JUNE 1993

COMMISSION DECISIONS AND ORDERS
Ronny Boswell v. National Cement Company
SE 90-112-DM
L.M. Karnes employed by J.H.Shears Sons
CENT 92-333-M
Twentymile Coal Company
WEST 91-449
LAKE 91-636
Zeigler Coal Company
s & H Mining, Inc.
SE 91-32
Island Creek Coal Company
KENT 92-625
Kiah Creek Mining Company
KENT 92-964
Cougar Coal Company
KENT 92-878
SPECIAL 92-02
Pittsburg & Midway Coal Mining Co.
Lonnie Ross/Charles Gilbert v. Shamrock
Coal Company
KENT 91-76-D
KENT 92-776
06-29-93 Lynx Coal ompany
06-29-93 BethEnergy Mines, Inc.
PENN 89-277-R
SPECIAL 92-03
06-29-93 Cyprus Orchard Valley Coal Corp
06-29-93 Cyprus Empire corporation
SPECIAL 92-04
SPECIAL 92-05
06-29-93 Consolidation Coal Co., etc.
SPECIAL 92-06
06-29-93 Monterey Coal Company
SPECIAL 92-07
06-29-93 General Chemical Corporation
SPECIAL 92-08
06-29-93 FMC Wyoming Corporation
SPECIAL 92-09
06-29-93 AKZO Salt Incorporated
SPECIAL 92-10
06-29-93 Cyprus Emerald Resources, Corp.
SPECIAL 92-11
06-29-93 Mountain Coal Company
SPECIAL 92-12
06-29-93 Southern Ohio Coal Company
06-29-93- Windsor--coal Company
SPECIAL 92-13
06-29-93 Energy West Mining Company
SPECIAL 92-14
06-29-93 Centralia Mining Company
SPECIAL 92-15
SPECIAL 92-16
06-29-93 Amax Coal Company
SPECIAL 93-01
06-29-93 Sunnyside Coal Company
06-29-93 Westmoreland Coal Company
SPECIAL 93-02
SPECIAL 93-03
06-29-93 LTV Steel Mining Comany
06-07-93
06-22-93
06-22-93
06-22-93
06-22-93
06-23-93
06-23-93
06-23-93
06-24-93
06-24-93

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

935
939
941
949
956
962
965
967
969

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

972

979
981
988
991
994
997
1000
1003
1006
1009
1012
1015
1018
1021
1024
1027
1030
1033
1036

CENT 92-119
Pg.
LAKE 92-399-M-A Pg.
CENT 92-276-RM Pg.
KENT 92-669
Pg.

1039
1050
1052
1061

CENT 92-341-M
WEVA 92-1008
KENT 92-604-M
KENT 90-429
WEST 90-112-R
LAKE 92-247-RM
PENN 92-648
L~~E 93-52-M
WEST 91-168
WEST 92-216-R
WEVA 92-1194
LAKE 90-132-DM
PENN 92-895
WEVA 92-1075
YORK 92-124-M

1066
1070
1080
1106
1107
1153
1176
1180
1182
1185
1193
1196
1200
1209
1213

ADMINISTRATIVE LAW JUDGE DECISIONS
05-07-93
06-02-93
06-02-93
06-03-93
06-07-93
06-07-93
06-09-93
06-09-93
06-15-93
06-16-93
06-16-93
06-21-93
06-21-93
06-21-93
06-21-93
06-22-93
06-23-93
06-23-93
06-23-93

Pittsburg & Midway Coal Company
USX Corporation, Minnesota Ore
Jerry Ike Harless Towing
Mullins and Sons Coal Company
Glenn Burwick employed by Burwick
Construction Company
Martin Sales & Processing
Adams Stone Corporation
Ramblin Coal Company, Inc.
Wyoming Fuel Company
u.s. Steel Group, Minnesota Ore
The Harriman Coal Corporation
Oglebay Norton Taconite Co.
Mid-Continent Resources, Inc.
Energy West Mining Company
Consolidation Coal Company (Partial)
Clifford Meek v. Essroc Corporation
BethEnergy Mines, Inc.
Valley Camp Coal Company
Genstar Stone Products Co.

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

ADMINISTRATIVE LAW JUDGE DECISIONS[ CON'T

06-25-93
06-28-93
06-29-93
06-30-93
05-25-93

Sec. Labor on behalf of Ronny Boswell
v. National Cement Company, Inc.
Peabody Coal COmpany
Mid-Continent Resources, Inc.
Consolidation Coal Company (Partial)
Sec. Labor on behalf of Perry Poddey
v. Tanglewood Energy, Inc.

SE 93-48-DM
KENT 92-818
WEST 91-168
WEVA 92-992

Pg.
Pg.
Pg.
Pg.

1250
1258
1262
1264

WEVA 93-287-D

Pg. 1296

WEST 92-802-M
WEST 93-105-M

Pg. 1299
Pg. 1301

ADMINISTRATIVE LAW JUDGE ORDERS

06-11-93
06-11-93

Asamera Mineral (US) I Inc.
Asamera Mineral (US) I Inc.

JUNE

1993

Review was granted in the following cases during the month of June:
Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No.
WEVA 92-922.
(Judge Maurer, April 30, 1993).
Secretary of Labor, MSHA v. Prabhu Deshetty, employed by Island Creek Coal
Company, Docket No. KENT 92-549.
(Judge Melick, May 6, 1993).
Secretary of Labor, MSHA v. Pittsburg & Midway Coal Mining Company, Docket No.
CENT 92-142.
(Judge Lasher, May 7, 1993).
Secretary of Labor, MSHA v. L.M. Karnes, employed by Shears Sons, Inc., Docket
No. CENT 92-333-M.
(Chief Judge Merlin, Default Decision of April 23, 1993).
Secretary of Labor, MSHA v. Island Creek Coal Company, Docket No. KENT 92-625.
(Judge Melick, Settlement Approval of May 4, 1993- unpublished).
Secretary of Labor, MSHA v. Kiah Creek Mining Company, Docket No. KENT 92-964.
(Chief Judge Merlin, Default Decision of June 1, 1993).
Secretary of Labor, MSHA v. Cougar Coal Company, Inc., Docket No. KENT 92-878.
(Chief Judge Merlin, Default Decision of May 20, 1993).
Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No.
WEVA 92-798.
(Judge Feldman, May 17, 1993).
----------

Secretaryof Labor, MSHA v. Lynx Coal Company, Inc., Docket No. KENT 92-776.
(Chief Judge Merlin, Default Decision of May 20, 1993).
The following cases were Denied for Review during the month of June:
Elmer Darrell Burgan v. Harlan Cumberland Coal Company, and Dixie Fuel Company
Docket Nos. KENT 92-915-D, and KENT 93-101-D.
(Judge Feldman, May 12, 1993).

COMMISSION DECISIONS AND ORDERS

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

20006

June 7, 1993

RONNY BOSWELL

v.

Docket No. SE 90-112-DM

NATIONAL CEMENT COMPANY

BEFORE:

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
This discrimination proceeding, ar~s~ng under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act" or
"Act"), is before the Commission a second time. Administrative Law Judge Roy
J. Maurer sustained Ronny Boswell's discrimination complaint alleging that
National Cement Company ("National Cement") had unlawfully disqualified him
from his position as a utility laborer and reassigned him to a position as a
payloader operator, but concluded that, although Boswell was entitled to
reinstatement to his former position, he was not entitled to backpay. 13
FMSHRC 207 (February 199l)(ALJ). The Commission granted National Cement's
petition for discretionary review, which challenged the judge's finding of
unlawful discrimination. The Commission affirmed the judge's decision in part
and vacated it in part, remanding the case to the judge to consider whether a
particular incident involved protected activity by Boswell and whether
National Cement had established an affirmative defense to Boswell's prima
facie case of discrimination. 14 FMSHRC 253 (February 1992)("Boswell I").
On remand, the judge again sustained Boswell's discrimination complaint,
but awarded Boswell backpay and interest, which he had not awarded in his
earlier decision. 14 FMSHRC 541 (April 1992)(ALJ)("Boswell Remand"); 14
FMSHRC 1135 (July 1992) (ALJ). The Commission granted National Cement's
petition for discretionary review of the judge's backpay a~ard. For the
reasons that follow, we conclude that Boswell's entitlement to backpay was not
properly before the judge on remand, and we vacate his backpay award.

935

I.
Procedural History
The factual background of this matter is set forth in Boswell I, 14
FMSHRC at 253-55. In his first decision in this matter, the judge found that
Boswell had engaged in several incidents of protected activity. 13 FMSHRC at
212-14. He also found that National Cement's disqualification of Boswell from
his position as a utility laborer was motivated in major part by his protected
activity and, thus, that he had been discriminated against in violation of the
Mine Act. 13 FMSHRC at 213. The judge concluded that Boswell was entitled to
reinstatement as a utility laborer and expungement from his personnel records
of all derogatory information relating to his disqualification. 13 FMSHRC at
215. The judge determined, however, that Boswell was not entitled to backpay
because his earnings as a payloader operator exceeded the pay of the miner who
replaced him as a utility laborer. 13 FMSHRC at 214-15.
National Cement successfully petitioned for review of the judge's
finding of unlawful discrimination. Boswell did not seek review of the
judge's denial of backpay. On review, National Cement argued that certain of
the judge's protected activity findings were in error, that Boswell's
disqualification was not an adverse action, and that it would have transferred
Boswell based on his unprotected activities alone.
The Commission affirmed the judge's findings of protected activity
except as to a wheelbarrow incident involving a work refusal by Boswell.
Boswell I, 14 FMSHRC at 258-60. The Commission also affirmed the judge's
implicit finding that Boswell's disqualification was an adverse action,
reasoning that the action was surrounded by indicia of discipline and,
further, that Boswell was removed to a position with a lower rate of pay. 14
FMSHRC at 259-60. The Commission thus affirmed the judge's conclusion that
Boswell had established a prima facie case of discrimination. 14 FMSHRC at
258-60. The Commission determined, however, that the judge had not considered
National Cement's affirmative defense that it would have transferred Boswell
in any event based on his unprotected activities alone. 14 FMSHRC at 260.
The Commission remanded the proceeding to the judge to consider: (1) whether
the wheelbarrow incident constituted a protected work refusal; and (2) whether
National Cement had established that it would have disqualified Boswell for
his unprotected activities alone. 14 FMSHRC at 261.
On remand, the judge determined that the wheelbarrow incident
constituted a protected work refusal and that National Cement had failed to
establish its affirmative defense. Boswell Remand, 14 FMSHRC at 544, 546-47.
Noting the Commission's conclusion that Boswell's disqualification constituted
an adverse action based, in part, on Boswell's reduced rate of pay, the judge
held that Boswell was entitled to receive backpay. 14 FMSHRC at 547. In a
supplemental decision, the judge awarded Boswell $6,094.28 in backpay and
interest. 14 FMSHRC at 1136-37.
National Cement sought review of the judge's finding that the wheelbarrow incident constituted protected activity and of his award of backpay.

936

The Commission declined to review the first issue but granted review of the
second.
II.
Disposition of Issues
National Cement contends that the judge lacked jurisdiction on remand to
reexamine the question of damages and that, in any event, substantial evidence
does not support the backpay award. We agree that the judge lacked jurisdiction on remand to award backpay.
Section 113(d)(2) of the Mine Act provides that, if the Commission
grants review, the scope of review is limited to the questions raised by the
petition and to questions directed for review ~ sponte by the Commission.
30 U.S.C. § 823(d)(2). Following the judge's initial decision, Boswell did
not petition the Commission for review of the judge's finding that he was not
entitled to backpay. The issues raised in National Cement's petition were
limited to the merits of Boswell's discrimination complaint. The Commission
directed no issues for review on its own motion. 30 U.S.C. § 823(d)(2)(B).
Consequently, no damages issues were before the Commission in Boswell I and
the judge's conclusion that no backpay was due became, in effect, a final
decision. Thus, under the review structure of the Mine Act and the
circumstances of this case, the judge lacked authority on remand to address
issues pertaining to damages.
We note that a judge's jurisdiction on remand is limited to the issues
specifically remanded by the Commission. See generally Hermann v. Brownell,
274 F.2d 842, 843 (9th Cir.), cert. denied, 364 U.S. 821 (1960); Secretary on
behalf of Mullins v. Consolidation Coal Co., 4 FMSHRC 1622, 1624 n.2
(September 1982). Here, the Commission directed the judge to answer two
questions on remand relating to the merits of the discrimination complaint.
The judge was not directed to reopen Boswell's entitlement to damages. It
appears that the judge considered the backpay issue in an attempt to comply
fully with the remand. See Tr. 6-9 (June 15, 1992). In so doing, however
well intentioned, he exceeded his jurisdiction.

937

III.
Conclusion
For the foregoing reasons, we vacate the judge's supplemental damage
award.

Arlene Holen, Chairman

~tZ~L
oyc~e, CommiSSiOtler

L. Clair Nelson, Commissioner

Distribution

Thomas F. Campbell, Esq.
Lange, Simpson, Robinson & Somerville
1700 First Alabama Bank Bldg.
417 Twentieth St., North
Birmingham, AL 35203
for National Cement
Mr. Larry G. Myers, Union Representative
United Paperworkers International Union
District Council No. 5
229 Roebuck Plaza Drive, Suite 203
Birmingham, AL 35206
Hr. Ronny Boswell
P.O. Box 177
Wattsville, AL 35182
Administrative Law Judge Roy J. Maurer
Federal l1ine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22043

938

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

20006

June 22, 1993

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

v.

Docket No. CENT 92-333-M

L.M. KARNES, Employed by J.H. SHEARS
SONS, INC.

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners
ORDER

BY: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On April 23,
1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to
L. M. Karnes for failing to answer the notice of proposed civil penalty filed
by the Secretary of Labor or the judge's February 11, 1993, Order to Show
Cause. The judge assessed the civil penalty of $400 proposed by the
Secretary. For the reasons that follow, we vacate the default order and
remand this case for further proceedings.
On May 14, 1993, the Commission received a letter from Karnes asserting
that he had not received the Order to Show Cause. Karnes requests that the
Order of Default be vacated.
The judge's jurisdiction over this case terminated when his decision was
issued on April 23, 1993. 29 C.F.R. § 2700.69(b). This decision has become
final by operation of law, 30 U.S.C. § 823(d)(l). We can consider the merits
of Karnes' submission if we construe it as a request for relief from a final
Commission decision incorporating a petition for discretionary review. See 29
C.F.R. § 2700.l(b) (applicability of Federal Rules of Civil Procedure to
Commission proceedings); Fed. R. Civ. P. 60(b)(relief from·judgment or order).
We reopen this proceeding to consider Karnes' letter as a timely filed
Petition for Discretionary Review, which we grant.
On the basis of the present record, we are unable to evaluate the merits
of Karnes' position. In the interest of justice, we remand this matter to the
judge, who shall determine whether default is warranted. See Hickory Coal
Co., 12 FMSHRC 1201, 1201 (June 1990).

939

For the reasons set forth above, we vacate the judge's default order and
remand this matter for further proceedings.

Arlene Holen, Chairman

L. Clair Nelson, Commissioner

Distribution
L.N. Karnes
603 East Poplar
Fort Gibson, OK

74434

Stephen D. Turow, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul Herlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

940

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

20006

June 22, 1993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 91-449

v.

TWENTYMILE COAL COMPANY
BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"). The
issue is whether the violation of 30 C.F.R. § 70.100(a) 1 by Twentymile Coal
Company ("Twentymile") was of a significant and substantial nature ("S&S"). 2
Commission Administrative Law Judge Michael A. Lasher, Jr. held that the
violation was S&S. 14 FMSHRC 549 (April 1992)(ALJ). For the reasons set
forth below, we affirm the judge's decision.

1

Section 70.100, entitled "Respirable dust standards," provides in
subsection (a):
Each operator shall continuously maintain the
average concentration of respirable dust in the mine
atmosphere during each shift to which each miner in the
active workings of each mine is exposed at or below 2.0
milligrams of respirable dust per cubic meter of air as
measured with an approved sampling device
2

The S&S terminology is taken from section 104(d)(l) of the Act, 30
U.S.C. § 814(d)(l), which distinguishes as more serious in nature any violation
that "could significantly and substantially contribute to the cause and effect
of a ... mine safety or health hazard .... "

941

I.

Factual and Procedural Background
Twentymile contested only the S&S designation of the citation,and the
matter was submitted to Judge Lasher on stipulated facts. The stipulations
pertinent on review are as follows:
1. On October 10, 1990, Citation No. 9996580
was issued pursuant to Section 104(a) of the Federal
Mine Safety and Health Act of 1977 ("the Act").
2. The Citation alleged a violation of 30
C.F.R. § 70.100(a) as follows:
Based on the results of five valid dust
samples collected by the operator, the
average concentration of respirable dust
in the working environment of the
designated occupation, code 036 in
mechanized mining unit 006-0 was 2.1
milligrams which exceeded the applicable
limit of 2.0 milligrams .... Management
will take corrective actions to lower the
respirable dust and then sample each
production shift until five valid samples
are taken and submitted to the Pittsburgh
Respirable Dust Processing Laboratory.
Approved respiratory equipment shall be
made available to all persons working in
the area.
3. The Citation alleged that the condition
significantly and substantially contributed to the
cause and effect of a mine safety or health hazard.
4. The miners who were the subject of the
sampling on which the Citation was based were not
wearing respirators at the time the sampling was
conducted.
5. The average concentration of respirable dust
on which the Citation was based was 2.1 mgjm3 , which
exceeded the applicable limit by 0.1 mgjm3 •

*

*

*

*

*

*

9. The parties agree and stipulate that the
only issue for hearing in this matter is whether a
citation based upon an average respirable dust
concentration of 2.1 mg/m3 may properly be designated
as "significant and substantial." Twentymile wishes

942

to seek review of such issue by the Commission. The
parties believe that a hearing is not necessary on
such issue, since the issue is a legal one based upon
the Congressional findings contained in the
legislative history of the Federal Mine Safety and
Health Act and the regulatory history.
10. To that end, the parties agree and
stipulate that a violation of the cited standard
existed and that, if the citation is designated
"significant and substantial," the appropriate penalty
is $276.00, the full proposed penalty.
The judge upheld the inspector's S&S designation based on the
Commission's decision in Consolidation Coal Co., 8 FMSHRC 890 (June 1986),
aff'd sub nom. Consolidation Coal Co. v. FMSHRC, 824 F.2d 1071 (D.C. Cir.
1987)("Consol"), and Chief Administrative Law Judge Merlin's decision in
Consolidation Coal Co., 13 FMSHRC 1076 (July 1991)(ALJ)( "Consol II"). Judge
Lasher held that, "when the Secretary finds a violation of§ 70.100(a), a
presumption that the violation is significant and substantial is appropriate."
14 FMSHRC at 552, quoting Consol II, 13 FMSHRC at 1079. He applied the
presumption to the facts in this case and concluded that the violation was
S&S. Judge Lasher noted that Twentymile did not seek to rebut the
presumption. The Commission granted Twentymile's Petition for Discretionary
Review and heard oral argument.
II.

Disposition of the Issues
A.

S&S Presumption

Twentymile contested the inspector's S&S finding on the grounds that a
violation of the health standard based on an average concentration of less
than 2.2 mg/m3 is not S&S. Although Twentymile acknowledges that, in Consol,
the Commission held that any concentration of respirable dust over the 2.0
mg/m3 standard is presumptively S&S, Twentymile argues that the Commission did
not focus on whether this presumption should apply to "concentrations of
respirable dust that are marginally above the standard." Tm. Br. 4.
Twentymile bases its argument on a report of the U.S. House of Representatives
prepared at the time the House was considering the Coal Mine Health and Safety
Act of 1969, 30 U.S.C. 801 et seq. (1976)(amended 1977). In the Report of the
House Committee on Education and Labor, dated October 13, 1969, to accompany
H.R. 13950, a section entitled "Justification for Dust Standards" refers to
British studies that used a statistical analysis to predict. the probability of
a miner contracting pneumoconiosis after 35 years of exposure at specific
levels of respirable dust. H. Rep. 563, 91st Cong., 1st Sess. 15-20 (1969),
reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 94th
Cong. 1st Sess. Part I Legislative HistoiY of the Coal Mine Health and Safety

943

Act of 1969, at 1045-50 (1975)("Legis. Hist.").
part:

The House Report states, in

In a dust environment below about 2.2 mgjm3 , there is
virtually no probability of a miner contracting
pneumoconiosis (ILO category 2 or greater), even after
35 years of exposure to such concentration. It is
significant that simple pneumoconiosis below ILO
category 2 is not disabling.
Le&is. Hist. at 1048. Twentymile contends that this statement is essentially
a Congressional finding of fact that exposures below 2.2 are not significant
and substantial. Twentymile further argues that Judge Lasher's decision is
incorrect as a matter of law because the Mine Act does not provide that all
respirable dust violations are S&S. It asserts that the application of the
presumption to "marginal" violations of the respirable dust standard ignores
the Mine Act's graduated scheme of enforcement.
The Secretary argues that the presumption established in Consol is
applicable to this case. The Secretary contends that Congress set the
respirable dust standard at 2.0 mg/m3 in order to eliminate respiratory
disease by reducing dust in the mine atmosphere. The Secret~ry maintains
that, by adopting a 2.0 standard, Congress recognized that exposures above
that level can lead to respiratory illness.
In Consol, the Commission determined that the "prevention of
pneumoconiosis and other occupational illnesses is a fundamental purpose
underlying the Mine Act." 8 FMSHRC at 895 (emphasis in original). It further
determined that Congress intended the 2.0 mg/m3 standard to be the "maximum
permissible exposure level" during every working shift. 8 FMSHRC at 897.
With these considerations in mind, the Commission adapted the four part S&S
test set forth in Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984) for
application to violations of the respirable dust standard. 8 FMSHRC at 89799. The Commission found that the elements of the S&S test would be the same
in all instances where the Secretary proves a violation of section 70.100(a).
The Commission concluded "if the Secretary proves that an overexposure to
respirable dust in violation of section 70.100(a), based upon designated
occupation samples, has occurred, a presumption arises that the third element
of the significant and substantial test -- a reasonable likelihood that the
health hazard contributed to will result in an illness -- has been
established." 8 FMSHRC at 899. The Commission reached this conclusion
because "the development of respirable dust induced disease is insidious,
furtive and incapable of precise prediction," and Congress expressed a "strong
concern" that all respiratory illnesses in mines be eliminated. 8 FMSHRC at
898-99. With respect to the fourth element of the S&S test, the Commission
concluded that "there is a reasonable likelihood that illness resulting from
overexposure to respirable dust will be of a reasonably serious nature." 8
FMSHRC at 899.
As a consequence, the Commission held that, "when the Secretary proves
that a violation of 30 C.F.R. § 70.100(a), based upon excessive designated
occupation samples, has occurred, a presumption that the violation is a

944

significant and substantial violation is appropriate." 8 FMSHRC at 899. The
Commission further held that the presumption may be rebutted if the operator
establishes that the miners in the designated occupation "were not exposed to
the hazard posed by the excessive concentration of respirable dust, e.g.,
through the use of personal protective equipment." Id.
The United States Court of Appeals for the D.C. Circuit affirmed the
Commission's use of this presumption. 824 F.2d at 1084-86. The Court
rejected the operator's argument that "Congress intended that some
concentration of respirable dust higher than 2.0 mg/m3 be found before a
violation of the respirable dust standard could be designated as significant
and substantial." 824 F.2d at 1084-85. Indeed, the Court determined that
Congress required operators to "continuously maintain" the concentration of
respirable dust at or below 2.0 mgjm3 "during each shift" rather than "over
the long term." 824 F.2d at 1086. Noting that the harmful effect of any one
incident of exposure to excessive concentrations of respirable dust is
negligible, the Court concluded that, without the presumption, the application
of the sanctions set forth in sections l04(d) and (e) of the Act would be
precluded because no single violation could ever be designated as significant
and substantial. Id.
The legislative history cited by Twentymile, when examined in context,
does not support the position that the Consol S&S presumption should not apply
to Twentymile's violation of section 70.100(a). The legislative history
states that exposures at 2.0 mg/m 3 over a 35 year period would cause at least
2% of miners to develop simple pneumoconiosis. Legis. Hist. at 142, 356
(emphasis added). Congress expressed its desire that working conditions in
underground coal mines be sufficiently free of respirable dust to enable
miners to work their entire working lives without "incurring any disability
from pneumoconiosis or any other occupation-related disease .... " 30 U.S.C.
§ 84l(b)(emphasis added).
At the time the 1969 Coal Act was debated, no federal standards existed
for respirable coal dust. As passed by the House, H.R. 13950 would have
established an exposure limit of 3.0 mg/m3 • Legis. Hist. at 959. The British
studies were cited in the House Report to justify this 3.0 limit. This House
Report makes clear, however, that the committee expected the Secretary to
reduce the exposure limit by regulation:
The ideal mine environment is a dust-free one. The
committee realizes that, given the state of existing
technology, this is an unreachable goal. The
Committee expects the Secretary ... to prescribe the
limit of at least 2.2 mgjm3 as soon as he deems it
attainable, and to prescribe limits below that level
in a final attempt to eliminate even simple
pneumoconiosis (ILO Category l) through dust control.
Legis. Hist. at 1048-49.
The Senate rejected a 3.0 mgjm3 exposure limit because it was concerned
that such a limit was "not a good medical standard." Legis. Hist. at 146.

945

Accordingly, the Senate bill (S. 2917) adopted a 2.0 mgjm 3 standard, to be
phased in over three years. Id. The Conference Committee approved the
Senate's more stringent 2.0 standard because the committee was not satisfied
that a less stringent standard "would protect the health of miners .... "
Legis. Hist. at 1551 (Statement of Representative Perkins, the chief House
conferee). Congress enacted the 2.0 standard into law.
Finally, we reject Twentymile's argument that application of the S&S
presumption in this case would ignore the Mine Act's graduated scheme of
enforcement. Violations of section 70.100(a) in any degree can contribute to
the development of chronic bronchitis, pneumoconiosis and other respiratory
illnesses in miners. Consol, 8 FMSHRC at 898-99. The D.C. Circuit in Consol
expressly rejected the argument that the presumption adopted by the Commission
is invalid because of the Mine Act's graduated scheme of enforcement. 824
F.2d at 1084-85.
For the foregoing reasons, we reaffirm our holding in Consol that any
concentration of respirable dust over 2.0 mg/m3 is presumptively S&S.
B.

Motion to Strike

Shortly before oral argument, the Secretary wrote to the Gommission
requesting that we take judicial notice of a report on coal workers'
pneumoconiosis prepared by the National Institute for Occupational Safety and
Health of the U.S. Department of Health and Human Services ("NIOSH"). See
Oral Arg. Tr. 21-22. Twentymile moved to strike the proffered document.
Oral Arg. Tr. 18. For the reasons set forth below, we grant Twentymile's
motion.
Section 113(d)(2)(C) of the Mine Act states, in relevant part, that the
record on review consists of the "record upon which the decision of the
administrative law judge was based .... " 30 U.S.C. § 823(d)(2)(C). This
provision is consistent with section 113(d)(2)(A)(iii) of the Mine Act, which
provides that "[e]xcept for good cause shown, no assignment of error by any
party shall rely on any question of fact or law upon which the administrative
law judge had not been afforded an opportunity to pass." 30 U.S. C.
§ 823(d)(2)(A)(iii). The Commission has held that these provisions "evince
the Congress' view that the adjudication process is best served if the
administrative law judge is first given the opportunity to admit and examine
all the evidence before making his decision." Climax Molybdenum Co., 1 FMSHRC
1499, 1499-1500 (October 1979). These procedures are consistent with "settled
principles of administrative and general law limiting the record on review to
the record developed before the trier of fact." Union Oil Company of
California, 11 FMSHRC 289, 301 (March 1989)(citation omitted).
In addition, the Commission has held that:
[Judicial] notice can be taken of the existence or
truth of a fact or other extra-record information that
is not the subject of testimony but is commonly known,
or can safely be assumed, to be true. However, such
notice cannot extend to the acceptance as fact of

946

scientific publications and studies, the truth of
whose contents is the subject of reasonable dispute by
the opposing parties. See McCormick on Evidence, 3rd
Ed. §§ 329, 330 (pp. 923-927, 1028-1032); Fed. R.
Evid. 201.
Union Oil, 11 FMSHRC at 300 n.8.
The conclusions of the report and its relevance to this proceeding are
disputed by Twentymile. Oral Arg. Tr. 27-28. We conclude that it would be
inappropriate for the Commission to take judicial notice of the NIOSH report
in this case. Our holding is based solely on the stipulations agreed to by
the parties before the judge.

III.
Conclusion
For the foregoing reasons, the

judge'~~:n i~
Arlene Holen, Chairman

L. Clair Nelson, Commissioner

947

Distribution
R. Henry Moore, Esq.
Buchanan Ingersoll
USX Tower, 57th Floor
600 Grant Street
Pittsburgh, PA 15219
Colleen A. Geraghty,_ Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Michael A. Lasher, Jr.
Federal Mine Safety & Health Review Commission
280 Federal Building
1244 Speer Boulevard
Denver, Colorado 80204

948

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

20006

June 22, 1993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 91-636

v.

ZEIGLER COAL COMPANY

BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners

DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). At issue is
whether Zeigler Coal Company ("Zeigler") violated 30 C.F.R. § 75.507 1 by
allowing return air to course over non-permissible power connection points
outby the last open crosscut and whether the violation was significant and
substantial ("S&S").
Administrative Law Judge George A. Koutras concluded
that Zeigler violated the standard and that the violation was S&S. 14 FMSHRC
304 (February 1992)(ALJ). For the reasons that follow, we affirm the judge's
finding of violation but remand for further consideration of whether the
violation was S&S.
I.

Factual and Procedural Background
On May 1, 1991, Inspectors Mark Eslinger and Richard Gates of the
Department of Labor's Mine Safety and Health Administration ("MSHA") conducted
an investigation on a petition for modification filed by Zeigler's Murdock
Mine, an underground coal mine in Douglas County, Illinois. In the 1st Main
West section, the inspectors observed that air that had ventilated the working

1

Section 75.507 provides:
Power connection points. Except where permissible power
connection units are used, all power connection points
outby the last open crosscut shall be in intake air ..

949

faces in the No. 1 and 2 entries was leaking past check curtains placed across
the No. 3 entry and was flowing outby.
The inspectors observed several golf carts, used for transport, in the
No. 3 entry. They concluded that Zeigler had violated section 75.507 because
return air was coursing outby the last open crosscut over the golf carts and
other non-permissible equipment with power connection points. Accordingly,
they cited Zeigler for a violation of section 75.507 and designated the
violation S&S.
Before the judge, the Secretary defined return air for purposes of
section 75.507 as air that has been used to ventilate any working face or
place in a coal-producing section. The judge found that definition reasonable
and proper. 14 FMSHRC at 325. He found that the air coursing over the golf
carts was return air because it had ventilated working faces. 14 FMSHRC at
324-25. The judge concluded that the Secretary had established a violation of
section 75.507. 14 FMSHRC at 325. He also found the violation to be S&S and
assessed a civil penalty of $275. 14 FMSHRC at 327, 328.
II.

Disposition of Issues
A.

Whether Zeigler violated section 75.507

In order to establish a violation of section 75.507, the Secretary was
required to show that non-permissible power connection points outby the last
open crosscut were not in intake air. It was undisputed that the carts were
not "permissible" equipment, as that term is defined in section 318(i) of the
Mine Act, 30 U.S.C. § 878(i), and that the carts contained "power connection
points," as that term is used in the standard. It was also undisputed that
they were outby the last open crosscut. If the cited non-permissible power
connection points were in return air rather than in intake air, Zeigler was in
violation of the standard.
Zeigler argues that the air travelling outby the last open crosscut in
the No. 3 entry was still intake air, and that the judge erred in finding that
it was return air. Zeigler relies on the common definition of return air,
which is air that has circulated through the active workings and has passed
over the last working place on a section. See Bureau of Mines, U.S. Department of the Interior, Dictionary of Mining. Mineral. and Related Terms 919
(1968). Zeigler contends that the judge erred in accepting the Secretary's
position that, for the more specific purposes of section 75.507, intake air
becomes return air once it has ventilated any working face or place. 2
2

The regulations then in effect did not define return air. See 30 C.F.R.
Return air is defined in the current regulations to be:

§ 75.2 (1991).

Air that has ventilated the last working place on
any split of any working section or any worked-out area,
whether pillared or nonpillared. If air mixes with air
that has ventilated the last working place on any split
(continued ... )

950

We conclude that the Secretary's interpretation of "return air" is a
proper construction of section 75.507 that effectuates its essential purpose.
Section 75.507 is taken from the interim mandatory safety standard in section
305(d) of the Mine Act, 30 U.S.C. § 865(d), which was carried over from
section 305(d) of the Federal Coal Mine Health and Safety Act of 1969, 30
U.S.C. § 801 et seq. (1976)(amended 1977)("Coal Act"). The Coal Act's
legislative history indicates that the concern addressed by the standard was
the "ever-present danger of suddenmethane buildup in the air current which
could be ignited by arcing from the power connections." SeeS. Rep. No. 411,
9lst Gong., 1st Sess. 69 (1969), reprinted in Senate Subcommittee on Labor,
Committee on Labor and Public Welfare, 94th Gong., 1st Sess., Part I
Legislative History of the Federal Coal Mine Health and Safety Act of 1969, at
195 (1975). The Commission has recognized: "The purpose of [section 75.507]
is to prevent methane gas explosions. In the presence of methane gas, a
source of ignition, such as arcing from power connections, can cause an
explosion." Eastover Mining Co., 4 FMSHRC 123 (February 1982).
Air that passes any working face carries away methane and other
contaminants that could present an ignition and explosion hazard if the air is
coursed over non-permissible power connection points. The judge found
credible Inspector Eslinger's testimony that air sweeping over any working
face picks up coal dust, methane, and o~her mine gases, and that such
contaminated air poses a potential explosion hazard if it seeps outby over
non-permissible power connection points and equipment. 14 FMSHRC at 324; Tr.
58; Dep. of Eslinger Tr. 19-20 (October 31, 1991). Eslinger emphasized that
"the real seriousness here [i]s that the gas in the mine is generally produced
in the working places and the gas that could be produced in these working
faces could drift outby over [the] ... nonpermissible power points." Tr. 30.
The judge also noted that Zeigler's safety director, David Stritzel, said that
he would be concerned about air that has ventilated a working face passing
over non-permissible power points. 14 FMSHRC at 324; Tr. 98, 102.
Here, some of the air leaking past the No. 3 entry check curtains and
coursing over the non-permissible power points had passed over the working

2 ( ••• continued)

of any working section or any worked-out area, whether
pillared or nonpillared, it is considered return air.
For the purposes of existing § 75.507-1, air that has
been used to ventilate any working place in a coal
producing section or pillared area, or air that has been
used to ventilate any working face if such air is
directed away from the immediate return is return air.
30 C.F.R. § 75.301 Definitions (1992). These regulations became effective
August 16, 1992, 57 Fed. Reg. 20868 (May 15, 1992).

951

faces of the No. 1 and 2 entries. Thus, for purposes of section 75.507, it is
appropriate to regard that air as return air. 3
Zeigler argues further that the Secretary changed his position as to the
meaning of return air for purposes of section 75.507. 4 Zeigler asserts that
from 1971 until 1988, MSHA defined return air for purposes of that section as
air used to ventilate the last working face in a coal producing section. As
early as 1983, however, MSHA had defined return air, for purposes of section
75.507, as air that has ventilated any working face or working place. See IV
MSHA, U.S. Dept. of Labor, Coal Mine Inspection Manual: Underground Electrical
Inspections 22 (1983). In 1988, MSHA set forth in its Program Policy Manual
the definition of return air presented in this proceeding, which is consistent
with the earlier 1983 definition. V MSHA, U.S. Dept. of Labor, Program Policy
Manual, Part 75, at 55 (1988). In any event, an agency interpretation is not
necessarily "carved in stone" and, in general, an agency should "consider
varying interpretations and the wisdom of its policy on a continuing basis."
Chevron U.S.A .. Inc. v. Nat. Resources Def. Council, 467 U.S. 837, 863-64
(1984).
Accordingly, we uphold the Secretary's interpretation of the standard
and affirm the judge's finding of violation.
B.

Whether the violation was significant and substantial

Zeigler argues that the judge erred in concluding that the violation was
S&S. Zeigler asserts that the judge's finding that there was a reasonable
likelihood of a serious injury resulting from the violation is based on "mere
possibilities" that are insufficient to sustain a finding of reasonable
likelihood. PDR at 10.
A violation is properly designated S&S "if, based upon the particular
facts surrounding that violation, there exists a reasonable likelihood that
the hazard contributed to will result in an injury or illness of a reasonably
serious nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825

3

Return air may have a different meaning for purposes of other standards.
A term does not necessarily have the same meaning or serve the same purpose in
every statutory or regulatory context. See, ~. Loc. U. 1261. UMWA v. FMSHRC,
917 F.2d 42, 45 & n.8 (D.C. Cir. 1990).
4

Zeigler also argues in its supplementary brief that it was not given fair
warning of the change in the definition of return air in section 7 5. 507 and that,
therefore, its due process rights were violated. Z. Br. at 2-3. Zeigler has not
proffered any reason why this argument was not presented to the judge. Under the
Mine Act, "[e]xcept for good cause shown, no assignment of error by any party
shall rely on any question of fact or law upon which the administrative law judge
had not been afforded an opportunity to pass." Section 113(d)(2)(iii) of the
Mine Act, 30 U.S.C. § 823(d)(2)(iii); see also 29 C.F.R. § 2700.70(d).

952

(April 1981). 5 In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; ... (2) a discrete safety
hazard -- that is, a measure of danger to safety -contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
The first and second Mathies elements are established. We have
concluded that Zeigler violated section 75.507 and it is undisputed that a
safety hazard, an ignition that could result in an explosion, was present.
The third element of the Mathies test "requires that the Secretary
establish a reasonable likelihood that the hazard contributed to will result
in an event in which there is an injury." U.S. Steel Mining Co. , 6 FMSHRC
1834, 1836 (August 1984)(emphasis in original). 6 The Commission has
recognized that, when examining whether an explosion or ignition is reasonably
likely to occur, it is appropriate to consider whether a "confluence of
factors" exists to create such a likelihood. Texasgulf. Inc., 10 FMSHRC 498,
501 (April 1988); see also Eastern Assoc. Coal Corp., 13 FMSHRC 178, 184
(February 1991).
In addressing the third element, the judge concluded that "it was
reasonably likely that an ignition resulting from the presence of
nonpermissible electrical power connection points in contaminated return air
would result in injuries of a reasonably serious nature." 14 FMSHRC at 327.
The judge did not make a finding, however, as to the likelihood of an
ignition. The reasonable likelihood of an ignition is the necessary
precondition to the reasonable likelihood of an injury. See U.S. Steel
Mining, 6 FMSHRC at 1836.
The judge summarized the relevant testimony (14 FMSHRC at 326), but he
did not analyze the confluence of factors necessary to establish a reasonable
likelihood of an ignition (see 14 FMSHRC at 327). Eslinger testified that
people "could drive" a golf cart into a "possible" explosive mixture of gas
5

The S&S terminology is taken from section 104(d)(l) of the Mine Act, 30
U.S.C. § 814(d)(l), which distinguishes as more serious in nature any violation
that "could significantly and substantially contribute to the cause and effect
of a ... mine safety or health hazard .... "
6

The Secretary is not required to prove that the hazard contributed to
will actually result in an injury causing event. Youghiogheny & Ohio Coal Co.,
9 FMSHRC 673, 678 (April 1987).

953

and ignite the methane. 14 FMSHRC at 326; Tr. 45. Eslinger also expressed
concern that methane liberated in working places "could drift" over the golf
carts and other non-permissible power points. 14 FMSHRC at 326; Tr. 30.
Stritzel conceded "that there is always the possibility of a methane ignition,
and that methane may be liberated at higher concentrations." 14 FMSHRC at
327; ~ Tr. 102-03. Although this testimony is relevant to the reasonable
likelihood of an ignition, statements that such events could occur, standing
alone, do not support a finding that there was a reasonable likelihood of an
ignition. Qf. Eastern Assoc. Coal, 13 FMSHRC at 184-85; Union Oil Co. of
California, 11 FMSHRC 289, 298-99 (March 1989). The judge also restated but
failed to resolve certain conflicting testimony. Eslinger was concerned that
an ignition had occurred in the same area of the mine some two months prior to
the citation. 14 FMSHRC at 326; Tr. 27. Stritzel testified that the
conditions at the time of the prior ignition were different from those at the
time of the inspection. 14 FMSHRC at 326; Tr. 93-94. Accordingly, we remand
for further analysis of the third Mathies element.
With regard to the fourth Mathies element, Zeigler contends that the
Secretary introduced no evidence to suggest that any resultant injury would be
reasonably serious in nature. The citation indicates that four miners would
be affected by the violation and that the injury would be fatal. Ex. P-3.
Eslinger testified that any potential accident would be fatal. Tr. 28. A
methane ignition, by its nature, presents a danger of serious injury to
miners. We conclude that substantial evidence supports the judge's conclusion
that, if an ignition occurred, any resultant injury would be reasonably
serious.

954

III.
Conclusion
For the foregoing reasons, we affirm the judge's conclusion that Zeigler
violated section 75.507. We vacate his determination that the violation was
S&S and remand for further findings and analysis on the existing record
consistent with this opinion.

Arlene Holen, Chairman

e~~,1,4A'~
Richard V. Backley, Commissioner

Distribution:
Gregory S. Keltner, Esq.
Zeigler Coal Company
50 Jerome Lane
Fairview Heights, IL 62208
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge George A. Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

955

~

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

20006

June 22, 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. SE 91-32

S & H MINING, INC.
BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). The issue
before the Commission is whether a violation by S&H Mining, Inc. ("S&H") of 30
C.F.R. § 75.902 1 was "significant and substantial" in nature ("S&S") and was
caused by S&H's unwarrantable failure to comply with the safety standard.
Commission Administrative Law Judge William Fauver concluded that the
violation was S&S and was caused by S&H's unwarrantable failure. 14 FMSHRC
887, 890 (May 1992)(ALJ). We granted S&H's petition for discretionary review
of the judge's decision. For the reasons that follow, we affirm.
I.

Factual Background and Procedural History
On May 14, 1990, Inspector Don McDaniel of the Department of Labor's
Mine Safety and Health Administration ("MSHA") inspected S&H's Mine No. 7, an
underground coal mine in Campbell County, Tennessee. McDaniel unintentionally
stepped on the cable supplying electricity to the power center of the coal
1

30 C.F.R. § 75.902 provides in part:
[L]ow- and medium-voltage resistance grounded systems
shall include a fail-safe ground check circuit to
monitor continuously the grounding circuit to assure
continuity which ground check circuit shall cause the
circuit breaker to open when either the ground or pilot
check wire is broken....
Cable couplers shall be
constructed so that the ground check continuity
conductor shall be broken first and the ground
conductors shall be broken last when the coupler is
being uncoupled.

