." If he is
consistently the only one who thinks a rock is loose while
everyone else does not think so and the rock ultimately has to be
pried off the rib or pillar {essentially excavated) with
thousands of pounds of force, I agree that perhaps it was not
"loose" in the first place.
Basically, Inspector Roderman 1 s determination of whether
material is "loose" seems to depend on whether or not the Gradall
can bring the material down. I do not believe that is a
reasonable interpretation of the standard.

62 3

To prove a violation under 30 C.F.R. § 57.3200, the
Secretary must prove two things:
(1)
a hazardous .ground
condition existed in an area, and (2)
a person could be expected
to work or travel through the area affected by the hazardous
ground condition.
With regard to the second item of proof as it relates to the
larger rock scaled down first by Mr. Davis in the "Sump Run"
area, the preponderance of evidence is to the effect that the
loader identified by the inspector as being parked directly under
the rock, in fact could not gain access to the pillar in question
because shot rock littered the ground surrounding the pillar.
Mr. Davis opined that neither the loader or a haul truck could
have driven underneath that rock while the scattered stone (shot
rock) was on the floor. Mr. Brasier's testimony and computer
assisted drawing of the area supports Davis' opinion.
Based on the foregoing facts and circumstances, I conclude
that there were · no ground conditions in the "Sump Run" area of
the mine that created a hazard to persons unless and until the
shot rock was cleaned up. The cited standard protects only
against presently existing hazardous conditions, not possible
future hazardous conditions. Hence, I find no violation of the
cited standard and Order No. 4321787 will be vacated herein.

ORDER
On the basis of the foregoing findings and conclusions, IT
IS ORDERED THAT:
Section 104 (a) 11 S&S 11 Citation No. 4111868, October 13,
1993, citing an alleged violation of 30 C.F.R. § 57.3200, IS
VACATED.
1.

2. Section 104(a) "S&S" Citation No. 4321784, January 11,
1994, citing an alleged violation of 30 C.F.R. § 57.3200, IS
VACATED.
3. Section 104{d) (1) Citation No. 4321786, January 12,
1994, citing an alleged violation of 30 C.F.R. § 57.3200, IS
MODIFIED to an "S&S" citation issued under section 104(a) of the
Mine Act.
4. Section 104(d) (1) Order No. 4321787, January 12, 1994,
citing an alleged violation .of 30 C.F.R. § 57.3200, IS VACATED.

624

5. Respondent pay the Secretary of Labor $100 as a civil
penalty within 30 days of this Decision.

Distribution:
Kristi Floyd, Esq., Office of the Solicitor, U. S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail )
Bradley S. Hiles, Esq., Peper, Martin, Jensen, Maichel and
Hetlage, 720 Olive Street, 24th Floor, St. Louis, MO 63101
(Certified Mail)
dcp

625

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, SUITE 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 2 1 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of GARIS MARTIN,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. KENT 94-969-D
MSHA Case No. PIKE CD 94-10
Road Creek Mine No. 1

BRANHAM & BAKER COAL COMPANY,
Respondent
DECISION APPRQVING SETTLEMENT
Appearances:

Mary Sue Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee
for the Complainant;
Tony Oppegard, Esq., Lexington, Kentucky on
behalf of Garis Martin and William K. Doran, Esq.,
Washington, D.C. for the Respondent.

Before:

Judge Melick

This case is before me upon a Complaint of Discrimination
under Section 105(c) of the Federal Mine Safety and Health Act of
1977 (the Act) . At hearing the parties filed a motion to approve
a settlement agreement and to dismiss the case. The individual
Complainant, Garis Martin, consented to the agreement on the
record.
I have considered the representations and documentation
submitted in this case, and I conclude that the proffered
settlement is acceptable.
WHEREFORE, upon the acknowledged receipt of the agreed
settlement amounts, the motion for approval of settlement is
GRANTED.
It is further ORDERED that, if it has not already done
so, Respondent pay a civil penalty of $1.00 within 30 days of
this order. This nominal civil penalty is in recognition of
conflicting views of the evidence, the vagaries of the trial

626

process and that the monetary award to the complainant in this
case is a disincentive in itself against future violations of
Section lOS(c).

Distribution:
Mary sue Taylor, Esq . , Office of the Solicitor, U. S. Dept. of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862
.
Tony Oppegard, Esq., Mine Safety Project of the Appalachian
Research and Defense Fund of Kentucky, Inc., 630 Max:welton Court,
Lexington, KY 40508
William K. Doran, Esq., Michael T . Heenan, Esq., Smith, Heenan
and Althen, 1110 Vermont Ave., N.W., Washington, o.c . 20005
/jf

627

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

APR 2 1 1995

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-1225
A.C. No. 15-17296-035128

v.

Mine: #5
COUGAR COAL COMPANY,
Respondent

DECISION
Appearances:

Mark Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Link Chapman, Safety Director, Cougar Coal
Company, Lovely, Kentucky, for Respondent.

Before:

Judge Amchan

In the wake of at least two recent underground explosions
attributed to miner smoking, MSHA performed numerous simultaneous
inspections to determine the effectiveness of its efforts to
prevent such tragedies. On May 19, 1994, the agency conducted
a "smoki·ng sweep" at 1 75 mines.
MSHA determined that to insu~e maximum effectiveness of
these inspections, it was necessary to maintain as much secrecy
as possible regarding the smoking sweep. Instructions to local
MSHA offices were sent out after working hours on May 18, 1994,
so that personnel performing these inspections did not know
about their task until they arrived at work on the morning of
May 19.

628

The inspectors were instructed to tell operator personnel
above ground that underground personnel were not to be informed
that MSHA representatives were at the site.
Inspectors were also
instructed not to tell operator personnel the purpose of the
inspection or the reasons for their request for secrecy (Tr. 42).
The agency teams consisted of three people, two inspectors
who travelled underground and another person who stayed above
ground to monitor communications between operator personnel above
ground and those below. Secrecy was intended to prevent miners
from having an opportunity to dispose of or hide smoking
materials before the arrival of the inspectors at the miners•
underground work areas.
Of the 175 mines visited in this smoking sweep, the desired
element of surprise was achieveq at all but five (Tr. 22).
Smoking materials were found at 17 of the 170 mines at which
secrecy was maintained. No such items were found at the five
mines where underground miners had some degree of forewarning as
to the inspectors• presence (Tr. 22).
Respondent's No. 5 mine in Johnson County, Kentucky, was
one of the 175 mines visited during the sweep. The inspection
team at this mine included Coal Mine Inspectors Danny Tackett
and Charles Moore, and Education and Training Specialist Wanda
Vanhoose. Upon their arrival at the mine, the MSHA inspection
team met Respondent's superintendent, James Osborn, and his son,
John Osborn, who worked above ground.
Mr. Tackett's account of what transpired is as follows:
we advised Mr. Osborn that we were going underground
and we requested that he not inform his people underground that we were there and coming underground (Tr. 40).

*

*

*

*

*

I asked him not to notify the underground employees that
we were there and coming underground. And Mr. Osborn
stated that it was Company Policy that they notify the
underground personnel before anyone went underground.

629

I suggested that he call Mr. Chapman, [the] safety
director, or some of the other management personnel,
and discuss that with them prior to letting them know
that we were coming in. (Tr. 41-42).
A few minutes later Section Foreman Mike Castle called
Osborn from underground and asked that he restore power to a
high-voltage cable that Respondent had been having trouble with
that morning. Osborn told Castle he could not restore power
because there were three federal inspectors in his off ice who
were ready to come underground (Tr. 43). Although he said
nothing about it at the time, Osborn later stated that he was
concerned with the inspectors' safety (Tr. 59-60, 76).
Inspectors Tackett and Moore proceeded underground to the
working section. It took them 20 minutes to reach the working
section. During that period there were several phone calls
between Superintendent Osborn and Respondent's personnel
underground, during which Osborn inquired whether the MSHA
inspectors had reached the section (Tr. 77).
When the inspectors arrived at the section, production
activities were not underway. Tackett and Moore asked Foreman
Castle to assemble all the miners and conduct a body search and
a search of their lunch buckets for smoking materials. Castle
did so and found nothing (Tr. 46-47). The inspectors searched
the continuous mining machine, the roof bolting machine and the
shuttle car and also found no smoking materials (Tr.58) 1 •
MSHA issued Respondent Citation No. 4517561 alleging that
it violated§ 103(a) of the Act in notifying the underground
employees of the inspectors' presence after being asked not to
do so. Cougar's negligence was characterized as "reckless
disregard" and a $8,250 civil penalty was proposed for this
alleged violation.

During this inspection Tackett and Moore were only looking
for violations of regulations relating to smoking and smoking
materials (Tr. 59). However, if they had observed other types
of violations, which they did not, they would have cited
Respondent for them (Tr. 59).
1

630

The Secretary contends that by notifying its underground
employees of the inspector's presence, Respondent effectively
denied him the right of entry into a coal mine granted by
§ 103(a).
Section ·103(a) provides that authorized representatives of the Secretary shall make frequent inspections and
investigations in coal or other mines for several purposes,
including compliance with mandatory health and safety standards.
This provision also states that the Secretary shall have a
right of entry to, upon, or through any coal or other mine for
the purpose of making any inspec t ion or investigation under the
Act.
The Secretary argues, and I agree, that this "right of
entry" is broader than merely giving the Secretary a right to
physically enter the mine .
It includes the right to use any
investigatory technique reasonably related to the discovery of
violations, so long as it is employed within reasonable limits
and in a reasonable manner. ~ Donovan v. Enterprise Foundry,
..rrui., 751 F.2d 30 (1st Cir. 1984).
MSHA's request or demand that surface personnel not alert
underground personnel to the inspectors' presence in the smoking
sweep investigations was a reasonable investigative technique
which the agency was entitled to employ2 • The prohibition
against smoking and smoking materials underground and the
requirement that operators develop programs to insure that
smoking materials not be carried underground was enacted by
Congress as part of the 1969 Coal Act, 30 U.S.C. § 877(c).
MSHA's regulatory prohibitions· at 30 C.F.R. §§ 75.1702 and
75 . 1702-1 simply track the statutory requirements.
The legislative history of the 1969 Act noted that Bureau
of Mines' records indicated that there had been 28 actual and
nine possible gas ignitions or explosions that were caused by
smoking materials between 1952 and 1968. As a result of these

2I

deem it unimportant that Inspector Tackett's testimony
indicates that he requested, rather than demanded, that Osborn
not alert underground personnel to MSHA's presence.
In the
context of an MSHA inspection, regardless of the words chosen,
a reasonably prudent operator should deem such a 11 request" to
also be a demand.

631

incidents, 38 miners were injured and 13 were killed, Section
by Section Analysis accompanying Senate Report 91-411, 91st Cong.
1st Session, Legislative History of 1969 Coal Act at 51 .
It was obviously very important to Congress that the
government be able to take effective measures to prevent
smoking-related ignitions and explosions.
In light of the
congressional purpose and the recent fatal explosions which MSHA
believes are smoking-related, its insistence on secrecy until it
arrived at the working sections was reasonable.
MSHA's right of entry includes the right to be free from
interference from the mine operator that would frustrate its
legitimate objectives. United States Steel Corporation, 6 FMSHRC
1423 (June 1984), Calvin Black Enterprises, 7 FMSHRC 1151 (August
1985) . Thus, in United States Steel Corporation, the Commission
affirmed a citation alleging a violation of § 103 of the Act when
the operator ref used to provide transportation to an inspector
which effectively prevented him from inspecting an accident
scene.
Similarly, in Calvin Black Enterprises, the Commission
affirmed a citation issued for violation of§ 103(a) when an
operator refused to allow an inspection without advance written
permission. Although Black involves operator conduct directly
in conflict with the Act's prohibition against providing advance
notice of an inspection, I conclude that it also violates
§ 103{a) to interfere with MSHA's use of any reasonable
inspection technique.
In summary, when Superintendent Osborn informed his underground foreman of the inspectors' presence on May 19, 1994,
Respondent violated§ 103(a) of the Act. Although Osborn may
have had subjective reasons for not complying with the
inspectors 1 request, I view thes~ reasons as being relevant
to size of the civil penalty to be assessed, rather than to
the question of whether the superintendent's conduct violated
the Act .
Mr. Osborn may have had some concerns about the inspectors'
safety.
These concerns do not, however, excuse his failure to
comply with the inspectors' request. Moreover, there is nothing

632

in the record to indicate that he explained his concerns to the
inspectors prior to informing his foreman of the inspectors'
presence (Tr. 59-60, 76) .
From an objective standpoint, or that of a reasonably
prudent person in Mr. Osborn's situation, his concerns do not
appear to have been legitimate. There was a possibility that
the inspectors could have been injured by the high-voltage cable
when power to it was being restored. However, there were several
feasible means of preventing such injury other than informing his
underground foreman of the inspectors' presence.
Obvious alternatives would be to ask the inspectors to delay
their trip underground until he restored power or to discuss with
the inspectors a route that would avoid or minimize exposure to
the cable (Tr. 94).
Finally, Osborn conceded that he could have
left the power off until the inspectors reached the working
section (Tr. 87).
Although Respondent also cites its company policy that the
section foreman must be informed before any person enters a
section, a company policy does not take precedence over MSHA's
statutory right of entry.
In Calvin Black Enterprises, the
operator could not circumvent the prohibition against advance
notice by instituting an inconsistent company policy. Similarly,
Respondent is not entitled to rely on a company policy to prevent
MSHA from employing a reasonable investigatory technique that is
encompassed in its right of entry . Moreover, Superintendent
Osborn conceded that his understanding of the company policy was
that it did not apply to MSHA inspectors (Tr. 91).
Assessment of a Civil Penalty
MSHA proposed a civil penalty of $8,250 in this case. After
considering the penalty assessment criteria in§ llO(i) of the
Act, I conclude that this proposal is too high and that a civil
penalty of $1,000 is appropriate given the facts of this case.
The evidence regarding the operator's history of previous
violations is of little value in assessing a penalty.
Exhibit P-7 indicates that Respondent has been cited for
30 violations between September 1992 and May 19, 1994. Nothing
in this record indicates the s~gnificance of this record .

633

Respondent has apparently never been cited for an inadequate
search program for smoking materials. Thus, I find Respondent's
prior violation history largely irrelevant to the size of the
penalty.
The size of Respondent ' s business is simi larly of marginal
value at arriving at an appropriate penalty. Exhibit 8 indicates
that Respondent produced 269,706 tons of coal in the last year
for which MSHA has data. However, Beech Fork Mining Company,
which controls Respondent, produced over 1 ,800,000 t ons (Exh-8,
Tr. 23 ) . According to Table I .I of 30 C.F.R. § 10 0 .3, MSHA
considers Beech Fork a medium sized operator.
There is nothing in the record that suggests the $8,250
proposed penalty would jeopardize Respondent's ability to stay
in business. Similarly, the good faith rapid abatement penalty
factor is irrelevant to this case. Once Mr. Osborn informed his
foreman of the . inspector's presence, the benefit of surprise in
conducting the inspection was permanently lost.
It is difficult to assess the gravity of the violation
because there is no way of knowing whether anyone had smoking
materials they were able to dispose of in the 20 minutes it
took the inspectors to reach the working section. There is
no indication that Respondent's smoking search program was
inadequate, or that anyone had ever been caught with smoking
materials (Tr. 55, 83-84). However, it is always possible that
a miner had such items with him underground on May 19, 1994.
Given this uncertainty, I conclude gravity to be largely
irrelevant in arriving at an appropriate civil penalty .
The penalty factor most relevant in assessing this penalty
is Respondent's negligence, or intent, in interfering . with the
Secretary's right of entry. Mr. Osborn obviously did not have
a specific intent to frustrate t~e search for smoking materials
since he did not know that was the purpose of the inspectors '
visit (Tr . 42, 87).
Even though the inspectors observed no violations during
their trip to the working section and back {Tr. 59), forewarning
of the inspectors' presence may be useful in avoiding citations
for certain types of violations. It is impossible to know
whether this occurred to or motivated Mr. Osborn. In any event,

634

I do not impute any improper intent to the superintendent . It is
also important to keep in mind that Osborn did not initiate the
call to Foreman castle and that he did need to respond to
Castle's request for power (Tr. 43-44).
Given his discussion with the inspectors prior to receiving
Mr . Castle's call and lack of objectively good reasons for not
honoring their request, I believe Mr. Osborn was moderately
negligent in advising Castle of the MSHA's presence at the mine.
I believe his negligence, given the circumstances, warrants a
civil pen.a lty of $1, ooo.
ORDER

Citation No. 4517561 is affirmed and a civil penalty of
$1,000 is assessed.
This penal~y shall be paid within 30 days
of this decision.

c~ a{.~.nl/~0"'--

Arthur J. Amchan
Administrative Law Judge
Distribution:
Mark R . Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
(Certified Mail)
Link Chapman, Safety Director, Cougar Coal Company, Inc.,
P.O. Box 190, Lovely, KY 41231 (Certified Mail)

/lh

635

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

APR 2 4 1995,
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Pet i tione r
v.

CI VIL PENALTY PROCEEDING
Docket No . LAKE 94-126-M
A.C. No. 11 - 02742-05516
Laco n Plant

MIDWEST MATERIAL CORPORATION,
Respondent
DECISION
Appearances:

Lisa A. Gray, Esq . , Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois,
for Petitioner;
Paul Williams, President, Midwest Materials
Company, Naperville, Illinois, Pro Se, for
Respondent

Before:

Judge Amchan
Summary

On the morning of May 27, 1993, Thomas Reaska, a miner
employed by Respondent, Midwest Materials Company, died in an
accident in Lacon, Illinois. Part of a crane boom on which
he was working dropped on him. The Mine Safety and Health
Administration {MSHA) conducted an investigation of the accident
and issued Citation No. 4101896, ,pursuant to section 104(d) {l)
of the Act . MSHA proposed a $20,000 civil penalty for the
alleged violation.
As discussed below, I affirm a section 104{a)
citation and assess a $1,500 civil penalty.
Events Leading Up to the Accident
In April, 1993, Respondent, took control of a sand and
gravel processing facility next to Route 26 in Lacon, Illinois
(Tr . 59, 243-44). Midwest Material processed some material at

636

this plant to have a stockpile available for customers {Tr. 131,
243-44, 285-86) . On May 27 , 1993, Re s pondent was preparing to
move the plant across Route 26, to a site near the river bed
from which it extracted sand and gravel {Tr. 272-73, 280 - 81).
To disassemble and move the plant, Respondent planned to
use an American 599C mobile crawler crane (Tr : 41). A 20-foot
section had to be added to the crane boom to accomplish this
task (Tr. 41 ) . Richard Walsh, Respondent's on- site superintendent, instructed Edward Schumac h er, a working foreman, and
Mr. Reaska to extend the length of the boom (Tr. 280-81, 294-95).
Both men had done this job before (Tr. 67-68, 75-77 ) .
Schumacher and Reaska had worked for Respondent only a few
weeks (Tr. 38-39). They had previously been employed for many
years by Midwest Sand & Gravel Company, a firm unrelated to
Respondent (Tr. 39, 70, 75). Midwest Sand & Gravel was owned by
Jerry Henry, who sold the sand and gravel plant to Respondent
(Tr. 57, 62).
After the sale, Henry acted as a consultant to
Respondent at the Lacon site (Tr. 57, 111-15, 261-64).
On the morning of May 27, Mr. Schumacher got into the cab
of the crane and lowered its boom. The normal procedure for
this task is to lower the boom to the ground. However , Reaska
signaled Schumacher to stop when the boom was approximately
five feet off the ground (Tr. 42) .
The suspension lines running from the top of the cab to
the end of the boom are normally relaxed and attached to the
first section of the boom (the section closest to the cab) . A
device on the suspension lines, the cradle, secures them to the
boom . After that attachment is made the pins connecting the
first and second sections of the boom are driven out of their
holes and the sections separate. The first section is safely
supported by the crane ' s suspension lines and the crane is backed
away from the dismantled sections . Additional sections can then
be added (Tr. 43 - 48, Exh. G-1).
On May 27, 1993, the suspension l ines were not r elax ed and
attached to the first section of the boom. Schumacher went to
his truck, nearby the crane, to get a cable come - along . The
come-along is normally used to pull t he cradle down to the boom.

