JANUARY 1985
Commission Orders
01-02-85
01-22-85

Robert Roland v . MSRA
MSHA & UMWA v . Jim Walter Resources

WEST 84-46- DM(A)
SE
84-31-D

Pg.
Pg.

1
3

Administrative La'tv Judge Decisions
01- 03- 85
01- 04- 85
01- 08- 85
01- 08- 85
01- 09- 85
01- 09- 85
01- 10-85
01- 10- 85
01- 14-85
01- 14- 85
01-15- 85
01- 15- 85
01-15- 85
01- 16- 85
01- 16- 85
01- 18-85
01- 18- 85
01-18- 85
01-22 - 85
01- 22-85
01- 23-85
01-23-85
01-25-85
01- 25-85
01- 25- 85
01-30-85
01-30-85

PENN 84- 192
Trent Coal, Inc .
Standard Metals Corporation
tVEST 83-56- M
Gilbert Corporation of Delaware
WEST 84- 95-M
Maiden Mining Company
WEVA 84- 340
KENT 84- 156
Pyro Mining Company
PENN 84-146
Penn Coal Companyt Inc.
Marty Corporation
KENT 84-1 77
LAKE 84- 48
Arch of Illinois, Inc.
CENT 83- 31- M
Homestake Mining Company
MSHA/Samuel Griffith v. Bowman Coal Co., Inc. VA
84- 25- D
Thomas Murphy v . Consolidation Coal Co.
PENN 83- 150-D
VA
84- 4
H J and H Coal Company
WEVA 83- 127
Amherst Coal Company
Kitt Energy Cor poration
WEVA 83-125-R
WEVA 83- 141- R
Westmoreland Coal Company
MSHA/L . Duty v . West Va. Rebel Coal Co.
KENT 83-161-D
Valley Camp Coal Company
WEVA 84- 373
YORK 84-11-R
Mettiki Coal Company
Steve L. Turner v. Terry Glenn Coal Co .
KENT 84- 233-D
PENN 84-184-D
John A. Voyten v. Canterbury Coal Co.
Homestake Mining Company
CENT 84-98-M
WEVA 85-47-D
James H. Tucker v. Southern Ohio Coal Co .
Voyager Mining Company
KENT 84- 86
WEVA 84- 338
Dean Fuels Inc.
WEVA 85-25
Monument Mining Corporation
Johnson ' s Trucking, Inc.
CENT 84-54
WEVA 84-335-R
U.S. Steel Mining Co ., Inc.

Pg.
5
Pg.
7
Pg . 11
Pg. 12
Pg. 13
Pg. 49
Pg. 50
Pg. 56
Pg. 92
Pg. 94
Pg . 101
Pg. 102
Pg. 105
Pg. 110
Pg . 112
Pg. 125
Pg. 138
Pg. 144
Pg . 145
Pg. 148
Pg. 149
Pg. 151
Pg. 154
Pg . 157
Pg . 160
Pg . 162
Pg. 186

10- 17- 84

Bigelow Liptak Corporation
This decision was missing a page in
the October 1984 issue of Decisions.

CENT 84-24-M

Pg. 191

JANUARY

Review was granted in the following cases during the month of January:
Secretary of Labor, MSHA v . Southern Ohio Coal Company , Docket No.
WEVA 84- 166, 84-94- R. (Judge Melick, November 27, 1984)
Secretary of Labor, MSHA v. U. S. Steel Mining Co., Inc., Docket No.
PENN 84- 49. (Judge Merlin , November 30 , 1984)
Secretary of Labor, MSHA v. Jim \~alter Resources, Inc., Docket No.
SE 84- 57. (Judge Mer lin , December 3, 1984)
Secretary of Labor on behalf of Robert Ribel v. Eastern Associated Coal
Corporation, Docket No . ~VA 84-33-D. (Judge Koutras, Order of December
13, 1984)
No cases were filed in which review was denied.

COMMISSION ORDERS

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

January 2, 1985

ROBERT K. ROLAND
v.

Docket No . WEST 84-46-DM(A)

SECRETARY OF LABOR
.
MINE SAFETY AND HEALTH
AD~UNISTRATION

(MSHA)

ORDER
On August 15, 1984, the Commission granted the petition for interlocutory review filed by the Secretary of Labor. Following the solicit ation of amicus curiae participation, the Commission, on October 24,
1984, issued an order establishing the briefing schedule in this case .
The Secretary's brief was due within 25 days of the date of that order.
On December 12, 1984, the Secretary filed a motion with the Commission
seeking leave to file his brief out of time . The Secretary's motion
states that although the Commission's briefing order of October 24,
1984, was received by the mail room of the Secretary's Office of the
Solicitor, the order "was never logged as received, •• • and none of the
attorneys of record in the case ever received the order. " The Secretary
requests that, if his motion is granted, his previously filed petition
for interlocutory review be treated as constituting his brief . Compare
Commission Procedural Rule 72(a) , 29 C.F.R. § 2700.7 2(a).
ppon consideration of the Secretary's motion, his requests to file
his brief out of time and to treat his petition for interlocutory review
as his brief in this matter are granted. On December 31, 1984, the
Commission received from complainant Robert A. Roland a letter dated
December 21, 1984, with attachments, which he designated as his brief.
This letter is hereby accepted as Hr. Roland's brief. The amicus brief
of the United Mine Workers of America must be received by the Commission
on or before January 31, 1985.

1

On December 10, 1984, Mr. Roland filed a motion requesting, among
other things, immediate remand of the proceeding to the administrative
law judge because of the Secretary's failure to file his brief . Mr.
Roland's motion is denied. Mr. Roland's request for immediate monetary
relief and damages will be considered by the Commission, along liith
other substantive issues presented by this case, at the appropriate time
after completion of briefing.

Backley, Acting Chairman

arne~ A. Las~ow~~

L~
Distribution
Robert K. Roland
8520 Rainbow Avenue
Denver, Colorado 80229
Vicki Shteir-Dunn , Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
I

Mary Lu Jordan, Esq.
UMWA

900 15th St., N.W.
Washington, D.C. 20005

Commissiooer

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

January 22, 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRA_TION (MSRA)
on behalf of I.B. ACTON
GRADY ADERHOLT
FREEMAN BUTLER
JAMES L. CAMPBELL
J.D. ELLENBURG
W. D. FRANKLIN
BILLY R. GLOVER
TERRY PEOPLES
WILLIAM REID
CHARLES W. RICKER
TERRY SHUBERT
THEODORE TAYLOR
MARVIN \USE
CHARLES BLACKHELL
ROBERT BURLESON
HOUSTON EVANS, and
KENNETH RANDAL COFER

Dockets

SE 84- 31- D
SE 84-32.:...D
SE 84- 33-D
SE 84- 34-D
SE 84- 35-D
SE 84- 36-D
SE 84- 37- D
SE 84- 39-D
SE 84- 40-D
SE 84- 41-D
SE 84- 42- D
SE 84- 43-D
SE 84- 44-D
SE 84-45-D
SE 84-46-D
SE 84- 47- D
SE 84- 52-D

and
UNITED MINE WORKERS OF AHERICA
v.
JIM WALTER RESOURCES , INC.
ORDER
On November 20, 1984, the Commission granted the petitions for discretionary review filed by the Secretary of Labor and the United Mine
Workers of America ("UMWA"). in Docket Nos. SE 84- 35- D, - 45- D, - 47- D, and
-5 2-0. Petitions for discretionary review filed by the Secretary, the
UMWA, and Jim Walter Resources, Inc. (!!Jim Walter"); in the remaining 13
dockets listed above were granted on December 26, 1984, and all briefing
in the 17 dockets was stayed.
Because these dockets involve ·similar issues of law and fact and
were consolidated· below, we reconsolidate them on review. The follo,dng
briefing schedule is established . On or before Feoruary 22, 1985 , each

of the petitioners shall file opening briefs addressing the issues
raised in their respective petitions for review. Thereafter, each party
may file , on or before March 13, 1985, a brief in response to the arguments
made in any opposing brief. Finally, any reply brief must be received
no later than Harch 29 , 1985. Jim Walter's request for oral argument is
granted. Argument will be scheduled by further order upon completion of
briefing.

For the Commission:

Distribution
Earl R. Pfeffer, Esq .
UMWA

900 15th St., N.W.
Washington, D.C. 20005
Linda Leasure, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
David M. Smith, Esq .
Haynard, Cooper, Frierson & Gale, P . C.
1200 Watts Bldg.
Third Avenue and T~-1entieth St.
Birmingham, Alabama 35203
Robert W. Pollard , Esq .
Jim Walter Resources, Inc.
P.O. Box C-79
Birmingham, Alabama 35283

4

ADMINISTRATIVE LAW JUDGE DECISIONS

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

(JAN 3 .1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

v.
TRENT COAL, I NC.,
Respondent

Hritz Mine

Docket No. PENN 84-192
A. C. No. 36-01471-0351 3

DECISION APPROVING SETTLEMENT
Befqre:

Judge r~er 1; n

. The Solicitor has filed a motion to approve a settlement fo r
the one violation involved. The originally assessed amount wa s
$6,000 and the proposed settlement is for $6,000 .
The citation was issued for a violation of 30 C.F.R.
§ 75.200 because the operator had not complied with the approved

roof control plan which provides that before splitting is started
on any pillar, all safely accessible roof and its entire
perimeter shall be examined, and that if any roof defect is found
at any place within the perimeter, full overhead support shall be
installed as mining progresses. In this case a crack was
detected at the pillar which was to be extracted. The crack
extended for approximately 160 feet. The operator did not
consider the crack to be a defect since the area was roof bolted,
although not fully bolted. A roof fall occurred in the cited
area resulting in two fatalities.
Based upon the foregoing information in the Solicitor's
motion, I find the violation was of the utmost gravity and that
the operator was highly negligent .
The Solicitor further advises that the operator had 16 assessed violations during the 24 month period preceding issuance
of the subject citation. The period included 100 inspection days.
Thus, the operator had a violation per inspection day ratio of
0.16 which according to the Solicitor represents a relatively
favorable history of previous vio lations.

5

The Solicitor also stat~s the operator and the mine had an
annual production tonnage of 45,144, which indicates that the
mine is relatively small and that the controlling entity is extremely small. The operator demonstrated good faith by achieving
rapid compliance after notification of the violation. The cited
area was abandoned and mining operations were begun one row of
pillars inby the cited area. Employees were reinstructed concerning the approved roof control plan. Finally, the operator
has paid the proposed penalty and continued its operations.
After a careful review of this matter I approve the settlement as appropriate under the six statutory criteria set forth in
section 110(i) of the Act. Gravity and negligence call for a
most substantial penalty. But the operator's s mall size and good
history must be taken into account. The proposed settlement
which is a high penalty for this operator represents a proper
weighing of the statutory elements.
Accordingly the proposed settlement is Appro ved and the
operator having paid this case is Dismissed .

Paul Merlin
Chief Administrative Law Judge
Distribution:
Mark V. Swirsky, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail}
Mr. Bruce W. Trent, President, Trent Coal, Incorporated, R.D. #1,
Friedens, PA 15541 (Certified Mail)
·
/gl

6

FEDERAL M INE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W . COLFAX AVENUE, SUITE 400
DENVER, COLORADO

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

80204

.. ..
.•. 4
J f•1M
l985
'

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 83 - 56-M
A.C . No. 05-00417-05508
Docket No. WEST 83-116-M
A.C . No . 05-00417-05512

v.

Docket No. WEST 84-18-M
A.C. No. 05-00417 - 05513
Docket No . WEST 84-60-M
A.C. No. 05-00417-05518

STANDARD METALS CORPORATION,
Respondent

Docket No. WEST 84-79-M
A . C . No. 05-00417-05523
Sunnyside Mine

DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U . S. Department of Labor , Denver, Colorado,
for Petitioner ;
Zach C . Miller, Esq . , Davis , Graham & Stubbs ,
Denver, Colorado,
for Respondent.

Before:

Judge Carlson

Each of the docket numbers listed in the caption was or1glnally scheduled for hearing sequentially , commencing October 31,
1984 , at Denver, Colorado. When the first case was called for
hearing , however, the parties announced that all issues in the
five docket numbers involved in this proceeding were settled. 1;
The settled cases were therefore consolidated and the parties placed the terms of the settlements upon the record.

1/ Two other cases set for the same time were not settled; they
proceeded to hearings on the merits , and are not dealt with in
this decision.

7

Docket No. WEST 83 - 56 - M involved two citations which arose
from a heavy equipment accident. The Secretary agreed to dismiss
Citation No. 2096842 for lack of sufficient evidence . The
respondent agreed to withdraw its notice of contest to Citation
No . 2096841 , and to pay the full civil penalty of $1,000 . 00
originally sought by the Secretary.
Docket No . WEST 83-116-M involved a single citation arising
out of a use of smoking materials near explosives. The respondent agreed to withdraw its notice of contest and to pay the
full civil penalty of $600.00 originally sought by the Secretary.
Docket No. WEST 84-18 - M involved a single citation relating
to a defective hoist. The respondent agreed to withdraw its
notice of contest and to pay the full civil penalty of $2,000 . 00
originally sought by the Secretary.
Docket No . WEST 84-60-M involved two citations arising from
travelway falling hazards (Citations No. 2096626 and No .
2096628) . The respondent agreed to withdraw its notice of
contest to both, and to pay the full civil penalties of $36 . 00
originally sought by the Secretary for each.
Docket No . WEST 84-79-M involved a single citation relating
to a lack of safe access to a workplace . The respondent ·agreed
to withdraw its notice of contest and to pay the full civil
penalty of $2 , 000.00 originally sought by the Sec r etary.
I conclude that the terms of the agreement are in accord
with the purposes of the Federal Mine Safety and Health Act of
1977 and should therefore be approved .
Accordingly , all citations embraced in the five docket
numbers are ORDERED affirmed except for Citation No . 2096842 in
Docket No. WEST 83-56-M, which is dismissed with prejudice .
Further, respondent is ORDERED to pay , within 40 days of the
date of this decision , a total $5 , 672.00 for those citations
which are affirmed.

John A. Carlson
Administrative Law Judge
Distribution:
James H. Barkley , Esq . , Office of the Solicitor , U.S. Department
of Labor , 1585 Federal Building, 1961 Stout Street , Denver ,
Colorado 80294 (Certified Mail)
Zach C. Miller, Esq. , Davis, Graham & Stubbs , 2600 Colorado
National Building , 950 17th Street, P.O . Box 185 , Denver,
Colorado 80201 (Certified Mail)
/blc

-8

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 83-56 - M
A.C. No . 05 - 00417-05508
Docket No. WEST 83-116-M
A.C. No. 05-00417-05512
Docket No. WEST 84-18 - M
A.C. No . 05 - 00417-05513

v.

Docket No . WEST 84 - 60-M
A.C. No. 05-00417-05518
STANDARD METALS CORPORATION,
Respondent

Docket No. WEST 84-79-M
A.C. No. 05-00417 - 05523
Sunnyside Mine

AMENDED DECISION
Appearances :

James H. Barkley, Esq., Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Petitioner;
Zach C. Miller , Esq., Davis, Graham & Stubbs,
Denver, Colorado.

Before:

Judge Carlson

The decision issued on January 4, 1985 in this consolidated
case requires amendment .
In Docket No. WEST 84 - 79-M therein ,
. the decis~on purports to impose a civil penalty of $2,000.00.
As disclosed in the transcript of proceedings, that figure is
in error. By settlement recited upon the record , the parties
agreed that the penalty should be $1,000.00 and this judge found
that amount appropriate.
Accordingly , the decision is amended and corrected to assess
a penalty of $1 , 000 . 00 for the single citation involved in Docket
No. WEST 84-79 - M; and the figure for the total penalty imposed is
amended .and corrected to reflect $4 , 672.00 rather than $5 , 672.00.
SO ORDERED.

John A. Carlson
Administrative Law Judge

9

Distribution :
James H. Barkley, Esq . , Office of the Solicitor, U. S . Department
of Labor , 1585 Federal Building, 1961 Stout Street , Denver ,
Colorado 80294 (Certified Mail)
Zach C. Miller, Esq., Davis , Graham & Stubbs, 2600 Colorado
National Building, 950 17th Street, P . O. Box 185 , Denver , Colorado
80201 (Certified Mail)

jot

10

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

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

CIVI L PENALTY PROCEEDING
Docket No. WEST 84 - 95 - M
A. C. No . 45-02961-05503

v.
Cannon Mine
GI LBERT CORPORATION OF
DELAWARE,
Responde nt
ORDER OF DEFAULT
Before:

Judge Broderick

On August 24, 1984, I issued a Prehearing Order directing the parties inter ~l~a to confer, and to exchange and
send me by October 3o , -r984, lists of witnesses and exhibits
and stipulations for a potential hearing. Respondent did not
reply to the order.
On December 7, 1984, I issued an Order to Show Cause
directing Respondent to show within 15 days why it should
not be held in default. Respondent did not reply .
Therefore, Respondent is found to be IN DEFAULT . IT IS
ORDERED that the penalties proposed in the Assessment order
att ached as Exhibit A to the proposal in the total amount of
$336 are imposed as the final order of the Commission. IT IS
FURTHER ORDERED that Respondent shall pay such penalties in
the amount of $336 within 30 days of the date of this order .

Ja:::::d::::t~

Administrative Law Judge

Distribution :
Robert A. Friel, Esq. , Offic_e of the Solicitor , u. s.
Department of Labor, 8003 Federal Office Building ,
Seattle, WA 98174 (Certified Mail)
Galyn G. Rippentrip, Project Manager , Gilbert Corporation
of Delaware, Inc., 3555 Farnam Street, P.O . Box 31032,
Omaha, NE 68131 (Certified Mail)
/fb

11

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2.2 041

,·!

{ :~.- ··

j".j iJ:)

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 84 - 340
A.C. No. 46 - 05806-03512

v.
No. 3 Mine
MAIDEN MINING COMPANY,
Respondent
ORDER OF DEFAULT
Before :

Judge Broderick

On October 17, 1984, I issued a Prehearing Order
directing the parties, inter alia, to confer, and to exchange
and send me by December 14, 1984, lists of witnesses and
exhibits , and stipulations for a potential hearing.
Respondent
did not respond to the order .
On December 18, 1984, I issued an Order to Show Cause
directing Respondent to show within 15 days why it shou l d
not be held in default .
Respondent did not reply .
Therefore , Respondent is found to be IN DEFAULT.
It is
ORDERED that the penalties proposed in the Assessment order
attached as Exhibit A to the Petition in the total amount of
$214 are imposed as the final order of the Commission. IT IS
FURTHER ORDERED that Respondent shall pay such penalties in
the amount of $214 within 30 days of the date of this order .

J

dAMLO

A-/5Y?:J~ 1!/i

James A. Broderick
Administrative Law Judge

Distribution:
Linda M. Henry, Esq., Office of the Solicitor , U. S . Department
of Labor, Room 1448 0 Gateway Building, 3535 Market Street ,
Philadelphia, PA 19104 (Certified Mail)
Mr . Robert 0 . Weedfall , P . E. , Engineer, Maiden Mining
Company , P . O. Box 235 , Maidsville, 1~ 26541 (Certified Mail)
/fb

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

JAN 9
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 84-156
A.C. No . 15- 13920- 03516

. v.

Docket No. KENT 84 - 168
A. C . No. 15-13920-03518

PYRO MINING COMPANY,
Respondent

Pyro No. 9 Wheatcroft Mine
DECISIONS

Appearances :

Carole Fernandez, Esq., Office of the Solicitor ,

u. s. Department of Labor, Nashville, Tennessee ,

for Petitioner;
William Craft , Assistant Safety Director, Pyro
Mining Company, Sturgis , Kentucky, for Respondent.
Befor e:

Judge Koutras
Statement of the Proceedings

The se civil penalty proceedings were initiated by the
petitioner against the respondent pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977 , 30 u.s .c .
§ 8 2 0(a) .
Petitioner seeks civil penalty assessments against
the respondent for eight alleged violat ions of certain
mandatory safety standards set forth in Title 30, Code of
Federal Regulations .
Respondent filed timely a n swers contesting the alleged
violations , and hearings were held in Evansville, Indiana
on the me rits of the citations. The parties were afforded
an opportunity to file post- hearing wri t ten findings and
conclusions, a n d while none were filed, all oral arguments
made on the record during the hearings have been considered
by me in the course of these decisions .
Issues
The issues presented in these proceedings concern the
question of whether or not the cited conditions or practices

13

constitute violations of the cited mandatory safety standards,
and whether or not the violations were significant and
substantial ("S&S"). Additional issues raised by the parties
are discussed in the course of these decisions.
Applicable Sta·tutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

Section llO(i) of the 1977 Act, 30 u.s.c.

3.

Commission Rules, 29 C.F.R.

§

§

820(i) .

2700.1 et seq .

Discussion
The citations and violations which are in issue in. these
proceedings are as follows:
Docket No. 'KENT 84-156
Section 104(a) "S&S" Citation No. 2338191, was issued
on February 21, 1984, and the condition or practice cited
as a violation of 30 C.F . R. § 75.200 , is described as f o ll ows ~
The approved roof control plan (approved
9/16/83) and the tentative approved
supplement (dated 12/19/84, see page 2),
was not being followed in the No. 4 entry
north-east mains in that at least one
row of timbers on 5 foot centers was
not maintained to the last open crosscuts
in the north-east mains, mines an area
of approximately 70 feet in which timbers
had been spotted. Also timbers were not
installed on 5 foot centers one crosscut
inby the north-east mains belt drive for
a distance of approximately 100 feet.
Section 104(a) "S&S" Citation No. 2338192, was issued
on February 21, 1984, and the condition or practice cited as
a violation of 30 C.F.R. § 75.202, is described as follows:
Approximately 100 timbers had been dislodged along the supply road, No. 3 entry
in the north~east mains, and the main
north, and had not been replaced.

Section 104(a) "S&S" Citation No . 2338193, was issued
on March 6, 1984, and the condition or practice cited as a
violation of 30 C.F.R. § 75.200, is described as follows :
The approved roof control plan (approved 9/6/83,
see page 15, see sketch for entries) was not
being followed on the No. 3 unit, I.D. No . 003
in that the width of the No . 1 and 3 entries
was in excess of 20 feet (25 feet wide) for
a distance of approximately 10 feet in one
location in each entry. These wide places were
located just inby location no. 9+80 which is
inby the last open crosscuts.
Section 104(a} ''S&S" Citation No. 2338194, was issued on
March 6, 1984, and the condition or practice cited as a
violation of 30 C.F.R. § 75.400, is described as follows:
Accumulations of loose coal and coal dust
(4 to 12 i nches deep) was present along
the ribs and mine floor of the nos . 1 through
6 entries and the last open connecting
crosscut, beginning at location no. 9+80
and extending inby approximately 60 feet .
No. 3 unit, I.D. No. 003, north-east
parallels.
Docket No. KENT &4-168
Section 104(a) "S&S" Citation No. 233819.8, was issued on
March 8 , 1984, and the condition or practice cited as a
violation of 30 C . F.R. § 75 . 200, is described as follows:
The approved roof control plan (dated 9/6/83,
see page 14, figures B or C and D) was not
being followed on the No. 1 u-nit, I.D. No. 001
1st North panel in that the timbers had not
been installed to within 240 feet of the
tailpiece of the belt in at least one return
entry and the supply entry, in that the
timbering in the return (~o . 6 entry)
terminated 720 feet outby the tail of the belt
minus 240 feet that had been timbered in the
middle of this 720 feet distance . The
timbering in the supply road terminated
660 feet outby the tail of the belt minus
180 feet that had been timbered in the middle
of the 660 feet distance.

'15

Section 104(a) "S&S" Citation No . 2338768, was issued
on March 9, 1984, and the condition or practice cited as a
violation of 30 C.F . R. § 75 . 400, is described as follows:
Loose coal and coal dust has been allowed
to accumulate along the No. 2 long belt
and along the No . 2 unit belt at numerous
locations. This from 2" to 4" in depth.
Section 104(a) "S&S" Citation No. 2338769 , was issued
on March 9, 1984, and the condition or practice cited as a
violation of 30 C.F.R. § 75 . 1725, is described as follows:
There are 33 bad rollers in the No. 2 long
belt and the No . 2 unit belt. This is from
the No. 55 crosscut in the long belt to the
No. 15 crosscut in the No. 2 unit belt.
These rollers were not turning in coal or
coal dust .
Section 104 (a) 11 S&S'' Citati0n No . 2338770, was issued on
March 9, 1984, and the condition or practice cited as a
violation of 30 C.F . R. § 75 . 1722, is described as follows :
The No. 2 unit's belt head is not adequatel y
guarded in that no guards were up on back
side for take- up roller or drive rollers. Also,
the guards on the starting box side are not
installed so as to prevent a person from being
caught in the roller.
Stipulations
Respondent stipulated that the No. 9 mine is subject
to the Act, and that I have jurisdiction to hear and decide
these cases (Tr. 4). Respondent also agreed that the inspectors
who issued the citations are authorized and qualified inspectors,
and that they did in fact issue the citations .
The parties agreed that at the time the citations were
issued, the subject mine had an annual production of 379,316 tons,
and that the parent corporation had an annual production of
approximately three million tons (Tr. 4). The parties agreed
that as to all of the citations in issue, the negligence
level was moderate, and that the respondent exercised good faith
in abating all of the citations within the time fixed by
the inspectors (Tr. 4-5).

Petitioner's Testimony and Evidence
Docket No. KENT 84-156
The four citations at issue in this docket were all
issued by MSHA Inspector James E. Franks during the course
of his inspections of the mine on the days in question.
With regard to Citation No. 2338191, Mr. Franks confirmed
that he issued it after finding that certain roof support
timbers had not been installed in accordance with the requirements of a supplemental roof control plan ~ (exhibits P-2 and
P-3). Mr. Franks stated that he relied on page two of
the _supplement, December 9, 1983 (Tr. 12) .
Mr. Franks conceded that on the face of the citation
form, he did indicate that the supplemental plan was approved
on December 19, 1984. However, he explained that this was
an error on his part, and that the plan supplement was
approved in 1983 (Tr. 13) .
Inspector Franks stated that he issued the citation
because of the failure by the respondent to install timbers
on five-foot centers from the last installed "I" beam to
the last open crosscut (Tr. 31), and he maintained that the
timbers should be installed before the 't!" beams, and he gave
his opinion as to how the timbers could be transported into
the area for installation (~r . 31-33) . He confirmed that
_provision number three of the supplemental roof control
plan was violated, and that the violation occurred at the
riumber four entry (Tr. 36-39). He located the area by
referring to a mine map provided by the respondent's
representative (Tr. 41).
Mr. Franks testified that he considered the violation
to be "significant and substantial" because of the fact that
the number 9 coal seam in K~ntucky ·has historically had
bad roof conditions, and the fact that in the particular
entry in question there ha~ been a previous roof f~ll, and
the rib and top had some broken places. He also relied on
the fact that during the year 1984, there were 28 miners
killed in roof falls nationwide (Tr. 11). He indicated that
the cited area was an area where a belt examiner or timbering
people would travel, and he confirmed that he observed two
people working in the area at the time the citation issued
(Tr. 11--1 2) .
Mr. Franks confirmed that he relied on the National Gypsum
decision guidelines for his "S&S" findings in this matter,
and he also confirmed that he was aware of a May 1981 MSHA

17

memorandum issued by Acting Administrator Joseph La Monica
concerning the application of the guidelines (Tr. 16, 19).
Mr. Franks denied that his supervisor ever advised him to
mark any citations "S&S," or that he was influenced by any
statistics indicating the number of " S&S" citations issued
in his district as compared to others (Tr. 20).
Mr . Franks stated that part of the area he cited was
a belt and track entry where people would be traveling , and
he considered the fact that the mine roof had some broken
areas and that a roof fall had occurred in the past . Although
there have been no fatal roof falls in the mine in qu'estion,
he was aware of the fact that some 28 miners wre killed during
the year in roof falls nationwide (Tr. 22) .
Mr. Franks conceded that the cited roof area was supported
with roof bolts, and that he issued the citation because
of the lack of the required additional roof support timbers
(Tr. 24). The miners in the area were those who were doing
the installation work on the roof support "I" beams (Tr . 27) ,
and Mr . Franks believed there were three miners doing this
work (Tr . 28 - 29). He also indicated that he has seen roof
and rib cracks in the belt and supply entries, and that is
why additional support is required . He characterized the
roof as "uncertain," and indicated that a fall had p revious ly
occurred next to a belt d rive (Tr. 57, 59) .
Inspector Franks confirmed that he issued Citation No .
2338192, after traveling the supp~y road in the number three
entry and observing approximately 100 roof support timbers
knocked out along the roadway (Tr. 62). He confirmed that
the dislodged timbers were at two supply road locations
(Tr . 66), and he pointed them out on the mine map (Tr. 69-70).
He also confirmed that the dislodged timbers were present
in an area of some 2,000 feet along both supply road locations
( Tr . 71- 7 2 ) •
Mr. Franks confirmed that the roof control plan required
the timbers to be installed and maintained in an upright
position to support the roof. Although the respondent could
have used cross bars or truss bolts to support the roof
at the cited locations , the respondent opted to use timbers
(Tr . 80). Mr. Franks explained why he relied on section 75.202
(Tr . 80- 82) .
Mr. Franks believed that the majority of the dislodged
timbers had at one time been set, but were subsequently
dislodged. Since the cited working areas were not places
where recovery work was being done, the respondent was
required to reset the dislodged timbers (Tr. 75 - 76) .

18

With regard to his "S&S" findings, Mr. Franks confirmed
that he again relied on the National Gypsum guidelines.
In his opinion, the conditions along the cited supply road
were typical of conditions which have resulted in roof falls
in other similar mine areas (Tr. 64). He testified that
mantrips travel the area, and the roof in several places
was broken (Tr. 67), and other roof areas had been truss
bolted and timbered (Tr. 77). All of these factors, including
the fact that people have been hurt in roof falls in the No. 9
mine, influenced his decision that the violation was 11 S&S"
(Tr. 63-64) •
. Although the respondent disputed Inspector Franks' "S&S"
finding with respect to Citation No. 2338193, i t did not
dispute the fact that the conditions described by Mr . Franks
with regard to the wide entries constituted a violation of
the mine roof control plan and mandatory safety standard
section 75.200 (Tr . 83-84).
With regard to his 11 S&S 11 finding, Mr . Franks testified
that the cited area was in a coal producing section where
miners had to travel to cut and load out coal, or to drill
and pin the roof (Tr. 86). He believed that by driving the
entries wider than allowed by the roof control plan, a wider
area of unsupported roof is exposed , thereby creating a
hazard which could reasonably likely cause an accident
(Tr. 85, 105-107).
Mr. Franks conceded that he was not aware of any roof
falls in the mine caused by wide entries, but he indicated
that the mine has had quite a few violations of the roof
control plan, and that he believed there were 23 roof plan
violations issued over a 17 month period (Tr. 87). He also
alluded to an accident report which indicated that two people
had been injured by a reported roof fall at the mine (Tr. 88) .
Mr. Franks indicated that from March 11, 1983 to September 30,
1984, 23 roof control violaiions were issued, and 12 were "of
a serious nature, S&S" (Tr. 96).
Mr. Franks confirmed MSHA's policy guidelines concerning
the application of section 75.201, with regard to the definition
of the term "excessive width'' (Tr. 92-93). He conceded- that
excessive widths are not prevalent on the cited section or
in the mine, and he did not believe that this was a common
practice· ( Tr. 93) • Abatement was achieved by installing
additional timbers to reduce the widths of the cited entries
(Tr. 9 5} .

19

Inspector Franks confirmed that he issued Citation No.
2338194, citing a violation of section 75.400, after observing
accumulations of loose coal and coal dust along the ribs and
floor of the number three coal producing unit (Tr. 114}. ·
He was unaware of ~ny cleanu~ program in use by the respondent ,
and stated that he did not issue the citation for a violation
of any such program (Tr. 113 - 117).
Mr. Franks testified that the cited accumulations extended
"more or less continuous" for a distance of some 700 feet
along the six entries in question, and for a distance of
approximately 60 feet at the other cited location, at depths
ranging from 4 to 12 inches (Tr . 128-132; 144). He had
no reason to believe that the cited areas were not rock
dusted, and -he was of the opinion that the accumulations
had been permitted to exist for some unspecified hours,
but not days (Tr. 135).
Mr . Franks agreed that the roof must first be pinned
before any work can take place in the cited entries. He
testified that he observed no cutting machine cutting off
any areas in order to facilitate pinning , and he believed
that the crosscuts in the cited six entries had been traveled
through . The lack of any pinning had nothing to do with the
failure to cleanup the cited accumulations, and he indicated
that the entries had already been pinned (Tr . 119-120) .
Inspector Franks stated that he was not present when
the conditions were abated, but when he returned to the section
the next day, the accumulations had been cleaned up, and he
did not know how much material was loaded out (Tr . 133} .
Inspector Franks believed that the cited accumulations
constituted an "S&S" violation because people were on the
unit, the intent of section 75.400 is to prevent the accumulation of
combustibles, and that it is common knowledge that there have
been three or four fires and explosions in mines in West
Kentucky, and that they are caused by accumulations of combustibles
(Tr . 114}. He also relied .on the fact that the mine liberates
methane, and that the loaders, roof bolters, and shuttle
cars operating in the section do have electrical trailing
cables (Tr . 115} .
Docket No. KENT 84 - 168
With regard to Citation No. 2338198 , the respondent
conceded that the conditions cited by Inspector Franks regarding
the lack of roof support timbers constitutes a violation of
its approved roof control plan and mandatory safety standard

20

section 75 . 200 (Tr. 145). Respondent asserted that i t is
only contesting the inspector ' s "S&S" finding , and that in
the absence of any lo9se or dangerous roof conditions ,
respondent does not believe that the violation is "S&S "
(Tr. 145) •
Mr. Franks stated that there were a total of 200
required timbers which were not installed in all of the areas
which he cited, and he believed it would take approximately
one day to install 100 timbers (Tr. 154).
Mr. Franks confirmed that the roof areas where the
violations occurred had been roof bolted, and he conceded
that he observed no "abnormal" roof conditions or "anything
that I thought was about ready to fall and kill anybody ,"
although he did see some roof cracks (Tr. 150) . When asked
whether the cited conditions wou l d resu l t in an injury,
he replied as follows (Tr . 150):

A. I felt like the supply road is a -- o r
an area that a lot of peop l e ' s wide open into ,
and I -- there's no probl em with me saying to
you that the supply -- I felt more strongly
about the supply road than I did the return ,
because I felt like that's where the people
are exposed . The -- so . I believe that it ' s a
could be a very serious injury, and I also
believe that a injury could occur from there,
especially the supply road.
With regard to his "S&S" finding, M:r;-. Franks testified
that while some areas along the supply road and belt tail
had been timbered, the areas which he cited had been skipped
and were not timbered. He indicated that belt workers and
rock dusters had to travel the supply road , and that several
areas along the supply road had been supported with roof
cribs or truss bolts. Roof . falls have occurred along the
supply road, and he roof had some cavities in it (.Tr. 146).
However , the cited returns would not have as much traffic ,
but rock dusting and belt examinations have to be made in
those areas , and an examiner would have to travel . those
areas at least once a week (Tr . 147). There were ten people
working on the unit at the time the citation was issued
(Tr. 14 9) .
Inspector Franks conceded that he gave the respondent
from March 8 , 1984, to March 12, 1984 , to abate the conditions ,
and in response to a question as to whether he was concerned
that this was a long time to correct conditions which he

2.1

believed could result in injuries, Mr. Franks stated that he
is required to fix a reasonable time for abatement, and that
this had no bearing on any "S&S" finding (Tr. 151). Mr. Franks
also confirmed that he did not stop normal mining operations,
and that his definition of "S&S" is "whether an injury is
reasonably likely to occur if the violation were not corrected"
(Tr. 151) •
Inspector Franks testified that it appeared to him
that the respondent started timbering in the middle o f the
supply road, hoping that an inspector would not walk back
and look at the areas which were not timbered. He admitted
that this was speculation on his part, and since he could
not prove that it was true, he could not cite an unwarrantable
violation {Tr. 152-153) .
MSHA Inspector George W. Siria confirmed that he issued
Citations 2338768 and 2338769 on March 9, 1984 , on the No . 2
long belt. Citation 2338768 was issued after he observed
accumulations o f loose coal and coal dust approximate l y
two to f our inches deep at "numerous locatio ns" along
the belt. He indicated that the belt is approximatel y 70
crosscuts long, but that he did not count the exact number
of locations where he found the accumulations (Tr. 221) .
Mr . Siria confirmed that hi s supervisor , Inspecto r Hil l ,
accomp anied him during his inspe ction and that Mr. Hil l was
"evaluating h i m." Mr. Siria indicated that he started on
one end of the belt, and was accompanied by mine superintendent
David Steele, and that Mr. Hill started at the other end,
accompanied by respondent's safety director, Donald Lamb.
The two inspection "teams" met "at some location making
these two belts" (Tr. 221).

Mr. Siria stated that 33 "bad rollers" were found along
the same belt, and that is why Citation No. 2338769 was
issued. He defined "bad rollers" as ''either they're worn
in two or they're frozen rollers, which create a friction
on a belt that could cause a fire" · (Tr. 222).
Mr. Siria stated that he considered both citations
together in making his finding~ that they were both "S&S"
violations~ · arid he stated that "if this had been allowed
to continue this way and not be corrected, the loose coal
and coal dust would build up to the rollers, if it wasn't
corrected, and this would cause a -- could very easily
cause a mine fire" (Tr. 222). He ~onfirmed that during a
subsequent conference on the citations, he modified the
citations to reflect that six persons, rather than 13, would
be affected by the cited conditions (Tr. 223). He also
indicated that the mine has a high velocity of air on the
belt, and that in the event of a fire, it would be beyond
control in a very short time (Tr. 225).

'22

Mr. Siria testified that when he issued the citation,
no one from mine management disputed his "S&S" finding.
Although someone "probably" said something that the
belt cleaner was supposed to clean the belt, he observed
no one cleaning up any accumulations at the time of his
inspection (Tr. 224), and no one advised him that anyone was
in fact cleaning the belt (Tr. 226). Mr. Siria indicated
that the accumulations were not "fresh," and he was of the
opinion that they were present for more than two days
(Tr. 23 O) .
Mr. Siria conceded that he only walked 40 crosscuts
along the belt which he cited, and that his supervisor,
Mr. Hill, told him that he had observe6 accumulations of
loose coal and coal dust along the remaining portion of
the belt which he walked. Since the cited belts were two
distinct belts, he and Mr . Hill discussed the possibility
of issuing two separate citations, but since the belts
"were in continuation," Mr. Hill believed that one citation
would suffice (Tr. 226) .
The conditions that they both
observed were incorporated in the one citation which Mr . Sir ia
issued (Tr. 227). However, even if he were to disregard
Mr. Hill's observations, Mr. Siria indicated that he would
have still issued a citation for the accumulations which
he personally observed (Tr . 230) .
Mr. Siria conceded that he observed no belt rollers
turning in coal dust at the time of his inspection . However ,
because of the high air velocity, had mining been allowed
to continue, the accumulations would have reached the belt
rollers because they are close to the mine floor (Tr. 228).
Mr. Siria stated that he is sure that someone was assigned
to clean the belts, and he indicated that in a recent inspection
of the belt "they're making a vast improvement on the belts,
since the new superintendent took over" (Tr. 228).
Mr. Siria could not state how many belt rollers were
stuck, or how many of them were worn (Tr. 229). He confirmed
that he only observed 19 bad rollers, and that Mr. Hill
observed .the rest. He again explained that i t was decided
to incorporate their separate observations into the one
citation which Mr. Siria issued (Tr. 236). Mr. Siiia confirmed
that Mr. Hill simply told him that "bad rollers" were present,
but he could not recall the precise number given (Tr. 238).
Respondent's Safety Director, Donald Lamb, was called
as a witness by the petitioner, and he testified as to the

.23

events concerning Citation Nos. 2338768 and 2338769 .
Mr. Lamb confirmed that he was with supervisory Inspector
Hill when he inspected one of the belts referred to in the
citations issued by Mr. Siria. Mr. Lamb also confirmed
that he observed the accumulations of coal and coal dust that
Mr . Hill told Mr. Siria about, and while he did not know
the number of bad rollers that Mr . Hill saw, Mr. Lamb did
confirm that Mr. Hill brought these rollers to his attention
(Tr. 286). In response to further questions, Mr . Lamb
testified as follows {Tr. 287- 288) :
Q. Would you agree that there was an
accumulation of two to four inches in
depth along
A.

Yes.

Would you agree that there were some
bad rollers? ·

Q.

A.

Yes.

Q. Okay. Mr. Lamb, would you agree that
there was a violation, in this case , along
the number two unit belt?
A.

As a violation of loose coal or rollers?

Q.

A violation of loose coal and a violation
regard to 75.1725, the rollers?

w~th

A.

Yes.

Do you agree, that in both cases, a
violation existed?

Q.

I agree that there was loose coal, and I
agree that there ·was stuck or bad rollers.

A.

And, at (Tr. 289 - 291) i
JUDGE KOUTRAS: Did Mr. Hill discuss anything
with you about the rollers or the accumulations?
Did he bring them to your attention while you
were walking along?
THE WITNESS:

Right .

JUDGE KOUTRAS: And this didn ' t come as a complete
surprise to you, did it, that Mr. Hill had made
these observations?

THE WITNESS:

No.

JUDGE KOUTRAS: He was -- did he point out
some rollers to you?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: Did he point out some
accumulations to you?
THE WITNESS:

Yes.