956

feeder, pulling the cable coupler from the power center. McDaniel found that
the locking device on the top of the cable coupler had been removed. Wedges
had been placed under the coupler in an.attempt to hold it in place. McDaniel
concluded that, without the locking device, the ground conductor could
disconnect prior to the ground check continuity conductor, in violation of
section 75.902.
Inspector McDaniel discussed the violation with Dwight Lindsey, who had
conducted S&H's preshift examination on the day of the inspection. According
to McDaniel, Lindsey acknowledged that he knew, as a result of his preshift
examination, that the locking device had been removed. Tr. 9-10, 17, 46.
Lindsey also told McDaniel that he (Lindsey) had inserted the wedges under the
cable coupler. Tr. 9-10, 17, 46. McDaniel issued a section 104(d)(l) order
of withdrawal for S&H's alleged unwarrantable failure to comply with section
75.902 and designated the violation as S&S.
S&H contested the inspector's S&S designation and unwarrantable failure
finding and a hearing was held before Judge Fauver. The judge concluded that
the violation was S&S. He found that, but for McDaniel's inspection, the
coupler would have remained in an unsafe condition for a substantial period.
14 FMSHRC at 890. The judge also found that it was reasonably likely that
this condition would result in operation of the feeder without ground fault
protection, and that, in wet mining conditions, a miner working in the area
would suffer an electric shock. Id. In addition, the judge determined that
"continued mining could well result in arcing between the two conductors and
could cause a mine fire or burn out the circuit breaker." Id. The judge
concluded that the violation was the result of S&H's unwarrantable failure to
comply with the standard. He found that Lindsey, knowing that the locking
device had been removed, failed to report that condition in his preshift
report, and attempted to bypass the safety lock by using wedges. He
determined that Lindsey, as S&H's certified examiner, was S&H's agent. Id.
The judge concluded that Lindsey's actions demonstrated aggravated conduct
beyond ordinary negligence and were imputable to S&H. Id.
II.
Disposition of Issues
A.

Whether the violation was significant and substantial

S&H argues that the judge erred in finding that there was a reasonable
likelihood of injury as a result of the violation. S&H contends that there
was no danger associated with the violation at the time it was discovered
because the circuit breaker tripped when the cable coupler was pulled from the
power center. S&H argues that the alleged hazards created by the violation
were hypothetical and speculative. S&H submits that the judge's finding is
not supported by substantial evidence and is contrary to Commission precedent.
The Secretary argues that in determining whether a violation is S&S, the
violation must be viewed not only as it was at the time of the citation, but
also as it would be if it were to continue unabated. The Secretary argues
that the violation would have continued unabated for at least several days

957

during which it was reasonably likely that an injury would occur. The
Secretary contends that the judge's finding of S&S is supported by substantial
evidence.
The Commission has determined that a violation is S&S if, based on the
particular facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature. Cement Division. National Gypsum Co., 3
FMSHRC 822, 825-26 (April 1981). 2 In Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984), the Commission explained:
In order to esta~lish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (footnote omitted) (2) a
discrete safety hazard -- that is, a measure of danger
to safety -- contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a
reasonably serious nature.
The first and second Mathies elements are established. S&H concedes
that it violated section 75.902. The violation created electric shock and
fire hazards. With respect to the fourth Mathies element, S&H did not
challenge that an injury resulting from the violation would be of a reasonably
serious nature.
The third element of the Mathies test, whether there was a reasonable
likelihood that the hazard contributed to would result in an injury, is the
issue in dispute. The Commission is bound by the terms of the Mine Act to
apply the substantial evidence test when reviewing an administrative law
judge's decision. 30 U.S.C. § 823(d)(2)(A)(ii)(I). The term "substantial
evidence" means "such relevant evidence as a reasonable mind might accept as
adequate to support [the judge's] conclusion." See, ~. Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989), quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
Inspector McDaniel testified that, because the top locking device was
missing, the coupler would drop by its own weight and the ground wire would
disengage. The power conductors, however, would not completely disengage
because the locking device on the bottom of the coupler was still functioning.
Tr. 13-15. He testified that, with the conductors engaged but the ground
removed, there was "a high likelihood that someone could be electrocuted."
Tr. 18. McDaniel also testified that the ground monitor was not a fail-safe
2

The S&S terminology is taken from section l04(d)(l) of the Mine Act, 30
U.S.C. § 814(d)(l), which distinguishes as more serious in nature any violation
that "could significantly and substantially contribute to the cause and effect
of a ... mine safety or health hazard .... "

958

system because a relay could malfunction, disabling the monitor without the
operator's knowledge. Based on his experience, McDaniel believed that it was
"highly likely" that a relay for the ground monitor would malfunction, if left
for any length of time. Tr. 63-64. This position was confirmed by S&H's mine
superintendent, Charles White, who testified that S&H has encountered
situations where the ground monitor failed to break a circuit despite the fact
that the ground wire was not functioning. Tr. 101, 104. McDaniel further
testified and the judge found that, if the coupler were to partially detach
from the power source while it was energized, arcing between the power
conductors could cause a mine fire or burn out the circuit breaker. He
characterized the cited condition as a "serious danger." Tr. 46.
S&H's argument that there was no danger associated with the violation
because the ground monitor worked correctly during the inspection and the
circuit breaker tripped, shutting off the power, does not lead to a contrary
result. The Commission has held that an "evaluation of the reasonable
likelihood of an injury should be made in terms of continued normal mining
operations." U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985)
(citation omitted). Inspector McDaniel testified that it was "highly likely"
that the ground monitor would fail at some time. Tr. 63-64. He had 16 years
experience inspecting ground monitors for electrical systems in mines and the
judge credited his testimony. After considering the record, including
evidence that detracts from the judge's findings, we conclude that substantial
evidence supports the judge's S&S finding.
B.

Whether the violation resulted from the operator's
unwarrantable failure

S&H argues that the judge erred in crediting McDaniel's testimony
concerning Lindsey's knowledge of the violation. S&H contends that Lindsey
never told McDaniel that he knew about the cited condition. S&H also argues
that the judge erred in imputing Lindsey's knowledge to S&H's management.
The Secretary argues that the judge found McDaniel's testimony credible,
and that there is no compelling evidence to overturn the credibility
determination. The Secretary further takes the position that knowledge of a
preshift examiner can. be imputed to the operator.
The Commission has determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. EmeiY Mining Corporation,
9 FMSHRC 1997, 2004 (December 1987); Youghiogheny & Ohio Coal Company,
9 FMSHRC 2007, 2010 (December 1987). This determination was derived, in part,
from the plain meaning of "unwarrantable" ("not justifiable" or "inexcusable"), "failure" ("neglect of an assigned, expected or appropriate
action"), and "negligence" (the failure to use such care as~ reasonably
prudent and careful person would use, characterized by "inadvertence,"
"thoughtlessness," and "inattention"). EmeiY, 9 FMSHRC at 2001.
It is undisputed that Lindsey performed the preshift examination on the
morning McDaniel found the violation. It is also undisputed that Lindsey did
not report the hazardous condition in his preshift report.

959

Inspector McDaniel testified that Lindsey told him that he had found the
locking device missing and had placed wedges under the coupler. Tr. 9-10, 17,
46. McDaniel also saw the wedges. Tr. 9-10, 45-46. Lindsey did not testify
at the hearing but the record does contain contrary testimony on this point
from S&H President Smith and from Tommy McCoo, Lindsey's supervisor. 3 The
judge credited McDaniel. Credibility determinations are within the discretion
of the judge who heard the witnesses' testimony and observed their demeanor.
BethEnergy Mines. Inc., 14 FMSHRC 1232, 1239 (August 1992) and cases cited.
The Commission has held that a judge's credibility determinations cannot be
overturned lightly. See,~. Ranger Fuel Corp., 12 FMSHRC 363, 374 (March
1990); Smith v. Kem Coal Company, 12 FMSHRC 67, 71-72 (January 1992) and cases
cited. The record contains no compelling evidence to support a reversal of
the judge's credibility determination.
We reject S&H's assertion that the judge erred in imputing Lindsey's
knowledge to S&H. Under Commission case law, a lack of actual knowledge by
management does not bar a finding of unwarrantable failure. Eastern
Associated Coal Corp., 13 FMSHRC 178, 187 (February 1991). Smith conceded
that Lindsey was designated by S&H to conduct the preshift examination and
that Lindsey was S&H's agent. Lindsey's conduct was therefore properly
imputed to S&H. See Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-98
(February 1991); Mettiki Coal Corporation, 13 FMSHRC 769, 772 (May 1991).
We conclude that substantial evidence supports the judge's conclusion
that the actions and knowledge of Lindsey, S&H's preshift examiner,
constituted aggravated conduct imputable to S&H. Thus, we affirm the judge's
finding that the violation was caused by S&H's unwarrantable failure to comply
with the safety standard.

3

Smith testified that Lindsey denied telling McDaniel that he knew about
the violation. Tr. 76. McCoo confirmed Lindsey's denial to Smith and testified
that, although he (McCoo) was in the general area with McDaniel and Lindsey, he
did not hear Lindsey make the disputed statement. Tr. 108-11, 114-15.

960

III.
Conclusion
For the foregoing reasons, we affirm the judge's finding that S&H's
violation of 30 C.F.R. § 75.902 was significant and substantial and was a
result of S&H's unwarrantable failure.

Arlene Holen, Chairman

L. Clair Nelson, Commissioner

Distribution:
Imogene A. King, Esq.
Frantz, HcConnell & Seymour
P.O. Box 39
Knoxville, TN 37901
Tina Gorman, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge l.J"illiam Fauver
Federal Hine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

961

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

20006

June 23, 1993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 92-625

v.

ISLAND CREEK COAL COMPANY
BEFORE:

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners
ORDER

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On May 4,
1993, Commission Administrative Law Judge Gary Melick issued a Decision
Approving Settlement granting a joint settlement motion filed by the Secretary
of Labor and Island Creek Coal Company ("Island Creek"). Among the matters
settled was Order of Withdrawal No. 3548444 (the "order") issued to Island
Creek pursuant to section 104(d)(2) of the Mine Act. 30 U.S.C. § 814(d)(2).
The parties stated in the motion that Island Creek had agreed to withdraw its
contest of the order and pay the $1,800 penalty proposed by the Secretary.
On June 7, 1993, the parties filed with Judge Melick a joint motion to
vacate his Decision Approving Settlement of the order. The motion states that
the order was included in two civil penalty proceedings, the present case and
KENT 92-1032. The parties assert that Island Creek previously agreed ·to
withdraw its contest in this proceeding because it mistakenly believed that it
had lost documents important to its defense. During settlement discussions of
KENT 92-1032, Island Creek discovered that the subject withdrawal order was
also included in that case and that the missing documents were in its files
for that case. The parties ask the judge to vacate the Decision Approving
Settlement to afford Island Creek an opportunity to contest the order.*

* In their joint motion, the parties assert incorrectly that the withdrawal
order was included in two separate dockets because of a "clerical error on the
part of the Review Commission's docketing office." J. Motion to Vacate Dec., at
2. The Department of Labor's Mine Safety and Health Administration determines
which citations and orders are included in each civil penalty case and the
Commission assigns docket numbers to cases as filed by the Secretary.

962

The judge's jurisdiction in this proceeding terminated when his Decision
Approving Settlement was issued on May 4, 1993. 29 C.F.R. § 2700.69(b).
Under the Mine Act and the Commission's procedural rules, relief from a
judge's decision may be sought by filing a petition for discretionary review
with the Commission within 30 days of the decision. 30 U.S.C.
§ 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). Neither party filed a petition for
discretionary review within the 30-day period. Thus, under the Mine Act, the
judge's decision became a final decision of the Commission 40 days after its
issuance. 30 U.S.C. § 823(d)(l). Under these circumstances, we deem the
joint motion to be a request for relief from a final Commission decision
incorporating a late-filed petition for discretionary review. See Grefco.
Inc., 14 FMSHRC 56 (January 1992).
Using Fed. R. Civ. P. 60(b)(l) & (6) for guidance, the Commission has
afforded relief from final judgments on the basis of inadvertence, mistake,
surprise, excusable neglect, and other reasons justifying relief. 29 C.F.R.
§ 2700.l(b); ~. ~. Klamath Pacific Corp. 14 FMSHRC 535 (April 1992).
The
Joint Motion to Vacate suggests that the parties may have settled this
proceeding by mistake.
Accordingly, we conclude that this matter should be reopened and
remanded in order to afford the parties the opportunity to present their
position to the judge, who shall determine whether final relief from the
Decision Approving Settlement is warranted.
For the reasons set forth above, we reopen this proceeding, vacate that
part of the judge's decision that approved settlement of Order No. 3548444 and
remand this matter for further proceedings.

Arlene Holen, Chairman

~//
•Richard V. Backley,

Commissione~

L. Clair Nelson, Commissioner

963

Distribution
Anne T. Knauff, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd.
Suite B-201
Nashville, TN 37215
Marshall S. Peace, Esq.
Island Creek Coal Company
201 l~. Vine St.
Lexington, KY 40575
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Connnission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

964

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

20006

June 23, 1993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 92-964

v.

KIAH CREEK MINING COMPANY
BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners
ORDER

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et. seq. (1988)("Mine Act"). On June 1,
1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to
Kiah Creek Mining Co. ("Kiah Creek") for failing to answer the proposal for
assessment of civil penalty filed by the Secretary of Labor or the judge's
March 23, 1993, Order to Show Cause. The judge assessed the civil penalty of
$94 proposed by the Secretary. For the reasons that follow, we vacate the
default order and remand this case for further proceedings.
On June 7, 1993, the Commission received a letter addressed to Judge
Merlin from Kiah Creek's mine manager, Mike Gipson, requesting
reconsideration. Enclosed documents include: (1) a notice of appearance form
dated November 27, 1992; (2) a letter dated November 27, 1992, from Gipson to
the Commission's executive director, requesting reduction of the proposed
civil penalty; (3) a letter dated March 30, 1993, to the Department of Labor's
Regional Solicitor's Office in Nashville, in which Gipson refers to the
judge's show cause order and encloses a copy of Kiah Creek's notice of
appearance; and (4) a return receipt indicating delivery of a document from
Kiah Creek to the regional solicitor's office on April l, 1993.
The judge's jurisdiction over this case terminated when his decision was
issued on June 1, 1993. 29 C.F.R. § 2700.69(b). Under the Mine Act and the
Commission's procedural rules, relief from a judge's decision may be sought by
filing a petition for discretionary review with the Commission within 30 days
after its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We deem
Kiah Creek's June 7 letter to be a timely filed Petition for Discretionary
Review, which we grant. See,~. Middle States Resources. Inc., 10 FMSHRC
1130 (September 1988). On the basis of the present record, we are unable to
evaluate the merits of Kiah Creek's position. In the interest of justice, we
remand this matter to the judge, who shall determine whether default is

965

warranted.

See Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990).

For the reasons set forth above, we vacate the judge's default order and
remand this matter for further proceedings.

Arlene Holen, Chairman

~~
Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner

Distribution
Mike Gipson, Mine Manager
Kiah Creek Mining Company
P.O. Box 1409
Pikeville, KY 41502
Mary Sue Taylor, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd.
Suite B-201
Nashville, TN 37215
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

966

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

20006

June 23, 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 92-878

v.

COUGAR COAL COMPANY, INC.

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners

ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On May 20,
1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to
Cougar Coal Company, Inc. ("Cougar") for failing to answer the August 28,
1992, notice of proposed civil penalty filed by the Secretary of Labor or the
judge's February 22, 1993, Order to Show Cause. 1 The judge assessed the
civil penalty of $1,008 proposed by the Secretary. For the reasons that
follow, we vacate the default order and remand this case for further
proceedings.
On June 1, 1993, the Commission received a copy of a letter from Cougar
dated September 8, 1992, disputing, inter alia, the Secretary's proposed civil
penalty. While this letter appears to be an answer to the Secretary's
proposal for assessment of civil penalty, it was forwarded to the Commission
without explanation or assertion that it had been previously sent to either
the Commission or the Secretary of Labor.
The judge's jurisdiction over this case terminated when his decision was
issued on May 20, 1993. 29 C.F.R. § 2700.69(b). Under the Mine Act and the
Commission's Procedural Rules, relief from a judge's decision may be sought by
filing a petition for discretionary review with the Commission within 30 days
after its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We deem
Cougar's letter to be a timely filed petition for discretionary review, which
we grant. See,~. Middle States Resources. Inc., 10 FMSHRC 1130 (September
1988).
1 As noted by the judge in his Order of Default, the file contains a signed
return receipt for the Order to Show Cause.