637

While Schumacher was at his truck, Reaska started driving the
pins out between the first and second sections of the boom
(Tr.49).
Jerry Henry drove up and started talking to Schumacher.
It
is not clear whether they discussed the crane extension or only
other matters (Tr. 49-51). Henry was not present to supervise
this operation. His presence at the time of the accident was
purely fortuitous (Tr. 106-07, 115, 294-95). After a minute or
two Schumacher and Henry approached the crane. Reaska knocked a
pin out of its hole and the boom pivoted and dropped on top of
him. Henry was knocked down by the boom but was not seriously
injured . Reaska died at the scene (Tr. 51-54).
The citation
This accident was investigated by MSHA Inspector Jerry
Spruell, who issued Citation No. 4101896 on May 28, 1993. The
citation alleged a violation of 30 C.F . R . § 56 . 1421l(a). This
standard provides that persons shall not work on top of, under,
or from mobile equipment in a raised position until the equip ment has been blocked or mechanically secured to prevent it from
rolling or falling accidently1 •
There is no dispute that Mr . Reaska worked under a section
of the American crane boom when it was in a raised position and
neither blocked nor mechanically secured. Furthermore,
Respondent concedes that this ·was not the proper way to p e rform
the boom extension (Tr. 298-99).
I conclude that a violation of
the regulation occurred. The issue in this case is the extent to
which Respondent should be held responsible for this viol at i on.
Spruell concluded that Respondent's negligence was "high"
and that the violation was due to its "unwarrantable failure" to
comply with the regulation becaus~ Mr. Schumacher, a working

1

Section 5 6.14211(b) prohibi ts workin g under rai sed
components of mobile equipment. Although this subs ection appears
to fit the instant situation better than subsection (a), I regard
the distinction as unimportant in deciding this case.

638

foreman, was present when the violation occurred (Tr . 146-150).
Respondent challenges Schumacher's status as a supervisor because
he was an hourly, rather than a salaried employee {Tr. 56).
I conclude this fact is irrelevant because Superintendent
Walsh designated Schumacher to be the foreman in charge of the
pit and the boom extension process (Tr. 284). Since Respondent
had entrusted supervisory responsibilities to Schumacher, his
negligence is imputed to Respondent both for purposes of
determining whether the viola t ion was due to Respondent's
"unwarrantable failure" to comply with the Act, and for determining an appropriate civil pena l ty, Rochester-Pittsburah Coal
,CQ_._, 13 FMSHRC 189 (February 1991) .
MSHA's determination tha t Respondent was high l y negligent
and that its violation was an "unwarrantable failure" was based
on its assessme~t of Schumacher's negligence only. The agency
does not regard the conduct of Superintendent Walsh or any other
company supervisor negligent (Tr. 204) .
I concur in that
conclusion.
Schumacher and Reaska had both worked in the sand and gravel
business for 15-20 years, primarily for Jerry Henry and Midwest
Sand and Gravel Company (Tr. 70, 75) . Both had extended crane
booms in their employment with Mr. Henry and were knowledgeable
about this procedure (Tr. 75 - 77, 286-88).
Walsh did not review with Schumacher and Reaska the proper
procedures for extending a boom (Tr. 291). He relied completely
on their experience and expertise in getting this task done
properly and safely.
I am unable to conclude that Superintendent Walsh had an
obligation to review boom extension procedures with Schumacher
and Reaska.
It is not clear that ' extending the boom was
inherently hazardous. The boom should have been lowered to the
ground before separation of the sections commenced and it was
not unreasonable for Walsh to assume this would be done.
Furthermore, Respondent was not cited for failure to comply
with MSHA 1 s regulations regarding the training of newly employed
experienced miners, or miners assigned to a task in which they
have no previous experience, 30 C.F.R. §§ 48 . 26 and 48.27. The

6 39

record does not indicate that these regulations were violated in
the instant matter.
Mr. Schumacher's negligence is imputable to Respondent, but
I cannot conclude that his conduct was sufficiently aggravated to
rise to the level of "unwarrantable failure, 11 Emery Mining Corp.,
9 FMSHRC 1991, 2001 (December 1987); Rochester & Pittsburgh Coal
Company, 13 FMSHRC 189 (February 1991} .
Schumacher knew the boom had not been lowered to the
ground and he was aware that the suspension lines had not been
hooked to the first section of the boom.
However, his conduct
11
11
is better described as thoughtless or "inattentive," rather
than "inexcusable or aggravated," _Emery, supra, at page 2001 .
In so finding, I note that although the hazard is obvious in
retrospect, it existed only briefly before the accident. This
case is thus di~tinguishable from situations in which an operator
allows an obvious hazard to persist for a significant period of
time .
There is nothing that suggests that Reaska and Schumacher
erred because they were under pressure to dismantle the crane
quickly, or that Respondent gained any sort of production
advantage from doing this task improper l y. Rather, the evidence
indicates that two competent, experienced ·miners who knew how to
do this job properly did it improperly for inexplicable reasons
(Tr. 74-75, 299).
I, therefore, find that this record does not
establish that Respondent's violation of the regulation was due
to an unwarrantable failure and I affirm Citation No. 4101896 as
a violation of section 104(a} of the Act.
Other contentions of Respondent
Respondent contends that it is not properly charged with the
instant violation because the site of the accident was not on its
property and because the crane was 750 to 1,000 feet from the
sand and gravel wash plant (Tr. 243-44}.
I reject both these
arguments.
Sand and gravel had been washed and graded at a location
contiguous to the accident site a week to ten days earlier
(Tr. 243) . The accident site did not cease to be a mine as
that term is defined in section 3(h) (1) of the Act simply

640

because processing had not taken place for few days.
Moreover,
the crane itself was part of the mine because the statutory
definition includes equipment used in, or to be used in, the
milling of minerals, 30 U. S . C. § 802(h) (1) .
In section 3(h) of the Act, Congress delegated to the
Secretary of Labor some degree of discretion in making
determinations of whether worksites are subject to the Mine
Safety Act or the Occupational Safety and Health Act. All
worksites in the private sector are subject to one statute or
the other.
The Secretary exercised his discretion in a 1983 interagency
agreement between MSHA and OSHA, BNA Occupational Safety and
Health Reporter, paragraph 21:7 0 71. This agreement is entitled
to deference from the Commission, Donovan v. Carolina Stalite
Company, 734 F . 2d 1547 (D.C. Cir . 1984).
Appendix A of the Interagency Agreement sets forth specific
areas of MSHA authority.
It provides:
Following is list with general definitions of
milling processes for · which MSHA has authority to
regulate subject to paragraph B6 of the Agreement.
Milling consists of one or more of the following
processes: crushing, grinding, pulverizing, sizing,
concentrating, washing, drying ... (emphasis added)
As the crane was to be used to move milling equipment, I
conclude that it was part of a mine within the meaning of the
Act, See, W. J. Bokus Industries. Inc., 16 FMSHRC 704 (April
19 94) .

The fact that the mine site did not belong to Respondent
is also irrelevant . The Act defines an operator as "any owner,
lessee, or other person who operates, contr ols, or supervises a
coal or other mine or any independent contractor performing
services or construction at such mine (emphasis added)."
30 U. S.C. § 802(c) (d).
As the site was clearly under the
control of Respondent, it was ari operator within the meaning of
the Act, and subject to citation for violations at this location ..

641

Civil Penalty Assessment
Applying the criteria for assessing civil penalties set
forth in section llO(i) of the Act, I conclude that $1,50b,
rather than the proposed $20,000 is appropriate for this
violation. Obviously, the gravity of the violation was quite
high in that it resulted in Mr. Reaska's death 2 • While the
negligence of both Mr. Reaska and Foreman Schumacher was
considerable, it does not warrant a higher penalty than $1,500.
The violation was terminated by the accident, but Respondent
apparently acted in good faith in taking steps to prevent a
recurrence.
There is no indication of a prior history of MSHA
violations for Midwest Materials in the record.
There is also
no indication of the size of the company, and I assume, in the
absence of evidence to the contrary, that a $1,500 penalty or
even one of $20,000 would not jeopardize Respondent's ability to
stay in business.
ORDER

Citation No. 4101896 is affirmed as a significant and
substantial violation of section 104{a) of the Act and a $1,500
civil penalty is assessed. This penalty shall be paid within
30 days of this decision.

a/\ /]~~~c~vr---

Art~~. Amchan
Administrative Law Judge

21

also conclude that the violation so obviously meets the
criteria for a ''significant and substantial" violation set forth
in Mathies Coal Co., 6 FMSHRC 1 (January 1984) that an extended
discussion of this issue is unnecessary . .

642

Distribution:
Lisa A. Gray, Esq., Office of the Solicitor, U.S. Department
of Labor, 8th Floor, 230 S. Dearborn St., Chicago, IL 60604
(Certified Mail)
Paul Williams, President, Midwest Material Co., Box 63,
Suite 103B, Naperville, IL 60566 (Certified Mail)

/lh

643

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

APR 2 4 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. YORK 94-71-M
A. C. No.
30-00073-05501 SA7

I

v.
Independent Cement Corp.
CARL B. THOMAS CONSTRUCTION
CORPORATION,
Respondent
DECISION
Appearances :

Mark Malecki, Esq., U.S. Department of Labor,
Office of the Solicitor, Arlington, Virginia, and
Roger Mcclintock, Mine Safety and Health
Administration, Cranberry Twp., Pennsylvania, for
the Petitioner;
David M. Thomas, Vice President, Carl B. Thomas
Construction Corporation, Keene, New Hamphire,
for the Respondent .

Before:

Judge Weisberger

This case is before me based upon a Proposal for Assessment
of Civil Penalty filed by the Secretary of Labor (Petitioner)
alleging a violation by Carl B. Thomas Construction (Respondent)
of 30 C.F.R. § 56.5003 . Pursuant to notice the case was heard in
Schenectady, New York, on March 1, 1995.
Findings of Fact and Discussion
I.

Violation of Section 56.5003 . supra

On January 26, 1994, Respondent was involved in drilling
holes at the Independent Cement Corporation Mine, a limestone
surface operation. Michael Gones Jr., an MSHA Inspector,
observed the drilling operation for approximately 15 minutes. He
said that one driller was drilling holes on a horizontal surface.
The holes were approximately 6 inches in diameter . According to

644

Gones, during the 15 minute time span that he observed the
operation, whenever the drill operated, dust "continually"
(Tr. 92) came out of the hole for approximately 2 1/2 minutes.
He said that there were real dry thick particles around the hole
being drilled. Also there was airborne dust and dust on the side
of the face of the highwall, and on the ground 30 to 35 feet
below the highwall. He also noted a "good quantity of dust"
(Tr. 46) on the drill operator's clothing, beard, and mustache .
He said that the driller was not wearing any respiratory
protection. Further, according to Gonos, the holes that were
being drilled were not "collared" or drilled wet. He noted that
a water hose in the area was n ot con nected . He did not note the
presence of any other dust control measures. Gones termed the
material being drilled as non-water-soluble.
Gones issued a citat i on alleging a violation of 30 C.F . R.
11
§ 56.5003, which as pertinent, provides as follows:
[h]oles t
shall be collared and drilled wet, or other efficient dust
control measure'S shall be used when drilling non-water-soluble
material. " : ;
Steven Cristo, who was Respondent's foreman at the site and
the driller operator on January 26, 1994, testified that all the
water sources were frozen.
He said that on January 26, he was
using a filter mask. He indicated that when the drill was in
operation, he was at the controls which were located at the far
side of the driller in relation to the holes being drilled.
Respondent has not impeached or contradicted the testimony
of Gonos that the material was non-water-soluble, and that the
holes were not collared and drilled wet. Respondent argues that,
in essence, because, as testified to by Gonos, the drill operator
was upwind from the holes being drilled, the dust was removed and
diluted by the wind.
In this connection, Respondent . relies upon
the first sentence of 30 C.F.R. section 56.5005 which provides as
follows: "Control of employee exposure to harmful airborne
contaminants shall be, insofar as' feasible, by prevention of
contamination, removal by exhaust ventilation, or by dilution
with uncontaminated air."

1/Section 56 . 5003 supra does not appear in the current Code of
Federal Regulations, Part 30, but was in effect on January 26,
1994.
645

I find Respondent's position to be without merit. Clearly,
with continued mining operations, the wind could have shifted
at any time, placing the drill operator downwind of the
drilling operation. Further, more importantly, I find that
Section 56.5003, supra, is not be to read in conjunction with
Section 56 . 5005, supra. The latter appears intended to control,
generally employee exposure to harmful contaminants. In
contrast, Section 56.5003, supra, applies specifically to the
limited situation of drilling non-water-soluble material, as in
the instant case. The evidence is not controverted that the
holes to be drilled were not collared and drilled wet. There is
no evidence that there were other efficient dust control measures
being used similar in effect to collaring and drilling wet.
I
also reject Respondent's arguments that there was no violation of
Section 56.5003, supra, because there is no evidence of miner
exposure to harmful levels of dust.
In this connection, I note
that the testing of materials mined at the site that were
obtained on January 26, 1994, indicated the presence of silica
(See Exhibit P-6) . More importantly, a violation under
Section 56.5003, supra, is not predicated upon exposure
to any harmful materials. For all these reasons, I find, that
Respondent did violate Section 56.5003, supra.
II .

Penalty

According to Gones, when he was at the mine on January 25,
1994, the day prior to the date he issued the citation at issue,
two drills were in operation. He observed dust being produced,
and drilling taking place without a collar.
Gones met with Cristo and the other driller and explained to
them that they were in violation of a mandatory standard, and
told them that they needed water for the operation. According to
Gones, Cristo explained to him that he had added 6 gallons of
antifreeze to the water supply tank, but that the water still
remained frozen.
Gones said that he explained to him that he
could use some other chemical or could add more antifreeze to
thaw the water. According to Gones, Cristo told him that he
"would take care of it" (Tr. 59) . Cristo, who was the foreman at
the site, and in charge of drilling operations, did not impeach
or contradict Gonos' testimony regarding this conversation.
Cristo said that he did not see Gonos on the site on January 26.
However, he did not impeach or contradict Gonos' testimony that
646

drilling was being performed on January 26, without a collar,
dust was being produced, and no dust control measures were being
used.
The violation of Section 56 . 5003, supra, resulted from
Christa's drilling on January 26, without the dust control
measures specified in Section 56.3003, supra, in spite of having
been told by Gonos the day before that such an act constitutes a
violation.
I thus find that there was high negligence on
Respondent's part. Although Respondent had not been cited before
for a violation of Section 56.5003, supra, and the gravity of the
violation does not appear to be high, taking into account the
level of Respondent's negligence, I find that a penalty of $1,000
is appropriate for this vio l ation.
III.

Order

It is ORDERED that Respondent pay a penalty of $1000 within
30 days of this decision.

Administrative Law Judge
Distribution:
Mark Malecki, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Roger F. Mcclintock, Esq., U.S. Department of Labor, Mine Safety
and Health Administration, 230 Executive Drive, Suite 2,
Cranberry Twp., PA 16066-6415
(Certified Mail)
Mr. David M. Thomas, Vice President, Carl B . Thomas Construction
Corporation, Drilling and Blasting Specialist, Box 407, Keene,
NH 03431 (Certified Mail)
/ml

647

FEDERAL MI NE SAFETY AND HEALTH REVI EW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

CIVIL PENALTY PROCEEDINGS
Docket No . KENT 93-63
A.C. No . 15-17081-03507
Docket No. KENT 93-259
A.C. No. 15-17081-03511

SUNNY RIDGE MINING COMPANY,
Respondent

Docket No. KENT 93-863
A.C. No. 15-17081-03513
No. 9 Mine
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No . KENT 94-453
A.C. No. 15 -1708 1-03516A
No. 9 Mine

MR. MITCH POTTER,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-454
A.C . No. 15-17081-03517A
No . 9 Mine

MR. TRACY DAMRON
Respondent

648

DECISION
Appearances:

MaryBeth Bernui, Esq . , Off ice of the ·s olicitor,
U.S . Department of Labor, Nashville, Tennessee,
for Petitioner;
Reed D . Anderson, Esq . , Harris & Anderson,
Pikeville, Kentucky, for Respondent.

Before:

Judge Fauver

These are civil penalty cases under§ lOS(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 .e..t. ~. for
alleged violations of mine safety standards. Two of the charges
were settled at the hearing and the rest were heard on the
merits.
After the hearing, the exhibits were lost by the Post
Office.
The pa-rties were requested to furnish copies of their
exhibits where possible.
Those received from the parties have
been assembled in a replacement exhibit folder.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative
and reliable evidence establishes the Findings of Fact and
further findings in the Discussion below:
FINDINGS OF FACT
1. Respondent Sunny Ridge Mining Company, Inc., a Kentucky
corporation, is a medium-sized mine operator, producing coal for
sale in or substantially affecting interstate commerce .
2. At all relevant times, Respondent Tracy Damron was
foreman of the No. 9 Mine and Respondent Mitch Potter was
president of Sunny Ridge Mining Company, Inc.
Citation No. 4020202
3. This§ 104(d) (1) citation was issued by Inspector Butch
Cure on August 5, 1992, charging a violation of 30 C.F.R.
§ 77.405(b), which provides:

649

(b) No work shall be performed under machinery or
equipment that has been raised until such machinery or
equipment has been securely blocked in position.
4. Mine No. 9, a surface coal mine, used a makeshift method
to change flat rear tires on its coal dump trucks. A wooden crib
was stacked close to the rear of the truck on the side that had
the flat tire. The hydraulic truck bed was then raised, tilting
its front end upward and lowering its back end on the crib.
Further pressure to raise the truck bed exerted downward pressure
on the crib and this pressure caused the rear axle and wheel to
elevate. This method is illustrated in Gov't. Exh. No. 4. A
miner would remove the lug nuts and take off the wheel to change
the tire. To remove the wheel, the miner would put his back to
the wheel (which weighed 250 to 300 pounds) and grasp it from
behind his back to pull it from the lug bolts onto his back and
then "walk it" to the ground . After changing the tire, the miner
would use his back to lift the wheel back onto the lug bolts. He
would then face the wheel and tighten the lug nuts. All of these
steps were performed while the truck bed and axle were elevated.
Chocks or blocks were not used to prevent the truck bed or axle
from falling while the wheel was being changed.

s. On the day in question, the cited truck was loaded with
30 tons of coal when the hydraulic truck bed was raised to lift
the left rear axle to change a flat tire. Chocks or blocks were
not used to prevent a falling accident.
6. When Inspector Cure first noticed the truck, he was some
distance away and saw a group of men standing around the truck
with Foreman Tracy Damron. The truck bed was not elevated at
that time. He went to the truck to talk to the foreman about
other equipment. He observed that a crib was stacked behind the
truck but the truck bed was not raised . The truck bed was
loaded. The inspector left for another part of the mine. Later,
from a distance he saw the loaded truck bed was elevated and he
drove toward the truck to see what was happening . As he came
closer, he saw the bed was resting on the crib, a left rear wheel
was raised, and a miner was reaching in to handle the lug nuts on
the wheel. There was no jack under the axle. As the inspector
approached, some of the men walked away and Foreman Damron
quickly had the truck bed and wheel lowered. He then got a 20-

650

ton jack to try to lift the axle and wheel. It would not lift
them . The inspector issued the citation to the foreman .
Order No. 4020210

7. This§ 104(d) (1) order, issued on August 18, 1992,
charges a violation of 30 C.F.R. § 77.1001, which provides:
Loose hazardous material shall be stripped for a safe
distance from the top of pit or highwalls , and the
loose unconsolidated material shall be sloped to the
angle of repose, or barriers, baffle boards, screens,
or other devices be provided that afford equivalent
protection.
8. Inspector Butch Cure observed loose rocks and boulders on
the spoil side of the highwall in the No. 3 1/2 pit. The highwall was about 25 feet high, 200 feet long. Four pieces of
equipment were operating beneath the spoil bank.
Citation No. 4020074

9. This § 104(a) citation, issued on January 27, 1993,
charges a violation of 30 C.F.R. § 77.410, which requires a
backup alarm on mobile equipment such as front-end loaders,
forklifts, tractors, graders, and certain trucks.
10. At the hearing the parties moved to settle this charge
by lowering negligence from moderate to low and reducing the
penalty from $431 to $350. The settlement was approved.
Citation No· 4228207

11. This§ 104(a) citation, issued on February 10, · 1993,
charges a violation of 30 C.F.R. § 77.1007(b), which provides:
(b) Equipment defects affecting safety shall be
corrected before the equipment is used.
12. At the hearing the parties moved to settle this charge
by lowering negligence from moderate to low and reducing the
penalty from $431 to $350. The settlement was approved.