JUDGE KOUTRAS: And he'd point out these things
t o you.
"There's a roll e r there . There 's a
roller there . And there's some accumulations ."
He told you that , did he not?
THE WITNESS :

That's right .

J UDGE KOUTRAS : Did he t e l l you h e was go ing t o
issue a citation?
THE WITNESS:
JUDGE KOUTRAS:
anything?
THE WITNESS:
JUDGE KOUTRAS:

No.
Or that these c o nditions v iolated
Yes.
What did he tell you?

THE WITNESS: He said that he would -- you know,
that this was not right, and that it's going to
have to be corrected.
JUDGE KOUTRAS: Okay. And then were you present
when he met with ~nspector Siria?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

Right.

We -- we --

You all met together.
-- came together.

Right?

Right.

JUDGE KOUTRAS: And when you
you were present
when the two of them decided t hat -- that a citation
should issue?
THE WITNESS:

Yes.

qr

r.......>

JUDGE KOUTRAS: For both the rollers and
the accumulations?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

Right.
You were there , right?
Right .

JUDGE KOUTRAS: And then Mr. Siria wrote both
of these up and handed you a copy. Isn't that
true? Your name's on the both of these . Did
he serve these to you?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS :

Yes.
One each?
Right.

JUDGE KOUTRAS: Were you confused that -- t hat
these citations were issued to you? I mean ,
was there -- let me back up a minute.. Was
the re any question in your mind that the reason
the citations were issued was because Mr . Siri a
and Mr . Hil l , in combination , found similar
conditions in the two areas that they had walked ?
THE WITNESS:
JUDGE KOUTRAS:
there?
THE WITNESS:

No.

There was no confusion .

No-- there ' s no confusion, is
No, there wasn ' t.

Mr. Siria confirmed that he issued Citation No . 2338770
after finding that the numb~r 2 unit belt head had no guards
on the back side at the pickup and 'drive ro l ler locations,
and that the guards on the .starting box side were not installed
so as to prevent a person· from being caught in the roller.
Mr. Siria observed no one at the cited belt locations, but
since the belt head was not dirty, he assumed that someone
had been there to clean up (Tr. 253).
Mr. Siria explained that the guards which wer e installed
on the starting box side of the belt head "wasn't up good
enough and close enough , evidently, to preve nt a person
from reaching into it and being caught in the rollers" (Tr . 253).
He indicated that there "were spaces where a person could
reach in , " but he could not state how much an opening was

present. Since the back side of the belt head was not
guarded at all, and since he believed that someone would
have access to the location from both sides, he did not
believe that the size of any opening on the guarded portion
of the belt head is significant (Tr. 254).
Mr. Siria explained how the belt head functions, and
he believed that someone could become entangled in the t .a keup
or tandem rollers, and that "a person could easily fall
into i t while they're shoveling " (Tr. 261). He was aware
that persons have been injured in the past in such incidents
(Tr. 261). He reiterated that he observed no one cleaning
the belt head while i t was moving (Tr. 262) .
Mr. Siria stated that even if he had observed someone
cleaning up while the belt was stopped, he would have still
issued a citation. He conceded that it was possible that
clean up could have been conducted whi l e the belt was shut
down and that no one would have been exposed to moving belt
parts (Tr . 262) .
With regard to the back side of the belt
which was not guarded at all, he conceded that the only
person who would be there would be someone who was cleaning
or greasing the belt head.
In the event of any greasing,
the belt should be shut down, or guarded and provided with
a. grease hose so that no one could come in contact with moving
parts (Tr . . 263) .
Mr. Siria believed that the violation was "S&S" because
"this was a dangerous situation , when the drive rollers
are exposed to anyone doing anything" (Tr. 265} .
He
confirmed that he recently investigated a fatality involving
an individual who was killed while greasing a belt which
had not been locked.
The belt started up and it "run him
off the belt, and killed him" (Tr. 265).
Mr. Siria stated that there was a walkway on both
sides of the belt head, that the area has to be cleaned up,
and that the respondent's cleanup program requires that this
be done .
Under these circumstances, he was of the opinion
that the backside of the belt head was a location which was
required to be guarded (Tr. 272-273). Mr. Siria believed
that the walkway or travelway was approximately four feet
from the unguarded belt head, but he could not state how
much room a person would have to travel between the area from
the rib to the belt head, and he indicated that "I t really
didn ' t matter how much space was there . What mattered to
me was i t wasn ' t guarded" (Tr . 276) .
Respondent's Testimony and Evidence
Cheryl McMackin, Safety Manager, confirmed that she
accompanied Inspector Franks when he issued Citations 2338191

and 2338192, concerning the missing and dislodged timbers.
She described the work being done in the area , and she
indicated that coal was not being produced at the time of the
inspection. She was not aware of any "reportable" roof falls
in the area on the day of the inspection , and she described
the roof conditions as "average . " She did not consider
the roof to be "bad top," and in her opinion, the fact that
some roof support timbers were missing along the cited locations
was not serious and could not cause an accident (Tr. 156 - 158).
Ms. McMackin confirmed that people were working in the
cited locations "setting steel beams and hauling timbers."
She asserted that the timbers are difficult to maintain/
particul arly when the unit is active, and she speculated that
the timbers were probably knocked out by scoops. She also
indicated that respondent prefers to wait until the unit is
idle before "catching up" and installing roof timbers (Tr. 160) .
Ms. McMackin interprete d ''reportable roof fall 11 to mean
falls which block a miner ' s passage, impede ventilation ,
those which occur above the anchorage zone of the roo f bolts ,
or those which cause injuries (Tr . 161) . She conceded that
one cannot totally predict when a roof fall will occur, and
she observed nothing to indicate that a roof fall was about
to occur .
Ms. McMackin insisted that the cited areas were not
ignor e d, and she believed that since the area was on the
main e ntrance to the mine, the required timbering would
have been done as work progressed further in the area
{Tr . 164). She later stated that while timbering was not
taking place at the specific locations cited by Inspector
Franks, timbers would have been installed on the unit in
general. She also alluded to the fact that other entries
had to be timbered, and that preparations were being made
to "set steel " in the cited entry (Tr. 165) .
With regard to Citation No. 2338192, concerning the 100
dislodged timbers in the No . 3 north-east mains entry,
Ms. McMackin confirmed that she was with Inspector Franks when
he s e rved the citation . She indicated that the dislodged
timbers were not in any one concentrated area , but were
11
here and there" along the 2,000 distance in question . She
indicated that the timbers were dislodged by equipment traveling
through the ar e a , and she observed that " It's easier for
them to knock them to get to do the job they do , rather than
to go around them" (Tr . 167) .
Ms. McMackin confirmed that the roof areas along the
cited supply road and entries were roof bolted in accordance
with the roof control plan , and she did not believe that the

' ') 8
· ~

violation was significant and substantial (Tr . 167) .
She
also confirmed that people are specifically hired and assigned
to reset dislodged timbers , and that this is done on each
shift on a daily basis (Tr. 168).
Although she reiterated that she saw no roof falls along
the cited supply road, Ms. McMackin stated that she did observe
several locations where roof materials had fallen down, but
she would not classify these as "roof falls " (Tr . 168).
She also observed evidence of roof " sloughing , or small pieces
of dry rock." (Tr. 168). Although she estimated that the
dislodgement of the estimated 100 timbers may have occurred
over a period of two to three days, it was possible that an
estimated 200 timbers may have been dislodged had the work
continued for four days, but she did not believe this was
likely (Tr. 169) •
Rodney Head, training instructor , testified that he
has mine foreman's papers issued by the State of Kentucky .
He confirmed that he \vas with Inspector Franks when he issued
Citation No. 2338193, concerning the wide entries on the No . 3
un1t. Mr . Head estimated that 40 cuts of coal would be taken
on an average production day, and that each cut is about ten
feet.
He believed that the 25 - foot entries which were driven
5 feet wider than p ermitted constituted one cut o f coal in
each location, but he did not believe that driving the entrie s
an additional width of five feet would cause any injuries .
He described the roof conditions in both entries as " average
to good," and he saw no evidence of any roof failure, cracks ,
or fissures (Tr . 173, 175).
With regard to Citation No. 2338194, Mr . Head confirmed
that he was with Inspector Franks during his inspection, and
he described the area where they traveled (Tr . 177-178).
Mr. Head testified that the area had been "flagged" or
dangered off because the line of crosscuts had not been
timbered off all the way across the entries , and that "flagging"
was required until the area was supported (Tr. 179) .
Mr. Head stated that the cutting machine had "technically"
cut through the l-ine of crosscuts, and that coal would be
naturally be scattered across the ribs. When asked whether
these were in fact the conditions which prevailed at the time
the citation issued, he relied " That's part of it " (Tr . 180).
He stated that the ventilation on the section was excellent,
that no methane was found at the faces, and that no ignition
sources were present (Tr. 180) .
Mr. Head conceded that methane is liberated in all mines,
and he confirmed that equipment had been .·operating and traveling
through the areas where the accumulations were found . He

:29

estimated that the accumulations were the result of four hours
of coal cutting time, and he explained that they resulted from
trimming the crosscuts as they are dri~en. He confirmed
that his understanding of the citation indicated that the
accumulations existed for a distance of 360 feet along the
six cited entries, but in his opinion they were the result
of the normal mining cycle (Tr. 186). He estimated that it
would have taken about five hours to complete all six entries,
and in response to further questions stated as follows
(Tr. 188) :
JUDGE KOUTRAS: Now, let me understand
again, Mr. Head, your contention is that
these accumulations that the inspector
cited resulted from the normal mining
cycle, and that they had existed for
approximately the number of -- the amount
of time it would have taken to punch
through that, you said five hours, possibly
less, and in the normal course of business ,
all these accumulations would have been
. cleaned up?
THE WITNESS:
JUDGE KOUTRAS :
the inspector?

Yes, sir.
Was all this explained to

THE WITNESS:
I can't say that it was. No,
sir. Because I don't remember having the
conversation.
JUDGE KOUTRAS: Do you recall him giving
you the citation?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: But you don't recall any
conversation that you may have had with him?
THE WITNESS: No, sir, not at the time he
issued me the citation.
Inspector Franks was called in rebuttal with respect
to Citation No. 2338194, and he indicated that the cited
entries had been "supported." by roof bolts, but not timbered,
· and the roof control plan only requires that roof bolts be
maintained within three feet of the rib.
In his view, at
this stage of the mining cycle, the cited accumulations
should have been cleaned up, and as far as he is concerned

the law does not permit accumulations of loose coal and coal
dust to remain in the mine for any amount of time (Tr . 200-201).
Mr. Franks indicated that his practice is to look at the last
open crosscut to determine how deep the entries have been. driven,
and if he finds that they have gone 35 to 40 feet, he does
not take any action.
However , if he finds that the last line
of crosscuts are dirty, and the face is 60 feet inby, and
there is no indication that any attempt has been made to
clean up "I begin to get a little bit disturbed" (Tr. 202).
In the instant case, he believed that no one attempted to
clean the last line of crosscuts, and he did not expect
the respondent to clean "right up to the face" (Tr. · 203).
In respons e to respondent's questions , Mr . Franks stated
that he did not know where the loader was located, and he
reiterated that he issued the citation because two 30- foot
mining cycles had been completed 60 feet into the f .ace
without any cleaning up (Tr. 204) .
Donald Lamb, Director of Safety and Training , confirmed
that he accompanied Inspector Franks during his inspection
of March 8 , 1984 , when he issued Citation No. 2338198, for
failure to install roof support timbers at the cited
locations. Mr. Lamb agreed with Mr . Franks' contention
that the roo f contro-l plan required that the timbers be
installed. Mr . Lamb could recall no roof falls in the supply
road, and he did not believe that the cited conditions would
have resulted in serious injuries if normal mining operations
were to continue (Tr. 192}. He confirmed that rock falls
have occurred at some of the respondent ' s mines, but that
none of them could be considered as massive roof falls
(Tr. 192) .
Mr . Lamb agreed that Inspector Franks' assertion that
there were about 100 timbers missing in the supply road , and
100 in the return "would be about right" (Tr. 196) . He
also agreed that Mr . Franks was probably concerned over the
fact that with the number of missing timbers which were not
installed, the stability of the roof would be compromised
(Tr. 197), and in response to further questions, indicated
as follows (Tr. 197-198):
JUDGE KOUTRAS:
Do you agree with that ' s -that ' s, probably, why he found
found this
one in particular to be S&S .
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: Well , do you agree with his
thinking on that , as the Safety Director or
the Safety Manager , or --

:31

THE WITNESS :

Well --

JUDGE KOUTRAS: I mean, would you -- put
yourself in his shoes . Would you put up
with a mine operator having 100 timbers
missing here and 100 over there and 50
dislodged here and -- notwithstanding the
fact that the roof was bolted , there ' s
absolutely no dribbling, and that it ' s as
flat as this -- the roof is in - - in this
hearing room we ' re having today. Would
that be of some concern to you?
THE WITNESS:
JUDGE KOUTRAS:
not S&S.
THE WITNESS:
JUDGE KOUTRAS:

Yes , sir, it was.
And -- but yet you say that's
Well, could I
Yes.

--

Oh, sure.

THE WITNESS: The timbers weren't going to be
left at that position, you know , laying down
or dislodged. And in the return , room necks
were going to be driven, and, you know, places
back in that position or in that spot could
have been left there in order to go back and
drive in that entry instead of putting timbers
in, you know. There ' s sometimes situations which ,
you know, at that time the timbers were going
to be put in or room necks were going to be
driven in that a rea .
JUDGE KOUTRAS : Well , what about this particular
citation , where what he, apparently , found was
that there'd been cer tain areas that had been
skipped . I mean, if people are traveling in
these areas that have been skipped, if I could
use that term, doesn ' t the absence of the roof
t i mbers there, necessarily affect the stability
of the roof? In other words, you don ' t have
additional support in these areas.
THE WITNESS: Right . Now the areas which he was
saying was skipped, was in the return, and that
would have been traveled, probably, by one person
JUDGE KOUTRAS:

Once a week.

THE WITNESS:

-- once a week.

JUDGE KOUTRAS: Okay. But even so, as to
that one person, that could , possibly,
cause a problem, couldn ' t it?
THE WITNESS:

Yes.

All of the citations at issue in these proceedings were
issued by the inspectors pursuant to section 104(a) of the
Act, and in each instance the inspector made special findings
that the cited conditions or practices constituted " significant
and substantial" ("S&S") violations of the cited mandatory
safety standards. Although the respondent has disputed some
of the alleged fact of violations, and conceded others, it
has contested and challenged all of the "S&S" findings
made by the inspectors.
In support of the "S&S" findings, the inspectors relied
on the guidelines established by the Commission's decision
in Cement Division, National Gypsum co., 3 FMSHRC 822 , decided
on April 7 , 1981 . One inspector also alluded to an MSHA
memorandum issued by Acting Administrator Joseph A. Lamonica ,
issued shortly after the National Gypsum decision. Although
the memorandum was not produced, and 1s not part of the record
here, I believe the parties are aware of it, and that I may
take official notice of its publication. It was issued on
May 6, 1981, as CMS&H Memo No. 81-32-A (6033), and was directed
to all MSHA Coal M1ne Safety and Health D1strict Managers ,
and it provides "guidelines" for determining whether a violation
is "significant and substantial." I have included a copy
in the case files for reference only, and have not relied
on it to support any of my findings or · conclusions with
regard to the merits of the inspectors' "S&S" findings.
My findings and conclusion in this regard are based on the
evidence and testimony of record in these proceedings , as
well as the precedent cases decided by the Commission, a
discussion of which follow below .
The Commission firs t interpreted the statutory language
"significant and substantial" in section 104(d) (l) of the
Act in Cement Division, National Gypsum Co., 3 FMSHRC 822
(April 1981), where it held as follows at 3 FHSHRC 825:
. . . [A] violation is of such a nature as
could significantly and substantially contribute to the cause and effect of a mine
safety or health hazard 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.
In a subsequent decision issued on January 6, 1984,
Mathies Coal Company, 6 FMSHRC l (January 1984), the Commission
reaffirmed the analytical approach set forth in National Gypsum,
and stated as follows at 6 FMSHRC at 3-4:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum , the
Secretary of Labor must p rove: (1) the u nderlying violation of a mandatory safety standard ;
(2) a discrete safety hazard -- that is, a measure
of danger to safety -- contributed to b y the
violation; (3) a reasonabl e likelihood that the
hazard contributed to will result i n an in jur y ;
and (4) a reasonable likelihood tha t the inj u r y
in question will be of a reasonably serious
nature.
In U.S. St·eel Mining Co., Inc., 6 FMSHRC 1573 (July 1 1 ,
1984), the Commiss1on rejected the argument that any d eterminati on
as to whether a significant and substantial violation exists
should be limited solely to a consideration of the conditions
as they existed at the precise moment of an inspection, and
it reemphasized its holding in National Gypsym that the
contribution of the violation to the cause and effect of a
m1ne safety hazard is what must be significant and substantial.
In U . S. Steel Mining Company, Inc., 8 FMSHRC 1834
(August 1984) , a case involving the failure by a mine operator
to properly tag or otherwise identify certain trailing cable
disconnecting devices, and the failure to properly secure an
oxygen and acetylene cylinder, the Commission upheld Judge
Broderick's findings that an accident or "incident" involving
these cited conditions, as well as the resulting injury,
was reasonably likely to occur. U.S. Steel did not contend
that any injury occurring as a result of a trailing cable
accident or the unsecured gas cylinders would not be of a
reasonably serious nature.
It's arguments centered on an
assertion that the record before the Judge did not support
his implicit findings that there was a reasonable likelihood
that an accident and injuries would occur . At 8 FMSHRC 1836,
the Commission noted in pertinent part as follows:

As to the four elements set forth in Mathies,
we note that the reference to 'hazard' in the
second element is simply a recognition that
.
the violation must be more than a mere technical
violation-- i.e.,that the violation present
a measure of danger. See National Gypsum,
su¥ra, 3 FMSHRC at 827~We also note tha~ our
re erence to hazard in the third element ~n
Mathies contemplates the .possibility of a
subsequent event. This requires that the
Secretary establish a reasonable likelihood
that the hazard contributed to will result in
an event in which there is an injury. The fourth
element in Mathies requires that the potential
injury be of a reasonably serious nature.
Findings and Conclusions
Docket No. KENT 84~156 - Fact of Violations
Citation Nos. 2338191 and 2338192
The evidence and testimony in this case supports the ·
inspector's findings concerning the missing and dislodged
timbers. Failure by the respondent to adhere to its roof
control plan, including the supplement thereto, constitutes
a violation of section 75.200. Further the failure by
the respondent to replace the dislodged timbers in question
constitutes a violation of section 75.202. Accordingly, I
conclude and find that the petitioner has established both
of these violations by a preponderance of the evidence,
and both citations ARE AFFIRMED.
The respondent's arguments in defense of Citation No.
2338191, concerning the erroneous date reference made by

Inspector Franks with r ·egard to the supplemental roof control
plan IS REJECTED. The inspector explained that his reference
to the year as 1984, rather than 1983, was a mistake, and
the fact that he did not modify or correct his citation in
advance of the hearing is not critical and has not prejudiced
the respondent. Respondent's representative Craft had an
ample opportunity to cross-examine the inspector, and Mr. Craft
candidly conceded that he had no reason to believe that the
inspector relied on an erroneous supplemental plan (Tr. 151).
I conclude and find that both of these violations were
significant and substantial. While it is true that the roof
was bolted, the failure to maintain and install the additional

:35

roof support timbers required by the roof plan impacts on
the stability of the roof. The evidence establishes that
miners were required to travel and work in the affected areas,
and since respondent's witness McMackin indicated that the
cited areas were on the main entrance to the mine, this would
increase the exposure hazard and potential for injury in the
event of a roof fall. While there was no evidence of any
massive roof falls in the cited areas, the inspector described
the roof as "uncertain" and testified as to a past roof fall
next to a belt drive. He also alluded to several places
where he observed broken roof and ribs in the belt and supply
entries. Ms. McMackin described the roof conditions as
"average," and conceded that roof falls are unpredictable.
Inspector Franks observed no timbering work being done
at the time of h is inspection, and Ms. McMackin conceded
that the dislodged timbers were a p parently caused by equipment
running into the timbers and that "this was easier'' than
going around them . She also alluded to the fact that r e spondent
prefers to wait for an idle shift befor e "catching up" on
its timbering work.
In these circumstances, it seems obvious
to me that the respondent failed to pay closer attention to
its roof support plan when it initially fai l ed to install
the required timbers, and when it fai l ed to reinstall the
100 or so timbers which had been dislodged . Given the r oof
conditions, and the fact that timbers were missing and
dislodged, there existed a hazard of a possible roof fall
in the cited locations. Further, given the fact that mantrips
and miners traveled and worked in the cited areas, there is
a reasonable likelihood that any fall of roof or rock
would have inflicted injuries of a reasonably serious nature
to the miners required to travel and work in the areas where
the additional required roof support was lacking. Accordingly,
the inspector's 11 S&S" findings as to both citations ARE
AFFIRMED.
Citation No. 2338194
In defense of this citation, Mr. Craft argued that the
respondent was following an MSHA approved cleanup program
(Tr. 113, 116; exhibits R-1 and R-2). In support of this
argument, Mr. Craft asserted that because of the amount of
impurities in the coal, management would prefer to leave
the coal along the ribs until the end of the 24-hour production
shift, and then cleanup and load it out at the end of the .
shift (Tr. 121-122).

'36

Mr. Craft acknowledged the fact that MSHA had advised
the respondent that it does not approve mine cleanup programs
of this kind, and that once the exchange of correspondence
had taken place, the respondent simply filed the letters.
He also acknowledged the fact that once this was done, the
accumulations were allowed to exist until the end of the
shift, and that the respondent made no attempts to hide
anything (Tr. 1 23).
In defense of this action, Mr. Craft
asserted that since section 75.400- 2, provides for cleanup
programs, and since MSHA did not specifically approve or
disapprove of the cleanup program in question, MSHA's silence
could be relied on by the respondent as "implied consent"
or approval of the plan (Tr. 124).
Mr . Craft argued further that the respondent should
have been allowed 24 hours to cleanup the accumulations ,
and that since there is no evidence that the accumelations
were not present for more than this period, the respondent
was in compliance with its own cleanup program (Tr. 135) .
He also asserted that the cleanup program was "kept available"
at the mine, but he did not know whether it was shown to
Inspector Franks , or whether he asked for it (Tr. 136).
Ins pector Franks testified that he did not cite the
respondent for a violation of any cleanup program , and he
confirmed that when he issued the citation he was not aware
of the existence of any such program (Tr. 117).
The inspector ' s testimony with respect to the cited
accumulations has not been rebutted by the respondent. As
a matter of fact, respondent's witness Rodney Head agreed
that the accumulations existed for a distance of 360 feet
across the six entries in question, and he estimated that
they remained there for approximately five hours. He
considered the accumulations to be the result of the normal
mining cycle, and he indicated that they would have been
cleaned up in the normal course of business. He confirmed
that he did not discuss the citation with Inspector Franks,
and did not explain the circumstances concerning the
accumulations (Tr. 188).
The respondent's reliance on the location of the loader
and the existence of a mine cleanup program as a defense
to the citation ARE REJECTED. Respondent has not established
the significance or relevance of the location of the loader.
As for the cleanup program , I believe it is clear that MSHA
did not approve any plan that permitted the respondent to
cleanup at any 24 - hour intervals . Although section 75.400-2,

:3 7

requires an operator to establish and maintain a program
for regular cleanup and removal of coal accumulations and
other combustibles, it does not require that any plan formulated
by the operator be reviewed in advance and approved by MSHA.
The regulation only requires that the plan be "made available"
to MSHA or one of its inspectors. From an . enforcement view,
while I believe it makes little sense to require an operator
to formulate a plan, with no MSHA oversight for its review
and approval prior to adoption, I am constrained to follow
the regulation as promulgated.
Section 75.400, requires that loose coal and coal dust
be cleaned up and not permitted to accumulate. On the facts
of this citation, .the petitioner has established by a
preponderance of the evidence that the cited accumulations
existed for at least two mining cuts over a period of four
or five hours, and that there was no evidence of any cleanup
efforts being made by the respondent. Under the circumstances ,
I find that a violation has been established and the citation
IS AFFIRMED.
I cannot conclude that the petitioner has established
by any credible evidence that this violation was significant
and substantial. Inspector Franks testified that in making
his "S&S" finding he relied on the fact that the intent of
section 75.400 is to prevent the accumulations of combustibles ,
that people were on the unit, that such accumulations cause
mine fires and explosions, and that it is common knowledge
that such incidents have occurred in mines in West Kentucky.
He also alluded to the fact that the mine liberates methane,
and that mine equipment with trailing cables would have been
operating on the unit. In my view, such generalized statements
may be made of any mine, and any such cited accumulations
violation would automatically result in an "S&S" finding
by the inspector.
On the facts here pres.ented, Inspector Franks had no
reason to believe that the area was not adequately rock dusted,
and he saw no equipment in .operation in the area. Further,
while it may be true that coal accumulations present a
potential for a fire if not removed or cleaned up while in
the presence of, or exposed to potential ready sources of
ignition, there is no evidence that such ignition sources
were present. Although the inspector alluded to the fact
that the area had been traveled through, and that loaders,
bolters, and shuttle cars are equipped with electrical
trailing cables, there is no evidence to support a conclusion
that this equipment was not in compliance with any applicable

"38.

permissibility standards , or that there was anything wrong
with the trailing cables or other electrical components.
Further, there is no evidence concerning the lack of
appropriate fire suppression devices, or the presence of
any ready ignition sources. In addition, the petitioner
has not rebutted the testimony by respondent's witness Head
that the cited areas had been " flagged, " that no methane
was detected at the faces, and that the ventilation was
e xce l lent.
Inspector Franks candidly admitted that he was disturbed
over the fact that the accumulations had not been cleaned
up, and he apparently believed that section 75 . 400 requires
that accumulations be removed from the mine immediately
as they accumulate and the regulation does not allow them
to remain for any amount of time. Although I have sustained
that fact of v1olation on the ground that the accumulations
existed as described by the inspector, and that they were
allowed to accumulate for at least two cuts without any
cleanup efforts, I cannot conclude that the inspector ' s
" S&S" finding is supportable .
In short , I cannot conclude
that the petitioner has established that there were any
ignition sources present which presented a reasonable likelihood
of a hazard. Accordingly, the inspector ' s " S&S" f inding IS
REJECTED.
Citat ion No. 2338193
The cited conditions concerning the wide entries in
question are supported by the testimony of Inspector Franks.
Fnr.ther, although the respondent disputed the inspector ' s
"S&S" finding, it conceded that the wide entries constituted
a violation of the roof control plan and section 75.200
( Tr . 8 3 - 8 4 ) .
During the course of the hearing, Mr. Craft alluded to
an MSHA policy interpretat±pn and application of the term
"excessive widths " as found in section 75.201. He quoted
a portion of the policy indicating some. 12 inch 11 tolerance"
allowance for wide entries; and pointed out that the reference
to " excessive widths" refers to those which are " prevalent or
caused by poor mining practices." Hr. Craft implied that
these policy interpretations afford him a defense to the
citation (Tr. 92-93) .
The respondent's arguments in defense to the citation
ARE REJECTED . The respondent is charged with a vi.olation
of section 75.200, which requires that it follow its approved
roof control plan. The applicable plan provision provided for
entries to be driven no wider than 20 · feet . The cited entLies
here were driven for widths of 25 feet.
Under the circumstances,
I conclude and find that the violation has been clearly
established, and the citation IS AFFIRMED.

Inspector Franks conceded that he had no reason to believe
that cutting the entries wider than permitted by the roof
control plan was a common practice, or that the existence
of such wide entries was prevalent on the section where the
violation occurred . Further, ·· the record reflects that abatement
was achieved immediately by installing additional timbers to
narrow the entries to the required widths.
Inspector Franks
issued the citation at 10 : 45 a . m. , and abatement was achieved
by 11:30 a.m . that same day . Given these circumstances,
driving the two entries for an additional width of five feet
at the two cited locations for a distance of some ten feet
was not extensive, and it does not appear that many additional
timbers had to be installed to reduce the otherwise supported
entries to the required roof control plan widths . There is
no evidence as to how iliong the condition existed, and the
inspector was unaware of any roof falls in the mine caused
by cutting wide entries. Further, there is no evidence as
to the condition of the roof areas at the cited locations,
nor is there any evidence that those locations were not roof
bolted or otherwise supported.
In support of his "S&S" finding, Inspector Franks alluded
to an accident report concerning a past roof fall, and he also
mentioned some past violations of the roof control plan .
However, there is nothing of record detailing all of these
events, nor has any connection been established between those
past events and the conditions cited by the inspector in
this case. The inspector ' s reference to a prior roof fall
accident is contrary to his testimony that any such falls
have been. caused by cutting wide entries . Absent any credible
information as to all of these past events, I conclude and
find that they are too speculative and general to support any
" S&S " finding. Accordingly, I cannot conclude that the petitioner
has established that this violation is significant and substantial,
and the inspector's finding IS REJECTED.
Docket No . KENT 84 - 168
Fact of Violation - Citation No. 2338198
Although the respondent contested the inspector's "S&S"
finding, it conceded that the lack of roof support timbers
constituted a violation of the roof control plan and se.ction
75.200 (Tr. 145), and it has not rebutted the inspector ' s
testimony mn this regard . Accordingly , the citation IS AFFIRMED .
The record establishes that while the roof was bolted ,
there were about 200 roof support timbers which had not been
installed in accordance with the roof control plan at the

40

cited entries along a supply road. Although the mi ssing
timbers were not concentr ated in one particular area and were
at intermittent l ocations along the s upply road at t he
locations described by the inspector, the miss i ng timbers
were at places where belt examiners and rock dusters
had to travel and work. Further, while the inspector did not
believe that the roof conditions were "abnormal," and saw no
signs of any immediate roof falls , he did testify that there
had been some roof falls along the supply road in question
and that he observed some roof cracks and cavities in the
roof areas which he cited.
The respondent ' s safety director Lamb did not disagree
that the Inspector was concerned that the 200 missing roof
support timbers compromised the stability of the roof along
the roadway He also agreed with the inspector's assessment
that at least one person would be exposed to a hazard of
a roof fall in one of the cited areas which were "skipped"
and not suppprted by the required additional roof support
timbers, and that this would pose a ''problem."
Given the fact that some 200 roof support timbers were
not installed along a supply road where miners were expected
to travel and work, I conclude and find that roof fall hazard
existed along the cited supply road in question, and that
in the event of such a fall it was reasonably likely that
the miners who traveled that road would suffer injuries of
a reasonably serious nature . Accordingly, the inspector's
"S&S" finding IS AFFIRMED .
Citation Nos . 2338768 and 2338769
In defense of these citations, Mr. Craft asserted that
some of the conditions ·described by ~nspector Siria on the face
of the citation forms with respect to the cited coal accumulations
and "bad rollers'' were not in fact ·observed by Mr . Siria ,
but were purportedly observed by his supervisor , Inspector Hill.
Mr. Craft stated that Mr . Siria relied on what Mr . Hill told
him, and simply incorporated these purported observations as
part of the citations which he issued (Tr . 232 - 233). Mr. Craft
pointed out that Inspector Hill did not testify, and that he
did not co-sign the citation forms [Tr. 234) .
Mr . Craft ' s assertions regarding Inspector Hill ' s involvement
with the citations are correct. I believe that any inspector,
supervisor or not, should sign any citation which is jointly
issued , and he should be prepared to support his conclusions
that a violation has occurred . However , on the facts of
this case , I cannot conclude that Mr. Hill ' s failure to
sign the citation forms renders them procedurally defective.
Further, I cannot conclude that Mr . Hill's failure to testify
has prejudiced the respondent , and my reasons in this regard follow.

41

Respondent ' s safety director Lamb confirmed that he
accompanied Inspector Hill during his inspection of the belt,
.and observed the same cited accumulations and bad rollers
that Mr. Hill observed. Mr . Lamb candidly conceded that ·
these conditions constituted violations-of section 75 . 400
and 75 . 1725, and he agreed that the rollers wer e "stuck
or bad, " and that he was not surprised or confused by the
citations (Tr. 287-288; 291}.
Mr. Craft conceded that even if I were to strike down
the portions of the citations attributable to Mr. Hill , the
remaining conditions described by Mr. Siria support the
violations (Tr . 244 - 245). He also commented that " if George
(Siria) said it was there, it was there," and ''I ' m not
questioning George " (Tr. 244-245).
With regard to the belt rollers citation, Mr . Craft
pointed out that section 75.1725, requires an inspector to
immediately remove unsafe equipment from service . He also
pointed out that Inspector Siria gave the respondent three
days to abate the cited conditions, and eventually terminated
the citation a week later .
Since the inspector did not
immediately shut down the belt, and permitted the conditions
to exist for about a week before terminating the citation!
Mr. Craft implied that a violation has not been established ,
and that the inspector's "S&S" finding is not supportable .
The respondent's arguments in defense of the roller
citation are rejected. The standard requires that stationary
machinery and equipment such as belts and its component parts
be maintained in safe operating condition. While it is true
that the inspector did not -order that the belt be taken out
of service, it apparently was not running when he viewed it,
and he saw none of the rollers turning in the coal accumulations .
I take note of the fact that the citation was issued on a
Friday, and the inspector fixed the abatement time as 8 : 00a.m. ,
the next Monday . Assuming ·the mine did not operate over the
weekend , I find nothing to suggest that the inspector acted
unreasonably, and the fact . that he terminated the citation
a week later tells me absolutely nothing. There is nothing
of record to establish precisely when the belt rollers were
replaced, and it is altogether possible that this work was
done on the day fixed for abatement.
Although it is true that the inspector simply described
the rollers as being " bad," and speculated that they were
either "worn" or "f rozen ," respondent ' s safety director
(Lamb), conceded the violation, and he confirmed that
Inspector Siria ' s supervisor (~ill}, pointed out the bad
roller conditions to him. Although Mr. Lamb did not know

"42

precisely how many rollers were bad, he did not seriously
dispute Mr. Siria ' s gue ss that ther e were a total of 33 bad
ro l lers. Mr. Lamb agreed that the ci t ed rollers were " stuck
or bad" (Tr. 288) , and the ro l lers were replaced. Under .
the circumstances, I conclude and find that "bad, " "worn ,"
"stuck," or " frozen" rollers affect the safe operation of
a belt , particularly where the belt rollers are in close
proximity to accumulations of coal or coal dust, and failure
to replace the defective rollers supports a conclusion that
the belt was not maintained in a safe operating condition
as required by section 75.1725. ·
In view of the foregoing, I conclude and find that ~he
petitioner has established that the coal accumulation and
bad ' roller conditions de s cribed on the face ot the citations ,
including those attributable to Inspector Hill , did in fact
exist , and that the violations occurred. Accordingly , both
citations ARE AFFIRMED .
Although the inspector observed none of the stuck or
bad rollers turning in the accumulated coal and coal dust
under the belt , these rollers were a potential ignition source.
The inspector ' s testimony that had the belt continued to be
operated, the accumulations would have become worse and would
have reached the rollers which were in close proximity
to the mine f loor remains unrebutted . His testimony that t he
high veolcity of air on the belt line would "fan" a fire
if one broke out, also remains unrebutted . The combination
of bad rollers and coal accumulations along a belt line where
the present .air velocity is high presents · a serious potential
for a mine fire. Under the circumstances, I conclude and find
that there was a reasonable likelihood of a fire hazard
caused by defective rollers turning in coal accumulations,
and that a fire would have endangered at least six miners
who were on the section . Although the inspector should
have detailed or noted how many defective rollers existed
along the portions of the belt which he examined, and how
many were present along the·· portion inspected by his
supervisor , the fact is that the accumulations and bad rollers
existed along both belt portions which were combined into
two citations, and I conclude and find that the hazards
were equally present along the continuous belt locations
which were cited. Accordingly, the inspector ' s "S&S"
findings as to both citations ARE AFFIRMED .
Citation No . 2338770
Mandatory safety standard section 75 . 1722(a), requires
that all belt heads, including similar exposed moving machine

parts, which may be contacted by persons , and which may cause
injury, be guarded. Subsection (b) requires that any guards
which are in place at such a location shall extend a distance
sufficient to prevent a person from reaching behind the guard
and becoming caught between the belt and the pulley. Subsection (c)
rqu1res that the guards are securely in place while the
machinery is being operated , except in those instances where
testing is being performed .
The respondent has not rebutted Inspector Siria's assertions
that the number 2 unit belt head was unguarded at one location,
and that the g uard at the second cited location was inadequate
in that it was not installed so as to pr e v e nt a person from
being caught in the roller. Mr. Siria testified that the belt
head was readily accessible to any belt shoveller or greaser ,
and that there was a travelway on both sides which provided
access to the cited locations .
Mr. Siria's undisputed testimony is that the ex i sting
guard had some spaces or openings which would' not prevent
anyone from reaching in any getting caught in the belt rollers.
Althoug h he could not document the precise measurements o f
these openings, he believed that any one could easily become
entangled in the takeup rollers while cleaning or g reasing
the belt head. Although he conceded that he observed no one
cleaning or greasing the belt head while it was moving, and
that he did not know that the belt is in fact shut down when
this work is done, he believed that someone was at the cited
location because the belt head area had been cleaned up in
accordance with the respondent's cleanup program, and there
was no grease fitting or hose to facilitate greasing the belt
head from a safe distance. All of these factors led him to
conclude that someone had been the area doing this work , and
that they were exposed to a potential injury near the unguarded
and inadequately guarded locations.
During the course of the hearing, Mr . Craft argued that
at the time the inspector viewed the cited conditions no one
was exposed to any moving machine parts, and there is no
evidence that the belt was running. Conceding the fact that
a belt which is running necessarily involves "moving machine
parts," and that a violation would occur if a guard is
missing or inadequate , Mr. Craft suggested that a belt which
is not running, and therefore has no "moving parts ," does
not expose anyone to any hazard (Tr. 267-269). Mr. Craft
took the position that the cited belt head location would
be required to be guarded " If there was anybody exposed to
moving parts" (Tr . 269).

'44

In a case involving the guarding requirements of
section 77.400(a), a surface mining standard containing
language identical t o section 75.1722(a), the Commission
affirmed a Judge's finding of a violation, and stated as follows
in Secretary v . Thompson Brothers, 5 FMSHRC
(September 24,
1984) , slip op . pg . 4:
The standard requires the guarding of machine
parts only when they 'may be contacted ' and
'may cause injury. ' Use of the word ' may' in
these key phrases introduces considerati ons
of the likelihood of the contact and injury,
and requires us to give meaning to the nature
of the possibility intended. We find that the
most logical construction of the standard is
that it imports the concepts of reasonable
possibility of contact and injury, including
contact stemming from inadvertent stumbl ing
or falling, momentary inattention , or ordinary
human carelessness. In related contexts , we
have emphasized that the constructions of mandatory safety standards involving miners' behavior
cannot ignore the vagaries of human conduct .
See, e . g., Great Western Electric , 5 FMSHRC 840 ,
842 (May 1983); Lone Star Industries, Inc. ,
3 FMSHRC 2526, 2531 (.November 1981) . Applying
this test requires taking into consideration
all relevant exposure and injury variables,
e.g . , 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- basis.
Mr . Craft ' s arguments in defense of the citation are
rejected . While the fact that . the belt was not operating
at the time the inspector observed the condition, and he
observed no one in the area, may mitigate the gravity of
the violation, I reject any notion that the inspector must
first observe the belt in operation before he can cite a
violation of section 75 . 1722 . On the facts of this case,
the inspector's testimony supports a strong inference that
someone had been in the cited locations, and that in the normal
course of mining, the belt would be running. While it is
true that the inspector had no way of knowing whether
any cleaning or greasing had in fact taken place while the
belt was locked out or running, the respondent in this case
offered no testimony or evidence on this citation and has
not rebutted the inspector's testimony .
I conclude and find
that the petitioner has established a violation of section 75.1722,
and the citation IS AFFIRMED .

..4cu

The inspector ' s testimony concerning the inadequate
guarding at one belt head location , and the total lack of
guarding at the second location remains unrebutted. Given
the proximity of the exposed unguarded belt head machine
parts and rollers , and the fact that they were apparently
readily accessible to anyone who may have been in the area , I
conclude and find that petitioner has established that a
hazard was present and that someone cleaning or servicing
the belt could have become entangled in the unguarded rollers .
In this event, I further conclude and find that it was
reasonably likely that a person contacting these unguarded
parts could suffer serious injuries. As the Commission stated
in secretary v. Thompson, supra, the guarding standard
"imports the concepts of reasonable possibility of contact
and injury; including contact stemming from inadvertent
stumbling or falling , momentary inattention , or ordinary
human carelessness." Accordingly, the inspector's · '' S&S "
finding IS AFFIRMED .
Additional Findings and Conclusions .
and KENT 84 - 168 .

Dockets KENT 84-156

Negligence
I conclude and find that the respondent in both of
these proceedings knew or should have known of the viola tive
conditions cited by the inspectors, and that its failure
to take corrective action before the inspectors found the
conditions is the result of its failure to exercise reasonable
care .
Gravity
All of the conditions and practices cited in these
proceedings concern violations of mandatory safety standards
dealing with roof control , accumulations of combustible
coal and coal dust, and equipment guarding.
I conclude
and find that they are all serious violations, including
the ones which were found to be non-"S&S".
Good Faith Abatement
The parties stipulated that all of the conditions and
practices cited as violations were corrected by the respondent
within the time fixed by the inspectors .
I agree , and I
conclude that the respondent exercised good faith in abating
the violations .