967

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

~~~
Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner

Distribution

Larry Mills, Safety Director
Cougar Coal Company
P.O. Box 301
Warfield, KY 41267
Mary Sue Taylor, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd.
Suite B-201
Nashville, TN 37215
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

968

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

20006

June 24, 1993

PITTSBURG & MIDWAY COAL
MINING COMPANY
Docket No. SPECIAL 92-02

v.

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceedi~g arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Pittsburg &
Midway Coal Mining Company ("P&M") filed with the Commission a Notice of
Contest and Motion for Partial Relief from Final Order, seeking to reopen
certain uncontested civil penalty assessments in which P&M had paid in full
penalties proposed by the Secretary of Labor. As the basis for its motion,
P&M cites Rule 60(b), Federal Rules of Civil Procedure ("Rule 60(b)"), and
principles of equity.
P&M contends that the penalties in dispute were invalidly augmented on
the basis of the interim "excessive history" program set forth in the
Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co,, 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. P&M seeks
refunds of those portions of paid penalties attributable to augmentations
under the PPL.
This case is ~ne of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that thP
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that P&M's request does
not meet the requisite criteria under Rule 60(b) or principles of equity for
the grant of such relief. Accordingly, we deny P&M's motion to reopen and we
dismiss this proceeding.

969

In JWR, we held that a final order of the Commission may be reopened by
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC
at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.
P&M has invoked Rule 60(b)(3), alleging misrepresentation by the
Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that
the requested relief would serve the ends of justice. Motions to reopen under
Rule 60(b) are committed to the sound discretion of the judicial tribunal in
which relief is sought.
15 FMSHRC at 789(citations omitted).
For the reasons
set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this
case; 15 FMSHRC at 789-91.
In JWR, the Commission explained that, in a Rule
60(b)(3) motion, misrepresentation must be shown by clear and convincing
evidence.
15 FMSHRC at 789. The Commission determined that, because the
Secretary's notifications of the proposed penalties stated that the penalties
were augmented by the excessive history program, the operator failed to
establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.
The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests. 15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril.
Id.
Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights.
Id.

970

Accordingly, for the reasons expressed in JWR, we conclude that P&M
failed to clearly and convincingly demonstrate justification for Rule 60(b)(3)
or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by P&M.
See 15 FMSHRC at 791-92.

Arlene Holen, Chairman

~<:c:~L_/
Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner
Distribution

Ray D. Gardner, Esq.
Pittsburg & Midway Coal Mining Co.
6400 South Giddler's Green Circle
Englewood, Colorado 80111
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
McDermott, Will & Emory
1850 K Street, N.W.
Washington, D.C.
20006
Henry Chajet, Esq.
L. Poe Leggette, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Suite 400
Washington, D.C. 20037

971

V

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

20006

June 24, 1993

LONNIE ROSS and CHARLES GILBERT
Docket Nos. KENT 91-76-D
KENT 91- 77 - D

v.

SHAMROCK COAL COMPANY, INC.

BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners

DECISION
BY:

Holen, Chairman; Doyle and Nelson, Commissioners

In these consolidated discrimination proceedings, brought under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)
("Mine Act" or "Act"), Shamrock Coal Company ("Shamrock") has sought review of
Administrative Law Judge William Fauver's decisions sustaining Lonnie Ross's
and Charles Gilbert's discrimination complaints and awarding them damages. 13
FMSHRC 1475 (September 199l)(ALJ); 14 FMSHRC 229 (January 1992)(ALJ). The
issues raised in Shamrock's petition for discretionary review are whether the
judge erred in: (1) determining that Shamrock failed to establish an
affirmative defense; (2) calculating complainants' gross backpay and interest
awards; (3) failing to deduct unemployment compensation from these backpay
awards; and (4) awarding reimbursement of tax penalties sustained by
complainants as a result of early withdrawal of funds from their profitsharing accounts. 1 The Commission granted the petition and heard oral
argument.
For the reasons set forth below, we affirm the judge's determination
that Shamrock failed to establish an affirmative defense. We also summarily
affirm his determination of lost wages and his award reimbursing complainants
for the tax penalties. We remand for clarification and, if appropriate,
recalculation of the judge's interest awards. Finally, we reverse the judge's
determination that unemployment compensation should not be deducted from the
backpay awards and remand for recalculation of those awards.
1

In its brief on review, Shamrock addresses issues other than those raised
in its petition for discretionary review. We consider only the issues raised in
Shamrock's petition.
30 U,S.C. §§ 823(d)(2)(A)(iii), (B) & (C); 29 C.F.R. §
2700.70(f)(l993).
9 72

I.

Factual and Procedural Background
Shamrock operates the Greasy Creek No. 10 mine, an underground coal mine
in Kentucky. Ross, Gilbert, and Mike Europa worked on a third shift
maintenance crew that prepared a section for coal production on the following
shift. Ross was the crew leader.
In carrying out their duties, Ross and Gilbert, who were not certified
electricians, regularly performed electrical work without supervision.
13 FMSHRC at 1476. They complained about such work to their crew foremen,
without result.
13 FMSHRC at 1477.
In 1989, the mine began two ten-hour
production shifts, leaving only four hours during non-production time for the
maintenance crew to perform work previously requiring eight hours.
Id. Ross
and Gilbert complained to Foreman Ralph Bowling and to Mine Superintendent Don
Smith about having too much work to do in the allotted time and requested
assistance.
Id. Bowling and Smith did not address their complaints.
Id.
On July 18, 1990, before an inspection by the Department of Labor's Mine
Safety and Health Administration ("MSHA"), Smith asked Ross to countersign a
foreman's name to a preshift report.
13 FMSHRC at 1477. When Ross refused,
Smith became angry and signed the foreman's name himself.
Id. When Europa
was on vacation, Bowling refused Ross and Gilbert's request for a replacement,
stating that Ross would have to perform Europa's duties in addition to his
own.
13 FMSHRC at 1478.
On July 26, 1990, Ross, Gilbert, and Dwayne Woods, a trainee, were
required to move a power center, which involved moving three electrical
cables. At approximately 6:00a.m., Ross and Gilbert still had to move two
cables, hook up the power center and connect the cables to make the section
ready for the day shift at 7:00 a.m. 13 FMSHRC at 1478. Ross decided to move
the cable by using a scoop.
Id.
Following Ross's orders, Gilbert helped Ross
place the cable under the scoop's batteries and positioned the scoop's
hydraulic jacks in an attempt to keep the weight of the batteries off the
cable. 13 FMSHRC at 1478-79. Gilbert then drove the scoop. 13 FMSHRC at
1479.
Miners on the day shift discovered that one of the cables had been
damaged. 13 FMSHRC at 1479. A mechanic quickly repaired the cable and no
lost work time resulted. Tr. 630-31. When Smith heard about the incident, he
ordered Bowling to determine what had occurred and, if the cables had been
moved under scoop batteries, to fire the person responsible. 13 FMSHRC at
1479.
Upon questioning by Bowling on July 31, 1990, Gilbert admitted that he
had moved the cables under the scoop batteries. 13 FMSHRC at 1479; Tr. 33-34.
Bowling told Gilbert that he was fired.
13 FMSHRC at 1479. After Gilbert
reported that Ross had told him to use the scoop batteries, Ross was
questioned and stated that he would take the blame. 13 FMSHRC at 1479-80.

9 73

Following a private discussion between Smith and Bowling, Ross and
Gilbert were given a two-week suspension without pay, instead of termination.
13 FMSHRC at 1480. Ross accepted the two-week suspension, but Gilbert stated
that he did not believe that he should be suspended for two weeks and that he
was "tired of getting jumped on ... by every boss ... and having to work like
a dog and not having time to do [his] job .... " 13 FMSHRC at 1480; Tr. 36.
Gilbert stated that, if he had accumulated enough time that year to qualify
for profit-sharing, the company could fire him. 13 FMSHRC at 1480. It was
then determined that Gilbert had accrued enough time, but Bowling told Smith
and Gilbert that the company could not fire one without firing the other. Id.
Gilbert said that he would accept the two-week suspension because he did not
want Ross to lose his job. Id. Smith became angry and told Bowling to fire
both of them. 13 FMSHRC at 1480, 1487. Bowling did so. Ross and Gilbert
subsequently withdrew the funds from their profit-sharing accounts.
Ross and Gilbert filed discrimination complaints with MSHA, pursuant to
section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), alleging that they had
been discriminatorily discharged. MSHA investigated the complaints and
determined that no discrimination had occurred. Ross and Gilbert then filed
their own complaints with the Commission, pursuant to section 105(c)(3) of the
Act, 30 U.S.C. § 815(c)(3), and the matter was heard by Judge Fauver.
The judge determined that Ross and Gilbert established prima facie cases
of discrimination. 13 FMSHRC at 1487. The judge found that their complaints
regarding electrical work and not having enough time or assistance to perform
their jobs, Ross's refusal to falsify the preshift examination report, and
Gilbert's complaints on July 31 about excessive work pressures, constituted
protected activities under the Act. 13 FMSHRC at 1484-86. He also found that
Smith had developed an animus towards complainants because of their protected
activities. 13 FMSHRC at 1487. The judge determined that their terminations
were motivated, at least in part, by their protected activities, and that
Shamrock failed to establish an affirmative defense to the complainants' prima
facie case. 13 FMSHRC at 1486-88. Accordingly, the judge concluded that they
had been discriminated against in violation of the Mine Act. He ordered Ross
and Gilbert reinstated and awarded them monetary damages.

II.
Disposition of Issues
A.

Affirmative Defense

On review, Shamrock does not challenge the judge's determination that
the complainants established a prima facie case of discrimination. Shamrock
argues that the judge erred in finding that it had not affirmatively defended
and that Ross and Gilbert would have been discharged for their unprotected
activity alone, i.e., for moving the cables under the scoop batteries.
Shamrock contends that the judge ignored or overlooked evidence that other
employees had been terminated for engaging in the same or similar conduct,
that Ross and Gilbert had been warned not to place cables under scoop
batteries, and that their conduct violated company policy.

9 74

The general principles for analyzing a discrimination case under the
Mine Act are well settled. A miner alleging discrimination establishes a
prima facie case of prohibited discrimination by proving that he engaged in
protected activity and that the adverse action complained of was motivated in
any part by that activity. Secretary on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980), rev'd on other grounds sub
nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981);
Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 81718 (April 1981). The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse action was in
no part motivated by protected activity. Pasula, 2 FMSHRC at 2799-800. If
the operator cannot rebut the prima facie case in this manner, it nevertheless
may defend affirmatively by proving that it also was motivated by the miner's
unprotected activity and would have taken the adverse action for the
unprotected activity alone. Pasula, 2 FMSHRC at 2800; Robinette, 3 FMSHRC at
817-18.
Having found that Smith's decision to discharge Ross and Gilbert was
"motivationally connected with their substantial protected activities," the
judge evaluated whether the complainants would have been discharged, even if
they had not engaged in protected activities, for the cable incident alone.
He concluded that they would not have been discharged. 13 FMSHRC at 1487-88.
As the Commission noted in Bradley v. Belva Coal Co., 4 FMSHRC 982, 993
(June 1982), an operator may attempt to prove it would have disciplined a
miner for unprotected activity alone by showing prior consistent discipline
for similar infractions, the miner's unsatisfactory work record, prior
warnings to the miner, and rules or practices prohibiting the conduct at
issue. Here, there is no evidence that Shamrock had a consistent practice of
disciplining miners for damaging electrical cable. Although one miner had
been fired for negligently damaging a cable, another had not. Tr. 155, 25253, 336. A third miner had been fired only after repeatedly damaging cable.
Tr. 334-35. The judge discredited Smith's testimony that he did not know who
had damaged the cable when he ordered Bowling to fire whoever was responsible;
substantial evidence supports this finding. 13 FMSHRC at 1488; Tr. 146,
204-05, 513-14, 646-47.
As to the miners' work histories, the judge found that Bowling had
promoted Ross two weeks before his termination and, at that time, stated that
Ross was one of his best workers. 13 FMSHRC at 1477. Bowling testified that
at the time of Ross's promotion, he felt that he would rather have Ross than
any two other employees. Tr. 439. Ross and Gilbert were considered good
employees, and neither had received any written reprimands during the nine
years each had been employed by Shamrock. Tr. 249, 286, 315, 439.
Although the judge made no specific findings as to whether Ross and
Gilbert had been warned not to move cables under scoop batteries, he found
that they both knew that this was not a good or accepted practice. 13 FMSHRC
at 1479. The judge also found, however, that Ross had seen foremen move cable
under scoop batteries when they were hurried, as Ross and Gilbert were. Id.
In addition, the judge found that Gilbert had engaged in the conduct at issue
because he was following the orders of his crew leader, Ross, and that there

9 75

was no precedent at the mine for suspending or discharging a miner under such
circumstances.
13 FMSHRC at 1479, 1488 n.4.
Indeed, Smith acknowledged that
Shamrock had initially offered Gilbert reinstatement after it learned that
Gilbert had been following Ross's orders. Tr. 394.
Thus, contrary to Shamrock's assertions, the judge did not ignore
evidence pertinent to Shamrock's affirmative defense. Applying the factors
set forth in Bradley, we conclude that substantial evidence supports the
judge's finding that Shamrock failed to establish an affirmative defense.
Accordingly, we affirm the judge's conclusion that the discharges violated the
Mine Act.
B.

Gross backpay and interest

Shamrock argues that the judge miscalculated complainants' gross backpay
and the interest thereon.
Gross backpay is the sum a miner would have earned
but for the discrimination, less his net interim earnings.
Gross backpay
encompasses not only wages, but also any accompanying fringe benefits,
payments, or contributions constituting integral parts of an employer's
overall wage-benefit package. See, ~. Secretary on behalf of Dunmire &
Estle v. Northern Coal Co., 4 FMSHRC 126, 142 (February 1982). The judge
calculated Ross's and Gilbert's gross backpay by considering their hourly rate
of pay, regular and overtime hours they averaged each week, and their usual
bonuses.
14 FMSHRC at 229-30. Shamrock has offered no specific explanation
of the asserted miscalculations nor has it set forth the basis of the
alternative figures that it submits. We decline to overturn the judge's gross
backpay determinations on the basis of Shamrock's unsupported assertion.
Accordingly, we summarily affirm the judge's determinations of gross backpay.
In Lac. U. 2274. UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493, 1504-05
(November 1988), the Commission abandoned use of the adjusted prime rate,
originally adopted in Secretary on behalf of Bailey v. Arkansas-Carbona Co.,
5 FMSHRC 2042, 2050-54 (December 1983), and announced that the short-term
federal rate applicable to the underpayment of taxes would be used in
calculating interest on backpay. The judge did not indicate in his
supplemental decision the manner in which he calculated interest on Ross's and
Gilbert's backpay awards but, in his decision on the merits, he cited
Arkansas-Carbona and instructed the parties to attempt to stipulate the amount
of interest due at the "IRS adjusted prime rate for each quarter." 13 FMSHRC
at 1489 n.5. We remand the interest awards to the judge for clarification.
If the judge applied the short-term federal rate applicable to the
underpayment of taxes in accord with Clinchfield, we affirm the interest
awards.
If not, the judge should recalculate the interest awards.

C.

Unemployment Compensation

Shamrock argues that the judge erred as a matter of law in not deducting
complainants' unemployment compensation from gross backpay.
The Commission
recently decided in Clifford Meek v. Essroc Corp., 15 FMSHRC 606, 616-18
(April 1993), that, as a matter of agency policy, unemployment compensation,
like interim earnings, should be deducted in determining backpay awards.
Accordingly, we remand this matter to the judge so that he may determine

976

complainants' unemployment compensation benefits and deduct those amounts in
determining their backpay awards.
D.

Tax Penalties

The judge found that financial constraints resulting from their wrongful
discharges caused Ross and Gilbert to withdraw funds from their profit-sharing
accounts, and ordered Shamrock to reimburse them for the tax penalties
resulting from early withdrawal.
14 FMSHRC at 230. Shamrock argues that the
judge erred as a matter of law in so compensating Ross and Gilbert. Whether
reimbursement for tax penalties should be included in backpay awards is an
issue of first impression before the Commission and one committed to the
Commission's discretion.
Shamrock has failed, however, to advance any
supporting argument upon which the judge's determination should be disturbed.
Accordingly, without implying how we might rule on this issue in the future,
we affirm the judge's award of tax penalties to Ross and Gilbert.

III.
Conclusion
For the reasons discussed above, we affirm the judge's conclusion that
Shamrock failed to establish an affirmative defense. We also summarily affirm
the judge's determination of gross backpay and his award of the tax penalties.
We remand the interest awards to the judge for clarification and, if
appropriate, recalculation. We reverse the judge's determination that
unemployment compensation received by Ross and Gilbert should not be deducted
when determining their backpay awards and remand for recalculation of the
awards.

Arlene Holen, Chairman

. Doyle, Commissio

L. Clair Nelson, Commissioner

977

Commissioner Backley, concurring in part and dissenting in part:

I concur with the majority's decision on all issues except for the
majority's holding regarding unemployment compensation.
For the reasons set
forth in my dissent in Clifford Meek v. Essroc Corp., 15 FMSHRC 606, 621-26
(April 1993), I would affirm the judge's determination to not deduct
unemployment compensation received from the backpay awards.

Distribution

Phyllis L. Robinson
Attorney at Law
P.O. Box 952
Hyden, KY 41749
Tony Oppegard, Esq.
Mine Safety Project of the
Appalachian Research & Defense Fund
630 Maxwelton Court
Lexington, KY 40508
Neville Smith, Esq.
Timothy \.Jells, Esq.
Smith & Smith
P.O. Box 447
Mancester, KY 40962
Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite lGOO
Falls Church, VA 22041

978

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

20006

June 29, 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 92-776

v.

LYNX COAL COMPANY, INC.
BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners
ORDER

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On May 20,
1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to
Lynx Coal Company, Inc. ("Lynx") for failing to answer the August 17, 1992,
notice of proposed civil penalty filed by the Secretary of Labor and the
judge's Order to Show Cause of February 4, 1993. 1 The judge assessed the
civil penalty of $5,500 proposed by the Secretary. For the reasons that
follow, we vacate the default order and remand this case for further
proceedings.
On June 7, 1993, the Commission received a copy of a letter from Lynx,
dated February 19, 1993, addressed to an attorney in the Office of the
Regional Solicitor of the Department of Labor, Nashville, Tennessee. The
letter questions the Secretary's proposed civil penalty and may have been
intended to answer the Secretary's proposal for assessment of civil penalty.
The letter was forwarded to the Commission without explanation.
The judge's jurisdiction over this case terminated when his decision was
issued on May 20, 1993. 29 C.F.R. § 2700.69(b). Under the Mine Act and the
Commission's Procedural Rules, relief from a judge's decision may be sought by
filing a petition for discretionary review with the Commission within 30 days
after its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We deem
Lynx's letter to be a timely filed petition for discretionary review, which we
grant. See, ~. Middle States Resources. Inc., 10 FMSHRC 1130 (September
1988).

1

As noted by the judge in his Order of Default, the file contains a signed
return receipt for the Order to Show Cause.

979

On the basis of the present record, we are unable to evaluate the merits
of Lynx's position.
In the interest of justice, we remand this matter to the
judge, who shall determine whether default is warranted.
See Hickory Coal
Co., 12 FMSHRC 1201, 1202 (June 1990).

Arlene Holen, Chairman

L. Clair Nelson, Commissioner

Distribution

Hr. Larry Mills
Lynx Coal Company
Box 301
Warfield, KY 41267
Mary Sue Taylor, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd.
Suite B-201
Nashville, TN 37215
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

980

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

20006

June 2.9, 1993

BETHENERGY MINES, INC.
Docket Nos. PENN 89-277-R
PENN 89-278-R

v.

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

BEFORE:

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
This contest proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1988)(nMine Actn or nActn), and raises
the question of whether BethEnergy Mines, Inc. (nBethEnergyn) violated a
notice to provide safeguards applicable to its belt conveyors. The safeguard
notice was issued by an authorized representative of the Secretary of Labor
pursuant to 30 C.F.R. § 75.1403 and was based upon the safeguard criterion set
forth at 30 C.F.R. § 75.1403-5(g). 1 In an earlier decision, BethEnergy
Mines. Inc., 14 FMSHRC 17 (January 1992)(nBethEnergy In), the Commission
vacated Administrative Law Judge William Fauver's determination that the
safeguard was valid as well as his affirmance of the two citations alleging
violations of the safeguard, and remanded to the judge for reconsideration
pursuant to the principles discussed by the Commission in its opinion and in
Southern Ohio Coal Co., 14 FMSHRC 1 (January 1992)(nsocco lin), one of four

1

30 C.F.R. § 75.1403 has language identical to section 314(b) of the Mine
Act, 30 U.S.C. § 874{b), and states:
Other safeguards adequate, in the judgment of an
authorized representative of the Secretary, to minimize
hazards with respect to transportation of men and
materials shall be provided.
30 C.F.R. § 75.1403-5 is entitled ncriteria-Belt conveyors, nand section 75.14035(g) states, in pertinent part, that a nclear travelway at least 24 inches wide
should be provided on both sides of all belt conveyors .... n

981

other safeguard decisions issued the same date. 2
On remand, Judge Fauver again determined that the safeguard was valid,
but found that the Secretary had not established the alleged violations of the
safeguard. 14 FMSHRC 894 (May l992)(ALJ). The Commission granted the
Secretary's petition for discretionary review challenging the judge's vacation
of the citations. We affirm the judge's conclusion but on grounds different
from those relied upon by the judge.
I.

Factual Background and Procedural History
A.

Factual Background

On June 13, 1984, Francis Weir, an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA"), issued a notice to
provide safeguards to BethEnergy at its Mine No. 60, an underground coal mine
in Pennsylvania. The notice states:
A clear travelway of at least 24 inches wide was
not provided on both sides of the belt conveyor in the
longwall section MMUU 031. Starting at the tipple and
extending inby for approximately 400 ft. For the
first 200 ft. the clearance changed from the left
sid[e] back to right and management had the area
fenced of[f] and a crossunder had been provided. The
second area was approximately 300 ft. inby the tipple
was on the left sid[e] and clearance was between 23
inches and 15 inches for approximately 10-15 ft. in
two different locations.
This is a notice to provide safeguard that
requires at least 24 inches of clear travelway be
provided on both sides of all belt conveyor[s]
installed after March 30, 1970 at this mine.
Jt. Exh. 3.
On September 7, 1989, some five years later, MSHA Inspector John Mull
inspected the Livingston portal in BethEnergy's Eighty-Four Complex, a mine
that includes former Mine No. 60. Inspector Mull observed that 24 inches of
clearance had not been provided along both sides of the No. 3 and 4 conveyor
belts, and issued two citations, alleging violations of Inspector Weir's
safeguard notice.

2 The other decisions are: Mettiki Coal Corp., 14 FMSHRC 29 (January 1992);
Rochester & Pittsburgh Coal Co., 14 FMSHRC 37 (January 1992); and Green River
Coal Co., 14 FMSHRC 43 (January 1992).

982

The citation alleging a violative condition along the No. 3 belt
states:
At least 24 inches of a clear travelway was not
provided on both sides of the entire No. 3 belt, as
the side not normally walked was obstruct(ed] with rib
material, crib, block and other material at numerous
locations.
Jt. Exh. 1.
states:

The citation alleging a violative condition beside the No. 4 belt
At least 24 inches of a clear travelway was not
provided on both sides of the No.4 belt ... as the
side not normally walked was obstruct[ed] with
material from the ribs and other material at numerous
locations.

Jt. Exh. 2.
The two citations were terminated after miners removed the obstructions
along the belt lines over the course of ten shifts. 14 FMSHRC at 896.
BethEnergy contested both citations, and the matter was heard by Judge Fauver.
B.

Procedural HistokY

In his original decision, Judge Fauver determined that, because the
safeguard was based on a published safeguard criterion, it was valid even if
it addressed a general rather than a mine-specific hazard and should be
interpreted in the same manner as a promulgated mandatory standard. 12 FMSHRC
761, 769 (April 1990)(ALJ). Construing the safeguard broadly, the judge found
that the safeguard provided reasonable notice that the walkways beside the
conveyor belts should be clear, and he affirmed both citations. 12 FMSHRC at
769-70.
On review, the Commission noted its holding in SOCCO II that the
Secretary may properly issue a safeguard that addresses a commonly encountered
hazard so long as it is based on a determination by the inspector that the
specific hazard exists in the mine. BethEnergy I, 14 FMSHRC at 21-22, citing,
SOCCO II, 14 FMSHRC at 15-16. The Commission held that the fact that a
safeguard is based on a published safeguard criterion neither affects its
validity nor the narrow manner in which it is to be construed. 14 FMSHRC at
22-25. Accordingly, the Commission vacated the judge's determination that the
safeguard was valid, and remanded for consideration of whether the safeguard
was based on Inspector Weir's determination that the conditions at
BethEnergy's Mine No. 60 created a transportation hazard requiring the
corrective action prescribed in the safeguard. 14 FMSHRC at 27. If the judge
concluded that the safeguard had been validly issued, he was to determine,
pursuant to the principles announced in Southern Ohio Coal Co., 7 FMSHRC 509
(April 1985)("SOCCO I"), whether BethEnergy had violated it. 14 FMSHRC at 25,
27-28.

983

On remand, the judge determined that the safeguard was valid but that
the Secretary had not proven that BethEnergy had violated it. 14 FMSHRC at
897, 899-900. Applying a narrow construction of the safeguard as discussed in
SOCCO I, 7 FMSHRC at 512, the judge reasoned that a violation of the safeguard
exists "only if (1) a travelway between the rib and the conveyor belt has a
width below 24 inches or (2) a fence obstructs the travelway." 14 FMSHRC at
899-900 (footnote omitted). He determined that the first condition could be
met "by proof that obstructions reduced the safe, usabl~ width of a travelway
to below 24 inches." 14 FMSHRC at 900. He concluded that, because Inspector
Mull had not measured but had only estimated the clearance along the
travelways, the Secretary had failed to prove that obstructions reduced the
width of the travelways to less than 24 inches. Id. Accordingly, he vacated
the citations. 14 FMSHRC at 901.
II.
Disposition of Issues
The Secretary sought review of "[w]hether the ... judge erred in
concluding that the Secretary failed to establish violations of a safeguard
notice ... because the inspector failed to measure the distance between the
belts and the obstructions .... " PDR at 1.' We conclude that the judge erred
in relying upon the inspector's failure to take measurements as the basis for
finding no violation of the safeguard but, nevertheless, affirm in result his
vacation of the citations.
In determining whether the Secretary had established a violation of the
safeguard notice, the judge imposed upon the Secretary, in effect, a stricter
burden of proof than preponderance of evidence, which is the appropriate
standard of proof in proceedings before Commission administrative law judges.
See,~. Kenny Richardson, 3 FMSHRC 8, 12 n.7 (January 1981).
Inspector
Mull testified that he issued the citations because material was obstructing
the travelways beside the conveyor belts and, as a result, 24 inches of
clearance had not been provided. Tr. 45, 47. He stated that he had to cross
over the No. 4 belt because the rib sloughage beside the belt was too high for
him to walk over. Tr. 49-50. Inspector Mull also testified that "the reason
[he] didn't measure it [the width of the walkway] was because there were
obstructions from the belt structure ... in most cases clear to the rib." Tr.
66. BethEnergy offered no evidence in contradiction of Inspector Mull's
testimony that 24 inches of clearance had not been provided. The judge did
not question Inspector Mull's general credibility and, in fact, accepted his
observed estimates as to the size of the obstructions and the distance between
the belt and the floor and the roof. 14 FMSHRC at 895-96; Tr. 49-50, 75-76.
Thus, a preponderance of the evidence presented to the judge established the
cited lack of clearance.
We conclude, therefore, that substantial evidence does not support the
judge's rejection of the Secretary's case on the basis of the inspector's

984

failure to take measurements. 3 SOCCO I does not require the application of a
burden of proof stricter than a preponderance of the evidence in determining
whether a safeguard was violated. Rather, SOCCO I requires the Commission and
its judges to construe narrowly the terms and intended reach of a safeguard.
Accordingly, we reverse the judge's determination that the Secretary failed to
prove the cited lack of clearance.
BethEnergy argues that, even assuming the cited lack of clearance, the
citations were properly vacated because the obstructions alleged in the
citations were not encompassed by the safeguard's prohibitions. 4 We agree.
In SOCCO I, the Commission concluded that a safeguard notice must
identify with specificity the nature of the hazard against which it is
directed and the conduct required to abate the hazard, and held that "a narrow
construction of the terms of the safeguard and its intended reach is
required." 7 FMSHRC at 512. The Commission explained that strict
construction was necessary in order to balance the unusually broad grant to
the Secretary of authority to issue safeguards with the operator's right to
notice of the conduct required of him. Id. The Commission concluded that the
safeguard, which referred to physical obstructions in a travelway, fallen rock
and cement blocks, did not provide the operator with adequate notice that wet

3

The Commission is bound by the terms of the Mine Act to apply the
substantial evidence test when reviewing an administrative law judge's decision.
30 U.S.C. § 823(d)(2)(A)(ii)(I).
The term "substantial evidence" means "such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." See,~. Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163
(November 1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938).
4

Although the Secretary narrowly tailored the issue presented for review,
we conclude that BethEnergy is not precluded from interjecting this argument in
its response brief, rather than in a cross-petition for review. In Secretary on
behalf of Price & Vacha v. Jim Walter Resources. Inc., 12 FMSHRC 1521 (August
1990), the Commission determined that:
the "appellee" may urge in support of the judgment below
any matter or issue appearing in the record, even if it
involves an objection to some aspect of the judge's
reasoning or issue resolution, so long as the appellee
does not seek to attack the judgment itself or to
enlarge its rights thereunder, in which case it would be
obliged to file a cross-petition for discretionary
review.
12 FMSHRC at 1529 (emphasis in original; citations omitted).
The Commission
reaffirmed this determination on subsequent review of the judge's decision on
remand. Secretary on behalf of Price & Vacha v. Jim Walter Resources. Inc., 14
FMSHRC 1549, 1552 n.2 (September 1992).
Here, the appellee does not seek to
attack the judge's conclusion that the citations should be vacated or to enlarge
its rights under that judgment. Thus, we consider the argument.

985

ground conditions resulting in an accumulation of water fell within the
safeguard's prohibitions. 7 FMSHRC at 513.
In Green River Coal Co., 14 FMSHRC 43, 47 (January 1992), the Commission
affirmed the judge's determination that a safeguard, which addressed a
hazardous narrowing of a travelway caused by the erection of roof supports
near a conveyor belt, did not give the operator adequate notice that it also
prohibited the loose rock obstructing a travelway. The Commission explained
that "[o]bstructions in travelways caused by the deliberate placement of roof
supports differ fundamentally in nature, cause, and remedy from those that
occur due to roof falls." Id.
Here, the impediments to travel described in the safeguard differ
substantially in nature from the cited obstructions. The lack of clearance
described in the safeguard was caused by the operator's erection of a fence
across the travelway and by placement of the belt too close to the rib. In
contrast, the cited coal sloughage, concrete blocks and cribbing material
resulted from unintended accumulations in the travelways. The fence, although
erected as a safety~measure, impeded travel, and the proximity of the belt to
the rib narrowed the passageway. The cited obstructions presented primarily
slipping, tripping, and falling hazards. See Tr. 45-46. Unlike abatement for
lack of clearance caused by the belt being too close to the rib, abatement of
these citations required removal of the coal sloughage, concrete blocks, and
crib material. _Thus, for the reasons discussed in SOCCO I and Green River, we
conclude that tha lack of clearance described in Inspector Weir's safeguard
did not provide BethEnergy with adequate notice that the safeguard prohibited
the cited conditions. Accordingly, we affirm, in result, the judge's vacation
of the citations.

986

III.
Conclusion
For the reasons discussed above, we affirm the judge's vacation of the
citations.

Arlene Holen, Chairman

Distribution
Robert W. Aldrich, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
R. Henry Moore, Esq.
Buchanan Ingersoll
USX Tower, 57th Floor
600 Grant Street
Pittsburgh, PA 15219
Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

987

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

June

20006

29, 1993

CYPRUS ORCHARD VALLEY
COAL CORPORATION
Docket No. SPECIAL 92-03

v.

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Cyprus Orchard
Valley Coal Corporation ("Cyprus Orchard") filed with the Commission a Notice
of Contest and Motion for Partial Relief from Final Order, seeking to reopen
certain uncontested civil penalty assessments in which Cyprus Orchard had paid
in full penalties proposed by the Secretary of Labor. As the basis for its
motion, Cyprus Orchard cites Rule 60(b), Federal Rules of Civil Procedure
("Rule 60(b)"), and principles of equity.
Cyprus Orchard contends that the penalties in dispute were invalidly
augmented on the basis of the interim "excessive history" program set forth in
the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. Cyprus
Orchard seeks refunds of those portions of paid penalties attributable to
augmentations under the PPL.
This case is one of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources, Inc., 15 FMSHRC 782 (May 1993) ("JWR"),·we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that Cyprus Orchard's
request does not meet the requisite criteria under Rule 60(b) or principles of
equity for the grant of such relief. Accordingly, we deny Cyprus Orchard's
motion to reopen and we dismiss this proceeding.
In JWR, we held that a final order of the Commission may be reopened by

988

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC
at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject'to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.
Cyprus Orchard has invoked Rule 60(b)(3), alleging misrepresentation by
the Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting
that the requested relief would serve the ends of justice. Motions to reopen
under Rule 60(b) are committed to the sound discretion of the judicial
tribunal in which relief is sought. 15 FMSHRC at 789(citations omitted). For
the reasons set forth in JWR, we hold that Rule 60(b) relief is inappropriate
in this case.
15 FMSHRC at 789-91.
In JWR, the Commission explained that, in
a Rule 60(b)(3) motion, misrepresentation must be shown by clear and
convincing evidence.
15 FMSHRC at 789. The Commission determined that,
because the Secretary's notifications of the proposed penalties stated that
the penalties were augmented by the excessive history program, the operator
failed to establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.

The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests.
15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril.
Id. Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights.
Id.

989

Accordingly, for the reasons expressed in JWR, we conclude that-Cyprus
Orchard failed to clearly and convincingly demonstrate justification for Rule
60(b)(3) or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refun~s sought by Cyprus Orchard. See 15 FMSHRC
at 791-92.

L. Clair Nelson, Commissioner

Distribution
Michael R. Peelish, Esq.
Cyprus Minerals Company
9100 East }lineral Circle
Englewood, Colorado 80112
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
McDermott, \-Jill & Emery
1850 K Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Washington, D.C. 20037

990

·.

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

June 29, 1993

CYPRUS EMPIRE CORPORATION
Docket No. SPECIAL 92-04

v.

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Cyprus Empire
Corporation ("Cyprus Empire") filed with the Commission a Notice of Contest
and Motion for Partial Relief from Final Order, seeking to reopen certain
uncontested civil penalty assessments in which Cyprus Empire had paid in full
penalties proposed by the Secretary of Labor. As the basis for its motion,
Cyprus Empire cites Rule 60(b), Federal Rules of Civil Procedure ("Rule
60(b)"), and principles of equity.
Cyprus Empire contends that the penalties in dispute were invalidly
augmented on the basis of the interim "excessive history" program set forth in
the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. Cyprus Empire
seeks refunds of those portions of paid penalties attributable to
augmentations under the PPL.
This case is one of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that Cyprus Empire's
request does not meet the requisite criteria under Rule 60(b) or principles of
equity for the grant of such relief. Accordingly, we deny Cyprus Empire's
motion to reopen and we dismiss this proceeding.
In JWR, we held that a final order of the Commission may be reopened by
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC

991

at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.
Cyprus Empire has invoked Rule 60(b)(3), alleging misrepresentation by
the Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting
that the requested relief would serve the ends of justice. Motions to reopen
under Rule 60(b) are committed to the sound discretion of the judicial
tribunal in which relief is sought. 15 FMSHRC at 789(citations omitted). For
the reasons set forth in JWR, we hold that Rule 60(b) relief is inappropriate
in this case.
15 FMSHRC at 789-91.
In JWR, the Commission explained that, in
a Rule 60(b)(3) motion, misrepresentation must be shown by clear and
convincing evidence.
15 FMSHRC at 789. The Commission determined that,
because the Secretary's notifications of the proposed penalties stated that
the penalties were augmented by the excessive history program, the operator
failed to establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.

The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests. 15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril.
Id. Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights.
Id.

992

Accordingly, for the reasons expressed in JWR, we conclude that Cyprus
Empire failed to clearly and convincingly demonstrate justification for Rule
60(b)(3) or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by Cyprus Empire. See 15 FMSHRC
at
791-92.

Arlene Holen, Chairman

~~£~~
Commissio~~
Richard V. Backley,

L. Clair Nelson, Commissioner
Distribution

Michael R. Peelish, Esq.
Cyprus Hinerals Company
9100 East Hineral Circle
Englewood, Colorado 80112
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
HcDerraott, v1ill & Emery
1850 K Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Washington, D.C. 20037

993

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

20006

June 29, 1993

CONSOLIDATION COAL COMPANY,
CONSOL PENNSYLVANIA COAL COMPANY,
McELROY COAL COMPANY, and
QUARTO MINING COMPANY
v.

Docket No. SPECIAL 92-05

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Consolidation
Coal Company, Consol Pennsylvania Coal Company, McElroy Coal Company, and
Quarto Mining Company ("Petitioners") filed with the Commission a Notice of
Contest and Motion for Partial Relief from Final Order, seeking to reopen
certain uncontested civil penalty assessments in which Petitioners had paid in
full penalties proposed by the Secretary of Labor. As the basis for its
motion, Petitioners cite Rule 60(b), Federal Rules of Civil Procedure ("Rule
60(b)"), and principles of equity.
Petitioners contend that the penalties in dispute were invalidly
augmented on the basis of the interim "excessive history" program set forth in
the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. Petitioners
seek refunds of those portions of paid penalties attributable to augmentations
under the PPL.
This case is one of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources, Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that Petitioners' request
does not meet the requisite criteria under Rule 60(b) or principles of equity
for the grant of such relief. Accordingly, we deny Petitioners' motion to

994

reopen and we dismiss this proceeding.
In JWR, we held that a final order of the Commission may be reopened by
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC
at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.
Petitioners have invoked Rule 60(b)(3), alleging misrepresentation by
the Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting
that the requested relief would serve the ends of justice. Motions to reopen
under Rule 60(b) are committed to the sound discretion of the judicial
tribunal in which relief is sought.
15 FMSHRC at 789(citations omitted).
For
the reasons set forth in JWR, we hold that Rule 60(b) relief is inappropriate
in this case. 15 FMSHRC at 789-91.
In JWR, the Commission explained that, in
a Rule 60(b)(3) motion, misrepresentation must be shown by clear and
convincing evidence.
15 FMSHRC at 789. The Commission determined that,
because the Secretary's notifications of the proposed penalties stated that
the penalties were augmented by the excessive history program, the operator
failed to establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.

The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests.
15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril.
Id.
Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights.
Id.

995

Accordingly, for the-reasons expressed in JWR, we conclude that
Petitioners failed to clearly and convincingly demonstrate justification for
Rule 60(b)(3) or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by Petitioners. See 15 FMSHRC at
791-92.

Arlene Holen, Chairman

gfZ&c_~/._A.--L-vt4d1:u-~~v
Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner
Distribution
Daniel E. Rogers, Esq.
Consolidation Coal Company
1800 Washington Rd.
Pittsburgh, PA 15241
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
McDermott, Will & Emery
1850 K Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Washington, D.C. 20037

996

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

20006

June 29, 19g3

MONTEREY COAL COMPANY,
a division of EXXON
COAL USA, INC.
Docket No. SPECIAL 92-06

v.

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Monterey Coal
Company ("Monterey") filed with the Commission a Notice of Contest and Motion
for Partial Relief from Final Order, seeking to reopen certain uncontested
civil penalty assessments in which Monterey had paid in full penalties
proposed by the Secretary of Labor. As the basis for its motion, Monterey
cites Rule 60(b), Federal Rules of Civil Procedure ("Rule 60(b)"), and
principles of equity.
Monterey contends that the penalties in dispute were invalidly augmented
on the basis of the interim "excessive history" program set forth in the
Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. Monterey
seeks refunds of those portions of paid penalties attributable to
augmentations under the PPL.
This case is one of 19 special proceedings ~n which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that Monterey's request
does not meet the requisite criteria under Rule 60(b) or principles of equity
for the grant of such relief. Accordingly, we deny Monterey's motion to
reopen and we dismiss this proceeding.

997

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC
at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.
Monterey has invoked Rule 60(b)(3), alleging misrepresentation by the
Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that
the requested relief would serve the ends of justice. Motions to reopen under
Rule 60(b) are committed to the sound discretion of the judicial tribunal in
which relief is sought. 15 FMSHRC at 789(citations omitted).
For the reasons
set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this
case.
15 FMSHRC at 789-91.
In JWR, the Commission explained that, in a Rule
60(b)(3) motion, misrepresentation must be shown by clear and convincing
evidence.
15 FMSHRC at 789. The Commission determined that, because the
Secretary's notifications of the proposed penalties stated that the penalties
were augmented by the excessive history program, the operator failed to
establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.
The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests.
15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril.
Id.
Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights.
Id.

998

_ Accordingly, for the reasons expressed in JWR, we conclude that Monterey
failed to clearly and convincingly demonstrate justification for Rule 60(b)(3)
or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by Monterey. See 15 FMSHRC at
791-92.

Arlene Holen, Chairman

L. Clair Nelson, Commissioner
Distribution
James J. McGowan, Jr.
Monterey Coal Company
2401 S. Gessner
Houston, TX 77063
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
McDermott, Will & Emery
1850 K Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Washington, D.C. 2003"1

999

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

June 29, 1993

GENERAL CHEMICAL CORPORATION
Docket No. SPECIAL 92-07

v.

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), General Chemical
Corporation ("GCC") filed with the Commission a Notice of Contest and Motion
for Partial Relief from Final Order, seeking to reopen certain uncontested
civil penalty assessments in which GCC had paid in full penalties proposed by
the Secretary of Labor. As the basis for its motion, GCC cites Rule 60(b),
Federal Rules of Civil Procedure ("Rule 60(b)"), and principles of equity.
GCC contends that the penalties in dispute were invalidly augmented on
the basis of the interim "excessive history" program set forth in the
Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. GCC seeks
refunds of those portions of paid penalties attributable to augmentations
under the PPL.
This case is one of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that GCC's request does
not meet the requisite criteria under Rule 60(b) or principles of equity for
the grant of such relief. Accordingly, we deny GCC's motion to reopen and we
dismiss this proceeding.
In JWR, we held that a final order of the Commission may be reopened by
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC
at 786-89. As explained in JWR, section lOS(a) of the Mine Act, 30 U.S.C.

1000

§ 815(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.

GCC has invoked Rule 60(b)(3), alleging misrepresentation by the
Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that
the requested relief would serve the ends of justice. Motions to reopen under
Rule 60(b) are committed to the sound discretion of the judicial tribunal in
which relief is sought. 15 FMSHRC at 789(citations omitted).
For the reasons
set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this
case. 15 FMSHRC at 789-91.
In JWR, the Commission explained that, in a Rule
60(b)(3) motion, misrepresentation must be shown by clear and convincing
evidence. 15 FMSHRC at 789. The Commission determined that, because the
Secretary's notifications of the proposed penalties stated that the penalties
were augmented by the excessive history program, the operator failed to
establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.
The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests.
15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril.
Id.
Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights.
Id.

1001

Accordingly, for the reasons expressed in JWR, we conclude that GCC
failed to clearly and convincingly demonstrate justification for Rule 60(b)(3)
or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by GCC. See 15 FMSHRC at 791-92.

Arlene Holen, Chairman

Distribution
Matthew F. McNulty, III, Esq.
General Chemical Corporation
50 South Main Street, Suite 1600
P.O. Box 45340
Salt Lake City, Utah 84145
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
McDermott, Will & Emery
1850 K Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Washington, D.C. 20037
1002

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

20006

June 29, 1993

FMC WYOMING CORPORATION
Docket No. SPECIAL 92-08

v.

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), FMC Wyoming
Corporation ("FMC") filed with the Commission a Notice of Contest and Motion
for Partial Relief from Final Order, seeking to reopen certain uncontested
civil penalty assessments in which FMC had paid in full penalties proposed by
the Secretary of Labor. As the basis for its motion, FMC cites Rule 60(b),
Federal Rules of Civil Procedure ("Rule 60(b)"), and principles of equity.
FMC contends that the penalties in dispute were invalidly augmented on
the basis of the interim "excessive history" program set forth in the
Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. FMC seeks
refunds of those portions of paid penalties attributable to augmentations
under the PPL.
This case is one of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that FMC's request does
not meet the requisite criteria under Rule 60(b) or principles of equity for
the grant of such relief. Accordingly, we deny FMC's motion to reopen and we
dismiss this proceeding.
In JWR, we held that a final order of the Commission may be reopened by
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC
at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C.
1003

§ 815(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.

FMC has invoked Rule 60(b)(3), alleging misrepresentation by the
Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that
the requested relief would serve the ends of justice. Motions to reopen under
Rule 60(b) are committed to the sound discretion of the judicial tribunal in
which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons
set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this
case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule
60(b)(3) motion, misrepresentation must be shown by clear and convincing
evidence. 15 FMSHRC at 789. The Commission determined that, because the
Secretary's notifications of the proposed penalties stated that the penalties
were augmented by the excessive history program, the operator failed to
establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.
The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests. 15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril. Id. Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights.
Id.

1004

Accordingly, for the reasons expressed in JWR, we conclude that FMC
failed to clearly and convincingly demonstrate justification for Rule 60(b)(3)
or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by FMC. See 15 FMSHRC at 791-92.

Arlene Holen, Chairman

~u/&c.u/k_~£b/
Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner

Distribution
Matthew F. McNulty, III, Esq.
General Chemical Corporation
50 South }~in Street, Suite 1600
P.O. Box 45340
Salt Lake City, Utah 84145
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
McDermott, Will & Emery
1850 K Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Washington, D.C. 20037
1005

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

20006

June 29, 1993

AKZO SALT, INC.
v.

Docket No. SPECIAL 92-09

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Akzo Salt, Inc.
("Akzo") filed with the Commission a Notice of Contest and Motion for Partial
Relief from Final Order, seeking to reopen certain uncontested civil penalty
assessments in which Akzo had paid in full penalties proposed by the Secretary
of Labor. As the basis for its motion, Akzo cites Rule 60(b), Federal Rules
of Civil Procedure ("Rule 60(b)"), and principles of equity.
Akzo contends that the penalties in dispute were invalidly augmented on
the basis of the interim "excessive history" program set forth in the
Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. Akzo seeks
refunds of those portions of paid penalties attributable to augmentations
under the PPL.
This case is one of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the
Commission possesses jurisdiction to reopen final orders, ·including orders in
which uncontested penalties were paid, but conclude that Akzo's request does
not meet the requisite criteria under Rule 60(b) or principles of equity for
the grant of such relief. Accordingly, we deny Akzo's motion to reopen and we
dismiss this proceeding.
In JWR, we held that a final order of the Commission may be reopened by
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC
at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C.

1006

§ 815(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.

Akzo has invoked Rule 60(b)(3), alleging misrepresentation by the
Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that
the requested relief would serve the ends of justice. Motions to reopen under
Rule 60(b) are committed to the sound discretion of the judicial tribunal in
which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons
set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this
case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule
60(b)(3) motion, misrepresentation must be shown by clear and convincing
evidence. 15 FMSHRC at 789. The Commission determined that, because the
Secretary's notifications of the proposed penalties stated that the penalties
were augmented by the excessive history program, the operator failed to
establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.
The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests. 15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril. Id. Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights. Id.

1007

Accordingly, for the reasons expressed in JWR, we conclude that Akzo
failed to clearly and convincingly demonstrate justification for Rule 60(b)(3)
or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by Akzo. See 15 FMSHRC at 791-92.

Arlene Holen, Chairman

L. Clair Nelson, Commissioner
Distribution
John W. Behan, Esq.
Akzo Salt, Inc.
Akzo America Inc.
7 Livingston Avenue
Dobbs Ferry, NY 10522
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
HcDermott, Will & Emery
1850 K Street, N.W.
\.J'ashington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Washington, D.C. 20037
1008

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

June 29, 1993

CYPRUS EMERALD RESOURCES
CORPORATION
Docket No. SPECIAL 92-10

v.

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Cyprus Emerald
Resources Corporation ("Cyprus Emerald") filed with the Commission a Notice of
Contest and Motion for Partial Relief from Final Order, seeking to reopen
certain uncontested civil penalty assessments in which Cyprus Emerald had paid
in full penalties proposed by the Secretary of Labor. As the basis for its
motion, Cyprus Emerald cites Rule 60(b), Federal Rules of Civil Procedure
("Rule 60(b)"), and principles of equity.
Cyprus Emerald contends that the penalties in dispute were invalidly
augmented on the basis of the interim "excessive history" program set forth in
the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. Cyprus
Emerald seeks refunds of those portions of paid penalties attributable to
augmentations under the PPL.
This case is one of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that Cyprus Emerald's
request does not meet the requisite criteria under Rule 60(b) or principles of
equity for the grant of such relief. Accordingly, we deny Cyprus Emerald's
motion to reopen and we dismiss this proceeding.

1009

In JWR, we held that a final order of the Commission may be reopened by
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC
at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.
Cyprus Emerald has invoked Rule 60(b)(3), alleging misrepresentation by
the Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting
that the requested relief would serve the ends of justice. Motions to reopen
under Rule 60(b) are committed to the sound discretion of the judicial
tribunal in which relief is sought. 15 FMSHRC at 789(citations omitted). For
the reasons set forth in JWR, we hold that Rule 60(b) relief is inappropriate
in this case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in
a Rule 60(b)(3) motion, misrepresentation must be shown by clear and
convincing evidence. 15 FMSHRC at 789. The Commission determined that,
because the Secretary's notifications of the proposed penalties stated that
the penalties were augmented by the excessive history program, the operator
failed to establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.
The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests. 15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril. Id. Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights. Id.

1010

Accordingly, for the reasons expressed in JWR, we conclude that Cyprus
Emerald failed to clearly and convincingly demonstrate justification for Rule
60(b)(3) or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by Cyprus Emerald. See 15 FMSHRC
at 791-92.

Arlene Holen, Chairman

~:=/
'Richard V. Backley, Commissioner v

L. Clair Nelson, Commissioner
Distribution

Michael R. Peelish, Esq.
Cyprus Hinerals Company
9100 East Hineral Circle
Englewood, Colorado 80112
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
McDermott, Will & Emery
1850 K Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Washington, D.C. 20037

lOll

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

June 29, 1993

MOUNTAIN COAL COMPANY

v.

Docket No. SPECIAL 92-11

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Mountain Coal
Company ("Mountain") filed with the Commission a Notice of Contest and Motion
for Partial Relief from Final Order, seeking to reopen certain uncontested
civil penalty assessments in which Mountain had paid in full penalties
proposed by the Secretary of Labor. As the basis for its motion, Mountain
cites Rule 60(b), Federal Rules of Civil Procedure ("Rule 60(b)"), and
principles of equity. ·
Mountain contends that the penalties in dispute were invalidly augmented
on the basis of the interim "excessive history" program set forth in the
Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. Mountain
seeks refunds of those portions of paid penalties attributable to
augmentations under the PPL.
This case is one of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the
Commission possesses jurisdiction to reopen final orders,· including orders in
which uncontested penalties were paid, but conclude that Mountain's request
does not meet the requisite criteria under Rule 60(b) or principles of equity
for the grant of such relief. Accordingly, we deny Mountain's motion to
reopen and we dismiss this proceeding.

1012

In JWR, we held that a final order of the Commission may be reopened by
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC
at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.
Mountain has invoked Rule 60(b)(3), alleging misrepresentation by the
Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that
the requested relief would serve the ends of justice. Motions to reopen under
Rule 60(b) are committed to the sound discretion of the judicial tribunal in
which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons
set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this
case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule
60(b)(3) motion, misrepresentation must be shown by clear and convincing
evidence. 15 FMSHRC at 789. The Commission determined that, because the
Secretary's notifications of the proposed penalties stated that the penalties
were augmented by the excessive history program, the operator failed to
establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.
The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests. 15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril. Id. Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights. Id.

1013

Accordingly, for the reasons expressed in JWR, -we conclude that Mountain
failed to clearly and convincingly demonstrate justification for Rule 60(b)(3)
or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by Mountain. See 15 FMSHRC at
791-92.

Arlene Holen, Chairman

L. Clair Nelson, Commissioner
Distribution
David M. Arnolds, Esq.
ARCO - Mountain Coal Company
555 Seventeenth St.
Denver, Colorado 80202
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
McDermott, Will & Emery
1850 K Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Washington, D.C. 20037

1014

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

June 29, 1993

SOUTHERN OHIO COAL COMPANY

v.

Docket No. SPECIAL 92-12

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Southern Ohio
Coal Company ("SOCCO") filed with the Commission a Notice of Contest and
Motion for Partial Relief from Final Order, seeking to reopen certain
uncontested civil penalty assessments in which SOCCO had paid in full
penalties proposed by the Secretary of Labor. As the basis for its motion,
SOCCO cites Rule 60(b), Federal Rules of Civil Procedure ("Rule 60(b)"), and
principles of equity.
SOCCO contends that the penalties in dispute were invalidly augmented on
the basis of the interim "excessive history" program set forth in the
Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. SOCCO seeks
refunds of those portions of paid penalties attributable to augmentations
under the PPL.
This case is one of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that SOCCO's request does
not meet the requisite criteria under Rule 60(b) or principles of equity for
the grant of such relief. Accordingly, we deny SOCCO's motion to reopen and
we dismiss this proceeding.
In JWR, we held that a final order of the Commission may be reopened by
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC

1015

at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.
SOCCO has invoked Rule 60(b)(3), alleging misrepresentation by the
Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that
the requested relief would serve the ends of justice. Motions to reopen under
Rule 60(b) are committed to the sound discretion of the judicial tribunal in
which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons
set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this
case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule
60(b)(3) motion, misrepresentation must be shown by clear and convincing
evidence. 15 FMSHRC at 789. The Commission determined that, because the
Secretary's notifications of the proposed penalties stated that the penalties
were augmented by the excessive history program, the operator failed to
establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.
The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests. 15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril. Id. Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights. ld.

1016

Accordingly, for the reasons expressed in JWR, we conclude that SOCCO
failed to clearly and convincingly demonstrate justification for Rule 60(b)(3)
or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by SOCCO. See 15 FMSHRC at 79192.

Arlene Holen, Chairman

Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner
Distribution
David M. Cohen, Esq.
American Electric Power Service Corp.
P.O. Box 700
Lancaster, OH 43130
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
HcDermott, Will & Emery
1850 K Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Washington, D.C. 20037
1017

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

20006

June 29, 1993

WINDSOR COAL COMPANY

v.

Docket No. SPECIAL 92-13

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Windsor Coal
Company ("Windsor") filed with the Commission a Notice of Contest and Motion
for Partial Relief from Final Order, seeking to reopen certain uncontested
civil penalty assessments in which Windsor had paid in full penalties proposed
by the Secretary of Labor. As the basis for its motion, Windsor cites Rule
60(b), Federal Rules of Civil Procedure ("Rule 60(b)"), and principles of
equity.
Windsor contends that the penalties in dispute were invalidly augmented
on the basis of the interim "excessive history" program set forth in the
Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. Windsor seeks
refunds of those portions of paid penalties attributable to augmentations
under the PPL.
This case is one of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that Windsor's request
does not meet the requisite criteria under Rule 60(b) or principles of equity
for the grant of such relief. Accordingly, we deny Windsor's motion to reopen
and we dismiss this proceeding.
In JWR, we held that a final order of the Commission may be reopened by
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC

1018

at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.
Windsor has invoked Rule 60(b)(3), alleging misrepresentation by the
Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that
the requested relief would serve the ends of justice. Motions to reopen under
Rule 60(b) are committed to the sound discretion of the judicial tribunal in
which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons
set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this
case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule
60(b)(3) motion, misrepresentation must be shown by clear and convincing
evidence. 15 FMSHRC at 789. The Commission determined that, because the
Secretary's notifications of the proposed penalties stated that the penalties
were augmented by the excessive history program, the operator failed to
establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.
The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests. 15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril. Id. Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights. Id.

1019

Accordingly, for the reasons expressed in JWR, we conclude that Windsor
failed to clearly and convincingly demonstrate justification for Rule 60(b)(3)
or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by Windsor. See 15 FMSHRC at 79192.

Distribution

David M. Cohen, Esq.
American Electric Power Service Corp.
P.O. Box 700
Lancaster, OH 43130
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
McDermott, Will & Emery
1850 K Street~ N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N .W.
Washington, D.C. 20037
1020

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

20006

June 29, 1993

ENERGY WEST MINING COMPANY
Docket No. SPECIAL 92-14

v.

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Energy West
Mining Company ("Energy West") filed with the Commission a Notice of Contest
and Motion for Partial Relief from Final Order, seeking to reopen certain
uncontested civil penalty assessments in which Energy West had paid in full
penalties proposed by the Secretary of Labor. As the basis for its motion,
Energy West cites Rule 60(b), Federal Rules of Civil Procedure ("Rule 60(b)"),
and principles of equity.
Energy West contends that the penalties in dispute were invalidly
augmented on the basis of the interim "excessive history" program set forth in
the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. Energy West
seeks refunds of those portions of paid penalties attributable to
augmentations under the PPL.
This case is one of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JW"R"), we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that Energy West's request
does not meet the requisite criteria under Rule 60(b) or principles of equity
for the grant of such relief. Accordingly, we deny Energy West's motion to
reopen and we dismiss this proceeding.

1021

In JWR, we held that a final order of the Commission may be reopened by
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC
at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a), which provides, in part, that a~_uncontested proposed penalty "shall
be deemed a final order of the Commission;and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.
Energy West has invoked Rule 60(b)(3), alleging misrepresentation by the
Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that
the requested relief would serve the ends of justice. Motions to reopen under
Rule 60(b) are committed to the sound discretion of the judicial tribunal in
which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons
set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this
case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule
60(b)(3) motion, misrepresentation must be shown by clear and convincing
evidence. 15 FMSHRC at 789. The Commission determined that, because the
Secretary's notifications of the proposed penalties stated that the penalties
were augmented by the excessive history program, the operator failed to
establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.
The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests. 15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril. Id. Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights. Id.

1022

Accordingly, for the reasons expressed in JWR, we conclude that Enery
West failed to clearly and convincingly demonstrate justification for Rule
60(b)(3) or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by Energy West. See 15 FMSHRC at
791-92.

Arlene Holen, Chairman

6
Distribution
Timothy :t-1. Biddle, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
McDermott, Will & Emery
1850 K Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Washington, D.C. 20037
1023

V. Backley,

Commissi:~

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

June 29, 1993

CENTRALIA MINING COMPANY
v.

Docket No. SPECLAL 92-15

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Centralia Mining
Company ("Centralia") filed with the Commission a Notice of Contest and Motion
for Partial Relief from Final Order, seeking to reopen certain uncontested
civil penalty assessments in which Centralia had paid in full penalties
proposed by the Secretary of Labor. As the basis for its motion, Centralia
cites Rule 60(b), Federal Rules of Civil Procedure ("Rule 60(b)"), and
principles of equity.
Centralia contends that the penalties in dispute were invalidly
augmented on the basis of the interim "excessive history" program set forth in
the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. Centralia
seeks refunds of those portions of paid penalties attributable to
augmentations under the PPL.
This case is one of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), ·we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that Centralia's request
does not meet the requisite criteria under Rule 60(b) or principles of equity
for the grant of such relief. Accordingly, we deny Centralia's motion to
reopen and we dismiss this proceeding.
In JWR, we held that a final order of the Commission may be reopened by
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC

1024

at 786-89. As explained in JWR, section l05(a) of the Mine Act, 30 U.S.C.
§ 815(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.
Centralia has invoked Rule 60(b)(3), alleging misrepresentation by the
Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that
the requested relief would serve the ends of justice. Motions to reopen under
Rule 60(b) are committed to the sound discretion of the judicial tribunal in
which relief is sought.
15 FMSHRC at 789(citations omitted).
For the reasons
set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this
case.
15 FMSHRC at 789-91.
In JWR, the Commission explained that, in a Rule
60(b)(3) motion, misrepresentation must be shown by clear and convincing
evidence. 15 FMSHRC at 789. The Commission determined that, because the
Secretary's notifications of the proposed penalties stated that the penalties
were augmented by the excessive history program, the operator failed to
establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.
The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests.
15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril.
Id.
Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights.
Id.

1025

Accordingly, for the reasons expressed in JWR, we conclude that
Centralia failed to clearly and convincingly demonstrate justification for
Rule 60(b)(3) or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by Centralia. See 15 FMSHRC at
791-92.

Arlene Holen, Chairman

~-<-~-z.c:&L /
Richard V. Backley, Commissioner

sz~. ~i#tn;;/e_
~L~~

L. Clair Nelson, Commissioner
Distribution

Timothy H. Biddle, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
McDermott, Will & Emery
1850 K Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Washington, D.C. 20037
1026

v

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

20006

June 29, 1993

AMAX COAL COMPANY
Docket No. SPECIAL 92-16

v.

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Amax Coal
Company ("Amax") filed with the Commission a Notice of Contest and Motion for
Partial Relief from Final Order, seeking to reopen certain uncontested civil
penalty assessments in which Amax had paid in full penalties proposed by the
Secretary of Labor. As the basis for its motion, Amax cites Rule 60(b),
Federal Rules of Civil Procedure ("Rule 60(b)"), and principles of equity.
Amax contends that the penalties in dispute were invalidly augmented on
the basis of the interim "excessive history" program set forth in the
Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. Amax seeks
refunds of those portions of paid penalties attributable to augmentations
under the PPL.
This case is one of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that Amax's request does
not meet the requisite criteria under Rule 60(b) or principles of equity for
the grant of such relief. Accordingly, we deny Amax's motion to reopen and we
dismiss this proceeding.
In JWR, we held that a final order of the Commission may be reopened by
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC
at 786-89. As explained in JWR, section lOS(a) of the Mine Act, 30 U.S.C.

1027

§ 815(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.

Arnax has invoked Rule 60(b)(3), alleging misrepresentation by the
Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that
the requested relief would serve the ends of justice. Motions to reopen under
Rule 60(b) are committed to the sound discretion of the judicial tribunal in
which relief is sought. 15 FMSHRC at 789(citations omitted).
For the reasons
set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this
case.
15 FMSHRC at 789-91.
In JWR, the Commission explained that, in a Rule
60(b)(3) motion, misrepresentation must be shown by clear and convincing
evidence. 15 FMSHRC at 789. The Commission determined that, because the
Secretary's notifications of the proposed penalties stated that the penalties
were augmented by the excessive history program, the operator failed to
establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.
The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests.
15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril.
Id. Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights.
Id.

1028

Accordingly, for the reasons expressed in JWR, we conclude that Amax
failed to clearly and convincingly demonstrate justification for Rule 60(b)(3)
or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by Amax. See 15 FMSHRC at 791-92.

Arlene Holen, Chairman

~£--Zfd/~~h / .

Richard V. Backley, Commissioner

p.

~~..tf:.rni~
';f,&_w~?W
L. Clair Nelson, Commissioner

Distribution

Larry F. Pile, Esq.
Amax Coal Company
One Riverfront Place
10 N.W. First Street
Evansville, IN 47708
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
McDermott, Will & Emery
1850 K Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.H.
Washington, D.C. 20037

1029

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

20006

June 29, 1993

SUNNYSIDE COAL COMPANY
Docket No. SPECIAL 93-01

v.

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Sunnyside Coal
Company ("Sunnyside") filed with the Commission a Notice of Contest and Motion
for Partial Relief from Final Order, seeking to reopen certain uncontested
civil penalty assessments in which Sunnyside had paid in full penalties
proposed by the Secretary of Labor. As the basis for its motion, Sunnyside
cites Rule 60(b), Federal Rules of Civil Procedure ("Rule 60(b)"), and
principles of equity.
Sunnyside contends that the penalties in dispute were invalidly
augmented on the basis of the interim "excessive history" program set forth in
the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. Sunnyside
seeks refunds of those portions of paid penalties attributable to
augmentations under the PPL.
This case is one of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that Sunnyside's request
does not meet the requisite criteria under Rule 60(b) or principles of equity
for the grant of such relief. Accordingly, we deny Sunnyside's motion to
reopen and we dismiss this proceeding.
In JWR, we held that a final order of the Commission may be reopened by
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC

1030

at 786-89. As explained in JWR, section l05(a) of the Mine Act, 30 U.S.C.
§ 815(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.
Sunnyside has invoked Rule 60(b)(3), alleging misrepresentation by the
Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that
the requested relief would serve the ends of justice. Motions to reopen under
Rule 60(b) are committed to the sound discretion of the judicial tribunal in
which relief is sought. 15 FMSHRC at 789(citations omitted).
For the reasons
set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this
case.
15 FMSHRC at 789-91.
In JWR, the Commission explained that, in a Rule
60(b)(3) motion, misrepresentation must be shown by clear and convincing
evidence.
15 FMSHRC at 789. The Commission determined that, because the
Secretary's notifications of the proposed penalties stated that the penalties
were augmented by the excessive history program, the operator failed to
establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.
The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests.
15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril.
Id. Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights.
Id.

1031

Accordingly, for the reasons expressed in JWR, we conclude that
Sunnyside failed to clearly and convincingly demonstrate justification for
Rule 60(b)(3) or (b)(6) relief or for general equitable relief_
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by Sunnyside.
See 15 FMSHRC at
791-92.

Arlene Holen, Chairman

&/(_.-<.---L-~v&-£4>-;?~kL~
Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner

Distribution

Timothy M. Biddle, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
401~ Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
HcDermott, Will & Emery
1850 K Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.H.
Washington, D.C. 200,37
1032

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

20006

June 29, 1993

WESTMORELAND COAL COMPANY
v.

Docket No. SPECIAL 93-02

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Westmoreland
Coal Company ("Westmoreland") filed with the Commission a Notice of Contest
and Motion for Partial Relief from Final Order, seeking to reopen certain
uncontested civil penalty assessments in which Westmoreland had paid in full
penalties proposed by the Secretary of Labor. As the basis for its motion,
Westmoreland cites Rule 60(b), Federal Rules of Civil Procedure ("Rule
60(b)"), and principles of equity.
Westmoreland contends that the penalties in dispute were invalidly
augmented on the basis of the interim "excessive history" program set forth in
the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. Westmoreland
seeks refunds of those portions of paid penalties attributable to
augmentations under the PPL.
This case is one of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that Westmoreland's
request does not meet the requisite criteria under Rule 60(b) or principles of
equity for the grant of such relief. Accordingly, we deny Westmoreland's
motion to reopen and we dismiss this proceeding.
In JWR, we held that a final order of the Commission may be reopened by
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC
1033

at 786-89. As explained in JWR, section l05(a) of the Mine Act, 30 U.S.C.
§ 8l5(a), which provides, in part, that an uncontested proposed penalty "shall
be deemed a final order of the Commission and not subject to review by any
court or agency," does not bar the Commission from granting Rule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.
Westmoreland has invoked Rule 60(b)(3), alleging misrepresentation by
the Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting
that the requested relief would serve the ends of justice. Motions to reopen
under Rule 60(b) are committed to the sound discretion of the judicial
tribunal in which relief is sought. 15 FMSHRC at 789(citations omitted).
For
the reasons set forth in JWR, we hold that Rule 60(b) relief is inappropriate
in this case.
15 FMSHRC at 789-91.
In JWR, the Commission explained that, in
a Rule 60(b)(3) motion, misrepresentation must be shown by clear and
convincing evidence.
15 FMSHRC at 789. The Commission determined that,
because the Secretary's notifications of the proposed penalties stated that
the penalties were augmented by the excessive history program, the operator
failed to establish misrepresentation by the Secretary. 15 FMSHRC at 789-90.

The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests.
15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril.
Id. Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights.
Id.

1034

Accordingly, for the reasons expressed in JWR, we conclude that
Westmoreland failed to clearly and convincingly demonstrate justification for
Rule 60(b)(3) or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by Westmoreland.
See 15 FMSHRC at

791-92.

Arlene Holen, Chairman

Richard V. Backley, Commissioner ~

~J.£~
oyce A. Doyle, Comm1ssion r

L. Clair Nelson, Commissioner

Distribution

Suzan E. Moore, Esq.
Westmoreland Coal Company
P.O. Drawer A & B
Big Stone Gap, VA 24219
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
HcDermott, Will & Emery
1850 K Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.vJ.
Washington, D.C. 20037

1035

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

20006

June 29, 1993

LTV STEEL MINING COMPANY
v.

Docket No. SPECIAL 93-03

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

Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (l988)("Mine Act" or "Act"), LTV Steel Mining
Company ("LTV") filed with the Commission a Notice of Contest and Motion for
Partial Relief from Final Order, seeking to reopen certain uncontested civil
penalty assessments in which LTV had paid in full penalties proposed by the
Secretary of Labor. As the basis for its motion, LTV cites Rule 60(b),
Federal Rules of Civil Procedure ("Rule 60(b)"), and principles of equity.
LTV contends that the penalties in dispute were invalidly augmented on
the basis of the interim "excessive history" program set forth in the
Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. LTV seeks
refunds of those portions of paid penalties attributable to augmentations
under the PPL.
This case is one of 19 special proceedings in which notices of contest
and motions for relief from final orders were filed by mine operators. All of
these cases raise identical issues. For the reasons fully set forth in Jim
Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), ·we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that LTV's request does
not meet the requisite criteria under Rule 60(b) or principles of equity for
the grant of such relief. Accordingly, we deny LTV's motion to reopen and we
dismiss this proceeding.
In JWR, we held that a final order of the Commission may be reopened by
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC
at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C.

1036

§ 815(a), which provides, in part, that an uncontested propose penalLy "shall
be deemed a final order of the Commission and not subject to .·!View by 'lny
court or agency," does not bar the Commission from granting kule 60(b)-type
relief in appropriate circumstances. 15 FMSHRC at 787-88.

LTV has invoked Rule 60(b)(3), alleging misrepresentation by the
Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that
the requested relief would serve the ends of justice. Motions to reopen under
Rule 60(b) are committed to the sound discretion of the judicial tribunal in
which relief is sought.
15 FMSHRC at 789(citations omitted). For the reasons
set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this
case.
15 FMSHRC at 789-91.
In JWR, the Commission explained that, in a Rule
60(b)(3) motion, misrepresentation must be shown by clear and convincing
evidence. 15 FMSHRC at 789. The Commission determined that, because the
Secretary's notifications of the proposed penalties stated that the penalties
were augmented by the excessive history program, the operator failed to
establish misrepresentation by the Secretary.
15 FMSHRC at 789-90.
The Commission also concluded that, although Rule 60(b)(6) provides for
relief for "any other reason justifying relief," it cannot be used to relieve
a party from the duty to take legal action to protect its interests.
15 FMSHRC
at 790. We held that, under the Mine Act, a mine operator is required to make
deliberate litigation choices and that failure to contest proposed penalties
is at the operator's peril.
Id. Finally, the Commission concluded that the
operator was not entitled to equitable relief because the Commission is not a
court of general equity and the operator was less than vigilant in protecting
its rights.
Id.

1037

Accordingly, for the reasons expressed in JWR, we conclude that LTV
failed to clearly and convincingly demonstrate justification for Rule 60(b)(3)
or (b)(6) relief or for general equitable relief.
As in JWR, we urge the Secretary to evaluate further the legality and
feasibility of providing the refunds sought by LTV. See 15 FMSHRC at 791-92.

L. Clair Nelson, Commissioner

Distribution
Senior Vice President, Operations
LTV Steel Mining Company
1100 Superior Avenue
Cleveland, OH 44114
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
McDermott, Hill & Emery
1850 K Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Washington, D.C. 20037

1038

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND H~TH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

MAY 7 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 92-119
A.C. No. 29-00845-03541
York canyon Surface Mine

v.
Docket No. CENT 92-142
A.C. No. 29-00244-03570
PITTSBURG AND MIDWAY COAL
MINING COMPANY-YORK CNYN
COMPLEX,
Respondent

Docket No. CENT 92-143
A.C. No. 29-00244-03572
Docket No. CENT 92-144
A.C. No. 29-00244-03573
Cimarron Mine

DECISION

Appearances:

William E. Everheart, Esq., Office of the Solicitor, u.s. Department of Labor, Dallas, Texas,
for Petitioner;
John W. Paul, Esq., PITTSBURG AND MIDWAY COAL MINING COMPANY, Englewood, Colorado,
for Respondent.

Before:

Judge Lasher

In these four proceedings the Secretary of Labor (MSHA)
seeks assessment of penalties for a total of 12 alleged violations (one each in Dockets CENT 92-119, 143, and 144 and nine in
CENT 92-142) pursuant to Section 110(a) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 820(a) (1977).
After the commencement of hearing in Albuquerque, New Mexico, on January 27, 1993, the parties concluded and announced the
settlement of 6 of the 12 citations involved, which accord as
reflected below was approved from the bench and is here affirmed.
The remaining six Citations (five in Docket No. CENT 92-142 and
that involved in CENT 92-143) were litigated. As a result of the
settlement at hearing, the citations involved in Dockets numbered
CENT 92-119 and 92-144 (one each) were fully disposed of. After

1039

the hearing, the parties submitted a second (written) settlement
disposing of four of the six remaining Citations, Nos. 3244794,
3244795, 3244894, in Docket CENT 92-142, and Citation No. 3243349
in Docket CENT 92-143.
Docket No. CENT 92-119
This docket contains one Citation, No. 3242933, which was
settled at the hearing. Pursuant to their agreement, the parties
concur that the citation should be modified to delete the "Significant and Substantial" designation contained in paragraph 10 c
thereof and that a penalty of $50 is an appropriate penalty for
the violation in view of the modification. such penalty is here
ASSESSED and the settlement reached, having been approved from
the bench, is here AFFIRMED.
Docket No. CENT 92-143
This docket contains one Citation, No. 3243349, which was
litigated (T. 132-147). However, subsequent to the hearing, as
part of their written settlement agreement, Respondent withdrew
its contest to Petitioner's initial penalty assessment and the
parties agree that such initial proposed assessment of $119 is
appropriate. Accordingly, such penalty is here ASSESSED.
Docket No. CENT 92-144
This docket contains one Citation, No. 3243253, which Petitioner moved to vacate at the hearing on the basis of insufficient evidence. That motion was approved, this citation was
vacated on the record from the bench (T. 5-6), and such action is
here AFFIRMED.
Docket No. CENT 92-142
This docket contains nine Citations, four of which were settled before the hearing, three were settled after hearing, and
two of which were litigated and will be decided on the merits.
A.

settlement Before Hearing

The four Citations which were settled before hearing (Nos.
3244786, 3244797, 3244883, and 3244955) were done so on identical
terms. Thus, Respondent conceded the occurrence of the violations charged, the "Significant and Substantial" designation on
each of the four was deleted, and the parties agreed that a penalty of $50 for each was appropriate (T. 6-7). The settlement

1040

thereof was approved from the bench (T. 7-8) and that decision is
here AFFIRMED.

B.

Written settlement After the Hearing
1.

Citation No. 3244794

Pursuant to agreement, the "Significant and Substantial" designation of this violation will be deleted and Respondent will pay a single penalty assessment of $50.00.

2.

citation No. 3244795

The "Significant and Substantial" designation of this
citation will be deleted and Respondent will pay a single penalty
assessment of $50.00.

3.

citation No. 3244894

Respondent agrees to pay in full MSHA's original
penalty assessment of $119.00.

c.

Decision on the Two Litigated citations

The parties have stipulated as to jurisdiction, penalty assessment factors 1 , and that the violations charged in these two
Citations did occur (T. 9-18). The issue is-whether these two
violations were properly classified as "Significant and Substantial." Both parties submitted excellent briefs on this question.

1.

citation No. 3244895 CT. 97-118)

This Citation, issued on January 23, 1992, by MSHA
Inspector Anthony Duran during an inspection of this underground
coal mine charges:

Based thereon, I find that Respondent is a large coal mine operator
(T. 11) with a history in the general neighborhood--as obtained by documentary
evidence and stipulation (T. 15-17)--of 35-45 previous violations in the pertinent two-year period preceding the issuance of the Citations. It is also found
that assessment of reasonable penalties will not affect Respondent's ability to
continue in business and that the violations were promptly abated in good faith
by Respondent after notification thereof. The two violations both resulted from
negligence (T. 106, 125). The mandatory assessment factor of gravity will be
discussed subsequently.

1041

An energized [sic] auxiliary fan was so
located in the no. 3 entry at the 2nd
crosscut outby the last open crosscut that
was causing recirculation of the air
through a 3-inch vent pipe at the stopping
3rd crosscut outby the last open crosscut
into the no. 2 intake air entry and to the
working faces of MMU 001-0 5 left section.
This was detected by the use of a smoke
tube.

The standard cited, 30 C.F.R. § 75.302-4 (Auxiliary fans and
tubing), provides in pertinent part:
In the event that auxiliary fans and
tubing are used in lieu of or in conjunction with a line brattice system to provide ventilation of the working face:
(a) The fan shall be of a permissible
type, maintained in permissible condition,
so located and operated to avoid any recirculation of air at any time, and inspected frequently by a certified person
when in use. 2

The purpose of the energized auxiliary fan in question was
to exhaust air-consisting of oxygen, coal dust, and "possibly"
methane--from the working face to the return. However, instead
of venting into the return, the power center (discussed in the 2d
Citation litigated) had a 3-inch vent pipe (tube) which was
blowing air through to the intake and back into the working
section (T. 99, 100, 101). 3
Inspector Duran, using a smoke tube and standing in the intake entry, noted that the air was being pushed back toward him
through the 3-inch pipe (T. 101-102). Although he did not take
an air sampling to positively establish that coal dust (or methane) was coming through the pipe, his examination of the involved
area did not disclose any other reason for the presence of a
"mist" of coal dust in the air (T. 103); and he testified that it
was blowing back into the section (T. 100, 103-104, 117).
He stated that "you could see coal dust in the air and that
you know there's something wrong in there. The coal dust is just
suspended in the air or into the working section; it don't go
2

The essence of the standard, as focused by the Citation, is on the
location of the fan.
3
Respondent concedes that some air from the return entry was being recirculated back into the intake entry by leakage through the 3-inch diameter
pipe.
(See Respondent's Post-hearing Brief, p. 4).

1042

out."
(T. 103). It should be noted that this assessment of
something being wrong was confirmed by Respondent's safety
manager, Michael Kotrich (T. 129) who was not present during the
inspection (T. 115).
The Inspector determined that the source of this cloud of
coal dust was a three-inch vent tube in the stopping in the third
crosscut which was venting "return" air into the "intake" entry
{T. 103, 108, 110, 112; see Ex. P-3). Before making this determination he checked the stoppings to see if any were missing or
leaking (T. 103). There were no other sources for this float
coal dust as coal dust generated at the working face was being
ventilated through exhaust tubing via the auxiliary fan into the
"return" (T. 109-110, 116-117) and there were no leaks in this
exhaust tubing {T. 116).
Respondent's only witness as to this issue was its safety
manager Michael J. Kotrich who was not present during the inspection (T. 115). He testified that in his estimation "not a
great deal" of dilution of the air volume in the intake could be
caused by a three-inch leak and offered other possibilities for
the occurrence of the mist observed by the Inspector. This testimony does not rebut the fact that the cloud of coal dust was in
the intake near the working face. Nor does it rebut Inspector
Duran's testimony that he investigated the source of dust, eliminated other possibilities and determined it had to be the vent
tube.
Respondent's cross-examination of Inspector Duran revealed
that he did not observe any dust passing through the vent tube
{T. 107). However, Inspector Duran testified that you would not
be able to see respiratory coal dust venting through a three-inch
pipe {T. 117) although you could see it when it became suspended
as a mist in the air {T. 107-108, 112, 117).
Inspector Duran testified that the two hazards associated
with "return" air being recirculated in the "intake" air are
methane and respirable coal dust {T. 101). He testified that the
float coal dust being recirculated posed both a respiratory hazard as well as an ignition and/or explosion hazard and that nine
miners at the working face were exposed to these hazards {T. 101102, 105). While he did not detect any methane in the recirculated "return" air when he tested for it {T. 107, 109) he testified that methane is liberated when coal is mined (T. 99-100,
126-127) and that methane poses a fire andfor explosion hazard
{T. 123).
Respondent did not contest the underlying violations. Only
the "Significant and Substantial" {S&S) designation is in dispute. In Mathies Coal Co., 6 FMSHRC 1, 3-4 {1984), the Commission set forth the S&S prerequisites:

1043

In order to establish that a violation of a mandatory
standard is significant and substantial under [Cement
Division, National Gypsum Co., 3 FMSHRC 822 (1981)],
the Secretary must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety-contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.

The question is whether there is a "reasonable likelihood"
the hazards contributed to by this violation will result in an
injury of a reasonably serious nature.
"Such a measurement
cannot ignore the relevant dynamics of the mining environment or
processes" and must be evaluated "in terms of continued normal
mining operations." u.s. steel Mining Co., Inc., 6 FMSHRC 1573,
1574 (July 1984). The Commission has emphasized that "it is the
contribution of a violation to the cause and effect of a hazard
that must be significant and substantial." u.s. steel Mining
Co., 6 FMSHRC 1834, 1836 (August 1984). In other words, was
"there a reasonable likelihood that the hazard contributed to
would come to fruition and cause an injury?" Mountain Coal
Company, 9 FMSHRC 1571, 1581 (Sept. 1992}.
In discussing analytical processes for determining the
"reasonable likelihood" question, in Mountain coal Company,
supra, at pages 1582-1583 the "substantial possibility" test was
noted.
It is defined in Coal Mac. Incorporated, 9 FMSHRC 1600
(ALJ September 1991} as follows:
Analysis of the statutory language and the Commission's decisions indicates that the test of an S&S
violation is a practical and realistic question
whether, assuming continue mining operations, the violation presents a substantial possibility of resulting
in injury or disease, not a requirement that the Secretary of Labor prove that it is more probable than
not that injury or disease will result •••• The statute, which does not use the phrase "reasonably likely
to occur" or "reasonable likelihood" in defining an
S&S violation, states that an S&S violation exists if
"the violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety and health hazard"
(S 104(d)(1) of the Act; emphasis added). Also, the
statute defines an "imminent danger" as any condition
or practice ••• which could reasonably be expected to
cause death or serious physical harm before [it) can
be abated," and expressly places S&S violations below
imminent dangers. It follows that the Commission's
use of the phrase "reasonably likely to occur" or
reasonable likelihood" does not preclude an S&S finding where a substantial possibility of injury or disease is shown by the evidence, even though the proof
may not show that injury or disease was more probable
than not.

1044

In Mountain Coal it was indicated that a "remote possibility
of the violation's resulting in injury (or disease) is not sufficient." Supra, 1583. However, "to meet the "S&S" requirements,
MSHA would not seem to be required to show a "strong" possibility, a probability, or a certainty of a resultant injury.,"
Supra, 1583.
Convincing evidence shows a "substantial possibility" of injury or disease as a result of this violation of this ventilation
standard for the following reasons:
1.
The area in the vicinity of the working face where the
violation occurred was an active mining area and coal mining was
in progress. Nine workers were working in this area (T. 104-105,
112, 115, 126).
2.
As a result of the violation, combustible and respiratory coal dust in the "return" was being recirculated into the
"intake" resulting in a cloud of coal dust suspended in the
intake near the working area (T. 100-104, 108, 110, 112, 117).
3.
Numerous ignition sources were present in the working
area where the recirculated "return" air was suspended, i.e., the
power center, electric cable, power center connection points, and
the electrically powered continuous miner machine (T. 103, 104,
116, 123-124).
4.
Float coal dust accumulations in active workings pose
a serious danger of explosion or fire.
5.
The nine miners working in this area were exposed to
the hazard of fire and/or explosion caused by a possible ignition
or the recirculated float coal dust. Injuries would be disabling
or fatal (T. 102, 105).
6.
The nine miners working in this area were exposed to
the hazard of breathing respirable coal dust. Pneumoconiosis
(Black Lung Disease) is a chronic dust disease of the lung arising out of dust exposure in coal mine employment.
(See 20 C.F.R.
Part 718.201). It is recognized as "one of the most crippling
occupational health hazards facing miners."
7.
Although the recirculated air tested negative for methane at the time of the inspection, methane is liberated when coal
is mined and methane is exhausted into the "return" (T. 126-127).
In the perspective of continued normal mining operations, methane
release is another possibility which added to coal dust suspension, and considered in conjunction with the potential ignition
sources present, increases the likelihood of injury from explosion or fire. See Youghiogheny and Ohio Coal Company, 9 FMSHRC,
673 (April 30, 1987).

1045

It is concluded that there existed a reasonable likelihood
that the hazard contributed to by the violation would result in
reasonably serious injury or illness and that, the other prerequisites of the Mathies formula having been conceded or clearly
shown, this violation is significant and substantial.
As such, it necessarily follows that it is a serious violation. Having considered this factor and the other penalty assessment criteria mandated by the Mine Act set forth above, a
penalty of $100 is found appropriate and is here assessed.
2.

Citation No. 3244896 (T. 118-132)

This citation also issued on January 23, 1992, by Inspector
Duran and based on the same facts as Citation No. 3244895,
charges:
The energized non-permissible power center located in
the 3rd crosscut outby the last open crosscut of the
no. 2 intake air entry was not placed in intake air in
that a 3-inch pipe vent pipe at the stopping was venting return air over the top of the power center caused
by recirculation of the air from an auxiliary fan located in the no. 3 return entry of MMU 001-0 5 left
section. This was detected by the use of a smoke
tube. A methane test was taken with a permissible
methane detector chk .0% at the vent pipe.

The safety standard infracted. C.F.R. S 75.507 (Power
connection points), provides insofar as pertinent:
Except where permissible power connection units are
used, all power-connection points outby the last open
crosscut shall be in intake air. 4

The parties stipulated on the record (T. 119) that the
evidence introduced with respect to Citation No. 3244395 can be
considered part of the record in connection with citation No.
3244896. My findings of fact in connection with citation No.
3244395 are incorporated with respect to this Citation insofar as
applicable (T. 121) and except with respect to the hazard involved with this Citation which the parties agree differs from
that involved in Citation No. 3244895 (T. 119).

The thrust of the violation is that the non-permissible power center
was not located in intake air. This, in conjunction with the hazard created, are
important background for determining the "Significant and Substantial" issue.

1046

It is- further found that Citation No. 3244896 was issued a
few minutes after Citation No. 3244895 was issued. The reliable,
substantive evidence of record established that:
1.
Return air was being recirculated through a vent tube
over the nonpermissible power center located in the third crosscut near the working face in an intake air entry (Ex. P-3;
T. 121).
2.
There was no evidence of a malfunction in the power
center, cables, or machinery (T. 126, 127).
a.
The 7,200-volt power center supplies power to
machinery at the working face (T. 121-122).
b.
At least seven cables run from it to the working
face (T. 121-122).
3.
The potential ignition sources present were the power
center, its cables, and nonpermissible connection points (T. 122,
123).
4.
While there was coal dust suspended in the air, as previously determined, there was no evidence of methane present
(T. 124, 125, 126). The Inspector said the absence of methane
was "possibly" because the continuous miner was not operating
(T. 126). 5
5.
The Inspector described the hazard and resultant injury
as follows:
"Possible ignition source, respirable dust, smoke
from fire in the event the power center caught on fire ...

* * * * *
Lost days work, restricted duty.

(T. 124)

6.
Equipment in the power center was examined "each shift
when it's energized and by a qualified electrician weekly" (T.
128).
CONCLUSION

The hazard created by this violation is confined to that
which is created by the location of the power center.
In terms
of the Mathies formula, the violation has been conceded, and
there is no question that this violation would result in an
injury. Although the Inspector at one point stated his opinion,
5

Respondent's Safety Manager indicated he has never detected methane
at the working faces in excess of "applicable" standards (T. 129).

1047

that there was a "probability" (T. 127) that something could
happen if there were a malfunction, the totality of his testimony
reveals that (a) there was no malfunction and (b) there existed
only a remote possibility of a malfunction occurring and the
hazard coming to fruition. Thus, he testified, "There could be a
failure at the power center, there could (be a) failure at the
cable, at the connecting points."
(Emphasis added). (T. 123).
Speculation of an event that "could" occur falls short of
showing that the illness or injury is "reasonably likely" to
happen. See Union Oil co. of California, 11 FMSHRC 289 (Mar. 31,
1989).
The Inspector not only did not identify any malfunction of
the equipment specified in the standard, but that such malfunction might occur in the future was speculative. The evaluation
of reasonable likelihood of risk must be made in terms of continued normal mining operations, and based on the particular
facts surrounding the violation.
It is concluded that the Secretary did not carry the burden
of proof in establishing the "reasonable likelihood that the
hazard contributed to will result in an injury." This violation
is not found to be significant and substantial. It is found to
be moderately serious. Accordingly, Citation No. 3244896 will be
modified to delete the "S&S" designation, and a penalty of $50 is
ASSESSED.
ORDER
1.
VACATED.

Citation No. 3243253 in Docket No. CENT 92-144 is

2.
The following Citations in the dockets indicated are
MODIFIED to delete the "Significant and Substantial" designations
thereon:

Citation Ho.

Docket HUmber

3242933
3244786
3244797
3244883
3244955
3244794
3244795
. 3244896

CENT 92-119
CENT 92-142
CENT 92-142
CENT 92-142
CENT 92-142
CENT 92-142
CENT 92-142
CENT 92-142

1048

3.

The following penalties are ASSESSED.
Citation No.

Docket Number

Penalty

3242933
3243349

CENT 92-119
CENT 92-143

$ 50.00
$119.00

3244786
3244797
3244883
3244955

CENT 92-142
CENT 92-142
CENT 92-142
CENT 92-142

$
$
$
$

3244794
3244795
3244894

CENT 92-142
CENT 92-142
CENT 92-142

$ 50.00
$ 50.00
$119.00

3244895
3244896

CENT 92-142
CENT 92-142

$100.00
$ 50.00

50.00
50.00
50.00
50.00

4.
Respondent, if it has not previously done so, SHALL PAY
the Secretary of Labor within 30 days from the date hereof the
total sum of $738.00.

~ ~~~,c_fi '-

Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
William E. Everheart, Esq., Office of the Solicitor, u.s.
Department of Labor, 525 Griffin Street, Suite 501, Dallas, TX
75202
(Certified Mail}
John W. Paul, Esq., PITTSBURG AND MIDWAY COAL MINING COMPANY,
6400 South Fiddler's Green Circle, Englewood, CO 80111-4991
(Certified Mail}
Nickie D. Ortega, UMWA, 1401 Arnold street, Raton, NM 87740
(Certified Mail}
ek

1049

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 h

S1HUl

WASHINGTON.

t'w. CiH
0 C

flOOf·'

700(){)

JUN 2 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 92-399-M-A
A. C. No. 21-00820-05700-R

v.

Minntac Plant

USX CORPORATION, MINNESOTA
ORE OPERATIONS,
Respondent
ORDER PARTIALLY VACATING ORDER OF DISMISSAL
ORDER AMENDING DECISION APPROVING PENALTY
ORDER TO REFUND
Before:

Judge Merlin

On November 19, 1992, the operator filed a motion to withdraw its contest of those violations contained in Docket No.
LAKE 92-399-M which were designated non-significant and substantial. On January 5, 1993, an order was issued removing the nonsignificant and substantial violations from LAKE 92-399-M and
placing them in a newly created docket, LAKE 92-399-M-A. On
the same day, a decision approving penalty was issued in
LAKE 92-399-M-A approving the proposed penalties, dismissing the
matter and directing the operator to pay the proposed penalties.
On April 28, 1993, Administrative Law Judge Feldman issued a
decision approving settlements for sixteen cases involving this
operator including Docket No. LAKE 92-399-M.
On May 14, 1993, the operator filed a motion to reopen this
proceeding. The operator advised that in its motion to withdraw
it had requested that its contest be ·withdrawn for all the nonsignificant and substantial violations in LAKE 92-399-M except
Citation No. 3892662. The operator also stated that it paid the
$5,767 assessment. in LAKE 92-399-M-A which included the $800
penalty for Citation No. 3892662.
In addition, Citation No. 3892662 was included in the April
28 settlement decision issued by Judge Feldman. The proposed
penalty for this violation was reduced from $800 to $311 which
was included in the total assessments the operator was ordered to
pay by Judge Feldman. The operator states that it has paid this
assessment.
A review of the file shows that the operator did request
that this citation not be dismissed. However, due to a clerical
1050

error the citation was included in the January 5 order of removal
and replacement as well as in the decision approving penalty and
order of dismissal.
I conclude partial relief from the decision
approving penalty and order of dismissal is warranted.
29 C.F.R. § 2700.65(c). Therefore, the January 5 decision
approving penalty should be amended to reflect the amount due
without Citation No. 3892662 and the order of dismissal should be
vacated with respect to this violation. The approval of the
settlement by Judge Feldman for Citation No. 3892662 will stand
because that violation would have been properly before him when
his decision was issued were it not for the clerical error, noted
above.
In light of the foregoing, I find that in this case the
operator overpaid MSHA $800 for Citation No. 3892662 and that
amount should be refunded to the operator.
Accordingly, it is ORDERED that the January 5 order of
dismissal issued with respect to Citation No. 3892662 in
LAKE 92-399-M-A be VACATED.
It is further ORDERED that the January 5 decision approving
penalty issued for LAKE 92-399-M-A be amended to reflect the
correct penalty amount of $4,967.
It is further ORDERED that the operator's overpayment of
$800 for LAKE 92-399-M-A be REFUNDED to the operator.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U. s. Department of Labor, 230 s. Dearborn Street, 8th Floor, Chicago, IL
60604
(Certified Mail)
Billy M. Tennant, Esq., USS a Div. of USX Corp., 600 Grant
street, Room 1580, Pittsburgh, PA 15219-4776 (Certified Mail)
Mr. James Ranta, United Steel Workers of America, P.
Chisholm, MN 55719 (Certified Mail)
jgl

1051

o. Box 84,

:rBDBDL KXBB SUB'l'Y AIJD BBALTII ltBVXBif COJDU:SS:IOB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 2 1993
JERRY IKE HARLESS TOWING
INCORPORATED, HARLESS, INC.,:
Contestants

v.

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

CONTEST PROCEEDING
Docket No. CENT 92-276-RM
Citation No. 3896905; 5/19/92
Harless Inc.
Mine ID 16-01238

DECISION
Appearances:

Jerry Ike Harless, Lake Charles, Louisiana,
Michael E. Roach, Esq., on the brief, for
the Contestants;
Robert Goldberg, Esq., u.s. Department of
Labor, Office of the Solicitor, Dallas,
Texas, for the Respondent.

Before:

Judge Feldman

This proceeding concerns a Notice of Contest filed
pursuant to Section 105 of the Federal Mine Safety and Health
Act of 1977 (the Act), 30 u.s.c. § 815. A hearing was conducted on January 29, 1993, in Lake Charles, Louisiana, at
which Jerry Ike Harless (Harless), the Chief Executive Officer
(CEO) of Jerry Ike Harless Towing, Inc. (Harless Towing), and
Harless, Inc., represented the contestant. 1 Harless stipulated
1

Harless Towing, which is involved with the dredging of
sand, and Harless, Inc., which sells sand, gravel and limestone,
will be referred to collectively as the contestant. Although
the subject citation in this matter was issued to Harless, Inc.,
it is apparent that the issuing inspector was not familiar with
the distinction between the two corporate entities. The
inspector's confusion is understandable in view of Harless'
failure to file any identity reports with MSHA distinguishing the
corporations. Moreover, Harless' May 27, 1992, complaint seeking
injunctive relief and his July 20, 1992, Notice of Contest in
this proceeding were filed on behalf of both Harless Towing and
Harless, Inc. (Gov. Ex. 2). Finally, Chief Administrative Law
Judge Merlin's September 4, 1992, Order of Assignment in this
proceeding notes both corporations. Accordingly, at trial, I
concluded that although Harless, Inc., was cited as the operator
in the subject citation, MSHA's jurisdiction over Harless Towing
is also an appropriate issue for disposition in this proceeding.
(Tr. 141-143). consequently, Counsel's posthearing assertion in
1052

on the record to my jurisdiction to hear this matter (Tr. 20).
However, his stipulation concerning my authority was not
an admission that either corporation is engaged in mining.
After the trial, Harless retained Michael E. Roach as legal
counsel. On April 15, 1993, Roach filed a simultaneous motion
to appear and motion requesting an extension of time to file
posthearing briefs which was granted by Order dated April 19,
1993. The parties filed proposed findings and conclusions on
May 10, 1993.
As detailed below, Harless Towing dredges sand from the
Calcasieu River. The sand is then transported by barge to a
dock location at Harless, Inc., where it is off-loaded, stockpiled and sold (Tr. 115). This contest proceeding concerns
the validity of Citation No. 3896905 that was issued to Harless
on May 19, 1992, for violation of 30 C.F.R. § 56.1000, as a
result of his failure to notify the Mine Safety and Health
Administration (MSHA) of his commencement of mining operations. 2
The basic issue for determination is whether the activities of
Harless Towing andjor Harless, Inc., are subject to the
jurisdiction of the Mine Act.
PRELIMINARY FINDINGS OF FACT

As indicated above, Jerry Ike Harless is the CEO of Harless
Towing and Harless, Inc., which are closely held corporations
incorporated in the State of Louisiana. His daughters, Jeri
Green and Barbara Southerland, respectively, are the President
and Vice President of both corporations. Harless' wife, Mildred
Whitney Harless, is the Secretary of both companies.
Harless Towing has been extracting sand from the riverbed
of the Calcasieu River four to six months each year for the
last 30 years. The Calcasieu River is a navigable waterway
which flows into the Gulf of Mexico. Harless Towing, pursuant
fn. 1 (continued)
his proposed findings that Harless Towing is not a party in this
matter is without merit.
2

Section 56.1000 provides:
"The owner, operator, or person in charge of any metal
or nonmetal mine shall notify the nearest Mine Safety and Health
Administration and Metal and Nonmetal Mine Safety and Health
Subdistrict Office before starting operations, of the approximate
or actual date mine operation will commence. The notification
shall include the mine name, location, the company name, mailing
address, person in charge, and whether operations will be
continuous or intermittent."
This notification is essential to the orderly administration
and enforcement of the Mine Act.

1053

to a United States Corps of Army Engineers permit, extracts
approximately 20,000 to 25,000 tons of sand per year. The
extracted material does not contain any coal.
Harless Towing employs between four and eight individuals
in its sand dredging operation. During non-dredging months
these employees work at Harless, Inc., performing such duties
as truck driving, loading and stockpiling. Harless Towing uses
a vessel, the "D/B Betsy," with dredging machinery situated
thereupon and several barges in tow. The dredge hydraulically
suctions sand and sediment from the river bottom, along with
river water. The dredged material is then pumped through a
system of piping, wherein an initial separation process takes
place separating the sand from the bulkier material. The piping
then directs the sand and sediment onto a barge called the screen
barge. There, the material is pumped through a 1/4 inch mesh
screen where remaining debris is removed. From the screen barge
the sand and water are pumped through a chute or flume to another
barge, called the heart barge. On the heart barge, the sand is
further processed to separate sand from the remaining water.
The sand screening process continues during the period the
sand is conveyed by tug on the heart barge to one of two of
Harless, Inc.'s, off-loading terminals where cranes, owned and
operated by Harless, Inc., remove and stockpile the sand. The
tugboat operation is regulated by the United States Coast Guard.
Harless, Inc.'s main terminal is located at Bayou D'Inde Street,
approximately 20 miles down river from the dredging site.
Harless, Inc., sells the sand to individual and corporate
customers who are large industrial concerns such as Occidental
Petroleum, Citgo Petroleum, Olin and Gulf States Utilities.
The sand is used in a variety of ways including industrial use,
building foundations, golf course sand traps and sand boxes.
In addition to river sand, Harless, Inc., also stockpiles and
sells limestone aggregate, gravel, mason sand and concrete sand.
The limestone comes from Kentucky and Missouri by barge and the
gravel is hauled from various quarries north of Lake Charles.
Sometimes the gravel is delivered and sometimes Harless, Inc.,
hauls the gravel by truck.
On May 12, 1992, MSHA Inspectors John Ramirez and Steve
Montgomery arrived on the Bayou D'Inde premises of Harless, Inc.,
where they met Harless and his daughter, Barbara Southerland.
They identified themselves and explained the legal identity
reporting requirements for mine operators contained in Section
56.1000. Harless and Southerland questioned whether they were
subject to the Mine Act's jurisdiction. Ramirez left the Legal
Identity Report (MSHA Form 2000-7) with them for completion
and obtained permission to inspect Harless Towing's dredging
operation located upstream. Ramirez and Montgomery drove to
the dredging site where they inspected the dredge, including

1054

all moving components on the engine, such as shafts and pulleys.
They also checked handrails and looked at the first aid kit
and fire extinguishers. They did not find any violations and
concluded that the dredging site "was a clean operation."
(Tr. 53).
Ramirez and Montgomery returned to the Harless, Inc., site
on May 13, 1992, at which time Harless and Southerland refused
to complete the Legal Identity Report because they believed that
they were not engaged in mining. No additional action was taken
by Ramirez in order to provide Harless with the opportunity to
consult an attorney. Ramirez returned on May 19, 1992, at which
time Harless again refused to complete the mine registration
process. Consequently, Ramirez issued Citation No. 3896905 for
a violation of Section 56.1000 based upon Harless' failure to
notify MSHA before commencing sand dredging operations.
On May 22, 1992, Harless challenged MSHA's jurisdiction
by seeking injunctive relief in the United states District
Court for the Western District of Louisiana. Thereafter,
Citation No. 3896905 was modified on June 1, 1992, to extend
indefinitely the termination date to allow Harless to pursue the
injunction. On July 15, 1992, The Honorable Edward F. Hunter
dismissed Harless' request for relief with the stipulation that
he be provided with the opportunity to pursue relief through the
Mine Act's administrative process. This brings us to the case
at bar.
FURTHER FINDINGS AND CONCLUSIONS

Commerce Issue
As a threshold matter, regardless of whether Harless is
engaged in mining, he argues that his companies are exempt from
the jurisdiction of the Mine Act because they are not engaged
in interstate commerce. The following discussion formalizes
my bench decision that both corporate entities are engaged in
interstate commerce as contemplated by the Act (Tr. 22-23).
Section 4 of the Mine Act, 30 u.s.c. § 803, provides:
Each coal or other mine, the product of which enter
commerce, or the operations or products of which
affect commerce, and each operator of such mine,
and every miner in such mine shall be subject to
the provisions of this Act (emphasis added).
In Cobblestone, Ltd., 10 FMSHRC 731, 733 (June 1988),
Judge Cetti, citing Brennan v. OSHRC, 492 F.2d 1027 (2nd Cir.
1974); u.s. v. Dye Construction Co., 510 F.2d 78, 83 (lOth Cir.
1975); Polish National Alliance v. NLRB, 322 u.s. 643 (1944);
and Godwin v. OSHRC, 540 F.2d 1013 (9th Cir. 1976), noted that

1055

the phrase "which affect commerce" in Section 4 of the Mine
Act is consistent with Congress' intent to exercise its full
constitutional authority under the commerce clause. 3
Turning to the facts of this case, Harless Towing operates
a vessel under the jurisdiction of the u.s. Coast Guard in the
navigable waters of the Calcasieu River in order to dredge and
transport sand under permit issued by the u.s. Corps of Army
Engineers. These operational activities alone, without addressing the issue of the ultimate destination of the extracted sand,
affect commerce and give rise to Federal jurisdiction.
Therefore, Harless Towing is clearly engaged in the requisite
activities that subject it to the jurisdiction of Section 4 of
the Mine Act.
Harless, Inc., sells the dredged sand it acquires from
Harless Towing to multi-national and national corporations such
as Occidental Petroleum, Citgo Petroleum, Olin, Gulf States
Utilities and Pittsburgh Plate Glass Company. Harless testified
that the sand is delivered to customers by truck. It is used to
manufacture glass. its uses also include fill under roadways
and use as a construction material in foundations (Tr. 21-23).
It is obvious that the trucking of the sand and its use to support highways, alone, affect commerce. Moreover, the interstate
activities of its customers, ~, Gulf States Utilities, provide
a basis for concluding that the sand sold by Harless, Inc.,
enters or affects commerce. Thus, Harless, Inc.'s business
activities also satisfy the commerce criteria in Section 4 of
the Act. 4
Mining Issue
Having determined the companies are engaged in commerce,
the remaining issue is whether they are mine operators under the
Act. Section 3(h) (1) of the Act defines, in pertinent part,
"coal or other mine" as:
3

"Commerce" is defined in Section 3(b) of the Mine Act,
30 u.s.c. § 802(b) as:
"Trade, traffic, commerce, transportation or communication
among the several states, or between a place in a state and any
place outside thereof, or within the District of Columbia, or a
possession of the United States, or between points within the
same state but through a point outside thereof."·
4 Harless'

testimony relied upon in his posthearing
brief that, "Our sand -- I want to say 100 percent -- I will
say 99 percent is sold right here in Calcasieu Parish", is
not dispositive (Tr. 21). The local sale of a product does
not establish that the product does not ultimately enter or
affect commerce.

1056

(A) an area of land from which minerals are extracted
in nonliquid form or, if in liquid form, are extracted
with workers underground, (B) private ways and roads
appurtenant to such area, and (C) lands, excavations,
underground passageways, shafts, slopes, tunnels and
workings, structures, facilities, equipment, machines,
tools, or other property including impoundments,
retention dams and tailings ponds, on the surface or
underground, used in, or to be used in, or resulting
from, the work of extracting such minerals from their
natural deposits in nonliguid form, or if in liquid
form, with workers underground, or used in, or to be
used in, the milling of such minerals, or the work of
preparing coal or other minerals, and includes custom
coal preparation facilities (emphasis added).
30 u .S.C. § 802 (h) (1)
0

In an attempt to escape from the above statutory definition,
Harless asserts that sand is not a mineral. In the alternative,
he contends that the dredging of sand from a river bottom is
extraction of minerals in liquid form. The assertion that sand,
which is composed of quartz and other silica, is a non-mineral
is frivolous (Tr. 86). Harless' remaining contention that the
dredging of sand from a riverbed is the extraction of a mineral
in liquid form is equally uninspiring. 5 In this regard, the
United States Court of Appeals has held that the operation of
removing sand and gravel from their natural deposits is mining
under Section 3(h) (1) of the Act. In fact, the Court concluded
that the operation of preparing sand by separating water and
other debris gives rise to Mine Act jurisdiction even if

5

The contestant's posthearing brief also cites the
Louisiana Civil Code to support its contention that it is not
engaged in mining. Notwithstanding the fact that the Louisiana
Civil Code is preempted by the Mine Act, the provisions of this
state statute have nothing to do with the mine industry. What
is on point are Marshall v. Stoudt's Ferry Preparation Co.,
602 F.2d 589, (3d Cir. 1979) cert. denied, 444 u.s. 1015 (1980)
and Fleniken's Sand and Gravel. Inc., 10 FMSHRC 1509 (November
1988). At my request, copies of these cases were·provided to
Harless by counsel for the Secretary. (Letter dated February 9,
1993, from Robert A. Goldberg, Esq., to Jerry Ike Harless).
These decisions were sent to Harless to facilitate his compliance
with my on-the-record statement ordering the parties to compare
these cases to the current case in their posthearing briefs See
Tr. 152). The contestant's brief, however, fails to address
these cases.

1057

the extraction process is not performed by the operator.
See Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d
at 591-592. 6
Consistent with Stoudt's Ferry, MSHA routinely oversees
sand and gravel dredging operations. See, ~' Louisa Sand and
Gravel Company. Inc., 11 FMSHRC 1820, 1823 (September 1989);
Fleniken's Sand and Gravel. Inc., 10 FMSHRC at 1509. Thus, it is
evident that Harless Towing's extraction and preparation of sand
through its filtering process are activities covered by Section
3(h) (1) of the Mine Act. Therefore, Harless Towing's contest of
its obligation to complete the required Legal Identity Report as
required by Section 56.1000 of the regulations must be dismissed.
Regarding Harless, Inc.'s status under the Act, it is clear
that the primary objective of this company is the commercial
sale of river sand extracted by Harless Towing, and the sale of
gravel and limestone that it purchases from suppliers. The sales
activities associated with these products also requires their
off-loading, stockpiling and delivery. In order to determine if
these activities should be construed as the "work of preparing
minerals" under Section 3(h) (1) of the Act, it is important to
determine if the subject activities are normally performed by the
operator. 7 Although the work of preparing minerals can include
activities such as loading and storage, it is the nature of the
operations that is dispositive of the jurisdictional issue. See
Oliver M. Elam. Jr .. Company, 4 FMSHRC 5 (January 1982). In this
case, the performance of these functions is associated with sales
rather than extraction and preparation. Clearly, Harless, Inc.'s
commercial endeavors with respect to its gravel and limestone
sales do not subject it to the Mine Act. Similarly, its storage
and sale of sand should not provide Mine Act jurisdiction solely
because it acquired the sand from Harless Towing, a distinct
corporate entity with identical ownership. Consequently,
Harless, Inc.'s contest concerning its responsibility to
6

Although the sediment prepared by Stoudt's Ferry included
a burnable product "akin" to coal, the Court stated that the
sand and gravel preparation, alone, subjected the operator to
the Act's jurisdiction as a mineral preparation facility.
Stoudt's Ferry, 602 F.2d at 592.
7 The

Mine Act defines preparation of coal but does not
address the meaning of the preparation of "other·minerals."
Section 3(i) of the Mine Act, 30 u.s.c. § 802(i), defines the
"work of preparing coal" as:
"[T]he breaking, crushing, sizing, cleaning, washing,
drying, mixing, storing, and loading of bituminous coal,
lignite, or anthracite, and such other work of preparing coal
as is usually done by the operator of a coal mine (emphasis
added).

1058

register pursuant to Section 56.1000 of the regulations is
granted.
As a final matter, at trial I noted that Harless'
willingness to abide by MSHA's reporting requirements if
he did not prevail in this proceeding would be a factor in
considering the appropriate civil penalty that should be
assessed. I also noted that Harless' completion of the
Legal Identity Report form would not prejudice his right to
further appeal (Tr. 153-154). There is no justification for
delaying implementation of this decision in view of Stoudt's
Ferry and the absence of any irreparable harm to Harless Towing,
particularly in view of the lack of any violations detected by
Ramirez. Finally, permitting any further delay in registration
would deny the employees of Harless Towing the protection
provided under the Mine Act.
ORDER
Accordingly, Citation No. 3896905 IS AFFIRMED with respect
to Jerry Ike Harless Towing, Inc., and the subject contest IS
DISMISSED. Jerry Ike Harless Towing, Inc., IS ORDERED to file
the requisite Legal Identity Report (MSHA Form 2000-7) in
accordance with Section 56.1000 of the regulations within 21 days
of the date of this decision. The contest of Harless Inc.,
IS GRANTED and Citation No. 3896905, as it applies to Harless,
Inc., IS VACATED. 8

v

/) .

":l:?l.. --