651

Order No· 4020075

13. This§ 104(d} (2} order, issued on January 27, 1993,
charges a violation of 30 C.F.R. § 77.1001.
14 . Inspector Billy Damron observed loose materials,
including blasted rock, dirt and uprooted trees, on the highwall
of the No. 2 pit. The highwall was about 65 feet high. A bulldozer was operating beneath the highwall.
Order No. 4020076

15. This§ 104(d ) (2) order, issued on January 27, 1993,
charges a violation of 30 C.F.R. § 77.1001 .
16. Inspector Billy Damron observed loose rocks and loose
boulders on the face and top of the highwall in the No. 1 pit.
The highwall was 90 to 100 feet high. He also observed a loose
boulder, loose rocks, and dirt on the spoil bank side, which was
about 60 feet high . Men and equipment were operating in the pi~.
The inspector observed fresh tire tracks indicating that the end
loader was operating parallel to the spoil bank . He also
observed footprints near the bottom of the spoil bank.
DISCUSSION WITH FURTHER FINDINGS. CONCLUSIONS
Citation No. 4020202

Section 77.405(b) provides that "No work shall be performed
under machinery or equipment that has been raised until such
machinery or equipment has been securely blocked in position."
The operator allowed a miner to work on a wheel under the
raised bed of a 15 - ton coal dump truck, loaded with 30 tons of
coal, without blocking the raised truck bed and axle.
When Inspector Cure first saw the truck, in front of a truck
shop, a group of miners were standing around the truck with their
foreman, Respondent Tracy Damron . The inspector approached the
truck to talk to the foreman about other equipment he wanted to
inspect. He noticed that the truck was loaded and a crib was
stacked behind the truck. However, the truck bed was not
elevated . He left the shop area to inspect other vehicles.

652

Later, from a distance he noticed that the loaded truck bed was
raised. He drove to the truck shop to see what was happening.
As he approached, he saw the hydraulic bed was elevated to press
on the crib and the left rear wheel was raised. A miner was
reaching in to handle the lug nuts on the elevated wheel. Some
of the men scattered as the inspector approached. The foreman
quickly stopped the work on the wheel, had the truck bed and
wheel lowered, and then got a 20-ton jack to try to raise the
rear axle and wheel. It would not lift the axle. The inspector
issued Citation No. 4020202 to Foreman Damron.
Foreman Damron testified there were two 20-ton jacks under
the axle when the inspector saw the raised truck bed and a miner
working on the wheel. I do not accept this testimony. I find
that there was no jack under th,e axle when the inspector saw a
miner handling the lug nuts when the truck bed and wheel were
raised.
,•

The president of the company, Respondent Mitch Potter,
testified concerning the company's practice of changing rear
tires on coal trucks. He was not present during Inspector Cure's
inspection. Mr. Potter testified that the company practice was
to stack a wooden crib behind the truck, raise the truck bed to
press on the crib to relieve pressure on the wheel, and use two
jacks to lift the .axle on the side of the flat tire. He did not
know what practice or conditions were observed by Inspector Cure
on the day in question.
Contrary to the practice contended by Mr. Potter, Inspector
Cure observed that the hydraulic truck bed and left rear wheel
were raised without using a jack. A miner was handling the lug
nuts when the inspector observed the raised bed and wheel.
The miner was working "under . . . machinery or equipment"
within the meaning of the regulation because the wheel he was
working on was under the elevated truck bed and truck frame. If
the truck bed fell the wheel may have been jarred loose and
fallen on him, the truck frame may ha.v e struck him, or the tire
may have crushed a foot. If he was handling the lug nuts when
the truck bed fell he may have received severe hand injuries.
The violation was "significant and substantial" in that it
was reasonable likely to result in serious injury if this

653

practice of shortcutting safety devices continued in normal
mining operations. Mathies Coal Co., 6 FMSHRC l (1984).
Because the truck was not designed to lift a wheel in the
manner used by the mine operator, and jacks were available and
designed for that purpose, the operator was highly negligent in
shortcutting safety devices and endangering a miner. The
violation was therefore "unwarrantable" within the meaning of
§ l04(d) (l) of the Act.
Rochester & Pittsburgh Coal Co.,
13 FMSHRC 189 (1991) .
In addition to citing the corporation, the Secretary charged
Tracy Damron individually under§ llO(c) of the Act, which
provides in part:
Whenever a corporate operator violates a mandatory
health or safety standard . . . any director, officer
or agent of such corporation who knowingly authorized,
order.e d, or carried out such violation . . . shall be
subject to the same civil penalties, fines and
imprisonment that may be imposed upon a person under
subsections (a ) and (d) of this section.
Section 3(c) of the Act defines "agent" as "any person
charged with responsibility for the operation of all or part of a
coal or other mine or the supervision of the miners in a coal or
other mine. 11 Foreman Damron was an agent of the corporation.

§

The Commission has interpreted the term 11 knowingly 11 in
llO(c) as follows:
Knowingly, as used in the Act does not have any meaning
of bad faith or evil purpose or criminal intent. Its
meaning is rather that used in contract law,· where it
means knowing or having reason to know. A person has
reason to know when he .has such information as would
lead a person exercising reasonable care to acquire
knowledge of the fact in question or to infer its
existence [citation omitteq) . We believe this
interpretation is consistent with both the statutory
language and the remedial nature of the Coal Act. If a
person in a position to protect employee safety and
health fails to act on the basis of information that

654

gives him knowledge or reason to know of the existence
of a violative condition, he has acted knowingly and in
a manner contrary to the remedial nature of the
statute.
Secr etary y. Kenny Richardson, 3 FMSHRC 8,16 (1981), aff'd,
689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983).
Foreman Damron was present while the tire was being changed
in an unsafe manner in violation of 30 C. F.R. § 77.405(b). As
the inspector approached the truck, some men scattered and the
foreman quickly had the truck bed and wheel lowered. He then got
a 20 - ton jack and attempted unsuccessfully to raise the rear
wheel. The foreman's effort to cover up his method of changing a
tire is strong evidence of his knowledge of a violation. I find
that Foreman Damron 11 knowingly authorized, ordered, or carried
out" the violation alleged in Citation No. 4020202, within the
meaning of§ llO(c) of the Act . I find that he was highly
negligent.
Considering all of the criteria for civil penalties in
§ llO(i) of the Act, I find that a penalty of $5,000 is
appropriate for the corporation and a penalty of $2,500 is
appropriate for Foreman Tracy Damron, for the violation cited in
Citation No. 4020202 .
Or d e r No. 4 0202 1 0

This order was issued under§ 104(d) (1) of the Act, charging
a violation of 30 C.F.R. § 77.1001.
On August 18, 1992, Inspector Butch Cure observed loose and
unconsolidated material in the form of large and small rocks and
boulders on the spoil side of the highwall in No. 3 1/2 pit. The
highwall was about 25 feet high and 200 feet long .
The inspector testified that the loose material presented a
hazard to the drivers of four pieces of equipment operating below
t he spoil bank.
Mr. Ed Brown, an engineer, testified for the operator
regarding the likelihood of injury from rocks fal l ing on the end
l oade r operating beneath the spoil bank . He found the risk of

655

injury to be remote if the end loader operated at a perpendicular
angle to the spoil bank but increased as the angle approached a
position parallel to the spoil bank.
I find that there was a reasonable likelihood that the loose
material on the spoil bank would slough or roll off striking
equipment or miners and causing serious injuries. The violation
was thus significant and substantial.
The operator had been cited for a violation of the same
standard on the same highwall less than two weeks before this
violation. The same foreman, Tracy Damron, was in charge on both
occasions. Upon issuing the prior citation, Inspector Cure spoke
to Foreman Damron about the hazards of loose material on the
highwall. I find that the foreman's disregard of the hazards on
August 18, 1992, was serious and shows aggravated conduct beyond
ordinary negligence. I therefore find that the violation was
"unwarrantable'' within the meaning of§ 104(d) (1) of the Act.
The Secretary also charged Foreman Damron with individual
liability for this violation, under§ llO(c) of the Act.
Foreman Damron was aware of the hazardous conditions because
he conducted a daily examination of the work site before
Inspector Cure arrived. I find that the foreman knowingly
authorized, ordered, or carried out the violation cited in Order
No. 4020210, within the meaning of § llO(c) of the Act.
Considering all of the criteria for civil penalties in
llO(i) of the Act, I find that a penalty of $8,000 is
appropriate for the corporation and a penalty of $3,000 is
appropriate for Foreman Tracy Damron for the violation cited in
Order No. 4020210.
§

Order No. 4020075

This order was issued under'§ 104(d) (2) of the Act, charging
a violation of 30 C.F.R. § 77.1001.
On January 27, 1993, Inspector Billy Damron observed loose
and unconsolidated material in the form of blasted rock, dirt ana
trees on the highwall and spoil bank in No. 2 pit. The highwall

656

was about 65 feet high . The inspector observed a bulldozer
operating beneath the highwall .
The operator had been issued 17 charges of violations of the
same standard within about six months, and had been issued two
charges for violating the same standard during the last
inspection. The same foreman, Tracy Damron, was in charge on the
previous inspection and the day that Order No. 4020075 was
issued. I find that Foreman Damron's disregard of hazardous,
loose materials on the highwall and spoil bank shows aggravated
conduct beyond ordinary negligence. The violation on January 27,
1993, was therefore unwarrantable. The violation was reasonably
likely to result in serious injury, and therefore was significant
and substantial.
In addition to charging the corporation, the Secretary
charged Foreman Tracy Damron individually under§ llO(c).
Foreman Damron was in charge and conducted a daily
examination of the pit before the inspection. I find that he
knew about the hazardous conditions. For the reasons discussed
as to other violations of § 77.1001 by Foreman Damron, above, I
find that Foreman Damron knowingly authorized, ordered, or
carried out the violation on January 27, 1993, within the meaning
of
§ 110 (c).
Considering all of ihe criteria for civil penalties in
§ llO {i), I find that a penalty of $10,000 is appropriate for the
corporation and a penalty of $4,000 is appropriate for Foreman
Tracy Damron for the violation cited in Order No. 4020075.
Order No. 4020076

This§ 104(d) {2) order was issued on the same day as Order
No. 4020075 .
Inspector Billy Damron observed loose, hazardous material in
the form of rocks and boulders on the face and top of a highwall
in No. 1 pit. The highwall was about 90 to 100 feet high. He
observed a front-end loader and coal trucks operating beneath the
highwall .

65 7

Inspector Damron also observed a large boulder and loose
rocks and dirt on the spoil bank side, about 60 feet high. The
inspector observed fresh tire tracks indicating the end loader
was operating parallel to the spoil bank . He also observed
miners working in the pit and footprints near the bottom of the
spoil bank.
The corporation had been issued two charges of violating the
same standard in the previous inspection and the same foreman,
Tracy Damron, was in charge on both inspections .
I find that Foreman Damron's disregard of the hazards
discovered by the inspector shows aggravated conduct beyond
ordinary negligence. The violation was therefore unwarrantable
within the meaning of§ 104(d) of the Act.
The violation was reasonably likely to result in serious
injury, and therefore was significant and substantial.
The Secretary charged Foreman Damron individually under
§ llO(c). He was in charge on January 27, 1993, and he had
conducted a daily examination of the pit before the inspector
arrived.
Foreman Damron was also the foreman in charge when two
citations were issued for violations of the same standard during
the previous inspection within six months of the date when Order
No. 4040076 was issued.
I find that Foreman Damron knowingly
authorized, ordered, or carried out the violation cited in Order
No. 4020076 within the meaning of§ llO(c).
Considering all of the criteria for civil penalties in
§ llO(i) of the Act, I find that a penalty of $10,000 is
appropriate for the corporation and a penalty of $4,000 is
appropriate for Foreman Tracy Damron for the violation cited in
Order No . 4020076 .
Section llO(c) Charges Against Mitch Potter
The Secretary also charged Mitch Potter, president of the
corporation, with individual liability under§ llO(c) concerning
the violations cited in Order Nos . 4020075 and 4020076.
Mr. Potter supervised the day-to-day operations of the
corporation. He was present at Mine No. 9 on January 27, 1993,

658

and was aware of the conditions of the highwalls involved in the
two orders before the inspection. Also, Mr. Potter was aware of
previous citations issued by Inspector Cure for similar
violations of the same standard. I find that Mr . Potter was in a
position to prevent the violations found on January 27, 1993, but
failed to take action to do so. I find that he knowingly
authorized, ordered, or carried out the violations charged in
Order Nos . 4020075 and 4020076, within the meaning of § llO(c).
Considering all of the criteria for civil penalties in
§ llO(i), I find that a civil penalty of $6,000 against
Mr . Potter is appropriate for the violation charged in Order
No. 4020075 and a civil penalty of $6,000 against Mr . Potter is
appropriate for the violation charged in Order No . 4020076.
CQNCLUSIONS OF LAW

1. The judge has jurisdiction.
2 . Respondent Sunny Ridge Mining Co., Inc., violated the
safety standards as alleged in Citation Nos. 4020202, 4228207 and
4020074, and in Order Nos. 4020210, 4020075, and 4020076.
3. Respondent Tracy Damron knowingly authorized, ordered, or
carried out the violations alleged in Citation No. 4020202, and
in Order Nos. 4020210, 4020075, and 4020076 within the meaning
§ llO(c) of the Act.
4 . Respondent Mitch Potter knowingly authorized, ordered, or
carried out the violations alleged in Order Nos. 4020075 and
4020076 within the meaning of § llO(c) of the Act.
ORPER
WHEREFORE IT IS ORDERED that:
1. Respondent Sunny Ridge Mining Co., Inc., shall pay civil
penalties of $33,700 within 30 days of the date of this Decision.
2. Respondent Tracy Damron shall pay civil penalties of
$13,500 within 30 days of the date of this Decision .

659

3. Respondent Mitch Potter shall pay civil penalties of
$12,000 within 30 days of the date of this Decision.

~ml~';0

Administrative Law Judge

Distribution:
MaryBeth Bernui, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862 (Certified Mail)
Reed D. Anderson, Esq., Harris & Anderson, P.O. Box 279,
Pikeville, KY 41502 (Certified Mail)
/lt

660

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

APR 2 71995.
SECRETARY OF LABOR,

CIVIL PENALTY PROCEEDINGS

MINE SAFETY AND HEALTH
ADMI NI STRAT ION (MSHA )
Petitio ner
v.

Docket No . WEST 94-236-M
A.C. No . 4 5-03086 - 05507

I

Docket No . WEST 94-265-M
A.C. No . 45 - 03086 - 05508

GOOD CONSTRUCTION,
Respondent

Mi ne:

Go od Portabl e Crusher

DECISION
Before:

Judge Amchan

These cases are before me upon a stipul ated record. They
involve three non-significant and substantial citations issued
to Respondent on November 4, 1993, about which there is no
material factual dispute . Citation No. 4128396 was issued
because the manually-operated horn on Respondent's Dresser
front-end _loader did not work when tested (Agreed Statement of
Facts, No. IV). There is no indication as to how long the horn
was not working prior to the issuance of the c~tation (l..b.ict.)
The violation was cited as a violation of 30 C.F.R .
§ 56.14132(a). The cited regulation requires that 11 [m]anually
operated horns or other audible warning devices provided as a
safety . feature shall be maintained in functional condition. 11 A
$50 civil penalty was proposed for this alleged violation.
Respondent's primary contention is that the cited regulation
must be read in conjunction with§ 56.14100(b), which provides
that "[d]efects on any equipment, machinery, and tools that
affect safety shall be corrected in a timely manner to prevent
creation of a hazard to persons."
Thus, Respondent argues that
unless the Secretary can show that it failed to corr ect the
defective horn in a timely manner, the instant citation should
be vacated.

661

I reject Respondent's contention. Section 56.14132(a)
imposes upon an operator a duty to keep a vehicle horn or other
audible warning equipment in working condition. This duty
imposes obligations that are to some extent different from the
obligation to timely correct defects.
It may require, for
example, preventative maintenance. An inoperative horn could
form the basis in some situations for citation under both
regulations, if the horn did not work and the operator also
failed to fix it in a timely manner.
Underlying Respondent's argument is the concept that an
inoperative horn by itself cannot establish a violation.
Good Construction suggests that a citation is valid only if
the horn was inoperative due to an act or omission on its part.
However, under the Mine Safety and Health Act an operator is
liable for a violation regardless of fault.
For example, in
El Paso Rock Quarries. Inc., 3 FMSHRC 35, at 38-39, 2 BNA MSHC
1132 at 1135 (January 1981) , the Commission reversed a judge
who vacated a citation for the absence of a reverse signal alarm
on the grounds that the Secretary failed to establish that the
operator knew or should have known that a reverse signal alarm
was inoperative.
I find this decision indistinguishable from
the instant case and therefore affirm Citation No. 4128396.
While the fault of the operator is irrelevant to the
validity of the citation, it is relevant to the assessment of
a civil penalty. As the record herein is silent as to the
negligence of Respondent, I assess a $25 civil penalty after
considering the penalty criteria in section llO(i) of the Act.
I would assess an even lower penalty if the record demonstrated
an absence of fault on the part of Respondent. Such a situation,
for example, would be one in which the operator established that
the horn was working properly when that day's pre-shift examination was performed.
The Parking Brake
Citation No. 4128397 was issued pursuant to 30 C.F.R.
§ 56.14101(a) (2) because the parking brake on the same front-end
loader was not able to hold its typical load on the maximum grade
it travels (Agreed Statement of Facts, page 2, para. 6). I
assume, for the purposes of this decision, that the parking

662

brake on this loader met its manufacturer's specifications, and
that it was capable of holding its typical load on ·1evel ground
(Affidavit of Alan Good, page 3) .
Respondent's challenge to this citation and the $50 proposed
penalty is essentially an attack on the wisdom of the standard's
requirements . This is outside the jurisdiction of the Review
Commission. Section 56.1410l(a) (2) was promulgated as the
result of notice and comment rulemaking on August 25, 1988,
53 Fed. Reg. 32522. Exclusive jurisdiction of challenges to its
validity must be made to an appropriate court of appeals, within
60 days of promulgation, Section ·lOl(d) of the Act, 30 U.S.C.
§ 811 (d) .
The preamble to the final rule indicates that comments were
in fact received on the proposal that was promulgated as section
56.14 102{a) (2). At 53 Fed. Reg . 32505, column one, MSHA discussed comments asking the agency to limit this requirement to
testing up to a maximum grade of 15 percent. This discussion
establishes that MSHA gave serious considerations to objections
concerning the proposal. It also demonstrates why the undersigned should not evaluate the wisdom of the regulation when he
does not have before him the rulemaking record that led to the
promulgation of the standard.
As Respondent admittedly violated the stan.d ard, I affirm
the citation and assess the $50 penalty proposed . Respondent
certainly had the capability to test the parking brake to see
whether it complied with section 56.14101(a) (2) before the
citation was issued. Its failure to do so warrants a penalty
of this magnitude 1 •

The standard does not requi·re or encourage, as Respondent
suggests, that an operator get out of his vehicle while testing
the parking brake . I also reject Respondent's contention that
the standard is unconstitutionally vague b~cause its requirements
are different depending on the terrain on which a vehicle travels
and the manner in which it is used.
I find the regulation
provides an operator with sufficient notice of what constitutes
compliance, ldea l Cement Co., 12 FMSHRC 2409, 2416 {November
1990) .
1

663

The Part 50 Reports
Citation No . 4128400 was issued because Respondent did not
have copies of the reports that it is required to submit to MSHA
pursuant to sections 50 . 20 and 50.30 at the quarry site where
the instant inspection took p l ace. These records were kept at
Respondent ' s business office in Toledo, Washington, and MSHA
inspectors had reviewed these reports at that location previously
(Affidavit of Pam Good, page 1) 2 .
The cited regulation, 30 C.F.R. § 50.40(b), requires that
these reports be kept at the office closest to the mine.
Respondent argues that there was no off ice at the quarry and
that it complied with the regulati o n by maintaining these records
at i t s business office.
I conclude that the terms of this regu lation must be read in conjunction with Section 109(a) of the
Act. That provision states that, 11 [a]t each coal or other mine
there shall be maintained an office with a conspicuous sign
designating it as the office of such mine. 11
Thus, I find that Respondent was required to maintain an
office at the quarry site and to maintain the part 50 records
at that location.
Previously, I reached the same conclusion in
Mechanicsville Concrete, 16 FMSHRC 1444, 1448-9 (ALJ July 1994).
As noted in that case, there is a Commission judge's decision,
Sierra Aggregate Company, 9 FMSHRC 426, 43 0 (ALJ March 1987),
which reaches the opposite conclusion .
MSHA proposed a $100 civil penalty for this violation,
characterizing Respondent's negligence as 11 high. 11 Respondent
had the reports, which indicates no intent to conceal information. Moreover, the wording of the standard is very confusing
and other MSHA inspectors apparently reviewed the comp.any' s
reports at the business office.
I conclude therefore that
Respondent's negligence was very ·low. As a result I assess
a $10 civil penalty after consideration of all six factors in
section llO(i) of the Act.