Size of Business and Effect of Civil Penalties on the
Respondent's Ability to Continue in business.
The parties are in -agreement that at the time the
citations were issued, the mine in question had an annual
production of 379,316 tons, and that Pyro Mining Company
had an overall coal production of approximately three million
tons.
I conclude that the civil penalties assessed by me
in these proceedings will not adversely affect the respondent's
ability to continue in business.
History of Prior Violations
Exhibit P-1, is a computer print-out summarizing the
mine compliance record for the period January 1 , 1983 through
February 20, 1984. That record reflects that the respondent
paid civil penalty assessments totalling $1,874 for . 53 section
104(a) citations issued at the mine. Nine of the prior
citations were for violations of the roof control requirements
of section 75.200 and section 75.202; 1 6 were f or violations
of the clean up requirements of section 75.4QO; and one was
for a violation of the guarding requirements of section 75.1722 .
I take particular note of the fact that with the exception
of four of the section 75.400, citations, the remaining 22
citations were all "single penalty" violations for which
the respondent paid penalties of $20 each o
For an operation of its size, I do not consider the
prior history of violations to be particularly bad. However,
since most of the prior citations for the year or so in
question deal with. roof control and clean up, it seems
obvious to me that the respondent needs to pay closer attention
to these conditions.
MSHA's civil penalty criteria found in 30 C.P.R. §
100.3(c), states that "violations which receive a single
penalty assessment under § 100.4 and are paid in a timely
manner" will not be included as part of its computation of
the mine operator's history of prior violations. Since I
am not bound by these regulations, I have considered all
of the citations shown on the computer print-out as part
of the respondent's history- of compliance, and I reject any
notion that they may be ignored.
Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llO(i)
of the Act, the following civtl penalties are assessed by
me for the citations which have been affirmed:

Docket No. KENT 84-156
Citation No.

Date

30 C.F.R. Section

As sess ment

2338191
2338192
2338193
2338194

2/21/84
2/21/84
3/6/84
3/6/84

75 . 200
75.202
75.200
75 . 400

$ 100
125
50
85
$ 360

Total

Docket No . KENT 84-168
Citation No.

Date·

30 C . F . R. Section

Ass essment

2338198
2338768
2338769
2338770

3/8/84
3/9/84
3/9/84
3/9/84

75.200
75.400
75.1725
75.1722

$ 200
175
175
75
$ 625

Total

ORDER
The respondent IS ORDERED to pay the civil penalties
assessed by me in these proceedings within thirty ()O) days
of the date of these decisions.
Payment is to be made to
MSHA , and upon receipt of same, these proceedings are dismissed .

£w!lfL.~

Administrative Law Judge

Distribution:
Carole Fernandez, Esq., U.S. Department of Labor, Office of
the Solicitor , 280 u.s. Cou~thouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
Mr . William Craft, Pyro Mining Company, P.O. Box 267 ,
Sturgis, KY 42459 (Certit~ed Mail)

slk

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

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

v.

JAN 9 1985

CIVIL PENALTY PROCEEDING
Docket No. PENN 84-146
A.C. No. 36-04187-03501
Penn Coal Co ., Inc ., Mine

PENN COAL COMPANY, INC.,
Respondent
FINAL DECISION
Appearances:

Janine c. Gismondi, Esq. , Office of the·
Solicitor, u.s. Department of Labor 1
Philadelphia, Pennsylvania, for Petitioner ;
Ronald Thompson, President, Penn Coal Co. ,
Inc., Philipsburg, Pennsylvania, for
Respondent.

Before :

Judge Kennedy

The operator having advised that it waives its right
to challenge the tentative decision in this matter entered
October 26, 1984, it is ORDERED:
1.

That the tentative decision be, and hereby is,
ADOPTED and CONFIRMED as the trial judge's
final disposition of this matter.

2.

That the operator pay the penalty found
warranted, $150, on or before Friday, February 1,
1985, and that subject to payment the captioned
matter be DISMISSED.

Judge
Distribution:
Janine c. Gismondi, Esq., Office of the Solicitor, u.s.
Department of Labor, 3535 Market St., Philadelphia, PA
19104
(Certified Mail)
Mr. Ronald Thompson, President, Penn Coal Company, Inc.,
P.O. Box 626, Philipsburg, PA 16866 {Certified Hail)
/ejp

:49

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

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

22041

CIVIL PENALTY PROCEEDING
Docket No. KENT 84- 177
A. C. No . 15- 10365-03509

v.

Marty Mine Nos. 16 and 17

MARTY CORPORATION,
Respondent
DECISION
Appearances ~

William Taylor, Esq., and Joseph Luckette 0 Esq. 9
Office of the Solicitor, U. S . Department of Labor ,
Nashville, Tennessee , for Petitioner;
Russell M. Large, Esq ., Marty Corporation, Coburn ,
Virginia , for Respondent .

Before :

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to § 105(d) of the Federal Mine Safety and Health Act of 1977 , 30 u.s.c. § 801 et seq.
the " Act" for three violations of regulatory standards. The genera l issues before me are whether the Marty Corporation has violated the r egulations as alleged , and i f so , whether those violat i ons were of such a nature as could significantly and substan t i ally contribute to the cause and effect of a mine safety or
health hazard , i . e. , whether the v i olations were " significant and
substantial ." If v i olations are found , it will also be necessar y
to deter mine the appropriate civil pen alty to be assessed in ac cordance with section llO(i) of the Act .
Citation No. 21 94200 alleges a violation of the standard at
30 C.F . R . § 77.1001 and states as follows:
A tree approxi mately 65 ft . in length , and approxi mately 27 to 30 inches in diameter, at the base , was
observed , standing on the top edge of an approximately
1 2 ft. high , h i ghwall . The wall [ s i c] was, observed work ing under the tree in question .
An employee was observed
working on a Mi chigan 475B front end loader , adjacent
to this area. The area in question was located adjacent to the No. 4 pit of the 002 section. The employee
a n d the front end loader were removed from this area.
When the superintendent , Robert Christian, was noti fied of the v i olat i on , he stated that he was taking

corrective action, to have the tree in question removed, .
but no action was being taken to barracade [sic] or post
this area. Robert Christian did stop all work adjacent
to this area and started action to remove the tree in
question, approximately 15 min. after notification of
the violation.
The citation was amended on January 27, 1984, to add the following allegations:
The employee left the area, and the front end
loader was removed from this area, before the
foreman was notified of the violation. When the
superintendent, Robert Christian, was notified of
the violation, he stated that he had made an at- ·
tempt to get a chain saw a few days prior to this
date. He stated that he was taking action to have
the tree in question removed. No action had been
taken to barracade [sic] or post this area. Robert
Christian did stop all work adjacent to this area ,
and started action to remove the tree in question ,
approximately 15 min. after notification of the
violation.
The regulatory standard at 30 C.F.R .
follows:

§

77 . 1001 reads a s

Loose hazardous material shall be stripped for a
safe distance from the top of pit or highwalls, and
the loose unconsolidated materials shall be sloped
to the angle of repose, or barriers, baffle boards,
screens, or other devices be provided that afford
equivalent protection.
The essential facts are not in substantial dispute. It is
primarily the interpretation to be given those facts that is at
issue. MSHA Inspector Alvin Morgan was at the Marty Mine on January 19, 1984, for a regular inspection when he observed a number
of trees on top of the highwall. According to Morgan the trees
were not then a hazard but would become haza~dous as the highwall
deteriorated. Mine Superintendent Robert Christian agreed at
that time to remove the trees.
Morgan continued his inspection at the Marty Mine on January 25, 1984, and observed a loader situated beneath one of the
aforementioned trees. The tree was approximately 65 feet in
height and about 27 inches to 30 inches in diameter at the base.
Tree roots were exposed and the highwall had deteriorated. The
tree was not restrained and no barricades were present. Particularly inasmuch as the mechanic was then working on the loader

beneath the tree, Morgan concluded that a "significant and substantial" hazard existed. The mechanic was working within range
of the tree if it should have fallen and Morgan concluded that
serious injuries were reasonably likely from branches striking
the mechanic.
According to Mine Superintendent Christian, after Inspector
Morgan had warned him about the trees on the highwall on January 19, he had directed his employees to stay away from the noted
area and had all but one of the trees removed . Since they had
been unable to bring down the remaining tree by use of a winch,
he concluded that it did not present a hazard. No evidence was
presented, however, as to when this effort was made and Christian
acknowledged that the highwall was subject to freezing ~nd thawing and therefore was unstable. It also appears that the mechanic working on the loader had not been warned of the danger because he services the mine only once a week and appeared unexpectedly. The citation was abated within several hours after
Christian obtained a chain saw and had the tree cut down .
I find the inspectorvs assessment of the hazard to be the
more credible under the circumstances. It is not disputed that
the highwall was in a deteriorating condition as a result of
daily freezing and thawing, that the roots of the tree were partially exposed and that the tree was within range of employees
working in the area . In reaching this conclusion I have considered the mine superintendent's testimony that he had been unsuccessful in bringing the tree down with a cable and winch and
the evidence that the mechanic was working on the side of the
loader farthest from the highwall. However, since the removal
efforts could have been made as many as seven days earlier, the
testimony has little bearing on the stability of the tree on the
date of the citation. Moreover while the mechanic may have been
partially protected by the loader he was working on it may
reasonably be inferred that he was also unprotected at times.
Under the circumstances, I conclude that the violation was indeed
"significant and substantial" Secretary v. Mathies Coal Co., 6
FMSHRC 1 (1984). I further find that the superintendent was
negligent in failing to have the hazard removed or have the area
barricaded to prevent employee access. Indeed he was able to
locate a chain saw and remove the tree within 15 minutes after
the citation.
Order No. 2197746 charges a violation of the regulatory standard at 30 C.F.R. § 77.404(a) and alleges as follows:
The operator has failed to provide a safe means of
access to or from the cab of the Cat. 988B front end
loader, Serial No. 50W2406, cleaning coal in the No. 2

pit of the 002 section. The loader operator has no
safe means to exit the front end loader in case of an
emergency , in that the left side boarding ladder was
missing . The door to exit the loader cab is located on
the left side of the cab .
When the Superintendent, Robert
Christian, was notified of the violation, he removed the
front end loader from service. During the discussion with
the Superintendent , he states the boarding ladder had been
removed several days prior to this date. The highwall in
the No. 2 pit of the 002 section varied in height from approximately 40 ft. to approximately 50 ft. in height.
The cited standard requires in relevant part that mobile machinery and equipment be maintained in safe operating condit.ion and
that machinery or equipment in an unsafe condition be removed
from service immediately .
There is no dispute that on February 1 , 1984 , the cited loader was missing its access ladder on the left side , that the only
exit door from the cab was on the left side and that the cab was
located about 10 feet above ground. According to Inspector
Morgan turbo fires from oil leaks on loaders such as the one at
bar were common and indeed "fairly frequent." Without the boarding ladder on the left side a machine operator exiting in an emergency would , according to Morgan , find it necessary to jump the
10 feet to the ground thereby subjecting himsel f to permanently
disabling fractures . This testimony is not disputed and it supports a finding that the violation was "significant and substantial" and a serious hazard.
Inasmuch as the mine superintendent
knew that the ladder was missing and allowed the loader to continue operating, I find that the violation was caused by the mine
operator's neg ligence. The violation was abated within 1-1/2
hours when a ladder was removed from anoth~r loader and bolted
onto the cited loader .
It is not disputed that there had been
prior violations for missing boarding ladders at the Marty Mine.
The third order at issue , Order No. 2197797, alleges a violation of the regulatory standard at 30 C.F . R. § 77 . 1103(d) . The
order reads as follows:
Several bales of straw was [sic] observed , stored
under a mobile trailer , that contained two flammable
liquid storage tanks , approximately 2000 gallons
capacity each . The mobile trailer was identified as
a flammable liquid storage area with two signs on the
right side of the trailer and one sign on the front
which read (No Smoking) (Flammable) (Danger no smoking
or open flame within 50 feet) . The mobile trailer in
question was located at the oil storage area of the

·r:'3
. tJ

001 section. Tire tracks adjacent to the mobile
trailer indicated this area was traveled frequently.
The cited standard reads as follows: "Areas surrounding
flammable liquid storage tanks and electric substations and transformers shall be kept free from grass (dry>, weeds, underbrush,
and other combustible materials such as trash, rubbish, leaves
and paper, for at least 25 feet in all directions . "
Mine Superintendent Robert Christian aclnowledged that the
bales of straw were in fact located beneath the cited trailer but
alleged that he was unaware at that time that they had been
placed under the trailer. He alleged at hearing that an independent contractor responsible for land reclamation had placed them
there without his knowledge. While also conceding that two oil
tanks were in fact on the trailer as cited, he claimed that t hose
tanks were emp t y .
Robert Brahnam, an engineer for the l-tarty Corporation , testif ied that he observed the straw bales after they were citedo It
was raining at the time and when he removed the bales they were
"thoroughly soaked." According to Brahnam the oil tanks on the
trailer were empty and had contained only lubricating oil.
Inspector Morgan testified that the mine superintendent had
told him at the time of the citation that the storage tanks had
contained diesel fuel and were "almost" emptyo Morgan explained
that even if the tanks had in fact been empty there would have
been an even greater danger of explosion from residual fumes than
from a full tank.
In light of the undisputed evidence that the bales of straw
were "thoroughly soaked," however, it appears that the material
may not have been combustible as required by the cited standard.
Accordingly the order must be vacated. ·
In determining the amount ·of penalties warranted in this
case, I am also considering that the mine operator is relatively
small in size and has only a moderate number of violations preced. ing the violations at issue. The cited conditions were abated in
a timely and good faith manner. At hearing the operator presented evidence concerning its financial status to the extent
that it was · required by its creditors to pay in cash. The evidence is not sufficient, however, to support a finding that the
penalties imposed herein would affect its ability to stay in business. Under the circumstances, I am assessing the following penalties: Citation No. 2194200 - $250, Order No. 2197746 - $150.
Order No. 2197797 is vacated.

ORDER
Order No . 2197797 is hereby vaca ed. The Marty Corporation
i s hereby ordered to pay the followin civil
ties within 30
days of the date of this decision : C'tation
194200 - $250,
Order No. 2197746 - $150.

Gar
Ass

Law Judge

Distribution:
William Taylor, Esq., and Joseph Luckette , Esq. , Office of the
Solicitor , u. S. Department of Labor 1 801 Broadway 1 Room 280 q
Nashville , TN 37203 (Certified Mail)
Russell M. Large, Esq ., General Counsel , Marty Corporation, P . 0 .
Box 310 , Coburn , VA 24230 (Certified Mail)

yh

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

"·

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

C!VIL PENALTY PROCEEDING
Docket No. LAKE 84-48
A.C. No . 11-00609-03511

v.

Captain Mine

ARCH OF ILLINOIS, INC.,
Respondent
DECISION
Appearances :

Miguel J. Carmona, Esq., Office o f the
Solicitor , u.s . Department of Labor , Chicago ?
Illinois , for Petitioner ;
Brent L. Motchan , Esq ., St . Lou i s , Missouri ,
for Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns civil penalty proposals filed
by the petitioner against the respondent pursuant to
section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 820(a), seeking civil penalty assessments
for three alleged violations of certain mandatory safety
standards found in Part 77, Title 30, Code of Federal
Regulations.
The respondent filed an answer contesting the proposed
penalties, and a hearing was peld in St. Louis, Missouri,
on October 11, 1984. The parties waived the filing of posthearing proposed findings and conclusions. However, all
oral arguments made by counsel on the record during the course
of the hearing have been considered by me in the adjudication
of this case.
Issues
The principal issues presented in this proceeding are
(1) whether respondent has violated the provisions of the

Ac t a nd impleme nting regulations as al l eged in the proposal
for assessment of civil penalt y fi l ed, and , if so, (2) the
appropriate civil pena l ty t hat should be assessed against
the respondent for the alleged violat i ons based upon the
criteria set forth in section llO(i) of the Act. Additional
issues raised are identified and disposed of where appropriate
in the course of this decision .
Included among these issues
is the question as to whether the cited violations are
"significant and substantial ."
In determining the amount of a civil penalty assessment,
section llO(i) of the Act requires consideration of the
following criteria: (1) the operator's history of previous
violations , (2) the appropriateness of such penalty to the
size of the business of the operator, (3) whether the operator
was ' .negligent , (4) the effect on the operator's abili 'cy to
continue in business, (5) the gravity of the violation 9 and
(6) the demonstrated good faith of the operator in attempting
to achieve rapid compliance after notification of the v iolations .
Applic·able Statu~ory and Regulatory Provisions
1 . The Federal Mine Safety and Health Act of 1977 ; Pub.
L. 95- 164, 30 U.S.C . § 801 et seq.
2.

Section llO(i) of the 1977 Act , 30 U.S . C . §

3.

Commission Rules, 29 C . P . R. § 2700 . 1 et seq.

820(i~ .

Stipulations
The parties stipulated to the following (Exhibit P- R- 1):
1. Respondent Arch of Illinois was known as
Southwestern Illinois Coal Corporation prior to
November 28, 1983.
2 . The respondent owns and operates the Captain
Mine, which is a strip mine producing bituminous
coal .
3.

The Commission has jurisdiction in this case.

4. On September 28 , September 29 , and September 30,
1983 1 MSHA Inspector Laverne Hinckle conducted
inspections of the Captin Mine, and he issued
the three citations which are in issue in this
proceeding.

5. The respondent demonstrated good faith by
abating the conditions described in the citations
within · the time allowed . by the inspector .
6. During the calendar year prior to the issuance
of the citations involved in this case the Captain
Mine had a production of approximately 3,234,936
tons of coal.
7 . During the calendar year prior to the issuance
of the citations involved in this case the entity
controlling the Captain Mine had a production of
approximately 6,854,467 tons of coal.
8. If violations of the MSHA standards are found
in Citations 2201879, 2324823 , and 2324824, payment
of the penalties assessed by the MSHA Off i ce of
Assessments would not affect the ability of the
respondent to remain in business .
9. During the 24 month period preceding the issu ance
of the violations involved in this case , the respondent
paid a total of 49 assessed violations. Twenty- five
(25) of those forty-nine (49) paid violations were
$20.00 single penalty assessment violations .
Discussion
Section 104(a) "S&S" Citation No. 2201879, issued on
September 28, 1983, c~tes a violation of 30 c . r . R . § 77.505 ,
and the condition or practice cited is described as follows:
The 440 VAC 3 phase cable serving a generator
type welder in the garage building, 3rd bay
from the south wall was not equipped with a
proper electrical fitting where it entered ·
the fused disconnect . The jacket insulation
was not in the fitting and the energized phase
conductors were in contact with the disconnect
enclosure.
Section 104(a) "S&S" Citation No . 2324823, issued on
September 29, 1983, cites a violation of 30 C . F . R . § 77 . 604,
and the condition or practice cited is described as f ollows:
The 25,000 VAC trailing cable serving the
2570 dragline was not being adequatel y protected
from damage by mobile equipment in that it
had been covered with unconsolidated rock 4 to 6

inches in depth and then crossed by rubber
tired equipment at least two times. The tire
marks crossed the rock cover in two separate
places. The trailing cable was energized
at the time of this observation.
Section 104(a) "S&S" Citation No. 2324824, issued on
September 30, 1983, cites a violation of 30 C.F.R. § 77.604,
and the condition or practice cited is described as follows:
The trailing cable supplying 440 VAC, WYE connector,
resistance grounded power to a water pump behind
the 181 loader in the 5671 pit was not being
protected from damage by mobile equipment
in that it had been run over in two places. The
cable had tire marks on it and was impressed into
the roadway in two locations. The cable was
energized at the time of this observation.
Procedural Rulings
1. In its answer and notice of contest filed in this
case, respondent raised an objection concerning the issuance
of Citation No. 2201879 (improper cable fitting on a welding
machine d isconnect electrical box) . Respondent ' s objection
is an assertion that the inspector failed to allow respondent ' s
representative to accompany him during the inspection when
he detected the cited condition. The objection was withdrawn
by counsel at the hearing (Tr. 12-13). Under the circumstances,
I have not considered it.
2. At the close of MSHA's case in chief, respondent's
counsel moved for a directed verdict as to the inspector's
"S&S" findings concerning all three of the citations issued
in this case. For purposes of the motion, although counsel
conceded the fact of violations as to all three citations,
he also indicated that he would leave that for my determination
(Tr. 132-133) . Counsel then·.. amended: his motion to include
a request for vacation of all three citations on the ground
that MSHA had not established a prima facie case that the
cited conditions or practices constituted violations of
the cited standards (Tr. 135). After consideration of the
arguments in support of the motion, as amended, it was denied
(Tr. 135) .
3. During the hearing, respondent's counsel raised an
objection - when MSHA's counsel called Mr. Jerry Collier as
a witness. The objection was based on the assertion by counsel
that MSHA's counsel Carmona had not advised him in advance
of the hearing that he intended to call Mr. Collier as a
witness (Tr. 213).

t:'
.. t)

9

Respondent's counsel was reminded of the fact that
during the discovery period in this case , MSHA ' s counsel
indicated to him that he had made no final determinat ion
as to whether or not he would call additional witnesses
(Tr. 215). MSHA ' s counsel Carmona i ndicated that he made
a telephone call to counsel Motchan's office to advise him
that he intended to call Mr . Collier , but that he had received
no response to his call (Tr. 216) .
After consideration of all of the arguments made on
the record , including a proffer made by MSHA ' s counsel with
respect to the proposed testimony by Mr. Collier, I rejected
the respondent ' s objections, and I did so on the ground that
the witness was available for cross- examination, and that
respondent's counsel made no showing that he was prejudiced
(Tr. 219).
Petitioner ' s Testimony and Evidence
Laverne Hinckle, testified that he has been employed as
an MSHA coal mine inspector for eleven years, and he testified
as to his duties, training, and responsibilities. He confirmed
that while he holds no college degrees , he has three years
of course study in electrical engineering at the University
of Illinois, and that his prior work experience was as a
chief electrician with several coal companies and the
Westinghouse Corporation.
Mr . Hinckle confirmed that he inspected the mine on
September 28 , 1983 , and that he i .s.sued the citations which
are in issue. in this case . W;i.th regard to Citation No. 2201879 ,
h e confirmed that he issued it after he observed that a
nut which was installed on the electrical cable fitting on
t he welder disconnect box in question was not in place , and
that the cable which entered the fitting location was "backed
out" of the enc losure and that one of the insulated phase
wires was in contact with the box .
Mr . Hinckle stated that· he believed the citation was
" significant and substantial ·," and that he did so after
following the guidelines set forth in the National Gypsum
decision . He also believed that there was a potential for
an accident in the event of a fault condition, and in the
event of a phase conductor failure.
With regard to Citation No . 2325834, Mr. Hinckle
confirmed that he observed the trailing cable covered over
with loose rock fill material , and he indicated t h at respondent's

·. t) O

employees Fred Wagner and Tom Rushing agreed with him in
this regard. He confirmed that photographic exhibits R- 7,
R- 8 , and R-9 accurately portray the cable in question . He
also conceded that he was in error when he stated that the
rock material was four inches to six inches, and that it
actually ranged from " zero inches to four inches ." ·
Mr. Hinckle stated that he observed tire marks on
the trailing cable in question, and that the r espondent ' s
representatives agreed that this was the case. He also
confirmed that after testing the cable, he found that it
had not been damaged .
With reg ard to Citation No . 2324824 , Mr. Hinckle
identified photographic exhibits R-10 and R-11, as the
cab l e which was run over , and he believed that it wa.s run
over by a Michigan rubber-tired payloader . He believed
that the neglige nce was hig h because mine management should
have discovered the condition and taken action before he did .
Mr. Hinckle confirmed that in making his " significant
and substantial " findings , he followed MSHA's policy guide lines set out in -a District 8 policy memorandum dated
January 7, 1977, exhibit P-4. He conceded that his concern
over a piece of equipment running over a cable was the potentia l
for d amage which may resu l t f rom equipment constantly
running ove r a cable , and he agreed that the language of
the standard has personally caused him much difficulty in
trying to interpret it (Tr . 42-43) . Mr. Hinckle confirmed
that he relied on MSHA's manual guideline and the memorandum
by his district manager to support' his citations, and MSHA ' s
counsel stated that it was MSHA ' s position that the cited
cables should have been protected by one of the methods
detailed in those guidelines and interpretations (Tr. 44 - 47).
Inspector Hinckle confirmed that the 25 KV cable was
inspected with a Megger instrument after it was deenergized,
and since no damage was detected, the respondent was permitted
to place the cable back into service. He did not require
the respondent to use any of the means detailed in the
guidelines to protect the cable from being run over again,
and the inspection of the cable was sufficient action to
warrant the abatement of the citation (Tr. 47-48; 56 - 57).
With regard to the 440 ·vAc WYE water pump power cable,
Inspector Hinckle believed that it had been run over by a
rubber- tired Michigan Payloader, which weighs approximately
20 tons, but t~at he was not sure (Tr. 60-62). Abatement
was achieved by deenergizing the cable, inspecting it, and
testing it electrically. It was then permitted to be placed
back into service (Tr . 65) .

During a bench colloquy with the ±nsp'ec·tor .regarding
his application of any "S&S" guidelines , h6 explained his
understanding of the term "S&S" as follows (Tr. 54-55):
JUDGE KOUTRAS: Had it not -- had you not
issued the citation, : the practice would
have continued; is that correct?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: So any citation you issue
theoretically would be S and S, wouldn't it?
THE WITNESS:

No, sir.

JUDGE KOUTRAS:
If you follow that particu.l ar
logic to the letter?
THE WITNESS:
to mind?
JUDGE KOUTRAS:

Hay I give an example that comes
Okay.

THE WITNESS: Each piece of mining equipment
underground is required to have a methane monitor
on it, 7 5. 313 .
JUDGE KOUTRAS:

Okay.

Okay.

THE WITNESS: Okay, at the time an inspector finds
a methane monitor which has malfunctioned for one
reason or another and he cites this condition,
at the same time he checks with his hand-held
monitor .
If he finds no gas, that citation is not
S and S.
JUDGE KOUTRAS:

Not S and S?

THE WITNESS: No, sir. The thinking here is that
i~ it were allowed to continue and there was no
gas, then there would not be reasonably likely
anyone would be injured as a result of that methane
monitor not being functioning.
JUDGE KOUTRAS: Now what if I were to tell you
that an inspector in another district office
with that same analogy would mark that citation
S and S, notwithstanding the fact that he found
no gas, on the theory that methane could be
encountered at any time and, therefore, it
is still and s and S?

THE WITNESS:

May I make another

JUDGE KOUTRAS :

Go ahead .

THE WITNESS :
I think that we are, you and I ,
certainly are discussing one of the major problems
that we have in our enforcement activities in
the United States today . · We are not consistent.
During his subsequent testimony on cross-examination
concerning four prior · citations issued by two other inspectors
from the same district office in 1982 and 1983 concerning
violations of section 77.604, for equipment running over
trailing cables, (exhibits P- 7 through P- 10), Inspector Hinckle
stated as follows (Tr. 113):

Q. I do not see that any of these four
violations, and they all involve the same
standard, 77.604, have been marked significant
and substantial.
A. I picket up on that , too .
as well.

I noticed that

Q. So did they apply a different standard
than you did?
A.

No, of course not.

Q. Can you explain this then why is yours
significant and substantial and theirs are not?
A. The only explanation I have is they based
their evaluation on the set of circumstances that
they observed at the time they cited the violation
and I based my judgment on a set of circumstances
that might have been, as far as I know , totally
different at the time I observed this violation
that I cited . In other words, I was not at
I was not with either one of these men so I cannot

Q. Well, it just seems strange to me that they
have violations again for going over trailing
cables. They say they're not significant and
substantial and you say that yours are.
A. I based my judgment on the set of circumstances
that I observed at the time I cited the violation.

Q.

Don ' t they?

A.

I can ' t answer for them, sir.

When asked how many times a cable would have to be run
over before he would consider this practice as "S&S,"
Inspector Hinckle replied that "once would .make it significant
and substantial" (Tr . 115-116) . He indicated that his
position would be the same regardless of the fact that an
examination and testing of the cable indicated that it had
not been damaged (Tr. 116- 118).
Mr. Hinckle testified that he believed both cables had
been run over sometime during the shift on the same day of
his inspections (Tr. 123). When asked to explain a statement
attributed to him in a reply to an interrogatory prepared
by MSHA's counsel that "the cable continued to be handled
by several miners while it was energized after it was run
over by heavy equipment," Mr. Hinckle conceded that he had
no evidence to support any such statement, but that "by
practice oftentimes this is true" (Tr. 124) . He also
conceded that at the time he observed the cited conditions
he observed no one handling any energized cables (Tr . 130) .
Respondent ' s Testimony and Evidence
Cliff Higgerson, confirmed that he is employed by the
respondent as the mine electrical superintendent . He testified
as to his background and experience, and confirmed that he
has MSHA certified electrician papers. With regard t o Citation
No . 2201879, he stated that in : the event one or two of t he cable
phase wires touched the connector box in question, no hazard
would exist because the box is grounded. He did not believe that
the violation was "significant and substantial, and he confirmed
that the cable connector and box is required to be checked
once a month (Tr. 136-139).
With regard to Citation No. 2324824, concerning the
water pump cable, Mr . Higgerson confirmed that he observed
the cited cable, and that after it was tested, no damage
was det ected. He also confirmed that the cable is moved
by the crew, and that it is checked for damage daily and
monthly. He was of the view that simply because the cable
was run over, this did not amount to a "significant and
substantial" violation. He also indicated that in the event
normal mining operations were continued , the cable condition
would have been discovered and that this would not be a
significant and substantial violation .
With regard to Citation No. 2324823, regarding the 25 KV
trailing cable, Mr . Higgerson confirmed that photographic
exhibits R-10 and R- 11 accurately depict the cable in question.
He did not believe that the violation ~s "significant and
substantial " simply because the cable was run over . He
indicated that the cable which was in use was stronger and
safer than the minimum type cables required to be used at
the mine.

:64

Tom Rushing, respond e n t's s a fe t y director , testified
as to his background and experience, i ncluding 20 years at
the mine in question . He confirmed that he holds mine
foreman ' s paper s and numerous MSHA training certificates. He
identified photographic exhibits R- 1 through R- 6 as the welding
machine box in question {Tr. 159- 162) .
With regard to Citation No. 2324823, Mr. Rushing identified
photographic exhibits R- 7 through R-9 as the cable in question .
He stated that he observed no damage to the cable and saw
no one handle the cable. He indicated that the cable is
normally handled at least two times during each daily shift ,
and he stated that the location at which the cable was run
over was not a roadway or haulage way and was not intended
as a mobile equipment cross-over. He also indicated that the
rock material which covered the cable was not intend.e d to
protect the cable from being run over, but \vas intended to
protect it from rock materials falling on it when the dragline
boom swings around (Tr. 163 - 166; 172- 173) .
With regard to Citation No. 2324824, Mr . Rushing
confirmed that he was with the inspector at the time this
condition was observed, and he identified photographic
exhibits R-10 and R-11 as the cited water pump cable i n
question. He also confirmed that he observed the tire tracks ,
but that he observed no one handle the cable . He stated t hat
the location where the cable was observed was not intended
as a mobile equipment cross-over point, and he indicated that
the respondent does not make it a practice to run over cables,
and that anyone found doinq so is subject to being disciplined
{Tr. 167 - 168) .
Ted Hansen, testified that he is employed by the Anacond a
Wire and Cable Company as manager of mining marketing. He
stated that he is a 1964 graduate of Marquette University,
with a degree in electrical engineering, and that he has
taken several post-graduate courses ~n management. He
testified as to his prior experience as a process , development,
and research engineer with Anaconda. He al.so indica ted that
he headed the research laboratory which was engaged in
research concerning cable studies into compression cut
resistance. He discussed several cable tests he conducted,
and he confirmed that he published six technical papers
concerning trailing cables , three of which dealt with the
reliability of cable shielding. He also confirmed that he
holds five patents for cable design , and has written a book
on the subject.
Mr . Hansen stated that his company ha.~ supplied the
respondent with trailing cables for several years and that

he is familiar with the trailing cables which were cited
by Inspector Hinckle in this case , and that he contributed
to their design.
Mr . Hansen identified physical exhibit R-12 as the exact
type of cable cited by the inspector with respect to the
dragline citation, and physical exhibit R-14 as the type
of cable cited in connection with the water pump cable
citation. Based on the testimony and evidence adduced in
this case , Mr. Hansen was of the opinion that running over
the cables by rubber-tired equipment did not pose a significant
and substantial mine safety hazard .
Mr. Hansen described several tests which he conducted
with respect to the types of cables in question in this
case, and these included hydraulic pressure applied to the
test cable, equipment running over it, and rods being
inserted into the cables to simulate dama g e . He a l s o
described the physical characteristics of the cab l es , incl uding
the manner in which they are manufactured wi th rel iable
shielding and grounding devices . In his opinion, running
over such cables would not cause any damage, and he believed
the only way such cables could be damaged was in the event
a piece of equipment with "crawler treads" ran over the
cable and cut into ~t (Tr. 180- 191) .
Mr. Hansen described in detail two cable tests which
he conducted , and as to a third one he stated in pertinent
part , as follows (Tr. 182-183) :

* * * In addition to those two tests,
we finally went to a less scientific
type of a test where we simply put the
cables out near our receiving docks
and let our -- our trucks normally
coming to our plant just run over the
cables day in and day out. These
trucks would weigh as much as 50,000
pounds and i t would take anywhere from
1,000 to 5,000 cycles before we ' d even
bother to look at the cable to see if it's
been injured yet. And usually after
these number of cycles there is little
damage to the conductors or the cable at
all. Our purpose in doing this is to compare
the new design with a reference design that
we are satisfied with .

Mr. Hansen referred to physical exhibit R-12, which is
a piece of 25 KV trailing cable of the exact type cited by
Inspector Hinckle, and he explained in detail its physical·
characteristics, including the grounding conductors and
protective shieldings (Tr. 185). He also explained the
differences in the shielded trailing cables used in surface
mining as compared to the unshielded low voltage cables
generally used in underground mining (Tr. 187-188).
Mr. Hansen stated that the cable shielding system is
effective in taking any faults to ground, and that it is
the safest cable that can be designed (Tr. 188). He explained
further as follows (Tr. 188-192):
A. And ~long these lines is MSHA has
tested our cables with this particular type
of shielding with what they call the nail
test. And that is where they actually drive
a nail through the shield wires into the
conductor and the grounding system produces
a ground fault that will trip the relays
without providing any shock hazard to the
person who's standing there holding the nail
while it's being driven through to the
conductors. That was a design criteria and
we have performed that test on all of these
cables.

Q. When I asked the inspector to state the
tacts he relied on to come to the conclusion
that the alleged violation was significant
and substantial, he stated that the cable
could have been internally damaged , a short
c~rcuit was possible while the cable was
energized. Can you tell me how a short
circuit would occur in that and then what
would happen if a short circuit occurred?
A.
If -- when or .if the insulation was ever
damaged to the point where it would fail
dielectrically , the short curcuit would have
to be phase to ground. In this kind of a
c~rcumstance, there is just simply no way
you could have a phase to phase fault.
And
the significance of that is that the phase to
ground system has relays and neutral resistance
that will limit the amount of energy that is
expended in such a ground fault. * * *

* * *
JUDGE KOUTRAS: Well, as I recall the inspector,
Mr. Hinckle, when you were asking him some
questions, Mr. MOtchan, didn't he indicate that
through the use of his own diagram which I've
marked as Exhibit ALJ-1 that should the shielding
on one of the phase conductors which is the
three that you ' ve just described here become
damaged through constantly being run over or .
for whatever reason , should two of those come
together it would short this particular cable
out.
Isn ' t that what he said?
MR. MOTCHAN:
JUDGE KOUTRAS:
MR. MOTCHAN :
JUDGE KOUTRAS :
MR . MOTCHAN:

I believe he said that yes , if these -Yes.
-- two conductors -I f those two carne together
Rig ht.

JUDGE KOUTRAS :
-- that would cause a problem
with the cable.
MR. r.10TCHAN :

Right.

THE WITNESS:
this design .

That -- that cannot happen with

JUDGE KOUTRAS: Okay . And you -- excuse me
just one second . And you say the only time it
can happen is if it's a phase to ground type of
thing rather than the two conductors phase to
phase; is that correct?
THE WITNESS: The only kind of faults you can
have with this is the phase to ground fault.
JUDGE KOUTRAS : And how would that happen with
that cable that ' s sitting there in front of you?
THE WITNESS : It would happen if somebody would
drive a nail through the insulation into the -into the conductor or it will happen when a rope
is tied around it and maybe they try to move
fifteen hundred fee·t of it in one pull and they
pull the jacket apart and subsequently pull the
and damage the shielding into the insulation.
But then it would be a phase to ground fault .
And that's usually the way these cables fail.

JUDGE KOUTRAS:

Okay.

THE WITNESS: I don't personally know of a cable
ever failing from a truck running over it.
JUDGE KOUTRAS: Do you know of any cables that
have failed by - - by equipment running over it?
THE WITNESS: Only when a D9 or a similar type
vehicle with those treads run over i t , the~ it
cuts it in two .
JUDGE. KOUTRAS:
treads?
THE WITNESS:
JUDGE KOUTRAS :
THE WITNESS:

You mean the tank type crawl e r
Yeah .
And that would be a cutting process
Yes.

JUDGE KOUTRAS:
rather than a dete rioration
caused through crushing and that sort of t h ing ?
THE WITNESS :

That's right.

Q. Well, what would happen if there was a phase
to ground fault on this?
A.
It would produce a ground fault current of
the magnitude that would trip a ground fault relay.
Q. Okay . The relay being tripped I would take
it that someone touc.hing the cable would not be
in danger?
A. No. You could be holding this cable during
this fault process and you ' d be lucky if you knew
that a fault was taking place.
Lloyd R. Brown, testified that he is a fu l l Professor
of Electrical Engineering at the Washington University,
St. Louis, Missouri, and he confirmed that he hold s an A . B.
degree in ·m athematics and physics, and a B. S. degree in
electrical engineering from the University of Missouri. He
also holds M. S . and Phd. degrees in electrical engineering
from the Washington University. He stated that h~ has been
a professor in electrical engineering for the past twenty
years teaching undergraduate courses at the Washington University.

Dr. Brown testified as to the citation concerning
the breaker box fitting citation, No. 2201879, and he
confirmed that he took the photographs which are a matter of
record in this case, exhibits R-1, R-3, R-4, R-5, and
R- 6 ( Tr • 2 0 7 ) .
Dr. Brown testified that even if the insulation had
come off one of the phase wires and one of the wires came
into contact with the enclosure, there would be no shock
hazard to someone touching the enclosure. He explained his
opinion· as follows (Tr. 207-208):
Q. If the insulation came off the phases,
one or more phases, and they, in fact, touched
the enclosure, would there be any shock
hazard to someone touching the enclosure?
A.

No, way .

May I elucidate on that?

Q.

Yes, phase.

A. This . is a grounded box. Even if the system
were grounded, all you would do would be to trip
the breakers back at the main which in no way
could you maintain a short on this box for any
period of time . But of a secondary nature is
this is what you call a floating delta system .
There's nothing grounded on it. It's kind of
like hauling a flashlight up here. There's
batteries in that flashlight but you're not
getting shocked off of it. If you were to
touch it to ground, nothing more would happen.
One wire to ground wouldn't make any d ifference
at all. It would have just grounded one corner
o£ this floating delta.

Q.

What happens if two o£: the conductors touch?

1\. Then you've go.t a phase to phase short which
again will trip th~ breakers back at the main.

Q.

Now would somebody or could somebody be
electrocuted by touching the enclosure if one or
two of the phases touched?

A. Absolutely no way. There's no way you can
get electrocuted on that box.
With regard to the two cited trailing cables, Dr. Brown
testified as follows CTr. 208).;

Q. Let me go into the other two citations
involving the trailing cables. Did you view
the cable at the mine?
A. I viewed samples -- oh, yes, the -- the
actual cable I couldn't swear was the same
cable. We went out in the field and saw -- saw
the unit in operation.

Q. Did you look at the 25 KV cable and at a
two KV cable?
A.

We did.

I did .

Q. From what you've heard today and your own
knowledge, do you feel there -- that the conditions
as existe d in either one of the citations involv ing
the trailing cables significantly and substantially
contributed to a mine hazard ?
A.
I don't see any way that they could have
caused anybody to get electrocuted.
And, at Tr . 210-211 :
JUDGE KOUTRAS :
* * * based on what you ' ve h e a r d
today to you have any reason -- any opinion
as to whether or not ·it was significant and
substnatial and do you understand what the concern
of the inspector -- of Inspector Hinckle is and
what the concern of MSHA seems to be with regard
to running over a cable of this kind, Doctor Brown,
with equipment? Do you have any perception of
what that concern might be?
THE WITNESS: Well, it's my impression that the
concern is that somebody handling the cable after wards might get a , certainly if not a lethal shock,
one that would be physically damaging to them.
JUDGE KOUTRAS : And do you say that there's no
there's no cause for alarm, that maybe MSHA is
over-reacting here or just what?
- THE WITNESS: Well, my -- my feeling is, Judge,
that you ' ve got a phase - - each one of these for
which has its own individual grounded shield.
I don ' t see any way that you can get a fault in
here that you're not going to get a phase to ground

:71

shield that even if the ground fault
equipment were not operati ng it s t ill would
blow the breaker back in the dist ributi on
system. And I think I heard a term that I
just can't bel i eve. There's no way that I
can see that that equipment could ever get
energized. You would have to literally
break every one of these grounds completely
sheared and still maintain the integrity of
one of these phases in order to get your
equipment energized which just looks to me .
to be impossible . You ' ve got these outside
g rounds, you've got each individual shield
around it, ev E~ry one of those would have to be
cut and yet maintain one of these and somehow
get it tied to the machine which it isn't to
start with. The - - the whole concept is,
excuse the term, ridiculous.
JUDGE KOUTRAS: And what -- now y ou ' ve heard
some of the witnesses from the operator's point
standpoint in this case have voiced some concern
about the prac t ice, if you will, or some concern
about mobile equipment crossing over this . What ,
from their point of v iew , is their concern?
THE WITNESS:
I would be more concerned that
if it got damaged you would have downtime and
physical failures rather tbpn loss of life .
Certainly I think if you went over this a
few times with a D9 cat I could visualize that
you ' re going to have some failures in there .
JUDGE KOUTRAS ; And you're saying that those
failures would -- would necessarily trigger the
the inherent safety features of this thing and
would either de - energize the equipment or put the -put the cable out of commission?
THE WITNESS : That ' s correct , and somebody's
going to have to g'o repair it.
JUDGE KOUTRAS :
THE WITNESS :

Or replace it or
Or replace it, that's correct.