~~~
Jerold Feldman
Administrative Law Judge

8

This decision, in effect, permits modification of
Citation No. 3896905 to include Harless Towing as well as
Harless, Inc., as the alleged operator. Harless is estopped
from objecting to this modification since it was his failure
to identify Harless Towing as the corporation involved in
dredging activities that necessitates this action. Any other
approach would permit an operator to conceal its identity from
an inspector and then assert that a citation for failure to
register as a mine operator is defective because the operator
was not properly cited. Moreover, Harless can not claim that
he has been surprised or otherwise prejudiced by this
modification. (See fn. 1, supra).

1059

Distribution:
Robert Goldberg, Esq., Office of the Solicitor,
U.S. Department of Labor, 525 South Griffin Street,
Suite 501, Dallas, TX 75202 (Certified Mail)
Jerry I. Harless, Jerry Ike Harless Towing, Inc.,
2589 Bayou D'Inde Road, Lake Charles, LA 70601
(Certified Mail)
Jerry I. Harless, Harless, Inc., 2589 Bayou D'Inde Road,
Lake Charles, LA 70601 (Certified Mail)
Michael E. Roach, Esq., 724 Moss Street, Post Office 1747,
Lake Charles, Louisiana 70601 {Certified Mail)

1060

DDBRAL IIZilB SUBTY UD IIBALD RBVZBW COIIIUSS:IOB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 3 1993
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 92-669
A.C. No. 15-11855-03560

v.

.

MULLINS AND SONS COAL
COMPANY, INCORPORATED,
Respondent

No. 6 Mine

DECISION
Appearances:

Anne T. Knauff, Esq., u.s. Department of Labor,
Office of the Solicitor, Nashville, Tennessee,
for Petitioner;
Dale Mullins, Vice President, Mullins and Sons
Coal Company, Inc., Kimper, Kentucky,
for Respondent

Before:

Judge Feldman

This case is before me for consideration as a result of
a petition for civil penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq., (the Act). This
case was heard in Prestonsburg, Kentucky, on April 14, 1993.
Dale Mullins, the respondent's Vice President, represented
the respondent in this matter and testified in its behalf.
The Secretary, represented by counsel, called Mine Safety
and Health Administration (MSHA) Inspector Donald Milburn
as his only witness. At the hearing, the parties stipulated
to my jurisdiction in this matter and to the pertinent facts
associated with the civil penalty criteria contained in
section 110(i) of the Act. At the conclusion of the hearing,
the parties elected to make closing statements in lieu of
filing posthearing briefs. After the closing presentations,
I issued a bench ruling which is formalized in this decision.
This proceeding concerns 104(d) (1) Citation No. 3809162,
which was issued to the respondent.by Inspector Milburn, at
10:00 a.m., on Monday, June 17, 1991, for an impermissible
accumulation of combustible coal dust in contravention of
the mandatory health and safety standard contained in

1061

section 75.400, 30 C.F.R. § 75.400. 1 Shortly thereafter,
Milburn issued 104(d) (1) Order No. 3809164 for violation of
the mandatory standard in Section 75.402, 30 C.F.R. § 75.402,
which requires combustible coal dust to be rock dusted within
40 feet of all working faces. 2 At trial, Mullins stipulated
to the fact of occurrence of these violations and to their
significant and substantial nature (Tr.12-13, 64-65). Therefore, the only issue for resolution is whether these violations
occurred as a result of the respondent's unwarrantable failure.
The essential facts are not in dispute and can be briefly
summarized. On the morning of June 17, 1991, Milburn arrived
at the respondent's No. 6 Mine in order to perform a routine
inspection. Prior to performing the inspection, Milburn
participated in a pre-inspection conference with Tony Mullins,
the mine superintendent and nephew of Dale Mullins, and Stoney
Mullins, the business partner and brother of Dale Mullins. At
this conference, Milburn examined the pre-shift examination log
which contained the examiner's remarks concerning coal dust
accumulations in the No. 2 Section with an additional notation
that rock dust application was behind in the section in the
No. 1 through No. 6 entries. Milburn's contemporaneous notes
reflect that both Tony Mullins and Stoney Mullins told him
that they were behind in cleaning and rock dusting the section
because the scoop was out of service since the Friday shift
(See Government Ex. 1). Milburn proceeded to inspect the
No. 2 Section where he confirmed loose coal, coal dust and
float dust accumulations ranging from three to six inches in
depth starting at the No. 2 belt conveyor feeder and continuing inby for a distance of approximately 180 feet in the
first through sixth entries. Milburn determined the depth of
the accumulations by using a folded wooden ruler. Milburn
described these accumulations as black in color with no
evidence of significant rock dust content (Tr.98).
1section

75.400 provides as follows:
"Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials,
shall be cleaned up and not be permitted to accumulate in
active workings, or on electric equipment therein."
2section

75.403, 30 C.F.R. § 75.403, contains the standard
for application of rock dust. This regulation requires that the
combined content of coal and rock dust must contain at least
65 percent incombustible content in intake and neutral entries,
and, at least 80 percent incombustible content in return entries.
Milburn took three samples which confirmed the cited violation.
The lab results of the samples reflected only 29 percent and
55 percent incombustible material in an intake and neutral
entry, respectively, and only 35 percent incombustible material
in a return entry. (Tr.110-113).