2 For

purposes of this decision, I am assuming that the
factual matters in Respondent ' s affidavits are established .

664

ORDER

Citation Nos. 41288396, 4128397 and 4128400 are affirmed.
Respondent shall pay the $85 assessed civil penalties within
30 days of this decision .

~r~±-

Administrative Law Judge
Distribution :
Marshall P. Salzman, Esq . , Office of the Solicitor,
U.S. Department of Labor, 71 Stevenson St., Suite 1110,
San Francisco, CA 94105-2999 (Certified Mail)
James A. Nelson, Esq., 205 Cowlitz, P.O. Box 878, Toledo,
WA 98591(Certified Mail)

/lh

665

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

APR 2 8 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF KENNETH H.
HANNAH, PHILIP J. PAYNE
AND FLOYD MEZO,
Complainant

DISCRIMINATION PROCEEDING
Docket No . LAKE 94-704-D
MSHA Case No. VINC c·D 94-07
Rend Lake Mine
I.o. No. 11-00601

v.
CONSOLIDATION COAL COMPANY,
Respondent

DECISION
Appearances:

Lisa A. Gray, Esq., Office of the Solicitor, U.S.
Department of Labor, Chicago, Illinois for the
Complainant;
David J. Hardy, Esq., Jackson & Kelly, 1600
Laidley Tower, Charleston, West Virginia for the
Respondent.

Before:

Judge Melick

These cases are before me upon the Complaint by the
secretary of Labor on behalf of Kenneth H. Hannah,
Philip J. Payne, and Floyd Mezo, pursuant to Section 105(c) (2) of
the Federal Mine Safety and Health Act of 1977, 30 u.s .c. § 801,
et. seq., the "Mine Act", alleging that the Consolidation Coal
Company (Consol) suspended these miners in violation of Section
105(c) (1) of the Act. 1 In particular, in the Secretary's
Complaint before this Commission, as in their initial Complaint
filed with the Mine Safety and Health Administration (MSHA), it
. alleged that "(o ] n April
. 13, 1994, we were suspended' with
. the
is
intent to discharge by Consolidation Coal Company, Rerid Lake
Mine, after ( sic] exercised our statutory protected right to
refuse to work under conditions that we in good faith ~elt to be

1

The complainants were initially suspended with intent to
discharge, however, by decision of an arbitrator on April 25,
1994, they were reinstated without backpay. The Complainants
here seek back pay for the 12 days they were suspended (Joint
Exhibit No . 1).
666

unsafe regarding energizing power underground following an
unplanned mine fan stoppage on April 9, 1994." 2
While the Mine Act grants miners the right to complain of a
safety or health danger or violation, it does not expressly grant
the right to refuse to work under such circumstances. However,
the Commission and the courts have inf erred a right to refuse to
work in the face of a perceived danger and this right is now well
established. See Secretary on behalf of Cooley v. Ottawa Silica
co. 6 FMSHRC 516, 510-21 (1984) aff'd, 780 F . 2d (6th Cir. 1985);
Price v. Monterey Coal co., 12 FMSHRC 1505, 1514 (1990).
Moreover, a miner exerci s i ng such a work refusal is not required
to prove that a hazard actually existed. Secretar y on behalf of
Robinette v. United Castle Coal Co ., 3 FMSHRC at 812. In order
to be protected, work refusals need only be based upon the
miner's "good faith, reasonable belief in a hazardous condition."
Id; see also Gi l bert v. FMSHRC, 866 F. 2d 1433, 1439
(D.C. Cir. 1989 ). However , the complaining miner has the burden
of proving both the good faith and the reasonableness of his
belief that a hazard existed. Robinette, 3 FMSHRC at 807-12;
Secretary on behalf of Bush v. Union Carbide Corp., 5 FMSHRC 993,
997 (1983). A good faith belief "simply means an honest belief
that a hazard ex'i sts." Robinette , 3 FMSHRC at 810. This
requirement's purpose is to "remove from the Act's protection
work refusals involving fraud or other forms of deception." Id.
The critical issue in these cases is whether the individual
Complainants, at the time they refused the direct work orders of
Mine Superintendent Joseph Wetzel, Maintenance Supervisor John
Moore (and in the case of Hannah the additional work order of
Foreman Gary Phel ps) on April 10, 1994, (after being advised that
State Mine Inspector Bi ll Sanders had, in effect, addressed their
safety concerns ) entertained a good faith, reasonable belief in a
hazardous condition justifying their continued work refusal . The
Complainants case in this regard was articulately stated at
hearing by Kenneth Hannah. Hannah continues to work for Consol
at the Rend Lake Mine as a surface electrician. He was also
working in that capacity on April 10, 1994. He has no
underground mining experience. Hannah was called at home in the
2

In his post-hearing brief, the Secretary for the first
time presents the additional complaint that Hannah's protected
rights were also interfered with when he was purportedly
threatened with removal from the Mine Safety Committee. While
this new theory of discrimination could perhaps have been joined
by a timely amended complaint pursuant to Rule 15, FEO.R.CIV P.,
no such amendment has been filed. In any event, amending the
complaint at this late stage would be prejudicial to Respondent,
denying it the opportunity to present evidence on this new issue
and to argue and brief the issue. See 3 Moore's Federal Practice
! 15.08(4].

66 7

early morning hours of April 10 to restore power to the mine. He
had previously worked on the 4:00 p.m. to 12:00 midnight shift on
April 9 when power was lost and the ventilating fans shut down.
Hannah was aware that the third of three fans came back on
at 12:20 a.m. on the 10th. On the latter date at around 11:00
a.m., as he was entering the wash house, Complainants Payne and
Mezo asked Hannah, as a member of the mine safety committee, to
represent them in a meeting with mine management about the fan
stoppage. They were concerned because pre-shift examiners told
them that an inspection of the secondary escapeways had not been
properly performed after the stoppage. They also told Hannah
about a prior meeting concerning this matter with Maintenance
Supervisor John Moore.
Hannah testified that, in preparation for meeting with
Moore, he first talked with several of the mine examiners, namely
Gary Cook, Wesley Dickey and Gary Richardson. According to
Hannah, they reported that the mine should have been checked in
its entirety, including the secondary escapeways, before
re-energizing the mine. 3 The Complainants then met again with
Moore. Hannah explained what he had been told by the examiners
and asked Moore if he knew whether the examination was proper .
Moore responded that he did not know since he was not experienced
in production. Hannah admitted that he too did not know the
answer since he was a "surface" man.
Moore then indicated that he would call someone with the
necessary experience, naming Assistant Mine Superintendent
Rick Harris. Moore also called for the mine examiners to come
into his office. Three of the examiners then entered the office
and mine examiner Dickey opined that the mine had not been
properly examined following the fan stoppage since the secondary
escapeways had not yet been examined. Moore completed his phone
call with Harris and reported to the Complainants that, according
to Harris, the mine examination had been "done right". Hannah
reportedly then told Moore that the mine examiners disagreed and
that they needed to get the "proper people" out to the mine to
make sure that it was safe. According to Hannah, he then read
from provisions of the Labor-Management Contract (The National
Bituminous Coal Wage Agreement of 1993) to the effect that, if
3

It is not disputed that several of the mine examiners,
including Dickey, had been· informed after a 'f an stoppage several
weeks before this incident that state mine inspector Sanders had
ruled that an inspection of the secondary escapeways was not
required as a result of a fan stoppage. This determination was
apparently never challenged although there were procedures
available to do so. There is no evidence, however, that any of
the Complainants were aware of this ruling at the time they
exercised their work refusal.

66 8

there was disagreement between the miners and management and that
if it involved state or federal law, that the appropriate
officials were to be contacted. Hannah maintains that he then
told Moore that the "state man", presumably a state mine
inspector, should be called immediately and that Moore refused to
call him . Hannah further maintains that he then told Moore to
get the "state man" on the phone and that he could talk to him
himself but that Moore refused and told the Complainants to go
back to the wash house.
According to Hannah, Moore later appeared at the wash house
and reported that the "state man" said it was okay to return to
work. Hannah maintains that he then told Moore that the
Complainants themselves had to call the "state man" and that
Moore refused the request. The Compl~inants then invoked their
"safety rights". Hannah maintains that he, in fact, asked Moore
if he could call and talk to state mine inspector Sanders and
Moore refused and refused to call Sanders himself. Hannah
testified that he did not thereafter call Inspector Sanders
himself because he believed that he was forbidden to use the
telephones withput permission.
Hannah testified that Phelps, his foreman, thereafter
directed him to put power in the mine and Hannah refused, noting
that there were mine examiners underground at the time. Phelps
then gave Hannah a direct order to turn on the power and Hannah
refused, stating that with two mine examiners underground he
would not take the chance of an explosion. Hannah maintains that
he then said he was again exercising his individual rights
because, if there were an electrical fault with methane present,
he could trigger an explosion that would kill or maim the
examiners underground.
According to Hannah, Moore then also gave him a direct order
to turn on the power and Hannah again refused with the same
explanation. Hannah maintains that he had other work to do and
Moore then told him to return to that other work. Hannah was
later called to Superintendent Wetzel's office where Wetzel was
attempting to ascertain from Payne and Mezo the law they were
claiming was broken. Hannah intervened, advising Wetzel that
they were in fear of creating an explosion and killing themselves
and others.
Hannah then returned to his regular duties but was called
later to a meeting. State Inspector Sanders was present. Hannah
asked Sanders whether the mine in its entirety was required to be
examined following a power outage and fan stoppage. Sanders
expla-ined that escapeways need be examined only once every 24
hours and did not need to be re-examined after a power outage for
that reason alone. Sanders further stated that it would be safe
to turn on the power. Apparently satisfied by Sanders that it
was neither a violation nor a hazard Hannah then told the

669

Complainants to turn on the power and return to work. According
to Hannah, Superintendent Wetzel then told the Complainants the
matter was not over and that they were subject to discipline and
the removal of Hannah as safety committeeman.
Complainant Floyd Mezo also volunteered to work on the
morning of April 10, 1994, because of the fan outage. His orders
from foreman Johnny Moore were to turn the power back on. He and
Complainant Payne were waiting in the wash room when some of the
pre-shift examiners returned from underground. He overheard
their conversation that they had not inspected the escapeways.
Mezo testified that he and Payne then went to Moore's office
reporting this apparent problem. Moore indicated that he was not
a mine examiner and did not know whether the exam was adequate.
He agreed, however, to f i nd out . Moore then telephoned someone
and Mezo and Payne returned to the wash house. Mezo then asked
safety committeeman Hannah to represent them in further meetings.
Mezo maintains tha t Hannah thereafter did all of the talking for
the Complainants and that he never said another word. Mezo
maintains that, during the meeting with Moore, Hannah had asked
for Moore to call the state mine inspector and that Moore refused
several times to allow Hannah to use the phone himself.
Mezo recalled, however , that Moore, at th~ second meeting,
said that they had, in fact, called the "state" and the "state''
said their procedures were 11 okay". Significantly, Mezo
acknowledged that there were telephones available outside of
Moore's office and in the communications room. Moreover, Mezo
admitted that he made no effort to use those phones.
Furthermore, he was unaware of any rule that would prevent him
from using the phones. Mezo also observed that Hannah did, in
fact, later use a telephone at the .mine to contact another safety
man. Following the meeting with state inspector Sanders, Hannah
told Mezo and Payne to go back to work.
Complainant Philip Payne, an underground mechanic with 15
years experience, testified that he too was called back to the
mine on April 10 to help restore the power. He confirms Mezo's
testimony in significant respects. Payne also recalls that
Hannah, in fact, used a mine telephone to call a UMWA
representative. Payne maintained that neither he nor Mezo had
access to a telephone but, as a ma~ter of fact, did not even
think of using it. He believed that the telephones were not to
be used without permission. He further maintains that, since he
did not believe he had the authority to use the phone, he did not
call the state inspector himself.
From the credible testimony -of Foreman Moore, however, it is
apparent that the Complainants were mistaken as to when Moore
declined to call State Mine Inspector Sanders. Moore testified
that he did not, at either of the two meetings in his office,
refuse to call state Inspector Sanders nor did he refuse to allow

67 0

any of the Complainants to use the telephone to call Sanders.
Indeed, Moore testified that he was never asked at these meetings
to call any inspector nor was he ever asked permission to use the
telephone.
Furthermore, he was not aware of any rule barring the
use of the telephone. According to Moore, it was only after the
second meeting in his off ice, when Hannah had already insisted
that the state inspector be present at the mine, after the
complainants had already refused to work and after Moore had
called Mine Superintendent Wetzel to come to the mine, that the
Complainants asked him to call the state inspector apparently to
have him come to the mine. Moore declined to do so at this point
in time since Wetzel was then on his way to the mine site. Moore
testified that such a decision would then have been up to Wetzel.
Donald Niblet, Communications Coordinator at the Rend Lake
Mine, testified that around 12:30 in the afternoon on April 10
Hannah asked to use the telephone. Niblet testified that he
furnished Hannah the telephone number of UMWA official Oxnard and
that Hannah thereafter used the telephone himself. According to
Niblet, Hannah never stated that he had permission to use the
phone. Niblet also testified that miners do not, as a practice,
ask permission b~fore using the mine telephone and so far as
Niblet knew it was not necessary to have permission to use the
phone. Niblet observed that Hannah dialed the telephone himself
and that he, Niblet, stepped outside while Hannah made his call.
Tom Samples, a maintenance supervisor, overheard the
conversation in Moore's office and heard Moore later advise the
Complainants that Mr. Phares had contacted State Inspector
Sanders. He recalled that the Complainants nevertheless insisted
that the state inspector appear at the mine in person and inform
them personally.
Samples did not hear any of the Complainants
ask Moore to call the state inspector nor did they ask to use the
telephone.
Samples observed that, as Hannah came out of Moore's
off ice, he said he needed to use a telephone and Samples advised
him that there was a phone in the corner. Samples testified that
he then stepped aside to give Hannah privacy but that he did not
see him actually use the phone.
Within the framework of the credible evidence, I indeed must
conclude that when the Complainants were advised by Moore, in
particular, and later by Wetzel that State Inspector Sanders had,
in fact, been contacted regarding their concerns (about reenergizing the mine following a fan stoppage without a specific
examination of the secondary escapeways) and had concluded that
there was no safety hazard and that the procedures were legally
pennissible, their work refusal could no longer be considered
reasonable or in good faith.
Clearly, if the Complainants did
not believe in the statements of mine officials regarding their
conversations with State Inspector Sanders, it was incumbent on

67 1

them to call Sanders themselves. 4 I find Consol's witnesses to
be the more credible on this issue and conclude that any of the
Complainant's could have used the available telephones at any
time, that there was no policy prohibiting the use of the phones
for this purpose and that Hannah ~imself used the telephone in
calling another union official without any specific permissi~n to
do so, thus directly discrediting his own testimony. The
Complainants' failure to either accept the reported statements of
Sanders or verify those statements by calling Sanders themselves
and their continued refusal to work without Sanders' physical
presence was unreasonable . Their continued refusal to return to
work could not thereafter be considered to be based upon a good
faith, reasonable belief in a hazard. This conclusion is
reinforced by the fact that when State Inspector Sanders later
arrived at the mine his opin i on was the same as reported by mine
officials and that the Complainants then accepted Sanders
conclusions and returned to work. Accordingly, their continued
work refusal was not protected and their suspension by Consol for
that continued work refusal must stand.
ORDER

This discrimination proceeding is hereby dism'ssed.

I

Gary Melic
Administra ive Law Judge
Distribution:
Lisa A. Gray, Esq., Office of the Solicitor, U.S. Dept. of Labor,
230 s. Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified
Mail)
David J. Hardy, Esq . , Jackson & Kelly, 1600 Laidley Tower, P.O.
Box 553, Charleston, WV 25322
(Certified Mail)
/jf

4

By obtaining this information from the state mine
inspector Consol had thereby fulfilled its obligation to address
the perceived danger that had been communicated by the
complainants. See Braithwaite v. Tri-star mining, 15 FMSHRC
2460 (1993).

6 72

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

APR 2 8 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING Docket No. YORK 95-1-M
A.C. No. 28-00539-05519
Mine: Pinewald

NEW JERSEY PULVERIZING COMPANY,
Respondent
DECISION
Appearances:

James A. Magenheimer, Esq . , Office of the
Solicitor, U. S. Department of Labor, New York,
~ew York for Petitioner;
Martin E. Tanzer, President, New Jersey
Pulverizing Company, Syosset, New York on behalf
of Respondent .