Petitioner's Rebuttal
Jerry Collier , MSHA Supervisory Electrical Engineer,
Vincennes, Indiana, testified as to his background and

experience , and confirmed that he holds a B.S . degree from
the West virginia Institute of Technology in Montgomery ,
West Virginia (Tr. 219- 221) . He testified that he did not·
participate in the inspections which were conducted by
Inspector Hinckle in this case , but that he was familiar
with the conditions or practices cited by the inspector
(Tr . 222). He confirmed that with regard to section 77 . 604,
MSHA ' s District 8 follows the enforcement policies set forth
in the district manager's memorandum and the manual guidelines
set out in exhibits P-4 and P-14 (Tr. 222) .
During the course of the questioning ot Mr. Collier,
and in response to my questions concerning the theory of
MSHA ' s case with res-pect to the two. trailing cable citations,
MSHA's counsel responded as follows (Tr . 225-226) .
JUDGE KOUTRAS: Mr. Carmona, let me understand
something first basically about the theory of
MSHA's case here.
Is --are you holding the
operator here accountable f or failure to
adequately trench or otherwise guard this
cable from being damaged? Are you charg ing them
is MSHA's position here that they failed to
follow the policy?
MR . CARMONA: They failed -- our positio n is
that they failed to follow the policy and they
failed to use any other method that is safe because
they d~dn ' t -- they didn ' t have procedures that
provided protection to the cables .
JUDGE KOUTRAS: And that ' s because the inspector
saw the tracks on the cable?
MR. CARMONA: Well, he saw it at the t~me .
happened before.
It ' s not only once .

That's

JUDGE KOUTRAS: An~ yet the abatement here to
this day the operator st~ll hasn't - - you know,
I ' m still a little· in never-never land about
the abatement. How were these two citations abated?

*

*

*

*

JUDGE KOUTRAS: I got the impression that the two
citations were issued because the inspector saw
that -- evidence that a piece of mobile equipment
had run over it. ·He saw the tracks ; correct,
Mr. Carmona?

MR. CARMONA: Yes. Well, he has to have
some evidence that the -- the cable has been
subject to some damage.
JUDGE KOUTRAS: Yes, I know but -- but in the
description of one cable where it was lying with
unconsolidated rock, are you telling me that the
inspector was of the view that he thought that
the cable was there to be protected from being
run over? And that he thought that that protection
was inadequate? What if he'd have found 12 inches
of unconsolidated rock? Would the cit ation have
issued in this case?
MR . CARMONA : If it had been determined that it
was run over, the cable, the citation would have
been issued because MSHA does not consider that
a proper protection . MSHA is ta l king about
trenches that can be -- p rotect the cab l e .
JUDGE KOUTRAS: Yes, but the -- but the policy only
requires that protection at designated roadways
and cross overs, doesn't it?
MR. CARMONA : Well , what
is the place at whic h
the cable is supposed to be crossed over they; re
going to cross over but the cable has to have
protection.
Counsel Carmona asked Mr. Collier asked Mr. Collier to
explain MSHAts policy, and he responded as follows (Tr . 226-227)
A. Yes. Of course, the reason for the policy
memorandum back in 1977 was because of questions
from our inspectors in the first place about how
to -- about how to interpret and enforce that
particular regulation , 77.604.
Mr. Collier ' s interpretation and application of MSHA's
enforcement policy with regard to section 77.604, including
"S&S" violations, is reflected in the following testimony
(Tr. 230~237).
JUDGE KOUTRAS: The mine operator installs
a pump and he runs a thousand .f oot trailing
cable right by the pump . There's absolutely
no mobile equipment at all working in tbere
in the normal course of a shift.
THE WITNESS ;

Yes, uh- huh.

JUDGE KOUTRAS : What is h e required to do to
protect that cable in the event some guy just
happens to drive by in a truck and goes over
the cable and leaves some marks that the
inspector sees?
THE WITNESS: He ' s not required to do anything
in a case like that .
JUDGE KOUTRAS :
THE WITNESS:

He's not required to do anything?
No , huh-huh .

JUDGE KOUTRAS: At what point in time is he requir ed
to do anything?
THE WITNESS: At the point in time t hat he decides
that he wants to pass over that cable .
JUDGE KOUTRAS: So the driver, then, i f he decides
he wants to run over the cable, he either has to
suspend it, build a bridge or dig a trench?
THE WITNESS~ No . I wouldn 1 t say the driver . The
operator in our opinion would be responsible for
doing whatever ' s necessary to protect that cable.
JUDGE KOUTRAS; Now the driver decides to go over
the cable and leaves some telltale tracks and the
inspector comes in and finds it, he's going to
give them a citation, isn ' t he?
THE WITNESS:

Yes, sir .

Uh-huh .

. JUDGE KOUTRAS: Now what if .the -- that - - what
if that is, in fact, the case , that it was not
a duly designated cross over point? How, in a
practical way, does the mine operator go about
insuring the integrity of that cable? Are the
is the equipment man required to stop, call the
mine operator and tell him look, I want to cross
this cable. Come over and do something . Send
a crew out here to suspend it or trench it or
THE WITNESS: Well, sir , it'd be hard for me
to speak to that. I c an ' t dictate, you know ,
how they set their manning syst em and how they
make their decisions at which point in t ime they're
going to take action to --

JUDGE KOUTRAS:

Do you see the --

THE WITNESS:
the regulation?

protect cables or comply with

JUDGE KOUTRAS: Do you see the picture of the
cable there in -- with the water pump?
THE WITNESS: Yes, that would be this one right
here, these two?
JUDGE KOUTRAS: Yeah, how do you think that piece
of equipment came to run over that cable? That
looks to me like it's down in a gulley and there's
a big -- what's that big pipe running over it.
What would a piece of equipment be going in
does that look like a regular cross over or a
roadway to you or what?
THE WITNESS : Wel l , again, it might not be a regular
roadway or a regularly used cross over point but
I would consider the fac t that equipment was
required to pass over it I would consider it at
that point to be a roadway .
JUDGE KOUTRAS : But you used the word was required.
Required means that somebody tells them this is a - what if some fellow just decided to go over that
cable in a truck because he didn't know any better?
He was taking a short cut. You say he was required
to do it. Now required meaning to get to the other
side of the road you have to drive over it or -THE WITNESS: Okay, well, if I were in -- making
the inspection, I would i .ssue a citation to the
operator for not adequately protecting the trailing
cables.
JUDGE KOUTRAS: And how would you go about making
the determination whether that violation on that
hypothetical was S and S?
THE WITNESS: Number one would be my experience
with fata lity investigation work and what I know
by reading reports from other areas about what ' s
happened in other areas that have created fatalities.
You take like this cable right here for example,
if I might speak of that. Whenever that
whenever material is placed over the top of that

cable, you don ' t -- in the first place, you
don ' t know whether there ' s been a splice made
in that cable. One of the witnesses got up here
and he talked about how strong this cable is
and I'm sure it is strong. But unfortunately
when it's put into operation things happen to it
that cause people to have to make splices in it .
It's been our experience in the past that people
will not always put these shielding wires back
over the top of the splice. They will not always
connect the ground wires where they make the splice.
And eventually the grounding system comes open .
We have no way of knowing what ' s --what's inside
or underneath the material that's used to cover
the cable.
JUDGE KOUTRAS: Well, let me ask you this. Let's
assume, for example, that an operator installs
twenty- five hundred foot of trailing cable to a
dragline and he just uncrated .
THE WITNESS:

Uh- huh.

JUDGE KOUTRAS :
in it .
THE WITNESS:

And it has absolutely no splices
Uh-huh .

JUDGE KOUTRAS: And an end loader runs over it and
you see the tracks. Are you telling me that based
on your experience that you ' re going to mark that
citation S and S?
THE WITNESS :

Yes, sir , I think I would.

Yes.

JUDGE KOUTRAS: On
and how would you support
the S and S finding? On what evidence or what
thinking would you -THE WITNESS: The ·; fact that we know that even thoug h
we have circuit breakers that protect the systems,
based on the testing that we ' ve done we do know
that breakers fail, number one. We have a lot
_of other protective features, like ground monitors .
. And we find these cut out quite a bit to where
they ' re not actually monitoring - - what the ground
monitor is used for is to monitor the continuity
of the ground conductors in the cables, okay. And
we find these cut out to the point where they're
not per;forming their ;function.

'77

JUDGE KOUTRAS: Now on the facts of this case
now there's no evidence that this cable had
any splices in it that was ever examined. As
a matter of fact, after it was run over, it
was tested and found to be absolutely in good
working order.
THE WITNESS:

Uh-huh.

JUDGE KOUTRAS: And also in the -- with regard
to four other citations issued by other inspectors
citing the very same condition, they didn't mark
those S and S.
THE WITNESS: Uh-huh. Well , Judge, I also have
to go by the MSHA guidelines, you know, on how
we determine S and S. And if it's reasonably
likely that if the condition goes uncorrected, and
to me it is reasonably likely that something could
happen , the sequence of occurrences could take
place to result in somebody getting hurt or killed.
JUDGE KOUTRAS: In your experience have you ever
known cable of this kind to cause any injuries
or fatalities in a surface mining operation?
THE WITNESS : Not -- not this particular -- in a
surface mining operation?
JUDGE KOUTRAS:
THE WITNESS:

No, that particular type of cable?
No, sir.

No, sir.

JUDGE KOUTRAS: Then what experience would you
rely on then to find that running over this particular
type cable would be S and S?
THE WITNESS: Well, I can relate to you a fatality
that happened underground. Now whether you'll
accept it or not, I don't know.
JUDGE KOUTRAS:

No.

THE WITNESS: B.ut it resulted -- it resulted in a
. fatality and what had happened the person that was
electrocuted he was in the process of moving in
a large heavy steel compartment. He got the
compartment on top of the cable. Now here's the
sequence of events that I'm talking about. A splice

had been made in that cable. There was no
shielding on top of the splice. Whenever that
box damaged the -- the cable, and it did, in fact ,
damage the cable, the splice -- at the splice ,
it energized the frame of the box and e·lectrocuted
the fellow .
JUDGE KOUTRAS : Well, now what kind of cable was
that? Was it this
THE WITNESS:
JUDGE KOUTRAS:

That was an SHD -Was it this kind?

THE WITNESS:
GC cable.
It was a five KV cable.

It wasn't a 25 KV cable .

JUDGE KOUTRAS : But you introduced three or four
other things into your - - not your hypothetical ,
into the incident of the fellow getting electrocuted
THE WITNESS :

Yes , sir.

JUDGE KOUTRAS:
THE WITNESS:

which was no shielding - Yes, sir .

JUDGE KOUTRAS:
it had been spliced and it had
been broken and it. had been damaged.
THE WITNESS:

Yes.

JUDGE KOUTRAS: Now how can you take those three
or four factors and equate that to a 25 -- brand
new KV cable that ' s been run over once and say
that based on your experience with the other thing
that this is going to be -- that this is S and S?
THE WITNESS: Well, there again , if we look at it
from our written guidelines concerning how we
determine S and S, and if that condition goes
uncorrected , if we leave that situation where we
permit that act or that running over the cable with
the equipment from now on, then I would say that
these other conditions could take place.
JUDGE KOUTRAS : Do you know whether MSHA has any
·thoughts about amending the standard to specifically
your policy seems to be if you run over a cable
that's a violation of the standard?

THE WITNESS:

Uh-huh, yes.

JUDGE KOUTRAS:

On what theory?

THE WITNESS: The fact that the cable's not
adequately protected.
(Pause.}
THE WITNESS: To answer your question about do
I think that we will eventually revise that, I
happen to be a part of the rewrite committee
right now that is rewriting the Part 75 regulation.
It's my understanding that shortly after this
we'll start on the 77, Part 77, and just based
on what I've heard today, there's no ques~ion
about it. We're going to have to rewrite that
standard.
With regard to the contactor box citation, Mr. Collier
stated that in the event the insulation wears off of an
energized conductor and a ground or high resistance fault
occurs in the system, and the bare wire comes in contactor
with the frame of the box, a short circuit would result,
and if anyone touched the box, he becomes part of the circuit
and could be electrocuted (Tr. 242). However, he conceded
that four other occurrences would have to take place before
any electrocution hazard would be present, and he explained
what they were (Tr. 242-244). He explained further as follows
(Tr. 244-246) :
JUDGE KOUTRAS: Do you think that Mr. Hinckle
decided this was S and S based on all these
other things that possibly could have happened
here or do you think he just was of the view
that since it wasn't on a proper fitting that even
though-- that it's a citation plus it was Sand
s because -THE WITNESS:
I don't -- I really don't think I
can answer that.
JUDGE KOUTRAS:
the box.
THE WITNESS:

Well, you saw the photographs of
Yes.

JUDGE KOUTRAS: When would these other things
come into play? Do you know what -- what's in
this-- what's in this circuit besides that one
box?

·ao

THE WITNESS: No, I don ' t know other than
the fact that we have a circuit that comes
from transformers -JUDGE KOUTRAS:

All right .

THE WITNESS: -- through the shop area and
into this box. We ' ve got several parts of
the circuit that -- circuit that is exposed
there . And there again you cou~d have wiring
in conduit .
I don ' t know . I didn ' t see it .
JUDGE KOUTRAS:

What would

THE WITNESS : But if you -- if you do have
wiring in conduit then these are places where
faults can occur and set up this second ground
condition that I'm talking about .
JUDGE KOUTRAS: Well, would -- do you think
that you'd have to go into that and see whether
that was, in fact , present before you can come
to the conclusion that you -- that it would be
S and S because an electrocution would be
possible?
THE WITNESS: It would support your case but
the fact -- there again, the fact that it has
happened before. We see so many things that
have happened over the years in mining to cause
people to · get electrocuted .
JUDGE KOUTRAS:

What about in this - -

THE WITNESS :

These bear on our minds.

JUDGE KOUTRAS: ·w hat about in this case just on -if all you had was that one box there and· nothing
else was p~esent in that particular circuit - THE WITNESS:

Uh-huh.

JUDGE KOUTRAS:
- - that could cause an additional
fault that would escalate or elevate this to the
hazardous condition that you feel could result?
THE WJTNESS: Uh- huh.
If -- if that bare - - if
that insulated conductor became bare and contacted
the frame of the box , and the other things were
not there, there would be no hazard .
JUDGE KOUTRAS: And is it possible that that -that those other possibil~ties were not present
when this citation was issued?

81

THE WITNESS:

Yes.

JUDGE KOUTRAS: And if that was the case,
would you still mark it S and S?
THE WITNESS: Yes, I would. I would still
mark it S and S based on what I know can happen.
JUDGE KOUTRAS: But if the things that you
know can happen weren't present in this
hypothetical, why would this particular one be
S and S?
THE WITNESS: We l l, there again, if I let
that condition just sit the way it is from
now on -JUDGE KOUTRAS:

Uh-huh.

THE WITNESS : -- I'm going to assume that these
other things can take place.
JUDGE KOUTRAS: ·Well, how can they if you haven't
added anything to the circuit?
THE WITNESS : Well , sir , I mean circuitry can
break down just through aging .
~indings

and Conclusions

Fact of Violations
Citation Nos. 2324823 and 2324824
The parties are in agreement that the inspector did not
personally observe any mobile equipment running over the
cited dragline and water pump trailing cables. The only
evidence available to the inspector during his inspection
were the visible tire tracks over the cables in at least
two locations, and the concession by the respondent's
representative who was with him that the cables had in fact
been run over (Tr. 29, 38, 62). At the hearing, respondent's
counsel produced several photographs taken shortly after
the citations were issued depicting the tire tracks on or
over the cables, and he conceded that the cables had been
run over (exhibits R-7 through R-11; Tr. 40-41). Although
counsel agreed that running over cables is not a good practice,
he maintained that assuming that the violations are sustained,
the inspector's "significant and substantial'' (S&S) findings
are not supportable (Tr. 39, 41).

82

Mandatory safety standard 30 C.F.R. § 77.604, provides
as follows:
Trailing cables shall be adequately
protected to prevent damage by mobile
equipment.
MSHA's policy interpretation concerning section 77.604,
is set forth at page III-241, March 9, 1978, MSHA Surface
Manual (exhibit P-14), as follows:
Trailing cables shall be placed away
from roadways and haulageways where
they will not be run over or damaged
by mobile equipment . Where trailing
cables must cross roadways and haulageways
they shall be protected from damage by:
1.

Suspension over the roadway or

haulagewa y~

2.
Installation under a substant-ial bridge
capable of supporting the weight of the mobile
equipment using the roadway or haulageway ; or
3.

An equivalent form of protection .

When mobile equipment is observed running over . unprotected
trailing cables a violation of section 77.604 exists.
In addition to the policy interpretation, MSHA's counsel
produced a copy o;f a January 7, 1 -9 77, district manager's
memorandum addressed to all District 8 inspection personnel,
informing them that where trailing cables cross roadways
·traveled by equipment, the cable must be protected by suspensionp
substantially constructed crossovers, or by burial in trenches
dug across the roadway (exhibit P-4). This memorandum does
not advise that running over an unprotected cable constitutes
a violation of section 77.604.
MSHA's policy guidelines concerning the application of
section 77.604, specifically refers to trailing cables located
at roadways and haulageways. Since the two cited cables in
question were not located at designated roadways or haulageways,
the application of these policies in this case is questionable .
In any event, I find the inspector's reliance on these policies
in support of the citations to be contradictory.
In both
instances, even though the guidelines relied on by the inspector

.83

requires that trailing cables be suspended, bridged, buried,
or be provided with "an equivalent form of protection,"
he did not require that any of these protective measures
be implemented as a condition. precedent to the abatement of
the citations. Once the cables were inspected and found
to have sustained no damage by being run over, the inspector
allowed them to be immediately put back into service (Tr. 47-48;
56-57; 65). He explained his interpretation and application
of the guidelines as follows (Tr. 48-50}:
JUDGE KOUTRAS: Why wasn't it -- why wasn't
the operator in this case required to suspend
it in the air, substantially construct a crossover or bury it in a trench to comply with the
'77 guidelines?
THE WITNESS: Well, I don't think that would -I d on't think I -- I don't believe I have the
authority to require this, particularly after ,
you know , they already know about it . They
JUDGE KOUTRAS: Do you mean to tell me that the
inspector goes out there to the Captain Mine
today and sees a trailing cable out there that ' s
e nergized, and it's being used , it ' s not
adequately protected , that he can't issue a
citation unless he has some evidence that something
has rolled over it?
THE WITNESS: That's our
from our manual, sir.

that's our guidelines

JUDGE KOUTRAS: Does that· make sense? The standard
says trailing cables shall be adequately protected
to ·prevent damage by mobile equipment, and that's
what it says.
I go out there and I see this
cable and it's not buried, it's not suspended,
nothing's done to it, it's just exposed out there.
There's all these trucks running around, scrapers,
loaders, and there's this cable sitting out there,
energized to a dragline, and it's not adequately
protected. Why does an inspector have to see the
tire marks? Or why does he have to see a piece
of mobile equipment running over it before he·..;
can issue a citation? Would you agree that a
cable out there that doesn't-- that doesn't comply
with the memo is adequately protected?
THE WITNESS:

No, sir.

'84

JUDGE KOUTRAS:
isn't it?

So that's a violation ,

THE WITNESS : Yes, sir, but I believe
that if I issued paper on that -- in
the case we ' re discussing that I would
be right here again because I believe I ' ve
got to have evidence before I can issue a
citation.

*

*

*

JUDGE KOUTRAS:
It shows me the tutility of
this particular standard, quite frankly.
I
mean on its face it says cable should be
adequately protected and Mr . Carmona has
produced a memorandum and guidelines that's
supposed to have set the standards. This is
what's recommended to the industry, to protect
trailing cables of this kind .
THE WITNESS:

Yes, sir.

And , at Tr . 69- 70:
JUDGE KOUTRAS : Let me ask you a question .
Let's assume this operator sees a piece of
mobile equipment running over a cable. And
they stop, they deenergize the cable, and
they check it out and find there's been
absolutely no damage done to it, okay?
THE WITNESS:
JUDGE KOUTRAS:

Yes, sir.
Is tbat a vi.olation?

THE WITNESS : If I seen the mobile equipment
on the cable, yes , sir , I would have to cite it.
JUDGE KOUTRAS: What ~~ the operator says to
you, "By the way, Mr. Inspector, this morning
before you got here a piece of mobile equipment
ran over this cable, that ' s why you see the
tire tracks . Before you do anything now,
Mr. Inspector, we want.you to know· that we-we de-energized that machinery, we pulled that
cable out and we checked it . There was absolutely
no damage to it." You ' d say, "Aha, but I see the
tire track$ and therefore I'm <JOing to give you
a citation?"

:85

THE WI TNESS: I don ' t believe I'd be
right if I cited that -- the conditions
which you described , no, sir.
I would have
to accept the operator ' s good faith word that
we know that this happened and we run the test
that you would require if you had observed
it.
I think I would accept that - - I would
have to in all fairness to the operator and
my oath.
Exhibits P- 7 through P- 10, are copies of four prior
citations issued by two MSHA inspectors assigned to the
same district office as Inspector Hinckle, for violations of
section 77.604 , because of mobile equipment running over
cables . In each instance , the inspectors found that the
violations were not "significant and substantial."
In two of the prior citations, (exhibits P.- 9 and P-10 ) Q
the inspector abated the conditions after physical and
electrical examinations indicated that the cables sustained
no damage, and he did not require that the cables be suspended ,
buried, bridged , or otherwise protected.
In one of the prior citations (exhibit P- 7) , the inspector 9
in describing the condition or practice on the f ace of the
citation , indicated that the cited cable should have been
trenched and covered with soft material to prevent damage .
However, he abated the citation after examining the cable
and finding no damage, and he did not require any trenching.
This same inspector required trenching for the final citation
(exhibit P- 8), before abating it .
Inspector Hinckle and district engineer Collier both
expressed some reservations and difficulty in applying MSHA's
trailing cable policy guidelines in this case . Mr. Collier
was not with the inspector during the inspection, and did
not observe the cited cables . He alluded to a committee
which will soon begin work on revising some of the standards
found in Part 77 , and he observed that 11 We ' re going to have
to rewrite that standard 11 (Tr. 237).
Inspector Hinckl~ did not determine the precise type of
equipment which ran over the cables in question, but he
believed that it may have been a "payloader . 11 He apparently
did not speak to any equipment operators to determine all
of the circumstances , or the frequency of any such incidents.
Upon inspection of the cables, he found no signs of any
internal or electrical damages, and there is no evidence that
the cables were spliced , cut , worn, or otherwise less than in

proper working order. Further , there is no evidence that the
cable shielding was damaged , and upon examination of similar
sample cables produced by the respondent at the hearing
(exhibits R-12 and R- 14) , they appear to be of substantial
construction .
Mine electrical superintendent Higgerson testified
that the dragline cable is stronger and safer than the minimum
type cables required to be used at the mine , and safety
director Rushing testified that the cable was covered with
dirt , rock, and fire clay to protect it from damage by rocks
falling out of the dragline boom bucket as it swings over
the cable, rather than. ·by equipment running over it.
Mr. Rushing's testimony has not been rebutted by the
petitioner, and Mr . Collier's suggestion that the ope~ator s
who drove over the cables in question were using a "roadway 11
simply because they decided to cross at that those locations
is rejected as speculative and unsupported. Although an
MSHA district policy memorandum dated January 7 , 1977,
(exhibit P - 4), concludes that protecting cables crossing
roadways by covering them with dirt or coal to allow equipment
to pass over them is not a suitable means of cable protection,
it is not too clear whether Inspector Hinckle relied on this
policy in citing the dragline cable , or whether he relied on
the inspector's manual policy directive prohibiting equipment
from simply running over a cable.
In any event , it does
seem clear that Mr . Hinckle believed · that a vio l ation occurred
in both instances simply because he had some evidentiary
support for the conclusion that the cables had been run over .
The testimony of Mr. Hansen, an electrical engineer
who was personally and extensively involved in the deveiliopement
and testing of the cables for the manufacturer, including
extensive laboratory and field test, establishes that the
cables in question are of substantial construction, are
designed to withstand damages from being run over by equipment,
and are provided with grounding and shielding devices to
preclude shock and fault hazards. Mr. Hansen ' s ·testimony
is corroborated by the testimony of Dr . Brown, a professor
of electrical engineering who has over 20 years of university
teaching experience . Dr . Brown testified that based on his
knowledge of the facts concerning the cable citations ,
including a site visit where he viewed both cables, he did
not believe that any hazards were presented .
Conceding that
a heavy piece of equipment such as a " D 9 Cat " running over
a cable " a few times" would result in some cable failure,
Dr . Brown was of the opinion that the inherent safety features
of the cables would deenergize the equipment, and provide
adequate safeguards against any resulting electrical hazards .

On the facts of this case, I cannot conclude that the
petitioner has established by a preponderance of the evidence
that the respondent failed to adequately protect the cited
trailing cables from damage. Although the evidence establishes
that the cables were run over at least once, that is all
that the petitioner has established. With regard to any cable
damage resulting from an unspecified piece of rubber-tired
equipment running over the cables, · the . evidence establishes
that no damages occurred. Further, respondent's evidence
and testimony establishes that the construction and shielding
of the cables provided more than adequate protection against
any damage from the rubber tired equipment which ran over
them.
I am convinced that Inspector Hinckle issued the citations
because he believed that the mere act of a piece of equipment
running over a trailing cable constituted an ipso facto
violation of section 77.704, as stated in the last sentence
of MSHA's inspector's manual policy directive. Having viewed
Mr. Hinckle during the course of the hearing, I am also
convinced that while he may have some personal difficulty
with the policy, he was simply "doing his duty" by following
the policy directive.
·
I reject MSHA's interpretation and application of section
77.604, in this case.
I find nothing in the standard to supp ort
a conclusion that simpl y running over a trailing cable ,
where is no resulting damage established, constitutes a
violation.
It seems to me that if MSHA's intent is to prohibit
a piece of equipment from running over a trailing cable at
any location at a surface mining operation, it should promulgate
a standard that says precisely that. In short, MSHA should
consider adopting the language found in the last sentence of
its policy manual directive (exhibit P-14), by promulgating
it as a mandatory safety standard.
I .n view of the foregofng findings and conclusions,
Citation Nos. 2324823 and 2324824 ARE VACATED, and the
petitioner's civil penalty :proposals as to these citations
ARE REJECTED AND DISMISSED.
Fact of Violation - Citation No. 2201879
In this instance, the respondent is charged with failing
to comply with mandatory standard section 77.505, which
requires that all cables entering ·electrical compartments
are properly fitted.
The obvious intent of this standard
is to insure that such cables are tight or snug as they enter
the enclosure so as to preclude any strain on the electrical

connections within the enclosure, and to insure against the
cable rubbing against the enclosure frame in such a manner
as to cut or otherwise wear out the cable insulation. The
inspector found that the cable was not equipped with a proper
fitting or bushing, and that the cable conductors and jacket
insulation were in contact with the frame of the enclosure.
The respondent does not dispute the fact that the cable
which entered the enclosure in question was not properly
fitted or bushed to prevent it from contacting the frame of
the disconnect box, nor does it dispute the fact that the
cable had been "pulled" or "backed out" of the box; Its
dispute and disagreement i s with the inspector's "S&S" find i ng .
I conclude and find that the petitioner has established
a violation of section 77.505, by a preponderance of the
evidence . It seems clear to me from the testimony and
evidence presented by the inspector that the cabl e in question
was not properly bushed or fitted as it entered the disconnect
box. According l y, the violation IS SUSTAINED , and the citation
IS AFFIRMED.
With regard to the inspector's "S&S" finding, I cannot
conclude that the petitioner has established through any
credible evidence that the y iolation posed a hazard or any
reasonable likelihood of electrocution .
I find the inspe ctor ' s
testimony i n support of his "S&S" finding to be speculative
and general, and it has been rebutted by the credible testimony
of Dr. Brown.
Petitioner's rebuttal witness Collier was not with the
inspector at the time of the inspection, and he did not
observe the cited condition. Although he stated that he was
familiar with the conditions, it seems obvious that any
knowledge on his part came from reading the citation form
and possibly speaking with Inspector Hinckle in preparation
for the hearing. When asked whether he knew what was in the
contactor box in terms of any electrical circuits, he responded
"No, I don't know other than the fact that we have a circuit
that comes from transformers 11 (Tr. 244).
In response to certain questions concerning his opinion
as to whether or not the cited condition constitutes a
significant and substantial violation , Mr. Collier responded
that in the event the energized wire conductor insulation
wears off, a cha~n of four subsequent events would have to
occur before there would be any electrocution hazard. He
described these events as (1) a ground or high resistance

fault to the system; (2) the bare uninsulated wire coming
in contact with the frame of the contactor box; {3) a
resulting short circuit; and (4) someone touching the box
would become part of the circuit and could be electrocuted
(Tr. 242) .
Mr. Collier conceded that it was possible that none
of the four conditions he described were presented at the
time the citation was issued. However, assuming that they
were not,. he indicated that he would still have found an
"S&S" violation because he had to assume that events can
take place and that electrical circuitry can break down
through aging.
In view o f the foregoing findings and conclusions, th2
inspector's "S&S" finding is REJECTED and VACATED . The
citation is affirmed as a section 104(a), non-"S&S" violat i o n.
Negligence
I conclude and find that the violation which has been
sustained resulted from the respondent's failure to exercise
reasonable care, and that this amounts to ordinary negligence .
Gravity
Although I have concluded that the violation is not "S&S ,"
I find that it was serious. Failure to insure that the cable
entered the electrical box in question through a proper or
snug fitting or bushing could in time lead to abrasions and
wear on the cable.
Good Faith Compliance
The record sup~orts a finding that the violation was
timely abated by the respondent, and that it exercised good
faith compliance.
Size of Business and Effect of Civil Penalty on the Respondent's
Ability to Continue in Business.
Ba~ed on the stipulated coal· production for the mine
and the respondent as a whole, I conclude and find that the
respondent is a large mine operator.
I also conclude that
the penalty assessed by me for the violation in question will
not adversely affect the respondent's ability to c ontinue
in business.

History of Prior Violations.
Exhibit P-6 is a computer print-out of the mine compliance
record for the period September 28, 1981 through September 27 ,
1983. The parties agree that during this time period , the

respondent paid a total of $6,210 for 49 assessed violations.
I take note of the fact that 25 of these prior violations
were $20 "single penalty" violations. Under the circumstances,
I cannot conclude that for an operation of its size, that·
the respondent has a poor compliance record warranting any
additional increase in the civil penalty assessed by me
for the violation which has been affirmed.
Penalty Assessment
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llO(i)
of the Act, I conclude that a civil penalty in the amount
of $150 is appropriate and reasonable for the section 104(a)
Citation No. 2201879, September 28, 1983 , 30 C.P.R . § 77 . 505 .
ORDER
The respondent IS ORDERED to pay a civil penalty in the
amount of $150 for the violation in question , and payment i s
to be made to MSHA within thirty (30) days of the date of
this decision and order. Upon receipt of payment, this case
is dismissed.

Vd
/) l~
~/~~~~1ts

?·.Mmi.~strative Law Judge

Distribution:
Miguel J. Carmona, Esq., U.S. Department of Labor, Office
of the Solicitor, 230 South Dearborn St., 8th Floor, Chicago,
IL 60604 (Certified Mail)
Brent L. Motchan, Esq., Arch of Illinois, Inc., 200 North
Broadway, St. Louis, MO 63102 (Certified Mail)

slk

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 83-31-M
A.C. No . 39- 00055 - 05508

v.

Homestake Mine

HOMESTAKE MINING COMPANY,
Respondent
DECISION
Appearances:

Eliehue C . Brunson, Esq., Office of the Solicitor ,
U.S. Department of Labor, Kansas City, Missouri,
for Petitioner;
Robert A. Amundson, Esq ., Amundson & Fuller , Lead ,
South Dakota ,
for Respondent .

Before :

Judge Morris

The Secretary of Labor , on behalf of the Mine Safety and
Health Administration, charges respondent with violating two
safety regulations promulgated under the Federal Mine Safety and
Health Act , 30 U. S . C. § 801 et seq .
After notice to the parties, a hearing on the merits commenced
on October 30, 1984 in Rapid City, South Dakota .
Prior to the conclusion of the hearing the parties reached
an amicable settlement.
The citations, the standards allegedly violated, the initial
assessments, and the proposed dispositions are as follows:
Citation No.

30 C . F.R. Section
Violated

Assessed
Penalty

Disposition

2097208
2097774

57.12 - 30
57.4-9

$20.00
20.00

$20.00
20.00

The proposed disposition as to Citation 2097208 is in order
and it should be approved.
Concerning Citation 2097774 , the parties advised the judge
that the evidence established a violation of 30 C.F.R. § 57.4-9,

'92

instead of 30 C.F.R . § 57.4 - 1 . The citation was amended.
Fed. R. Civ. P. 15(a) . Respondent thereupon moved to withdraw
its notice of contest and to pay the proposed penalty . Pursuant
to Commission Rule 11 , 29 C.F . R. § 2700 . 11, the motion was
granted.
Accordingly, I enter the following:
ORDER
1.

The settlement agreement is approved.

2. The following citations and proposed penalties are
AFFIRMED:
Citation No.

Penalty

2097208
2097774

$20.00
20.00

~~
~nJ.
~s
tfl~~~ini~~f~e
Law Judge

Distribution:
Eliehue C. Brunson, Esq., Office of the Solicitor, u.s. Department
of Labor, 911 Walnut Street, Room 2106, Kansas City, Missouri 64106
(Certified Mail)
Robert A. Amundson , Esq . , Amundson & Fuller, 215 West Main, Lead ,
South Dakota 57754 (Certified Mail)

/ot

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINIS''rRATIVE LAW JUDGES
2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
SAMUEL E. GRIFFITH,
Complainant

v.

BOWMAN COAL COMPANY , INC .v
Respondent

DISCRIMINATION PROCEEDING
Docket No. VA 84-25-D
MSHA Case No . NORT CD-84-3
z

No o 2 Mine

0
0

DECISION
Appearances :

Mary K. Spencer , Esq . u Office of the
Solicitor , u. s. Department of Labor ,
Arlington , Virginia , for Complainan t~
. Keary R. Williams, Esq., Williams & Gibson 0
Grundy, Virginia, for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
Complainant Griffith contends that he was discharged
from his job as belt man and scoop operator on February 21,
1984, because of his refusal to operate mining equipment,
which . he considered to be unsafe. An Order of Temporary
Reinstatement was issued on ~pril 26, 1985, but Complainant
declined to return to Respondent's employ. He is seeking
back wages from February 22, 1984 to April 26, 1984, with
interest. The Secretary also seeks a civil penalty for the
alleged violation of section ~05(c) of the Act.
Respondent contends that Griffith was not discharged,
but voluntarily quit and that the equipment he was
operating was not unsafe .
Pursuant to notice, the case was heard in Abingdon,
Virginia, on November 29, 1984. Samuel E. Griffith,
Michael Reed Moran and Rufus Earl Barton testified on
behalf of Complainant. Roby Bowman, Casby Bowman and Tony
Viers testified on behalf of Respondent. Both parties have
filed posthearing briefs.

Based on the entire record and considering the contentions of the parties, I make the following decision.
FINDINGS OF FACT
1. On February 21, 1984, and prior thereto, Respondent
was the owner and operator of an underground coal mine in
Buchanan County, Virginia , known as the No . 2 Mine. The
mine produced goods which entered interstate commerce and
its operations affected interstate commerce.
2 . On February 21, 19~4, Complainant Samuel E.
Gri.ffith was employed by Respondent at the No.• 2 Mine and
was a miner.
3. Complainant was hired as a belt man and machine
operator by Respondent on February 20 , 1984.
4. Complainant had previously worked in about 1974
for Island Creek Coal Company as general inside labor. He
quit because it was too dangerous. He worked about 6 to
8 months for Bishop Coal Company in about 1976 . He quit
because of too many strikes and two few hours of work . He
worked for 1 year and 2 months at Trammel & Cline Coal
Company, beginning in April 1981. He operated a scoop . He
quit for no special reason. Thereafter , he worked for
Carey Coal Company for about 4 months as a roof bolter. He
also operated a scoop. He quit. because a fellow miner was
killed operating a scoop.
5. Respondent is a corporat~on. At the time of the
hearing, it was operating a coal min~ in Kentucky . The
subject mine was operated for about 9 months until July 25,
1984. It was shut down because "[ we] just couldn ' t maka
itr rejects."
(Tr . 75). It was the practice at the
subject mine if equipment was not operating for even a
short time to lay off the affected miners.
6. Although Complainant was hired and began working
as a belt man, Respondent's President , Roby Bo~nan ,
intended that he take over operating a scoop . Complainant
told Bowman that he could operate a scoop and had approxi mately 7 years experience as a scoop operator.
7 . The Kersey scoop operator before Complainant ,
Rufus Barton, was experiencing difficulty in shearing axle
studs and in knocking out the lights on the scoop . For
these reasons, Bowman wanted " to make a change and see if I
could get better service out of my scoop."
(Tr. 78) .

8. Complainant worked the entire shift on February
20, 1984, as a belt man. The following day after working 2
or 3 ho~rs on the belt, he was asked to come to the face
area to run a scoop . Belt men were paid $40 per shift.
Scoop operators were paid $50 per shift.
9. Complainant drove the scoop on a short test run in
Bowman ' s presence. Then Bowman left and Complainant
commenced operating the scoop.
10. Complainant had problems getting the scoop to
run: "It was cutting off and on. And I had to kick the
gas.. feed to get the thing to go and back up. . And the other
scoop man was making four or five trips to my one."
(Tr . l3).
11. Complainant also had difficulty with the brakes
and steering.
12. Because of these difficulties, Complainant parked
the scoop and told the section boss Michael Moran that "I
parked the scoop because I couldn vt run it , and the thing
was just too raggedy to run ; that I wasn't going to run it
• • • • " (Tr. 15). Moran stated that Complainant told him
"that he couldn ' t run it; that he wasn't going to run it;
it was unsafe." (Tr . 57).
13. Moran called Bowman who told him to send
Complainant outside . Complainant waited outside until the
end of the shift. He asked Casby Bowman (part owner of
Respol)dent and :brother of Roby Bo.wrnan) whether he was fired
and Casby said he would have to talk to Roby.
14. When Moran came out at the end of the shift,
Complainant asked whether he was fired and Moran said he
did not know . Complainant told Moran to ask Roby Bowman
and if he was fired , to return his miner ' s papers . Moran
asked Roby if Complainant was fired and Roby handed him
Complainant's papers without replying to the question.
Complainant said "I guess this means I ' m fired." Moran
replied "I guess so ." (Tr . 19).
15. Complainant left the job site and went to the
local MSHA office where he filed his complaint .
16. The following day, February 22 , 1984 , an MSHA
inspector inspected the mine . He issued a citation for

96

insufficient illumination in the No. 2 entry, an inoperative methane monitor on the S & S Scoop (Complainant operated the other scoop- a Kersey _scoop), permissibility
violati9ns on the S & S Scoop , an inoperative de-energizing
device on the S & S scoop, and several defective splices in
the cutting machine trailing cable. No citations were
issued on the Kersey Scoop . There is· no evidence, however,
to indicate whether the Kersey scoop was inspected. The
evidence indicates that it was operated on February 22.
The MSHA inspector was not called as a witness in this
proceeding.
·
17. The Kersey scoop in question had the following
saf·e ty defects at the time Complainant was op.e rating it :
The brakes were inadequate and leaked fluid; the steering
was dangerously loose; some or all of the lights were out .
18. Complainant declined to continue operating the
scoop on February 21, 1984 , in part because of his f rustr a tion resulting from his inability to kee p up with the other
scoop operator. Th is was largely caused by the problems
with the ignition and accelerator. His refusal to continue
working was also related in part to what he perceived was
the unsafe condition of the scoop .

19. Complainant has sought work at other coa l companies and mobile home companies after leaving Respondent's
employ.
He was hired by a mobile home company in
Richlands, Virginia , on April 26, 1984.
20.

On application of the Secretary, the Commission
Respondent to reinstate Cpmplainant. The order was
issued April 26, 1984. Complainant .d eclined to accept
reinstatement because he had accepted the new job with the
mobile home company. Respondent by a clerical error paid
Complainant for 8 hours worked on February 22, 1984,
although he did not work on that day .
order~d

ISSUES
1. Was Complainant Griffith discharged (actually or
constructively), or did he quit his employment with
Respondent?
2.
If Complainant was discharged , was it for activity
protected under the Mine Safety Act?
3. If he was discharged for protected activity, to
what relief is he entitled?