1062

Milburn testified that the shift began at 7:00 a.m.
Therefore, he considered the violation to be of three hours
duration, although he indicated that it may have existed
since the previous Friday when the scoop went out of service
(Tr. 24). Milburn stated that he observed that the section
scoop was being charged. He also testified that there was
no other scoop available that could be used as an alternative
means of cleaning the accumulations (Tr.93-94) 3
Milburn opined that the notation concerning the accumulations in the pre-shift examiner's book was a significant, if
not determining, factor in his conclusion that the respondent's
conduct constituted an unwarrantable failure. In this regard,
Milburn stated that the respondent's conduct would not constitute
an unwarrantable failure if the accumulations existed but were
not noted in the pre-shift log (See Tr.100-108). As noted
below in my bench decision, contrary to Milburn's opinion,
an appropriate notation acknowledging coal dust accumulations
in the pre-shift examination book is a mitigating factor in
assessing the degree of negligence provided that the notation
is not ignored. Consequently, I issued the following bench
decision, with non-substantive edits, removing inspector
Milburn's unwarrantable failure findings from the citations
in issue.
I wish to note, for the record, that Mr. Mullins
has stipulated to the occurrence of the violations,
and, to the significant and substantial nature of
these violations. Therefore, the outstanding issue
to be resolved is whether these violations were the
result of the respondent's unwarrantable failure.
Unwarrantable failure is a term that is used to
connote gross negligence. The Commission's leading
cases which distinguish unwarrantable failure
(gross negligence) from ordinary negligence are
Emery Mining Corporation, 9 FMSHRC 1997 (December
1987); and Youghiogheny & Ohio Coal Company, 9 FMSHRC
2007 (December 1987). In essence, these cases state
that ordinary negligence is manifested by inadvertence,
thoughtlessness or inattention, whereas unwarrantable
failure is conduct that is not justifiable, or,
conduct that is inexcusable. Therefore, a finding
of unwarrantable failure requires evidence of a disregard or an indifference to a hazardous condition.

3

Mullins pointed out that, given the length of involvement
in each entry (180-feet), cleaning the accumulations by manual
shoveling was not feasible.
(Tr.87-89).

1063

I wish to distinguish this case from my recent
decision in Consolidation Coal Company, 15 FMSHRC 263
(February 1993) where I affirmed an unwarrantable
failure finding for coal dust accumulations in a
preparation plant facility. In that case, the
accumulations were determined to have existed for
approximately three weeks. These accumulations
were on motors and inside electrical boxes. Moreover, the operator took no action to remove the
accumulations despite complaints by the safety
committee. Finally, the condition was not noted
in the pre-shift examination book.
Turning to the facts of this case, we have accumulations of three hours duration. We also have a
notation in the pre-shift examination book which
insulates, to a certain degree, the operator from
an unwarrantable failure charge because it shows a
recognition of the hazard created by the accumulations.
Having noted the accumulations in the examination book,
if the operator proceeds to ignore the accumulations,
such conduct would constitute an unwarrantable failure.
However, in this case, Milburn was informed that the
scoop was out of service during the pre-inspection
conference. Milburn's subsequent inspection confirmed
that the scoop was out of order. Moreover, Milburn
testified that he did not know of any alternative
scoops that could be used to clean the working section.
Thus, the issue of unwarrantable failure must be
viewed in the context of whether there are any mitigating circumstances. The accumulations were duly
noted. These accumulations were only three hours
old when cited by the inspector. The scoop was
inoperative with no alternative means of cleaning
up the accumulations. The scoop was being charged
so as to place it in operation. Under these circumstances, viewing the evidence in its entirety, there
is no adequate basis for concluding that there was
inexcusable neglect on the part of the respondent.
Although I have concluded that the respondent's conduct
was not indicative of an unwarrantable failure, I do
not wish to minimize the seriousness of this violation.
The respondent's continued operation, three hours after
the condition was noted in the examination book, contributes
to the serious gravity of the underlying violation and
is relevant to the issue of the appropriate civil penalty
to be assessed. I am, therefore, reducing the degree of
negligence associated with Citation No. 3809162 from
high to moderate. Thus, this citation is modified from

1064

a 104(d) (1) citation to a 104(a) citation. Given the
serious gravity of this violation, I am assessing a
$600 civil penalty.
With respect to remaining 104(d) Order No. 3809164
for failure to rock dust, I find, consistent with
the respondent's stipulation, that the violation
was significant and substantial in nature. As rock
dusting is an alternative method of neutralizing
combustible accumulations that are not removed with
a scoop, I find it difficult to conclude that this
violation occurred as a result of an unwarrantable
failure. Milburn testified that it would serve no
purpose to rock dust accumulations that were going
to be cleaned. The respondent intended to clean the
area, rather than rock dust, as soon as the scoop
was placed in service. Under such circumstances,
an unwarrantable failure has not been established.
Therefore, I am modifying Order No. 3809164 to 104(a)
citation and I am assessing a $400 civil penalty for
this violation. The total penalty in this matter is
$1000, which the respondent is ordered to pay within
30 days of the date of my written decision, and, upon
payment of that sum this matter will be dismissed.
ORDER
ACCORDINGLY, IT IS ORDERED that the unwarrantable
failure findings with respect to Citation Nos. 3809162 and
3809164 SHALL BE DELETED and that these citations ARE
MODIFIED AND AFFIRMED consistent with the above bench ruling.
The respondent IS ORDERED to pay a total civil penalty of
$1000 within 30 days of the date of this decision, and,
upon receipt of payment, this matter IS DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, u.s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Dale Mullins, Vice President, Mullins and Sons Coal Co.,
Inc., Box 4028, Upper John's Creek Road, Kimper, KY 41539
(Certified Mail)
vmy

1065

DDBUL Kl:IIB SAPBTY AIID :&BALD ltBVZBW COJDaSSl:Oll
OFFICE OF ADMINISTRATIVE LAY JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 7 1993
CIVIL PENALTY PROCEEDING

.

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

v.

Docket No. CENT 92-341-M
A.C. No. 41-01225-05510 A DSI
Alexander Sand Pit

.

GLENN BURWICK, Employed by
BURWICK CONSTRUCTION
COMPANY,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