Before:

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq., the "Act" charging the New Jersey Pulverizing Company (NJ
Pulverizing) with one violation of the mandatory standard at 30
C.F.R. § 56.11001 and seeking a "special assessment'' civil
penalty of $8,000 for that violation. The Secretary alleges that
the violation was serious, contributed to the cause of a fatal
fall-of-person accident and resulted from the operator's high
degree of negligence. The general issue is whether NJ
Pulverizing violated the mandatory standard as charged and, if
so, what is the appropriate civil penalty to be assessed
considering the criteria under Section llO(i) of the Act.
The citation at bar, No. 4081298, issued February 9, 1994,
alleges a "significant and substantial" violation and charges as
follows :
A fatal accident occurred at this operation on January 11,
1994, in that a laborer fell 8 feet from a flatbed trailer
and died January 12, 1994. The victim had finished loading
the trailer with pallets of bagged material and was in the
process of covering the pallets with a plastic tarp cover
when he apparently slipped or tripped and fell
approximately 8 feet to the asphalt. There was no safe
means provided to protect the victim from falling from the

673

trailer when he was installing the cover on the pallets.
Along with the termination of this citation the . company
shall institute an effective safety program that will
provide and ensure safe access for the employees.
The cited standard, under Subpart J of the Secretary's
regulations captioned "Travelways", provides that "(s]afe means
of access shall be provided and maintained to all working
places."
The alleged practices giving rise to the instant citation
were described as the purported acts of the deceased,
Robert Rand, in climbing onto a flatbed trailer by utilizing
either a forklift or the rear bumper as a means of access and by
climbing onto pallets of sand bags loaded on the trailer
(Tr. 63). 1 For the following reasons, however, I find that the
Secretary has failed to sustain his burden of proving that the
deceased actually engaged in such activities at the time alleged
or that, even if he had engaged in such activities, that such
activities were a causative factor in his death.
According to. the undisputed testimony of the Secretary's
witness and the deceased's former co-worker,
William Stackhouse, III, he had last seen Mr. Rand before his
fatal injuries around noon or 12:30 p.m. on January 11, 1994, as
Rand was loading a pallet of sand bags with a forklift onto a
flatbed trailer at the Bayville, New Jersey plant.
Five to ten
minutes later, as Stackhouse was taking a pallet outside the
plant, he saw Rand's body lying on the ground two to three feet
from a different and empty flatbed trailer. This empty trailer
was located 15 feet from the trailer which Stackhouse had earlier
seen Rand loading with a forklift. As confirmed by Stackhouse,
Rand's body was, therefore, · actually located 13 feet from the
trailer he had been loading with the forklift.
Stackhouse also
observed that the loaded trailer had been partially covered with
a tarpaulin.
Stackhouse testified that it was his own personal practice
-- a practice he had never seen Rand follow -- in placing
tarpaulins over loaded trailers to first gain access to the
flatbed deck by stepping two feet onto the forklift which he
would park adjacent to the trailer ,and then by stepping another
two feet onto the deck of the flatbed itself. Alternatively he
would use the rear bumper of the flatbed as a two~foot step onto
the flatbed deck.
StacRhouse further testified that once on the
deck of the flatbed he either stepped or crawled onto the bags of
sand product piled on top of the pallets some three to four feet
1

According to the Secretary, Rand should have been using a
stepladder or portable platform to gain access to the trailer bed
and to the top of the sand bags (Tr. 118-119).

6 74

above the flatbed deck in order to pull the tarpaulin over the
material. Stackhouse testified that he personally never used a
ladder or a raised platform to perform such tasks.
A special investigator for the Mine Safety and Health
Administration (MSHA), Larry Brendle, testified that he began his
investigation of this incident on January 13, 1994, two days
after it had occurred. The scene had by then been completely
altered with both trailers removed and apparently neither the
location of the trailers at the time of the cited incident nor
the position of the deceased's body had been marked. According
to Brendle, no autopsy was performed on the deceased and his body
was cremated. The Certificate of Death notes the cause of death
as "massive subdural hematoma" caused when "patient fell and hit
his head". 2
Brendle understood these injuries were located on
the back of the head below the hairline. Brendle acknowledged
that he only surmised that Rand had fallen from the top of the
bags. When it was noted that the deceased's body had been
discovered on the ground 13 feet from the loaded trailer from
which Brendle had assumed the victim had fallen, he conceded
that, indeed, "we will never know how it happened." Brendle
further acknowledged that the injuries to the recessed portion
below the hairline on the back of the deceased's head would not
be consistent with a falling injury.
Under the circumstances, I find that the Secretary has not
sustained his burden of proving his theory set forth in his
Accident Investigation Report (Government Exhibit C-1) and in the
citation that the deceased had fallen from the top of one of the
pallets on the loaded trailer thereby causing fatal head
injuries. 3
While evidence that a tarpaulin had partially
covered the pallets on the loaded trailer, suggests that someone
may have climbed onto the trailer or climbed on top of the
pallets, there is insufficient evidence that the deceased had
done this or that it was performed in the manner the Secretary
has suggested. Indeed, based on the undisputed evidence
presented through the testimony of the Secretary's own witness,
William Stackhouse, that the body was found 13 feet from the
loaded trailer and the description of the deceased's injuries by
Special Investigator Brendle, it is quite possible that the

2

A subdural hematoma is a massive blood clot beneath the
dura mater (the outermost membrane of the brain and spinal cord)
that causes neurologic symptoms by pressure on the brain.
Dorland's Medical Dictionary, 21st edition, W.B. Saunders
Company.
3

I also note that both Stackhouse and Brendle further agree
that the drawing purportedly depicting the incident on page two
of the Accident Investigation Report was not accurate.

675

deceased's head injuries were not even sustained as the result of
a fall. Accordingly, while it is recognized that the Secretary
may establish a violation by inference and circumstantial
evidence, any such inference must be inherently reasonable and
there must be a rational connection between the evidentiary facts
and the ultimate fact to be inferred. Secretary v. Garden Creek
Pocahontas 11 FMSHRC 2148 (1989). In this case the gaps between
the existing facts and conclusions to be inferred are too large.
The citation must, accordingly, be vacated.
Even assuming, arguendo, that the Secretary had met his
burden of proving that the deceased had, in fact, f~llen while
gaining access to the pallets of sand on the loaded trailer, the
Secretary has nevertheless failed to demonstrate that the cited
standard could be constitutionally applied to the circumstances.
In order to pass constitutional muster, a broad standard such as
30 C.F.R. § 56.11001 must be interpreted in light of a
"reasonably prudent person" test so that the adequacy of the
means of access at issue must be measured against the standard of
whether a reasonably prudent person familiar with this industry
and the protective purposes of the standard would have recognized
the specific prohibition or requirement of the standard now
alleged by the Secretary. Secretary v. Alabam~ By-Products
Corporation 4 FMSHRC 2128 (1982); Secretary v. Dolese Brothers
Company 16 FMSHRC 689 (1994).
In this regard the only Secretarial witness to testify on
this issue, Special Investigator Brendle, acknowledged that he
was not familiar with the industry practices in connection with
safety measures taken when spreading tarpaulins on trailer beds.
In fact, he knew of no operators in this industry who ever used a
tarpaulin to cover its bags of sand or mixed cement-sand product.
In his experience, they relied only on plastic blister wrap for
protection.
On the other hand, NJ Pulverizing President Martin
Tanzer 4 testified that after conferring with colleagues in the
industry he found that the majority loaded their trucks in the
same way he did. Some used a platform at the rear of the truck
but the sides would still be exposed. It is significant,
moreover, that even the Secretary did not require the use of any
type of portable platform or stepladder to abate this alleged
violation and has not since this incident cited this operator for

4

Tanzer is a well-qualified expert in the industry. He has
been in the business since 1958 and he has been active in trade
groups, having been President of the National Industrial Sand
Association and the International Packaged Concrete
Manufacturer's Association and on the Board of Directors of the
National Aggregates Association.

6 76

failure to use such a platform or stepladder even though it has
not done so.
Indeed, according to Tanzer, MSHA never told him before or after
this incident that "we're doing anything wrong".
The citation was abated on May 9, 1994, in the following
manner:
The company has instituted an intensive training program.
Two persons are required when loading and men are required
to wear helmets while working on the trailers. This
citation is terminated as the inspector indicates the
company is complying with the District requirement for
compliance.
Within the above framework, I find that the Secretary, in
any event, has failed to demonstrate how the cited standard could
be constitutionally applied to the alleged facts. For this
additional reason, the citation must be vacated.
ORDER

Citation No. 4087298 is hereby vacated and this civil
penalty proceeding dismissed.

!, /\·
I
Iv \,1vv
. I

~

I

I

Io

;

A/\ JV\ .

i

v

Gary Mblick
Adrniniftrative
703-75\-6261

\ ;

~ w Judge

Distribution:
James A. Magenheimer, Esq., Office of the Solicitor, U.S. Dept.
of Labor, 201 Varick Street, Room. 707, New York, NY 10014
(Certified Mail)
Martin E. Tanzer, President, New Jersey Pulverizing Company, 4
Rita Street, Syosset, NY 11751-5918 (Certified Mail)
\jf

67 7

678

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
April 6, 1995

DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
on behalf of
ROBBIE A SMITH,
Complainant

Docket No. WEST 95-10-D
Centralia Coal Mine
Mine I.D. 45-00416

v.
CENTRALIA MINING CO., INC.,
Respondent
ORDER GRANTING MOTION TO WITHDRAW REPRESENTATION

On April 5, 1995, the Secretary of Labor filed a motion in
this case entitled "Complainant Secretary of Labor's Notice of
Intent to Discontinue Participation in Proceedings and Motion to
Restyle Caption." In the motion, counsel for the Secretary
states that the Secretary's attorneys believe that "they cannot
provide representation satisfactory to Mr. Smith.'' The motion
goes on to state that "the Secretary is of the opinion that he
cannot obtain the relief and remedies requested by Mr. Smith.''
The motion continues, as follows:
Mr. Smith has not been cooperative with representatives of the Secretary of Labor during
discovery in this matter and has resisted
providing information to representatives of
the Secretary during this proceeding. Mr.
Smith has strenuously and repeatedly indicated dissatisfaction with the Secretary's representation in this matter. The Secretary's
attorneys assert that the merits of Mr.
Smith's complaint are not the basis for this
action.
Counsel for the Secretary states that "it is the Secretary's
intention to discontinue acting on Mr. Smith's behalf in this
matter. Counsel states that he has advised Mr. Smith that, as a
party to this proceeding, "he may appear, retain his own counsel
and present evidence on his own behalf ." The Secretary requests
that ''the case be restyled to show that Mr. Smith is proceeding
679

on his own behalf under section lOS(c) (3)" of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 815(c) (3). The
Secretary believes that since Mr. Smith is already a party to
this proceeding, he need not file a new complaint alleging the
same violation of section 105(c).
Both the Secretary of Labor and Mr. Smith are parties in
this proceeding.
29 c.F.R. § 2700.4(a). The Secretary has indicated that he no longer wishes to represent Mr. Smith in this
matter. He states that the basis for his withdrawal of representation is not the merits of the discrimination complaint, but
the fact that Mr. Smith is unwilling to cooperate with counsel
for the Secretary.
In a conference call, counsel for Centralia stated that he
has no objection to the Secretary's motion. In a letter to
counsel for Centralia dated April 4, Mr. Smith stated that counsel for the Secretary has removed himself from the case for
"obvious reasons." He further stated that he has "little love
for attorneys" and that he will "proceed with this case on [his]
own behalf." He disputes, however, the Secretary's claim that he
has been "uncooperative."
I do not have the authority to convert this case to a section 105(c) (3) proceeding, as requested by the Secretary. Section lOS(c) (3) provides that if "the Secretary, upon investigation, determines that the provisions of [section 105(c)] have not
been violated, the complainant shall have the right ... to file
an act i on on his own behalf before the Commission .... 11 30 u.s.c.
§ 815(c) (3).
The Secretary has not made such a deter-mination.
See, John A. Gilbert v. Sandy Fork Mining Co., 9 FMSHRC 1327,
1337-38 (August 1987), rev'd on other grounds, Gilbert v. FMSHRC ,
866 F.2d 1433, 1441-43 (D.C. Cir. 1989).
Nevertheless, it would be unfair to Mr. Smith to dismiss
this case simply because the Secretary no longer wishes to represent him. As stated above, Mr. Smith is already a party to
this section 105(c) (2) proceeding.
29 C.F.R. § 2700.4(a).
Accordingly, this case will proceed as a section 105(c) (2)
proceeding and the secretary will no longer be representing
Mr. Smith. Mr. Smith may retain his own private counsel or may
proceed on his own. The caption will be restyled to reflect the
fact that the Secretary is no lon~er Mr. smith's representative
and is, therefore, no longer a party to this proceeding. The
Secretary's motion is GRANTED.
,,,,--'
./'
(

,.7

, ~A--\

Richard W. Manning
Administrative Law Judge

68 0

,.---...f·-·=..u-....,,,,,
Q

Distribution:
Jay Williamson, Esq., Office of the Solicitor, U.S. Department of
Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212
Timothy M. Biddle, Esq., CROWELL & MORING, 1001 Pennsylvania
Ave., NW Washington, DC 20004-2595
Mr. Robbie A. Smith, 943 E. Greenbrae Dr., Sparks, NV

RWM

681

89434

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

April 13, 1995
CIVIL PENALTY PROCEEDING

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

.
.

v.
AMAX COAL COMPANY,
Respondent

..
.

Docket No. LAKE 95-124
A. C. No. 11-00877-04078
Wabash Mine

DECISION DISAPPROVING SETTLEMENT
ORDER TO VACATE
ORDER TO SUBMIT INFORMATION
Before:

Judge Merlin

This case is before me upon a petition for assessment of
civil penalties under section lOS(d) of the Federal Mine Safety
and Health Act of 1977 . The Solicitor has filed a motion to
approve settlement for one of the two v iolations in this case and
moves to vacate the other violation.
The Solicitor moves to vacate Citation No. 4056757 due to
insufficient evidence. The Solicitor's motion is granted .
With respect to the remaining violation the Solicitor
propose a reduction in the penalty. citation No. 4267053 was
issued for a violation of 30 C. F.R . § 48.7(a) on the ground that
task training provided to miners for a new underground piece of
equipment was inadequate. The inspector stated on the citation
that the inadequate training contributed to the personal injury
of a newly task trained miner. The Solicitor represents that the
degree of gravity is a matter of dispute between the parties.
The Solicitor advises that MSHA believes a high degree of
gravity is present, but that the operator contends gravity is
less because adequate training was given and the injury in
question was caused by the miner not following instructions. The
solicitor agrees to reduce the pe~alty from $1,500 to $800.
I cannot approve the settlement motion as submitted. The
parties are reminded that the Commission and its judges bear a
heavy responsibility in settlement cases pursuant to section
llO(k) of the Act. 30 u.s.c . § 820(k); See, s. Rep. No. 95-181,
95th Cong., 1st sess. 44-45, reprinted in senate Subcommittee on
Labor, Committee on Human Resources, 95th Cong., 2d sess.,
Legislative History of the Federal Mine Safety and Health Act of
~'at 632-633 (1978).
It is the judge's responsibility to
determine the appropriate amount of penalty, in accordance with
the six criteria set forth in section llO(i) of ..,._,,.,_
the..... ...-Act •
68 2

30 u.s.c. § S20(i); Sellersburg Stone Company v. Federal Mine
Safety and Health Review Commission, 736 F.2d 1147 (7th Cir.
1984). A proposed reduction must be based upon consideration of
these criteria.
The Solicitor has merely set forth the difference of opinion
between the parties with respect to gravity. He has not said
whether he agrees with the operator's position or whether he
anticipates difficulties in sustaining MSHA's position on gravity. Because of the way the Solicitor's motion reads, a hearing
appears necessary to resolve questions such as the adequacy of
the operator's training and the culpability of the miner. When
the Solicitor seeks to have the original penalty almost cut in
half, he must do more than say that a matter is in dispute. He
must provi de info r mation sufficient for me to act under section
llO(i) because I can only approve a settlement justifiable under
the six criteria of that section.
In addition, there is a discrepancy in the citation as
written. As already noted, the inspector stated on the citation
that the violation resulted in an injury. However, in determining the degree of gravity on the citation he checked off that an
injury was highly likely instead of that it had occurred . The
Solicitor should clarify whether this violation resulted in an
injury.
In light of the foregoing, it is ORDERED Citation No.
4056757 be VACATED.
It is further ORDERED that the motion for approval of
settlement for citation No. 4267053 be DENIED.
It is further ORDERED that within 30 days of the date
of this order the Solicitor submit appropriate information
to support his settlement motion for Citation No. 4267053.
Otherwise, this case will be set for hearing.

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department
of Labor, 230 s. Dearborn st., 8th Floor, Chicago, IL 60604
Mr. L~rry F. Pile, Amax Coal Company, Midwest Regional Office,
One Riverfront Place, 20 N.w. First street Evansville IN
47708-1258
,
,
/gl
68 3

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

APR 2 4 1995
BERWIND NATURAL RESOURCES, CORP.,
KENTUCKY BERWIND LAND COMPANY,
KYBER COAL COMPANY,
JESSE BRANCH COAL COMPANY,
Contestants
v.

CONTEST PROCEEDINGS
Docket No. KENT 94-574-R
through
KENT 94-797-R
and
KENT 94-862-R
AA & W Coals, Inc.
Elmo No. 5 Mine

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

Mine I.D. No. 15-16856
ORDER

1lilli
NOTICE OF HEARING

These contest proceedings are filed pursuant to Section 105
of the Federal Mine Safety and Health Act of 1977 (Mine Act or
Act}, 30 u.s.c. § 815. They involve 225 citations and orders
issued for alleged violations of various mandatory health and
safety standards. The citations and orders arise out of an
explosion that occurred at the Elmo No. 5 mine of AA&W Coals,
Inc. (AA&W), on November 30, 1993. The explosion took the life
of James Lyons, an inside laborer.
Following an investigation of the accident, the Secretary of
Labor's Safety and Health Administration (MSHA) issued the
contested citations and orders to AA&W, Kyber Coal Co. (Kyber),
Jesse Branch Coal Company (Jesse Branch), Berwind Land Company
and Berwind Natural Resources Corporation (Berwind} (collectively,
the Contestants) . Subsequently and upon the unopposed motion of
the Secretary, Kentucky Berwind Land Company (Kentucky Berwind)
was substituted as a party for Berwind Land Company (Order
Substituting Parties (January 20, 1995)).
AA&W operated the Elmo No. 5 mine pursuant to a contract
with Kyber. Kyber, Jesse Branch, and Kentucky Berwind are
subsidiaries of Berwind. The Secretary eontends that all of the
entitles are jointly and severally liable as operators of the
684

mine. AA&W does not dispute the Secretary's jurisdiction.
However, the others maintain they are not operators within the
meaning of the Act and that they should not have been cited for
the alleged violations.
The proceedings were effectively bifurcated so that the
status of the Contestants could be resolved prior to addressing
the individual merits of the enforcement actions. Extensive
discovery was conducted (~Order Granting Secretary's Motion To
Conduct Discovery and Adopting Schedule for Resolution of
Contestants• Status as 11 0perators 11 (September 1, 1994}). The
parties then filed joint stipulations of fact and cross motions
for summary decision. For the reasons that follow, the
Secretary's motion is DENIED; the Contestants• motion is GRANTED
IN PART and the proceedings are NOTICED for hearing.
SUMMARY DECISION
Under the ~ommission s rules, a motion for summary decision
shall be granted only if the entire record shows (1) no genuine
issue as to any material fact, and (2} the moving party is
entitled to summary decision as a matter of law (29 C.P.R.
§ 2700.67).
Summary decision is only authorized 11 upon proper
showings of the lack of a genuine, triable issue of material
fact, 11 (Celotex Corp. v. Catrett, 477 U.S. 317,327 (1986)}.
If
some material facts are disputed or are incomplete, a hearing is
necessary, but the hearing may be limited to the disputed or
incomplete issues (29 C.P.R. § 2700.67(d)).
1

STIPULATED FACTS
There are 302 stipulations {Joint Stipulations of Fact (JSF)
{December 28, 1994)). From these stipulations, it is possible to
summarize the general factual background of the case as it
relates to the issue of liability.

AA&W is a corporation chartered in Kentucky. The
corporation is closely held by Jim and Harold Akers, the
company's president and vice president. The brothers are the
sole shareholders (JSF 3-7). AA&W operates several mines, in
which it extracts coal owned and/or leased by others (JSF 10) .