'.97

4.
If he was discharged in violation of section
105(c) of the ·Act, what is the appropriate p~nalty?
CONCLUSIONS OF LAW
1. Complainant Griffith was a miner as that term is
used in section 105 (c) of the Act. Complainan·t and
Respondent are subject to the Act, and I have jurisdiction
over the parties and subject matter of this proceeding .
2. Respondent discharged Complainant on February 21 ,
1984, from the position he ~ e ld as beltman - machine operatcrr· with Respondent. At the time of his dis.charge he was
working as a scoop operator and ·was paid $50 p er da y ~
DISCUSSION
Respondent contends that Complainant was not discharged
but voluntarily quit. The records shows a strange reluctance on the part of Complainant and the Bowmans t o communicate with each other as to Complainant 's status after
leaving the sceop .
I conclude , however v that ( 1 } Comp l a in ant refused to continue operating the scoop ( Find i ng o f Fact
No. 12) and (2) Respondent discharged him because of this
refusal (Finding of Fact No . 14).
3. Complainant's refusal to continue operating the
scoop was activity protected under the Act. Refusal to
work is protected activity if it results from a reasonable,
good faith belief that continuing to work would be hazardous. . Pasula v .: Consolidation Coal Company, 2 FMSHRC 2786
( 1980) ·, rev' d on other grounds, Conl:\olidation Coal Company
v. Marshall, 663 F.2d 1211 (3rd Cir. 1981). Robinette v.
United Castle Coal Company, 3 FMSHRC 803 (1981), and that
belief is communicated to the mine operator. Dunmire and
Estle v. Northern Coal Company, 4 FMSHRC 126 (1982).
I
conclude that Complainant believed in good faith that continued operation of the scoop would have been hazardous.
In view of the safety defects present on the scoop, this
belief was a reasonable one. Complainant communicated this
belief to his supervisor, Mick Moran; whether it was co~nun
icated to the Bowmans is not so clear, but is unnecessary
to my conclusion.
4. Therefore, I conclude that the discharge of
Complainant on February 21, 1984, was the result of activities protected under the Act.
It was therefore in violation
of section 105(c) of the Act.

RELIEF
Co~plainant is entitled to back wages from February
23, 1984 (he was paid for February 22) through April 25,
1984, together with interest thereon in accordance with the
Commission approved formula set out in Secretary/ Bailey v .
Arkansas-Carbona Company and Michael Walker, 5 FMSHRC 2042
(1983). Complainant shall submit a statement on or before
February 15, 1984, of the amount due hereunder , to the date
of this decision. Respondent shall ~ave 10 days f rom t he
date the statement is submitted to reply o ·

CIVIL PENALTY
Respondent i s a small operator and the subject mine
has been closed. I t does not have a serious h i story of
prior violations . The violation found herein i s ser i ous ,
however. Based on the criteria in section llO(i) of the
Act, I conclude that a civil penalty of $100 is
appropriate.
ORDER
1. Respondent IS ORDERED to pay Complainant back
wages at the rate of $50 per day from February 23, 1984
through April 25, 1984, with interest thereon, as set out
above. This order is not final until the exact amount is
determined and ordered paid hereafter.
2. Respondent is ORDERED to pay the sum of $100 as a
civi1 _pena1ty f .o r the violation o.f section 105(c ) of the
Act found herein to have been commi~ted.
/Jtf.4,1;._c:f5·

k rJ:.vJ/r--(~ k

~ . James A. Broderick
v·

Administrative Law Judge

Distribution:
Mary K. Spencer, Esq., Office of the Solicitor, u.s.
Department of Labor, 4015 Wilson Boulevard, Room 1237A,
Arlington, VA 22203 (Certified Mail)
Keary R. Williams, Esq., Williams & Gibson, P.O. Box 849,
Grundy, VA 24614 (Certified Mail>
/fb

tOO

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

THOMAS F . -MURPHY ,
Complainant
v.
CONSOLIDATION COAL COMPANY,
Respondent

22041

JAN 15 i98S.

COMPLAINT OF DISCRIMINATION
Docket No. PENN ~3 - 150-D

..

P ITT CD 83-5

ORDER APPROVING SETTLEMENT
Befor:e:

Judge Kennedy ··

This matte r is before me on t he par t ies 1 stipu l at i on
and motion to approve settlement. Counsel advises that
companion proceedings pending before the Departments o f
Labor and Interior have or will be dismissed o n the ba si s of
the same stipulation .
Based o n an indepe ndent e va luation and d e novo r eview
of the circumstances, I f ind the settlement proposed is in
the interest of complainant and in accord with the purposes
and policy of the Mlne Health and Safety Act.
Accordingly, it is ORDERED the settlement proposed be ,
and hereby is , APPROVED. It is FURTHER ORDERED that the
monies due complainant be paid FORTH TH and that subject
to payment and the filing of the p ~ es • settlement sheet
the captioned matter be , and here
·s , DISMISSED with
prejudice .

Joseph
Kennedy
Administrative Law
t4r . Thomas F . Murphy , 2311 Firethorn Rd. , Bridgevil l e, PA
15017
(Certified Mail)
Robert P . Ging , Jr. , Esq ., Counsel for Complainant , 430
Boulevard of the Allies, Pittsburgh , PA 15219
(Ce rtified Mail)
DanielL. Strickler, Esq. , Conso l idation Coal Company , Consol
Plaza, Pittsburgh , PA 15241
(Certified Mail)
/ejp

101

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

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

JA·H15 1985

CIVIL PENALTY PROCEEDINGS
Docket No: VA 84-4
A/0 No : 44-04920-03518
No . 3 Mine

v.

H J AND H COAL COMPANY,
Respondent
DECISION
Appearances:

Sheila Cronan, Esq., Office of the
Solicitor , U.S. Department of Labor ,
Arlington , Vi-rginia , for Petitipner 9
John L. Bagwell , Esq . 9 Grundy f Vi rginia D
for Respondent

Before:

Judge Moore

At the outset of the hearing in Bristol, Virginia,
respondent's attorney, Mr. Bagwell, announced that his client
no longer wished to contest the citations and moved to withdraw its contest and have judgement entered for the amount
of penalties that the assessment office had arrived at.
Mr. Bagwell was not accompanied by either respondent or any
witnesses. The government objected on the grounds that
its witness was present and it was ready to proceed and that
I might wish to set higher penalties than those assessed
by the assessment office. I ruled in favor of the government
and allowed the trial to proceed.
The mine . in·. question produces 120,000 tons of coal per
year and employs · 12 miners. A computer printout purportedly
showing the history of violation was introduced and received
as government exhibit G-8. That printout shows a total of
89 violations between October 3, 1981 and October 2, 1983,
but does not show any that have P,een paid. Under the
column headed "last action" various codes are listed and I
have determined the meaning of the codes as follows: D L T R
means that a demand letter was sent; F A L J means that the
matter has been filed with an administrative law judge;
F D S T means that the matter has been filed in the District
Court; D L T 2 means a , second demand letter has been sent
and D L T 3 means that a third demand letter has been sent.
I think it is safe to assume that demand letters would
not be sent and cases would not be filed in the District

102

Court unless the penalties had, by operation of law, become
the final orders of the Commission.
I will therefore count
as past history of violations, all listed citations and
penalties except those which have been forwarded to an
administrative law judge. There were eight such citations
and therefore the total number in the two-year p e riod
was 81 alleged violations. The total number of inspection
days was 102.
Citation No. 2163514 alleging a violation of 30 CFR 75.1722 .
The citation alleges that a scoop used in the mine
"-r,.1as not provided with a guard behind the foot controls to
protect a person ' s foot from contacting the drive shaf t ."
Inspector Coleman testified that the drive shaft was smooth
and contained no bumps or sprockets. The standard provides
for the g uarding of "gears; sprocketsi chainsi drive, head ,
tail, and takeup pulley; flywheels; couplings, shafts ;
saw blades; fan inlets; and similar exposed moving machi ne
parts which may be contacted by persons and which may cause
injury to persons • • • 11 •
I do not know what kind o f shaft
the promulgators of this regulation had in mind, but the
standard does not require that all moving parts be guarded .
A smooth drive shaft such as the one involved in this case ,
(smooth· where it ·could be contacted) is e ntirely d ifferent
f rom the oth e r items referred to in the stand ard .
Al l o f
those other items either involve a pinchpoint or a rough
surface such as blades and cogs. Nevertheless there was
uncontroverted testimony that the driver's foot could come
in contact with the drive shaft and that it could cause injury.
I therefore find that there-was a violation. ['he drive shift
had originally been guarded and the guard had been removed
and not replaced.
I find the failure to replace the guard
was negligence.
I assess a penalty of $30.
Citation No. 2163S15 alleges a violation of Section 75.400
The citation alleges an extensive accumulation of loose
coal four to nine inches in depth along the ribs of eight
entries and adjoining crosscuts. The length of each
accumulation was. 140 feet.
This was not sloughing, but c;oal
that had been mined and not clean~d up. Such an accumulation
could propagate a mine fire and one has only to read the
newspaper to know · how disastrous mine fires can be.
I
find a high degree of hazard and negligence. A penalty
of $1,000 is assessed.
~
Citation No. 2163516 alleges a violation of 30 CFR 75~1720.
One of the owners of the m1ne was 3,000 feet underground
and was not wearing protective footwear.
The extent of
his participation in the mining process on the day in· question
is not clear but he fits the definition of a miner and did

103

not protest when the inspector announced that he was going
to cite him for not wear i ng protective footwear.
It was
negligence to not wear the protective footwear but the
degree of hazard would depend on the type of work being
done. A miner working along the side of a piece of mobile
equipment would have more chance of having his toe run over
than would the driver of the equipment, for example. ·I
will find a moderate degree of hazard and will assess a
penalty of $50.
All violations were abated promptly .
ORDER
Respondent is accordingly ORDERED to pay to MSHA, within 30 days , a civil penalty in the total amount of $1 ,080 .

C).4J"-1; c 7lJ~, ~.

Charles c . Moore:, Jr.
Administrative Law Judge
Distribution :

Sheila Cronan, Esq., Office of the Solicitor, u.s . Department of Labor , 4015 Wilson Boulevard , Arlington, VA 22203
(Certified Mail)
John L . Bagwell , Esq. ,
(Certified Mail)

P.C.

P.O.B. 923 , Grundy , VA 24614

/db

104

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

CIVIL PENALTY PROCEEDING

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

AMHERST COAL COMPANY,
Respondent

Docket No: WEVA 83-127
A/0 No: 46- 01369-03509

..

·~

MacGregor Cleaning Plant

..•

AMHERST COAL COMPANY,
Contestant

·coNTEST PROCEEDINGS
Docket No . WEVA 82- 329-R
Citation No: 908667; 6/l6/8 ~

v.

SECRETARY OF LABOR, et al
Respondent

JAN 151985

.

MacGregor Cleaning Plant

0

DECISION
Appearances:

James B. Crawford , Esq ., Office of the
Solicitor, U. S . Department of ·Labor,
Arlington , Virginia , for the Petitioner,
Robert G. McLusky, Esq . , Jackson, Kelly , Holt
and O'Farrell, Charleston, West Virginia, for
the Respondent

Before:

Judge Moore

On June 9 , 1982 , at approximately 9. 30 P . M. one coal
miner died and another was serious ly injured as the result of a
collision between the six railroad cars the victims were
riding on and nine runaway railroad cars that were traveling
about 60 miles per hour at the time of impact. The six
cars that the victims were dropping were traveling at a
walking speed .
While the only issue directly involved in the case
before me concerns the derail switch located between the
preparation plant where the cars are loaded and the storage
area some 3 , 000 feet downhill where the fatal collision
occurred, in order to describe what happened it is necessary to
discuss events and alleged violations which have already
been settled in other proceedings . In this mine , it is
downhill from the east end of the preparation plant to the
west end and at a somewhat steeper grade (?·:...l/..2%.) from the we st

105

end of the preparation plant to the storage area. Car
dropping is therefore done by gravity. The car dropper gets
on the platform of the railroad car, releases the brakes and
controls the speed of the car until i t gets to the track and
area of that track where it is needed.
In this case car
dropper Tom Gilco got on three coupled railroad cars at the
east end of the preparation plant and loosened the brake.
After rolling a short way, and in accordance with standard
procedure, he tightened the brake .to see if i t would stop
the three cars--it would not. He then got off of the first
car and ran back to the second car and boarded it. The
brake on that car was also ineffective.
Mr. Gilco, realizing that a runaway was beginning ,
jumped from the cars and yelled a warning. The warning was
heard and broadcast over a loud speaker so that everyone in
the preparation plant knew that a collision was imminent .
The three runaway cars crashed into six cars in the loading
area and the collision broke the restraining cable and
started another six cars rolling toward the storage area.
There were now nine runaway cars and they all ran through
the derail switch without being derailed.
The derail switch
is alleged to have been in the open position , a position
that should have derailed the runaway cars .
Instead , they
proceeded on towards the storage area and as stated before
attained a speed of approximately 60 miles per hour before
crashing into the cars that the victims were dropping. The
estimated speed is derived from the fact that a Mr. Goodman
looked at the derail switch position indicator and saw that
it was in the open position which should have derailed the
cars. He then observed the runaway cars going through the
derail switch and he and a Mr. Waugh jumped in a pickup
truck to try to beat the cars to the storage area.
The
pickup truck caught up with the runaways but could not pass
them.
The pickup truck's lights were flashing and its horn
was blowing in an attempted warning to the two victims,
Mr. Butcher and Shawver, but the warning was not heard.
The surviving victim, Mr. Butcher, testified at the hearing
and said that he had heard no warning whatsoever.
As stated earlier the only part of this sequence that
is involved in the instant case concerns the alleged violation
of 30 CFR § 77.1605(p) as far as the derail device is concerned.
The section in question provides:
"positive-acting stop-locks, derail devices
track skates or other adequate means shall
be installed wherever necessary to protect.
persons from runaway or moving railroad
equipment."

106

According to A DICTIONARY OF MINING, MINERAL AND RELATED
TERMS published by the Bureau of Mines, a derail or derailer
is "[a J safety device for derailing mine cars • • . ". The
definition says nothing about a device that will derail or
not derail depending on the way it is set. I interpret this
to mean that the device for derailing must not only be
present "wherever necessary" but must be maintained in a
derail position. By all accounts the device involved here
was in the derail position when the runaway cars passed
through.
On June 4, a group of cars had passed through this
same derail switch and the workers that observed it stated
that the switch was in the derail position . There was
considerable evidence that the derail switch was inadequate
and there was consi derable evidence that it was adequate and
effective . Inspector Davis' theory was that since the track
curves to the left when going in a downhill direction right
at the spot where the derail switch opens at the left rai l ,
that the centrifugal force would ' be rock ing the cars toward
the right rail and the flange of the left wheel might miss
the moveable section of the uerailer and thus not derail the
car. He said the cars would be swaying and presented evidence
that the right rail was thinner than the left rail . For
this to happen however, 36 wheels would have to be in exactly
the right place in order that each one of them escape the
derailer. I do not see how that could happen . The rails
were tested with a jack and it was found that the right rail
would not move. There was also testimony that the moveable
part of the derailer was actuated by an arm which was somewhat
flexible or was loose . Mr. Butcher said that the piece was
loose and Mr. Davis speculated that because of the flexibility
of the arm that actuated the switch the moving part could be
deflected inward either two and one hal f inches or six
inches depending on the flexibility of the actuating arm.
A Department of Transportation team inspected the
switch after the accident (applicant's exhibit No. l). In
its report it is stated on page 9 "notwithstanding sworn
statements to · the contrary, it is 99% improbable that ni~~
coal hoppers passed safely through this derail while it was
in the open or derail position . . . Results of post- accident
inspection of the .derail indicate no probable cause to
suspect that the derail malfunctioned " . 1/. On June 8, the
day before the accident , the for~man noted in the on-shift
report "derai ler needs slack took out" . (Gov. Exh . 6). The
next day , at 1.15 A. M. another foreman, in his pre- shift
examiner ' s report (Gov. Exh . 7) stated "derail switch below
plant was approved by C&O on 6/4/82 , & condition of switch
has not changed. 11 There was other confirming testimony
about the examination by C&O personnel. After the accident
a federal inspector inspected the switch and said there was
nothing wrong with it.
1/ Government Exh~b~t 5 ~s the same report but for
some reason it does not contain the quoted language .

1.07

I have no crystal ball nor the type of training that
would allow me to study the photographs and measurements
between the rails and determine what the experts failed to
determine i.e . whether the nine cars actually · e sc~ed the
derailing device or whether someone inadvertently closed
the switch. All I know is that the cars were not derailed and
as a result one ·man was killed and another seriously injured.
Certainly a derail device was " necessary" between the
preparation plant and the storage area and inasmuch as
the runaway cars were not derailed there did not exist a
type of derail device required by the standard.
If the
switch was closed it was not a derail device and if it
was open it was not effective .
I therefore find a violation
and affirm the citation .
C&O Railroad Company was responsible for the maintenance
of the track itself and this included the t r ack parts of
the derail switch. Respondent was responsible for the switch
motor but there had been no indication of any trouble with
the switch motor .
If the switch was actually set in the
correct position and failed to derail the cars, C&O Railroad
would share in the responsibility for this accident.
Respondent would share because it was on notice that other
cars had gone through the derail o The fact that Amherst knew
about the previous failure of the derail , the f act that Amhers t
employees operated the derail together with the fact that
Amherst employees were the victims of the accident are sufficient
to establish respondent 's partial liability .
The Sec retary can cite the "independent contractor , the
owner or both." Cyprus Industr.!llal Minerals v. FMSHRe., 664
F.2d 1116, 1119 (9th C1r . 1981). Also Harman M1n1ng Corp . v .
FMSHRC, 671 F.2d . 794 (4th Cir. 1981). While the Secretary's
choice is not without limit, the facts of this case are not
similar to those in Secretary of Labor v. Phillips Uranium
eorporation, 4- FMSHRC 549 (April 1982}. ?:./ If the switch was
2/

At page 553 ._
The . shortcomings of the Secretary ' s decision to proceed
against Phillips here are made all the more evident by
viewing the facts · in light of the basic statutory scheme .
Large , skilled contractors were retained for their expertise
in an important and familiar facet of mine construction , i.e.,
the sinking of shafts and related underground construction-activities.
The hiring of contractors to perform the special ized task of shaft construction is common in the mining industry.
The contractors, conceded to be "operators" subject to the
Act, failed to comply with various safety standards. · Yet
Phillips, rather than the contractors , was cited; penalties
were sought against Phillips , rather than the contractors ;

108

inadvertently closed, however, by respondents, C&O would
bear no responsibility. The railroad has paid a penalty of
$2,000. I do not know its history of violations, but the
other criteria would be the same for the railroad and the
company if they were equally negligent.
I find that while the Secretary has established a violation
he has failed to carry the burden of proving that Amherst
was more negligent and thus should be penalized more than the
railroad. I find equal negligence.
I will asses the same
penalty as that assessed against the railroad.

Amherst Coal Company is consequently ORDERED to pay . to
MSHA, within 30 days, a civil penalty in the amount of
$2,000.

~(?JJ?~ ~
Charles C o Moore , Jr .
Administrative Law Judge

Distribution:
James B. Crawford, Esq. , U.S. Department of Labor , 401 5
Wilson Boulevard·;. Arlington , VA 22203 (Certified Mail )
Robert G. McLusky, Esq., Jackson, Kelly, Holt and O'Farrell,
1500 One Valley Square, P.O. Box 553, Charleston, WV 25322
(Certified Mail)

fn. 2 (continued
the violations would be entered into Phillips' history of
violations, rather than the contractors' histories, resulting
in increased penalties for Phillips rather than the contractors
in later cases: Phillips, rather than the contractors could
be subjected to the stringent section 104(d) sequence of
citations and orders; and Phillips rather than the contractors
could be subjected to the stringent section l04(e) pattern of
violation provisions. Compared to Phillips' burden in bearing
the full brunt of the effects of the violations committed by
the contractors, the contractors would proceed to the next jobsite with a clean slate, resulting in a complete short-circuiting
of the Act's provisions for cumulative sanctions should the
contractors again proceed to engage in unsafe practices .

/db

109

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

22041

CONTEST PROCEEDING

KITT ENERGY CORPORATION
Contestant

Docket No . WEVA 83 - 125- R
Order No. 2115977; )/24/83

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

Kitt No. 1 Mine

DECISION ON REMAND
Appearances:

Bronius K. Taoras, Esq . , Kitt Energy Corp .,
Meadow Lands, Pennsylvania, for Contestant;
Howard K. Agran, Esq . , Office of the Solicitor ,
U.S . Department of Labor , Philadelphia ;
Pennsylvania , for Respondent .

Before:

Judge Fauver

On December 3, 1984, the Commission remanded this case
to me "for further consideration and ruling in view of the
arguments raised by the Secretary before the Commission."
The Secretary, in his Petition for Discretionary
Review to the Commission, sought a ruling modifying my
decision so as to convert the original section 104(d) (2)
withdrawal order to a section 104(d) (1) citation instead
of a section 104(a) citation.
For the reasons submitted in the Secretary's Petition ,
I believe the Secretary ' s position is well taken.
I find
that my decision should be amended:
(1) to convert the
original withdrwal order to a section 104(d) (1) citation
and (2) to find that the vioiations cited in the modified
section 104(d) (1) citation were "substantial and significant"
and unwarrantable within the meaning of section 104(d) of
the Act .
ORDER
WHEREFORE IT IS ORDERED that my decision of October 4,
1984, is AMENDED as follows:

110

1. Conclus*on of Law No . 2 is AMENDED , in the last
sentence, to change " section 104(a} citation " to read
" section 104 (d)·.·( l) citation ."
2 . The order in the decision is AMENDED to read as
follows :
"MSHA Order No . 2115977 is MODIFIED
to change it from a section 104(d} (2) order
into a section 104(d) (1) citation, including
a finding that the violations charged were
significant and substantial and unwarrantable.
As so modified, this citation is AFFIRMED in
all respects."

tJdft~
-:r-~Ut v~
William Fauver
Administrative Law Judge
Distribution :
B. K. Taoras , Esq. , Kitt Energy Corporation, P . O. Box 500,
450 Race Track Road , Meadow Lands, PA 15347 (Certified Mail)
Howard K. Agran , Esq. , Office of the Solicitor, u.s .. Department
of Labor, 3535 Market Street, Philadelphia , PA 19104 (Certified
Mail)
· Michael H. Holland, Esq ., United Mine Workers of America, 900
15th Street, N.W., Washington, D.C. 20005 (Certified Mail)

/kg
0

111

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

JAr~ .16 I9BS

CONTEST PROCEEDING

WESTMORELAND COAL COMPANY,
Contestant

Docket No . WEVA 83-141-R
Order No. 2141231

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

Hampton No . 3 Mine

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

CIVIL PENALTY PROCEEDINGS
Docket Nos . WEVA 83-122
WEVA 83-123
WEVA 83-232
A.C . No . 46 - 01283-03505
A. C. No . 46-01283 - 03507
A.C . No. 46 - 01283 - 03 519

v.
WESTMORELAND COAL COMPANY ,
Respondent

Hampton No. 3 Mine
DECISION
Appearances:

Kevin McCormick, Esq ., Office of the Solicitor,
U.S . Department of Labor , Arlington, Virginia,
for Respondent; · .
F. Thomas Rubenstein , Esq., Westmoreland Coal
Company, Big Stone Gap, Virginia , for
Contestant .

Before:

Judge Fauver

Pursuant to section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 u;s .c. § 801, et seq., Westmoreland
Coal Company filed a Notice of Contest seeking review of the
Secretary ' s Order No . 2141231 , which charges a violation of
30 CFR § 75.1722(a) at its Hampton No. 3 Mine on March 1,
1983 . Thereafter, a Petition for Assessment of a Civil
Penalty was filed by the Secretary seeking a civil penalty
for the alleged violation . Those proceedings were consolidated
with two other civil penalty proceedings (Docket Nos. WEVA
83-122, 83 - 123) and were heard at Charleston, West Virginia .

112

Having considered the testimony, exhibits, and the
record a.s a whole, I find that a preponderance of the
substantial, probative, and reliable evidence establishes
the following:
FINDINGS OF FACT
Docket Nos. WEVA 83-232, 83-141-R
1. On March 1, 1983, MSHA Inspector Vaughan Gartin
inspected the 6 Left ·4 West···$ection of Westmo:;-eland' s Hampton
No.' "3 Mine. Gartin observed ·that the belt ta·il ·roller was
not'guarded so as to prevent a person from contacting the
exposed moving parts of the roller. There was a 17-inch,
unguarded area between the belt tail roller and the end of
the belt line. Gartin testified that, although someone
walking past the belt tail roller could come in contact with
the roller or its moving parts, he was more concerned with
the safety of the miners who were required to regularly
grease and clean the equipment. Because of the lack of a
guard on the ta~l roller, it was necessary for the maintenance
man to reach right up to the roller with his grease gun and
attach it to one of the grease fittings on each side of the
roller. If any contact were made with the moving parts of
the roller or belt, a miner could lose an arm, leg, or even
die as a result. If a guard had been in place, a grease
hose could pe used, removing the necessity of coming in such
close contact with the belt tail roller. There was no
grease hose on the belt tail roller when Gartin observed it.
A mine~ cleaning up coal in the unguarded area could accidentally
contact the moving parts of ·the roller or belt with his
shovel. If a guard were in place, i~ would prevent the
worker from having the shovel .. come in contact with . the belt
or the roller.
2. When Gartin inspected the belt tail roller, the
belt was energized and running.
3. Because there was no guard around the belt tail
roller, Inspector Gartin issued a section 104(d) (1) order,
alleging a . violation of 30 CFR § 75.1722(a). He alleged
that the violation was "unwarrantable" because he had recently
issued a citation for a similar condition in another part of the
mine. Upon learning of the earlier citation, David Nelson,
the Mine Superintendant, told Gartin that he knew of one
other unguarded tailpiece, but that condition would be
corrected before Gartin returned to the mine. However, when

113

Gartin returned and inspected the 6 Left 4 West section, the
belt tail roller was unguarded.
4. ·. Gartin also alleged that the condition he observed
on March 1, 1983, was '~significant and substantial." He
testified that there was a reasonable likelihood that an
injury of a serious nature could result because of the
alleged violation.
5. On June 6, 1984, during the hearing, at the request
of the Judge, Inspector Gartin and management personnel.
returned to Hampton Mine No. 3 to take measurements and
phq_tographs of a belt tail i:'-9ller and coal feeder set-up.
Th~ ··measurements and photographs are in evidence·, and show
how . the structures looked on June. 6, 1984. Inspector Gartin
testified that the situation he observed on March 1 , 1983 ,
was significantl y different in two important respects.
First, concerning photograph No. 1, the feeder was 37 inches
from the mine floor on the day Gartin issued the order, but
in the photograph, the feeder was only 23 inches from the
floor.
Second, regarding photographs Nos. 2 and 4, the
feeder appears much closer to the tailpiece than i t was on
the day the order was written. On that day , Gartin measured
approximately 28 inches between the coal feeder and the
tailpiece. The photographs show only an 8-inch space between
those structures. Gartin stated that the feeder is not
normally that close to the tailpiece because the shuttle car
often bumps the feeder when coal is unloaded. None of the
measurements, observations or pbotographs taken on June 6,
1984, caused Gartin to change his opinion as to a violation
and the gravity of the condition he found on March 1, 1983.
6. Another MSHA Inspector, Don.Ellis, testified at the
hearing. He stated that he was present when Gartin and
Nelson were discussing the citation for leaving a belt tail
roller unguarded on 7 Left section, and remembered that
Nelson, the Mine Superintendant, said that he had an additional
tail roller to be guarded. Ellis was also with Gartin when the
subject order was issued. He observed the unguarded belt tail
roller, and stated that a person could easily reach in and
become caught in ·the pinch points of the belt tail roller.
He also stated that the mine floor in the area was damp to
wet. Ellis agreed with Inspector Gartin's opinions as to the
serious nature of injuries that could result from the unguarded
belt tail roller and stated that he was aware of two cases in
which a miner had lost an arm in an accident involving a tail
roller.

114

7. Two of Westmoreland's employees also testified at.
the hearing concerning the belt tail roller charge. Dave
Nelson, the Mine Superintendant, stated that before the
issuanc~ of the citation on February 22, 1983, it was
Westmoreland's practice not to provide any guard on the belt
tail roller when the coal feeder was located in a straight
line position. According to Nelson, the feeder provided a
sufficient guard for the belt tail roller. He did not observe
the belt tail roller on the 'day Inspector Gartin issued the
subject order and he could not state what the conditions were
when Gartin observed the belt tail roller on March 1, 1983 .
Nelson acknowledged that in the past miners ·have cleaned and
gr~ased the belt tail rolle~. while the belt was moving .
8. The other Westmoreland . w.itness, Dennis Dent, an
assistant mine foreman, testified that although he was with
Inspector .Gartin when the order was issued, he did not k now
whether or not the belt tail roller was equipped with a
grease hose. Nor did Dent remember exactly how far the coal
feeder was from the belt tail roller. He did not take any
measurements of this distance, but it was his opinion that
the coal ·feeder provided a sufficient guard fo r the belt
tail roller. H€ recognized that the structure was unguarded
if a miner was greasing the roller o Without a grease hose
in place, Dent explained that to grease the roller, a miner
had to kneel and bend underneath the edge of the feeder; this would
place the miner about 6 to 10 inches from the belt itself.
Dent had seen miners under the feeder structure around the
belt tail roller greasing and shoveling while the belt line
was energized.
9.. On November 17, 1982, MSI:IA Inspector Harold Baisden
conducted a triple A inspection of W~stmoreland's Hampton
Mine No. 3. During his inspection of the 7 Left section
face area, Inspector Baisden observed that there was no lock
screw on the electrical panel cover inspection plate on the
No. 19 .shuttle car. Upon closer examination Baisden found
that· the plate was so loose t~at it could be rotated by
hand. The inspection plate screws into the panel cover on
the shuttle car and is supposed to be held tightly in place
by a lock screw. The lock screw prevents the inspection
plate from rotating loose from the shuttle car.
Behind the
inspection. plate and panel cover are the electrical components
and contact points of the shuttle car. When the controls of
the shuttle are activated, the contact points behind the
inspection plate move, emitting an arc or a spark.
It is
likely that the inspection plate on car No. 19 became loose
either because of improper maintenance or excessive vibration
causing the screw to fall out.

115

10. Hampton Mine No. 3 liberates large quantities of
methane., is considered a "hot " or gassy mine , and is subject
to sectfon 103(i) spot inspections for methane. Baisden
explained that when methane is liberated in the magnitude
found at Hampton No. 3 (between 436,000 to 500 , 000 cubic
feet in 24 hours), there is a high risk of an explosion in
having impermissble openings-' of arcing electrical equipment.
11. Based on his observations of the loose paneL.cover
inspection plate without the required lock ~crew, Baisden
issued a section 104(a) citation alleging a violation of 30
CFR' ·· §- 75.503 . Baisden stat ed that if the inspection . plate
feil off the shuttle car and methane or float coa l dust was
present in the area, the exposed electrical contactors in
the panel would spark and could cause an explosion or fire .
12. Baisden found that the condition was " significant
and substantial." He stated that because of the mine ' s
history of excessive methane liberation and his own personal
observations of shuttle car inspection plates falling off,
it was very likely that an injury would result from this
type of violation.
In the event of a mine explosion or
fire , up to nine miners working in the area could be killed
or serious ly injured .
13. An impermissible level of methane was not detected
during this inspection, but conditions could change quickly,
either because of a sudden change in the mine ' s ventilation
or because of a sudden liberation of methane. Baisden noted
t hat a shuttle qar, because of it~ ability to travel up to
550 feet , was the most likely piece qf mine equipment to
tear down a ventilation curtain. At the time of the inspection
the section was producing coal and the shuttle car was
energized and in active use.
14. About 2 weeks later~ Inspector Baisden returned to
Hampton No. 3 Mine. Upon arriving at the 8 Right section,
Baisden observed that the lock screw was missing on the
electrical panel cover inspection plate of the No . 21 shuttle
car. Baisden's notes indicate that this inspection plate,
as with the one on the No. 19 shuttle car, could be turned
by hand .
Baisden stated that this condition would create
the same type of hazard and possible injuries as the condition
he observed as to No . 19 shuttle car.

l16

15. Baisden also inspected the No. 24 shuttl e car in
the same 8 Right section of the mine . He found that the
headlight on the shuttle car was not tight to frame . One· of
the two bo l ts which attach the headlight to the car was
missing and the remaining bo l t was so l oose "you could turn
it with your fingers." As a result , the headlight could be
moved up and down a quarter to one-half an inch . Also, a
ground wire was not connected to the frame . A loose headlight,
not properly grounded to a shuttle car, could cause an
electrical shock or external sparking. As .a result of· this
condition , Baisden issued a section 104(a) citation alleging
a violation of 30 CFR § 75:5p3(G- 6).
16. According to Inspector·· Baisden, if the one remaining
bolt, which was already loose, carne off, the headlight
assembly would fall and break against the side of the shuttle
car , leaving exposed, hot wires trailing against the car.
Any t ime the wires would hit the shuttle car, there would be
a spark, which coul d ignite any methane or dust in the area.
Because of the amount of methane liberated in this mine,
exposed, sparking electrical wires would present a high risk
of death or ser-ious injury as a result of an explosion , fire
or smoke inhalation .
1 7. Inspector Baisden also found another unsafe condition
on the No. 24 shuttle car. The electrical panel cover on
the shuttle car had an opening in excess of .0005 inch which
he measured by using a feeler gauge. The panel is designed
to be explosion-proof. Because there was an opening greater
than .0005 inch in the panel, methane could seep into the
area w~ere the electrical contactors arc or spark , with a
high risk of a mine explosion. Baisden also found that this
condition, as with the other electrical permissibility
violations alleged in this docket , was "significant and
substantial . "
18. One witness , Robert. Damron, testified on behalf of
Westmoreland. Damron did not travel with Baisden during his
inspections; nor did he see any of the shuttle cars involved
in these proceedings either before or after the citations
were issued. Damron was not in a position to refute any of
the findings or observations made by Inspector Baisden .
Instead, .Damron testified generally as to the conditions of
the mine when the citations were issued , how certain mining
equipment operates and how it would be unlikely that the
conditions observed by Baisden could lead to any serious
accidents.
Because shuttle cars do not have methane monitors ,
an operator could drive into a pocket of methane without

117

prior warning. Damron acknowledged that if a headlight was··
not properly grounded to the frame of a shuttle car, and the
headlight became loose and fell off, arcing and sparking
would be - likely.
Docket No. WEVA 83-123
19. On December 6, 1982,, Inspector Dennis Cook observed
the No. 1 South belt idler roller and take-up. He found
that the mechanical guard which was provided for the belt
idler roller and take-up was partially torn ·down or completely
removed . Although there was evidence that roof bolts had
been.. :welded across the front' ·of the roller; s~veral of the
bolts, which acted as a guard, h~d been knocked off by a
hammer or some other instrument. ·The screening , intended to
guard the tight side of the belt roller , had also been taken
off and placed up against the rib o Inspector Cook believed
that the guards, which were lying three to four feet from
the take-up roller, were removed for . maintenance or cleanup work and never replaced.
20o The b~lt is threaded over and around the i dler
roller u which is between 12 and 16 inches in diameter o
Normally ~ fencing material or wire mesh is placed around t he
belt idler roller and take-up to prevent persons from accidentally
falling into or reaching into the moving belt or roller
"pinch points." A person coming in contact with the pinch
points of the roller could be seyerely injured or killed.
21. Based on his observations that the mechanical
guards on the en.ergized 1 South belt idler roller and takeup had·· been removed on the back arid the side, Inspector Cook
recommended (see Finding 29, below} a section 104(a) citation
alleging a violation of 30 CFR § 75.1722(b}. Cook stated
that normally one employee works around the belt idler
roller, and that this condition could reasonably lead
to a serious injury.
If someone did get a limb caught in
the machinery, that person would be unable to deenergize the
belt. Even if another person, probably in an adjacent entry,
saw or heard the accident, it would take 15 or 20 minutes to
extricate the injured person from the belt idler roller and
transport him to the surface. Based on his opinion of a
reasonable likelihood of an accident and the seriousness of
any resulting injury, Cook alleged that this violation was
"significant and substantial."

118

22 . Cook also alleged that the operator's negligence
in allowing this condition to exist was high. He stated
that the area around the belt idler roller is required to be
inspected each production shift by a certified mine examiner,
and that the absence of a mechanical guard was so obvious
that i t should have been detected during such inspection.
Also, on the day the citation was issued, three or four
miners were working in the area performing clean-up work ,
along with a management representative. Cook believed that
these individuals should have seen the removed guards. -. The
condition was abated by replacing the guards that were lying
against the rib.
· 23.
In his inspection on D~ember 6, 1982, Inspector
Cook also observed float coal dust on top of rock dusted
surfaces around the No. 1 South belt head and at the slope
belt tailpiece. The area around the South belt head area
was 20 feet wide and '80 to 100. feet long . The area,
which is the main discharge point for all the coal that is
produced at the mine, was black with dust. When the coal
comes off the belt conveyor it is dumped into a hopper,
generating float coal dust . Based on his visual observations
of the dust accumulation, Cook estimated that the float coal
dust had been there at least one shift , possibly several
shifts.
24. The area around the slope belt tailpiece was also
described by Inspector Cook . The width of the entry ranged
from 18 to 40 feet, and the height extended from 8 to 18
feet. The dust was. black ; there was no question in Cook's
mind that it wa~ coal . According ._ to Cook, the accumulations
around - the slope belt tailpiece had ~een there at least one
shift, possibly longer. Because both areas cited by Cook
are required to be inspected on a shift basis and a miner is
stationed in close proximity, Cook believed that Westmoreland
knew or should have known about the accumulation of float
coal dust in these areas . Based on his observations of
these conditions Cook recommended a section 104(a) citation
alleging a violation of 30 CFR § 75 . 400 .
25. The float coal dust was accumulated in an area
where several energized power cables, starter boxes and
other electrical components were located. This combination
created a dangerous conditon.

119

26. On the next day, December 7, 1982, Inspector Cook
returned_ to Hampton Mine No. 3. While inspecting the No . 1
South belt starter box, Cook 'opened the doors on the box . and
measured 1/16 of an inch of float coal dust in the starter
box compartment itself and saw some float coal dust on the
contactors in the box. He estimated that it took at least
one week for the ·coal dust to'- accumulate in the starter box.
27. The starter box is 4 feet long, 24 inches wid~ and
24 to 36 inches high. Several energized electrical power
-cables, carrying up to 480 volts, enter the starter box and
energize the belt head. The · box contains switches an_d
relays, which regularly arc and spark when the electrical
cycle is interrupted. Float coal dust was observed on these
components .
28. Sparks emitted by the contactors would be sufficien t
to ignite float coal dust, · causing a violent explosion or
fire. If a fire developed from the ignition, the heat of
the flames could further weaken the already p0or roof in
this area, and possibly cause a roof fall . The presence of
methane would intensify any mine explosion or fire . As
stated above, this mine liberates substantial quantities o f
methane . When Cook observed the condition , the belt starter
box was energized, . the. belt line was .working and there were
at least two employees in the immediate area. An accident
producing serious injuries would be reasonably likely.
Based on all of these factors, Cook recommended a section
104(a) citation alleging a violation of 30 CFR § 75.500.
29. Becau~e of a prior break i~ Cook's service as a
MSHA inspector, and the resulting administrative delays in
processing his personnel papers, Cook did not have his
"authorized representative" card with him at the time of the
actual inspections in these proceedings. As a result, he
did not sign the citations; instead, another inspectqr,
Harold Baisden, signed and confirmed the citations recommended
by Cook.
30 . Two of Westmoreland's employe es testified at the
hearing regarding these citations. Jackie Roberts, a bin
operator, testified generally as to the conditions of the
mine where the citations were issued, and what type of
maintenance is generally required on some of the equipment
in the area. Howeve r, Roberts did not travel with Inspector
Cook during his inspection and could not remember what the
conditions were like in the mine when the citations were
issued. Roberts was not in a position to refute any of the
findings or observations made by Inspector Cook. Roberts
stated that if the area where the citations were issued was
not rock du s ted for two or three days , it would get "awful
black" with coal dust from the dumping point. Roberts also

120

stated that as a result of poor roof conditions in this
area, there have been roof fatalities as recent as a year or
two ago. Roberts stated that one of Westmoreland's employees ,
Ralph Karas, lost an arm while he was working on a belt
line.
31. The other Westmoreland witness on this charge was
Robert Damron. Like with Ja~kie Roberts , Damron did not
have personal knowledge of the conditions cited by inspector
Cook.
Instead , he testified as to general conditions and
practices at the mine which may or may not have occurred or
been followed on December 6., 1982: nor did he have an opportunity
to ..o·bserve the float coal dust accumulations ·.in. the entire
belt slope area described by Inspector Cook.
32. Westmoreland is a large operator. Hampton No. 3
Mine is a large coal mine. In the 24 - month period before
the order and citations at issue, Westmoreland paid $35,751
in civil penalties for 216 violations at Hampton No. 3 Mine.
DISCUSSION WITH FURTHER FINDINGS
Docket Nos. WEVA 83 - 232 and 83 - 141- R
I find that Westmoreland violated 30 CFR § 75.1722(a)
by failing to provide a guard on the tail roller.
The condition
presented a substantial and significant hazard to miners working
around the tail roller. The violation was also unwarrantable
as alleged in Order No . 2141231, in that the operator knew or
should have known of the violative condition before the Federal
inspection.
Under the Act (section llO(i)) six criteria must be
considered in assessing a civil penalty.
In this case, the
parties have stipulated to four of the six criteria, that is,
the size of the operator (large) and the mine (large), whether
the proposed civil penalties will adversely affect the operator's
ability to continue in business (no), whether the conditions
cited were timely abated in good faith (yes), and the operator's
compliance history (216 paid violations amounting to $35,751
at Hampton Mine No . 3) .
The other factors are the gravity and negligence, if
any, involved in the violations.
I find that this violation was serious because of the
risk of serious injury to miners who might have come ·in contact
with the tail roller because of the absence of a guard.
I
also find that the violation was due to negligence of the
operator , because the violation could have been detected and
prevented by the exercise of reasonable care .