This case is before me upon a petition for assessment of
a
civil penalty under § 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 et seg. Petitioner has filed a motion
to approve a settlement agreement and to dismiss the case. I have
considered the representations and documentation submitted and I
conclude that the proffered settlement is consistent with the
criteria in § 110(i) of the Act.
ORDER
WHEREFORE IT IS ORDERED that the motion for approval of
settlement is GRANTED and Respondent shall pay the approved penalty
of $400.00 within 30 days of this decision. Upon such payment this
case is dismissed.

~~~
William Fauver
Administrative Law Judge
Distribution:

J. Philip Smith, Esq., Office of the Solicitor, u.s. Department of
Labor, 4015 Wilson Boulevard,
(Certified Mail)

4th Floor,

Arlington,

Mr. Glenn Burwick, Burwick Oilfield Services,
Bronte, TX 76933 (Certified Mail)
jfcca
1066

Inc.,

VA

22203

Drawer P,

nDBJtAL IIDIB 8AI'Bft UD BBALIIJ.'B UVXBW COIIIO:SSIOB
OFFICE OF ADMINISTRATIVE LAW JlJ)GES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 7 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

v.
QUARTO MINING COMPANY,
Respondent

CIVIL PENALTY PROCEEDING

.:

.

Docket No. LAKE 92-309
A.C. No. 33-01157-04012
Powhatan No. 4 Mine

:
DECISION

Appearances:

Kenneth Walton, Esq., Office of the Solicitor,

u.s. Department of Labor, Cleveland, OH, for
Petitioner;
Daniel E. Rogers, Esq., Pittsburgh, PA, for
Respondent.

Before:

Judge Fauver

Petitioner seeks a civil penalty for an alleged a safety
violation under § 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 ~seq.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the Findings of Fact and
further findings in the Discussion below:
I'INDINGS 01' PACT

1.
Respondent operates a coal mine known as Powhatan #4
Mine, which produces coal for sale or use in or substantially
affecting interstate commerce.
2.
On March 5, 1992, Federal Mine Inspector James Jeffers
observed a Caterpillar 988 front-end loader in the· supply yard of
the mine. The machine was idling, being warmed up for use.
Inspector Jeffers asked the equipment operator, Steve Kurko, to
demonstrate the steering.
3.
When the steering wheel was turned far right, it locked
in position, forcing the operator to rise from his seat and
forcibly use both hands and his weight to turn the wheel back.
Once the lock was broken by forceful turning, the steering wheel
would spin very fast, causing a potential loss of control of the
1067

vehicle. Kurko stated to Jeffers that the condition was
intermittent and that he had reported it to shop Foreman Ron
Adams.
4.
Adams had been aware of the problem as far back as
October, 1991, when it was discovered that the steering jacks
were leaking and, after the jacks were repacked, it was
discovered that the steering problem was still not corrected.
Adams did not take the machine out of service.
5.
The loader was used in several locations throughout the
plant. Shortly after Jeffers' issuance of the citation at issue,
the loader was tagged out and repaired.
DISCUSSION WIT& lPRTHBR liKPINGS

The standard cited by the inspector, 30 C.F.R.
provides that:

§

77.1606(c),

Equipment defects affecting safety shall be corrected
before equipment is used.
The front-end loader had an obvious safety defect in that
the steering was malfunctioning. When turned to the right, it
was subject to locking, and the driver would be forced to rise
from the seat to brace himself against the wheel and use all the
force he could muster to brake the lock on the steering. Once
that occurred, the wheel would spin very fast toward center
before the operator could regain control of the vehicle. The
fact that the problem occurred unexpectedly and intermittently
heightened the potential for an injury because the operator could
not anticipate when the steering problem would occur. The fact
that it was observed only in a standing position did not alter
the fact that this was an unexplained, uncorrected and
potentially very serious safety defect. It presented a serious
risk of occurring in motion as well as in a standing position.
Any new operator of the machine would be faced with a
latent, unknown defect. Respondent, through Adams and others,
knew that the steering was malfunctioning and that their efforts
to address the problem were unsuccessful. The failure to correct
the steering defect or take the loader out of service constituted
negligence of a high degree. Respondent apparently made no
independent assessment of whether the malfunction was a hazard
but instead relied upon its equipment operators. More was
required once the foreman knew the steering was defective. The
steering defect presented a hazard to the equipment operator, to
foot traffic and to other vehicle drivers in the areas where the
loader operated. Individuals on foot and other vehicle drivers
were not likely to know of the defect in the steering system.
The risk of failure to control the loader when someone was in the
path of the loader was significant and substantial.
I therefore find that the violation could significantly and
substantially contribute to the cause and effect of a mine safety

1068

hazard and that there was a reasonable likelihood that the hazard
would contribute to or result in a serious injury.
I also find that there was an unwarrantable failure to
comply with the cited standard. Respondent knew of the defect
for several months before the inspection, but failed to correct
the defect or remove the loader from service. This shows a
serious lack of due care, more than ordinary negligence, and
justifies the inspector's finding that there was an unwarrantable
failure to comply with the standard.
Considering the criteria for a civil penalty in § 110(i) of
the Act, I find that a penalty of $800.00 is appropriate.
CQRCLQSIQHS Ol LaW

1.

The judge has jurisdiction.

2.
Respondent violated 30 C.F.R.
in Citation No. 3332171.

§

77.1606(c) as alleged

ORQBR

WHEREFORE IT IS ORDERED that:
1.

Citation No. 3332171 is AFFIRMED.

2. Respondent shall pay a civil penalty of $800.00 within
30 days of this Decision.

u);a.~ ':1-MfV~

William Fauver
Administrative Law Judge

Distribution:
Kenneth Walton, Esq., Office of the Solicitor, u.s. Department of
Labor, 881 Federal Office Building, 1240 East Ninth Street,
Cleveland, OH 44199 (Certified Mail)
Daniel E. Roqers, Esq., Consol Inc., Consol Plaza, 1800
Washinqton Road, Pittsburgh, PA 15241-1421 (Certified Mail)
/fcca

1069

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

JUN '7 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) I
Petitioner
v.

CIVIL PENALTY PROCEEDINGS

. Docket No. WEVA 92-1008

A.C. No. 46-02208-03595
Docket No. WEVA 92-1096
A. C. No. 46-02208-03597 R

MARTIN SALES & PROCESSING,
Respondent

Docket No. WEVA 92-1097
A. C. No. 46-02208-03598 R
Docket No. WEVA 92-1108
A. C. No. 46-02208-03599 R

. Mine No. 1
SUMMARY DEFAULT DECISIONS
Before:

Judge Koutras
Statement of the Proceedings

On March 29, 1993, I issued summary Default Decisions in
these proceedings finding the respondent in default for failing
to respond to certain discovery requests made by the petitioner
and for failing to respond to my February 25, 1993, Order to Show
Cause affording the respondent an opportunity to explain why it
had not answered the discovery requests, why it had not complied
with my previous orders directing it to respond to those
requests, and why it should not be defaulted for its failure to
respond, 15 FMSHRC 559 (March 1993).
The respondent, through counsel, appealed my default
decisions, and on April 22, 1993, the Commission·vacated my
default decisions and remanded the matters to me for further
proceedings consistent with its remand order. Thereafter, on
April 28, 1993, I issued a remand order affording the respondent
an opportunity to explain the circumstances under which it
believed it timely responded to my February 25, 1993, show cause
order, why it believed it fully responded to the petitioner's
discovery requests, and to explain why it introduced a defense to
some of the contested citation for the first time in its appeal
to the Commission and had not done so in its answers'filed in
these proceedings. The respondent was afforded twenty (20) days
within which to file its responses to my remand order, and was
1070

advised that its failure to respond would again subject it to a
possible default. Copies of the Postal Service certified mailing
receipts reflect that respondent's counsel received my remand
order on May 3, 1993, and that the respondent's president
received it on May 1, 1993.
Discussion
The respondent failed to file any substantive response to my
remand order of April 28, 1993. Instead of responding and
availing itself of an opportunity to explain its position in
compliance with the Commission's April 22, 1993, order vacating
my default decisions, the respondent's counsel, J. Thomas Hardin,
filed a motion to withdraw as counsel for the respondent and a
request that the respondent be permitted additional time in which
to obtain additional counsel.
On May 4, 1993, pursuant to Commission Rule 3(d), 29 C.F.R.
2700.3(d), I issued an order denying Mr. Hardin's motion to
withdraw as counsel for the respondent in these proceedings.
Mr. Hardin was reminded of his obligation and duty to remain as
counsel for the respondent and to continue his representation
until the Commission's remand order of April 22, 1993, was
satisfied. Mr. Hardin was specifically advised of my expectation
that he comply with my remand order of April 28, 1993, and the
respondent was again cautioned that its failure to respond would
again result in a possible default. Copies of the Postal Service
certified mailing receipts reflect that Mr. Hardin received my
order denying his motion to withdraw on May 8, 1993, and that the
respondent's president received a copy on May 7, 1993. As of
this date, no further responses have been received from the
respondent or Mr. Hardin.
§

Conclusion
After careful review and consideration of the entire record
in these proceedings, including the matters discussed in my
remand order of April 28, 1993, and my order of May 4, 1993,
denying counsel Hardin's motion to withdraw from these
proceedings, copies of which are attached and incorporated herein
by reference, I cannot conclude that the respondent has presented
any additional facts or circumstances mitigating its failure to
timely respond to the petitioner's discovery requests, or my
previously issued orders in these proceedings. In my view, the
respondent has had ample opportunity to present its position in
response to the Commission's remand of April 22, 1993, but it has
failed to timely respond as directed by my remand order of
April 28, 1993. Under the circumstances, I again find the
respondent IN DEFAULT, and my previous Summary Default Decisions
of March 29, 1993, reported at 15 FMSHRC 559 (March 1993), are
reinstated and reaffirmed.
1071

ORDER
Summary judgment is again entered in favor of the
petitioner, and the respondent IS ORDERED to immediately pay to
the petitioner (MSHA), the proposed civil penalty assessments of
$32,166, for the fifty-one (51), violations in question. The
individual citations and assessments amounts are enumerated in my
prior summary decision at 15 FMSHRC 561-563 (March 1993).

~~
Administrative Law Judge

Attachments
Distribution:
Carol B. Feinberg, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)
J. Thomas Hardin, Esq., Hardin Law Offices, Main Street, P.O.
Box 1416, Inez, KY 41224 (Certified Mail)
Winford Davis, President, Martin Sales & Processing, P.O.
Box 728, Kermit, WV
25674
(Certified Mail)
/ml

1072

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

lAY 0 4 1193
SECRETARY OF LABOR I
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) I
Petitioner
v.
MARTIN SALES & PROCESSING,
Respondent

.. CIVIL PENALTY PROCEEDINGS
.. Docket No. WEVA 92-1008
A. C. No. 46-02208-03595
. Docket No. WEVA 92-1096
...• A. C. No. 46-02208-03597 R
... Docket No. WEVA 92-1097
. A. C. No. 46-02208-03598 R
No. WEVA 92-1108
Dock~t

A. C. No. 46-02208-03599 R

:

Mine No. 1
OBDER DENYING MOTION TO WITHPRAW
AS COUNSEL FOR THE RESPONDENT

Statement of the Proceedings
on March 29, 1993, I defaulted the respondent because of its
failure to fully respond to the petitioner's discovery requests,
and its failure to comply with my order compelling it to respond,
and my show-cause order of February 25, 1993. On April 8, 1993,
the respondent's counsel, J. Thomas Hardin, Inez, Kentucky, filed
a Motion to Alter, Vacate or Amend my default decisions claiming
that he had timely filed a response to my show-cause order and
that the respondent should not have been defaulted.
On April 22, 1993, the Commission vacated my default
decisions and remanded the cases to me for further proceedings
consistent with its remand order. In compliance with that order,
I issued an Order on Remand on April 28, 1993, affording the
respondent twenty (20) days to explain why it believes it timely
co.plied with my previous orders and why it believes that it
8bould not have been defaulted. The respondent was also afforded
an opportunity to explain why it had not previously raised an
iasue in defense of certain contested citations raised for ~
firat tiae with the Commission as part of its motion to set aside
my default decisions. The respondent was advised that its
failure to timely respond to my Order on Remand will again
subject it to possible default.
1073

The respondent's counsel, J. Thomas Hardin, has now filed a
motion seeking permission to withdraw as counsel for the
respondent and requesting that the respondent be permitted thirty
(30) days in which to obtain additional counsel.
Discussion
Commission Rule 3(d), 29 C.F.R. § 2700.3(d), which became
effective May 3, 1993, provides as follows:
(d) Withdrawal of appearance. Any representative of a
party desiring to withdraw his appearance shall file a
motion with the Commission or Judge. The motion to
withdraw may, in the discretion of the Commission or
Judge, be denied where it is necessary to avoid undue
delay or prejudice to the rights of a party.
Mr. Hardin states no reasons for his request to withdraw as
counsel for the respondent. In my view, the granting of the
motion would not only unduly delay these matters, but more
importantly, it will prejudice the respondent's rights.
Mr. Hardin filed the motion which resulted in the Commission's
remand, and he made certain representations to the Commission in
support of his motion to set aside my default decisions. The
Commission was unable to evaluate the merits of Mr. Hardin's
assertion that he timely responded to my show cause order, and it
remanded the cases to afford him an opportunity to present his
explanation and position to me for a determination as to whether
or not defaults are warranted. Since the burden is now on the
respondent to respond to my remand order, with the possibility of
another default if it does not respond, and since only Mr. Hardin
knows all of the circumstances under which he claimed he timely
responded to my order, he has an obligation and duty to remain as
counsel and to continue his representation of the respondent
until the Commission's remand order is satisfied. Newly retained
counsel who was not involved in the discovery requests, and who
was not the recipient of my prior orders, would not in my view,
serve the best interests of the respondent in attempting to
reconstruct what transpired during the time it was represented by
Mr. Hardin.
ORDER
In view of the foregoing, Mr. Hardin's request to withdraw
as the respondent's representative in these proceedings IS
DENIED. I expect Mr. Hardin to comply with my recently issued

1074

Order on Remand and to timely file a response on behalf of the
respondent.

Distribution:
Carol B. Feinberg, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)
J. Thomas Hardin, Esq., Hardin Law Offices, Main Street, P.O.
Box 1416, Inez, KY 41224 (Certified Mail)

Winford Davis, President, Martin Sales & Processing, P.O.
Box 728, Kermit, WV 25674 (Certified Mail)
/ml

1075

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

APR 28 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
MARTIN SALES & PROCESSING,
Respondent

.• CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 92-1008
A.C. No. 46-02208-03595

.
Docket No. WEVA 92-1096
..: A.C.
No. 46-02208-03597 R
..• A.C.
Docket No. WEVA 92-1097
No. 46-02208-03598 R
.
Docket No. WEVA 92-1108
.. A.C.
No. 46-02208-03599 R
.. Mine No. 1

ORDER ON REMAND
Statement of the Proceedings
On March 29, 1993, I entered summary default decisions in
these matters pursuant to Commission Rule 63, 29 C.F.R.
§ 2700.63, because of the respondent's failure to respond to a
previously issued show-cause order and its failure to respond to
the petitioner's legitimate discovery requests. On appeal of my
default decisions, the Commission remanded the matters to me on
April 21, 1993, for further proceedings consistent with its
remand order.
Background
The record reflects that the petitioner initiated discovery
in Docket No. WEVA 92-1008, in August, 1992, and subsequently
sought information concerning the respondent's assertion that it
was financial unable to pay the proposed civil penalty
assessments. The other dockets were subsequently added to the
trial docket and all of the cases were consolidated for hearing
on February 10, 1993, but were subsequently rescheduled for
March 19, 1993, at the request of the respondent. On January 5,
1993, I issued an order in Docket No. WEVA 92-1008, aa.pelling
the respondent to respond to the petitioner's discovery requests,
including certain requests for documents and financial information to support the respondent's claim that it was unable to
pay the proposed penalties. The order informed the respondent
tbat its failure to respond within ten days could result in a
summary default disposition of the case.
1076

On January 13, 1993, I held a prehearing telephone
conference with counsel for the parties, and they informed me
that they were discussing possible settlements, but that they
were contingent on the respondent producing reliable financial
information supporting its claim that it was unable to pay the
proposed civil penalty assessments. Respondent's counsel assured
ae at that time that he was compiling the information in response
to the petitioner's discovery request.
on February 25, 1993, I issued an Order to Show Cause
directing the respondent to reply within ten (10) days as to why
it should not be held in default because of its failure to
respond to the petitioner's discovery requests concerning its
asserted financial inability to pay the penalty assessments,
and it§ failure to comply with my previous January 5, 1993,
Order compelling it to provide the requested information. The
respondent PAILBD TO RESPOND to my February 25, 1993, show-cause
order. The only response of record with respect to the
petitioner's discovery requests for financial information, is a
letter dated January 24, 1993, addressed to the petitioner's
counsel from the respondent's counsel attaching certain financial
information from the respondent's bank and an itemized list of
its outstanding debts as of January 29, 1993. A copy of that
correspondence was not submitted to me by the respondent.
However, by letter dated March 10, 1993, petitioner's counsel
furnished me with a copy, and she noted that while the letter is
dated January 24, 1993, it was not received in her office until
March 5. 1993. The letter in question states as follows:
Pursuant to our previous discussions, I have enclosed a
copy of financial information from my client's bank,
Bank of Mingo. Additionally, as your are aware, my
client is no longer operating the mine. As a result of
this idle status of the mine, my client has no income
to pay any debts at this time.
If additional information is required regarding the
ability of my client to pay, please contact me at your
convenience.
In his motion filed with the Commission to vacate my default
decisions, the respondent's counsel states that he filed a timely
response to my show-cause order of February 25, 1993. In support
of this claim, he attached a copy of his January 24, 1993, letter
and attachment addressed to the petitioner's counsel. Under the
circumstances, counsel's suggestion that he filed any response
with ae is inaccurate. Further, as shown b the "date •tamp" on
the copy of the letter submitted by the petitioner'• counsel, the
January 24, 1993, letter was not receiyed by her until March 5.
lii1, and there is no explanation for the delay.

1077

In its remand Order, the Commission states that the
respondent "asserts that it had timely filed a response. dated
Karch 8. 1993. to the iudqe's show cause order". I have reviewed
the respondent's Motion to Alter, Vacate or Amend ay default
decisions, and the only statement I find with respect to any
filing of any response to my order is a statement by respondent's
counsel that "A copy of the response which was timely filed is
attached hereto". The attachments referred to consist of a
Response to Show Cause Order, and copies of the previously
mentioned letter of January 24, 1993, to the petitioner's counsel
from the respondent's counsel.
The Response· to Show Cause Order submitted by the respondent
as proof of its compliance reflects that it was served on the
petitioner's counsel by placing it in the mail on March 6, 1993.
The Certificate of Service attesting to this mailing does not
reflect that the response was also served on me. Indeed, my
office has no record of any response ever being filed or received
by me, and respondent's counsel has produced no evidence that his
response was ever mailed to me, nor has he filed any explanation
as to why he has not followed the instructions of Chief Judge
Merlin when he initially assigned these cases to me that all
future communications were to be filed with me. In short,
nowhere in the record do I find any evidence that the
respondent's replies to any of my orders were ever filed with me
prior to the issuance of my summary default decisions. Although
a copy of the January 24, 1993, letter was furnished me by the
petitioner's counsel on March 11, 1993, she pointed out that the
letter and attachments did not answer the bulk of her discovery
requests. With regard to the Response to Show Cause wpich the
respondent's counsel suggests was timely served on me, the fact
is that it was seen by me for the first time when I received the
respondent's motion to vacate my summary default decisions on
April 8. 1993, after the issuance of the decisions.
I also take note of the fact that in his motion to vacate,
respondent's counsel, FOR THE PIRBT TIME, asserts that the May 2,
1991, citations which were included in my default judgment "have
been abated by the District Director in light of the fact the
inspection performed on Karch 2, 1991, was considered a reopening
inspection, and no citations were to have been issued". A review
of the answers filed by counsel reflects that he never advanced
this defense in his initial answers filed in all of these
proceedings, and there is no explanation for his failure to do
ao.
ORDER
In view of the Commission's remand, and its belief that the
respondent "may have attempted to respond to the judge's show
cause order", I will afford the respondent an opportunity to
explain the circumstances under which it believes it timely
1078

responded to my Order to Show Cause of February 25, 1993, and why
it believes that it has fully responded to the petitioner's
discovery requests concerning its claim that it is unable to pay
any civil penalty assessments in these cases. I note in passing
that the cases cited by the Commission holding that •under
appropriate circumstances a genuine problem in communication or
with the mail may justify relief from default" involved small pro
AA mine operators. In the instant proceedings, the respondent is
represented by an attorney and member of the bar who I assume
understands the procedures to be followed in cases brought before
the Commission and its trial judges, particularly with respect to
the filing of responses to a presiding judge's orders.
The respondent IS AFFORDED twenty (20) days from the date of
this order to submit an explanation to me in writing as to why it
believes that it timely complied with my previous orders and why
it believes that it should not have been defaulted. The
respondent shall also provide me with an explanation as to why it
did not previously raise the defense that the May 2, 1991,
citations may have been "abated" by MSHA's district director. If
this is true, the respondent IS ORDERED to include in its
response copies of any vacated or "abated" citations issued by
MSHA. Failure of the respondent to timely respond to this Order
on Remand will again subject it to a possible default.

k.tt~
Administrative Law Judge

Distribution:
Carol B. Feinberg, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)
J. Thomas Hardin, Esq., Hardin Law Offices, Main Street, P.O.
Box 1416, Inez, KY 41224 (Certified Mail)

Winford Davis, President, Martin Sales & Processing, P.O.
Box 728, Kermit, WV
25674 (Certified Mail)
/Jill

1079

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

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

v.

ADAMS STONE CORPORATION,
Respondent

91993
CIVIL PENALTY PROCEEDINGS
Docket No. KENT 92-604-M
.. A.C.
No. 15-00056-05528
Docket No. KENT 92-770-M
. A.C.
No. 15-00056-05529
DECISIONS

Appearances:

Joseph B. ·Luckett, Esq. u.s. Department of Labor,
Office of the Solicitor, Nashville, Tennessee, for
the Petitioner;
David H. Adams, Esq., Pikeville, Kentucky, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

These proceedings concern proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and health Act of
1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for
six (6) alleged violations of certain mandatory safety standards
found in Part 56, Title 30, Code of Federal Regulations. The
respondent filed timely contests and answers and hearings were
held in Pikeville, Kentucky. The parties filed posthearing
arguments which I have considered in the adjudication of these
matters.
Issues
The issues presented in these proceedings include
(1) whether or not the respondent violated the cited mandatory
safety regulations; (2) whether the violations were significant
and substantial (S&S); (3) whether the violations were the result
of the respondent's unwarrantable failure to comply with the
cited safety regulations; and (4) the civil penalties to be
assessed for the violations taking into account the civil penalty
assessment criteria found in section 110(i) of the Act.

lOBO

Applicable Statutory and Regulatory provisions
1. The Federal Mine Safety and health Act of 1977,
30 u.s.c. § 820(a).
2.

Sections 110(a) and 110(i) of the Act.

3. MSHA's mandatory safety standards found at Title 56,
Code of Federal Regulations, sections 56.6305, 56.6313,
56.6320, 56.15005, and 56.18009.
4.

Commission Rules, 29 C.F.R., Part 2700.
Discussion

The testimony and evidence adduced in these proceedings
establishes that an accident occurred at the respondent's quarry
site on January 21, 1992, when Assistant Quarry Superintendent
Terry Cantrell was injured and suffered permanently disabling
injuries when he fell approximately 25 to 30 feet from the top of
a primary crusher to the ground below. Mr. Cantrell was not
wearing a safety belt or using a safety line and he was not tied
off or otherwise secured against falling. Following this event,
and upon receipt of a telephone message reporting the injury,
MSHA Inspector Richard L. Jones went to the quarry on January 22,
1992, for the purpose of conducting an investigation and
inspection. Mr. Jones issued several notices of violations,
beginning with a section 104(d) (1) citation, followed by five
section 104(d) (1) orders. The citation and orders are as
follows:
Section 104(d) (1) "S&S" Citation No. 3883607, January 22,
1992, cites an alleged violation of mandatory safety standard
30 C.F.R. § 56.15005, and the cited condition or practice states
as follows (Exhibit G-1):
A lost time injury resulted from the fall of an
employee from the top of the primary crusher on
1-21-92. No safety belt or line was being used as Terry
Cantrell, assistant superintendent, was attempting to clear
the top of the crusher of scrap iron and attached crane
rigging in order to remove the top of the crusher. He fell
to the ground approximately 30 feet below but not before
striking the crusher support iron and pier. ·one safety belt
but no safety line was in the area and was not being used.
This is an unwarrantable failure.
(See 104(d) (1)
Order 3883608).
Section 104(d) (1), "S&S" Order No. 3883608, January 22,
1992, cites an alleged violation of mandatory safety standard

1081

30 C.F.R § 56.15005, and the cited condition or practice states
as follows (Exhibit G-2):
Two employees were observed working on the primary
crusher approximately 25 feet above ground level while
not tied off with safety belts and lines. There was no
work platform from which to work as it had been moved
to facilitate the removal of the top of the crusher for
repairs. Only one safety belt and no lines were in the
area and were not being used. This is an unwarrantable
failure (See 104(d) (1) Citation 3883607). Employees
were withdrawn from the area and ordered not to resume
work until proper safety linesjbelts are made
available, and an MSHA inspector could observe the
corrective measures taken and this order is terminated.
Section 104(d) (1) "S&S" Order No. 3883609, January 22, 1992,
as amended, cites an alleged violation of mandatory safety
standard 30 C.F.R. § 56.18009, and the cited condition or
practice states as follows (Exhibit G-3):
Six employees were working in the area of the primary
crusher dismantling it for repair without a person on
the mine property designated in charge. Their regular
supervisor Terry Cantrell, Assistant Superintendent,
had been injured on the job 1-21-92, and had not
returned to work.
(See 104(d) (1) Citation 3883608,
104(d) (1) Order 3883608). The person with overall
authority and responsibility, stuart Adams,
President, was also not on mine property. This is an
unwarrantable failure. The employees were withdrawn
from the work area and ordered not to resume work until
a person was designated by the operator as in charge
and an MSHA inspector could observe the corrective
action taken and the order terminated.
Section 104(d) (1) "S&S" Citation No. 3883610, as amended,
issued on January 23, 1992, cites an alleged violation of
30 C.F.R. § 56.6313, and the cited condition or practice states
as follows (Exhibit G-4):
Two large limestone boulders were observed in the
quarry area that had been drilled and charged with
explosives (dynamite, detonating cord and primer) the
area was neither attended, barricaded and posted nor
flagged to prevent unauthorized entry. The condition
has existed since day shift 1-16-92, at which time the
blaster was laid off (Section 104(d) (1) order 3883611).
The operator was aware that this condition existed.
This is an unwarrantable failure. Employees were
ordered to remain clear of the area a safe distance
except those necessary to abate the hazard, guards were
1082

posted at each entry to restrict access until an MSHA
inspector can observe corrective action taken and this
order terminated.
Section 104(d) (1) non-"S&S" Order No. 3883611, January 23,
1992, cites an alleged violation of mandatory safety standard
30 C.F.R. § 56.6320, and the cited condition or practice states
as follows (Exhibit G-5):
Two large limestone boulders were observed in the
quarry that had been drilled and charged with
explosives. These charges were loaded on day shift
1-16-92, thus exceeding the 72 hour time limit between
charge and blast times. No prior approval for this
condition was granted by MSHA. The operator was aware
of this condition. This is an unwarrantable failure.
(See 104(d) (1) Order 3883610). Employees were ordered
to remain clear of the area except those necessary to
abate the hazard, guards posted at each entry to
restrict access until an MSHA inspector can observe the
corrective action taken and this order terminated.
Section 104(d) (1) "S&S" Order No. 3883612, January 23, 1992,
cites an alleged violation of mandatory safety standard 30 C.F.R
§ 56.6305, and the cited condition or practice states as follows
(Exhibit G-6):
Unused explosive materials (1000 ft. roll of detonating
cord) were not moved to a protected area or magazine
within a reasonable time after charging boulders in the
quarry for secondary blasting. The detonating cord had
been left unattended and exposed in the quarry area
since day shift 1-16-92, the date the blaster was laid
off. The operator was aware of this condition. This
is an unwarrantable failure.
(see 104(d) (1) orders
3883610 and 3883611). Employees were ordered to remain
clear of the area except those necessary to abate the
hazard, secure the area, and until an MSHA inspector
can observe action taken and this order terminated.
Petitioner's Testimony and Evidence
MSHA Inspector Richard L. Jones testified as to his
background and mining experience and he stated that after MSHA
received a telephone message reporting an injury a.t the
respondent's quarry on January 21, 1992, he went to the site the
next morning to conduct an investigation and inspection. He
stated that a crew was dismantling the primary crusher and that
assistant superintendent Terry Cantrell was injured when he fell
from the top of the crusher approximately 25 to 30 feet to the
ground below. Mr. Jones stated that Mr. Cantrell had jumped to
the top of the crusher from a catwalk to remove some "tramp

1083

metal" from the crusher and to attach rigging to the crusher top
so that it could be removed by a crane. Mr. Jones explained that
Mr. Cantrell threw the metal material off the top of the crusher
and then fell off. Several crew members who were present
informed Mr. Jones that Mr. Cantrell was not using a safety belt
or line (Tr. 8-13).
Mr. Jones stated that the crusher was mounted on twenty-two
foot high pillars and that the crusher itself was another four or
five feet high. He believed that there was a danger of falling
from the top of the crusher and he cited a violation of section
56.15005 because Mr. Cantrell was not wearing a safety belt or
safety line and was not tied off to prevent his falling off the
crusher. Mr. Jones stated that Mr. Cantrell received severe head
injuries, lost the use of his left eye, and has not returned to
work (Tr. 16).
Mr. Jones stated that he based his "high negligence" finding
on the fact that Mr. Cantrell was the assistant superintendent
and knew that it was unsafe, knew about the regulatory safety
belt or line requirement, and engaged in an unsafe act (Tr. 15).
Mr. Jones stated that he based his "S&S" finding on the fact
that employees could be injured if the "work practice" of not
using safety belts or lines where there was a danger of falling
continued (Tr. 16).
Mr. Jones stated that he issued the section 104(d) (1)
unwarrantable failure citation because in his capacity as the
assistant mine superintendent, Mr. Cantrell was an agent of
management and knew that he was engaging in an unsafe act and
that his failure to use a safety belt or line was a violation of
the cited regulation and resulted in an injury. Mr. Jones
confirmed that the violation was abated and that he terminated
the citation after quarry operator Stuart Adams provided new
safety belts and instructed his employees in their use
(Tr. 17-18).
On cross-examination, Mr. Jones confirmed that he determined
that Mr. Cantrell was not wearing a safety belt after speaking
with the crew who were dismantling the crusher, including crane
operator Carl Stumbo. Mr. Jones stated that Mr. Cantrell was in
charge of the work crew, and that after he was injured no one was
officially in charge. However, Mr. Jones confirmed that
Mr. Stumbo assumed control of the situation after the accident
and that he and the rest of the crew were highly trained and
experienced personnel who had completed all of their training.
He confirmed that apart from the dismantling of the crusher,
which was "a special operation", the quarry was not in operation
( Tr. 21-2 8 ) •

1084

Mr. Jones confirmed that he did not speak to Mr. Cantrell,
and only assumed that he was aware of the safety belt requirement
found in the cited standard. Mr. Jones also confirmed that he
did not determine whether or not the respondent had any safety
belt and safety line rules in place, and he did not know whether
the respondent made it "a practice" not to use safety belts or
lines where there was a danger of falling. Mr. Jones stated that
his visit to the quarry was his first one and he was not aware
that the respondent had ever been cited previously for violations
of section 56.15005. He confirmed that he found a safety belt in
the area of the crusher during his investigation, but that it was
in poor condition and would probably not fit around anyone
(Tr. 31-36).
With regard to Order No. 3883608, Mr. Jones stated that
while he was conducting his inspection on January 22, 1992, he
observed two employees working at the top of the same crusher
from which Mr. Cantrell fell the day before. Mr. Jones stated
that the two men were not using safety belts or safety lines and
that they were "perched" at the top of the crusher with one foot
on top of a one-inch bolt which was sticking out of the side of
the crusher. The men were using cutting torches to cut metal
from the crusher and they were within "arm's length" of each
other (Tr. 40-42).
Mr. Jones stated that no one was supervising the work of the
two individuals in question, and he believed that there was a
danger of falling because they were standing on a bolt at the
side of the crusher and were using their cutting torches to cut
metal away from the crusher. Since there was no one supervising
the work, Mr. Jones instructed the men to come down off the
crusher and he informed them about the hazard and determined that
they were not wearing safety belts or lines. Mr. Jones asked all
of the six men present about the whereabouts of any belts or
safety lines, and none could be found in the area (Tr. 43-46).
Mr. Jones explained his gravity finding, and he believed
that the violation was significant and substantial because it was
highly likely that a serious injury or fatality would result if
the employees were to continue to work at the top of the crusher
without using safety belts or safety lines (Tr. 47).
Mr. Jones believed that the violation resulted from a high
degree of negligence because Mr. Cantrell had been seriously
injured the day before and one would expect mine management to
take steps to insure against another accident.
Mr. Jones stated that he issued the section 104(d) (1)
unwarrantable failure order because he was informed by the scale
man that he had spoken with quarry operator Stuart Adams after
Mr. Cantrell's accident and that Mr. Adams was aware of the fact
that Mr. Cantrell had been injured. Mr. Jones confirmed that he

1085

terminated the order on January 23, 1992, after Mr. Adams brought
new safety belts and lines to the quarry and instructed the
employees to use them (Tr. 48-49).
With regard to Order No. 3883609, Inspector Jones testified
that he issued the violation after determining that Mr. Cantrell
had not returned to work and that six men continued to work on
the crusher with no one designated to be in charge of the crew.
Mr. Jones stated that section 56.18009, requires a mine operator
to designate a competent person to be in charge at the mine site
in the event of an emergency. Mr. Jones stated that none of the
six individuals who were present and working on the crusher
informed him that anyone was.in charge, and although crane
operator Carl Stumbo may have worked as a foreman and been in
charge at the site in the past, Mr. Stumbo told him that he was
not in charge of the work which was taking place on January 22,
1992. Mr. Jones confirmed that he would not have issued the
violation if Mr. Stumbo had told him that he was designated to be
in charge (Tr. 57-61).
Mr. Jones stated that he issued the section 104(d) (1)
unwarrantable failure order because he concluded that since
Mr. Stuart Adams saw fit to designate Mr. Cantrell as the person
in charge of the work site on January 21, 1992, before his
accident, Mr. Adams should have designated someone to take
Mr. Cantrell's place and to be in charge in the event of another
emergency situation at the mine after the accident. Mr. Jones
confirmed that at the time Mr. Cantrell was injured Mr. Stumbo
and the other men did what they could to take care of
Mr. Cantrell and that they acted properly to tend to him.
Mr. Jones confirmed that he terminated the order on January 23,
1992, after Mr. Adams returned to the site to take charge and
designated a chain of command of individuals to be in charge in
the event of an emergency (Tr. 62-63).
Mr. Jones stated that following his accident investigation
and inspection on January 22, 1992, he met with Mr. Adams and
discussed the citation and orders with him. He stated that
Mr. Adams informed him that he had other matters to attend to and
could not accompany him. Mr. Adams designated Fred Bartley to
accompany Mr. Jones during the inspection which he continued on
January 23, 1992 (Tr. 74-75).
Mr. Jones stated that he and Mr. Bartley traveled to the
quarry first level, and Mr. Jones observed two large limestone
boulders which had been drilled and charged for ·secondary
blasting. Mr. Jones stated that he observed detonating cord
leading from the drilled holes which were charged with dynamite
boosters, and that a new roll of one-thousand feet of denotating
cord was nearby within a couple of feet of the charged boulders.
Mr. Jones then went to the scale house with Mr. Bartley and

1086

Mr. Jones telephoned Mr. stuart Adams and asked him to come to
the site. Mr. Jones asked Mr. Stumbo to block off all of the
entries leading to the charged boulders (Tr. 76-77).
Mr. Jones stated that he spoke with Mr. Adams when he
arrived at the site and that Mr. Adams acknowledged that he knew
that the boulders were charged and ready to blast and that the
roll of cord was laying out in the open area. Mr. Adams informed
Mr. Jones that he had laid off the blaster six days earlier and
that there was no competent person at the mine to shoot the
boulders. Mr. Adams immediately summoned the blaster to the
site, and the blaster confirmed that he had left the boulders in
a charged condition. He then proceeded to shoot the charged
boulders, and Mr. Jones terminated the citation (Tr. 79).
Mr. Jones confirmed that he issued the section 104(d) (1)
Order No. 3883610 (Exhibit P-4), because the area where the
charged and primed boulders were located was not barricaded,
posted, or flagged in any manner to prevent unauthorized entry
(Tr. 80). He based his "high negligence" finding on the fact
that "I asked Mr. Adams if he knew this condition existed and he
said he did" (Tr. 80) .
Mr. Jones stated that he based his gravity finding of
"reasonably likely" on the following (Tr. 80):
* * * *Dynamite, detonating cord and primers were not
meant to be left out in the exposed weather. Once you
put them together, they are ready to shoot. If they
are allowed to lay out in the weather for any length of
time, they immediately start to deteriorate and become
unstable.
Mr. Jones stated that he observed three state reclamation
inspectors pass by the area without knowing about the charged
boulders. He further stated that large equipment operates in the
area, personal vehicles are parked in the area, and if the
explosives became unstable "someone could bump into them with a
vehicle or loader, sit there and smoke, or just any number of
things. There was a lot of exposure there" (Tr. 81). He stated
that the boulders were four-to-four and one-half feet in diameter
and were located 30 or 40 yards from the main haul road, and 70
or 80 yards from where the crusher operator booth was located
(Tr. 81).
on cross-examination, Mr. Jones conceded that it was
possible that the charged boulders were " a couple of hundred
yards" from the crusher plant (Tr. 86). However, he confirmed
that he cited the hazard because of the possibility that the
charge could be set off as people were travelling by the area
(Tr. 88). Mr. Jones explained that the dynamite did not require
a cap and that the detonating cord is cap sensitive and will set

1087

off the booster which in turn detonates the dynamite. Under
certain conditions detonating cord can be set off by a one-pound
hammer, and if left out in the open "there is no way you can
guarantee that it won't be affected by something" (Tr. 90).
In response to further questions concerning Mr. Adams' prior
knowledge of the conditions, Mr. Jones stated as follows
(Tr. 89) :
A. I asked him did he realize that these boulders were
left there, charged; that the area had not been
secured, posted, barricaded; and did he know that the
thousand-foot roll of detonation cord was laying out
there. He said, "Yes. I laid the man off six days
ago. I knew it was like that."
Q. Well, now, did he say that he laid him off six days
ago knowing that situation existed or that he laid him
off six days ago and he just found out that that
situation was existing? There is a big difference
there.

A. The question I asked him was, "Do you know that
these situations exist?" He said yes. "How long has
it been that way"" I laid the man off six days ago.
Six days, apparently." That is what I was told.
Mr. Jones confirmed that he issued the section 104(d) (1)
Order No. 3883611, because the two charged boulders had been left
in that condition for more than 72 hours without being blasted
(tr. 91). He based his "high negligence" finding on Mr. Adams'
admission that he knew the charged boulders had existed past the
72 hour limit (Tr. 92). Mr. Jones stated that he modified his
initial "highly likely" gravity finding to "unlikely" because the
fact that a time limit had been exceeded does not, in and of
itself, constitute a hazard (Tr. 92). He confirmed that he
modified his initial "S&S" finding to "non-S&S" after
reconsidering the likelihood of any resulting injury (Tr. 93).
He further confirmed that he issued the order under section
104(d) (1) because of Mr. Adams' admission that he knew about the
condition (Tr. 94).
Mr. Jones explained why he issued two orders even though the
cited conditions were the result of the same oc~urrence.
Mr. Jones confirmed that he would not have issued the orders if
he knew that Mr. Adams had no knowledge that the conditions had
existed since the blaster was laid off a week earlier. However,
Mr. Jones stated that "when I talked to him (Adams) for several
minutes at the crusher booth, we talked for a long time about
that and I was under the perfect understanding that he knew they
were like that since he laid the man off six days ago" (Tr. 100).

1088

Mr. Jones stated that if he had misunderstood Mr. Adams, he would
have changed his negligence determination (Tr. 100).
Mr. Jones confirmed that he made some notes concerning the
two citations, but did not have them with him at the hearing. He
further confirmed that he spoke with the blaster when he returned
to shoot the boulders to abate the citations, but he could not
recall if he asked the blaster if he informed Mr. Adams that he
had charged the boulders before leaving the site on the day he
was laid off (Tr. 102). Mr. Jones then stated that the blaster
stated that "Mr. Adams told him he was being laid of as of right
now and that he was not done with his duties and he said to go
home" (Tr. 103). Mr. Jones stated that the blaster did not
explain why he was laid off, and that he (Jones ) found it odd
that a blaster would jeopardize his license and livelihood by not
finishing his job (Tr. 103).
Inspector Jones confirmed that he issued section 104(d) (1)
Order No. 3883612 (Exhibit P-6), because of the exposed and
unattended detonating cord (Tr. 104). He described the roll of
cord as a Class A high explosive, and he explained that it is
required to be stored in a magazine to protect it from the
elements. He stated that a premature explosion of the roll of
detonating cord "would produce a terrible explosion, scattered
debris, rocks. The concussion from it, itself, would be
tremendous" (Tr. 107). He stated that the cord could be
detonated by something being dropped on it or a piece of
equipment running over it. The cord weighed approximately 10 to
15 pounds and someone could have picked it up and put it in a
truck to transport it in an unauthorized manner (Tr. 107). He
confirmed that he modified his "highly likely" gravity finding to
"reasonably likely" (Tr. 108). He issued the section 104(d) (1)
order because "When I asked Mr. Adams did he realize that that
was setting out there unattended, he said he did. And it's an
unwarrantable failure" (Tr. 109). He explained the explosion
potential for a roll of detonating cord (Tr. 111-113).
On cross-examination, Mr. Jones stated that although he is
not a highly qualified industry explosives expert, "I have worked
with explosives hands-on. I know how they operate. I know what
they're capable of". He confirmed that he has also learned about
explosives during his MSHA training, but is not a licensed
blaster. He worked as part of a surface mine powder crew for
three years, and at different times worked on a blasting crew
using the same explosive material used by the respondent
(Tr. 117).
Respondent's Testimony and Evidence
stuart H. Adams, President, Adams Stone corporation,
testified that he first learned about the two charged boulders
which are the subject of citation no. 3883610, and order

1089

nos. 3883611 and 3883612, on the morning of January 23, 1992 when
Inspector Jones was at the quarry conducting his inspection.
Mr. Adams stated that the licensed blaster who had prepared the
boulders for blasting did not inform him what he had done on
January 16, 1992, and Mr. Adams emphatically denied that the
blaster informed him that day that the boulders had been drilled
and charged.
Mr. Adams stated that the blaster asked to be laid off on ·
January 16, 1992, because of the weather so that he could receive
unemployment compensation. Mr. Adams stated that the quarry was
not in full production at that time and that the only activity
taking place was the dismantling of the primary crusher by five
or six employees so that the crusher could be shipped to the
manufacturer for repairs. Mr. Adams stated that the quarry was
down for a winter "seasonal layoff", and other than a large crane
being used to dismantle the crusher, there was no production
equipment operating in the area where the charged boulders were
located. He stated that the boulders were located at an elevated
bench area approximately 600 to 800 feet from the crusher area.
Mr. Adams did not deny that the cited roll of detonating
cord was not protected or stored in a magazine, but he indicated
that the blaster had not completed the job by fastening the cord
to the detonating devices, and that this would be necessary
before the blast could be detonated. He confirmed that after the
cited boulder conditions were called to his attention by
Inspector Jones on January 23, 1992, he called the blaster at his
home and he came to the quarry within one hour and detonated the
charge, and the citation and orders were then terminated by
Mr. Jones.
Mr. Adams confirmed that he told Inspector Jones that he was
aware of the cited conditions and that he did so in response to
the inspector's question as to whether or not he knew that the
boulders had been charged. However, Mr. Adams stated that when
be acknowledged that he was aware of this, his response was in
the context of his knowledge as of January 23, 1992, when the
inspector brought the conditions to his attention. Mr. Adams
stated that he was out of town when the accident involving
Mr. Cantrell occurred, and he denied that he ever told Inspector
Jones that he was aware of the charged boulders on January 16,
1992, when the blaster was laid off and left the quarry.
Mr. Adams stated that he was shocked to learn that the blaster
had left the site after charging the boulders, and without
notifying him what he had done, and Mr. Adams believed that the
blaster should probably have been charged with the violations.
On cross-examination, Mr. Adams reiterated that he laid off
the blaster on January 16, 1992, because of the weather and at
the blaster's request. He confirmed that one of his employees,

1090

either Fred Bartley, Tom Roberts, or Carl Stumbo, first informed
him about the two charged boulders on January 23, 1992.
With regard to the citation concerning the absence of a
designated person in charge of the quarry on January 22, 1992,
the day following the accident, Mr. Adams stated that Mr. Stumbo
has served as one of his superintendents for many years, has
installed and dismantled a number of crushers over the years, and
had "worked the quarry" for many months. Mr. Adams stated that
based on Mr. Stumbo's many years of experience, he designated him
to operate the crane for the "heavy lift" required to dismantle
the crusher. Mr. Adams stated Mr. Stumbo was in charge of the
crew on January 23, 1992, but was reluctant to admit this to
inspector Jones. Mr. Adams confirmed that Mr. Stumbo was an
experienced and trained superintendent.
In response to further questions, Mr. Adams conceded that he
designated Mr. Stumbo as the competent person in charge on
January 22, or 23, 1992, after he (Adams) went to the quarry
site. Mr. Adams confirmed that except for the crusher
dismantling work, everything else at the quarry was shut down,
and Mr. Adams believed that Mr. Stumbo was in charge. Mr. Adams
acknowledged that Mr. Stumbo may not have informed Inspector
Jones that he was in charge, and that Mr. Jones may not have had
any reason to believe that Mr. Stumbo was in fact in charge.
With regard to the failure of Mr. Cantrell to use a safety
belt or line at the time he fell, Mr. Adams acknowledged that
this was the case. However, Mr. Adams stated that one or two
safety belts were available and stored in the equipment storage
room near the crusher area, and that belts were also stored in a
storage shop associated with the Adams Coal operation, which was
a separate corporation operating at the quarry site. Mr. Adams
stated that Mr. Cantrell knew how to use safety belts and lines,
and that he had observed him wearing them in the past during his
30 years of employment at the quarry.
Findings and Conclusions
Fact of Violations
citation No. 3883607
In this instance, the respondent was charged with a
violation of mandatory safety 30 C.F.R. § 56.15005, after the
inspector determined that Mr. Cantrell was not wearing a safety
belt or line when he fell from the top of the crusher while
performing work to dismantle the crusher so that it could be
shipped for repairs. The cited standard requires that safety
belts and lines be worn when persons work where there is a danger
of falling. The unrebutted evidence in this case establishes
that Mr. Cantrell was working and standing on the top of the

1091

crusher approximately 25 to 30 feet above the ground. He had
jumped to the top of the crusher from an adjacent catwalk and he
was not tied off with a safety line, nor was he wearing a safety
belt. While in the process of removing some material from the
top of the crusher and throwing it to the ground below, he fell
off and sustained serious injuries.
The respondent does not dispute the fact that Mr. Cantrell
was not wearing a safety belt and that he was not tied off while
working at the top of the crusher. I conclude and find that
Mr. Cantrell, working 25 to 30 feet above ground, at the top of a
crusher that was in the process of being dismantled, was in a
position or at a location where there was a danger of falling,
and that he was required to wear a safety belt or line while
performing the work in question. Since it is clear that he was
not wearing a safety belt or line, a violation of section
56.15005, has been established by a clear preponderance of the
evidence, and the violation IS AFFIRMED.
Order No. 3883608
In this instance the respondent was charged with another
violation of the safety belt and line requirements found in
section 56.15005, after the inspector observed two employees
working on top of the crusher the day following the accident
involving Mr. Cantrell. The credible and unrebutted evidence
establishes that the two employees were working approximately
25 feet above ground level while standing with one foot on bolts
sticking out of the side of the crusher while they were cutting
metal with torches. They were not wearing safety belts and lines
and were not otherwise tied off to prevent them from falling to
the ground below. I conclude and find that the two cited
employees were working at a location where there was a danger of
falling, and that section 56.15005, required them to wear safety
belts or lines while performing work at that location. Since
they were not, I further conclude and find that a violation of
section 56.15005, has been established by a clear preponderance
of the evidence, and the violation IS AFFIRMED.
Order No. 3883609
The respondent here is charged with a violation of mandatory
safety standard 30 C.F.R. § 56.18009, which provides as follows:
11 When persons are working at the mine,
a competent person
designed by the mine operator shall be in attendance to take
charge in case of an emergency". The inspector issued the
violation after returning to the work site the day after the
accident and observing that six men were continuing the work of
dismantling the crusher. None of the working employees informed
the inspector that anyone had been designated by management to be
in charge. Although the inspector determined that the crane
operator, Carl Stumbo, may have been a foreman in charge at the

1092

site in the past, Mr. Stumbo informed him that he was not in
charge on January 22, 1992.
The respondent's defense is that Mr. Stumbo was a longtime
employee who was trained in safety and repair matters, and that
on the day in question, the inspector admitted that Mr. Stumbo
"seemed to be in charge, or at least seemed to know what was
going on". The respondent's president, Stuart Adams, testified
that Mr. Stumbo had served as one of his superintendents in the
past and had installed and dismantled a number of crushers.
Mr. Adams initially testified that he designated Mr. Stumbo to
operate the crane on the day in question, and he claimed that
Mr. Stumbo was in charge of the crew. Mr. Adams later conceded
that he designated Mr. Stumbo as the competent person in charge
only after he went to the quarry site a day or two later. He
also conceded that Mr. Stumbo did not step forward to identify
himself to the inspector as the designated person in charge, and
when asked what he expected of the inspector under those
circumstances, Mr. Adams responded "You're absolutely right"
(Tr. 138).
The respondent's defense IS REJECTED. I find no credible
evidence to support any reasonable conclusion that Mr. Stumbo was
in fact designated to be in charge in case of an emergency on the
day the citation was issued. Mr. Stumbo was not called to
testify, and I find Mr. Adams• testimony to be rather
contradictory and equivocal to support any suggestion that
Mr. Stumbo was in fact the designated person pursuant to
section 57.18009. If Mr. Stumbo was the designated person in
charge, I find it rather strange that neither he or his crew was
aware it. I conclude and find that the petitioner has
established a violation of section 56.18009, by a preponderance
of the evidence, and the violation IS AFFIRMED.
Citation No. 3883610. and Order Nos. 3883611 and 3883612
In the course of the hearing, and in its posthearing brief,
the respondent took the position that the three cited violations
concerning the charged boulders were not justified because they
concern a single condition, namely, the two boulders which had
been drilled and charged in preparation for blasting. The
respondent questions the legality and propriety of issuing three
separate violations and orders for one single condition.
However, this issue has been raised in the past, and the defense
advance by the respondent here has been rejected by the
Commission. See: El Paso Rock Quarries, Inc., 3 FMSHRC 35,
40 (January 1981), and the recent decision in Cyprus Tonopah
Mining Corp., 15 FMSHRC 367,378 (March 1993), where the
Commission stated in relevant part that "although Cyprus•
violations may have emanated from the same events, the citations
are not duplicative because the two standards impose separate and

1093

distinct duties upon an operator. Accordingly, we affirm the
judge's conclusion that the citations are not duplicative".
After careful consideration of the respondent arguments, I
conclude and find that the issuance of the three separate
violations by the inspector was justified and warranted and did
not constitute an unreasonable or arbitrary enforcement action.
The credible and unrebutted testimony of the inspector
establishes that each of the cited conditions in question
constituted separate and distinct conditions which were in
violation of the three cited mandatory safety standards. Indeed,
the respondent conceded that the cited conditions existed
(Tr. 6-7, 104-109), and its defense is based on certain
mitigating arguments in connection with the amount of the
proposed civil penalty assessments.
With regard to Citation No. 3883610, mandatory safety
regulation section 56.6313, requires that all areas in which
loading is suspended, or loaded holes are awaiting firing, shall
be attended, barricaded and posted, or flagged against
unauthorized entry. The credible evidence establishes that at
the time the inspector observed the charged boulders, they were
loaded and awaiting firing, and the blaster had left the
property. Thus, it seems clear that the loading and blasting of
the charged holes had been suspended and were awaiting firing,
and the inspector found no evidence that the affected area was
attended, barricaded and posted, or flagged against unauthorized
entry. Under the circumstances, I conclude and find that the
petitioner has established a violation of section 56.6313, by a
preponderance of the evidence, and IT IS AFFIRMED.
With regard to Order No. 3883611, section 56.6320, of MSHA's
mandatory standards provides that all charged holes are to be
blasted as soon as possible after charging has been completed.
However, the standard further provides that "In no case shall the
time elapsing between the completion of charging to the time of
blasting exceed 72 hours unless prior approval has been obtained
from MSHA". The credible and unrebutted evidence in this case
establishes that more than 72 hours passed from the time the
boulders were charged on or before January 16, 1992, until they
were blasted on January 23, 1992, and MSHA had not granted
permission for an extension of time. Under the circumstances, I
conclude and find that the petitioner has established a violation
of section 56.6320, by a preponderance of the evidence, and the
violation IS AFFIRMED.
With regard to Order No. 3883612, section 56.6305, of MSHA's
mandatory standards requires that all unused explosive materials
be moved to a protected location as soon as practical after
loading operations are completed. The credible evidence in this
case establishes that the 1,000 foot roll of detonating cord was
an explosive material which had not been moved to a protected

1094

location or stored in a magazine, and the respondent presented no
credible evidence that it was not practical to move the roll of
exposed detonating cord to a protected area before it was found
by the inspector. Accordingly, I conclude and find that the
petitioner has established a violation by a preponderance of the
evidence, and the violation IS AFFIRMED.
Significant and Substantial Violations
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division.