685

In the past, AA&W has operated various mines pursuant to
contracts with Kyber and Jesse Branch. The Elmo No. 5 mine was
one of those mines (JSF 20) . At the Elmo No. 5 mine, AA&W
employed approximately 20 miners who produced between 180,00 and
200,00 tons of coal per year (JSF 16, 18).
KYBER
Kyber is a corporation chartered in Kentucky (JSF 22) . Its
officers consist of a board chairman, president, vice president,
vice president of operations, vice president of engineering,
treasurer, assistant treasurer, secretary, and controller
(JSF 23). Kyber's name is an amalgam of "Kentucky" and 11 Berwind 11
(JSF 25) .
Kyber l eases land and coal reserves from Kentucky Berwind
and contracts out the mining of the coal. Kyber owns a
preparation plant. Almost all coal mined by Kyber's contractors
is blended, sized and washed at the plant. The coal then is sold
by Kyber' s sales agent, Be·rwind Coal Sales, Inc . , a wholly owned
subsidiary of Berwind (JSF 22, 31).
JESSE BRANCH
Jesse Branch is a corporation chartered in Kentucky
(JSF 23,34). Jesse Branch has the same officers as Kyber and the
same people serve in the same offices in both corporations,
including the mutual president of Jesse Branch and Kyber,
Jimmy Walker (JSF 23,34).
Like Kyber, Jesse Branch leases land and coal reserves from
Kentucky Berwind and contracts with others to mine the coal it
leases . Jesse Branch also owns a preparation plant, a?d almost
all coal mined by Jesse Branch's contractors is blended, sized
and washed at the plant. The coal is then sold (JSF 32-34).
Jesse Branch never has extracted coal (JSF 36) .
RELATIQNSHIP BETWEEN I<YBER AND JESSE BRANCH
The companies share a president, Jimmy Walter; a vice
president of operations, Steve Looney; a vice president,
Randolph Scott; and a controller, Bob Bond. In the past, the
companies also have shared the same treasurers and assistant

686

treasurers (JSF 23, 34). Each of these people performs duties on
behalf of the two companies and as agreed to between the
companies (JSF 39} .
The companies share one office (JSF 40).
It was at this
common office that AA&W obtained its weekly "ticket," listing the
amount of coal received by Kyber during the week . AA&W was paid
by Kyber based on its production as listed on the "ticket"
(JSF 49).
Jesse Branch provided map drafting and surveying services to
AA&W. Kyber paid Jesse Branch for the services in a fee based on
the tons of coal produced by AA&W (JSF 41) .
Occasionally, coal produced at Kyber contract mines is
processed at the Jesse Branch preparation plant (JSF 42). Also,
occasionally Jesse Branch and Kyber use each others equipment
(JSF 4 8) .
Kyber's secretarial tasks sometimes are performed by
Jesse Branch's employees. A Jesse Branch employee monitors the
amount of coal received by both companies from their contract
mines and arranges for its transportation to the companies'
preparation plants (JSF 47, 48).
Kyber, Jesse Branch, and .the vast majority of other Berwindelated companies, are members of the same employee pension plan.
This arrangement is common to many corporate groups (JSF 46).
KENTUCKY BERWINP
Kentucky Berwind is a Kentucky corporation. It is a wholly
owned subsidiary of Berwind (JSF 50, 51) . Its principal place of
business is Charleston, Wes~ Virginia, but it maintains an office
in Kentucky.
Kentucky Berwind owns approximately 90,000 acres of
coal reserves in Pike County, Kentucky, some of which is leased
to Kyber (JSF 50-53).
The chairman of the board of Kentucky Berwind also is the
chairman of the board of Kyber and Jesse Branch . The vice
president of Kentucky Berwind is the vice president of Kyber and
Jesse Branch. Those serving as treasurer, assistant treasurer,
secretary and controller of Kentucky Berwind serve in the same
capacities for Kyber and Jesse Branch {JSF 23, 34, 55).

687

Steve Dale, chief mine inspector and lands manager of
Kentucky Berwind, supervises two other company mine inspectors,
Richard Belcher and Bryan Belcher (JSF 56, 57) .
BERWINP
Berwind is a holding company incorporated in Delaware and
located in Philadelphia, Pennsylvania. Berwind is the sole share
holder of Kyber, Jesse Branch and Kentucky Berwind (JSF 58, 63).
Berwind's business as a holding company is to oversee the
operations of its subsidiaries. Berwind is involved also in
decisions that affect the general direction of business of its
subsidiaries, and Berwind, as sole shareholder, has the power
unilaterally to replace the officers of its subsidiaries
(JSF 64, 66).

C.G. · Berwind, Jr. is chairman ·of the board of Berwind.
Thomas Falkie · ~s president of Berwind and chairman of the board
of Kyber, Jesse Branch and Kentucky Berwind. Berwind's vice
president is also vice president of the three subsidiaries.
Berwind's chief financial officers acted in the same capacity for
Kyber, Jesse Branch and Kentucky Berwind. Its assistant
secretary acted as secretary for the three subsidiaries and its
controller acted as controller for Kentucky Berwind (JSF 23, 34,
54,

60) .

Berwind's board approved the election of Jimmy Walter as
president of Kyber and Jesse Branch. Walker hired Steve Looney
as vice president of operations for Kyber and Jesse Branch.
Falkie, president of Berwind, was aware of Walker's decision to
hire Looney and approved "in general terms" (JSF 67). Bob Bond,
the controller of Kyber and Jesse Branch, also was hired by
Walker, and Berwind' s board approved (l.Q._,J • The president of
Kyber and Jesse Branch and the president of Kentucky Berwind
report to Berwind's president (~alkie) (JSF 69).
Berwind's three subsidiaries are required to submit
financial statements to Berwind . These statements are reviewed
by Berwind's .vice president and chief financial officer and are
used to project Berwind's cash flow (JSF 70-72). The financial
officer also receives production reports from Kyber and
Jesse Branch to determine whether projected revenues will be met
(JSF 73).

688

Falkie and Richard Rivers, Berwind's vice president, who is
also vice president of Kyber, Jesse Branch and Kentucky Berwind,
monitor Kentucky Berwind's lease-holding activities and are aware
generally of the economic performance, personnel, coal sales and
coal quality of Kyber and Jesse Branch (JSF 75). Falkie receives
monthly reports from Kyber and Jesse Branch regarding coal
production at each mine in which contract mining is conducted.
At times, Falkie also receives daily reports on the amount of
coal processed at Kyber•s and Jesse Branch's preparation plants
(JSF 76, 77). In addition, Berwind 1 s board receives reports from
Kyber and Jesse Branch that summarize the production of the
subsidiaries' individual contract operators (JSF 78).
THE MINE

Coal production began at the Elmo No. 5 mine in May 1990,
after Jim Akers submitted Form 2000-7 to MSHA listing AA&W as the
"operator" (JSF 79, 80-82).
Mining was conducted by cutting machines, drilling machines
and explosives. Because the mine was relatively new, most of the
mining was advance mining, which was done on 60 foot and 40 foot
centers.
(Usually, the main entries were driven on 60 foot
centers and rooms off the entries were driven on 40 foot centers
(JSF84, 85)).
THE LEASE

In 1984 Kentucky Berwind orally leased to Kyber its right to
mine the area where the Elmo No. 5 mine eventually was located.
In return, Kyber paid rent and royalties to Kentucky Berwind
(JSF 88, 89). In April 1991, Kentucky Berwind and Kyber entered
into a written lease (JSF 89, Exh. B).
THE I(YBER-AA&W CONTRACT
I

A contract between Kyber and AA&W was executed in the
spring of 1990 (JSF 93, Exh. C).
Walker, president of Kyber . and Jesse Branch, and Looney,
vice president for operations of the two companies, selected AA&W
to operate the mine. Walker advised Falkie, Berwind's president,
of the choice. Although Falkie, as board chairman of Kyber and

689

Jesse Branch, has the power to disapprove contracts between the
subsidiaries and their contract operators, he never has done so
(JSF 95, 97-98.) However, Falkie and/or Richard Rivers, vice
president of Berwind, Kyber and Jesse Branch once inquired
whether AA&W had the ability, skill and safety record to conform
to Berwind's corporate policy that contractors mine in a safe
manner and in accordance with MSHA and state regulations
(JSF 96, 98, 99, 102).
The contract between Kyber and AA&W was of the same type
used by Kyber for all entitles mining its coal; with the possible
exception of the clauses regarding the quantities of coal to be
mined and the penalties to be associated with poor coal quality
(JSF 100). The contract was first developed and used by
Jesse Branch and was based on contracts in general use throughout
the mining industry (JSF 101) .
Under the contract, Kyber paid AA&W a variable price for
each ton of coal mined and deposited in the stockpile outside the
mine. When demand for coal was great, Kyber requested that AA&W
increase production to meet the demands of Kyber ' s customers, but
it was up to AA&W to determine if it would comply with the
request. When demand was low, AA&W either reduced production or
maintained production and stockpiled the additional coal
(JSF 105-106, 109).
PERMITS AND LICENSES
Prior to opening the Elmo No . 5 mine, Kyber obtained some of
the state and federal environmental permits necessary to conduct
mining and paid some of the permit fees (JSF 110-111). The
contract required AA&W to obtain all necessary permits that had
not been obtained by Kyber and to post all necessary bonds
(JSF 112). For example, AA&W obtained and paid for the state
mining license and posted the stat~ bond (JSF 114).
MINE PLANS . PROGRAMS AND TRAINING
AA&W developed and submitted to MSHA all plans required
under the Mine Act (e.g., fan stoppage plan, miner training
plans, self contained self rescuer plan, smoke search plan, fire
fighting plan, emergency evacuation plan, ventilat i on plan and
roof control plan) . AA&W also developed and implemented the

690

respirable dust and noise sampling programs required under the
Act. AA&W provided required training to its miners · (JSF 115-116,
118) .
TAX PAYMENTS
Pursuant to the contract, AA&W paid all state and federal
income taxes, social security taxes and unemployment compensation
payments associated with AA&W employees (JSF 119) . Kyber paid
state severance taxes, federal black lung excise taxes, and state
and federal reclamation taxes . Kyber paid the taxes with money
it owed to and withheld from AA&W (JSF 120-122).
PREPARATION OF MINE SITE
Kyber determined the location of portals to the mine and
contracted with a third party to prepare the area for their
development and for the development of a stockpile area (JSF 123127). Kyber also contracted with a third party to build a
haulage road to serve the mine and developed drainage ponds for
mine "run off" (JSF 129-131).
MINERS' EMPLOYMENT. PAY AND INSURANCE
AA&W hired, fired, disciplined, trained, supervised and
directed its employees who worked at the mine. Pursuant to its
contract with Kyber, AA&W paid the employees. AA&W also paid for
workers• compensation, black lung and liability insurance
(JSF 132-135).
MINING EQUIPMENT. MACHINERY AND SUPPLIES
Pursuant to the contract, AA&W furnished and maintained all
equipment, machinery, tools, materials, etc., needed and used in
the production of coal in the mine, except on very limited
occasions when it borrowed surface equipment owned by Kyber or
Jesse Branch for a day or two . AA&W also provided equipment,
machinery and structures used to stockpile and sort coal after it
was brought to the surface (JSF 136, 139). AA&W independently
purchased and obtained all supplies used to mine coal at the mine
(JSF 140).

It was understood that the mine would produce stoker coal.
At one time the Akers brothers discussed with Jimmy Walker,
691

president of Kyber and Jesse Branch, and with Sever· Looney,
vice president of operations of Kyber and Jesse Branch, the
possibility of using a continuous mining machine at the mine.
Walker and Looney expressed doubt that such a machine could be
used to produce coal that could be processed as stoker coal at
the Kyber preparation plant and AA&W did not get the machine
(JSF 137-138) .
ELECTRICAL POWER AND SYSTEMS
Kentucky Power Company billed Kyber for all electric power
supplied at the mine. Kyber deducted the amount due from the
payments it made to AA&W for the. coal AA&W mined. Kyber also
deducted from its payments to AA&W the cost of an electrical
substation at the mine, a substation Kyber purchased and had
installed (JSF 142-143). AA&W · maintained the substation
(JSF 145) .
AA&W obtained and installed the cables that transported
electricity from the substation into the mine and AA&W installed
and maintained the electrical systems inside the mine (JSF 144) .
AA&W performed all of the electrical examinations and kept at the
mine all electrical records required by Part 75 of the
regulations. There is no evidence that any of the Contestants
ever inspected the records {JSF 146-147) .
AA&W was responsible for charting the mine's electrical
systems on mine maps (JSF 148) .
MINE SURVEYING AND MAP PREPARATION
AA&W paid Jesse Branch a production-based fee to perform
surveying and map drafting for the mine (JSF 149, 151). The maps
were certified by Randolph Scott, vice president of engineering
f or Kyber a nd Jesse Branch (JSF 155) .
Every six months AA&W submitted maps to MSHA showing
projections for future mining, as required by Part 75 of the
regulations. AA&W also submitted to MSHA maps regarding the
mine ' s electrical systems (JSF 149-150) .
AA&W requested that Jesse Branch employees survey and set
spads in the mine. On average, surveying and spad setting were
692

conducted on a weekly basis. Surveying and spad setting were
necessary to allow mining consistent with mine projections. The
employees of Jesse Branch who did the spad setting and surveying
also recorded the height of coal seams and entry-ways. They
noted the locations of pillars and centers on which mining was
conducted, stopping lines, conveyor belt lines and roof falls.
This information was placed iri a "field book" kept in the offices
of Jesse Branch . The same employees of Jesse. Branch also noted
the location of gas wells that would intersect the mine,
locations which were indicated on the maps (JSF 160-164,
166-167).
VENTILATION
AA&W was responsible for developing , implementing and
submitting a mine ventilation plan to MSHA as required by Part 75
of the regulations. The ventilation regulations also require
that maps showing the ventilation at the mine be submitted to
MSHA every six months. Jesse Branch produced the maps based on
information from AA&W (JSF 168-169) .
AA&W determined the type and amount of ventilation at the
mine, consistent with Part 75 of the regulations and the Act.
AA&W obtained and maintained the fan used to ventilate the mine
AA&W was free to change or modify ventilation so long as the .
changes were within the perimeters of the plan approved by MSHA.
AA&W performed all examinations and kept all records required by
the ventilation portion of the regulations. AA&W maintained the
records of ventilation examinations at the mine and the records
were available for review by MSHA and the Contestants. There is
no evidence the Contestants ever reviewed them {JSF 170-174).

ROOF SUPPORT
AA&W was responsible for developing, implementing and
submitting to MSHA a mine roof control plan as required by Part
75 of the regulations . Jesse Branch prepared the diagrams in the
plans that illustrated the pillaring methods used during retreat
mining. The diagrams were drafted from information provided by
AA&W . Jesse Branch added no information or specifications of its
own (JSF 175) .
AA&W determined the type of roof support used in the mine
{JSF 176).
693

MINING PRODUCTIONS AND DIRECTIONS
In accordance with its lease obligations, Kyber was
responsible for assuring that coal reserves were mined to the
greatest extent possible, consistent with mining conditions,
relevant laws and regulations.
Kyber•s contract with AA&W stated
that mining was to be conducted, 11 in accordance with mining
projections prepared by [Kyber•s] engineers. 11 As noted,
surveying and map drafting services utilizing projections
prepared in consultation with AA&W were provided to AA&W by Kyber
through Jesse Branch's employees (JSF 177-178). Once projections
were establ ished and agreed upon by AA&W and Kyber, modifications
could be made only by joint agreement (JSF 179).
Kyber, using a coal reserve study carried out years ago by
Kentucky Berwind, developed a coal reserve map that indicated the
location of coal reserves Kyber expected AA&W to recover.
AA&W and Kyber jointly developed the initial mining
projections for the mine, and they developed subsequent
projections on an "as needed" basis as mining progressed. The
projections were incorporated by Jesse Branch onto the mine maps.
AA&W was required by contract to follow the projections and,
generally, did follow them. When AA&W believed it could not mine
to the full extent of the projections - - for example, when the
coal seam became too thick and it was economical or unsafe to
continue -- AA&W initiated discussions with Kyber. Kyber
interpreted the contract to allow it to reject AA&W's request to
mine less than projected, unless mining conditions made it unsafe
to continue (JSF 180-187) .
If proposed changes to the mining projections were
acceptable to AA&W and Kyber, Jesse Branch drafted a revised mine
map showing the modified projections. AA&W then submitted the
map to state and federal regulatory agencies (JSF 189) .
When Kyber agreed with a decision by AA&W that mining
projections should not be followed fully, Kyber notified Kentucky
Berwind and asked Kentucky Berwind to conduct an inspection of
the area in order to protect Kyber from liability for wasting
coal reserves (JSF 188).

694 .

The contract contained penalties for low quality coal and
on some occasions AA&W contacted Kyber in an attempt to have the
penalties waived if it was mining in an area where the ash
content of the coal was unusually high (JSF 195) .
In such
situations, Kyber visited the mine to determine the cause for
poor coal quality.
In some cases Kyber contacted Kentucky
Berwind and gained input from Kentucky Berwind as to whether it
wanted mining to continue. Kyber and AA&W then determined the
best course of action (JSF 193).
EXTRACTION OF COAL
AA&W was required by the contract to conduct mining in
compliance with all relevant safety laws and regulations. AA&W
determined the manner in which coal was mined.
(The coal was
undercut and blasted.) AA&W determined how retreat mining was
conducted, i.e., how the pillars were selected and cut (JSF 197,
200) .
AA&W and Kyber jointly agreed that mining could be conducted
on 40 foot centers in certain areas (JSF 198) . AA&W notified
Jesse Branch regarding areas were retreat mining had been
conducted so that Jesse Branch could update the mine maps
(JSF 199).

TRANSPORTATION OF COAL
Pursuant to its contract AA&W delivered all of the coal
extracted from the mine to Kyber. AA&W provided the equipment,
machinery, tools, supplies, etc., needed for getting the coal
from inside the mine to the stockpile outside. Once outside, the
coal was loaded onto trucks by a front-end loader owned by AA&W.
The loader was operated by drivers of independent trucking
companies who contracted with Kyber to haul the coal to Kyber's
preparation plant. AA&W paid a set amount for each ton of coal
transported from the mine to the preparation plant . Kyber
occasionally visited the mine to determine whether the trucking
companies were operating in compliance with the contracts

.

(JSF 210-205).

INSPECTIONS
AA&W representatives participated in MSHA inspections and in
the subsequent conferences. AA&W decided whether to challenge

695

the validity of violations issued by the inspectors. AA&W
determined the manner in which the violations should be abated.
AA&W paid all civil penalties assessed under the Mine Act
(JSF 206-208} .