121

In considering the statutory criteria for assessing
penalties, I find that an appropriate civil penalty for this
violatfon is $750.
The Secretary's order should be affirmed.
Docket·, No. 83-122
I find that Westmoreland violated 30 CFR § 75.50-3 . as
charged in Citations Nos. 2035981, 2035985, and 2035987 by
failing - to maintain shuttle _cars 19. and 21 in permissible
condition, because the inspection plates were loose . and no t
secured by lock screws, and by ·failing to maintain shuttle
car 24 in permissible condition, because the headlight was
very loose and not properly grounded and there was an impermi ssible
opening in the electrical panel of that car .
These violations presented a serious risk of injury ?
even death, because of hazards of a methane or float coal
dust explosion or fire.
The violations · were due to negligence
of the operator , because they could have been detected and
corrected by the exercise of reasonable care .
In considering the statutory criteria for c i vil penaltie s ~
: find that appropriate civil penalties for these violations
are: Citation No. 2035981 -- $276, Citation No. 2035985 -$329, and Citation No. 2035987·-- $329.
Docket No. WEVA 83-1·23
I find that Westmoreland violated 30 CFR § 75.400 as
charged in Citations Nos. 2035998 an~ 2035999 .
Inspector Cook testified that he observed float coal
dust accumulations around the No. 1 South belt head, the
slope tailpiece and in the energized belt starter box, the
dust he observed was black, and there was no doubt in his
mine that it was float coal dust.
The operator did not offer any persuasive evidence to
refute Cook's observations.
The violations presented a serious risk of inj ury to
miners because of the danger of float coal dust and possible
sources of ignition in the affected areas.
The violations were due to negligence of the operator,
because they could have been prevented by the exercise of
r easonable care.
Considering the criteria for civil penalties, I find
that an appropriate civil penalty for each violation is $294 .

122

I find a violation of 30 CFR § 75.1722{b) as charged in
2035997.
Inspector Cook testified without contradiction
that the guard for the belt idler. roller had been removed
and left on the mine floor.
He estimated that the guard had
been taken off at leas t two, possibly more; production
s hifts earlier.

Citati~n

This violation presented a serious risk of injury and
was due to negligence attributable to the operator . ·
Considering the criteria for civil pena·l ties, I find
th.a t: an appropriate penalty for . this violation ·is $24 1.
At the hearing I approved settlement of Citati on 2140562
by assessing a ·civil penalty of $1 00 and settlement of
Citation 2140566 by assessing a civil penalty of $371 .
CONCLUSIONS OF LAW
1. Westmoreland violated safety standards as charged
in Order No . 1141231 and in Citations Nos . 2035981 , 2035985 v
2035987 , 203 5 997 , 2035998 , and 2035999 .
2. Settlements of Citations Nos . 2140562 and 2140566 y
as stated in the Transcript , page 252, are APPROVED.
3. Westmoreland is ASSESSED the civil penalties specifi ed
in the Discussion part of t his Decision .
ORDER
WHEREFORE IT IS ORDERED that:
1. Westmoreland shall pay the above civil penalties in
the total amount of $2 , 984 within 30 days of this Decisi on.
2.

Order No . 2141231 is AFFIRMED .

~$.~
?-~v~
William Fauver
Administrative Law Judge
Distribution :

123

James B. Leonard , Esq ., As sociate Regional Solicitor , and
Kevin C. McCormick , Esq ., O ~~ice of the Solicitor , U. S .
Department of Labor , 4015 Wilson Boulevard , Arlington , VA
22203 (Certified Mail)
Michael H. Holland , Esq. , Uni t ed Mine Workers of America,
900 15th Street , N. W. , Was htngton , D. C . 20005 (Certified
~~

F. Thomas Rubenstein , Esq . , Westmoreland Coal Co.9 P.O .
Drawer A & B, Big Ston e Gap , VA 24219 (Certified Mail)

/ kg

124

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

JAN18 1985
OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
LARRY DUTY,
Complainant

DISCRIMINATION PROCEEDINGS

SECRET~Y

v.

Docket No. KENT 83-161-D
MSHA Case No. PIKE CD-82-15
:

WEST VIRGINIA REBEL COAL
COMPANY , INC . ,
Respondent

Docket No. KENT 83-232-D
MSHA Case No . PIKE CD-83-06
·No . 1 surface Mine

DECISION
Appearanc e s :

Thomas A. Grooms, Esq . u and Ra l ph D. Yor k ,
Esq. , Office of the Sol icitor v U.S .
·Department of Labor, Nashville, Tennessee ,
for Complainant;
George V. Gardner, Esq., and J. Edgar
Bailey, Esq., Gardner, Moss, Brown and
Rocovich, Roanoke, Virginia, for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
On March 1, 1983, the Secretary filed a complaint with
the Commission on behalf of Larry Duty alleging that he was
discharged on February 8, 19&2, from his job with Respondent
West Virginia Rebel Coal Company, Inc. (Rebel>, for activity
protected under the Mine Safety Act (Act).
Duty was returned
to work after this discharge, and was again discharged on
March 3, 1983. The Secretary instituted a separate proceeding on May 24, 1983, by filing an Application for Temporary
Reinstatement. A complaint was filed August 22, 1983, alleging that the discharge of Duty on March 3, 1983, was also for
activity protected under the Act. The cases were assigned to
Judge Joseph B. Kennedy who presided over certain pretrial
activity including an on-the-record pretrial hearing on
May 3, 1984. Judge Kennedy recused himself on May 29, 1984,
and the cases were assigned to me on May 30, 1984.

125

Pursuant to notice, the cases were heard on the merits
in Paintsville, Kentucky , on July 9 through July 13, 1984 , ·
and on September 11 through September 13 , 1984. Lar ry
Duty, Robert B. Goodman , John Franklin Meade, Hobert Meade ,
Tommy R. Ryan, Johnny Pennington, Delmer Green, John
Patrick McCoart, Kenneth Borders, Roger Dean Fannin , Donald
Litton, James Robert Collins , Philip Wells, Jerry Lee
Meade, Barry Wilson Lawson , R. c. Hatter, William Creech,
Gary Ousley, John H. Gamble and John South testified on
behalf of Complainant; Lambertus Boerboom , Ezra Martin,
Milton Preston , Clarence Inscore , Pete Webb, O'Dell Rogers 5
Malcolm Van Dyke, Jake Taylor Watts, Nina S~eed Tacketi,
Paul Greiner, Wendell Knigh~ and Dale Mosely testified on
behalf of Respondent.
·
Both parties have filed extensive posthearing briefs.
Based on the entire record and carefully considering the
contentions of the parties , I make the following decision .
FINDINGS OF FACT COMMON TO BOTH PROCEEDINGS
1. At all times pertinent to these proceedings ,
Respondent West Virginia Rebel Coal Company , Inc . , was ·the
owner and operator of a surface coal mine in Martin County p
Kentucky, known as the No. 1 Surface Mine, the products of
which entered interstate commerce .
2. At all times pertinent to these proceedings,
Complainant Larry Duty was employed by Respondent Rebel as
a miner. He began his employment with Rebel in April 1977.
3. Duty was a member of the United Mine Workers of
America (UMWA) and , in December 1979, was appointed member
and Chairman of the Mi ne Health and Safety Committee at the
subject mine. He also acted ·-·as head . of the Mine Committee
which dealt with contract grievance matters under the collective contract between the UMWA and the Bituminous Coal
Operators Association (BCOA). This contract governed the
employment relations between Rebel and its miner - employees.
4. In May, 1980 , Duty was elected President of Local
1827 UMWA. He continued as President until April 1983 ,
when he became ineligible for the position because he was
no longer actively employed as a miner at Rebel.
5. The evidence concerning the size of Rebel ' s
business at the times it is alleged in these proceedings to
have violated 105(c) of the Act, shows that in 1983 ,

126

Respondent had 131 employees at the subject mine (Secretary's Exhibit C-12).
In 1981 , approximately 1,292 , 568
tons of coal was produced by Respondent (Secretary ' s
Exhibit .C-65); apparently 980 , 172 tons were produced at the
subject mine. (Secret~ry ' s Exhibit C-63); in 1982, 1,353,829
tons were produced by Respondent, 1 , 050 , 408 tons at the
subject mine (id); in 1983, 919 , 118 tons were produced at
the subject mine (C - 63) and from January to March 1984 ,
185,288 tons were produced (id>. On the basis of this
evidence, I conclude that Respondent is of moderate size.
6. Between March 3, 1981 and March 2t . l983, 354 iiolations were assessed against - ~he "controller" of Respondent
Cthe · owner of Respondent, O' Dell Rogers, also. owned other
companies), 35 of which were paid .
(Secretary's Exhibit
C- 27). Between the same dates, 51 violations were assessed
against Respondent, 32 of which were paid.
(Secretary ' s
Exhibit C-1). I do not consider this history to be such
that penalties otherwise appropriate should be increased
because of it.
·
7.
Respondent is presently in bankruptcy before the
Bankruptcy Cou~t for the Eastern District of Kentucky in
Lexington, Kentucky (transferred from the Western District
of Virginia) . The Statement of Financial Affairs filed by
Rebel shows an inventory of the property on April 30 , 1983 ,
of $421,976 (at cost). An attached schedule shows pending
suits against the company seeking more the 2 mi l lion
dollars in damages .
Included in these suits are cases
brought by MSHA to collect c i vil penalties . The same documents show that Respondent has sold and had repossessed
substantial quantities of mining equipment. It shows
further in a list of notes and accounts payable that it
owes creditors in excess of 3 million dollars. Based on
this information , it is apparent , and I find that the
imposition of substantial penalties in these cases would
affect Respondent's ability to continue in business.
8 . On a number of occasions - prior to the incidents
involved herein , Complainant was disciplined for matters he
considered related to miners ' safety .
(1)
In about
February 1980, he asked management to have the miners withdrawn because of what he thought was an imminent danger
(loaders working within 100 feet of charged holes) . He
asked MSHA for an inspection under section 103(g) of the
Act. The foreman J . D. Ellison threatened to fire him
thereafter.
(2) At an unrelated grievance meeting in
March 1980, Superintendent Clarence· Inscore asked Complainant if he had called MSHA concerning Respondent's failure

127

to have a supervi sor in a remote area.
Inscore made what
Complainant considered an oblique t hreat when Comp l ainant
told him he had called MSHA.
(3) On about September 12,
1980, Cqmplainant complained that the coal trucks were not
properly trimmed .
He was criticized for this by Inscore
and later discharged . He filed a grievance which went to
arbitration before being settled by the imposition of a
(4) On October 17, 1980 , Complainant
3- day suspension .
received a written warning because he stopped his time to
inform miners of the status their grievance proceedings .
Complainant filed a grievance and the warning was remov~d
f r om his records.
(5) On October 21 , 1980; Complainant
filed a health and safety grievance because the coal trucks
were · not properly trimmed.
I n step 2 , the company agreed
to make a reasonable effort to keep the trucks reasonably
trimmed and the grievance was dropped .
(6) On December 11 ~
1980, Complainant was relieved of his duties subject to discharge for conducting union business during working hours
and interferring with management.
(7) On December 19,
1980, he was suspended with intent t o discharge when he
f iled a 103Cg) inspection request on behalf of employ ees at
the L & M Coal Company (members of the same union local }
while on suspension . He filed a 105Cc ) case which came to
the Commission and was settled. The settlement provided
that Complainant receive pay for the 10-day suspension and
that all references to the suspensions be removed from his
personnel file .
(8) In February 1981, Respondent discharged Complainant for using the bath house after Respondent had declared it "off limits" to truck drivers during
production hours. He filed a grievance which went to arb itration. The arbitrator modified the discipline to a 14 day
suspension without pay .
FINDINGS OF FACT IN DOCKET NO . KENT 83-161-D
On February 8, 1982 , Duty was working as a laborer
with the blasting crew on the day shift . At the beginning
of the shift , he met with an MSHA inspector who was preparing an accident survey at the mine.
After the meeting ,
Duty went to a blasting area called the shovel pit . The
blasting foreman, Lambertus Boerboom, ("Dutch 11 ) then sent
him to the magazine to obtain explosives and take them to
another blasting area called the binder pit. There two end
loaders were removing overburden and loading it into rock
trucks at each end of the binder. The trucks then carried
it to a nearby spoil area and dumped it. Holes had been
drilled in the binder to be loaded with explosives . Duty
and the pit foreman, Ezra Martin , had a discussion concerning whether the loaders would be too close to the holes

128

after they were charged.
Duty said they would be, and
Martin said the equipment would be pulled out when they
started loading the holes. One of the loaders broke down
and was _moved to a point about 50 to 75 feet from the binder
shot holes where repairs were performed on it.
The other
loader was being operated about 75 to 100 feet from the
holes. The two rock trucks passed to within 15 to 25 feet
of the holes when dumping the overburden.
Duty then returned to the shovel pit and resumed his
work loading the holes. He could see the binder pit ar~a
from the shovel pit and noticed that the trucks were still
being operated there although the prell (ammonium nitrate ~
a explosive) and primers had been placed in the holes. On
two occasions, he told Dutch who · .said he would call Martin o
The work continued, however , and Duty requested that his
time be stopped so that he could go on union time to
inspect the area, because he believed the situation created
an imminent danger.
I find as a fact that his belief was
in good faith.
Dutch told him to go ahead and inspect the
area. Duty asked whether a management official would
accompany him, and whether transportation would be supplied .
Dutch then too~ him in a company vehicle to the office
where he received a notice of discharge for insubordination
and interference with management. Duty filed a grievance
which went to arbitration. On March 29, 1982, the arbitrator issued an opinion and award sustaining the grievance
and ordering Duty reinstated with back pay. The company
did reinstate him, and paid him-for his lost time from work
except for one day.
Duty claims that he is entit led to pay
for that one day with interest.
There are conflicts in the testimony concerning the
binder pit incident.
I have largely accepted Complainant's
version which is corroborated· by other witnesses, particularly by Robert Goodman, a State licensed blaster, who
drove the prell truck and loaded the holes on the day in
question. My findings are consistent with those made by
the arbitrator in the grievance proceeding.
FINDINGS OF FACT IN DOCKET NO. KENT 83-232-D
As President of the Local Union and Chairman of the
Mine Safety and Health Committee, Duty received $280 per
month from the Union. As part of this case, he claims
reimbursement for 5 months during which he failed to
receive this amount which he alleges resulted from the
discrimination complained of herein.

129

Duty returned to work following the arbitrator's
decision referred to above, and continued as a laborer on
the shooting crew until March 27, 1982, when he was
assigned to cleaning equipment. At some time thereafter,
he became a coal truck driver and worked as a driver for
about l year. On about March 3, 1983, he was assigned to
operate .a loader at the coal stockpile, loading coal trucks.
The coal was taken by Rebel's trucks to the tipple operated
by Island Creek Coal Company . After he loaded "a few
trucks," the coal inspector f rom the Island Creek tipple ,
Kenneth Borders, came to where Duty was loading and told
him to lower his load a little and to load the trucks
"graveyard style, and just have the hump in the centern
(Tr. III, 106 )". Borders repeated the instruc.tion to the
foreman, William Ru·nyon (also known as "Preacher ") .
Borders testified that he gave the instruction because coal
was spilling on the tipple road from overloaded trucks.
On at least four occasions prior to March 3, 1983 ,
Duty had filed grie:vances or complaints alleging that
Respondent was not· properly "trimming" its coal trucks .
The issue was (aised at one union meeting in February 1983 .
A short time after Borders left the stockpile area on
March 3, 1983, Mr. O'Dell Rogers, President of Respondent
Rebel, arrived with J. T. Watts, Superintendent. Rogers
told Duty to load additional coal on a truck which was
"fixing to pull o~t and it was half loaded too."
(Tr. VII,
91). Duty loaded additional coal on the truck and it
pulled out "with lumps hangi_n g over the side."
(Tr. III,
149). The truck driver, Philip :Wells, testified that the
truck "was real heavy," and coal fell off as he was driving
to the tipple (Tr. VI, 17-18). Rogers followed the truck
to the tipple and testified that "there might ~ave been a
peck or something" of coal that fell from the truck going
around a curve (Tr. VII, 94). ·
Rogers returned to the stockpile and he . and Duty had a
heated discussion concerning the loading of trucks. Duty
then requested that his time be stopped so that he could go
to MSHA. Runyon drove him to the portal where Duty's
private vehicle was located. Duty drove to the Paintsville
MSHA office and made a written request for an inspection
under section l03Cg> of the Act. When he returned to the
mine site, he was told to go home and was discha~ged for
"interfering with management. Refusing to work as direct~d
by management. Leaving job site without permission ' or
stated good cause."
(Secretary's Exh. C-11>.

1~}0

Duty filed a grievance which went to arbitration. The·
arbitrator denied the grievance and the discharge was
upheld • . The 103 (g) inspection resulted in a citation for
improperly trimmed coal trucks (Secretary's Exh. C-5).
Duty filed a 105(c) complaint with MSHA and Judge Kennedy
issued an Order of Temporary Reinstatement on May 25, 1983,
on application of the Secretary. Duty did not return to
work, however, but was placed' on economic reinstatement ..
effective May 31, 1983. In May 1983, Duty was reelectad
President of his local union for a 3-year term. The election was challenged and a new election was ordered by the
International Union because .Duty was not then actively
employed as a miner. He returned to work on ·J uly 27 v 198 3 o
A new election was held in Augus~ and Duty was defeatedo
He went back on economic reinstatement on September l u 1983 o
Duty did not receive the $280 per month as union President
and Committeeman in April, May, June or July 1983 o He continued on economic reinstatement until he was laid off pursuant to the contract on March 16, 1984. Subsequent to
that date, Rebel has recalled miners with less seniority
than Duty but has refused to recall Dutyo On September l lv
1984, I issued .a bench order on the record that Responden t
reinstate Duty with back pay to the date he was entitled to
be rehired under the terms of the contract. Ths order was
issued in written form on September 18, 1984, and corrected
on October 3, 1984.
11

ISSUES
1. Did the discharge of Duty on February 8, 1982 ,
result from activities protected under the Act?
2. Did the discharge of Duty on March 3, 1983, result
from activities protected under the Act?
3. If either or both of the above issues are answered
affirmatively, to what relief is Duty entitled?
(a) May he be reimbursed for loss of
income received as local union President and
Committeeman?
4. If either or both of the first two issues are
answered affirmatively, what are the appropriate civil
penalties for the violations?

EVIDENTIARY RULINGS
Respondent objected to the admission into evidence of
Exhibits 2 through 6 and renewed its objections
in its posthearing brief . The objection was to the relevance of the documents . Exhibits 2 , 3 and 4 were notes
prepared by Duty as Safety Committeeman with reference to
certain alleged safety problems at the mine site. Exhibit
No. 4 also contains a grievance filed by Duty resulting
from his discharge and an agreed arbitration award wherein
the discharge was modified to a 3-day suspension. Exh~bit
Nos. 5 and 6 are grievances filed by Duty both in October
1980 , one because he was giyen a written warning for
alH~gedly conducting union business on company time, the
other a safety grievance filed by Duty because of alleged
improper trimming of coal trucks .
Secreta~y's

Exhibit No . 2 contains notes of a protest Duty made on
February 19, 1980 , because of loaders working within 30 feet
of charged holes . Duty asked that the men be removed which
ultimately was done. MSHA was called, and a closure order
was issued. Exhibit No. 3 contains notes of a " 3rd step
safety meeting'~ with management March 27 , 1980 , apparently
over the absence of a foreman in certain areas . Exhibit
No . 4 relates to alleged improper trimming of trucks on
September 12 , 1980, and the grievance proceedings in connection therewith.
Although none of these documents or the incidents they
refer to is directly concerned with either of the alleged
discriminatory discharges involved herein, they tend to
show a pattern of hostility between Duty and Rebel over
conduct similar to that involved herein . The documents
are relevant to these proceed i ngs.
Milton Preston, Rebel's Safety Director, testified
that he had a co~versation with Duty in which Preston asked
Duty what he thought about reports of charges by Judge
Kennedy "that inspectors had been on the take."
(Tr. III,
10) . The conversation took place about in June 1984.
Preston testified that the discussion had nothing to do
with the instant case .
I sustained an objection to the
testimony and counsel for Respondent made an offer of proof
" that Mr . Duty had a conversation with Judge Kennedy while
his very own case was pending before this court . • . the
relevance is it would be prejudicial to this case , and the
mere fact that a judge of this court has talked with this
defendant (sic) without notifying counsel is prejudicial in
and of itself ." Judge Kennedy recused himself by an order

132

issued May 29, 1984. The case was reassigned to me on
May 30, 1984, and has been entirely my responsibility since
that date. The testimony, assuming as true the facts in
the off~r of proof (that Judge Kennedy had a conversation
with Duty) has no relevance to these proceedings and would
be of no assistance in the just resolut ion of the issues.
The objection was properly sustained.
CONCLUSIONS OF LAW DOCKET NO:' KENT 83-161-D
Duty was discharged on February 8 , 1982 , ostensibly f or
"insubordination and interference with mana~ement . " In
fact, he was discharged, as .my findings show , for requesting
that · his time be stopped so that he could inspect an area
which he believed to be dangerous. Duty was acting as Chairman of the Mine Safety Committee. His action is p rotect e d
by the Act if it was reasonable and in good fait h. See
Secretary/Pasula v. Consolidation Coal Co., 2 FMSHRC 2786
{1980), rev'd on other grounds, Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3rd Cir . 1981); Secretarv/Robinette
v. United Castle Coal Co ., 3 FMSHRC 803 (1981) .
"Good
faith," the Commission held in Robinette , "simp ly means
honest belief that a hazard exis ts." Id , at 810 . Wit h
respect to the requirement that affirmative self help b e
reasonable, the Commission said that "a miner need only
demonstrate that his affirmative action was a reasonable
approach under the circumstances to eliminating or protecting agains·t the perceived hazard... Id at 812. I have found
that Duty had a good faith belief that the situation at the
binder pit was dangerous. Unlike Robinette~ Duty was a
representative of the miners as local union president and
safety committee chairman. He had a special responsibility
for the safety of the miners. Compare Local 1110, UMWA and
Carney v. Consolidation Coal Co., 1 FMS.HRC 338 ( 1979). The
reasonableness of his action ~s supported by the testimony
of miners working in the binder pit that the equipment was
being operated within 100 feet of the charged holes. There
may be a legitimate dispute as to whether this is dangerous,
but I conclude that one who believes it to be dangerous is
acting reasonably. Therefore, I conclude that the discharge
of Duty on February 8, 1982, was the result of activities
protected under the Act.
It therefore was in violation o f
section 105(c) of the Act.
CONCLUSIONS OF LAW DOCKET NO. KENT 83-232-D
Duty was discharged on March 3, 1983, ostensibly for
interfering with management, refusing to work as directed,
and leaving the work site without permission.
In fact, he

1a3

was discharged because of a dispute over the proper loading
and trimming of coal trucks. The testimony is conflicting ·
as to whether Rogers • direction that Duty increase the load
on the truck driven by Philip Wells on March 3, 1983,
resulted in a dangerously overloaded truck. Wells testified that the truck "weaved" because of the load and coal
fell off as he drove to the dump (Tr. VI, 17, 18). Rogers
testified that he had observed "half loaded trucks" (Tr.
VII, 90) going to the dump and that he saw the truck loaded
by Duty "fixing to pull out and it was half loaded too. "
(Tr. VII, 91). He directed that more coal be added anq
that the load be trimmed. When the truck pulled out , he
followed it to the tipple, qid not notice it weaving and
only· "a peck or something" of coal fell off going around a
cur·ve. His testimony was genera·lly supported by that of
Malcolm Van Dyke , foreman and J. T. Watts , Superintendent
of Rebel. Watts testified that Wells stated when questioned
at the tipple that the load was safe and that he had " no
problems" (Tr. VII, 146>.
I conclude (1) the question of overloading trucks and
improperly trimming trucks is a matter involving safety t o
miners; (2) Du~y in good faith believed that he was
directed by Rogers on March 3, 1983, to overload coal
trucks and that this caused a safety hazard to miners, (3)
this belief was reasonable under the circumstances, since
injury to miners could result from the practice; (4) Duty's
action in requesting that his time be stopped so that he
could request an MSHA inspection was reasonable, particularly because he was a representative of the miners in
safety matters. See Local 1110 UMWA and Carney v.
Consolidation Coal Co., supra.
Therefore, I conclude t~at the discharge of Duty on
March 3, 1983, was the result of activities protected under
the Act. It therefore was in violation of section 105(C)
of the Act.
RELIEF
1. The statement of back wages filed by the Solicitor
indicates that Duty "should have been recalled from layoff"
(pursuant . to my order of October 3, 1984) during "the
period from July 17, 1984 to October 26, 1984." From that
statement, I assume that his continued absence from work
beyond October 26, 1984 results from a layoff proper under
the contract. Therefore, I do not order his reinstatement.
· However, because Commission orders have been flouted by
Respondent in the past, ·I ORDER Respondent to reinstate

1.34

Complainant Duty when by reason of his seniority (which
shall not be affected by the discharges involved herein),
he is entitled to be recalled under the contract.
2.
IT IS FURTHER ORDERED that within 30 days of the
date of this decision , Respondent pay back wages which
Complainant Duty lost as a result of his wrongful discharge
on February 8, 1982 , with interest thereon in accordance
with the Commission approved ·,formula in Secretary/Milton
Bailey v . Arkansas-Carbona Comoany and Michael Walker u
5 FMSHRC 2042 (1983) .
a . The parties have stipulated that the
gross amount due as back wages is $66.90 ~
Interest on this amount to December 10 ~ 1984 ,
is $26.05 .
b. Respondent is ORDERED to pay
complainant the sum of $92.95 as back wages
and interest for the wrongful discharge of
Complainant on February 8 u 1982. Docket No .
KENT 83 - 161 - D.
3. IT IS FURTHER ORDERED that within 30 days of the
date of this decision, Respondent pay back wages which
Complainant Duty lost as a result of his wrongful discharge
on March 3, 1983, with interest thereon in accordance with
the Commission approved formula in Arkansas - Carbona, supra .
a . The parties have stipulated that the
gross amount due as back wages is $20 , 602.29 .
Interest on this amount to December 10 , 1984,
is $1 , 898.44.
b. Respondent IS ORDERED to pay
Complainant the sum of $22 , 500.73 as back
wages and interest for the wrongful discharge
of Complainant on March 3 , 1983 Docket No.
KENT 83-232-D .
4.
IT IS FURTHER ORDERED that Respondent shall expunge
references to these discharges from Duty ' s employment
records and shall post a copy of this decision . at a conspicuous place at the mine office .
5 . The uncontradicted testimony shows that Duty lost
income he had previously received as local union president
and safety committee chairman as a result of his discharge .
The claim submitted indicates that this income was lost for

135

a 5-month period.
However, the evidence shows that he lost
this income in April, May, June and July 1983, and was
defeated in an election held at some unknown date in August
1983. Therefore, I find that he is entitled to reimbursement of.$280 for 4 months ($1,120) with interest thereon in
accordance with the above formula.
a. Within 30 days of the date of this
decision, Respondent IS ~ ORDERED to pay
Complainant the sum of $1,290.70 as reimbursement for loss of 4 months income (with
interest) from the union resulting from his
wrongful discharge by ~espondent.
CIVIL PENALTIES
The two violations found to have occurred herein were
serious. They were attempts to undermine a basic purpose
of the Mine Act "to consciously involv[e] the employees in
the enforcement of safety regulations and protect that
involvement . " Broderick and Minahan, Employment Discrimination Under the Federal Mine Safety and Health Act, 84 West
Va. L. Rev. 1023 , 1066 (1982) . See S. Rep. No. l8l u 95th
Cong ., 1st Sess . at 35 (1977), reprinted in 1977 U.S. Code
Cong. & Ad. News at 3435. The violations were deliberate.
Respondent is a moderate sized operator and does not have a
serious history of prior violations. Respondent is in
bankruptcy attempting a reorganization. High penalties
might affect its ability to continue in business.
Based on
the criteria in section llO(i} of the Act, I find the
following civil penalties to be appropriate.
Docket No. KENT 83-161-D
Docket No. KENT 83-232-D

$100
$400

Respondent is therefore ORDERED to pay within 30 days
of the date of this decision . the sum of $500 as civil
penalties for the violations found herein to have occurred •

. tvvt-\L-5

_,iV'I:j~.~c_u"Vz 6/t.._

James A. Broderick
Administrative Law Judge

136

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, u.s.
Department of Labor, 280 U.S. Courthouse, 801 Broadway,
Nashville, TN 37203 (Certified Mail)
George V. Gardner, Esq., and J. Edgar Bailey, Esq.,
Gardner, Moss, Brown and Rocovich, Suite 900, Dominion Bank
Building, 213 South Jefferson Street, Roanoke, VA 24035
(Certified Mail)
/fb

137

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

JAN 18 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

.

CIVIL PENALTY PROCEEDING
Docket No . WEVA 84-373
A. C. No . 46-03307-03567

v.
No. 15-A Mine
VALLEY CAMP COAL COMPANY,
Respondent

.
: CONTEST PROCEEDING
DONALDSON MINE CORPORATION,
Contestant

v.

:
:

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

Docket No. WEVA 84-147-R
Order No . 2127006 ; 2/ 28 / 8 4

0
0

.:

No . 15-A Mine

0

DECISION
Appearances :

Mary K. Spencer , Esq., Office of the
Solicitor, U. S. Department of Labor ,
Arlington, Virginia, for the Secretary of
Labor;
Laura E . Beverage , Esq. , Jackson , Kelly,
Holt & O' Farrell, Charleston , west Virginia ,
for Valley Camp Coal Company and Donaldson
Mine Corporation.

Before:

Judge Melick

These consolidated 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., "the Act", to contest a
citation and withdrawal order issued to Valley camp Coal
Company (Valley Camp) and its wholly owned subsidiary,
Donaldson Mine Corporation , and for review of civil penalties proposed by the Mine Safety and Health Administration
(MSHA), for the violations charged therein.

138

Withdrawal Order No. 2127006 issued under section
104(d)C2) of the Act~/ reads as follows:
Overhanging rock was present at the junction of the roof and rib along the left side
of No. 5 room right off 6 left section
(NNU002-0). The overhang was present 30 feet
inby survey station No. 3739 and extended ·
inby towards the face for a distance of
12 feet. The overhanging rock extended from
the vertical rib line a distance of 48 inches
out over the active work place.
The cited standard, 30 C.F.R. § 75.202, requires in
relevant part that "loose roof and overhanging or loose
faces and ribs shall be taken down or supported. "
MSHA Investigator Horner Grose, arrived at the scene of
a fatal rock fall in the No. 5 room right off 6 left section
of the No. 15 Mine at around 6:30p.m. , on February 27 v 1984 .
At the accident scene, he observed that a portion of overhanging brow some 12 feet long still remained along the left
rib of the No. 5 room. Grose described the . brow as ranging
from 24 inches to 48 inches in width and extending into the
work area. According to Grose, the brow was readily observable because ot its size and within the brow, fractures
could be seen. It is not disputed that photographs taken at
the time of the investigation (Exhibit G-6, Photographs 1
through 6) accurately depict the cited brow.
Valley Camp does not deny the existence of the cited
brow but alleges that it was not as large as described by
Inspector Grose and was not a hazard. While the responsible
section foreman, Paul Williams, was not sure he saw any
~/

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

139

brow, Keith Grounqs, the continuous miner operator who had
been working in t .h e No . 5 room just before the fatal accident, thought th~re was indeed a brow about 2 feet thick .
Another Valley ~amp witness, Jack Campbell, the Manager of
Safety and Training, estimated that the brow was not more
than 10 inches thick .
The thickness of the brow as demonstrated in Photographs 4, 5 and 6 of Exhibits G-6 is not disputed. Moreover, since Inspector Grose used a tape measure to determine
the dimensions of the brow, <see for example Exh. G-6 photographs 4, 5 and 6) I give dominant weight to his testimony
in this regard. Since even a 10 inch overhanging rib const i tutes a violation of the cited standard, the size of the
overhanging area is, in any event, significant only insofar
as it relates to a greater hazard and increased negligenceo
It is of course also relevant to the "significant and substantial" and " unwarrantable failure" findings associated
with the order at bar.
In determining whether there was an unwarrantable
failure to comply with the cited standard , additional evidence must also be considered. An unwarrantable failure to
comply may be proved by showing that the violative condition
or practice was not corrected or remedied prior to the issuance of the order because of indifference, willful intent,
or a serious lack of reasonable care.
United States Steel
Corporation v. Secretary , 6 FMSHRC 1423 at 1437 (1984).
In this case, the evidence shows that normal mining
progressed on the morning of February 27, 1984, until the
second cut by the continuous-mining machine in the No. 5
room. At· that time, a section of roof {ranging from 10 to
16 inches thick, 16 feet wide and 16 feet long) fell onto
the continuous-mining machine, but caused no injury or
damage.
Section foreman Paul Williams heard the roof fall at
what he thought was around 11:30 that morning and 10 or
15 minutes later he was at the scene of the fall .
He remembers talking to the deceased, Don Jones, and to Keith
Grounds the continuous miner operator, but does not recall
"what all was said." Williams testified that he did not see
the brow, but later said he "could have" seen it.
In any
event, Williams gave no specific instructions to the crew ,
relying on their experience and the "general practice" at
the mine to take down or support "loose brows." Williams
opined that rock falls of this magnitude were not unusual at

the No. 15-A Mine and occurred about once a shift. He also
acknowledged, however, that loose rock and overhanging brows
are potential hazards remaining after roof falls.
Keith Grounds, the continuous miner operator, testified
on behalf of Valley Camp that he cleaned up after the roof
fall and then inspected the area with the deceased. They
agreed that the room 11 looked alright." Grounds concedes,
however, that he had been unable to remove the cited brow in
the No. 5 room because of an obstructing ledge that remained
after the roof fall.
Grounds testified that in any event it
was then the accepted practice at the mine not to cut down
brows less than 2 feet thick. He estimated that the remaining brow was in fact about 2 feet thick.
It is not disputed that the roof-bolting machine operated by the deceased was then trammed to the No. 5 room.
After installation of the third row of roof supports, John
Wright, acting as roof bolter helper, retracted the ATRS
(Automated Temporary Roof Support System) and trammed the
machine into position for the last row of roof supports o
Jones stood aside near the left rib when a section of overhanging rock fell from the junction of the roof and rib
pinning Jones to the floor.
According to the undisputed testimony of MSHA Investigator Grose, it is the standard industry practice for the
section foreman to examine and inspect the affected roof
area following a roof fall such as the one in this case.
The section foreman then has the responsibility to determine
what action should be taken to remove hazards and to verify
that no hazards remain before allowing production to resume.
Section foreman Williams in this case admittedly left
such decisions to the individual judgment of his work crew.
That practice was clearly deficient under prevailing industry standards and directly contributed to the death of a
miner in his charge. Williams had knowledge of the first
roof fall and was present in the room in which the fall
occurred, but did not even take time to thoroughly evaluate
the residual roof conditions for himself. Moreover, he
allowed production to resume without first examining the
work place to determine whether any hazards remained. The
violation was accordingly the result of gross negligence.
I also observe that it had been management policy at
the subject mine to allow overhanging brows to remain in
work areas so long as such brows were no more than 2 feet

141

thick. Thus the miners herein allowed a substantial brow
to remain along the left rib of the No. 5 room, which was
deemed to be no greater than 2 feet thick. This policy
also directly contributed to the death of Mr. Jones and
also warrants an independent finding of gross negligence.
The same evidence establishing gross negligence also
supports a finding that the violation was caused by the
"unwarrantable failure" of the mine operator to comply with
the standard. United States Steel Corporation, supra, at
1437 .
Since it is undisputed that an overhanging rib or brow
at least 2 feet thick existed in an active working place
where a roof fall had recently occurred and in an area where
roof falls were common, there was clearly a "significant and·
substantial" violation of the cited standard . It was indeed
reasonably likely that death or serious injuries would
result in that active work place. Secretary v. Mathies Coal
Company, 6 FMSHRC 1 (1984). Since it is undisputed that
there had been no intervening clean inspections of the subject mine between the date of the precedential section
104(d) (1) order (Order No. 1064308) and the date of the
issuance of the section 104(d)(2} order at bar, (Order No .
2127006}, the latter order is affirmed.
In determining the appropriate penalty to be assessed
in this proceeding, I have also considered that the mine
operator is large in size and has a fairly substantial
history of violations. Under the circumstances, I find
that a penalty of $5,000 is appropriate.
A motion for approval of a settlement agreement was
submitted at hearing with respect to Citation No. 2127005.
The citation alleges a "significant and substantial" violation of the standard at 30 c .. F.R. § 75.200, because work
was being performed by the deceased under unsupported roof.
Valley Camp has agreed to pay the proposed penalty of $3,000
· and considering the facts in . this case in light of the
criteria under section llO(i) of the Act, I find the proposed settlement to be appropriate.

142

ORDER
The Valley Camp Coal Company
the following penalties within 30
decision : Citation No. 2127005 - $5 , 000.

reby ordered to pay
of the date of this
0, Order No . 2127006

Distribution :
Mary K. Spencer, Esq. ,
ffice of the Solic i tor , U. S.
Department of Labor, 4015 Wilson Boulevard, Room 1237A ,
Arlington, VA 22203 (Certified Mail)
Laura E. Beverage , Esq. , Jackson , Kel l y u Holt and
O'Farrell , Post Of f ice Box 553 , Charleston , WV 2532 2
(Certified Mail)
/fb

143

FEDERAL MINE. SAFETY AND HEALTH REVIEW COMMISSION
iOFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, lOth FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

JAN 13 1985
METTIKI COAL COMPANY
Contestant

CONTEST PROCEEDING

v.

Docket No . YORK 84 - 11-R
Order No. 2413197 ; 5/22/84

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

C- Mine

ORDER OF DISMISSAL
Appearances:

Before:

Adrienne J . Davis , Esq. , Crowell & Moring f
Washington , D. C. , for Contestant;
·
Covette Rooney , Esq. , Office of the Solicitor ,
U.S. Department of Labor, Philadelphia¥
Pennsylvania, for Respondent.

Judge Melick

Following hearings held on October 31, 1984 and January 3 ,
1985, the Respondent moved t o modify the section 104(d) (2)
order at bar to a section 1 04(a) citation. The motion was
granted for reasons stated on the record and thereafter the
Mettiki Coal Company requested approval to withdraw its
Contest in the captioned case . Under the circumstances
herein, permission to withdraw is g anted.
2 9 C.F.R.
§ 2700.11 .
The case is thej~fore di missed.

, .I\
\...

'

;

.
'

\/(

\

i

I

-·~~

Gary Meli~k
Assistant \I Chief

Law Judge

\

Distribution:

.
·~

Adrienne J . Davis, Esq . , Crowell & Moring , 1100 Connecticut
Avenue , N. W., Washington , D. C .
20 036
(Certified Mail)
Covette Rooney , Es q . , Office of the Solicitor, u.s. Department of Labor, 3 5 35 Market st. , Philadelphia, PA 19104
(Cert ified Mail)
rbg

144

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMIN ISTRATIVE LAW JUDGES
·2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINiA 22041

JAN 2-2 198.5
STEVE L. TURNER,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 84-233 - D

TERRY GLENN COAL COMPANY,
Respondent

MSHA Case No o BARB CD 84-3 6

DECISION
Before:

Judge Melick

On August 13, 1984 , the Complainant , Steve Turner ,
filed a complaint of discr imination under section 1 05(c) (2)
of the Fede ral Mine Safety and Health Act o f 1977 , 30 u. s .c .
§ 801 et . seq., "the Act," with the Secretary of Labor, Mine
Safety and Health Administration (MSHA) against the Terry
Glenn Coal Company. That complaint was denied by MSHA and
Mr. Turner thereafter filed a complaint of discrimination
with this Commission on his own behalf under s ection 105(c) (3)
of the Act. Mr . Turner , alleges that he wa s d i scharged in
violation of section lOS(c) of the Act beca use he was fa l sel y
accused of smoking in the mine. More s pecifically he
alleges as follows:
A cigaret te bu tt was found at the North Main Headdrive ,
no one saw anyone smoking and eve ryone ent e ring and
exiting the working place us es this route. It could
have been anyone in the mines but I was accused of
smoking . They had the opport unity to search me , but
they declined my offer • . Because of this accusation
I lost my job and a whole lot more.
The Terry ·G lenn Coal Company (Terry Glenn) thereafter
responded, inter alia, that the "complaint fails to state a
claim upon. which rel1.ef can be granted under secti on lOS(c) . "
That contention may be taken as a motion to dismiss under
Rule 12(b) (6) of the Federal Rules of Civil Procedure. For
the purposes of such a motion , the well pleaded ·material
allegations of the compl aint are taken as admitted . 2A
Moore ' s Federal Practice, ,, 12. 08. A complaint should not ·
be dismissed for insufficiency unless it appears to a certainty
that the complainant is entitled to no relief under any
state of facts which could be proved in support of a claim .
Pleadings are , moreover , to be liberally construed and mere
vagueness or lack of detail is not grounds for a motion to
dismiss. Id.