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove:
(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
In United States Steel Mining Company. Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized thatl in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect Of a hazard that must be significant and
substantial. u.s. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); u.s. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

1095

The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf. Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
Further, any determination of the significant
and substantial nature of a violation must be made in the context
of continued normal mining operations. National Gypsum, supra,
3 FMSHRC at 825; U.S. Steel Mining Company, 6 FMSHRC 1573, 1574.
(July 1984); U.S. Steel Mining Co .. Inc., 7 FMSHRC 327, 329
(March 1985). Halfway. Incorporated, 8 FMSHRC 8, (January 1986).
Citation No. 3883607 and Order No. 3883608
The evidence reflects that Mr. Cantrell fell from the top of
the crusher while in the process of throwing some material
to the ground below. The two other employees who were observed
working at the same location the next day were in the process of
cutting metal with torches while in close proximity to each other
and with one foot on bolts which protruded from the side of the
crusher. They too were not wearing safety belts or lines, and
they were not otherwise secured against falling approximately
25 to 30 feet to the ground below. Under the circumstances, I
believe that one can reasonably conclude that these individuals
were exposed to a falling hazard, and that in the event of a fall
they would reasonably likely suffer serious or fatal injuries.
Indeed, Mr. Cantrell fell and suffered serious and disabling
injuries, and in the context of continuing mining operations, I
conclude and find that the two employees who were busy working
with cutting torches in their hands while "perched" atop the
crusher in rather precarious positions would be exposed to a
discreet falling hazard, and if they were to fall, it would be
reasonably likely that they would suffer serious or fatal
injuries. Under all of these circumstances, I conclude and find
that the inspector's "S&S" findings with respect to both of these
violations were justified, and they ARE AFFIRMED.
Order No. 3883609
Inspector Jones concluded that the failure of the respondent
to designate someone to be in charge of the work crew in case of
an emergency was a significant and substantial violation because
"the mining industry has been proven to be a dangerous industry.
Injuries happen all the time. • • • it has been proven to me that
in the event of an emergency, somebody needs to be in charge"
(Tr. 62). On the facts of this case, it seems obvious to me that
Mr. Jones was influenced by the fact that after Mr. Cantrell was
injured, the crew continued working on the very same crusher from
which Mr. Cantrell fell without anyone being officially
designated to be in charge in the event of any further emergency
situation similar to the one involving Mr. Cantrell. Mr. Jones
also believed that someone needed to be designated in charge so

1096

that proper decisions could be made, and proper precautions taken
in time of an emergency (Tr. 60).
In this case, Mr. Cantrell was the designated person in
charge prior to his injury, but after he was injured work
continued without anyone being officially designated to be in
charge in case of any further emergency. Although crane operator
Stumbo assumed control of the situation when Mr. Cantrell was
injured, and properly attended to him while awaiting assistance,·
the failure to designate someone to be in charge when the
dismantling work continued in the absence of Mr. Cantrell exposed
the employees who continued with the work to the hazard of not
having anyone immediately available to take over in the event of
an emergency. If someone had been specifically designated to be
in charge as the work on dismantling the platform continued, and
was held accountable, it is altogether possible that the two
employees observed working on top of the crusher without being
secured against falling would not have been allowed to continue
working under those hazardous conditions, and they presumably
would have been instructed by the person in charge to wear safety
belts and lines. Under the circumstances, I conclude and find
that the inspector's 11 S&S 11 finding was justified, and IT IS
AFFIRMED.
Citation No. 3883610 and Order No. 3883612
Inspector Jones• credible and unrebutted testimony clearly
establishes the hazards associated with leaving charged explosive
devices such as dynamite, detonating cord, and primer exposed and
unattended to (Tr. 84). While it is true that the mine was not
in operation when the inspector found the charged materials, and
that the boulders which were primed for blasting were in a remote
area, the inspector's unrebutted testimony reflects that
equipment and mine personnel, as well as other individuals who
had business at the site, would be exposed to hazards resulting
from a premature detonation of the charged boulders. The
inspector observed three state inspectors pass by the area, and
given the fact that there were no barricades to prevent anyone
from venturing near the boulders, and the area was not flagged to
alert persons of the danger, I believe that in the event of a
premature detonation, it would be reasonably likely that anyone
in the blast area would suffer injuries of a reasonably serious
nature. Under the circumstances, I conclude and find that the
inspector's 11 S&S 11 findings with respect to both of these
citations were warranted and justified, and they ARE AFFIRMED.
Unwarrantable Failure Violation
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided

1097

under the 1969 Act, and it held in pertinent part as follows at
295-96:
In light of the foregoing, we hold that an
inspector should find that a violation of any mandatory
standard was caused by an unwarrantable failure to
comply with such standard if he determines that the
operator involved has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have known
existed or which it failed to abate because of a lack
of due diligence, or because of indifference or lack of
reasonable care.
In several recent decisions concerning the interpretation
and application of the term "unwarrantable failure," the
Commission further refined and explained this term, and concluded
that it means "aggravated conduct, constituting more than
ordinary negligence, by a mine operator in relation to a
violation of the Act." Emery Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987); Secretary of Labor v. Rushton Mining Company,
10 FMSHRC 249 (March 1988). Referring to its prior holding in
the Emery Mining case, the Commission stated as follows in
Youghiogheny & Ohio, at 9 FMSHRC 2010:
We stated that whereas negligence is conduct that
is "inadvertent," "thoughtless" or "inattentive,"
unwarrantable conduct is conduct that is described as
"not justifiable" or "inexcusable." Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more that ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the Act's enforcement scheme.
In Emery Mining, the Commission explained the meaning of the
phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:
We first determine the ordinary meaning of the
phrase "unwarrantable failure." "Unwarrantable" is
defined as "not justifiable" or "inexcusable."
"Failure" is defined as "neglect of an assigned,
expected, or appropriate action." Webster's Third New
International Dictionary (Unabridged) 2514, 814 (1971)
("Webster's"). Comparatively, negligence is the
failure to use such care as a reasonably prudent and
careful person would use and is characterized by
"inadvertence," "thoughtlessness," and "inattention."
Black's Law Dictionary 930-31 (5th ed. 1979). Conduct
that is not justifiable and inexcusable is the result
of more than inadvertence, thoughtlessness, or
inattention. * * *

1098

Citation No. 3883607
Inspector Jones testified credibly that he based his
unwarrantable failure finding on the fact that Mr. Cantrell was
serving as the assistant mine superintendent at the time he was
injured because of his failure to wear a safety belt and line.
As an agent of management, Mr. Jones believed that Mr. Cantrell
knew that what he was doing was an unsafe act, and that he
suffered serious injuries because of his own actions (Tr. 17). ·
Mr. Jones later conceded that he did not speak with Mr. Cantrell
after he was injured and he simply assumed that as an experienced
and trained superintendent, Mr. Cantrell would be expected to
know that a safety belt and line were required to be worn and
that his working on top of the crusher without wearing a belt and
line was an unsafe act (Tr. 31-34).
Mr. Adams did not dispute the fact that Mr. Cantrell was not
wearing a safety belt and line when he fell from the crusher.
Mr. Adams asserted that belts were available and were stored
nearby in two storage rooms, and he produced some new belts and
lines after the violation was issued. Further, Mr. Adams
believed that Mr. Cantrell knew how to use a belt because he had
observed him doing so during his many years of working at the
site. Inspector Jones confirmed that the respondent had not
previously been cited for any safety belt violations, and he
conceded that he did not determine whether the respondent had any
established safety rules in place, or that the respondent made it
a practice to allow workers to work on high places without
wearing a safety belt (Tr. 37-38). Although these factors may be
considered by me in mitigating the civil penalty assessment for
the violation in question, they may not serve as an absolute
defense warranting a dismissal of the violation.
The evidence here establishes that Mr. Cantrell was an
experienced and trained management member who had worked for the
respondent for thirty years and served in a responsible
superintendent's position. It is difficult for me to comprehend
what may have prompted Mr. Cantrell to place himself in such a
precarious position on top of the crusher without securing
himself from falling. While it is most unfortunate that
Mr. Cantrell's actions resulted in his serious and disabling
injuries, as a member of management, he must nevertheless be held
responsible and accountable for his reckless and inexcusable
conduct. I conclude and find that Mr. Cantrell's failure to
comply with the requirements of the cited standard by failing to
wear a safety belt or line while working on top of the crusher
where there was a danger of falling constituted sufficient
"aggravated conduct" to support the inspector's unwarrantable
failure finding. Accordingly, the inspector's finding and the
contested citation ARE AFFIRMED.

1099

Order No. 3883608
Inspector Jones testified that he based his section
104(d) (1) unwarrantable failure order on the fact that the
individual tending the scale house told him that he had spoken to
Mr. stuart Adams a couple of times about Mr. Cantrell's accident
and informed him about what had happened to Mr. Cantrell
(Tr. 46). Mr. Jones believed that Mr. Adams was aware of the
fact that Mr. Cantrell had fallen off the crusher the day befo·re
and that he was aware of the fact that he was not wearing a
safety belt. Since the work of dismantling the crusher continued
after Mr. Cantrell's accident, Inspector Jones believed that
Mr. Adams "could understand the possibility of a man getting
injured" if he were not wearing a safety belt or line when the
work continued (Tr. 47-48).
The evidence reflects that the respondent had erected a work
platform around the crusher, but it was dismantled to facilitate
the final removal of the structure. The inspector confirmed that
he found one safety belt in the work area, but he did not believe
it was usable. He also testified that he looked around the
immediate work area and found no other safety belts or lines, and
asked the employees about them (Tr. 44). Mr. Adams claimed that
safety belts were stored in a storage room near the crusher area,
and that additional belts were stored in another storage shop
associated with a coal mining operation carried out by the
respondent at the site.
I conclude and find that the inspector's unwarrantable
failure finding was justified. While it may be true that safety
belts and lines were stored in storage rooms, the fact remains
that the two cited employees were not wearing them at the time
they were observed working at a precarious position on top of the
very same crusher from which Mr. Cantrell fell and was seriously
injured because he was not wearing a safety belt or line. As the
responsible mine operator, Mr. Adams had an obligation and duty
to insure that the men who continued to work on the crusher after
Mr. Cantrell was injured were wearing safety belts and lines to
preclude another serious accident. I conclude and find that
Mr. Adams' failure to do so constituted "aggravated conduct" and
clearly supports the inspector's order. Accordingly, the
inspector's finding and the contested order ARE AFFIRMED.
Order No. 3883609
Inspector Jones testified that since quarry operator Stuart
Adams initially found it necessary to designate Mr. Cantrell as
the person in charge in the event of an emergency, he should have
designated someone to replace Mr. Cantrell as the person in
charge after Mr. Cantrell was injured. Since he did not do so,
Mr. Jones believed that the unwarrantable failure order was
justified (Tr. 62).

1100

The credible and unrebutted testimony of Mr. Adams reflects
that he was out of town on the day that Mr. Cantrell was injured,
that the quarry was not in a normal production mode, and the only
work taking place was the dismantling of the crusher. Mr. Adams
stated that he designated Carl Stumbo, an experienced and trained
crane operator, who had previously served as one of his
superintendents, to operate the crane used to dismantle the
crusher. conceding that he did not formally designate or
advertise Mr. Stumbo as the person in charge, Mr. Adams testified
credibly that he believed that Mr. Stumbo was in charge, but that
Mr. Stumbo was reluctant to admit this to the inspector.
I take note of the fact that section 56.18009, requires the
designation of "a competent person" to be in charge in the event
of an emergency. A "competent person" is defined in section
56.2, as a person "having abilities and experience that fully
qualify him to perform the duty to which he is assigned". I find
no evidence to suggest that Mr. Stumbo was not qualified to
perform his crane duties, and although I have concluded that
Mr. Adams did not specifically designate Mr. Stumbo to be in
charge in case of an emergency in violation of section 56.18009,
I find his explanation in mitigation of the violation to be
plausible and believable.
After careful consideration of all of the evidence presented
in support of the disputed order, I conclude and find that the
inspector's asserted justification for his unwarrantable failure
finding does not support a finding of aggravated conduct on the
part of the respondent. In my view, the inspector's testimony
reflects the application of a "knew or should have known"
standard to support a moderately high degree of negligence,
rather than the kind of "aggravated conduct" reflected by the
Commission's relevant decisions. Under the circumstances, the
inspector's unwarrantable failure finding IS VACATED, and the
section 104(d) (1) Order IS MODIFIED to a section 104(a) citation
with "S&S" findings.
Citation No. 3883610 and Order Nos. 38833611 and 3883612
The evidence reflects that the blaster who prepared the
boulders for blasting was laid off on January 16, 1992, and that
when he left the mine site that day the boulders had not been
shot, and they remained in that condition until January 23, 1992,
when Mr. Jones observed them during his inspection. Mr. Jones
testified that Mr. Adams admitted that he knew that the cited
conditions existed, and because of these purported admissions,
Mr. Jones concluded that the violations were unwarrantable
failure violations pursuant to section 104(d) (1) of the Act
(Tr. 80, 89, 109).
Mr. Adams testified that he was informed of the existence of
the two charged boulders on the morning of January 23, 1992, by

1101

one of his employees while Mr. Jones was at the quarry, and that
he immediately called the blaster at his home and instructed him
to come to the site and detonate the charged boulders. Mr. Adams
confirmed that the blaster left the site on January 16, 1992,
when he was laid off at his own request, but Mr. Adams denied
that the blaster informed him that day that the boulders had been
drilled and charged. Mr. Adams further denied that he admitted
to Mr. Jones that he had been aware of the conditions since
.
January 16, 1992. Mr. Adams acknowledged that he answered in the
affirmative when Mr. Jones asked him if he were aware of the
cited conditions, but he explained that this response was made in
the context of his knowledge as of the day of the inspection on
January 23, 1992, after he learned of the cited conditions from
one of his employees.
The critical issue in support of the unwarrantable failure
findings by Inspector Jones is whether or not Mr. Adams had known
since January 16, 1992, that the boulders had been drilled and
charged and left in that condition by the blaster at the time he
was laid off at his own request, or whether Mr. Adams first
learned of the conditions on January 23, 1992, as he claims.
The burden of proof with respect to the alleged
unwarrantable failure violations lies with the petitioner.
Although the citation and orders include a statement that "the
operator was aware that this condition existed" as part of the
description of the cited conditions, I find no credible evidence
to support a conclusion that Mr. Adams knew that the cited
conditions existed as of January 16, 1992, when the blaster was
laid off. Nor do I find any credible evidence that Mr. Adams
laid the blaster off knowing full well that the boulders had been
drilled, loaded, and made ready to be blasted, and that he simply
allowed them to remain in that condition indefinitely.
The blaster was not called to testify, and there is no
indication that he was deposed, or that he was unavailable for
the hearing or beyond the reach of a subpoena. Inspector Jones
confirmed that he spoke with the balster when he returned to the
site on January 23, 1992, in response to Mr. Adams' request, but
Mr. Jones could not remember whether he asked the blaster if he
had informed Mr. Adams on January 16, 1992, that he had drilled
and charged the boulders before he left the quarry site that day.
Further, although Mr. Jones confirmed that he made some
inspection notes concerning the violations, he did not have them
with him during his hearing testimony, and none have been
produced.
The respondent's compliance history does not reflect any
prior blasting citations, nor does it reflect any prior
unwarrantable failure violations. Further, Mr. Adams' testimony
that the blaster himself asked to be laid off is not rebutted,
and it stands in contrast to the inspector's undocumented

1102

testimony that the blaster told him that Mr. Adams came to the
site on January 16, 1992, and told him that he was laying him off
"as of right now", and that the blaster simply walked away. When
asked whether or not the blaster gave any explanation for
Mr. Adams' rather abrupt and unannounced layoff, the inspector
stated that the blaster told him that Mr. Adams "did what he
pleased" and that his decisions were "final and instant"
(Tr. 103).
Having viewed Mr. Adams in the course of the hearing, he
impressed me as being rather independent and not too enchanted
with the inspector, but he did not impress me as the kind of
individual who would deliberately leave himself open to severe
sanctions pursuant to section 110(c) of the Act, or to possible
criminal action, by knowingly allowing a blaster to walk away
from his quarry leaving behind two charged boulders which had
been readied for blasting. Mr. Adams also impressed me as a
credible individual, and I find his testimony that he first
learned about the boulders on January 23, 1992, on the day of the
inspection, rather than on January 16, 1992, as suggested by the
inspector, to be believable and plausible. I take note of the
fact that the boulders were located in a remote area of the
quarry, and based on the testimony and evidence adduced in this
case it does not appear that Mr. Adams was continuously at the
quarry site for any extended periods of time. Under the
circumstances, and in the absence of any evidence of aggravated
conduct on the part of the respondent, I conclude and find that
the petitioner has failed to make a case in support of the
unwarrantable failure findings by the inspector. According, his
findings in this regard ARE VACATED, and the contested section
104(d) (1), citation and orders ARE MODIFIED to section 104(a)
citations.
Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business.
Inspector Jones described the respondent's m1n1ng operation
as a multi-bench limestone operation which crushes limestone rock
in the primary crusher. After the crushing process, the
limestone is transported to a conveyor belt to a screen where it
is sized in different categories and stockpiled for sale to
customers. Mr. Jones stated that the quarry consists of
approximately twelve acres. At the time of his inspection there
were approximately six employees dismantling the primary crusher
so that it could be repaired, six-to-eight employees were working
in the shop, and one employee was at the scale house where the
stockpiled crushed limestone would be loaded on the customers
trucks. He also indicated that at one time the respondent had as
many as fifty employees working at the quarry property.
The information provided on the face of MSHA Forms 1000-179,
Proposed Assessment, which are part of the pleadings, reflect

1103

that the respondent produced 86,640, tons of crushed limestone
annually (Exhibits G-7 and G-8).
Based on all of the available evidence and testimony, I
conclude and find that the respondent is a small mine operator,
and absent any evidence to the contrary, I further conclude and
find that payment of the civil penalty assessments which I have
made for the citations in question will not adversely affect the
respondent's ability to continue in business.
History of Prior Violations
An MSHA computer print-out reflects that the respondent paid
civil penalty assessments of $870, for eighteen (18)
section 104(a) citations during the period January 22, 1990,
through January 21, 1992. Twelve (12) of the citations are
"single penalty" non-"S&S" citations, and there are no prior
violations for any of the mandatory safety standards cited in
these proceedings. Under all of these circumstances, I cannot
conclude that the respondent's compliance record warrants any
additional increases in the civil penalty assessments that I have
made for the violations which have been affirmed.

Good Faith Compliance
The evidence adduced in these proceedings reflects that all
of the violations were timely abated by the respondent in good
faith.
Gravity
With the exception of non-"S&S" Citation No. 3883611, and
based on my findings and conclusions affirming the inspector's
"S&S" findings with respect to the remaining violations, I
conclude and find that those violations were all serious.
Negligence
I conclude and find that the two unwarrantable failure
violations (Citation No. 3883607 and No. 3883608), were the
result of a high degree of negligence. Taking into account the
fact that the Act imposes a high degree of care on a mine
operator to insure compliance with all mandatory safety
standards, I conclude and find that the remaini~g violations all
resulted from the respondent's failure to exercise reasonable
care amounting to a moderately high degree of negligence.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section 110(i) of the Act, I conclude and find that the

1104

following civil penalty assessments are reasonable and
appropriate for the violations which have been affirmed:
Citation/Order No.
3883607
3883608
3883609
3883610
3883611
3882612

Date

30 C.F.R. Section

Assessment

1/22/92
1/22/92
1/22/92
1/23/92
1/23/92
1/23/92

56.15005
56.15005
56.18009
56.6313
56.6320
56.6305

$1,600
$1,000
$225
$275
$75
$250

ORDER
The respondent IS ORDERED to pay the civil penalty
assessments enumerated above within thirty (30) days of the date
of these decisions and order. Payment is to be made to the
petitioner (MSHA), and upon receipt of payment, these proceedings
are dismissed.

h.x1f~
Administrative Law Judge

Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
David H. Adams, Esq., P.O. Box 2853, Pikeville, KY
(Certified Mail)
jml

1105

41502

I'BDBRAL JD:IIB SUB'l'Y HD HEALD JtBVl:Blf COIIIIl:SSXOli
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN

91993

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 90-429
A.C. No. 15-16685-03510

v.

Docket No. KENT 90-430
A.C. No. 15-16685-03511

RAMBLIN COAL COMPANY, INC.,
Respondent

No. 8 Mine
ORDER OF DISMISSAL
The Secretary has moved to dismiss the part of these cases
remanded by Order of February 2, 1993, on the ground that the
remanded citations are now moot. The civil penalties were
recalculated, not contested by the operator, and therefore became
a final order of the Commission under 29 c.F.R. § 2700.27.
The decision of June 22, 1992, disposing of the citations
not remanded to the Secretary stands.
All citations thus being disposed of, it is ORDERED that the
motion to dismiss is GRANTED and these cases are DISMISSED.

{()jA~~v~

William Fauver
Administrative Law Judge

Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Billy R. Shelton, Esq., Baird, Baird, Baird and Jones, P.
351, Pikeville, KY 41501 (Certified Mail)
/fcca

1106

o. Box

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

JUN 151993
WYOMING FUEL COMPANY,
Contestant

v.

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

...
:
..
.
.
..
.
.
.
.
:

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

v.
WYOMING FUEL COMPANY 1
Respondent

..
.
.
.:
....

..
...•

CONTEST PROCEEDINGS
Docket No. WEST 90-112-R
Order No. 2930784; 2/13/90
Docket No. WEST 90-113-R
Citation No. 2930785; 2/13/90
Docket No. WEST 90-114-R
Order No. 3241331; 2/15/90
Docket No. WEST 90-115-R
Citation No. 3241332; 2/16/90
Docket No. WEST 90-116-R
Citation No. 3241333; 2/16/90
Golden Eagle Mine
MSHA Mine I.D. No. 05-02820
CIVIL PENALTY PROCEEDING
Docket No. WEST 90-290
A.C. No. 05-02820-03569
Golden Eagle

DBCZSZOB APTER REMAND

Before:

Ju4qe Morris

The Commission remanded the above contest cases to the Judge
for reconsideration consistent with the principles set forth in
the order of remand, 14 FMSHRC 1282 (1992).

DZD WFC SUFFER LEGALLY RBCOGBZZABLB PRBJUDZCB?
A threshold matter is whether WFC would suffer legally
recognizable prejudice if Citations Nos. 2930785 and 3241332 were
modified as proposed by the Secretary. If the Judge finds prejudice the citations shall remain unmodified and his decision vacating them, on the basis of the inapplicability of s 75.329-1,
shall stand. If the Judge does not find legally recognizable
prejudice the citations shall be modified to allege violations of
1107

S 75.316 and the Judge shall conduct such further proceedings as
he deems necessary, 14 FMSHRC at 1290.
In a post-remand order, WFC was directed to state facts in
detail as to the manner in which it suffered legally recognizable
prejudice.
(Order, September 4, 1992). WFC's statement filed
September 18, 1992, is attached to this decision. The Secretary
responded to WFC's statement.
RULING ON LEGALLY RECOGNIZABLE PREJUDICE

On October 16, 1992, the Judge denied the claim of legally
recognizable prejudice and held, in part, as follows:
The original Citations (Nos. 2930785 and
3241332) are set forth, respectively, at 12
FMSHRC 2005 and 12 FMSHRC 2007-2008. The
proposed amendments were received in evidence
as Exhibits S-1 and s-2. The exhibits were
ruled inadmissible at the commencement of the
hearing.
(Tr. 9-20).
DISCUSSION

The parties agree on the applicable law:
The grant or denial of a motion for leave
to amend is within the sound discretion of
the Judge and will be reversed only for an
abuse of discretion.
Zenith Radio Corp. v.
Hazeltine Research. Inc., 401 u.s. 321, 330,
91 S. Ct. 795, 28 L.Ed.2d 77 (1971); Foman v.
Davis, 371 u.s. 178, 182, 83 s.ct. 227, 9
L.Ed.2d 222 (1962). Rule 15(a), Fed. R. Civ.
P., mandates that leave to amend "shall be
freely given when justice so required."
In Foman v. Davis, supra, the Supreme court
set forth the guidelines governing motions to
amend under Rule 15(a). They are as follows:
Rule 15(a) declares that leave to amend
"shall be freely given when justice so
requires"; this mandate is to be heeded. See
generally, 3 Moore, Federal Practice (2d ed.
1948), !! 15.08, 15.10. If the underlying
facts or circumstances relied upon by a
plaintiff may be a proper subject of relief,
he ought to be afforded an opportunity to
test his claim on the merits. In the absence
of any apparent or declared reason--such as
undue delay, bad faith or dilatory motive on

1108

the part of the movant, repeated failure to
cure deficiencies by amendments previously
allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc.--the leave
sought should, as the rules require, be
freely given. Of course, the grant or denial
of an opportunity to amend is within the
discretion of the District Court, but outright refusal to grant the leave without any
justifying reason appearing for the denial is
not an exercise of discretion; it is merely
abuse of that discretion and inconsistent
with the spirit of the Federal Rules." 371
u.s. at 182, 83 s.ct. at 230.
See also 3 J. Moore, R. Freer, Moore's
Federal Practice, par. 15.08{2), 15-47 to 1549 {2d Ed. 1991); Cyprus Empire, 12 FMSHRC
911, 916 (May 1990).
In Forman v. Davis the Supreme Court
recited several factors to be considered in
the denial of an amendment. The citations
here only involve the test of whether there
was undue prejudice to the opposing party by
virtue of allowance of the amendment.
The hearing in these cases commenced on
March 13,- 1990. On March 9, 1990, Contestant
was served, by mail, with the Secretary's
modification of the above citations. The
modifications sought to change the citations
to allege violations of 30 C.F.R. S 75.316
instead of 30 C.F.R. S 75.329-1(a).
FURTBBR DISCUSSION
WFC's post-remand statement failed to set
forth facts that are persuasive that the
operator incurred legally recognizable
prejudice if the citations were modified.
WFC's statement generally contains
conclusions of law.
The mandate of Rule 15(a) is that leave to
amend "shall be freely given when justice so
requires." Conversely, facts to show
recognizable prejudice are required if an
amendment is to be denied.

1109

Illustrative of this point is the Third
Circuit decision Cornell and Company, Inc.,
v. Occupational Safety and Health Review
Commission, 573 F.2d 820 (1978). In Cornell,
nine days before the ALJ hearing and more
than four months after the inspection, the
Secretary moved to amend the citation and
complaint by alleging violations of different
regulations. The hearing proceeded as
scheduled.
At the conclusion of the hearing on the
merits, Cornell was granted additional time
to gather evidence but it concluded that the
additional time would not remedy the prejudice it suffered in preparing its defense.
Therefore it presented no additional
evidence.
Specifically, Cornell's factual claim of
prejudice was that the testimony of the
company's workers was necessary as such
testimony related to the stability of the
beams where they were working at the precise
time of the inspection. The danger of using
the belts in accordance with the safety belt
standard at that exact time was vital to
Cornell's defense.
The Court regarded the workers' testimony
as indispensable. The record showed that the
modification of the final amendment, more
than four months after the inspection, made
it impossible for Cornell to locate its
witnesses. The workers were transients hired
from union halls and Cornell had long since
lost contact with them.
On this basis, the Court concluded that:
"[t]his inability to secure necessary
witnesses caused solely by the delay of the
Secretary in seeking the amendment, vitiated
Cornell's ability to present its sole
affirmative defense." 573 F.2d at 824.
In the case at bar, WFC failed to offer any
facts to support its claim of recognizable
prejudice, nor was there a claim of prejudice
made at the hearing.
(Tr. 3-27).
WFC claims the Secretary's amendment
modified the facts as well as the regulation

1110

allegedly violated.
I disagree. No change
of facts occurred. The Secretary alleged
that S 75.316 was violated, rather than
S 75.329-1(a).
(Compare the citations and
Exhibits S-1 and S-2).
In support of its position, WFC also relied
on Troxel Manufacturing co. v. Schwinn Bicycle co., 489 F.2d 968, 971 (6th Cir. 1973)
and Conray Datsun, Ltd. v. Nissan Motor
Corporation, 506 F. Supp. 1051, 1054 (N.D.
Ill. 1980).
.
The cited cases are not persuasive since
the Secretary here did not change her theory
of the case but only the regulation allegedly
violated.
WFC further contends it is further prejudiced because the mine has been sold and,
since considerable time has lapsed, any of
its witnesses are no longer available. This
point fails since WFC has failed to assert
any facts of legally recognizable prejudice
that such witnesses might reveal if they
testified.
WFC further asserts it would be necessary
to engage in significant new preparation
based on the modifications. This is not the
case since, under either standard, the facts
appear to be the same. The primary issues
involved the validity of the 107(a) orders
and whether WFC was required to use seals or
Kennedy stoppings.
WFC can hardly claim surprise since the
ventilation plan was received in evidence at
the hearing.
(See Exhibit S-8). Mr. Mitchell, WFC's witness, was also an expert in
ventilation.
I agree with WFC there are a "host of
potential issues" in a ventilation plan case
that would not be involved in a violation of
S 75.329. However, the operator fails to
point out any of the "hosts" that were not
addressed at the hearing or not prepared to
be addressed at the hearing.

1111

In sum, WFC's argument that it was prejudiced is general in nature and gives no
specific instance in which it may incur
legally recognizable prejudice by having to
defend the citations as a violation of the
ventilation plan.
I conclude there was no legally recognizable prejudice caused by the proposed
modifications.
The parties should be given the opportunity
to offer additional evidence in view of the
Judge's ruling modifying Citation Nos.
2930785 and 3241332 to an alleged violation
of S 75.316.
The Judge's ruling concluded with an order granting the
Secretary's motion to modify Citation Nos. 2930785 and 3241332 to
allege violations of 30 C.F.R. S 75.316. 1
Further, the parties were granted 15 days to state whether
they desired to present any further evidence to the citations, as
modified. Both parties declined to present any further evidence.
CONSOLIDATION WITH WEST 90-290
Subsequently the Secretary moved to consolidate WEST 90-290
(Penalty Proceeding) with WEST 90-112 et al. WFC had no objection and all pending cases were consolidated on November 5, 1992.
Further, post remand briefs were filed by the parties.
VALIDITY OP IMMINENT DANGER ORDERS
In its order of remand the Commission noted that Section
3(j) of the Mine Act defines an imlilinent danger as "the existence
of any condition or practice in a coal or other mine which could
reasonably be expected to cause death or serious physical harm
before such condition or practice can be abated •••• " 30 u.s.c.
S 802(j). In Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159
(November 1989)("R&P"), the Commission reviewed the precedent
analyzing this definition and noted that "the u.s. Courts of
Appeals have eschewed a narrow construction and have refused to
limit the concept of imminent danger to hazards that pose an
immediate danger." 11 FMSHRC at 2163 (citations omitted). It
1

S 75.316 is entitled "Ventilation system and methane and
dust control plan."

1112

noted further that the courts have held that "an imminent danger
exists when the condition or practice observed could reasonably
be expected to cause death or serious physical harm to a miner if
normal mining operations were permitted to proceed in the area
before the dangerous condition is eliminated." Id., quoting
Eastern Associated Coal Corp. v. Interior Bd. of Mine Op. App.,
491 F.2d 277, 278 (4th Cir. 1974).
In Utah Power & Light Co., 13 FMSHRC 1617, 1621 (October
1991), the Commission held that there must be some degree of
imminence to support a section 107(a) order and noted that the
word "imminent" is defined as "ready to take place: near at hand:
impending .•• : hanging threateningly over one's head: menacingly
near." 13 FMSHRC at 1621 (citation omitted). The Commission
determined that the legislative history of the imminent danger
provision supported a conclusion that "the hazard to be protected
against by the withdrawal order must be impending so as to require the immediate withdrawal of miners." Id. Finally, the
Commission stated that the inspector must determine whether an
imminent danger exists without considering the "percentage of
probability that an accident will happen." Id., quoting s. Rep.
No. 181, 95th Cong., 1st Sess. 38 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong.,
2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 626 (1978) ("Mine Act Legis. Hist.").
In both R&P and UP&L, the Commission concluded that an
inspector must be accorded considerable discretion in determining
whether an imminent danger exists because an inspector must act
with dispatch to eliminate conditions that create an imminent
danger. R&P, 11 FMSHRC at 2164; UP&L, 13 FMSHRC at 1627. As the
u.s. Court of Appeals for the Seventh Circuit recognized:
Clearly, the inspector is in a precarious
position. He is entrusted with the safety of
miners' lives, and he must ensure that the
statute is enforced for the protection of
these lives. His total concern is the safety
of life and limb •••• We must support the
findings and the decisions of the inspector
unless there is evidence that he has abused
his discretion or authority.
Old Ben Coal Corp. v. Interior Bd. of Mine Op. App., 523 F.2d 25,
31 (7th Cir. 1975)(emphasis added); compare Gland creek Coal
Company Va 91-47-R (March 3, 1993).
In applying the imminent danger test, the Commission noted
that the appropriate focus is whether the inspector abused his
discretion when he issued the imminent danger order.

lll3

It is appropriate to consider separately the areas of the
mine that were involved in these cases.
Order No. 2930784 alleged an imminent danger existed.
order further closed the Golden Eagle Mine and ordered all
personnel underground withdrawn. The order issued by MSHA
Inspector D.L. Jordan, reads as follows:

The

Methane in excess of 9.9% as approved by a
handheld detector at a point at least 12 11
from the roof face and ribs was present
behind a line of 6 Kennedy stoppings that
have been constructed across the second south
entry at the intersection of the number 14
west main return. This encompass area behind
the stoppings six (6) entries wide and 25
crosscuts deep. Bottle samples were collected to substantiate the order. Citation
No. 2930785 for a violation of 30 C.F.R.
S 75.329(a) (1) accompanies this order at
section 8, "Condition or Practice".
Citation No. 2930785, issued under section 104(a) of the
Act, followed the order.
A preponderance of the substantial, reliable and probative
evidence establishes the following findings of fact and the
additional findings set forth in the discussion below.
FINDINGS OF FACT

1. Donald L. Jordan has been an MSHA coal mine inspector
for 19 years.
(Tr. 37-39). He has 42 years experience in the
mining industry.
(Tr. 78).
2. His training includes courses in "Methane Detection and
Use of Permissible Methane Detector." He also holds mine foreman, assistant mine foreman, fire boss and shot fire certificates
for the State of Colorado.
(Tr. 39).
3. Mr. Jordan spends about eight weeks a year at the Golden
Eagle Mine.
(Tr. 40).
4. On February 13, 1990, accompanied by Mark Bayes, an
assistant mine foreman, he inspected the west slope area of the
underground coal mine. This was an abandoned area of the mine.
(Tr. 40).
5. Mr. Jordan identified Order No. 2930784, an imminent
danger order issued on the Second South Area of the west slopes.
The area, in excess of 2,000 feet, comprises six entries,
approximately 25 crosscuts deep.
(Tr. 41).

1114

6. After making their initial approach the inspection team
found Kennedy stoppings at all six entries.
(Tr. 42).
[A
Kennedy stoppings is shown on Exhibit S-5.]
7.
The stoppings are made out of galvanized sheet iron and
they direct the ventilation in the mine. Kennedy stoppings are
not seals.
(Tr. 43).

a. An attempt had been made to seal the stoppings from the
outside by applying a limited amount of styrofoam around the roof
and ribs.
(Tr. 43).
9.
Mr. Jordan had studied the ventilation plan and he was
aware the stoppings were not on the map.
(Tr. 44).

10. The stoppings were an attempt to deflect the air current
and seal the area behind them.
(Tr. 44).
11. The Kennedy seals could not be accepted because MSHA has
no way of knowing what air mixtures are behind the seals.
(Tr.
45).
12. At the Golden Eagle Mine there has been a history of
unintentional roof falls, numerous ignition sources and rock dust
surveys have been way below normal. Also there was excessive
liberation of methane gas in the mine. Considering these factors
Kennedy stoppings were unacceptable.
(Tr. 45).
13. Initially the only methane readings Mr. Jordan was able
to take were outside of the stoppings.
(Tr. 45). The readings
were high enough that he was alarmed because the area was not
sealed. There was every possibility that there was an explosive
mixture behind the stoppings.
(Tr. 46).

14. Mr. Jordan took methane samples at all six entries.
(Tr. 46).
15.

The methane readings were as follows:
No.
No.
No.
No.
No.
No.

1 entry:
2 entry:

3 entry:
4 entry:
5 entry:
6 entry:

.a percent
.6 percent
1.5 percent
.7 percent
.6 percent
.a percent

16. To measure the methane concentration Mr. Jordan used a
CSE 102 hand-held digital methane detector.
(Tr. 4a).

17. These methane levels on the ventilation side created a
huge doubt as to what concentrations were behind the stoppings.
(Tr. 4a).

1115

18. Mr. Jordan then went outby and by telephone contacted
Mr. Joe Paplovich, his immediate supervisor.
(Tr. 49).
19.
Mr. Jordan informed Mr. Paplovich of the discovery and
he further sought sampling equipment to determine what was behind
the stoppings.
(Tr. SO).

20. Mr. Jordan feared there was an explosive mixture behind
the seals.
(Tr. SO).
21.
When he met Messrs. Paplovich, Duran and Feltheger they
discovered Mr. Duran had one vacuum bottle suitable for sampling
behind the stoppings. (Tr. 50).

22. Mr. Jordan had ordered all power withdrawn from the area
before he met Mr. Paplovich. The power source was an energized
trolley line. (Tr. 51).
23.
The group then returned to the area and Mr. Jordan found
a 2.2 methane level. This indicated there was fluctuation and
the area was "breathing." (Tr. 52).

24. They then went to the No. 1 entry and withdrew several
samples by using an aspirator pump and a bottle.
(Tr. 54).
25.
The sample, then in a so milliliter bottle was later
evacuated at the MSHA laboratory located in Mount Hope, West
Virginia.
(Tr. 55).

26. An analysis report was submitted by the lab.
Ex. S-6).
27.

(Tr. 56,

The numbers of the samples collected were duly recorded.

(Tr. 57) •
28. After proceeding to the No. 1 entry the group with their
three or four methane detectors took samples from the tube during
aspiration. There were readings in excess of 9 percent from the
tube. {Tr. 62).
29. The readings from all of the hand-held methane monitors
were almost the same. (Tr. 62).
30. The subdistrict manager, Mr. Paplovich, and Mr. Jordan
concluded the situation was much more serious than they had initially suspected. They jointly agreed to conduct an orderly
withdrawal from the mine. Mr. Jordan then orally issued an imminent danger order. (Tr. 62-68).
31. Mr. Jordan believed there was danger in the area at that
time. He considered the danger to be imminent because of the
history of roof falls and ignition sources in the area which com-

1116

bined with the methane levels discovered behind the stoppings.
He also considered the size of the area.
It exceeded a depth of
2,000 feet.
{Tr. 63, 64).
32. The second south area was immediately off of the No. 14
return entry. The entry leads directly to the mine fan.
{Tr.
64).
33.
Behind the stoppings are interrupted tracks and trolley
lines. Additional matters contributing to an ignition are a belt
structure, roof bolts securing roof plates and mats. Also there
were mandoors. These are a source of ignition due to roof falls.
{Tr. 65) •
34.
A roof fall can be a source of ignition by striking
steel against steel depending on where it falls, and depending on
the structure of the roof and its strata. They all enter into a
combination of effects.
{Tr. 66).

35.
In Mr. Jordan'~ mind there was a definite potential for
explosion behind the KeA~edy stoppings.
{Tr. 66).

36. Given the conditions he described Mr. Jordan had a
reasonable belief that an explosion could occur in that area.
{Tr. 67) .
37. After a certain number of years in a coal mine, seeing
the aftermath of what can occur Mr. Jordan stated (the condition]
"scares the pants off of you."
(Tr. 67).
38.

An explosion would propagate beyond the Kennedy

stoppings.

{Tr. 67).

39. Mr. Jordan was afraid for himself but he was not absolutely certain there was going to be an explosion.
{Tr. 69).

40. After they went to the surface they proceeded to the New
Elk Mine in order to discuss the course of action to be taken.
{Tr. 69).
41. The order remained in effect to evaluate the atmosphere
immediately behind the stoppings.
42. The area behind the stoppings was not ventilated nor
sealed in any manner at the time of the issuance of the order.
{Tr. 70).

43. In an abandoned area not ventilated you expect to see
-seals or ventilation required by the ventilation plan or by law.
(Tr. 70).

1117

44. If there is no ventilation in the area you expect the
seals to be constructed as explosion-proof bulkheads.
(Tr. 71).
45. Mr. Jordan saw no evidence of ventilation inby the
stoppings nor did he see evidence of seals nor any intention of
building any seals.
(Tr. 72).
46. In Mr. Jordan's opinion the violation was of a significant and substantial nature. The hazard would be the explosion.
(Tr. 73).
47. Seals create an atmosphere behind them but normally the
atmosphere is above the explosion range for methane.
(Tr. 73).
48. At the meeting at the New Elk Mine the subdistrict
manager requested a proposal from management but no one wanted to
volunteer to attempt to remove any part of the Kennedy stoppings.
The slightest spark and the explosive mixture could create an
explosion.
(Tr. 75).
49. The 107(a) imminent danger order ~ithdrew miners from
the entire mine.
(Tr. 76).
50. The order was modified to allow construction of the
seals in the Second South section of the mine.
(Tr. 76).
51.

A CSE methane detector is accurate within .1.

(Tr. 82).

52. A detector is thrown out of calibration when methane
exceeds 9 percent.
(Tr. 83, 84).
53. The explosive range of methane is five to fifteen
percent.
(Tr. 84).
54. Mr. Jordan had not seen a Kennedy stopping installed in
Two South or One Right before February 13, 1990.
(Tr. 85, 86).
55. On February 13, 1990, in the MSHA office before the
inspection, Kennedy stoppings were discussed.
(Tr. 86, 87).
56. Mr. Jordan was surprised someone would install Kennedy
stoppings in a coal mine.
(Tr. 87).
57. Kennedy stoppings could not be allowed because they do
not suffice as a explosion-proof bulkhead.
(Tr. 88). However,
use of such a stopping is not a violation of apy regulation but
they cannot be used as a seal.
(Tr. 92, 93).
58. The area behind the Kennedys could not be ventilated
because the mine could not afford the additional ventilation.
Also the area was too hazardous to travel.
(Tr. 90).

1118

59. It was the presence of the methane behind the stoppings
plus the existence of an ignition source behind the stoppings
that led Mr. Jordan to his imminent danger finding.
(Tr. 97).
60. You would expect to find some methane on the outby side
and it wouldn't be a basis to conclude the area was imminently
dangerous.
(Tr. 98).
61. The track that goes into Two South is continuous up to
the stopping. It runs a good distance behind the stopping.
(Tr.
101, 102).
62. The sampling tube extends 40 feet inside the Kennedy
stopping. When aspirating the tube the methane detector readings
were as much as 9 percent.
(Tr. 102).
63. The methane concentration could differ at different
points away from the end of the sampling tube.
(Tr. 104).
64. The span of the entries across Two South is about 600
feet.
(Tr. 105).
65. Sample bottle number A-2109 shows a methane concentration of 6.09. This was the only concentration in the explosive range.
(Tr. 106-108).
66. Sample No. A-2107 taken at the same location and time
shows 1.32 percent methane.
(Tr. 106, 107).
67.

Sample A-2108 shows methane of 1.67 percent.

68. The bottle sample results were not available the day
Mr. Jordan issued the imminent danger order.
(Tr. 108).
69. In Mr. Jordan's opinion the results of bottle samples
justify the action taken that day.
{Tr. 108).
70. In Two South there has been as many as six roof falls.
{Tr. 110).
71. Mr. Jordan remembered seeing ignition sources behind the
stoppings in Two South. Those were steel three by three mandoors, the belt and track trolleys, trolley hangers, trolley
wire, roof bolts and roof plates.
{Tr. 110, 111).
72. A roof fall can strike a rail.
unconsolidated soapstone and sandstone.

The roof is made of
{Tr. 112).

73. The ventilation plan says nothing about when seals have
to be installed.
{Tr. 115).

1119

74.
It is an accepted practice to issue a verbal imminent
danger order.
(Tr. 118).
75. MSHA requested WFC furnish a plan to correct the
condition.
(Tr. 119).
76. Removing the stoppings might cause an ignition.
(Tr.
121). The stoppings would have to be removed to ventilate the
area.
(Tr. 121).
77. Seals are constructed with tubes so the atmosphere can
be sampled behind them. The area behind the seals might contain
a higher or lower level of methane.
(Tr. 123).
78.
In Exhibit S-6, except for sample A-2109, the samples
were taken on the exterior side of the seals.
(Tr. 124).
79. When Mr. Jordan issued the imminent danger order he
believed the area was explosive. He also believed the stoppings
were being used as seals.
(Tr. 126).
80. The company had made various attempts to ventilate this
area but with so many roof falls and obstructions the area became
untravelable.
(Tr. 126).
81.
For an explosion to occur it is necessary to have the
explosive mixture as well as an ignition at the same location.
(Tr. 130).
82. The Kennedy stoppings were being swept by 37,632 cubic
feet of air a minute.
(Tr. 133). Mr. Jordan didn't find any
appreciable methane outby the Kennedy stoppings.
(Tr. 133).
83.
In the meeting before the inspection Mr. Jordan believed
he was going to take enforcement action of some kind if he found
a Kennedy stopping.
(Tr. 134).
PZSCUSSZON

The credible facts establish the expertise of Donald Jordan,
an individual with 42 years experience in the mining industry and
19 years as a coal mine inspector. As noted above Mr. Jordan who
spends eight weeks a year at the Golden Eagle Mine became alarmed
when he found high methane concentrations outside the stoppings
in the air course. These methane readings were taken at each of
the six entries.
(Fact 15).

Mr. Jordan contacted his supervisor and obtained sampling
equipment to test behind the Kennedy stoppings. With three or
four detectors the members of the group observed methane
concentrations in excess of nine percent.

1120

These actions constitute a reasonable investigation. In
issuing his order Mr. Jordan basically relied on the methane
levels behind the stoppings and his knowledge of ignition sources
behind the Kennedy stoppings. These facts are further detailed
above in paragraphs 12, 31 and 33. The facts establish Mr.
Jordan made a reasonable investigation of the circumstances at
hand and the facts support his issuance of the imminent danger
order. There is no evidence in this record that Mr. Jordan abused
his discretion or authority.
WFC in its supplemental brief contends the Secretary has
failed to establish a violation of S 75.316, that is, the
Secretary has failed to establish which provision was allegedly
violated and that the provision was part of the plan. In the
alternative WFC states that if the Secretary clarifies the
provision allegedly violated the record demonstrates WFC was
complying.
On its face 30 C.F.R. § 75.316 does not require an operator
to comply with a ventilation plan. But the Commission has held
that "[O]nce the plan is approved and adopted, these provisions
are enforceable as mandatory safety standards Jack Walter
Resources, Inc., 9 FMSHRC 903, 907 (May 1987).
The ventilation plan contains a page entitled "Concrete
block explosion proof seals".
(Ex. S-8, page 13). Further,
MSHA's expert witness William Reitze expressed the view that for
areas not being ventilated he would expect to see permanently
constructed seals.
(Tr. 236-239).
WFC apparently had no difficulty realizing seals had to be
installed in Second South in accordance with its plan. EXhibit
S-9 shows six triple lines which indicate a seal. Written on the
map is the notation "Seals to be constructed when approved. SM
12-29-88. 11 "SM" is WFC representative Steve Matson. It was he
who drew the seals on the Company map and initiated it. The map
is part of the ventilation plan.
The revised plan was apparently approved on May 10, 1989
(Letter to Rick Caller, Safety Superintendent from MSHA).
WFC contends the plan did not prescribe the timing or steps
to be followed in sealing an area nor did any other plan provision.
(Tr. 115, 122, 262-263, 272-273, 486). In addition, the
plan did not prohibit the use of Kennedy Stoppings as an initial
step in the sealing process.
(Tr. 321, 386). Therefore, the
Secretary has failed to establish which provisions of the plan
WFC allegedly violated.
When a regulation is silent as to the period of time required for compliance the Commission has imparted a reasonable

1121

time.
Penn Allegh Coal co., 3 FMSHRC 2767, 2771 (December 1981),
Monterey Coal Co., 5 FMSHRC 1010, 1019 (June 1983).
In this case WFC had at least 10 months to begin sealing the
six entries with concrete block explosion proof seals. No such
sealing occurred and 10 months is a reasonable time to comply
with the ventilation plan.
According to David Huey, WFC's Manager, the company did not
have a definite date to install explosion proof seals.
WFC further states that the Kennedy stoppings were in place
temporarily as the mine prepared to construct the seals as
required by the ventilation plan.
(Tr. 652-654, 662-663).
The record is clear that the Kennedy stoppings can be used
as a ventilation device but not as a substitute for explosion
proof seals. Accordingly, the Secretary is not unilaterally
imposing a sealing regime on WFC. Rather, it is requiring the
use of Mitchell-Barrett seals as permanent seals.
(Tr 298-299,
370, 583-584, Ex. C-6, s-a at 13-14). There was a reasonable
time allowed for installation of the seals and WFC failed to act
in that time.
DID SECRETARY PROVE IMMINENT DANGER?
WFC claims Mr. Jordan failed to prove an imminent danger in
Second South because his measurements were inadequate. Specifically he "assumed there was an explosive mixture of methane
throughout an area 600 feet wide and 2,500 long."
(Tr. 105}.
WFC relies on the testimony of its expert witness Donald
Mitchell.
As previously stated I credit the testimony of Mr. Jordan
and I find no evidence that he abused his discretion or authority.
In particular, Mr. Jordan after eight years inspecting the
mine was familiar with it. He found methane concentrations
outside the Kennedy stoppings.
(See Facts,! 15). He contacted
his superior and upon returning he detected a 2.2 methane level.
There were readings in excess of 9 percent when the tube was
aspirated. Behind the stoppings are numerous ignition sources
and Mr. Jordan was afraid for himself. The area of the concentrated methane leads directly to the mine fan.
Given these factors I conclude the inspector properly issued
his imminent danger order.
I am not persuaded by Mr. Mitchell's testimony that the inspector's methane measurements were inconclusive.
In short, on
the conditions Mr. Jordan found, he believed there were explosive
mixtures of methane behind the stoppings. Mr. Jordan's testimony

1122

in this respect was supported by Charles W. McGlothlin, Jr.,
Vice-President and General Manager of the Golden Eagle Mine.
Mr. McGlothlin, an experienced miner, testified he personally
investigated the facts.
{Tr. 533). While he believed there was
no ignition source at the Second South he admitted that "if there
had been an ignition source at the Second South" then he "would
have agreed that there was an imminent danger."
{Tr. 551).

IGNITION SOURCES IN SBCO~ SOUTH
The issues framed by the record relate to the likelihood of
a roof fall and whether such a roof fall in Second South would
cause an incendive spark.
The Commission has previously declined to rule whether the
Secretary may support an imminent danger order by showing that an
explosive accumulation of methane is present without proving a
specific ignition source, Island Creek Coal Company, ___ FMSHRC
____ ,VA 91-47-R slip op. 10 {March 3, 1993).
The Commission has continued to follow its ruling in
Rochester & Pittsburgh, supra, namely: an inspector must have
considerable discretion in issuing imminent danger orders. If
R&P is to have any meaning the Secretary need not prove that a
specific ignition source existed. Rather, the Secretary need
only prove a reasonable likelihood that the source is present.
The explosive mixture of methane has been discussed.
In addition, the prime mover of any ignition can be a roof
fall.
In this case David Huey, WFC's Manager of Operations,
located six roof falls on Exhibit C-4. The roof falls were all
in Second South inby crosscut 20, and behind the seals.
(Tr.
445).

Mr. Jordan further testified that behind the Kennedy
stoppings were interrupted tracks and trolley lines.
(See
portion of Ex. C-4 marked "track end"). In addition, behind the
stoppings there were a belt structure, mandoors and roof plates.
The record further evolves into issues of whether the rock
in the roof would cause an incendive spark. Some rock, under certain conditions, will cause an incendive spark. Others will
not.

Mr. Huey indicated the roof in Second South-contained only
shale which would not cause an incendive spark. Mr. Huey based
his opinion on a lithology. WFC's expert witness Mr. Mitchell
also relied on the core samples. Three different lithologies
were submitted by WFC.
(Ex. C-2, c-10 and C-11).
I am not persuaded by the lithologies. They show an obvious
mix of rock of various thickness. Exhibit c-2 (from roof

1123

I

upwards) shows 10' siltstone; 2.8' carbon shale; 8.9' Maxwell
seam; 13.3 shale and 10' of siltstone sandstone.
Exhibit c-10 shows 54' shale, 3' of carbonaceous shale, 5'
Maxwell seam, 1' shale and 23' of sandy shale.
Exhibit C-11 shows on drill hole 234 siltstone (unstated
amount); 3' shale; 10.5 of Maxwell seam; .5' carbonaceous shale;
2' carbonaceous siltstone and 4' shale. The GE service hole on
Exhibit c-11 shows 8' Maxwell seam, 33' mudstone and 10' sandstone.
I am further unpersuaded by Mr. Huey's testimony. He
initially identified the lithographic description in C-2 as
(Tr. 283). But he then repudiated the exhibit stating
accurate.
there was not "ten foot of sandstone."
(Tr. 284).

Mr. Mitchell, WFC's expert, also testified that based on the
lithology provided by WFC there was no sandstone or other material in the roof that could cause an incendive spark. Both witnesses Huey and Mitchell were contradicted by Exhibit c-2.
I agree with the testimony of MSHA representative Joseph
Pavlovich. In reviewing Exhibits c-2, C-10 and c-11 he indicated
he would probably have been more afraid than he was [if he had
seen the lithologies].
(Tr. 887). He went on to explain that
with the varying roof types throughout the mine, there was no way
to tell what may have been in the areas behind the stoppings.
With the lithologies so different "you could have anything in
there."
(Tr. 888).

Mr. Jordan recalled seeing ignition sources in Second South.
Such sources consisted of 3 by 3 mandoors, belt and track trolleys, trolley hangers and hanging trolley wires, roof bolts, roof
plates and mats. Mr. Jordan didn't know of any occasion when
they had been removed. An ignition source would be an interaction of a roof fall or roof support fall striking a rail.
(Tr.
110).
Mr. Mitchell's testimony sought to rebut the Secretary's
evidence. However, I am not persuaded. To a degree his evidence
supports Mr. Jordan. For example "we heard testimony regarding
mats and steel bolts."
(Tr. 618). But according to Mr. Mitchell
these have not been demonstrated to present a frictional ignition
hazard except under three circumstances. One when the bolt is
torn apart ••• at the point of breakage you might form incendive
sparks.
(Tr. 619). Further, if any portion of the bolt is
siliconized steel or coated with aluminum and it strikes sandstone on the floor there is a potential for the formation of
incendive sparks.
(Tr. 619, 620). The latter two circumstances
involve aluminum which is not shown to be present in Second South
but the initial scenario could occur with a roof fall.

1124

A further source of frictional ignition {and a concern to
Mr. Mitchell) was aluminum pop cans.
If a can slid across dry
rusty steel, the result could be the "possible formation of
incendive sparks."
(Tr. 624). However, Mr. Mitchell regarded
this as highly improbable (due to the accumulation of water) .
While Mr. Mitchell's testimony concerned First Right it is
relevant to Second South. In sum, the Judge concludes WFC's
expert supports the Secretary's position relating to ignition
sources.

Mr. Huey marked on Exhibit C-4 the "track end." WFC's
manager was in a position to know that the trolley wire was in
place and that there was "metal track actually going from the
track end to the stopping."
(Tr. 403). In sum, there was
considerable metal in Second South behind the stoppings.
In his testimony Mr. Mitchell further rejected the potential
for friction ignition from sandstone rubbing against sandstone.
He based his opinion on the insufficient presence of pezioelectric quartz.
(Tr. 926-927, 616, 666, 827, 924, 926).
Further,
there was an unlikely occurrence of a roof fall past the breakage
point.
(Tr. 617, 669-670, 771-772, 833, 926-928, 751-752, 966).
Finally, there was an absence of high strain on sandstone.
(Tr.
934).
The inspector did not rely on a sandstone against sandstone
friction ignition. But in any event I credit the contrary testimony of William A. Bruce as well as the Nagy and Kawenski
report.
(Ex. C-12). The report, a scientific approach deals
with "Frictional Ignition of Gas During a Roof Fall." The report
states in part that ignition by sandstone on sandstone with a
pressure of 50 pounds could easily produce an incendive spark.

Mr. Mitchell, WFC's expert states he initiated the Nagy and
Kawenski report but after returning from Indonesia there "were
quite a number of problems that we had with this report that we
needed to discuss."
(Tr. 964). Mr. Mitchell does not agree with
the conclusions in the Nagy/Kawenski report.