Jesse Branch inspected the drainage ponds on the mine site
pursuant to state regulations. Jesse Branch submitted
information derived from its inspections to the state and to
Kyber on a quarterly basis. AA&W did not participate in these
inspections . Jesse Branch or Kyber paid all penalties associated
with violations cited by the state and they were responsible for
correcting any violations (JSF 206211} .
VISITS AND INSPECTIONS BY CONTESTANTS
Kyber's employees visited the mine infrequently to check. on
the height and quality of the coal seam. These visits were made
in accordance with the provision in Kyber•s lease with Kentucky
Berwind that Kyber make sure coal reserves were mined to the
greatest extent possible and to negate Kyber's exposure to treble
damages under state law for wasting coal reserves . In addition,
Kyber's employees occasionally visited the mine at the request of
AA&W (JSF 212, 213}. Kyber's employees had the right to go onto
mine property at will, although generally they first notified
AA&W (JSF 214) .
Jesse Branch's employees visited the mine on a weekly basis
to survey and set spads (JSF 215) .
Kentucky Berwind's mine inspectors visited the mine
quarterly to protect Kentucky Berwind 1 s rights as the legal owner
of the coal and its interests pursuant to the lease. Kentucky
Berwind's inspectors performed the same type of inspection at all
mines where its leased coal was mined. Kentucky Berwind used the
reports of the visits to track mining operations at each mine.
The reports determined whether a lost coal penalty should be
assessed against a lessee for a failure to recover the requisite
quantity of coal. The reports were used also to calculate the
tonnage of coal mined, the tonnage remaining to be mined and the
areas yet to be mined (JSF 216-217).
Kentucky Berwind could contact Kyber if it believed coal was
not mined effectively at a particular mine, but it'never did with
respect to the Elmo No. 5 mine (JSF 219} .
696

When Kentucky Berwind's inspectors visited the
Elmo No. 5 mine, they obtained a copy of the current . mine map
from AA&W, requested information concerning the type of mining
conducted, the type of haulage used, the average daily and
monthly production, the average coal quality, etc. The
information was incorporated into their inspection reports
(JSF 222).
The Kentucky Berwind inspectors usually traveled with
representatives of AA&W. The inspectors first visually examined
surface areas of the mine. Once underground, the inspectors
measured the coal seam in order to calculate an average coal seam
height and to confirm appropriate royalties were paid (JSF 222).
Kentucky Berwind inspectors conducted inspections at the
mine two times in 1990, seven times in 1991, two times in 1992
and five times in 1993 (JSF 222-226) .
PROCESSING AND SALE OF COAL
Kyber's preparation plant was designed to produce stoker
coal which was sold at the plant. On occasion, Kyber contacted
AA&W when Kyber felt the amount of rock in the coal was
excessive.
(JSF 230-231). Berwind Coal Sales, Inc. located
consumers and negotiated contracts with consumers for the sale of
the coal. Kyber compensated Berwind for the services provided by
Berwind Coal Sales, Inc. (JSF 232-233).
KENTUCKY BERWINP'S RELATIONSHIP TO THE MINE
Kentucky Berwind never funded any of AA&W's mining operations.
Neither loans nor advances of money were made by Kentucky Berwind
to AA&W or to its officers and directors for operations at the
mine.
Kentucky Berwind did not pay any debts for AA&W nor did it
pay wages, benefits or bonuses to ·any AA&W employees (JSF 237241) .
Kentucky Berwind did not provide or sell supplies, machinery
or tools to the mine. It did not require AA&W to obtain approval
for the purchase, lease or use of mining machinery or equipment.
It did not own any of the equipment used by AA&W (JSF 242-245) .

69 7

Kyber annually provided Kentucky Berwind with current mine
maps and on a monthly basis provided Kentucky Berwind with
reports of the amount of coal mined (JSF 256). Kentucky Berwind
received monthly royalties from Kyber for the coal (JSF 257) .
Kentucky Berwind had no labor management issues or
activities connected with AA&W (JSF 246-248).
It did not share
directors or officers or offices with AA&W (JSF 249 - 250) . The
only Kentucky Berwind employees who worked in the mine were those
who quarter l y entered the mine, or who entered upon request, to
examine the workings in order to insure coal was being recovered
properly and to check seam heights and tonnages to confirm
royalties (JSF 252-254).
Steve Dale, Ke ntucky Berwind's chief mine inspector and
manager of lands, was required to protect the surface interests
of Kentucky Berwind by preventing unauthorized ·encroachment on
mine property and the theft of timber and other surf ace property
(JSF 258).
BERWINP'S RELATIONSHIP TO THE MINE
Berwind never provided funding, loans or advances to AA&W.
In addition, Berwind never loaned money to any of AA&W's
officers, directors or__employees, or paid any of the company's
wages, benefits, bonuses or debts (JSF 259-263).
Berwind did not provide any supplies, materials, machinery,
or tools to AA&W for use at the mine. AA&W was not required to
obtain Berwind's approval before it obtained machinery or
equipment (JSF 264-266).
Berwind had no role in labor management relations connected
with AA&W. It did not hire, fire or discipline AA&W employees .
It did not supervise or train them.
It did not exchange
employees with AA&W and it did not share directors, officers or
shareholders. Berwind employees did not work underground at the
mine (JSF 268-271, 274) .
Berwind had no input into the development of the specific
contract between Kyber and AA&W. It received no production
reports or financial reports from AA&W. It provided no financial
analysis or advice to AA&W (JSF 275, 277-278).

698

Kyber mailed monthly reports to Berwind listing the
projected tonnage and the amount of coal actually mined for all
Kyber contract mines, including the Elmo No. 5 mine. The reports
contained small maps of areas of contract mines that had been
mined (JSF 281). Kyber also delivered monthly financial reports
to Berwind specifying the money generated by mining operations
involving Kyber•s leased reserves (JSF 282).
Berwind reviewed the budgets submitted by its subsidiaries.
If the Berwind board approved the budgets, Berwind allocated
capital to each subsidiary as necessary to meet the subsidiary's
budget. Expenditures by subsidiaries that were beyond those set
forth in the budgets were subject to approval by Berwind
(JSF 281-283).
Neither Jesse Branch nor Kyber are profitable. Berwind
provides funds to them for their operating expenses and capital
expenditures. Significant capital expenditures, such as the
purchase of coal preparation plants and expenditures for face-up
work to open new mines, are approved by Berwind {JSF 284). In
this regard, Berwind approved the expenditure of funds by Kyber
to do the face-up work to open the Elmo No. 5 mine {JSF 286).
Kyber is one of 21 coal lessees of Kentucky Berwind in
Pike County, Kentucky. Berwind never has received a dividend as
a shareholder of Kyber. However, Kentucky Berwind pays dividends
to Berwind out of its earnings, which are attributable in part to
royalties received from its lessees, including those paid by
Kyber on coal mined at the Elmo No. 5 mine (JSF 287-288).
Berwind also receives a management fee from its subsidiaries for
legal, financial and administrative services (JSF 289).
SITUATION WITH CORVETTE MINING
Corvette Mining Company (Corvette) ·operated a surface mine
located above the Elmo No. 5 mine. Corvette was a contract
operator for a Kentucky Berwind lessee (not one of the
Contestants) . Kentucky Berwind was the legal owner of the coal
mined by Corvette. Kentucky Berwind's mine inspectors examined
Corvette's mining operations for the same reasons they examined
the Elmo No. 5 mine (JSF 291-292).

699

On April 8, 1993, at approximately 6:00 p.m., a controlled
blast at the Corvette mine apparently caused a roof fall in the
Elmo No. 5 mine. AA&W notified Kyber and Kyber notified Kentucky
Berwind. Following additional roof fall problems associated with
blasting by Corvette, Kentucky Berwind employees visited the
Elmo No. 5 mine to examine the affected areas of the roof
(JSF 294-295).
Jesse Branch employees used topographical maps and
Elmo No. 5 mine maps to determine the geographic relationship of
the Corvette mine to the Elmo No. 5 mine. The information was
given to Kentucky Berwind and the company was able to coordinate
the location of the surf ace blasting to the sections that had
been mined in the Elmo No. 5 mine (JSF 294-296).
On April 12, 1993, Steve Dale, Kentucky Berwind's chief mine
inspector and land manager, and Richard and Bryan Belcher,
Kentucky Berwind's mine inspectors who were supervised by Dale,
went to the Corvette mine and to the Elmo No. 5 mine. They met
with a Corvette official, with Jim Akers of AA&W and with an
official of the state (JSF 297). Also, Dale observed the roof
conditions that apparently were the results of the blasting
(JSF 298).
On April 12, 1993, MSHA issued to Corvette an imminent
danger closure order requiring that blasting cease at the
Corvette mine until a plan or method was established to prevent
harm to miners underground. Also, on April 12, 1993, AA&W
received an MSHA citation for a roof control violation which
resulted from a roof fall caused by the blasting (JSF 299-300).
Jimmy Walker, president of Jesse Branch, and Steve Looney,
vice president of operations of Jesse Branch, suggested that
Corvette move its blasting operations 500 feet away from the
location it had been using. Steve. Dale showed Corvette where the
operations could be moved (JSF 301).

700

PARTIES' ARGUMENTS
THE SECRETARY
The Secretary starts with the following proposition:
[E]ach of the four Contestants, in
conjunction with AA&W Coals, was intimately
involved in the operation of the Elmo mine .
Thus, each must be considered an "operator"
of the El mo mine. As "operator" of the Elmo
mine, each of them is jointly and severally
liable for violations of the Mine Act
committed at the Elmo mine.
(Sec. Mot. 5)
The Secretary continues:
[Berwind) , [Kentucky Berwind] , [Kyber]
and [Jesse Branch] may choose to use AA&W
Coals as the conduit for removing minerals
owned by [Kentucky Berwind] for the benefit
of [Berwind] , (Kentucky Berwind] , [Kyber] and
[Jesse Branch]; however, they cannot
completely divorce themselves from the risks
and responsibilities that Congress has
apportioned to those who engage in mining.
(Sec . Mot . 5)
The Secretary states that the Act recognizes there can be
multiple "operators" at a single mine and that each such operator
has a duty to assure compliance, even if one such "operator" is
in a better position to prevent violations (Sec. Mot. 7).
Under the statutory definition of "operator," a Contestant
must be considered an operator if it "operated," 11 controlled, 11 or
"supervised" the Elmo No. 5 mine, either directly or indirectly .
Moreover, the "power" to control or supervise brings a Contestant
u nder the Mine Act regardless of whether the power is exercised.
Were this not so, entities having the legal authority to e xercise
control over a mine would be encouraged to ref rain from
exercising that power in order to evade respons i bility under the
Act (Sec. Mem. 13).
701

The Secretary catalogues in great detail how each of the
Contestants exercised the control and supervision necessary to
make each an operator and how each had the authority to do so
{Sec. Mem . 15-52) .
Final ly, the Secretary asserts that holding the Contestants
liable as operators will provide an incentive to improve health
and safety by encouraging "[l ] arge and well-funded entities who
profit from coa l production ... to recogn i ze the need for
becoming involved in the health and safe t y aspects of mining, as
well as simp l y being involved in those produc t ion aspects that
affect their profits" (Sec. Mem 53). Such entities will gain
additional incent ives to assure that the control they have over
the manner in which coal is mined (e.g., direction of mining and
methods of mining) results in the safe and healthful operation of
the mine (Sec. Mem 53-54).
THE CONTESTANTS
The Contestants maintain they did not control or supervise
the mine. They assert that the statutory words "operates,
controls or supervises" must be understood in the context of the
purpose of the Act -- to require that working conditions and
practices in a mine be maintained to protect the health and
safety of the miners . In the Contestant's view, it is the entity
that manages the mining process, directs the workforce and owns
the equipment used in that process that has the ability to
establi.s h and maintain safe and healthful working conditions.
It
is therefore the "hands on entity" that should bear the
responsibility for compliance (Conts. Mot. 9).
According to the Contestants, the courts and the Commission
always have maintained and interpreted the Mine Act {and its
predecessor, the Federal Coal Mine Health and Safety Act of 1969,
30 U. S.C . § 801 et. seQ . {1976) (amended 1977) {1969 Coal Act or
Coal Act)) in this way. An entity never has been held liable as
an operator unless the entity is or has been the production
operator responsible for running the mine or an independent
contractor performing construction or services at the mine for
the production operator. Even though in W-P Coal Co.,
1 6 FMSHRC 533 (July 1994), the Commission held liable W-P, a
company that had contracted with another company to mine leased
coal, W-P had been the on-site operator and under its contract
shared effective control over the mine in the form of
702

participating in MSHA inspections, providing loans to the
contract operator and leasing mining equipment to the contract
operator (Conts. Mot. 12).
Moreover, the Contestants assert that the operator's control
over mining operations and ability to direct the workforce lie at
the heart of the Act's strict liability scheme. None of the
contestants had the kind of involvement in and authority over the
working conditions of the mine to j ustify imposing that liability
(Cents. Mot. 14 ) .
RESOLUTION OF THE MOTIONS FOR SUMMA.RY DECISION
Resolution of the motions depends upon the meaning of the
statutory definition of 11 operator 11 • Once the meaning is
~nderstood, the question of whether undisputed material facts
establish that any or all of the Contestants are liable can be
answered.
THE CONTESTANTS AS OPERATORS
THE ACT
Analysis of the meaning of "operator" begins with the words
of the statutory definition and with the assumption that the
Act 1 s drafters carefully chose the words to mean what they say.
Section 3(d) defines an "operator" as, "[a]ny owner, lessee, or
other person who operates, controls or supervises a ... mine or
any independent contractor performing services or construction
work at such mine '' (30 U. S.C. § 802(d)). The clause, "who
operates, controls, or supervises a coal or other mine 11 describes
and qualifies each noun in the preceding phrase "any owner,
lessee, or other person 11 •
The definition requires "owners,
lessees or other persons 11 to participate in and/or have authority
over the operation, control or su~ervision of a mine (.s.e..e_ Elliot
Coal Mining Company. Inc. y . Director. Officer of Workers'
Compensation, 17 F.3d 616, 629-630 (3d Cir . 1994). Accordingly,
and as the parties recognize, it is not correct to read the Act
to make owners or lessees operators in of themselves.
This understanding of the statutory definition of " operator"
supports and strengthens the Act's purpose. Section 2(e)
provides that the "operators" of the nation's mines have primary
responsibility for preventing the existence of unsafe and
70 3

unhealthful conditions (30 U.S.C. § BOl(e)) . Throughout the Act,
the entity charged with compliance is the 0 operator'~ (See . e.g.
§ 814(a), § 815(a), § 820{a)).
In this context, it makes no
sense to place responsibility on an entity who has not
participated in creating the conditions in the mine or who has no
actual authority over those conditions. On the other hand,
placing liability on an entity who has participated or who has
such authority provides a spur to compliance.
The Secretary correctly points out that when the 1969 Coal
Act was drafted, the Senate committee report stated that the
definition of 11 operator" was designed to 11 include any individual,
organization, or agency, whether owner, lessee or otherwise, that
operates, controls, or supervises a coal mine, either directly or
indirectly" (Sec. Mot. 7-8, citing to S. Rep. ·No . 411,
91st Cong., 1st Sess. 44 (1969), reprinted in , Legislative
History of the Federa l Coal Mine Health and Safety Act of 1969,
170; See ~lso Sec. Response Br . 7-8). This statement was not
disavowed when the Mine Act was drafted and I conclude that an
operator's control or supervision may be either "direct" or
"indirect. 11
However, analysis can not end here, for more than direct or
indirect control or supervision is required . As the courts long
have recognized, under both the Coal Act and the Mine Act, an
11
operator 11 must 11 call the shots" at a mine regarding its day-today operation, control, or supervision, or have the authority to
do so, (~National Industrial Sand Ass'n y, Marshall, 601 F.2d
698, 701 (3d Cir. 1979 ("Designation ... as operators .. .
re<J,Uires substantial participation in the running of the mine"
(emphasis in original)) .
Indeed, the Secretary's regulations implementing the Act
reflect this view of control and supervision, in that they
require specific acts by those who are substantially
participating in the running of the mine -- acts such as taking
dust samples, submitting mine plans, maintaining mine equipment,
training miners, etc. There are no regulations requiring
entities connected with the mine, but not actively and
substantially involved in its production and management to engage
in such acts, and it would be an incongruous dichotomy to hold
such entities responsible when they have no responsibilities.

70 4

I conclude, therefore, that in order to establish that an
entity is an "operator" subject to the Act, the Secre~ary must
prove that the entity, either directly or indirectly,
substantially participated in the operation, control or
supervision of the day-to-day operations of the mine, or had the
authority to do so.
This means that in a contract mining situation, an entity
that leases or owns mineral rights subjects itself to liability
if it substantially participates in making decisions with respect
to how the mineral is mined and how the mine is staffed and run,
or if it retains the authority substantially to participate in
the making of such decisions. Since the burden is on the
Secretary to prove substantial participation in decision making
and/or the retention of decision making authority, it is not
enough for the Secretary to establish interlocking corporate
relationships between entities and the normal business
transactions attendant thereto when these transactions fall short
of what the Act requires.
Since forms of control, operation and supervision vary from
case to case, the question of whether an entity is an "operator"
under Section 3(d) of the Act must be resolved on a case-by-case
basis.
In this regard the Commission has provided guidance.

In

W-P Coal Company, 16 FMSRHC 1407, 1411 {July 1994), the

Commission gauged a lessee's involvement with its contract
operator by looking to specific indicia of operator status
characteristics such as involvement in the mine•s engineering,
financial, production, personnel and safety affairs. Echoing the
court's requirement that a cited entity exhibit "substantial
participation in the running of the mine" (National Indµstrial
.s..arui, 601 F.2d at 701), the Commission determined that the
lessee's "substantial" and 11 considerable 11 involvement warranted
the Secretary proceeding against it (W-P Coal Company, 16 FMSHRC
at 1411, n.3.).
(Put another way, the Commission's decision
recognized implicitly that an entity's involvement in the
day-to-day operat·ion of a mine could be so infrequent or minimal,
i.e., so insubstantial or incons~derable, that operator status
would not result .)

705

THE CQNTESIANTS AS QP~EATORS

Analysis of the Contestants' status as "operators" takes
place against a backdrop of agreement by the parties that AA&W
exercised on its own most of the aspects of control and
supervision at the mine. AA&W hired, fired, disciplined,
trained, supervised, directed and paid its employees
(JSF 132-135) . AA&W developed and submitted all of the plans
required under the Ac t and instituted all of the measures
necessary to comply with dust and noise sampling programs
(JSF 116, 118). For all practical purposes, AA&W furnished and
maintained all of the equipmen t, machinery, tools and materials
used in the mine, as well as all of the machinery, equipment and
structures for stockpiling coal on the surface {JSF 136-140).
AA&W participated in all MSHA inspections and conferences. AA&W
decided to contest violations. AA&W decided how to abate
violations. AA&W paid the civil penalties assessed for
violations (JSF 206 - 208). Finally, although Kyber could request
that AA&W increase production, AA&W ultimately determined whether
it would comply with such a request (JSF 105) . The debate
between the parties is whether the Contestants' ipvolvement in
what was left was sufficient to make them operators.
KYBER

Control and Supervision Through The Contract
The Secretary states that Kyber's contract with AA&W
"provided [Kyber] with the right to control and supervise the
central facets of the mining operation and involved Kyber in
activities that were vital to the operation of the mine"
(Sec. Mot. 15). He also asserts that Kyber "initiated,
consulated and fostered the relationship with AA&W Coals, which
was necessary for mining to commence and continue at the
Elmo No. 5 mine" (l..d,_ at 25) .
If the Secretary is asserting that contract mining
invariably places an entity such as Kyber in the position of
being an "operator," I reject the proposition. Rather, as I
have stated, the Secretary must ·e stablish that the owner of the
mineral rights or the owner's lessee is participating
substantially in the actual day-to-day operation of the mine,
or has reserved that authority to itself, and this must be
determined by assessing the specific indicia of involvement.
706

Contract provisions are but once piece of evidence of how
the parties viewed their relationship. More important than the
provisions is how the parties actually carried out the contract
and related to one another.
Control and Supervision Through Involvement in Engineering
The parties stipul ated that the mining projections were
prepared by Kyber's engineers in accordance with the contract.
They also stipulated that under its lease with Kentucky Berwind,
Kyber was responsible for assuring that coal reserves were mined
to the greatest extent possible (JS F 177-178). Finally, they
agreed that once the projections were established, modifications
were made onl y upon the joint consultation and determination of
Kyber and AA&W (JSF 179 ).
I cannot determine from the stipulated facts whether or not
Kyber used the projections substantial ly to control day-to-day
mining. Testimony is needed concerning the reason for the
projections and the general uses of the projections. Testimony
also is needed regarding Kyber's and AA&W's understanding of the
impact of the projections on mining, as well as specific
instances when the projections were changed, the circumstances
leading to those changes, and results with respect to mining that
flowed from the changes.
It is possible that the purpose for the projections and
their associated quality requirements was for Kyber to insure
that the coal mined was the coal it had leased and that the coal
met the quality standards of its customers. It is also possible
that Kyber went beyond these purposes and used the projections
and quality requirements as a means to dictate to AA&W that
mining be done in a certain area or in a certain way. In this
regard, I note that the stipulations state that on several
occasions AA&W changed the direction it was mining because Kyber
determined that coal mined did not meet its specifications
(JSF 194).
In addition to the projections, Kyber was responsible for
certain activities on mine property prior to the commencement of
mining; doing face-up work, determining the location of portals,
preparing an on-site storage area and contracting the building of
haulage roads serving the mine (JSF 123-127, 130). Kyber also
purchased the electric su.b station and had it installed {JSF 142).