145

Section lOS(c) (1) of the Act provides as follows:
No person shall discharge or in any manner discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner, repre sentative of miners or applicant for employment in any
coal or other mine subject to this Act because such
miner , representative of miners or applicant for employment has filed or made a complaint under or related to
this Act , including a complaint notifying the operator
or the operator ' s agent , or the representative of the
miners at the coal or other mine of an alleged danger
or safety or health violation in a coal or other mine
or because such miner, representative of miners or
applicant for employment is the subject of medica·l
evaluations and potential transfer under a standard
published pursuant to section 101 or because such
representa~ive of miners or applicant for employment
has instituted or caused to be instituted any proceedings under or related to this Act or has testified
or is about to testify in any such proceeding, or
because of the exercise by such miner , representative
or miners or applicant for employment on behalf of
himself or others of any statutory right afforded by
this Act .
In order to establish a prima facie violation of section
lOS(c) (1) the Complainant must prove that he engaged in an
activity protected by that section and that his discharge
was motivated in any part by that protected activity.
Secretary ex . rel. David Pasula v. Consolidation Coal Company,
2 FMSHRC 2786 (1980) , rev ' d on other grounds, sub nom ,
Consolidation Coal Company v . Secretary, 663 F.2d 1211 (3rd
Cir. , 1981) .
In this case Mr . Turner asserts that he was
discharged solely because of false accusations that he had
been smoking a cigarette in the mine. Even assuming that
the allegation is true however , it is clearly not sufficient
to create a claim under section lOS(c) (1) of the Act .
That
section does not provide redress for a discharge that may

have been unfair if that discharge was not caused in any
part by an activity protected by the Ac~. Accordingly the
complaint herein must be denied and the case dismissed.

~.J·· .

.e

I. . '/ L, ' '-.. .
. I ,.
I
Gary I-lel;ic ·' I•
,.. I
L
. .~
Assistadt Chief ,ministrahv/Law
dge

l,

0

0

i

)

I

Distribution:
Mr. Steve L. Turner , Star Route, · Box 704 , Coxton , KY
(Certified Mail)

40831

Randall Scott May, Esq., Barret, Haynes & May , P . O. Box
1017, Hazard, KY 41701
(Certified Mail)
rbg

147

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

JAN·221985
JOHN A. VOYTEN,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. PENN

CANTERBURY COAL COMPANY,
Respondent

84~184-D

MSHA Case No. PITT CD 84 - 06
DiAnne Mine

DECISION APPROVING SETTLEMENT
Before ~

Judge Kennedy

This matter is before me .on
to approve settlement.

t~e

complainant ' s motion

Based on an independent evaluation of the circumstances ,
I find the settlement proposed is in the interest of
complainant and in accord with the purposes and policy of
the Act.

Distribution:
Charles F. Fox III, Esq., Uncapher and Uncapher, Attorney
for John A. Voyten, Grant and Columbia Avenues, Vandergrift,
PA 15690
(Certified Mail)
R. Henry Moore , Esq., Attorney for Canterbury Coal Company,
900 Oliver Bldg., Pittsburgh, PA 15222
(Certified Mail)

/ejp

148

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COlfAX AVENUE. SUITE 400
DENVER, COlORADO 80204

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 84-98-M
A.C. No. 39 - 00055- 05522

v.

Homestake Mine

HOMESTAKE MINING COMPANY,
Respondent
DECISION
Appearances:

Eliehue C. Brunson, Esq., Office of the Solicitor ~
U.S. Department of Labor, Kansas City, Missouri ,
for Petitioner;
Robert A. Amundson, Esq., Amundson & Fuller, Lead,
South Dakota,
for Respondent.

Before :

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges respondent with violating four
safety regulations promulgated under the Federal Mine Safety and
Health Act, 30 U.S . C. § 801 et seq.
After notice to the parties, a hearing on the merits commenced
on October 30, 1984 in Rapid City, South Dakota.
Prior to the conclusion of the hearing the parties reached
an amicable settlement.
The citations, the standards allegedly violated, the initial
assessments, and the proposed dispositions are as follows:
Citation No.

30 C.F.R . Section
Violated

Assessed
Penalty

Disposition

2097960
2096744
2096745
2097986

57.19-106
57 .12-4
57.6-8
57.3-22

$20.00
20.00
20.00
20.00

$20.00
Vacated
Vacated
20.00

The proposed settlement is in order and it should be approved.

149

:

Accordingly, I enter the following:
ORDER
1.

The proposed settlement is approved.

2. The following citations and proposed penalties are
AFFIRMED:
Citation No .

Penalty

2097960
2097986

$20.00
20.00

3 . The following citations and all proposed penalties
therefor are VACATED:
Citation No .

2096744
2096745

~

John J . Z:ris
Administrative Law Judge

Distribution:
Eliehue C. Brunson, Esq., Office of the Solicitor , u.s. Department
of Labor, 911 Walnut Street, Room 2106, Kansas City, Missouri 64106
(Certified Mail)
Robert A. Amundson, Esq ., Amundson & Fuller, 215 West Main , Lead,
South Dakota 57754 (Certified Mail)

/ot

150

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

JAN231985
JAMES H. TUCKER,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No . WEVA 85-47-D

SOUTHERN OHIO COAL COMPANY,
Respondent

MSHA Case No. MORG CD 85- 3
Martinka Mine

DECISION
Before :

Judge Melick

On October 12, 1984, the Complainant , James Tucker ,
filed a complaint of discrimination under section l05(c) (2 )
of the Federal Mine Safety and Health Act of 1 977 , 30 u.s.c .
§ 801 et . seq . , "the Mine Safety Act," with the Secretary of
Labor , Mine Safety and Health Administration (MSHA) against
the Southern Ohio Coal Company . That complaint was denied
by MSHA and Mr. Tucker thereafter filed a complaint of
discrimination with this Commission on his own behalf under
section l05(c) (3) of the Mine Safety Act . Mr . Tucker,
alleges that he was denied employment in violation of section
l05(c) of the Mine Safety Act because of "my color and my
age ."
More specifically he alleges as follows:
" They turned me down , saying I had a diseased
disc .
I got a second opinion of the Lumbar spine ,
the area of the spine that they xrayed (sic) me for
at the Herron Clinic.
The findings, on the second
opinion, show that there· is nothing wrong with my
back .
I think that is has to do with my color and my
age, color more so than age . There is no more than
14 or 15 Blacks working there ."
The Southern Ohio Coa l Company thereafter responded ,
inter alia, that the "complaint fails to state a claim upon
which relief can be granted inasmuch as [Compl ainant] has
failed to allege therein any facts , conditions or events
giving rise to such alleged discrimination which are within
the scope of section 105(c) . . . " That response may be
taken as a motion t o dismiss under Rule 12(b) (6) of the
Federal Rul es of Civil Proce dure. For the purposes of such
a motion , the well p l eaded material allegations of the
complaint are taken as admitted .
2A Moore ' s Federal
Practice, 11 12 . 08 . A complaint should not be dismissed

15 1

for insufficiency unless it appears to a certainty that the
complainant is entitled to no relief under any state of
facts which could be proved in support of a claim. Pleadings
are, moreover, to be liberally construed and mere vagueness·
or lack of detail is not grounds for a motion to dismiss.
Id .
Section lOS(c) (1) of the Mine Safety Act provides as
follows:
No person shall discharge or in any manner discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner, representative of miners or appl~cant for employment in any
coal or other mine subject to this Act because such
miner , representative of miners or applicant for employment has filed or made a complaint under or related to
this Act, including a complaint notifying the operator
or the operator's agent, or the representative of the
miners at the coal or other mine of an alleged danger
or safety or health violation in a coal or other mine
or because such miner, representative o f miners or
applicant for employment is the subject of medical
evaluations and potential transfer under a standard
published pursuant to section 101 or because such
representative of miners· or applicant for employment
has instituted or caused to be instituted any proceedings under or related· to this Act or has testified
or is about to testify in any such proceeding, or
because of the exercise by such miner, representative
or miners or applicant for employment on behalf of
himself or others of any ·statutory right afforded by
this Act.
In order to establish a prima facie violation of section
lOS(c) (1) the Complainant, as an applicant for employment
must prove that he exercised a right protected by the Mine
Safety Act and that the refusal to hire him was motivated in
any part by the exercise of that protected· right. See
Secretary ex. rel. David Pasula v. Consolidation coar-company,
2 FMSHRC 2786 (1980), rev'd on other grounds, sub nom,
Consolidation Coal Company v. Secretary, 663 F.2d 1211 (3rd
Cir., 1981). In this case Mr. Tucker asserts that he was
not hired solely because of his age and/or race. Even
assuming, arguendo, that the allegations were true however ,
the grounds asserted are clearly not within the ambit of

152

protections afforded by the Mine Safety Act.
Accordingly
the allegations are not sufficient to create a claim under
section 105(c).
While the Mine Safety Act does not provide redress for
employment discrimination based on age or race, there are of
course other Federal and state laws dealing with such
discrimination.
It is noted in this regard that the Complainant herein has apparently filed a complaint of age · and
racial discrimination with the West irginia Human Rights
Commission. The complaint herein mu
however be denied and
the case dismissed.

Judge
Distribution:
James H. Tucker, 410
(Certified Mail)

2655 4

David A. Laing, Esq., Alexander, Ebinger, Fisher, McAlister
& Lawrence, 25th Floor, 1 Riverside Plaza, Columbus, OH
43215-2388
(Certified Mail)

rbg

153

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUOGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FAL~S

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

v.

CHURCH, VIRGINIA

22041

.lAi'i ~ 5 1985

CIVIL PENALTY PROCEEDING
Docket No . KENT 84-86
A. C. No . 15-13547-03503
Voyager Mine

VOYAGER MINING COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Steffey

Counsel for the Secretary of Labor filed on January 7 ,
1985, in the above-entitled proceeding a motion for approva l
of settlement. Under the parties' settlement agreement ~ re spondent has agreed to pay a civil penalty of $20 instead of
the penalty of $42 proposed by MSHA for the single violation of
30 C.P.R. § 70.501 involved in this proceeding.
Section llO(i) of the Federal Mine Safety and Health Act
of 1977 lists six criteria which are required to be considered
in determining civil penalties . The official file and the mo tion for approval of settlement contain information pertaining
to the six criteria. The proposed assessment sheet indicates
that respondent is a large operator which produces about 14
million tons of coal on an annual basis . Therefore, to the extent that the penalty is determined under the criterion of the
size of respondent ' s business , a penalty in an upper range of
magnitude would be appropriate~
Neither the official file nor the motion for approva l of
settlement contains any information concerning respondent's
financial condition. The Commission held in Sellersburg Stone
Co., 5 FMSHRC 287 (1983), aff'd. 736 F.2d 1147 (7th Cir. 1984) ,
that if an operator fails to furnish any evidence concerning
its financial condition, that a judge may presume that the
operator is able to pay penalties. Consequently, I find that
payment of civil penalties will not adversely affect respondent ' s ability to continue in business. In such circumstances,
it will not be necessary to reduce the penalty , determined pursuant to the other criteria, under the criterion of whether
the payment of penalties will cause respondent to discontinue
in business .

The proposed assessment sheet indicates that respondent
has not previously violated any mandatory health or safety
standards. Therefore, no portion of the penalty to be assessed
should be based upon the criterion of respondent's history of
previous violations.
Consideration of the remaining three criteria of good-faith
abatement, negligence, and gravity require a discussion of the
violation here involved. Citation No. 2059582 alleged that respondent had viol ated section 70.501 by failing to maintain th~
noise in an employee's working environment at or below a permissible level. The inspector who wrote the citation cqnsidered
the violation to be associated with a low degree of negligence
and believed that it was reasonably likely that an injury involving lost workdays or restricted duty was likely to be experienced by one employee . As a result of the inspector's evaluation of negligence and gravity, MSHA proposed a penalty of $42
after giving respondent a 30 percent reduction in the penalty
because respondent had demonstrated a good-faith effort to
achieve compliance after the citation was written .
The parties' agreement to reduce the penalty to $20 is well
supported by an affidavit attached to the motion for approval of
settlement. The affidavit was given by Stephen C. Davis, respondent's Manager of Environmental Services who has a Master of
Public Health degree from the University of California.
Mr. Davis began working on noise problems at respondent's mi ne
in November 1982 before the citation here involved was issued.
The problem arose primarily from the noise generated by a dieseldriven teletram manufactured by the Wagner Mining Machinery Co .
Through Mr. Davis' efforts, respondent participated in a noisecontrol project conducted by the United States Bureau of Mines'
Pittsburgh Research Center. Respondent also sought the assistance of MSHA's Pittsburgh Health Technology Center, Physical
and Toxic Agents Division. In~smuch as respondent had obtained
the assistance of two different agencies of the Federal government to assist it in reducing noise levels at its mine prior to
the writing of the citation, ! ·believe that the motion for approval of settlement correctly ~ expresses a belief that respondent's failure to reduce the noise to a permissible level was a
nonnegligent violation.
Mr. Davis' affidavit also indicates that respondent conducted an educational program to make its employees aware of
noise problems at its mine and to encourage its employees to
engage in hearing conservation measures. Finally, in April
1983 a designated teletram was made the subject of a quieting
modification which involved the installation of sound-absorption
material around the engine and radiator fan exhaust compartments
as well as the installation of newly fabricated sound-absorbing
louvers. Shortly after the retrofitting had been performed,
respondent's mine was closed because of depressed market conditions. The motion for approval of settlement states that the

155

parties agreed that the settlement reached in this proceeding
is subject to the following condition (Motion, page 3):
In the event that the Voyager Mine of Voyager Mining
Company is reopened and the subject equipment is put
back into service, Voyager Mining Company agrees to
cooperate with the U. S. Bureau of Mines, Pittsburgh
Research Center, in an effort to find a solution to
the noise problem.
The motion for approval o f settlement states that respondent ' s efforts to bring about a reduction of noise levels ·at its
mine supports findings to the effect that MSHA overevaluated
the criterion of gravity in proposing a penalty of $42 because
i t is unlikely that any of respondent's employees would have
experienced a hearing injury which would have resulted in re stricted duty or lost workdays. I believe that the parties
have shown adequate reasons for reducing the penalty to $20 on
the ground that MSHA's proposed penalty of $42 was derived without taking into consideration respondent's extensive efforts to
reduce noise levels at its mine.
WHEREFORE, it is ordered :
(A)
The motion for approval of settlement is granted and
the parties' settlement agreement is approved .
(B)
Pursuant to the parties' settlement agreement, respondent, within 30 days from the date of this decision, shall
pay a civil penalty of $20 . 00 for the violation of section 70 . 501
alleged in Citation No. 2059582 dated January 19 , 1983.
(C)
The approval of the parties ' settlement agreement is
also subject to the condition that respondent will continue to
cooperate with the Bureau of Mines "in an effor t to find a solution to the noise problem," as . hereinbefore indicated.

~tc:ff~~~

Administrative Law Judge
Distribution:

Mary Sue Ray , Esq . , Office of the Solicitor, U. S . Department of
Labor, Room 280 , u. S. Courthouse , 801 Broadway, Nashville , TN
37203 (Certified Mail)
Bruce E. Cryder , Esq ., 2265 Harrodsburg Road, Lexington , KY
40504 (Certified Mail)
Marcus P. McGraw, Esq. , Greenebaum Dolls & McDonald , 1400 Vine
Center Tower , P. 0. Box 1808, Lexington, KY 40593 (Certified
Mail)
yh

156

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

SECRETARY OF LA~OR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

JAN2.51985

CIVIL PENALTY PROCEEDING
Docket No. WEVA 84- 338
A. C. No. 46-06607-03506
Dean No. 1 Mine

DEAN FUELS INC .,
Respondent
DEFAULT DECISION
Before:

Judge Steffey

A prehearing order was issued October 18, 1984, in the
above-entitled proceeding requiring the parties to discuss
settlement and to notify me by November 23 , 1984 , whether a
settlement of the issues had been reached .
The order also p rovided for the parties to furnish specified information by
November 30, 1984, if they were unable to achieve settlement .
Counsel for the Secretary of Labor filed on November 13 ,
1984 , a copy of a letter which she had mailed to respondent ' s
representative. That letter stated that the Secretary's counsel had been unsuccessful in her efforts to talk to respondent ' s representative by telephone and asked that he either
call her or write to her so that they could discuss the issues
involved in this proceeding. On November 27, 1984, the Secretary ' s counsel filed .a response to the prehearing order of
October 18 , 1 984. That response explained that the Secretary ' s
counsel could not provide the stipulations required by the prehearing order because she had been unable " to reach the respondent ' s representative, despite telephone calls and a letter
to the representative ."
·
Inasmuch as respondent ' s representative had failed to
submit any reply whatsoever to the prehear i ng order , I issued
on December 7 , 1984, a show- cause order to respondent ' s representative pursuant to the Commission's rules , 29 C . P . R . § 2700 . 63 ,
which provide that when a party fails to comply wi th an order
of a judge , "an order to show cause shall be directed to the
party before the entry of any order of default or dismissal . "
The show- cause order specifically provided as follows:
Respondent, by January 7 , ' 1985 , shall show
cause , that is, explain in writing , why it should
not be held in default for failure to comply with
the provisions of the prehearing order of October 18 , 1984. Failure of respondent to give a

satisfactory a*swer to this order will result in a
finding that r¢spondent has waived its right to a
hearing and t~at respondent should be found to be
in default. 4f respondent is found to be in default ,
respondent ~ill be ordered to pay the full penalties
proposed b~ MSHA.
A return receipt in the official file shows that respondent
received the show-cause order on December 10, 1984. Respondent
filed on December 17, 1984, a reply to the show-cause order.
The reply, in its entirety, states as follows:
I will be unable to get away to Washington D.C.
-- I had been hoping to get some of the violations
reduced.
Thank you for your time and attention.
Respondent has failed to give a satisfactory answer to the
show-cause order .
There was no mention in either the prehearing order or the show-cause order of any need f or respondent 's
representative to travel to Washington, D. C . The petition for
assessment of civil penalty filed by the Secretary in this proceeding seeks to have civil penalties assessed for four alleged
violations of the mandatory health and safety standards. MSHA
proposed a penal ty of $20 each for two of the alleged violations and a penalty of $50 each for the two remaining violations. The prehearing order explained that it was unlikely
that the proposed penalties of $20 could be reduced unless respondent had evidence to prove that no violations had occurred.
As to the proposed penalties of $50, the prehearing order requested the parties to discuss settlement to determine whether
respondent had any reasons to justify a reduction of those two
penalties. The letter written to respondent's representative
by the Secretary's counsel contained the following sentence:
If you would like the fines for the other penalties
lowered, you should offer proof that the mine inspector incorrectly assessed the giavity or the negligence involved in the violation, or that payment
of the fine will seriously affect your ability to
remain in the coal mining business.
When respondent requested a hearing concerning the penalties proposed by the Secretary, it became a party to a proceeding before the Commission and, as such, respondent is obligated to comply with the Commission's procedural rules.
Section 2700.54(b) of the Commission's rules lists procedures
which · a judge may follow for simplification of the issues,
obtaining stipulations or admissions of fact, and settlement
of some or all of the issues.
Respondent's representative has

158

ignor ed the require~ents · of the prehearing order issued October 18, 1984 , and has refused to discuss settlement or stipulation of any facts with the Secretary ' s counse l despite her
r e peated efforts m?de in writing and by telephone. Finally ,
respondent's repre~entative has provided no reasons whatsoever
for his failure to reply to the prehearing order.
Respondent's refusal to c omply with my prehearing order
supports a finding that respondent has waived its right t o a
hearing and I f ind respondent in default for its failure to
give a satisfactory answer in reply to the show- cause orde r
issued December 7, 1984 .
Section 2700.63(b) provides that
when a judge finds the respondent in default in a civil penalty proceeding, he " shall also enter a summary order assessing
t he proposed penalties as final, and directing that such penalties be paid . "
WHEREFORE, i t is ordered:
Respondent, having been found to be in default ! shall ,
within 30 days from the date of this decision, pay civil penalties totaling $140 . 00 for the violations alleged in this proceeding.
The penalties are allocated to the respective violations as f ollows:
Citation No.
Citation No.
Citation No.
Citation No.

2411512
2411513
2411514
2411516

5 / 2/84
5/2/84
5/7/84
5/7/84

§
§
§
§

75.503 . •. . • • • .. $ 20.00
75 . 1722(a) .•. ..
50.00
75.400 ..•...• • .
20 . 00
77.505 . • . .• .••.
50 . 00

Total Civil Penalties Proposed in This
Proceeding .. . ..... .... . . . •• ....•••. . • • .•.• . $140.00

~f!.~Ii/'h

Richard C . Steffey
Administrative Law Judge

Distribution :
Linda M. Henry, Esq. , Office of the Solicitor, U. S . Department
of Labor , Room 14480-Gateway Building , 3535 Market Street ,
Philadelphia , PA 19104 (Certified Mail)
Mr . Robert 0 . Weedfa1l , P.E . , Dean Fuels Inc ., P .
Maidsville , WV 26541 (Certified Mail)

yh

159

o. Box 235,

1

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

SECRETARY OF L~OR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No . WEVA 85.- 25
A. C . No. 46 -0 4465-03534

v.

No. 1 Surface Mine

MONUMENT MINING CORPORATION,
Respondent
DEFAULT DECISION
Before:

Judge Steffey

An order was .issued on December 18 , 1984 , in the aboveentitled proceeding permitting the law firm which had filed an
answer to the Secretary of Labor's petition for assessment o f
civil penalty to withdraw as counsel for respondent on the
ground that the law firm was no longer authorized to repres ent
respondent in this proceeding .
The grant of counsel's request to withdraw left the case
before me with no known representative and with no official address or telephone number at which respondent could be rea~hed
for the purpose of serving notices of hearing or orders. The
Commission's rules, 29 C.F.R. § 2700.S(c)Q require that each
document filed with the Commission provide the filing person 's
name, address, and telephone number and require that the Commission be promptly notified of any change in address or business telephone number. Therefore, ~he order allowing respondent's counsel to withdraw also contained a request that respondent provide the name, address, and telephone number o f
the person who had been designated by respondent to represent
it in this proceeding in view of the fact that respondent's
counsel had been allowed to withdraw as respondent's representative. Paragraph (C) of the order stated that:
(C) This order is being sent to the business
address given for respondent in MSHA's petition for
assessment of civil penalty. If no reply to this
order is received, or if the letter is returned by
the post office as undeliverable, respondent will
be found to be in default and a final order will be
issued requiring respondent to pay the penalty of
$500 proposed by MSHA despite the fact that the default decision may be undeliverable.

1GO

The envelope c9ntai·ning the above - described order was returned by the post pffice as undeliverable because respondent
had declined to ac9'ept the envelope after the post office had
given respondent two notices of the fact that the envelope containing the orde~·· had been received by the post office .
Respondent's refusal to provide the name of a person to
represent respondent in this proceeding prevents me from being
able to process the case because there is no known address at
which respondent will accept notices of hearing or orders.
Therefore , I find respondent to be in default f or failure to
comply with the Commission ' s rules or accept envelopes sen·t b y
certified mail. Section 2700.63(b) of the Commissionrs rules
provides that when a judge finds the respondent in default in
a civil penalty proceeding , he "shall also enter a summary order
assessing the proposed penalties as final , and directing that
such penalties be paid."
WHEREFORE, it is ordered :
Monument Mining Corporation , having been found to be i n
default , shall , within 30 days from the date of this decision ,
pay a civil penalty of $500 for the violation of 30 C.P.R .
§ 77 . 404(a) alleged in Citation No. 2142832 dated May 16 , 1984 ..

~e~ si~
Richard C . Steffey
Administrative Law Judge

Distribution :
Jonathan M. Kronheim , Esq., Office of the Solicitor, U. S . De partment of Labor, Room 1237A, 4015 Wilson Boulevard, Arlington ,
VA 22203 (Certified Mail)
Calvin D. Cantrell, President , Monument Mining Corporation,
P. 0 . Box 618, Holden, WV 25625 (Certified Hail)

yh

161

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADM INISTRATIVE lAW JUDGES
2 SKYLIN E, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

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

22041

CIVIL PENALTY PROCEEDING
Docket No . CENT 84-54
A.C. No. 34-01317-03502 FN6

v.

Heavener Mine No. 1

JOHNSON ' S TRUCKING, INC.,
Respondent
DECISION
Appearances:

Jack R. Ostrander, Esq. , Office of the Solicitor ,
U.S. Department of Labor , Dallas, Texas, for
Petitioner;
Gary Brasel, Esq., Sand Springs , Oklahoma , for
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a civil penalty proposal filed
by the petitioner against the respondent pursuant to section
llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 820(a) , seeking a civil penalty assessment in
the amount of $250 for an alleged violation of mandatory
safety standard 30 C. F.R . § 77.410 .
The respondant filed a timely answer and notice of
contest denying the alleged violation, as we ll as MSHA ' s
enforcement jurisdiction, and a hearing was convened in
Tulsa, Oklahoma , on November 28 , 1984 . Although given an
opportunity to file post- hearing proposed findings and conclusions , and briefs , the parties declined to do so. However, I have considered their oral arguments made on the
record during the hearing in this case in the course of my
decision in this matter.
Applicable Statutory and Regulatory Provisions
1 . The Federal Coal Mine Health and Safety Act of 1969 ,
30 u.s.c . § 801 et seq. , now the Federal Mine Safety and
Health Act of 1977 . - -

162

2.

Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i).

3.

Commission Rules, 29 c.F.R. § 2700.1 et seq.

4. Independent Contractors Regulations, Part 45, Title
30, Code of Federal Regulations, section 45.1 et seq.
Issues
The respondent maintains that it is not a 11 mine operator"
or "independent contractor," and therefore is not subject
to the petitioner's enforcement jurisdiction.
Aside from the jurisdictional question, the remaining
issues presented are (1) whether respondent has violated the
provisions of the Act and implementing regulations as alleged
in the proposal for assessment of civil penalty filed, and , if
so, (2) the appropriate civil penalty that should be assessed
against the respondent for the alleged violation based ~pon
the criteria set forth in section llO(i) of the Act.
In determining the amount of a civil penalty assessment,
section llO(i) of the Act requires consideration of the
following criteria: (1) the respondent ' s history o f previous
violations, (2) the appropriateness of such penalty to the
size of its business, (3 ) whether the respondent was negligent ,
(4) the effect of the penalty on the respondent's ability tocontinue in business, (5) the gravity of the violation, and
(6) the demonstrated good faith of the respondent in attempting
to . achieve rapid compliance after notification of the violation.
Discussion
The citation in question in this case is a section l04(a)
citation, with special "siginificant and substantial" (S&S)
finding-s, No. 2077404, issued on January 23, 1984, by MSHA
Inspector Lester Coleman. Mr. Coleman cited an alleged
violation of mandatory safety standard 30 C.F.R. § 77.410,
and the "condition or practice" cited as a violation is
described as follows on the face of the citation form:
The White haulage truck #370 owned by
(Johnson Trucking, Inola, OK. Contractor
I.D. No. FN 6), operating in the 001 pit
was not provided with an operable automatic
warning device which shall gtve an audible
alarm when such equipment is put in reverse.
The record reflects that the citation form, in block
#6, identified the mine operator as Turner Brothers, Inc.,
but that it was subsequently modified to identify the operator
as the respondent, Johnson's Trucking, Inc.

163

Stipulations
The parties stipulated that the Heavener Mine is owned
by Turner Brothers, Inc . , and that the mine is a coal mine
subject to the Act and to the jurisdiction of this Commission
( Tr . 6) •
The parties stipulated that the cited truck was equipped
with an operative warning device, but at the time of the
inspection the device was inoperative when the truck. was
operated in reverse gear (Tr . 7 - 8).
Petitioner's counsel stipulated that the respondent has
no history of prior violations (Tr . 21- 22) .
Petitioner's Testimony and Evidence Regarding the Alleged
Fact of Violation.
MSHA Inspector Lester Coleman testified as to his
background and experience, and he confirmed that on January 23
and 24 , 1984, he made a general inspection of the mine. He
observed the cited no . 370 haulage truck backing down into
the pit area, and the automatic back- up horn or warning
device was not working (Tr . 48) . Two workmen were in the
pit cleaning coal, and an end loader was loading a truck.
In addition to himse l f, a foreman, and a mechanic were also
present . All were on foot, and he estimated that he and
the foreman were 20 to 30 feet from the truck , and that the
coal c leaners were another 40 to 50 feet behind the truck
( Tr . 4 9) •
Mr . Coleman was of the opinion that the lack of an
operative back- up alarm posed a hazard because of the men
and equipment operating in the pit. He believed that the
truck would be in c l ose proximity to the men performing their
v arious dut ies in the pit, and that with all of the equipment
noise, the men would not hear the truck backing up without
an operable alarm (Tr . 50).
Mr . Coleman stated that the truck in question is owned
by the respondent. He confirmed that mine superintendent Payne
advised him of this fact , and that he personally observed the
respondent ' s logo on the truck cab door . He also confirmed
that the respondent had additional trucks operating at the
mine site while he was there , and upon inspecting them , he
found that the back-up alarms were all operable (Tr . 51}.
When asked about the probability of an accident occurring
under the conditions which he cited , Inspector Coleman responded
as follows (Tr. 54, 56 , 58-59}:

16 4

Q. Mr. Coleman, what in your opinion is the
probability of an accident occurring, under the
conditions that you have just described?

A.
I think it is reasonably likely, some of
the statistics that we have gotten in the last
seven months, we have had ten fatalities occurring
just like this .
Q.

Ten fatalities, where?

A.

Nation wide.

*

*

*

*

Q. Mr. Coleman, you stated that it was y our
opinion , that the chance of an accident occurring
was reasonably likely . Could you tell the Court
what you mean by reasonably likely?
A. Yeah, because of the congestion, people on foot
in the area, and the excessive noises from the other
equipment, end loaders, back up horns not working ,
the excessive noise f rom the other equipment , you
know, was -- keep you from hearing a truc kr just
starting to back up.
Q. Okay, but specifically, what do you mean when
you say reasonably, likely, what do you mean by this
term , reasonably, likely to occur?
A. Well, all the -- I can't think of the word
that I want to use, everything is there, that can
contribute to it.

*

*

*

*

Q. Mr. Coleman, what do you base your opinions
on , with regards to the probability of an accident
occurring, under these conditions that you have just
described for us?

A.

Statistics, a lot of it.

Q.

Anything else, besides statistics?

A.

My experience.

Q. What type of experience do you have pertaining
to conditions similar to the ones that we are
discussing here today?

165

A. For the past ten years, I've been an inspector
in these mines.
Q.

Have you observed any similar accidents?

A.

I've never observed one, no.

Q.

What type of injuries could occur to an employee,
in your opinion, if an accident did occur?

A. Well, in my opinion, you know, anything from broken
bones to a death.
Inspector Coleman testified that a mine employee complained
to him that the respondent's trucks were equipped with toggl e
switches so that the drivers could turn the back-up alarms
on and off. He stated that he advised Mr. Payne that toggl e
switches were unacceptable, and that when the defective switch
on the cited truck was repaired, it was not to be equipped
with a switch (Tr. 51). When he returned to the mine on
January 24, 1984, the day after he issued the citation, he
found that "the operator made no apparent effort to correct
the condition" (Tr . 59). He then issued a section 104(b) ·
withdrawa l o rder on the truck, and he did so because a n
operative a l arm had not been installed . He explained tha t
while an automatic alarm had been installed , it h a d been
equipped with a toggle switch. Under the circumstances, he
believed that the toggle switch rendered the alarm "nonautomatic,"
and that is why he issued the order (Tr. 60).
Inspector Coleman explained that the existence of a toggle
switch allows the driver to turn the alarm on and off at his
discretion. Since section 77.410 requires that back-up
alarms be automatically activated when the vehicle is operated
in reverse, the ex~stence of the toggle switch renders the
alarm other than automatic. Mr. Coleman confirmed that he
has issued similar citations in the past. In his opinion,
the use of a toggle switch is a violation of the cited safety
standard (Tr. 59-62).
On cross-examination, Mr. Coleman confi~med that when
he served the citation on mine superintendent Payne, Mr. Payne
informed him that he would contact the respondent and have
one of its mechanics repair the alarm (Tr. 63). When
Mr. Coleman returned the next day, he asked ~1r. Payne whether the
alarm had been repaired. When Mr. Payne responded that it
had not., Mr. Coleman hung a red tag on the truck removing
it from service. He then asked Mr. Payne when the alarm
would be repaired, and when Mr. Payne replied "probably 8:00 a .. m.,
the next morning," Mr. Coleman fixed that as the abatement
time for the order. When asked why he had not contacted

166

the respondent, rather than Mr. Payne, Mr. Coleman stated
that Mr. Payne was the only "management member " present at
the mine. He also stated that he was not obligated to
contact the respondent , even though he cited him , because
" we have independent contractors from all over the country"
( Tr . 6 4- 6 5 ) .
Mr . Coleman stated that after "red tagging the truck , 11
h.e next returned to the mine on January 26, 1984. The back·-up
alarm had been rendered operative , and he terminated the orde r
(Tr . 66) . He confirmed that he personally spoke with
Mr. Johnson about the matter on the evening of January 24,
but not after that (Tr. 67). He indicated that Mr. Johnson
was "pretty angry" over his truck being " tied down, closed
down " (Tr. 69) .
Mr . Coleman stated that he did not speak with the truck
driver at the time he initially observed the vehicle backing
up into the pit (Tr. 71), nor did he speak with him a fter
Mr. Payne advised him that the alarm had not bee n f ix ed (Tr . 77 ).
He confirmed that before he issued the citation, he did not
know whether or not the respondent had an MSHA assigned
Mine I.D . number. He later confirmed that it did, and he
modified the citation to delete Turner Brothers as the
"resp onsible operator , " and he substituted the r espondent
as the operator responsible for the citation (Tr. 73) .
Mr. Coleman initially stated that at the time he issued
the citation, he did not know whether a toggle switch was
installed in the cab of the truck to control the alarm. He
believed that Mr . Payne had a responsibility to insure that
all trucks coming on mine property were in compliance with
the law (.Tr. 75). Mr . Coleman later testified that when
he returned to the mine on January 24, the day after the
citation issued, the cited truck was loaded with coal and
the driver was leaving the pit . He stopped the truck and
had the driver demonstrate how the alarm was repaired. When
he found that a toggle switch had been installed, he decided
that abatement had not been achieved (Tr . 79).
Respondent ' s Testimony and Evidence
James w. Payne, testified that at the time the citation
issued he was employed by Turner Brothers as the mine superintendent . He confirmed that Inspector Coleman issued the
citation after observing a truck backing up into the pit
without the back- up alarm sounding . Mr. Payne also confirmed
that Mr . Coleman told him that he was citing Turner Brothers
for the Citation, but that he would include Johnson • s Trucking
Company on the citation (Tr. 97) .

167

Mr. Payne testified that after the issuance of the
citation on January 23, 1984, he contacted the respondent ' s
shop , and a mechanic carne to the mine that same day (Tr. 97).
When Mr. Coleman returned the next day , the truck had been
repaired, but since a toggle switch had been installed,
Mr . Coleman informed him that it had to be removed. Mr. Payne
then contacted the respondent again and informed them that.
the toggle switch had to be removed (Tr. 98). A part was
then ordered by the respondent so that it could be installed
on the truck transmission to insure that the back- up alarm
operated automatically , and on January 25th, the mechanic
came to the mine with the part to install it on the truck
(Tr. 99). Present were Mr. Coleman, Mr. Johnson, the mechanic,
and Mr. Payne. Mr. Johnson and the mechanic went to the
truck to repair the back- up alarm, and Mr. Johnson told Mr. Coleman
that it would take 15 minutes to complete the repairs, but
Mr. Coleman did not wait , and left the mine. He returned
the next day, and terminated the order on the truck (Tr. 100-103) .
On cross- examination, Mr. Payne confirmed that he had
in the past contacted the respondent's repair garage and
the mechanic when any of its trucks needed attention (Tr . 104) .
He reiterated that the back- up alarm was broken on January 23,
but that it was repaired that same day. The alarm was working
the next day, January 24 , but a toggle switch had been installed.
When Inspector Coleman discovered that a toggle switch had
been installed, he tagged out the truck . Subsequently,
Mr. Johnson and Mr . Coleman were involved in an argument
over the closure order and the abatement (Tr . 105~107) .
Troy Johnson, confirmed that he was notified about the
cited condition on the day that Inspector Coleman issued
the citation. The mechanic informed hirQ that a transmission
switch had broken, and that he h~d to order a part to repair
it. He and the mechanic picked the part up from the supplier
the day ·after the citation was issued , and they went to the
mine site to repair the truck . The truck was repaired within
a matter of minutes, but since Mr . Coleman had left the site,
the order which he placed on the truck remained in effect
until the morning of January 26th (Tr. 111-117) . Mr. Johnson
explained the ~easons for the installation of the toggle switches
on his trucks , and he explained that he has no use for backup alarms on any of his trucks once they leave the mine site
(Tr . 119- 120). He also explained that his trucks generally
have little reason for backing up , and that the normal
practice on mine sites is for the truck to " circle in and out
of areas " where they are loading, and that it is unusual
for the trucks to be operated in reverse (Tr. 123). He
confirmed that he was not present when Inspector Coleman

16 8

observed the truck which he cited backing up into the pit
(Tr. 124). He also confirmed that he was concerned ana upset
over the fact that the truck was taken out of service by
Mr . Coleman (Tr. 125). He identified photographic exhibits
R- 2(a) through 2(F}, as the truck in question (Tr. 128).
The Jurisdictional Question
During his opening statement at the hearing , the
respondent ' s counsel stated that in a prior civil penalty
proceeding concerning these same parties, Docket No. CENT 81-78,
MSHA ' s Kansas City Regional Solicitor ' s Office filed a motion
to withdraw its proposal .for assessment of civil penalty , and
that it did so on the ground that the respondent was not an
11
independent contractor " within the meaning of the Act (Tr . 11) .
A copy of the motion is a matter of record, (exhibit R-1) ,
and it states in pertinent part as follows :

* * * As grounds for this motion, the
Secretary states that after a review of the
facts and circumstances regarding the issuance
of citation 1023638 he has determined that
at the time this citation was issued Johnson's
Trucking, Inc., was not acting with respect
to the mine operator as an 'independent contractor ' within the meaing of that term as
used in section 3(d) of the Act and Part 45
of Title 30 of the Code of Federal Regulations.
Petitioner's counsel stipulated that the motion in question
was filed, and he confirmed that it was filed with Commission
Judge Charles C . Moore, and that Judge Moore granted the
motion and dismissed the prior case by an order entered on
January 8, 1982 (Tr . 14). When asked about the supporting
reasons for the Kansas City Solicitor ' s motion to withdraw
for lack of jurisdiction , counsel stated that " I ' m not really
sure, " but he went on to explain that he was advised that
the solicitor ' s office advised that "he didn't have control
over the work site, and so forth , and I just got the opinion,
that maybe they were going under some of the old type of case
law decision, with respect to independent contractors"
(Tr. 14 - 15) . Counsel confirmed· that at the time the motion
was filed, MSHA ' s Independent Contractor regulations had
been adopted and published at 30 C . P . R . Part 45 (Tr. 15).
ln further explan~tion as to why the pr~or case was
withdrawn , petitioner ' s counsel stated as follows (Tr . 16):
MSHA does have some internal informal guide lines, for when to cite truckers , not having
back-up alarms , and it ' s my understanding in

169

the past, that if the truck is not backing
up in the pit, that it was just going around
in a circle , in a circle and did not back
up, that MSHA would not cite the independent
contractor.
But if the truck was backing up, then MSHA
would cite the independent contractor, and it
may be in the prior case, that the truck was not
backing up, and that may have been one of the
reasons for not doing it.
I don't know if that' .s
still MSHA's informal policy or not, but I
couldn't find it written anywhere.
Respondent's counsel asserted that the respondent is
a general common carrier regulated by the Federal Interstate
Commerce Commission and other appropr~ate state and local
authorities, that it has approximately 30 employees, and
does a gross annual business of approximately 10 million
dollars (Tr . 8). Counsel argued that since the responden t
is a certified interstate public carrier who is also
regulated by the Department of Transportation, i t is in
fact a utility service providing services to the general
public, and is not an independent contractor . Counsel also
maintained that since the cited piece of equipment is a
tractor tr~i l er and not a truck , it is not the type of equipment
intended to covered by the cited mandatory safety standard
section 77.410 (Tr. 11-12). At the close of the petitioner's
case, respondent's counsel moved for a dismissal of the case
on jurisdictional grounds, and he also asserted that the
petitioner had failed to establish a violation (Tr. 91).
The motion was denied (Tr. 94).
Respondent Troy Johnson testified that he operates
trucking, construction, and ready-mix operations, and that
each of these business ventures are incorporated as separate
corporations. His trucking business is incorporated as
Johnson's Trucking, Inc. , and he serves as vice- president
of that corporation. He confirmed that his trucking company
hauls freight and bulk commodities such as fertilizers, road
building materials , different types of iron and copper ore,
and coal, and that this operation encompasses an eleven
state area (T;r. 30-31) . He estimated that the company uses
118 trucks for its haulage business, and these include company
owned trucks as well as trucks owned and operated by independent
haulage contractors who may perform services for his company
(Tr. 3 6) .