70 7

The Secretary argues that when it acted in these capacities,
Kyber was involving itself in the operation of the mine
(Sec. Mem. 16-17).
I find this irrelevant to the issue at hand. The question
is whether the Contestants actually were operators of the mine
on November 30, 1993. Even if Kyber was acting as an operator
of the mine when the activities took place, all of them occurred
before the mine opened and AA&W became the on-site operator and
they do not make Kyber an operator for the purposes of these
proceedings.
In addition, the Secretary notes that Kyber obtained state
and federal environmental permits and updated them as required
(Sec. Mem . 17, ~ JSF 110 - 111, 113). While I assume that the
permits were required for AA&W to initiate and continue mining,
there is no indication in the stipulated facts and supporting
record that Kyber ever used the obtaining, updating or renewing
of the permits as a means to control the day-to-day operation of
the mine. I consequently conclude that Kyber's acquisition and
updating of the permits is not indicative of its status as an
operator.
Control and Supervision Through Involvement in Finance
The Secretary notes that Kyber paid the mine permit fees and
argues that Kyber arranged for the money necessary to fulfill the
bonding requirement associated with AA&W's state license
(Sec. Mem. 17-18).
(Although the latter assertion is
contradicted by JSF 114, for the purpose of this order, I will
assume the assertion is true {~Sec . Mem. n. 16.)) As with the
acquisition and renewal of the state and federal permits, there
is no suggestion in the stipulations or supporting record that
Kyber used the process of obtaining the permits as a means to
control the day-to-day operation qf the mine. Nor is there any
indication that Kyber used bond money for this purpose. This
being the case, I cannot conclude that paying for the permits and
posting a required bond is an indication of the control of
day-to-day operations that is required by the Act.
The Secretary also argues that another indication of Kyber's
control of mining operations was its payment of certain federal
and state taxes {Sec. Mem. 17-18). The stipulations specify the
taxes that were paid. The stipulations also indicate that ·Kyber
708

was reimbursed through deductions from the price per ton of coal
paid to AA&W (JSF 120-122).
In other words, Kyber withheld
AA&W ' s money to pay the taxes. As with the permits and the
posting of a mining bond, the upfront payment of taxes lacks
critical characteristics of operator status. Not only was Kyber
paid back, but there is no indication that Kyber ever used this
business arrangement to control the day-to-day operation of the
mine.
Control and Supervision Through Involvement in Production
The Secretary argues that under the contract, Kyber had
direct authority to control production at the mine (Sec .
Mem. 22). The contract required AA&W to be capable of producing
a minimum of 5,000 tons of coal per month and allowed Kyber to
notify AA&W that it would accept less (JSF Exh. C-2). AA&W could
not sell coa1 to any entity other than Kyber (JSF 201, Exh C-1).
In addition, the Secretary points out that there were times when
Kyber needed mor'e coal than AA&W normally produced and that at
those times Kyber requested that AA&W have its employees work
additional hours to meet the demands of Kyber's customers
(JSF 105-106).
It is not clear from the stipulations and supporting record ·
whether or not Kyber exercised control over the day-to-day
operations of the mine through the provisions in the contract
relating to production. It might be that Kyber regularly
demanded that AA&W produce a certain amount of coal and work (or
not work) a certain schedule to meet its demands. On the other
hand, it might be that Kyber made requests of AA&W and that AA&W
was free to deny them and in fact did deny them.
Certainly,
JSF 105 suggests this could have been the case ( 11 AA&W ultimately
determined whether it would comply with [Kyber's] request [that
AA&W increase production] . 11 )
In o~her words, it is relevant to
know how the parties interpreted the cited contract provisions
and how the parties actually implemented the provisions.
The Secretary also argues that Kyber exercised control over
the manner in which coal was mined because AA&W selected
machinery it used to extract coal "based upon ... [its]
understanding that [Kyber] wanted coal to be mined by
conventional mining methods" (Sec. Mem. 23). I do not find this
argument to be persuasive. While it is true that the machinery
used to extract coal was consistent with the production and
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processing of stoker coal (JSF 137-138), this was a reflection of
the type of coal Kyber wanted to market and of AA&W~s and Kyber's
contractual agreements. Of far greater importance is the
parties' stipulation that except on very limited occasions, AA&W
furnished and maintained all equipment, machinery tools and
materials at its mine (JSF 136).
It is clear to me that AA&W
substantially controlled the day-to-day operation of the mine in
this regard.
Control and Supervision Through Involvement in Employment
The Secretary argues that Kyber personally supervised mining
through the inspections it conducted at the mine (Sec. Mem. 24).
The stipulations state that Kyber's employees visited the mine,
either at the request of AA&W or on their own initiative. The
visits were necessary to examine. the height and quality of the
coal seam, to make sure that the coal reserves were mined to the
greatest extent possible, as required by Kyber's lease, and to
negate the exposure to treble damages that Kyber might incur
under state law for the waste of coal reserves (JSF 212-213).
There is no indication that during the visits Kyber personnel
were involved in the supervision and direction of AA&W personnel
as they carried out their day-to-day tasks. Nor is there any
indication Kyber personnel had the authority to exer~ise such
supervision and control. Rather, as the parties agreed, it was
AA&W who hired, fired, disciplined, trained, -supervised and
directed the miners (JSF 134).
The occasional presence of Kyber personnel to ascertain that
its leased coal was being mined to the greatest extent possible
and to protect itself from possible damages was logical, given
Kyber's obligations under its lease. It stretches the Act beyond
reason to consider the visits an indiciurn of statutory control.
JESSE BRANCH
The Secretary argues that not only was Jesse Branch an
operator in its own right through its control and supervision of
the mine, he also asserts that Jesse Branch's actions furthered
Kyber's interests, were attributqble to Kyber, and were yet
another indication of Kyber's status as an operate~
(Sec. Mem . 26-27). The fundamental question, however, is whether

710

Jesse Branch exercised the control and supervision that is
indicative of operator status.
If not, it is irrelevant whether
Jesse Branch acted on Kyber's behalf.
Control and Supervision Through Involvement in Engineering
Jesse Branch drafted mine maps, conducted surveying and set
spads at the mine. AA&W paid Kyber for these services and Kyber,
in turn, paid Jesse Branch (JS F 149-152 ) . Jesse Branch only
performed these engineering series at mines operated pursuant to
a mining contract with Kyber or Jesse Branch (JSF 153) .
Surveying and spad setting, which we re done at AA&W ' s request,
were necessary to allow mining consistent with mine projections
and the Act (JSF 161).
The Secretary argues that surveying and spad setting were
"critical to the operation of the mine" (Sec. Mero . 30) . Although
there is a sense in which this is true, I do not find the nature
of surveying and spad setting to be, ipso facto, an indication of
substantial cont rol over the day - to-day operation of the mine.
Mines must be developed faithful to their boundaries and
projections. To accomplish this, surveying and spad setting are
a necessity.
Frequently, on - site operators lack in-house
capacity for the tasks.
Consequently, they contract for the
services. There is nothing that is unusual about such
arrangements. There is no indlcat i on in the stipulated facts or
the record that in providing the services Jesse Branch was acting
so as to control the day-to - day operation of the mine, or that it
had the authority to exercise such control .
The Secretary also views the preparation of mine maps by
Jesse Branch as an indication of control (Sec. Mero 30-31). The
maps, which showed mine projections, were used by AA&W to comply
with MSHA regulations and AA&W submitted them to the agency for
this purpose (JSF 158-159) .
As with surveying and spad setting, I do not find map
preparation to be an indication that Jesse Branch substantially
controlled the day-to-day operation of the mine or had the
authority to do so. Few operators employ workers who have map
drafting expertise . Thus, the contracting of map making is
common. The stipulated facts indicate the purpose of the maps
was compliance with federal regulations. There is no indication
in the stipulations or the supporting record that in providing
711

maps for AA&W, Jesse Branch was acting so as to sub?tantially
control the day-to-day operation of the mine, or that it had the
authority to exercise such control.
The same is true of Jesse Branch's quarterly inspection of
drainage ponds on the surface of the mine (JSF 209). The
Secretary argues that these inspections "assur[ed] compliance
with state environmental regulations on the mine surface"
(Sec. Mem. 27). However, again I find no indication in the
stipulations and record that in conducting the quarterly
inspections Jesse Branch was controlling the day-to-day operation
of the mine . Quarterly inspection of surface drainage ponds for
compliance with state environmental regulations is simply too
remote from statutory control and supervision and too infrequent
to vest Jesse Branch with operator status.
Finally, I draw no inference of operator status from the
fact that the same people served as officers of Kyber and Jesse
Branch, that the two companies occasionally used equipment owned
by one another and that they shared office space (Sec. Mem. 2728) . The question is whether Jesse Branch substantially
participated in or had authority to participate in the control or
supervision of the day - to-day operation of the mine, and I
conclude that it did not.
KENTUCKY BERWIND
The Secretary asserts that Kentucky Berwind had the
authority to exercise control and supervision over mining and was
an operator, even if it did not choose to exercise that control
and supervision (Sec. Mem 35). Kentucky Berwind owned the
mineral rights at the mine, and, according to the Secretary,
ownership is a powerful indicium of statutory control (.IQ.) • More
important, the lease was crafted in such a way that Kentucky
Berwind retained significant control over the manner in which
mining was conducted (Sec. Mem 37-38).
Because I view the Act as requiring an entity either
directly or indirectly to participate substantially in the
control or supervision of the day-to-day operation of a mine or
to have the authority to do so, I do not find that ownership or
leasing of mineral rights, is in and of itself, a characteristic
of statutory control. It depends on what is done with the
rights.
712

Here, Kentucky Berwind leased the rights to Kyber. As the
Secretary notes, the lease had numerous provisions regarding
Kyber's responsibilities to Kentucky Berwind. Kyber had to
submit coal samples to Kentucky Berwind for quality analysis;
Kyber had to maintain coal production records; Kyber had to make
sure mining was conducted in a workman-like manner and in
conformity with state and federal law; Kyber had to make sure
mining was done with modern and efficient methods; and Kyber had
to allow Kentucky Berwind's inspectors on the premises to
ascertain the condition of the mine and the amount of coal
removed (Sec. Mem. 37-38, citing JSF Exh. B). These provisions
singularly and together are a far cry from what the law requires
for operator status -- substantial participation in the daily
operation, control or supervision of the mine. Rather, they are
provisions one would expect the owner of the mineral rights to
include to protect its interests.
The Secretary also cites as evidence of control the report
forms completed .by Kentucky Berwind's inspectors (Sec. Mem. 4041) . According to the Secretary, they demonstrate that the
inspectors "oversaw numerous aspects of the mining process"
(Sec. Mem. 40). While they may demonstrate that Kentucky
Berwind's inspectors ~numerous aspects of the mining process
as they traveled the mine both on the surface and underground,
they do D.Q.t. indicate that the inspectors supervised that process.
The information Kentucky Berwind sought from its inspectors was
no different from that which any owner of mineral rights would
want to know (for example, the percentage of coal the contract
operator could be expected to remove, the average production per
shift and per month, and the ash content of the coal mined
(~ JSF, Exh. D)).
More important, there is no linkage of the
information to substantiate participation by Kentucky Berwind in
the day-to-day operation of the mine or authority to participate.

Further, the Secretary references the fact that Kentucky
Berwind had a say, along with Kyber, in approving changes in
mining directions and in authorizing AA&W to ref rain from mining
in certain areas of the mine (Sec. Mem. 42}. It is not clear to
me from the stipulations what role Kentucky Berwind played when
AA&W wanted to deviate from the mining projections. When a
variance from the projections would leave coal that had been
projected for recovery, Kentucky Berwind was asked by Kyber to
inspect the area and, presumably, to approve the deviation .so
that Kyber would not be liable for wasting coal reserves
713

(JSF 188). Kentucky Berwind also was notified by Kyber when an
area slated to be mined was removed from the projection and, on
at least one occasion, Kentucky Berwind notified Kyber that an
area did not have to be mined to comply with the lease
(JSF 191-192) .
The stipulations do not indicate what happened if Kentucky
Berwind did not agree to a deviation; and, if such a situation
ever occurred.
I cannot determine from the stipulated facts
whether or not Kentucky Berwind could and/or did use its
involvement with the projections to dictate the areas AA&W would
mine and how AA&W would mine them.
In my opinion, testimony is
needed to i l luminate Kentucky Berwind's role with regard to the
projections and how and when it exercised that role.
The Secretary cites as a further indication of Kentucky
Berwind's control the fact that if Kentucky Berwind's inspectors
determined Kyber was not complying with the lease, Kentucky
Berwind could terminate the lease, penalize Kyber for lost coal
reserves and order mining to cease immediately if the reserves
were being damaged or if mining was conducted in violation of the
law (Sec. Mem . 41, citing JSF Exh. B 23-25) . In my view, these
provisions of the lease are consistent with the protection of
Kentucky Berwind's property interests in the mineral rights.
While they afford Kentucky Berwind control over i.t..s. rights to the
coal, they do not allow it to participate substantially in the
actual day-to-day operation of the mine or give it the authority
to do so . To hold otherwise would be to make Kentucky Berwind
effectively liable because it controlled the mineral rights, a
proposition I have rejected previously.
Finally, the Secretary asserts that Kentucky Berwind's
actions with regard to the Corvette incident show how ·it involved
itself in the operation of the mine when necessary, (Sec. Mem 4244) . I also reject this argumen~ . The parties agreed that
Kentucky Berwind employees went to the Elmo No. 5 mine after the
Corvette blast damaged the mine roof (JSF 295) . They agreed that
the damage to the roof was the result of the blast (JSF 298) .
They agreed that a Kentucky Berwind employee showed Corvette
where to move its blasting operations , presumably to avoid
further damage to the Elmo No. 5 mine roof (JSF 301).

714

While all of this may show that Kentucky Berwind was
"involved" with the operation at the mine, it does not establish
that Kentucky Berwind substantially participated in the control
or supervision over the day-to-day mining operations at the
Elmo No. 5 mine. There is no indication that Kentucky Berwind
ordered AA&W to change anything with regard to its daily
operations as a result of the Corvette incident. Moreover, it
was only natural that Kentucky Berwind, as the owner of the coal
reserves mined by both AA&W and Corve t te, would have an interest
in trying to assist both operators s o that they did not interfere
with one anothers' operations. That i n terest and Kentucky
Berwind's resulting role in the i n cident do not equate to
statutory control and supervision.
BERWIND
The Secretary hinges his assertion of Berwind's liability
upon the theory that Berwind and its who lly owned subsidiaries
coordinated their activities to collectively operate the mine
(Sec. Mem. 45). Therefore, they were a single unit that operated
the mine with "common control" to "a chieve [a] common business
purpose" (Sec . .I.d.... 46). The fundamental problem with the
Secretary's argument is that the undisputed material facts do not
establish that Berwind had substantial control, common or
otherwise, over the day-to-day opera t ion of the mine,
substantially participated in the mine's supervision, or had the
authority to do so.
In fact, contacts between Berwind and AA&W were very
limited. The Secretary notes that Richard Rivers, Berwind's vice
president, was involved in developing the contract from which the
agreement between AA&W and Kyber was derived; that T~omas Falkie,
Berwind's president, had the authority to disapprove mining
contracts with prospective contract operators and was advised
when AA&W was selected as the on-si~e operator; and that Berwind
received weekly reports of production at the mine and information
regarding specific issues concerning the mine, including AA&W's
one-time interest in a continuous mining machine and the Corvette
situation (Sec . ·Mem. 50-52; citing JSF 95-97, 281).
Assuming that all of this is true, it is a long way from
substantial participation in the control and supervision of

715

day-to-day mining operations that is contemplated by the Act.
For this reason, were I to grant the Secretary's motion and hold
Berwind liable, I would be ruling effectively that Berwind was an
operator by nature of its corporate structure and corporate
relationship to the other Contestants. Not only would such a
holding fall outside the letter of Section 3(d), there is no need
for it.
As the Contestants point out, when a separate legal entity
is used to protect fraud or subvert publ ic policy, the corporate
veil may be pierced and corporations, or even the individuals who
control the corporations, may be held l iable (See generally
~ v. Bangor Buta Operations v. Bangor & A. R. Co. , 417
U.S. 702, 713 (1974) ; ~a l so United States y, WRW Corp.,
778 F. Supp. 919, 922 (E.D. Ky. 1 991, aff 1d, 989 F.2d 138
(6th Cir. 1993) ) . Thus, had the Contestants in fact manipulated
their corporate structure to avoid legal responsibilities for
health and safety violations at the mine and had real day-to - day
decision making authority lain with the Contestants, the
Secretary would have had an effective remedy {Conts. Reply
Br. 39-40).
There has been no showing that the Contestants planned to
benefit from their corporate structure while effectively
directing th.e day-to-day operations at the mine. Nor can I
conclude that failing to regard them as operators will defeat the
policy underlying the Act -- the protection of the health and
safety of the nation's miners. Indeed, the failure of the
Secretary to cite any of the Contestants as operators until after
the explosion of November 30, 1993, suggests exactly the
opposite.
RULING ON THE MOTIONS

I cannot find the undisputed· material facts establish that
Kyber and Kentucky Berwind substantially participated in the
control or supervision of the day-to - day operations of the mine
or had the authority to do so. Nor can I find such facts
establish they did not so participate. Additional evidence is
needed about the mining projections and the relationships between
AA&W, Kyber and Kentucky Berwind as they relate to the
p r oj e ctions and to the day-to-day operations at the mine.
Additional information also is needed regarding the
716

interpretation and implementation of the provisions in the
Kyber-AA&W contract that relate to production. Therefore, the
motions for summary decision of both the Secretary and the
Contestants are DENIED with regard to Kyber and Kentucky Berwind.
On the other hand, the undisputed material facts establish
that Jesse Branch and Berwind did not substantially participate
in the control or supervision of the day-to-day operations of the
mine or have the authority to do so. Therefore, the Secretary's
motion for summary decision is DENIED with regard to Jesse Branch
and Berwind and the Contestants' motion is GRANTED.
NOTICE OF HEARING
The parties are advised that these matters will be called
for hearing in Pikeville, Kentucky, or at another mutually
acceptable site of the parties preference, at 8:30 a.m. on
May 23, 1995. At the hearing, the parties should be prepared to
offer evidence regarding the particular issues specified above.

JJvVid'

t. .IJJ~

David F. Barbour
Administrative Law Judge
Distribution:
Robert I. Cusick, Esq., Marco M. Rajkovich, Esq.,
Christopher Van Beyer, Esq., Mindy G. Barfield, Esq.,
Wyatt, Tarrant & Combs, 1700 Lexington Financial Center,
Lexington, KY 40507

Timothy M. Biddle, Esq., Thomas M. Means, Esq., Edward - M. Green, Esq.,
Crowell & Moring, 1001 Pennsylvania Avenue, N.W.,
Washington, D.C., 20004-2595
Stephen D. Turrow, Esq., Office of the Solicitor, U.S. Dept. of Labor,
4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
\me a

oU.S. GOVE~NT PRINTING OFFICE: 1995-387-720/33379

717

718