1·- '~( 0

Mr. Johnson disputed ·the assertion that he uses coal
haulage "trucks" to haul and deliver coal. While he agreed
that there is only one basic kind of equipment used for this
purpose, he insisted that they are not "trucks." His position
is that they are separate tractor and trailer units · which
are not within the scope and intent of section 77.410. He
identified several photographs as the type of equipment used
for hauling coal (Tr. 34, 38; exhibits R-2 (a) ·, (c) , and (f)).
He believed that these units are "unique" tractor and trailer
units which are used in conjunction with different types of
trailers or "beds.'' His company has approximately 120 to 130
of these trailer beds, and they are used interchangeably
for hauling coal, sand, asphalt, etc. (Tr. 39-41). His
company performs its own maintenance on the trucks (Tr. 34) .
Mr. Johnson denied that he has any formal contractual
arrangements with Turner Brothers, but he did concede that
on the day the citation issued, Turner Brothers paid him
for hauling coal from its mine (Tr . 31). He explained that
he is sometimes compensated by coal brokers for hauling coal
which they have purchased, and at other times he is paid
by the mine operator who produces it (Tr. 31-32). With·.regard
to his relationship with Turner Brothers, Mr . Johnson indicated
that he is simp l y called and told to come to the mine to
pick up and deliver coal which needs to be hauled to one
of Turner's customers (Tr. 33). He stated that during the
period in question, his trucks were at the mine site "most
every day" (Tr. 37), that on any given day he would have
as many as five trucks at the site hauling coal, and that some
of the trucks would be there for more than one trip (Tr. 37-38).
Mr. Johnson could not state the percentage of time
his trucks would be hauling coal, as compared to the haulage
of other products, but he did indicate that his trucks also
loaded barges from tippling areas, and that he hauled "a
lot of the coal that Turner produces, and some of the coal
that McNabb produces" (Tr. 36). In response to a question
as to whether his trucks regularly enter coal mines, he responded
"* * * I will have trucks, at some mines, almost every day,
somewhere" (Tr. 37).
Inspector Coleman stated that independent contractors
are not required to have a legal identity number unti l a
condition warranting a citation is found (Tr. 88). He
confirmed that the person shown on MSHA's indentification
records as responsible for safety and health matters at
the mine was mine superintendent Payne (Tr. 86).
Findings and Conclusions
The Jurisdictional Question
Section 3(d) of the Act defines "operator" as "any
owner, lessee, or other person who operates, controls, or

171

supervisors a coal or other mine or any independent contractor
performing services or construction at such mine ." (Emphasis
added} .
Section 3(g) defines "miner" as "any individual working
in a coal or other mine , 11 and section 3(h) (1) defines " coal
or other mine " as including, inter alis , " lands , excavations ,
structures, facilities , equipment , machines , too l s, or other
property * * used in , or to be used in * * * the work of
extracting such minerals from their natura l deposits . *** . "
The legislative history of the Act clearly contemplates
that jurisdictional doubts be resolved in favor of Mine Act
jurisdiction. The report of the Senate Committee on Human
Resources states:
The Committee notes that there may be a need
to resolve jurisdictional conflicts , but it
is the Committee's intention that what is
considered to be a mine and to be regulated
under this Act be given the broadest possible
interpretation, and it is the intent of this
Committee that doubts be resolved in favor
of inclusion of a facility within the coverage
of the Act.
S. Rep. 95-181, 95th Cong., 1st Sess. (~ay 16, 1977) at 1 4:
Legislative History of the Mine Safety and Health Act, Committee
Print at 602 (hereinafter cited as Leg . Hist.) .
As part of the 1977 amendments to the Federal Coal Mine
Health and Safety Act of 1 969, 30 U. S.C. § 801 et seq . (1969)
(amended 1977) ( " Co~l Act"), the phrase "any independent
contractor performing services or construction at such mine"
was added to the Coal Act's definition of operator . The
amendment was intended "to settle an uncertainty that arose
under the Coal Act, . i . e . , · whether certain contractors are
' operators' within the meaning of the Act , " and " to clearly
reflect Congress ' desire to subject contractors to direct
enforcement of the Act." Old Ben Coal Co., 1 FMSHRC 1480,
1481 , 1486 (October 1979) . · Accord, Phillips Uranium Corp.,
4 FMSHRC 549, 552 (April 1982) .
On the facts of this case, MSHA obviously considered
the respondent an " independent contractor" subject to the
Act . Although the citation was initially served on the mine
operator Turner Brothers, Inc . , the inspector specifically
noted on the face of the citation that the cited truck belonged
to the respondent, and he included the respondent ' s contractor
identifiedation number. He subsequently modified the citation
to show the respondent as the responsible party.

172

MSHA ' s Independent Contractor regulations, which provide
certain requirements and procedures for contractors to obtain
MSHA identification numbers , Part 45, Title 30, Code of
Federal Regulations, section 45 . 1 et ~ ., defines an
" independent contractor" as follows at section 45 . 2(c):
'Independent Contractor ' means any person ,
partnership , corporation, subsidiary of a
corporation , firm , association or other
organization that contracts to perform
services or construction at a mine; * * *
I take note of the fact that section 45 . 3(a) states
that an independent contractor m~y obtain a permanent MSHA
identification number by submittlng certain information to
MSHA's district ·manager. Further, by letter and attachments
filed on December 20 , 1984, in response to my inquiries made
during the course of the hearing regarding the procedure for
assigning mine identification numbers to contractors, petitioner 1 s
counsel submitted a copy of MSHA's policy memorandums concerning
certain guidelines for its independent contractor regulations
found in Part 45 , Title 30 , Code of Federal Regulations,
particularly with regard to t he reporting requirements found
in Part 50 , Sections 50 . 20, 50.30, and 50.40 (accident and
injury reports , and certain production and maintenance
reports and records) . Counsel's letter states in pertinent
part as follows:
Please note that these guidelines, as enforced
by MSHA , only require that certain independent
contractors comply with 30 C . P.R. Part 45 and
secti ons 50 . 20, 50.30 , and 30 C. P.R . Part 50.
However, the fact MSHA does not require certain
independent contractors to get ID numbers does
not mean they cannot be cited for health and safety
violations under the Act .
As explained in the policy memorandum, the ' primary
purpose of 30 C . P.R. sections 45.3 , 45.4 and 50.30
is to collect information that is necessary ~or
MSHA to effectively and efficiently administer the
Act .' Therefore, indepe ndent contractors who do
not spend much time on mine property are not generally
required to get an ID number (see paragraph 8 on page 3).
On pages 2 and 3 of the policy memorandum, MSHA lists
eight groups of independent contractors who should
be required to get ID numbers . However, when
MSHA observes a violation committed by an independent
contractor who does not fall within one of the eight
groups, they assign that independent contractor an ID
Number (see page 3 , l(a)).

17 3

In the instant case, it is my understanding
that the MSHA inspector, who issued the prior
citation which was dismissed, sent in the
information and the Kansas City office issued
Johnson's Trucking an ID number. Johnson's
Trucking did not apply for it.
Included among the groups of "independent contractors"
who are required to get MSHA ID numbers are those contractors
performing the type of work described by item 8 on page 3
of the policy memorandum submitted by petitioner's counsel.
That work is described as fo llows :
Material handling within mine property; including
haulage of coal, ore, refuse, etc., unless for
the sole purpose of direct removal from or delivery
to mine property .
(Emphasis added) .
On the facts of this case, since the sole purpose of
the respondent's trucking services at the mine was to transport
coal from nrine property, it would appear that for purposes
of MSHA's Part 50 regulations, the respondent may not be
considered to be an independent contractor . However i
Guideline #1, which appears at page 3 of the memorandum , goes
on to state that contractors who have not been assigned an
identification number under section 45.3, may nonetheless
be assigned such a number by the appropriate MSHA district
or subdistrict office when they are cited for any violation.
After review of all of these regulatory requirements
seemingly promulgated to identify who is and who is not an
independent contractor, I find them rather confusing and
contradictory. One regulation states that an independent
contractor may obtain an identification number; another
regulation states that no identification number need be
assigned if the contractor's work simply involves hauling
coal directly from the mine property; and yet another one
states that the first time a contractor is observed violating
the law, MSHA's district of subdistrict office will gratuitously
assign such a number to the contractor. Nowhere in any of
this maze of regulatory gobbledygook have I been able to
find a direct and succint regulation providing guidelines
for a simple, direct , and intelligent system for the identification and tracking of independent contractors for purposes
of MSHA's enforcement jurisdiction in cases involving violations
of the mandatory safety and health standards found in Title 30,
Code of Federal Regulations.
In addit'ion to the prior dismissal by Judge Moore, the
respondent's arguments against jurisdiction in this case
is its assertion that it had no express written contract

174

with Turner Brothers to haul its coal, and that its Federal
ICC or DOT authorizations to Act as a "public utility"
prohibits it from entering into any contractual or " independent
contractor" relationships with its customers . Since the
respondent did not elaborate further, and has filed no
supporting arguments or brief on this question , I am unable
to consider this argument in any detail. However, assuming
that the respondent ' s arguments are correct, simply because
the ICC and DOT may have issued certain limitations concerning
its operational authority, does not negate the fact that it is in
a coal haulage business directly related to mining, and the
critical question is whether or not its trucking services
provided to mine operators may be construed or characterized
as services provided by an "independent contractor " within
the meaing of the Act.
In a recently decided "independent contractor" case
concerning a public utility power company providing certain
services to a coal mine operator, Old Dominion Power Company ,
6 FMSHRC 1886 (August 29, 1984), the Commission's majority
held that the power company was an independent contractor
subject to the Mine Act. Several findings by the Commission
with respect to the interpretation and application of the
term "independent contractor" are relevant in the instant
case, and they are quoted below in pertinent part :
Generally, the term 'independent contractor'
describes a party who ' contracts with another
to do something . . . but who is not controlled
by the other nor subject to the other's right
to control with respect to his . . • conduct
in the performance of the undertaking. '
Restatement (Second) of Agency, § 2 (1958) .
(6 FMSHRC 1890- 91) .

* * * the Mine Act is applicable to independent
contractors ' performing services or construction '
at a mine .
* * * ' Service' has been defined to
include: ' the performance of work commanded or
paid by another; ' ' an act done for the benefit or
at the command of another;' and ' useful labor that
does not produce a tangible commodity .' Webster's
Third New International Dictionary (Unabridged)
2075 (1971). * * * At the time of the events at
issue , Old Dominion was at the mine site at the
behest of the mine operator to check the equipment
to determine whether it was functioning properly
and, if necessary, to replace any defective components.
In our view, the work performed by Old
Dominion constututes the performance of a
service and places it within the literal terms of
section 3{d) .
(6 FMSHRC 1891) .

.175

we find it unnecessary to decide in this case
whether ' there may be a point • • . at which
an independent contractor's contact with a mine
is so infrequent or de minimis that it would be
difficult to conclude that services are being
performed. ' National Industrial Sand Assoc . v.
Marshall, 601 F.2d 689, 701 (3d Cir. 1979). See
also Legis. Hist ., supra at 602, 1315. Rather;we conclude that, if there is a point at which
the literal reach of section 3(d) must be tempered ,
that point is not reached under these facts. Here,
Old Dominio.n ' s employees were at mine p r operty
at the request of the mine operator . The request
for Old Dominion's services was made, and responded
to , in accordance with a longstanding , and regularly
maintained, business relationship defined by a
written contract entered into in 1952 as well as
custom and practice .
* * * The extent of Old
Dominion's contact with the mining process cannot
be viewed as de minimis. Accordingly, we conclude
that in these-circumstances , Old Dominion is
properly subject to MSHA standards regulating safe
performance of electrical work on mine sites .
(6 FMSHRC 1892).
We emphasize that by citing Old Dominion fo r the
violation committed by its employees, the Secretary
has acted in accordance with the Commission's
longstanding view that the purpose of the Act is best
effectuated by citing the party with immediate control
over the working conditions and the workers involved
when an unsafe condition· arising from those work
activities is observed. Old Ben, supra; Phillips
Uranium , supra. By citing the operator w1th direct
control over the working conditions at issue, effective
abatement often can be achieved most expeditiously .
Id . Citation of Old Dominion is also consistent with
the Secretary's conclusion, after rulemaking, that
' the interest of miner safety and health will best
be served by placing responsibility for compliance
. • • upon each independent contractor.'
45 Fed. Reg.
44494, 44495 (July l, 1980).
( 6 FMSHRC 1892) .
Oneof the respondent's principal arguments against a
finding of jurisdiction is Mr. Johnson ' s assertion that as
a "public utility ," he is prohibited by law from providing
services as an "independent contractor ." Aside from the fact
that the respondent has failed to provide any evidentiary
or legal support for this conclusion, I take note of the

17fl

fact that in the Old Dominion Power Company case the Commission
held that the utility company was an independent contractor
within the reach of the Mine Act. Except for the absence
of any written contract between the respondent in this
case and the mine operator, the crucial factors resulting
in the Commission's decision in Old Dominion, as enumerated
above, are also present in this case, and a discussion of
these follows below.
The testimony presented in this case ·establishes that
the respondent is engaged in · a trucking business which spans
several states, and that it is clearly an inter-state operation.
At the time the citation was issued, the respondent's truck
was at the mineperforming a service for the mine operator.
The mine operator mined the coal, and the respondent transported
it from the mine. Mr. Johnson confirmed that his trucks
were dispatched to the mine on a daily or weekly basis,
and that more than one truck would often be at the mine
hauling coal on any given day. As a matter of fact, on
the day the truck in question was cited, Mr . Johnson had
other trucks at the mine site , and after they wre inspected
by the inspector, the back-up alarms were found to be in
proper working order. The trucks are dispatched to the mine
at the request of, and in . response to , the needs of the mine
operator , and the respondent is compensated for these services .
Similar services have also been provided for at least one
other mine operator identified by Mr . Johnson {McNabb) ,
and Mr. Johnson confirmed that his trucks are used to haul
coal from tipples to coal barges for loading.
The cited violation in this case occurred in the course
of work and services being performed by the respondent's
employee at a mine which is clearly covered by the Act.
The employee was backing the truck up into a pit area where
the mining, cleaning, and loading of coal was taking place.
Thus, the loading and transportation of the coal from the
mine was an integral part of the rniriing activity, and it seems
clear that MSHA's mandatory safety standards apply to that
working environment.
The testimony adduced in this case also establishes
that the cited truck was owned by the respondent, that the
driver was its employee, and there is no evidence that the
mine operator exercised apy supervision over the driver.
The testimony also establishes that the respondent performed
its own maintenance on the trucks which it owned and that its
own mechanic would make such repairs as required . The
respondent repaired .the cited truck in question, and abated
the violation. Given these circumstances, it seems clear
that the respondent was in the best position to insure that
all applicable mandatory safety standards were complied with .

177

On the facts of this case, respondent has not established
that its trucking services provided to at least two mine
operators .was de minimis . On the contrary , the facts presented
support a conclusion that the respondent had a continuous
arrangement with Turner Brothers to haul its coal , and that
several trucks are at the mine on any given day to provide
these services. Mr. Johnson candidly admitted that he hauls
" a lot of the coal that Turner produces, " and when asked
whether his trucks regularly enter coal mines, he responded
"I will have trucks, at some mines, almost every day , somewhere "
(Tr. 36- 37). Respondent ' s counsel indicated that its trucking
operation has 30 employees and does ten million dollar
gross annual business (Tr . 8).
A secondary jurisdictional defense advanced by the
respondent is the assertion that it does not have a written
contract with any mine operators for the haulage of coal.
This defense is rejected. It seems clear from the record
in this case that the respondent provides coal haulage
services for mine operators, and that these services are
carried out for the mutual benefit of both parties as a
regularly acceptable and normal business custom or practice.
On the facts of this case, the respondent and its customers
have an implied or oral contractual relationship , and it seems that
each enjoy the benefits of such a relationship . Under the
circumstances, I cannot conclude that the lack of any
evidence of an express written contract is relevant or material
to the jurisdictional status of the respondent in this case.
After careful consideration of all of the evidence and
testimony adduced in this case with respect to the j~risdictional
question, I conclude and find that for purposes of this proceeding,
Johnson's Trucking Company is an independent contractor within
the meaning o;f the Act, and that at all relevant times was
subject to MSHA ' s enforcement and compliance jurisdiction.
MSHA ' s Dismissal of the Prior Proceeding
In the answer filed in this case, the respondent asserts
that MSHA is not consistent in the manner in which it has
enforced the Act, and that the failure of uniform enforcement
is discriminatory . While I can readily understand the respondent ' s
frustrations, it should take solace in the fact that when
dealing with " independent contractors," consistency and
uniformity in the interpretation and application of its
promulgated guidelines is not one of MSHA ' s strong points . The
decisional case law which has developed since the adoption
of the " independent contractor" regulations attest to the
problems created by lack of uniformity and consistency.
However, the fact that such inconsistencies arise from
time to time, as it has in this case , does not establish a
a discriminatory scheme of endorcement .

.178

The p r i o r civil penalty case i nit iated by t h e Kansas
City Regional Solicitor ' s Office against t h i s same r espondent
concerned a citati on which was issued because one of its
t rucks had an inoperable back- up alarm. As indicated earlier,
the case was dismissed by Judge Moore on motion by the
solicitor's office on jurisdictional grounds . The solicitor
withdrew t he civil penalty proposal because he made a determination
that at the time that particular citation was issued , Johnson's
Trucking, Inc., was not acting with respect to the mine operator
as an independent contractor within the meaning of section 3(d)
of the Act , and MSHA's Part 45 , Independent Contractors
regulations .
The factual background which prompted the prior dismissal
on jurisdictional grounds is not the same as that presented
in the case before me for adjudication.
I take note of the
fact that in the prior case, the situs of the mining operation ,
as well as the mine operator, were both under the enforcement
jurisdiction of MSHA's Kansas City Regional Office .
In
the case before me, the mining operation , as well as the
operator (Turner Brothers·), are not the same, and they are
within the enforcement jurisdiction of MSHA ' s Dallas Regional
Office . While I am in sympathy with the respondent ' s
frustrations and concern over MSHA ' s apparent inconsistent
jurisdictional positions , I am constrained to adjudicate
the case before me on its particular facts . MSHA's prior
discretionary decision to withdraw its civil penalty proceeding ,
mistaken or not , is not binding on me in the instant case ,
nor is it controlling.
I take particular· note of the fact that in the prior
case , the attorney who represented the respondent is the same
attorney who now represents him in the case before me . Under
the circumstances , I believe it is reasonable to assume
that he is aware of the facts which prompted MSHA ' s motion
for a dismissal of the prior case.
If not, I further believe
that he had a duty in this case to come forward with a full
argument in support of any conclusion that the respondent
is not subject to the Act, or to at least initiate discovery
to ascertain any critical distinctions which he believes
support a conclusion that the respondent is not within the
reach of the Act .
S ince this is a civil penalty proceeding, the initial
burden of establishing jurisdiction, as well as the alleged
fact of violation, lies with the petitioner. While it would
have been better for MSHA ' attorney to 11 lay all the cards
on the tabl e " at the beginnin g of the hearing, rather than
have me drag it out of him, 11 card- by- card , " he ·finally conceded

179

the possibility of a mistake on the part of his counterpart in the Kansas City Solicitor ' s Office with respect to
the jurisdictional question . In response to my questions
during the hearing , counsel reluctantly produced an internal
memorandum prepared by an MSHA attorney in the Kansas City
Regional Solicitor ' s Office, addressed to the Regional
Solicitor, taking issue with another attorney ' s interpretation
of MSHA's Part 45 regulations, as applied to the facts in
the prior case. The memorandum was received in camera,
and counsel has filed a letter strenuously objecting to the
release of the document on grounds of an asserted " government
deliberative process privilege, " as well as an assertion
that the information contained therein is irrelevant to
any issue presented in this case.
With regard to the question of relevancy, counsel's
objections to the release of the memorandum in question on
this ground IS REJECTED. The respondent here has specifically
placed the question of jurisdiction in issue. Given the fact
that the respondent's answer clearly implied t hat the facts
in both cases were the same, and that it was being charged
with the very same violation , the basis for MSHA ' s prior
conclusions and motion for dismissal are certainly relevant .
This is precisely the point made earlier in this decision
concerning MSHA's inconsistent positions concerning independent
contractors. Rather than candidly admitting that a mistake
was possibly made, with full disclosure as to the facts, counsel
here obviously wishes to spare his colleagues, including the
regional solicitor, some embarrassment over an apparent
internal disagreement among government attorneys as to the
reach of MSHA's Part 45 regulations.
During the course of the hearing in this case , petitioner's
counsel offered some insight into a possible explanation as
to why the pr.ior case was not pursued. He alluded to the
fact that in the prior case, the facts apparently indicated
that the cited truck was not backing up at the time the inspector
discovered that it had an inoperable back- up alarm , and
that since it apparently took a circle route, and did not back
up, the independent contractor truck operator driver would not
be cited . Since there was not evidence that the truck was
backing up , counsel surmized that this influenced the solicitor ' s
decision not to pursue the matter further.
I have reviewed the " internal memorandum" .that counsel
here so zealously wishes to protect from disclosure, and I
will not order that it be released or made a part of the
public record in this case . It will remain sealed with the
record as an in camera document.
I find nothing persuasive

180

in that document that would lead me to conclude that the
respondent, on the facts of the case before me, is not an
independent contractor. As a matter of fact, although the
author of the in camera document disagreed with one of his
fellow attorneys who ~s not fully identified by name , with
respect to the interpretation and application of the term
"independent contractor" pursuant to 30 C.P.R. Part 45,
he nonetheless concurred and agreed with the ultimate
conclusion that the case against the respondent should not
be litigated, and that the case should be dismissed .
Fact of Violation
The respondent in this case is charged with a violation
of mandatory safety standard section 77 .4 10 , which requires
certain designated equipment to be equipped with an adequate
automatic warning device which shall give an audible alarm
when such equipment is put in reverse. The petitioner has
established by a preponderance of the evidence and testimony
adduced in this case that the cited truck did not have such
a required device at the time the inspector observed it operating
in reverse, and the respondent has not rebutted this fact.
Although the question of the use of a toggle switch has been
raised in this case, I need not address that question .
Respondent is not cited with using such a device, and I
have decided the case on the limited issue as to whether or
not the truck in question complied with the requirements
of section 77.410 . Since I have concluded that it did not ,
I conclude and find that the petitioner has established a
violation, and the citation IS AFFIRMED .
While I have affirmed the citation issued in this case,
I feel compelled to comment on the procedures followed by
the inspector in issuing the citation . While it is clear
that at the time Inspector Coleman cited the truck in question
for an inoperable back-up alarm, he had no knowledge regarding
the installation of any toggle switch . He simply assumed
that the alarm was inoperative because he did not hear it
sounding at the time he observed the truck operating in
reverse while it was backing up into the pit . In my v~ew ,
while this is sufficient to sustain a violation, it seems
to me that when an inspector finds a condition that he believes
constitutes a violation, he should at least determine the
cause of the violation so that he may make an informed judgment
as to what is required to achieve abatement. Here , the inspector
did not initially speak to the driver of the truck, nor did
he look into the cab to ascertain whether a toggle switch
was installed. He simply "walked away " from the situation,
and left it to the mine superintendent to ~nsure that
corrective action was taken .
Although Inspector Coleman indicated on the face of
his citation that the cited truck belonged to the respondent ,

t81

he made no effort at the time he issued it to contact the
respondent to specificall y put him on notice that he was to
take the corrective action . The inspector's explanation
that he has to deal with a great number of independent
contractors does not justify his failure to immediately
notify the respondent of the citation. On the facts of
this case, the independent contractor was readily identifiable,
and it is inexcusable for an inspector to simply take the
" easy route " of citing the mine operator . Inspection
practices of this kind do little to enhance safety, but do
much to escalate and exacerbate otherwise routine citations,
and MSHA should give more attention to such practices.
Since the inspector modified his citation to show that
the independent contractor was the responsible party, and
since the record here establishes that the respondent was
on notice as to the violation, and subsequently abated the
condition, I cannot conclude that it has been prejudiced by
the inspector's initial failure to name it as the responsible
party or to immediately notify it of the violative condition .
I reject Mr . Johnson's assertion that the cited piece
of equipment in this case was not a " truck " within the meaning
of section 77.410 , and that it is somehow a "unique " piece of
equipment that is beyond the reach of the standard . Having
viewed the photographs of the cited truck, and after consideration
of all of the testimony in this case, I find that the cited
truck , which consists of a unit composed of a "tractor trailer "
and an attached coal carrying bed, constitutes a "truck"
within the meaning and intent of section 77 . 410 .
The respondent has not rebutted Inspector Coleman ' s
testimony that at the time he observed the cited truck backing
into the pit with an inoperable back- up alarm, two workmen
were on foot in the pit cleaning coal, an end loader was
loading coal, and the inspector, a mechanic , and a foreman
were also on foot. Although the cleanup men were some 40 to
50 feet behind the truck , the other individuals were 20 to
30 feet behind the truck, and the inspector believed that
in the normal course of backing up, the truck would be within
close proximity of all of these individuals. With the normal
equipment noises emanating from the truck and end loader,
the inspector believed that the men working in the pit would
not hear the truck backing up without an operable audible
alarm to warn them, and he believed that, in these circumstances ,
it was reasonably likely that an accident could occur,
and that in such an event, the men would sustain serious
or fatal injuries .

182

Given the foregoing facts, I agree with the inspector ' s
assessment of the likelihood of an accident and injuries.
Accordingly, I conclude and find that the violation was
significant and substantial, and the inspector's finding ·
in this regard . IS AFFIRMED.
Negligence
In view of MSHA ' s prior self-initiated withdrawal and
dismissal of the prior civil penalty proceeding against the
respondent for an identical alleged violation of the back- up
alarm requirements of section 77 . 410, including the respondent's
reliance on tbat decision , I conclude and find that the
violation in this case resulted from a slight degree of
negligence on ·the respondent ' s part. The stipulation by the
respondent that the cited truck was equipped with an operative
device of some sort , although inoperative when the truck
was operated in reverse , is at least indicative of the fact
that the respondent was not totally oblivious to the fact
that the truck was required to be equipped with such a device .
Gravity
I conclude and find that the lack of an operable audible
back- up alarm constitutes a serious violation in that the possible
fai l ure of the men on foot behind the truck to hear it when
it backed up exposed them to a real hazard of being struck.
Good Faith Compliance
Respondent ' s counsel conceded that the January 24, 1984,
section 104(b) withdrawal order was not contested , but he
explained that " I think he (the respondent) did , contest it,
by just protesting it " (Tr. 81) . Counsel conceded that since
no formal contest was filed within the statutory time period
provided by the Act , that the legality of the order and any
issue concerning the reasonableness of the abatement time ,
is not directly in issue in this civil penalty case , but that
I may consider the circumstances in any finding concerning
good faith abatement (Tr . 81) .
The unrebutted facts in this case establish that
immediately upon notification of the violative condition ,
the respondent dispatched a mechanic to the mine to repair
the inoperable back- up alarm. While the record is not
absolutely clear as to what transpired after this , it seems
apparent to me that the mechanic either installed a toggle
switch, or repaired one which had already been installed, but
that this met with opposition from the inspector who believed

183

that such a device was illegal. However, petitioner's counsel
conceded that there is no evidence that the respondent was
ever told that a toggle switch could not be used (Tr. 84),
and testimony of Mr. Johnson and Mr. Payne concerning the
respondent's abatement efforts, particularly with respect
to the purchase and installation of the part required to
render the inoperable alarm "automatic" stands unrebutted
by the petitioner. Under the circumstances, I conclude and
find that the respondent took reasonable and prompt steps
to achieve abatement in this case, and that its efforts in
this regard support a conclusion that it exercised good faith
in ultimately achieving compliance.
History of Prior Violations
Petitioner's counsel s~ipulated that the respondent ha s
no history of prior violations (Tr. 21-22), and I adopt this
as my finding on this issue .
Size of Business and Effect of Civil Penal ty on the Responden t's
Ability to Continue in Business
For the purposes of this proceeding, and::·on .. the basis of
the available information concerning the respondent's trucking
operation (30 employees ; over 100 trucks; and approximate l y
ten mi l lion dollars in annual revenues) , I conclude and f ind
that the respondent i s a fairly large independent contractor ,
and that the civil penalty which I have assessed for the
violation in question will. .not adversely impact on its ability
to continue in business.
Penalty Assessment
On the basis of the foregoing findings and conclusions ,
and taking into account the requirements of section llO(i) of
the Act, and all of the foregoing facts and circumstances
presented in this case, I conclude and find that a civil penalty
assessment in the amount of $50 for the citation in question
is reasonable.
ORDER
The respondent IS ORDERED to pay a civil penalty in
the amount of $50 for the citation in question, and payment is
to be made to the petitioner within thirty (30) days of the
date of this decision. Upon receipt of payment, this matter
is dismissed.

#
~
/~~tras
Administrative Law Judge

184

Distribution:
Jack R. Ostrander, Esq ., u.s. Department of Labor, Office of
the Solicitor, Rm. 501, 555 Griffin Square, Dallas, TX 75202
(Certified Mail)
Gary Brasel, Esq., P.O. Box 1093, Sand Springs, OK 74063
(Certified Mail)

slk

185

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

22041

JAN 3 0 1985
U. S. STEEL MINING CO., INC.,
Contestant

v.

CONTEST PROCEEDING
0
0

SECRETARY OF LABOR,
MI NE SAFETY AND HEALTH
ADMINISTRATION {MSHA) ,
Respondent ,
and
UNITED MINE WORKERS OF
~!ER ICA {UMWA),
Intervenor

0
0

Docket No. WEVA 84-335-R
Order No . 2266009 ; 6/ 29 / 8 4
Morton Mine

0
0

~
g

:

DECISION
Appearances :

Before:

Louise Q. Symons , Esq . u u. s . Stee l Min i n g
Company, Inc. , Pittsburgh , Pennsylvania , fo r
Contestant;
Heidi Weintraub, Esq., U.S. Department of
Labor, Office of the Solicitor, Arlington,
Virginia, for Respondent;
Charles Johnson, United Mine Workers of
America, Washington, D.C., for Intervenor.

Judge Melick

This case is before me upon the application for review
f iled by the U.S. Steel Mining Company, Inc. {U.S. Steel)
under section 107 of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801 et. seq., the "Act", to challenge
the issuance by the Secretary of Labor of an imminent danger
withdrawal order on June 29, 1984. ' The general issue before
me is whether the conditions existing at the time the withd r awal order was issued constitute an "imminent danger"
vd thin the meaning of section 3 { j) of the Act.
"Imminent
dang e r" is there defined as "the existence o f any condition
or practice in a coal or other mine which could reasonably
be expected to cause death or serious physi c al harm before
s uch condition or practice can be abated."

186

The order at bar COrder No. 2266009) issued pursuant to
section 107(a) of the Act,l reads as follows:
The investigation of a fatal powered
haulage accident that occurred in B entry
near the third crosscut outby the face on
main south section (MMU 040-0) revealed that
the following conditions constitute an
iminent {sic] danger. The Joy shuttle car,
(Serial No. ET1Q618, Approval No. 2G-2216-8)
was not blocked against motion while repairs
to a stuck conveyor chain was [sic] in
progress. Motion of the shuttle car was not
necessary to make the repairs (75.1725(c)) o
The underlying cause was the hazard created
when the operator modified the tram control
located near the center of the shuttle car
operators compartment . The modification
· caused the tram lever to extend into the
operator compartment to such an extent that
accidental activation could occur. The lever
was accidentally moved while other activities
were being preformed [sic] which resulted in
fatal injuries to a miner o
On June 27, 1984, at 11:25 p.m. an accident occured in
the Morton Mine resulting in the death of Jerry w. Jarrell,
an electrician. The deceased had been performing mechanical
repairs on a shuttle car and had positioned himself close t~
the mine floor near the left front tram motor and bumper in
an attempt to observe the conveyor chain beneath the shuttle
car. While attempting to operate the conveyor and boom control simultaneously, it appears that the shuttle car operator accidentally contacted a modified tram control lever
!section 107(a) of the Act provides that "[i]f, upon any
inspection or investigation of a coal or other mine which is
subject to the Act, an authorized representative of the
Secretary finds that an imminent danger exists, such
representative shall determine the extent of the area of
such mine throughout which the danger exists and issue an
order requiring the operator of such mine to cause all
persons, except those referred to in section 104Cc), to be
withdrawn from, and to be prohibited from entering, such
area until an authorized representative of the Secretary
determines that such imminent danger and the conditions or
practices which caused such imminent danger no longer
exist."

187

causing the unblocked shuttle car to move about 2 feet.
The
movement caused the victim's head to be crushed between the
shuttle car bumper and the mine floor .
Upon completion of his investigation on June 29, 1984 ,
MSHA Inspector Homer S. Grose issued the withdrawal order at
bar .
According to Grose three primary factors led him to
conclude that an imminent danger existed. First , the tram
control lever in the cited shuttle car had been modified so
that the hand control extended into the operator's compartment some 2-1/2 inches past the deenergizing switch (panic
bar) and 1 - 3/4 inches above the floor of the compartment .
Grose opined that the control protruded so far into the
operator 0 s compartment that it could be accidentally
triggered, and that this did in fact occur 2 days prior to
the issuance of his order, leading to the fatality.
The second factor Grose relied upon in finding an
imminent danger was the continuing practice at the Morton
Mine of performing repairs on mobile equipment without
blocking it against tramming motion when such motion was not
required for repairs.
Inspector Grose found , and it may
reasonably be inferred 1 that had the cited shuttle car been
properly blocked Mr. Jarrell would not have been killed .
u.s. Steel i s Chief Inspector , Carl Peters , conceded that i t
was not the practice at the mine to block equipment under
such circumstances because they did not believe that it was
required by the regulations. Peters acknowledged moreover,
that U. S. Steel changed this practice only "to get out from
under the order".
It may therefore reasonably be inferred
that without the withdrawal order issued by inspector Grose,
u.s . Steel would have continued the same practices of not
blocking equipment under the same circumstances that led to
the fatality. Whether or not u.s Steel was in violation of
the standard for equipment blocking (30 C.F.R. § 1725(c))
is, of course , a question not before me in this proceeding.
Freeman Coal Mining Corp. , 2 IBMA 197.
Finally , the determination by Inspector Grose that an
imminent danger existed was based upon the e xpectation that
equipment would continue to be operated and repaired in the
vicinity of other miners. Grose observed that several
fatalities had already occurred "this year" where miners had
been pinned against ribs by a shuttle car . Within the above
framework of evidence I find that indeed at the time the
withdrawal order at bar was issued there existed an "imminent danger " within the meaning of the Act and that the
Secretary has met his burden of proof in support of that
order. See 5 U.S . C. § 556(d).

188

In reaching this conclusion I have not failed to consider the applicant's argument that the absence of serious
physical injuries or other fatalities over the 8 years
during which the tram lever had been modified, demonstrates
that there was no imminent danger. In this case however the
cited conditions and practices had in fact already caused
the death of a miner and the evidence clearly indicates that
those same or similar conditions and practices would have
continued. Accordingly considering this past history the
conditions and practices could reasonably be expected to
cause serious or fatal injuries in the future.

u.s. Steel also appears to imply in its posthearing
brief that the cited tram control lever had already been
shortened as a result of a section 103(k) order before the
citation at bar had been issued. There is no evidence in
the record however to support this contention and inspector
Grose indeed testified that at the time he issued the order
at bar the tram control lever had not been modified. U.S .
Steel also suggests that since the shuttle car which had
crushed the deceased in this case was in fact blocked during
the rescue efforts and remained blocked at the time the withdrawal order herein was issued , it was erroneous for Inspector Grose to assume that the shuttle car would not remain
blocked. The blockage necessary to elevate the shuttle care
to remove the body of the deceased was not however the same
type of blockage cited by Inspector Grose as an element of
the i~ninent danger . On the contrary, u.s. Steel's Inspector Peters clearly stated that, but for the withdrawal order
in this case, u.s. Steel would have continued its practice
of not blocking equipment during similar repairs. The contention is therefore irrelevant .
Finally, U.S. Steel contends that the subject withdrawal order was issued upon facts existing at the time of
the fatality on June 27, 1984 and not upon events 2 days
latar when the order was issued . While the wording of the
order appears to support this contention, Inspector Grose
made it clear at the hearing in this case that although he
relied upon the fatal accident as evidence of the type of
accident that could occur as result of the circumstances he
found 2 days later he was nevertheless relying upon facts
existent on June 29, 1984, for his conclusion that an "imminent danger" existed at that time. The conclusions of inspector Grose are supported by the credible evidence of record.
Old Ben Coal Corporation v. Interior Board of Mine Operation
Appeals, 523 F.2d 25 (7th Cir., 1975).

189

Order No. 2266009 is accordingly
cation for review denied.

firmed and the appli-

Distribution:
Louisa Q. Symons, Esq., U. S. teel Mining Company , Inc. , 600
Grant Street, Room 1580, Pittsburgh, PA 15230 (Certified
Mail)
He i di Weintraub, Esq. , Office of the Solicitor , U. S . Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Char l e s Johnson , International Union Safety Representative u
United Mine Workers of America , 900 Fifteeth Street u
Washington , D.C o 20005
(Certified Mail )
rbg

190

FEDERAL MtrfE SAFETY AND HEALTH REVIE\\ ~OMM ISSION .
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLI NE. lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

OCi 17 198~
SECRETARY OF LABOR ,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDI NG
Docket No: CENT 84 - 24 - M W 24
A/0 No;
4·1 - 00010- 05503
Capitol Cement Plant

Vo

BIGELOW LIPTAK CORPORATION ,
Respondent
DECISION
Appearances :

Jack F. Ostrander , Esq ., Office of the
Solicitor , U.S . Department of Labor ,
Dallas, Texas, for the Petitioner
Laurel D. Breitkopt , for the Respondent

Before:

Judge Moore

Bigelow Liptak Corporation i s a construction company
and at the time of the events involved in t hi s case , it was
engaged in the construction of a large vessel for t he
Capitol Cement Company. Bigelow Liptak stipulated that it
was covered by and subject to the Federal Mine Safety and
Health Act of 1977 .
The company ' s specific task was to l ay t h e brick and
add gunnit e to the inside of the steel vessel. Respondent ' s
exhibit 2 was a drawi ng of the vessel bu t it was neither to
scale nor is it accur ate in the measurements s hown . · */
The tubular vessel with a cone- shaped l ower part is us ed in
the manufacture of cement . At the time of the inspection
involved herein, respondent had already l a i d the brick , and
had completed the sprayi ng of the gunnite , a stucco-l ike
cement mixture, and was engaged in cleani ng up t he g u nnite
tha t had bounced off the walls and fallen into the lower
part of the conical vessel .
I n spec t or Li lley said he entered
the vessel through the port depicted on the right hand s i de
of respondent ' s exhibit 2 and that he saw workers on two
levels below him . On his level there was at least one
worker and the scaffolding consisted of l oose boards laid

*

The court reporter states that the exhibits were mail ed with
the transcript . This office has no record that they were
received.
I am attaching a drawing that is consistent with my
recollection.
If this decision is appealed , t he parties
will have to resubmit the exhibits for the Comm i ssion .

l 91

across the pipes. The boards were overlapping in some
places and did not go all the way to the outside edge of the
vessel in other places. There was a hole through which the
spilled gunnite was being hoisted from the lower level.
I.nspector Lilley, after being informed that respondent could
complete its job in about an hour, nevertheless thought the
situation so hazardous that a serious injury might occur ·
before that time elapsed. He thus issued an imminent danger order
and alleged therein a violation of 30 C.P.R. § · :56.11-27.
The dimensions of the vessel are in dispute. It was
between 11 and 15 feet in diameter and I find that if a
person fell from the level from where Inspector Lilley was ,
he would fall 16 feet before striking the bottom level where
a female was loading the gunnite into buckets . I find this
is a hazard to the workers at the bottom level, as well as
to one who might fall from the top level as well as a hazard
to the one working in the middle level. Respondent admitted
that the port shown on respondent's exhibit 2 was higher
than the drawing indicated~
The fact that respondent rents scaffolding, in this
case from a Safeway Scaffolding Company, and that the
company that rents the scaffolding guarantees its safety
does not excuse respondent from this violation o The scaffold i ng
was assembled by respondent and I find that it was assembled
in a negligent manner . The respondent is a fa i rly large
company and it did abate the violation in good faith but the
negligence and gravity were high. I find the special assessment
of $600 to be reas.o nable and therefore assess that amount as
the appropriate penalty.
Respondent is accordingly directed to pay to MSHA
within 30 days, a civil penalty in the amount of $600.

11

fJ j · J' { ..'. f/IC70U'-/
{}/}J n,m{_p (f;
vna/V&~
Charles C. Moore, Jr.
Administrative Law Judge
Distribution:
Jack F. Ostrander, Esq., Office of the Solicitor, u.s.
Department of Labor, 555 Griffin Square Building, Dallas,
TX 75202 (Certified Mail)
Laurel D. Breitkopt, u.s. Gypsum Company, Legal Department,
101 So. Wacker Drive, Chicago, IL 60606 (Certified Mail)
Attachment 1·
/db

192

Pl£f'Mil tll!l/((1/l (1/l,f
'----- ~. ·--·-··-··-·
-··· ·-·····- -- -- ·· .
...

R/ZfftJNt7Jt~T's
~RntJ'l

193

IZY#ti?IT :2-

Ffl/11

..