(Tr. 964-965).
I credit the report, supported by Mr. Bruce's testimony, as
i t is a scientific approach to the frictional ignition of gas. A
portion of the report (Ex. C-12) reads as follows:
SUMMARY

Limited experiments in the laboratory with
specimens of mine rock from a Virginia bituminous coal mine indicate that natural gasair mixtures can be ignited by sparks
generated by rubbing friction of sandstone
against sandstone, shale against sandstone,

1125

sandstone against (roof-bolt) steel, and
shale against steel. Such sparks, generated
during a roof fall, may have initiated a
recent gas explosion in this Virginia mine,
although this cannot be stated with
certainty.
No ignitions of gas were produced by sparks
or heat generated by impact friction between
mine rocks or steel, during tension breaks of
roof bolts, or by pull tests of roof bolts
through their washers and roof plate. However, this negative result of limited experiments does not preclude the possibility of
gas being ignited by these conditions.
The exact mechanism of ignition of gas by
frictional sparks is unknown; it has been
shown by other investigators that:
1. The visibility of sparks is not a criterion for ignition, as many highly luminous
sparks are nonincendive.
2. The ignition frequency increases with
impact energy and material hardness.
3. The impinging of sparks on an
obstruction increases their incendivity.
4. The gas concentration is a parameter;
for methane, a concentration of 6 to 7
percent gas appears to be most easily ignited
by frictional sparks.
5. In impact friction (aluminum striking
steel) the rustiness of the steel (thermit
reaction) and angle of impact are factors.
The ignition frequency increases with
relative humidity.
6. Among rocks, the quartz-bearing
sandstones present the greatest frictional
ignition hazard; shale is less dangerous than
sandstone; and pyrite inclusions generally
increase incendivity.
7. Metal-to-metal contacts generally
produce less incendive sparks than metal-torock contacts. The reportedly "nonsparking"
metals produce incendive sparks under some
conditions.
1126

Table 2 of the report involved contact surfaces that produced gas ignition by rubbing friction. This involved a stationary specimen and a rotating specimen at minimum load and
minimum speed.
Some of the conclusions stated in the report follow:
According to these experiments, rubbing
friction sparks from the sandstone-sandstone
contact were the most incendive. Ignition
was obtained with a load as light as 12
pounds (at a velocity of 34 f.p.s.) and at a
speed of 12 f.p.s. (at a 50-pound load). A
rock would attain a velocity of 12 f.p.s.
during a free fall of 2.2 feet.
Ignitions
were obtained readily by sparks from the
shale-sandstone contact and somewhat less
easily from sandstone and shale in contact
with roof-bolt steel. An overall ignition
frequency of 19/119 was obtained for the
sandstone-sandstone contact. This is
numerically less than the frequencies
obtained for the shale-sandstone (21/66) and
sandstone-steel (70/315) contacts; however,
both the load and speeds were varied, and a
greater number of experiments were made with
the two sandstones in contact at limiting
conditions required for ignition than with
the other materials. The overall ignition
frequency for the shale-roof bolt contact was
5/35. In these experiments a shower of
sparks was visible whether ignition occurred
or not. Gas ignition occurred 1 to 30
seconds after contact between the specimens.
One of the conclusions reached in the report was:
Because of incendive sparks can be produced
so readily and with so little expenditure of
energy, it is virtually impossible to eliminate them in coal mining. Gas ignitions by
this source must be prevented by other measures. One of the most effective measures is
adequate ventilation to prevent an accumulation of gas.
WFC further argues that MSHA's actions were inconsistent
with a belief in the existence of an imminent danger in Second
South.
The Judge originally vacated the Second south Order because
of the inspector's actions in permitting 113 miners to construct
1127

permanent seals in close proximity to the Kennedy stoppings and
not requiring that the atmosphere to be stabilized.
The Commission in remanding the case ruled the method of
abatement is left to the informed discretion of the designated
representative of the Secretary. Further some imminently dangerous conditions may require abatement that poses a degree of
unavoidable risk to the miners, 14 FMSHRC at 1291.
WFC finally claims that MSHA abused its discretion by
leaving the order in effect for 15 days when an imminent danger
no longer existed.
As stated above the method of abatement is left to the
informed discretion of the designated representative of the
Secretary.
SIGNIFICANT AND SUBSTANTIAL
A violation is properly designated as being of an S&S nature
"if, based on the particular facts surrounding that violation,
there exists a reasonable likelihood that the hazard contributed
to will result in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
(April 1981).
In Mathies Coal Co., 6 FMSHRC 1 (January 1984),
the Commission further explained.
In order to establish that a violation of a
mandatory standard is significant and substantial under National Gypsum the secretary
must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete
safety hazard -- that is, a measure of danger
to safety -- contributed to by the violation;
(3) a reasonable likelihood that the hazard
contributed to will result in an injury; and
(4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
·
6 FMSHRC at 3-4. See also Austin Power Co. v. Secretary 861 F.2d
99, 104-05 (5th Cir. 1988) aff'g 9 FMSHRC 2015, 2021 (December
1987) (Approving Mathies criteria).
On the basis of the Mathies formulation the record establishes an underlying violation of 30 C.F.R. S 75.316, the ventilation regulation. WFC failed to erect explosion proof seals. A
measure of danger, i.e. the possibility of an explosion was contributed to by the violation. There was a reasonable likelihood
that the hazard would result in an injury. Finally, an explosion
would cause a fatality or a reasonably serious injury.

1128

For the foregoing reasons the S&S allegations should be
affirmed.
CIVIL PENALTY
Section 110(i) of the Mine Act mandates consideration of six
criteria in assessing appropriate civil penalties.
The record establishes that the Golden Eagle Mine had 132
hourly employees and 26 salaried employees. It mines approximately 900,000 tons of coal annually. It should be considered a
medium size operator.
There is no evidence as to WFC's financial condition.
Therefore, in the absence of facts to the contrary I find the
payment of penalties will not cause WFC to discontinue its
business. Buffalo Mining co., 21BMA 226 (1973) and Associated
Drilling Inc., 31BMA 164 (1974).
There is no evidence of WFC's history of previous
violations.
The operator was negligent since it had ten months to erect
the explosion proof seals.
The gravity of the violation is high since an explosion
could propagate through the mine since Kennedy stoppings are not
explosion proof.
·
WFC demonstrated statutory good faith since it abated the
violative condition.
The penalty of $1,000.00 set forth in the order of this
decision is appropriate in consideration of the penalty criteria.
ORDER MO. 3241331

This order was issued on February 16, 1990, three days after
Mr. Jordan's order in Second South.
The order alleged a condition of imminent danger existed.
The order was accompanied by citation No. 3241332 issued under
section 104(a) of the Act.
Order No. 3241331 reads as follows:
An unknown mixture of methane/air could not
be determined at the Kennedy stopping constructed at #1, #2, and #3 entries of 1 Right due to [sic. the condition] that there
was no means of testing or detecting what
mixture was behind the stoppings. #1, #2,

1129

and #3 were being ventilated with the use of
a line curtain from #7 right return entry of
3d North. When No. 2 entry stopping was not
ventilated methane of 10% plus volume percentum was detected 12 inches from the roof
and face of the stopping with the use of a
permissible hand held methane detector.
Bottle samples were collected at leakage
areas of the stopping to substantiate the
order.
SUMMARY OF SECRETARY'S EVIDENCE
FINDINGS OF FACT

1. Anthony Duran, an MSHA surface inspector, has been
employed by MSHA for 13 years.
(Tr. 136, 137).
2. He has received training as a coal mine inspector.
is experienced in coal mining.
(Tr. 137-139).
3.
Mine.

He

He spends two quarters of the year at the Golden Eagle
(Tr. 139).

4. On February 13 he was part of the inspection team with
Mr. Jordan.
(Tr. 140).
5. On February 13 he was called to Second South but took no
methane readings. However, he was involved in discussions with
regard to the withdrawal order issued on Second South.
(Tr.
141).
6. He agreed with Mr. Jordan's opinion that there was an
imminent danger in Second South.
(Tr. 141).
7. On February 16 he was monitoring the seals being put up
in Second South. He went to First Right because he was told they
were installing seals at that location.
(Tr. 141).
8. At the time Mr. Jordan's order was in effect for the
entire mine.
(Tr. 141, 142).
9. Mr. Duran was accompanied by Mr. Perko, WFC's safety
foreman, Mr. Perko, confirmed that they were erecting the seals
in First Right.
(Tr. 142).
10.

Six men and a foreman were installing seals.

(Tr. 143).

11. Mr. Duran initially checked for methane at the Kennedy
stoppings.
(Tr. 143).
12. The methane was measured with an MX-240 hand-held
methane detector.
(Tr. 143, Ex. C-1).

1130

13. When measuring for methane inspectors try not to let the
monitor exceed 10 percent because such a level can burn it out or
knock it out of calibration.
(Tr. 144).
14. The Kennedy stoppings were in place at First Right when
Mr. Duran arrived.
(Tr. 144).
15. The methane readings varied at different locations.
(Tr. 145).
16.
In Mr. Duran's opinion the methane readings indicated
there was an unknown mixture of methane and air behind the
stoppings.
(Tr. 145).
17. A five percent methane concentration indicated you're
getting to the point of an explosive range. He considered there
was a possibility of an explosion.
(Tr. 146).
18. He thought an explosion was a possibility because a roof
fall could have ignited whatever methane was behind the Kennedy
stoppings.
(Tr. 146, 147).
19. An explosion behind the Kennedy ~toppings would propagate into the working area.
(Tr. 147).
20. Mr. Duran was unsuccessful in taking an air bottle sample in the No. 3 stoppings.
21. Mr. Perko went in and checked the tubing which was
backed up against the Kennedy. Mr. Perk~noted a reading of 1.92
percent methane from one corner to the other. This measurement
was in an area between the Kennedy and th~ seal that was being
constructed.
(Tr. 148).
22. A copper tube was inserted but they could not get an air
reading.
(Tr. 149).

23. They then went to the No. 2 Kennedy stopping and "popped
the bottle" with two samples.
24. He then measured methane at the No. 1 stopping.
149, 150).

(Tr.

25. When you pop it the bottle soaks' in the methane (or
whatever is there), then you cap it with~ small ·plastic wax cap.
(Tr. 150).

26. They then went back to No. 3 with two big air bottles
and two little ones.
(Tr. 150).
27. After the bottle samples were taken Mr. Duran informed
Mr. Perko there was an unknown mixture of~methane. (Tr. 150).

1131

28. Mr. Duran then issued a 107(a) order because there was a
possibility of an imminent danger behind the Kennedys.
(Tr.
151).
29.
source.

In addition to methane there must also be an ignition
(Tr. 151, 152).

30. In Mr. Duran's opinion a roof fall could be an ignition
source. Some of the roof bolts go through the plate and it
causes a spark prior to falling or even when it falls.
Steel
against steel can cause a spark.
(Tr. 152).
31. The First Right is a gassy section.
an explosion due to methane.
(Tr. 153).

The hazard would be

32. First Right was not similar to Second South because in
Second South they were able to sample with air bottles; also
there was a surveillance tube and a vent pipe was available for
samples.
(Tr. 154) •
33. When Mr. Duran was at First Right there was no means to
ascertain what mixture was behind the seals, other than what was
leaking from the Kennedys.
(Tr. 154).
34. However, he took it for an imminent danger because he
didn't know what was behind the Kennedys other than what was on
the outby end.
(Tr. 154).
35. Mr. Duran was afraid for the safety of all in the area.
(Tr. 155).
36. There were defective curtains in front of the stoppings.
They allow the return air to sweep the face of the Kennedys.
37. To Mr. Duran's knowledge the area behind the Kennedys
was not ventilated. In addition, the erection of the explosion
proof seals had not been completed.
(Tr. 156).
38. If an imminent danger exists it could cause death or
physical harm if mining proceeds and the hazardous condition is
not eliminated.
39. Someone could have been seriously injured or killed as
the result of an explosion.
(Tr. 157).
40. Mr. Duran indicated an explosion was a possibility.
(Tr. 157, 158).
41. The imminence of the situation was because Mr. Duran
didn't know what the methane mixture was behind the stoppings.
(Tr. 158).
1132

42. Mr. Duran then went to surface and he called his supervisor, Rick Phelps. He was then told to write the 107(a) imminent danger order.
(Tr. 160). The miners came out from underground.
43. The 107(a) order was terminated after the explosion
proof seals were completed.
(Tr. 161).
44. After the seals were erected a sample taken with a
Rilken.
It indicated the methane concentration was 80 percent;
this was behind the No. 3 shield.
(Tr. 161).
45. Mr. Duran identified the instruction manual for the
Model MX-240, Combination Methane and Oxygen Monitor.
(Tr. 164,
Ex. C-1).
46. Mr. Duran has been trained in the methanometer and it
requires calibration.
(Tr. 166).
47. When the MX-240 detects methane in the excess of 4
percent it has to be recalibrated.
(Tr. 167).
48. Mr. Duran recalibrated his instrument before he went
underground on the 16th; he again recalibrated it when he came
out.
(Tr. 168).
DISCUSSION AND FURTHER FINDINGS OF FACT
The methane readings in connection with Order No. 3241331
are inadequate because the ventilation was disturbed; further,
the hand-held methane monitor was not properly recalibrated.

Mr. Duran testified he found methane concentrations of 1.9
to 2 percent at the Kennedy stoppings. At one stopping in close
proximity to a small hole, he found an 8 percent concentration.
(Tr. 143, 145). He also took six bottle samples.
(Ex. S-7).
The uncontradicted testimony of witness Frank Perko, WFC's
safety inspector, indicated that Mr. Duran disturbed the ventilation along the Kennedy stoppings then he measured for methane.
tion.

The record indicates Mr. Duran knowingly made the disrup(Tr. 505-509, 515-518).

Specifically, there was line brattice in the First Right
area. Each entry had brattice up to the seal. The purpose of
the brattice was to ventilate the stoppings.
(Tr. 504). Mr.
Duran took readings around the partially construed seal.
(Tr.
504). After Mr. Duran left the No.3 entry he went to the No. 2
entry. Mr. Perko followed in two to five minutes.
In the No. 2
entry he noticed the brattice had been brought back to the rib
line in the main No. 7 entry.
(Tr. 505-506). Mr. Duran made

1133

several checks. Mr. Perko mentioned that the brattice should be
brought in to continue the ventilation along the stopping. At
that time Mr. Duran said "Wait a minute. I want to take some
checks without any ventilation in here." The miner holding the
brattice said:
"One of you is telling me to take it out; one is
telling me to bring it back; the other one is telling me to take
it back out.
I wish someone would make up their mind." Mr.
Perko thought it should be ventilated "so we don't create a condition."
(Tr. 506, 507).
Mr. Perko also thought Mr. Duran was taking his readings too
close to the face.
(Tr. 507).
[Compare the requirements of 30
C.F.R. S 75.309-2.]
In the No. 1 entry Mr. Duran pulled back the curtain enough
to disrupt the ventilation. After taking his readings he put the
curtain back up.
(Tr. 508, 509) •
When he was in the No. 1 entry he said "We'll do it as we
did in No. 2. 11
(Tr. 515). When Mr. Perko said we'd better bring
the brattice in, Mr. Duran said "No, no, wait a minute. I want
to take the readings -- take readings along this stopping without
any ventilation."
(Tr. 515, 516). He [Mr. Duran] did not explain why he wanted to take readings without ventilation.
(Tr.
516).
I find Mr. Perko's testimony to be credible. A company
safety foreman accompanying a federal inspector would particularly observe the inspector's activities. Further, Mr. Perko's evidence is uncontroverted.
In support of an explosive mixture the Secretary also
offered a laboratory analysis of the air bottles taken by Mr.
Duran.
At the hearing the Judge questioned the proof adduced by
Exhibit S-7.
(Tr. 183). However, Mr. Duran identified sample
A5500 as well as Column 6 as "no sample" number. Sample A5500
shows a concentration of 13.76 percent methane and the "no
sample" shows a concentration of 1.35 percent.·
These readings may be correct but on the present state of
the record it is not possible to know how the samples may have
been skewed by any disturbed ventilation.
The Commission has previously invalidated a citation because
the inspector intentionally skewed the air readings, Freeman
United Coal Co., 11 FMSHRC 161, 166 (1989).

Mr. Duran's methane measurements with the hand-held monitor
are further suspect. It is uncontroverted that Mr. Duran cali-

1134

brated his monitor when he went into the mine and again when he
came out.
On the other hand, the manufacturer's specifications provide
for more frequent calibration. The manual states:
Methane Measuring Range: 0 to 4% methane per
Code of Federal Regulations. Title 30, Part
22.7. The instrument must be recalibrated
after displaying a methane concentration
above 4%.
(Ex. C-1 at 4).
There was no expert testimony offered by either party concerning the effect of a failure to recalibrate. However, on the
state of the record I give zero weight to any methane concentrations measured by the MX 240 Combination Methane/Oxygen monitor.
The crucial question in connection with Order No. 3241331 is
whether the inspector abused his discretion or authority. An
abuse of discretion may be broadly defined to include errors of
law. See generally Butz v. Glover Livestock Commission Co. 411
u.s. 182, 185-186 (1973); NL Industries, Inc. v. Department of
Transportation 901 F.2d 141, 144 (D.C. Cir. 1990). U.S. v. u.s.
currency, in the amount of $103,387.27, 863 F.2d 555, 561 (7th
Cir. 1988).
I conclude the disturbance of the ventilation in the mine
constituted such an abuse. Further, the inspector's investigation did not sufficiently support the imminent danger order or
the citation. The order and the citation should be vacated.
Accordingly, for the reasons stated herein I enter the
following:
ORDER
1. Order No. 2930784 is AFFIRMED and the contest of the
order is DISMISSED.
2. citation No. 2930785 is AFFIRMED and the contest of the
citation is DISMISSED and a civil penalty of $1,000.00 is
ASSESSED.
3. Order No. 3241331 is VACATED and the contest of the
Order is SUSTAINED.

1135

4. Citation No. 3241332 is VACATED and the contest of the
citation is SUSTAINED.

Judge

Distribution:
Timothy M. Biddle, Esq., CRO~ELL & MORING, 1001 Pennsylvania
Ave., N.W., Washington, D.C. 20004 (Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
co 80294 (Certified Mail)

sh

1136

f?ECEIVED
at Denver, Coloradc

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

SEP 1 8 1992

FEDERAL MINE SAFETY ,._~!) HEA
REVIEW COMMiSS~~

)

WYOMING FUEL COMPANY,

)

REVIEW AND CONTEST
PROCEEDINGS

)

Contestant,

)
)

v.

)
)

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

)
)
)

Respondent.

)
)
)
)
)
)
)
)
)

Docket No. WEST 90-112-R
Order No. 2930784
Docket No. WEST 90-113-R
Citation No. 2930785
Docket No. WEST 90-114-R
Order No. 3241331
Docket No. WEST 90-115-R
Citation No. 3241332
Docket No. WEST 90-116-R
Citation No. 3241333
Golden Eagle Mine

------------------------------>
WYOMING FUEL COMPANY'S RESPONSE
TO 'l."HE ADMINISTRATIVE LAW JUDGE'S ORDER AFTER REHAHD
On September 4, 1992, Administrative Law Judge John J. Morris
issued an Order After Remand in the above-captioned proceedings
directing Wyoming Fuel Company ("WFC") to state facts
demonstrating what legally recognizable prejudice it may suffer if
Citation Nos. 2930785 and 3241332 are modified to allege
violations of 30 C.F.R. S 75.316 rather than 30 C.F.R.
S 75.329-1(a).

Pursuant to Judge Morris's Order, WFC states as

follows a
According to the Commission's Decision in this case, if WFC
shows that it would suffer "legally recognizable prejudice if
Citation Nos. 2930785 and 3241332 were modified as proposed by the
Secretary • • • the citations shall remain unmodified and [the

1137

- 2 -

Judge's] holding vacating them . . • shall stand."

Wyoming Fuel

Co., Docket Nos. WEST 92-112-R et al., slip op. at 9 (Aug. 28,
1992).

The Commission suggests that the Judge seek guidance in

Rule 15(a) of the Federal Rules of Civil Procedure and case law
thereunder.

Id.

The Supreme Court has held that although a liberal standard
governs a court's discretion in granting leave to a party to amend
its pleadings under Rule 15(a), factors such as "undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of
the amendment, [or] futility of amendment" militate against
granting a motion to amend pleadings.
178, 182 (1962).

Foman v. Davis, 371 u.s.

At issue here is whether the Secretary's efforts

to amend Citation Nos. 2930785 and 3241332 would unduly prejudice
WFC.

Of particular relevance here, courts have found amendments

offered under Rule 15(a) unduly prejudicial where the movant
substantially changes the theory of his case by the amended
pleading, and does so in such a way that would require the
opponent to engage in significant new preparation.

See, ~,

Troxel Manufacturing Co. v. Schwinn Bicycle Co., 489 F.2d 968, 971
(6th Cir. 1973) ("[T]o put Schwinn through the time and expense of
continued litigation on a new theory, with the possibility of
additional discovery, would be manifestly unfair and unduly
prejudicial"), cert. denied, 416 U.S. 939 (1974); Conroy Datsun
Ltd. v. Nissan Motor Corp., 506 F. Supp. 1051, 1054 (N.D. Ill.
1980) (leave to amend should be denied where the amendment would
1138

- 3 -

bring new and separate claims, and would necessitate expensive and
time consuming new fact development).!/
Factual Background.
WFC was prejudiced by the Secretary's modifications to the
citations issued on February 13 and 16, 1990.

The prejudice to

WFC can best be understood in the context of the events that were
occurring during that period.
\

On February 13, 1990, WFC's Golden Eagle Mine was closed upon
the issuance of a S 107(a) order by an MSHA inspector.

At the

same time the order was issued, a S 104(a) citation alleging a
violation of 30 C.F.R. S 75.329-l(a) was also issued.

The

condition cited as violative of S 75.329-l(a) was, in pari
materia, that an area of the Mine was neither sealed nor
ventilated.

Although no abatement time was specified on the

citation, the citation was abated on February 16, 1990.
On February 16, 1990, another S 107(a) order was issued at
the Mine accompanied by another S 104(a) citation alleging a
violation of 30 C.F.R. S 75.329-1(a).

That citation, like the one

issued on February 13, 1990, alleged that an area of the Mine was
neither sealed nor ventilated in violation of S 75.329-1(a).

That

citation was abated on February 19, 1990.
In the week that passed between the issuance of the first
order21 and February 20, 1990, when the Notices of Contest and
Motion for Expedited Hearing were filed by WFC, the company and

1/
2/

See generally 6 Wright, Miller & Kane, Federal Practice and
ProcedureS 1487 at 623 & n.9 (1990).
Order No. 2930784, issued February 13, 1990, remained in
effect until February 28, 1990.
1139

- 4 -

its lawyers expended considerable time and resources in an effort
to convince MSHA officials that no violation of S 75.329-1(a) had
occurred and to get the Golden Eagle Mine reopened.

When it

became apparent that local MSHA officials would not reopen the
Mine and that litigation would be necessary, WFC counsel began
preparing for expedited trial.

WFC counsel prepared pleadings,

interviewed witnesses, hired an expert, Donald w. Mitchell,
travelled to the area of the Mine near Trinidad, Colorado, and
prepared exhibits.

All of these efforts were aimed at addressing

the allegations contained in the S 107(a) orders and the citations
alleging violations of S 75.329-1(a).
By February 23, 1990, in anticipation of an expedited
hearing, WFC's counsel filed a witness list and an extensive list
of exhibits; on that same day WFC's counsel appeared before Judge
Lasher and argued the need for an expedited hearing.

WFC's motion

for an expedited hearing was denied by Judge Lasher.

On

February 26, 1990, WFC's counsel filed a request that a hearing
date be set based on the •forthwith• requirement in S 107(e) of
the Mine Act.

On February 27, 1990, WFC's counsel recast that

request to a Motion for Hearing Schedule and the next day filed a
brief in support of that motion.

On March 1, 1990, Judge Morris

was assigned the cases; on March 2, Judge Morris· entered an Order
setting a hearing date for March 12, 1990.

At the request of

Secretary's counsel, that Order was amended on March 5, 1990, to
reschedule the hearing for March 13, 1990.
That was the procedural posture of these cases when, on
March 6, 1990, the Secretary prepared modifications to both of the
1140

- 5 -

citations alleging violations of S 75.329-1(a), changing
altogether both (1) the description of the alleged violation and
(2) the regulation allegedly violated.

Each of the modified

descriptions of the alleged violations read as follows&
Based upon the fact that the area [2nd South and
1 Right] was not properly sealed and the
stopping[s] in use as seals were not constructed as
explosion proof seals as required by the approved
ventilation system & methane & dust control plan[,]
page 17, sketch 13, dated May 10, 1989[,] i.e.
specifications as required for explosion proof
seals by 12-18-89.
The modifications then changed the regulation allegedly violated
(as listed in section 9.C. of MSHA Form 7000-3) to 30 C.F.R.

s 75.316. 31
These modifications were apparently prepared four working
days before trial was set to begin.

Moreover, the modifications

were not given to WFC but instead were served only by mail and not
received by WFC until March 9, 1990, one working day before trial.
Affidavit of Rick Caller at, 2 (attached as Exhibit A).

By that

time, WFC and it counsel had already met with and prepared its
witnesses for hearing on the two imminent danger orders, a
citation which did not cite any regulation (Citation No. 3241333),
and the two citations at issue here alleging violations of
S 75.329-1(a).

Because it had hoped for an expedited proceeding

in late February, WFC had already prepared its exhibits and
identified them to the Secretary's counsel, and had already

3/

Prior to March 9, 1990, the Secretary's inspectors had not
alerted WFC to any alleged violations of the Golden Eagle
ventilation plan.
1141

- 6 -

presented several written and oral arguments to Judge Lasher
regarding expedition of these cases for hearing.
On March 9, however, WFC discovered that it had a weekend and
a Monday to prepare for a hearing on two entirely new allegations,
never even mentioned during several weeks of intense litigation
preparation and negotiation.

As a result, WFC counsel was faced

with restructuring the company's evidence, changing its witnesses
and preparing new ones, redirecting and obtaining a new opinion
from its expert and then preparing him for trial on the new issue,
and doing the legal research necessary to structure a presentation
congruent with the holdings in the many cases at the Commission
and in the federal courts dealing with ventilation plan
interpretations.

WFC's other option -- to start over and ask for

a delay of the hearing after fighting hard for an expedited
hearing for weeks -- was not acceptable.
WFC had the right to expect that after three weeks of active
advocacy on the part of the Secretary's counsel in these cases,
the charges (on which all else is based) would have been fixed
well before March 9, 1990.
WPC Would Have Been Prejudiced if the Secretary had Been
Permitted ~ Modify the Citation.
The Commission remanded this matter to the presiding Judge
•for consideration of whether WFC would suffer legally
recognizable prejudice if Citation Nos. 2930785 and 3241332 were
modified as proposed by the Secretary.•
9.

Wyoming Fuel, slip op. at

With respect to whether the threat of prejudice is sufficient

to preclude allowing the Secretary to switch her charges at the
last moment by modifying the citations, Wright & Miller collect
1142

- 7 -

Rule 15(a) cases showing that the courts "consider the position of
both parties and the effect the request will have on them • • •
[including] the hardship to the moving party if leave to amend is
denied, the reasons for the moving party failing to include the
material to be added in the original pleadings and the injustice
resulting to the party opposing [the amendment]." 41

Accordingly,

WFC suggests that the respective positions of Secretary and WFC be
evaluated as of March 9, 1990, when WFC received the
modifications.
On March 9, 1990, when the modifications were received by
WFC, MSHA's position was as follows:
The citations charging a violation of
S 75.329-1(a) had been issued to WFC three
weeks earlier (on February 13 and 16, 1990).
During the three weeks prior to the issuance
of the modifications, the conditions that had
occasioned the issuance of the citations had
not changed; no new facts had come to light to
require or justify the modifications.
During that three-week period, all concerned
were in frequent -- almost daily -- contact as
WFC tried to get its mine reopened and,
failing that, to obtain an expedited hearing
at the Commission.
During that three-week period, all concerned
were focused on the citations and imminent
danger orders ~ issued.
MSHA knew WFC wanted an expedited hearing and
that it was preparing for trial of, inter
alia, the S 75.329-1(a) allegations contained
in the citations.
From written pleadings filed by WFC's counsel
before the modifications were issued, MSHA was
aware of WFC's defenses to the citations

4/

6 Wright, Miller & Kane, Federal Practice and Procedure
S 1487 at 621, 623 & n.7 (1990).
1143

- 8 -

alleging violations of S 75.329-l(a) and, in
fact, knew the witnesses and exhibits WFC
intended to offer at trial.
Thus, the position of MSHA when the modifications were issued
was that of a fully informed agency which had brought charges
against WFC based on its considered and expert view that
S 75.329-l(a) had been violated and with knowledge of WFC's
position, its defenses, both legal and factual, and the witnesses
and exhibits it intended to offer at trial in support of its
position.

Moreover, MSHA was well aware.of the provisions of

WFC's ventilation plan and can be presumed to have evaluated the
conditions cited by the inspector against WFC's ventilation plan
before citing WFC for allegedly violating S 75.329-l(a) or, at the
very least, very shortly thereafter.

In short, well before

March 6, 1990, when MSHA decided to charge WFC with violating the
Golden Eagle Mine ventilation plan, the agency was fully aware of
and conversant with the plan and how it applied to the conditions
in the Mine on February 13 and 16, 1990.

See Jordan v. County of

Los Angeles, 669 F.2d 1311, 1324 (9th Cir.) ("Where the party
seeking amendment knows or should know of the facts upon which the
amendment is based but fails to include them in the original
complaint, the motion to amend may be denied"), vacated on other
grounds, 459 U.S. 810 (1982).
On March 9, 1990, when the modifications were received, WFC's
position was as follows&
WFC had been trying desperately -- over the
vociferous objections of MSHA's counsel -- to

1144

- 9 -

obtain an expedited hearing after it filed its
Notices of Contest on February 20, 1990.5/
Anticipating a rapid hearing, WFC conducted
its factual investigation, identified and
prepared witnesses, retained an expert to
testify in its support, and prepared exhibits
for trial -- all before the modifications were
received.
On February 23, 1990, almost two weeks before
the modifications were received, WFC filed its
witness list and description of exhibits and
served MSHA's counsel with them.
In anticipation of trial, WFC's counsel had
performed legal research to construct the
arguments it intended to present at trial on
the S 75.329-1(a) issues.
After the modifications were issued, WFC was
faced with the prospect of having to scrap its
S 75.329-1(a) arguments and witnesses, and to
restructure its entire case on the citations
three days before trial was to begin.
Such restructuring would have involved dealing
with completely new and different factual and
legal issues arising in ventilation plan
cases. In other words, WFC would have had to
start all over again.
Such restructuring would have been further
complicated by the fact that all of WFC's
witnesses were located in the Trinidad,
Colorado area, a three-hour drive south of
Lakewood, where WFC's counsel was located.
Given these circumstances, WFC's counsel decided to reject
going to trial on the modifications and argued that they should
5/

In its effort to obtain an expedited hearing, between
February 20, 1990, and March 9, 1990 (when the modifications
were received), WFC's counsel had: called ALJs Cetti and
Lasher requesting an expedited hearing, filed a motion for an
expedited hearing, orally argued for an expedited hearing
before Judge Lasher, filed a motion to schedule hearing after
Judge Lasher denied the motion for expedited proceedings,
supported that motion with a brief, and finally obtained an
Order on March 2, 1990, setting the hearing for March 12,
1990 (the hearing actually began on March 13, 1990, at the
request of MSHA).
·
1145

- 10 -

not be permitted because the citations had already been
terminated, a position supported at the time by the case law,
including rulings of the presiding Judge.
~though

the Secretary's counsel argued at trial that the

modifications should be permitted inter alia, because the
Secretary's proof would be the same whether the charge was for a
violations of S 75.329-1(a) or S 75.316, see Wyoming Fuel, slip
op. at 4, the relevant focus should be on the effect of the
modifications on WFC and its defenses.

Genentech, Inc. v. Abbott

Laboratories, 127 F.R.D. 529, 530 (N.D. Cal. 1989) ("Of particular
concern [in determining whether an amendment is appropriate] is
avoiding prejudicial effects upon the nonmoving party"); Southwest
Marine, Inc. v. Campbell Indus., 616 F. Supp. 253, 256 (S.D. Cal.
1985) (prejudice to party opposing amendment is the "most
important consideration" in determining whether amendment is
appropriate), rev'd on other grounds, 796 F.2d 291 (9th Cir.
1986), cert. denied, 484 u.s. 895 (1987).

If the modifications

had been allowed and the Secretary had been permitted to offer
proof of a violation of the mine ventilation plan, a number of new
factual and legal issues would have been injected into the
proceeding with very little time for WFC to prepare its defenses.
Johnson v. Oroweat Foods Co., 785 F.2d 503, 510. (4th Cir. 1986)
(issue of prejudice with respect to amendment raising new legal
theories that require the gathering and analysis of facts not
already considered by the opposing party is particularly relevant
"where the amendment is offered shortly before or during trial");
Johnson v. Sales Consultants, Inc., 61 F.R.D. 369, ·371 (N.D• Ill.
1146

- 11 -

1973) (•The power of a court to permit amendments to a complaint
should not be used to completely change the theory of the case
after the case has been submitted to the Court on another theory
without some showing of lack of knowledge, mistake or inadvertence
or some change of conditions over which that party had no
knowledge or control").
In ventilation plan cases, there are a host of potential
issues not present in cases involving more specific standards,
such as whether the condition cited is covered by a plan
provision, whether the cited provision is specific enough to be
enforceable, whether other provisions of the plan may have a
bearing on the operator's actions in the particular circumstance,
and assuming a particular provision applies, what the meaning of
the words and phrases in that provision mean in the context of the
negotiations that resulted in the plan, common usage in the
industry, prior enforcement history connected with a particular
provision, and similar aids to construction.

See, ~, Jim

Walter Resources, Inc., 9 FMSHRC 903 (1987).

Here, had WFC been

forced to try a ventilation plan case, it would had to have
developed completely different evidence and witnesses, all in one
working day.
Simply stated, the time and expense necessary to prepare
defenses to a ventilation plan case beginning three days before a
trial otherwise complicated by additional issues involving two
separate imminent danger orders and a third citation would have
prejudiced WFC substantially -- particularly where WFC's only
recourse would have been to ask for more time to prepare but where
1147

- 12 -

that request would have been inconsistent with WFC's need for and
very substantial efforts to obtain an expedited hearing.
Finally, there is one additional factor bearing on the
disposition of this issue of which the presiding Judge should be
aware:

the Golden Eagle Mine was sold by WFC in May, 1991, to

another operator.

Most of the management officials who testified

at the March, 1990, hearing and who would have had the knowledge
necessary to provide testimony about the facts connected with the
allegations and the modifications to the citations are no longer
working for WFC and the company itself is no longer in the mining
business.

Moreover, most of those management officials are no

longer at the Golden Eagle Mine operated by its new owners and
some of them have moved away from the Trinidad area entirely.

It

would be extremely difficult for WFC to defend the allegations in
the modifications under these circumstances. 61

See, ~' Bruno

v. Cyprus Plateau Mining Corp., 10 FMSHRC 1649, 1652 (Nov. 1988)
(ALJ Morris) (untimely discrimination complaint dismissed because,
inter alia, "material legal prejudice exists:

the individuals

(who would have been key witnesses] are no longer with the
company"), aff'd, Bruno v. FMSHRC, No. 89-9509 (lOth Cir. June 8,
1989).

6/

Of course, we do not suggest that the Secretary is at fault
for this turn of events. Nevertheless, we feel compelled to
bring it to the Judge's attention to demonstrate that a trial
on the Secretary's modifications at this late· date is
practically impossible.
1148

- 13 -

Conclusion
Considering all these circumstances, both the facts and the
law demonstrate that WFC was prejudiced by the modifications
served by the Secretary on March 9, 1990.

Such prejudice was

"legally recognizable" so as to preclude the Secretary's attempt
to sustain -- and to force WFC to trial on -- the modifications at
issue.

Respectfully submitted,

CROWELL & MORING

1001 Pennsylvania Avenue, N.W.
washington, DC 20004-2505
(202} 624-2585
Attorneys for Wyoming Fuel Company
Dated:

September 17, 1992

1149

EXHIBIT A

1150

356 P02

ITM'B OJ' COLORADO

SEP 14 '92

11 : 37

•••

COUNTY or LAS ANIXA!

Ria P. CAt.J.OR, be1J\g cluly 11f'Orn, c1epoaes anel aay. a

1.

Durin; Karch 1190 1 I wa. Safety Director for wyoming

Fuel Comp4ny.

At th&t time, I was involved in 1fyominv Pual

Company' a challenge of two imminent cS.anqer orders and three
~lated citation. (Orde~ Hoe. 2930784

and 3241331J Citation Koe.

2930785, 3241332, and 3241333) in proceedings before the Federal

Kina S•fety and Health Review Commiaeion.
·2.

Durin; the early evening hours of March 9 1 li90, when I

chaekad the mail in f1fY office, I dis a overed that I had received
that day modification• to Citation Nos. 2930785 an~ 3241'3~.

Wb8

aodification• 1 which vera .iasuec1 ~ tha Kine Safety and Health

AdMinistration, were dated Karch 6, 1990.

3.

Citation •o•. 2930785 and 3241332 1 aa oriqinally 1••ued,

alleged violation. af 30 c.F.R. 1 ,5.329-l(a).
madifica~iona

of 30

tn the

I received on March 9, 1990, MSHA alleged violation•

c.r.a. t 75.318.

S-:3:1U2,

Sul:HicrJ.becl and ewom to before ae thi•

-~~
My e~isaion
eXpires 11-8-95.
,

1151

lrt/J. day ...ot

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Wyoming Fuel
Company's Response to the Administrative Law Judge's Order After
Remand was sent via Federal Express, this 17th day of September,
1992, to the following named person:
Carl c. Charneski, Esq.
Office of the Solicitor
u.s. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Thomas A. Stock

1152

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 161993
U.S. STEEL GROUP, MINNESOTA
ORE OPERATIONS,
Contestant

CONTEST PROCEEDINGS
Docket No. LAKE 92-247-RM
Order No. 4097164; 2/25/92

v.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Respondent
and
UNITED STEEL WORKERS OF
AMERICA, LOCAL 1938,
Miners

Docket No. LAKE 92-248-RM
Citation No. 4097166; 2/25/92
Docket No. LAKE 92-249-RM
Citation No. 4097167; 2/25/92

Minntac Plant

DECISION
Appearances:

Before:

Miguel J. Carmona, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois,
for Respondent;
William M. Tennant, General Attorney, U.S.Steel
Pittsburgh, Pennsylvania, for Contestant;
James Ranta, Representative, United Steel Workers
of America, Local 1938, for Miners.

Judge Barbour
STATEMENT OF THE CASE

In this proceeding arising under the Federal Mine Safety and
Health Act of 1977 {"Mine Act" or "Act"), 30 u.s.c. § 801 et
seq., u.s. Steel Group, Minnesota Ore Operations {"U.S. Steel")
contests the validity of an imminent danger order of withdrawal
issued pursuant to section 107{a) of the Act, 30 u.s.c. § 817{a),
and the citation for a violation of a mandatory safety standard
issued in association with the order pursuant to section 104(a)
of the Act, 30 u.s.c. § 814{a). In addition, u.s. Steel contests
the validity of two other section 104{a) citations. The order
and the citations were issued at u.s. Steel's Minntac Plant, a
taconite processing plant located in St. Louis County, Minnesota,
and they involve work done in the vicinity of the plant's primary
crusher on the morning of February 25, 1992.

1153

Pursuant to notice the proceeding was heard in Duluth,
Minnesota.• William M. Tennant represented u.s. Steel and Miguel
J. Carmona, represented the Secretary of Labor, Mining
Enforcement and Safety Administration ("MESA"). In addition, the
United Steelworkers of America, Local 1938 ("Steelworkers"),
sought and was granted party status. James Ranta represented the
Steelworkers.
With regard to the section 107(a) orderjsection 104(a)
citation, u.s. Steel contests the inspector's allegation that the
cited conditions constituted an imminent danger, the inspector's
finding that the same conditions constituted a violation of a
mandatory safety standard and the inspector's finding that the
violation was a significant and substantial contribution to a
mine safety hazard ("S&S" violation). With respect to one of the
two other section 104(a) citations, u.s. Steel challenges the
inspector's finding of a violation and his S&S finding and with
respect to the other, u.s. Steel challenges his finding of a
violation.
Following the receipt of the transcript, counsels submitted
helpful briefs.
DOCKET NO. LAKE 92-247-RM
ORDER/CITATION NO. 4097164, 2/25/92

Order/Citation No. 4097164 charges as follows:
Coarse Crusher - Step 2
The power was "on", and the step 2 primary
crusher hatches were not blocked against
inadvertent motions. One employee had been
working below the unsecured hatches,
suspended in a work basket (with two anchor
points), and hoisted through the hatches
utilizing a 15-ton capacity P&H bridge type
crane. All work at the No. 2 Course Crusher
shall be halted until persons are protected
from hazardous motion.

Due to an industrial accident in the area, the hearing had to be
suddenly and unexpectedly adjourned and reconvened at a location outside the
city. Had it not been for the diligence and cooperation of all involved -counsels, the representative of miners, the witnesses, and the reporter
this would not have been possible and the hearing would not have been
completed within the time originally allotted.

1154

Resp.•s Exh. 1. The order/citation further alleges that the
condition constituted an S&S violation on 30 C.F.R. § 56.14105. 2
THE SECRETARY'S WITNESSES
Arthur Toscano

Arthur J. Toscano, a metal and nonmetal Mine Safety and
Health ("MSHA") inspector since 1975, stated that on February 25,
1992, he went to the Minntac Plant to conduct an inspection as
part of an ongoing inspection by MSHA of the entire facility.
The inspection was in the morning, and during the inspection
Toscano was accompanied by miners• representative Tim Kangas and
by u.s. Steel safety engineer Robert Tomassoni. Tr. 15-16.
Toscano arrived at the mine at approximately 8:00 a.m.
Following an opening conference with Kangas and Tomassoni, during
which the group discussed what they would do during the course of
the day, the inspection party drove to the crusher building.
While on their way to the crusher site, Toscano testified that he
advised Tomassoni that he, Toscano, had received an MSHA policy
memorandum dealing with the hoisting of men in work baskets and
that "if [he] saw a man in a basket that didn't meet MSHA's
requirements, that [he] would issue a citation." Tr. 18.
The inspection party arrived at the crusher building at
approximately 9:40 a.m. As they entered the building Toscano
observed David Tacchio, a certified electrician, suspended in a
work basket. Tr. 19, 72-73. The basket was hanging from an
overhead traveling bridge-type crane. According to Toscano,
Tomassoni asked if Toscano wanted to inspect the basket and
Toscano said that he did. Tr. 19. Tomassoni shouting
instructions to the crane operator who brought the work basket to
the plant floor.
Id. Toscano testified that at this time his
sole concern was with the nature of the basket's cable
connections. Tr. 42.
Toscano testified that Tocchio unhooked his safety line and
left the basket. Tr. 44. Toscano was sure that while Tocchio
was in the basket he had on all of his personal safety equipment,
including a safety belt and line. Tr. 44. However, because the
basket had two cable connections rather than four, Toscano told
Tomassoni that he would issue a citation for a violation. He
2

Section 56.14105 requires in pertinent part that:
Repairs or maintenance of machinery or
equipment shall be performed only after
the power is off and the machinery or
equipment has been blocked against
hazardous motion.

1155

stated that he understood the MSHA policy memorandum and an
applicable mandatory safety standard (he did not specify which)
to require four connections. Tr. 20. 3
Toscano then spoke with Tocchio and the crane operator about
their training and the job they were about to do. They explained
to Toscano that they were in the process of preparing the crusher
for some electrical repair work. Tocchio also stated that prior
to Toscano arriving that morning, he already had done some
preliminary work inside the crusher. Tr. 23, see also Tr. 26.
Toscano testified that as he looked over the railing into
the crusher he noticed that two doors covering the crusher
(the "hatch doors") were open.
(They were in a verticle position
rather than lying in a horizontal position across the crusher
opening. Tr. 21.) The hatch doors were constructed of steel
plate, were approximately 12 feet by 15 feet in size and weighed
several tons each. Tr. 27, 29. Toscano stated that when closed,
the doors fitted together tightly.
Toscano also stated that the doors were opened and closed by
an electric winch that let out and retrieved wire ropes attached
to the doors by eyelets. Tr.28. The purpose of the doors was to
keep dust and noise from reaching the upper floors of the crusher
building. Tr. 55.
Upon further investigation Toscano discovered that the doors
were not de-energized or physically blocked against unintentional
motion. 4 Tr. 25-26. Toscano stated, "the electrical control
circuit was in the on or energized position and there was no
physical means of blocking those vertical hatch doors from
unintentionally being lowered in the work area." Id. To
physically block the hatch doors, u.s. Steel personnel usually
pinned each door with a steel bar. The bar kept the doors in an
upright position if the cables were activated for some reason or
if they failed.
Toscano did not know why the bars were missing.
Tr. 26-27. He feared that if someone were purposefully or
accidentally to activate the winch's start/stop buttons (and
Toscano stated that he noticed miners work gloves, a broom and
other materials used by miners within inches of the start/stop

3
The following day Toscano spoke with his supervisor and was
advised that two connections were acceptable to MSHA. Toscano told Tomassoni
about the error and did not issue a citation for two cable connections.
Tr. 20-21.

4

However, Toscano determined that the crusher was locked out and
that everything else that should have been blocked against motion was blocked.
Tr. 42.

1156

buttons) nothing would have prevented the hatch doors from moving
down into a closed position. Tr. 29. Toscano agreed, however,
that the start/stop buttons were probably spring loaded and that
if they were working properly they would only have activated the
winch so long as whatever contacted them remained in touch to
keep them engaged. Toscano was asked whether the buttons could
have stuck and he stated that if they were just touched they
probably would not have stuck. They would have had to be
"smashed." Tr. so. He also stated that he had not inspected the
buttons. Id., 67.
Toscano believed that he advised Tomassoni that he was
issuing a imminent danger order of withdrawal and that there
would be no work done in the area until the doors were deenergized and until they were physically blocked.
(Toscano did
not recall exactly what he told Tomassoni and the others who were
with Tomassoni when he issued the order, but whatever he said, he
did not actually write the order of withdrawal until later in the
afternoon.
Id.) Tr. 46.
Toscano testified that when he first observed Tocchio,
Tocchio was suspended about four or five feet above the floor and
was being moved toward the crusher cavity. Tr. 40-41. To reach
the work area Tocchio would have had to be lowered through the
upraised, unblocked, energized hatch doors. Tr. 30, 57.
After the order was issued, Tomassoni promptly ordered that
corrective measures be taken and the order was terminated when
u.s. Steel personnel placed steel bars through the eyelets
blocking all unintentional motion on the hatch doors and when
they also de-energized and electrically locked out the doors.
Tr. 38.
Toscano stated that after the order was issued he determined
that when preliminary work had been done on the crusher earlier
in the shift, the crew doing the work, including Tocchio had
gained access to the crusher by using man-doors at and below the
floor level of the work station from which he had observed
Tocchio being lowered. Tr. 45. They had not, as first he had
supposed, gone down in the basket. To reflect the fact that the
order/citation was issued prior to Tocchio actually having been
lowered past the doors, Toscano modified the order in part as
follows:
One employee had been assigned repair
work below the unsecured hatches and was
observed suspended in a work basket (with
two anchor points.) He was in the process
of being hoisted through the opening created
by the vertical hatches, which were not
de-~nergized and were not blocked against

1157

hazardous motion, utilizing a P&H-type overhead crane.
Resp. Exh. 1 at 2 (emphasis in original).
Toscano described the imminent danger that he believed existed:
•
[T]here was a very . . . likely occurrence
of an energized motor being started up,
sometimes accidentally, and beginning a
downward motion of these doors . . . the
cables [of the basket] could get tangled in
the closing action of the doors, you could
bounce the man around . . . If [the doors)
made it all the way down to the closed
position, [the doors] could . . . crimp . . .
kink • . . or .
cut . . . [the) wire
rope[s] to drop the basket with the man in
it.
Tr. 29-30. Later Toscano expanded upon what he believed the
imminent danger to be:
[T]he worst scenario in my mind would be if
an eyelet or a connection anywhere around
the support cables failed, it would cause
a gravity dropping or slamming motion . . .
[I]f someone just touched the button . • .
[i]t would just be enough to cause high
stress points on the support cables in an
eyelet on the door and if the eyelets failed
or the rope broke or a coupling . . . it
would be a slam.
Tr. 59. 5 He also stated that even though Tocchio wore a safety
line, he could have been jostled and thrown from the basket and
if he did not have the right length of line Tocchio could have
fallen head first into the crusher. Tr. 34, 59. 6 Moreover, if
either of the doors had hit the basket, they could have crushed
portions of the basket and caused a fatal injury. Tr. 33.
Toscano stated his understanding of the concept of imminent
danger:
5
Toscano testified that he had inspected the hoisting ropes and
found nothing wrong with them. He did not inspect the electrical system that
powered the opening and closing of the hatch doors. Tr. 67.
6

feet long.
Tr. 44.

Toscano stated that Tocchio's safety line was approximately three
Tr. 43. He did not recall how Tocchio had secured the line.

1158

[S]ection 107(a) provides for . • • [an
inspector] to withdraw people from an area
[in] which he feels a person could be hurt
• • . if nothing is done and everything
remains the same and a job is allowed to
continue, [and] an inspector feels that
there's a good likelihood that somebody is,
going to get seriously hurt and that's when I
exercise . • . authority under section
107 (a) .
Tr. 32-33.
Toscano was shown a company document entitled Safe Job
Procedure. Resp. Exh. 4. 7
Toscano was of the opinion that it
stated safety procedures required when repair work, such as that
done on February 25, was performed on the crusher. Toscano
interpreted safety procedure 7.b., which states "[l]ock out
overhead doors over crusher cavity," to mandate that the hatch
doors be de-energized. Tr. 37.
According to Toscano, u.s. steel's failure to de-energize
the doors and to pin them so they could not move prior to miners
working on, around and under them, in addition to creating an
imminent danger, also constituted a violation of section
56.14105. Tr. 33. With regard to the "hazardous motion" against
which the standard is to guard, Toscano stated that he had seen
the doors close and he estimated they took approximately 20
seconds for them to do so. Tr. 47. If they struck the basket or
its supporting wires they could cause serious or even fatal
injuries. Id., 38.
He also believed it highly likely that such an accident
would occur. Because the doors were not de-energized they could
start closing if the stop/start buttons were pushed accidentally
or on purpose. Tr. 29, 38. Or, they could start down if an
electric short ran through their control circuit. Id.
DAVID TOCCHIO
Tocchio testified under subpoena. He stated that on
February 25, he had been assigned to change a broken conduit
underneath the crusher. Tr. 73. When Tocchio first saw Toscano
and the inspection party he was suspended in the basket about
four feet off of the floor. Tocchio explained that the basket
had to be lifted from the floor of the work station, over a
7

The document sets forth safety procedures to be followed by the
electronic repair department at the Minntac Plant. It states that it is for
the following job: "052 Crusher Mantal Position Trouble Shoot and Calibrate -Step I & II." Resp. Exh. 4.

1159

railing, swung out over the crusher and lowered through the hatch
doors into the crusher and that when Tomassoni stopped the
procedure the basket had just started to move toward the hatch
doors. Tr. 75. Had it not been stopped, it would have taken
approximately 20 to 30 seconds for him to be lowered through the
hatch doors. Tr. 75-76.
Once inside the crusher Tocchio would not have left the
basket, but rather would have worked from it. Tr. 77. Before
Tocchio could change the conduit he had to clean rock from the
crusher. Normally, such work was done by maintenance personnel
and that was why he never had any training in safe job procedures
for being lowered into the crusher through the hatch doors.
Tr. 77.
However, he was aware that pins were used to block the hatch
doors because he had done a job one other time requiring him to
be lowered through the doors and he had been told about the pins
and had put them in place. Tr. 82. In addition, the doors had
been de-energized and locked out. Tr. 79. He did not know why
the pins had not been installed this time, except that
"[m]aintenance just normally did it." Tr. 82, see also Tr. 78.
He did not check to see if the pins were in place before he got
into the basket. He observed, "It's not a very good excuse I
guess." Tr. 83.
U.S. STEEL'S WITNESS
ROBERT TOMASSONI

Robert Tomassoni, safety engineer for u.s. Steel, was the
company's sole witness.
(Tomassoni testified that he has been
the company's safety engineer for approximately one year.
Tr. 144.) Tomassoni stated that upon entering the crusher
building he saw Tocchio who was in the process of getting into he
basket and was putting on his safety belt. Tr. 87. Tomassoni
saw also that the basket only had two cable connections and he
asked if Toscano would cite that as a violation? According to
Tomassoni, Toscano said he would and Tomassoni immediately
signaled for Tocchio and the basket to be returned to the work
station. As Tomassoni remembered it, Tocchio had gotten only
three or four feet above the floor. The basket had been
ascending vertically and Tomassoni did not believe that it had
yet moved laterally toward the crusher. Tr. 88.
Tomassoni called his supervisor to report what had happened
and when the call was concluded Toscano asked to see the pin
locations and the electrical disconnect for the hoist mechanism
for the doors. Tr. 90.
After Toscano found out that the pins were not in place and
the hoist mechanism was not de-energized or locked out, Tomassoni

1160

was made aware that u.s. Steel would receive a citation for a
violation of a mandatory standard. He stated that he was not
made aware that an imminent danger order of withdrawal would be
issued and, as best he could recall, he did not know that an
order had been issued until an hour or two after the inspection
party had observed the conditions. Tr. 93-94. In addition, even
though the orderjcitation on its face stated that it•was
terminated at 10:40 a.m., 45 minutes after it was issued,
Tomassoni did not recall 'I: .. ~cano telling him about the
termination. Tr. 94.
In any event, Tomassm .•. did not believe that the cited
conditions constituted an
'inent danger. In his opinion, it
was highly improbable th~t oomeone would . . . push the buttons
or the cables would break." Tr. 95.
Tomassoni testified that there are two spring-activated
buttons for the doors -- one to raise them and one to lower them.
After the order/citation had been issued the buttons were tested
and found in good working condition. As described by Tomassoni,
the buttons have a chrome safety guard over their tops so that
they can not be activated by being leaned on or by being struck
from above. Tr. 95-96.
Tomassoni stated that it takes thirty-one seconds to lower
the doors to a horizontal position. Tr. 96. One door lowers
approximately two to three seconds ahead of the other. If the
cables attached to the doors were to break, the doors would come
down much quicker, but Tomassoni was not unaware of any cable
failures at the plant. Tr. 102-103. If Tocchio had been lowered
into the crusher, Tocchio would have been approximately fifteen
feet from the control panel for the doors. Tr. 98. Had he
wanted to get the attention of someone near the control panel he
probably would have had to yell because of the noise in the
plant. Tr. 98.
(Tomassoni agreed, however, if the doors had
fallen, yelling would have done no good. Tr. 103.)
Tomassoni indicated the reason the doors were not pinned,
de-energized and locked out was because Tocchio had not made sure
it was done.
IMMINENT DANGER
Section 3(j) of the Act, 30 u.s.c. § 802(j), defines an
imminent danger as "the existence of any condition or practice in
a coal or other mine which could reasonably be expected to cause
death or serious physical harm before such condition or practice
can be abated." The Commission has noted that "the u.s. Courts
of Appeals have eschewed a narrow construction and have refused
to limit the concept of imminent danger to hazards that pose an
immediate danger." Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159, 2163 (November 1989) (citations omitted). The Commission

1161

also has noted that the courts have held that "an imminent danger
exists when the condition or practice observed could reasonably
be expected to cause death or serious physical harm to a miner if
normal mining operations were permitted to proceed in the area
before the dangerous condition is eliminated." Id., quoting
Eastern Associated Coal Corp. v. Interior Bd. of Mine Op. Appl.,
491 F.2d 277, 278 (4th Cir. 1974). Finally, the commission has
adopted the Seventh Circuit's holding that an inspector's finding
of an imminent danger must be supported "unless there is evidence
that he has abused his discretion or authority." 11 FMSHRC at
2164, guoting Old Ben Coal Corp. v. Interior Bd. of Mine Op. App.
523 F.2d 25,31 (7th Cir. 1975), see also Wyoming Fuel Co., 14
FMSHRC 1282, 1291 (August 1992).
While the inspector has considerable discretion in
determining whether an imminent danger exists, there must be some
degree of imminence to support an imminent danger finding, and
the Commission also has observed that use of the word imminent
means the danger must be "ready to take place(;] near at hand[;]
impending • • • [;] hanging threateningly over one's head(;]
menacingly near." Utah Power & Light Co., 13 FMSHRC 1617, 1621
(October 1991).
In challenging the validity of the order, u.s. Steel in
essence argues the evidence does not establish that if normal
mining operations had continued it was reasonably likely that the
feared accident would have occurred. u.s. Steel catalogues the
reasons why:
The hoist and ropes had no safetyrelated problems and the control
buttons operated the doors properly.
The buttons were spring-loaded and
guarded against accidental contact.
Tocchio was tied off • . • and could
communicate with the other employees if a
descending door presented a hazard.
Barring a total failure of a cable
(which had no observable defect),
someone would have had to stand at the
control panel in view of Tocchio and
depress the button . • • to get the
doors to a position where they could
create a hazard. Under such circumstances
it is inconceivable that Tocchio could ·
have been killed or seriously injured
by the conditions cited on February 25,
1992.
U.S. Steel Br. 9.

1162

The Secretary counters that he need not prove that a
reasonable likelihood of an accident existed, that the test to be
applied is what a reasonable person with the experience and
eduction of a qualified MSHA inspector would consider an imminent
danger.
Sec. Br. 9. Here, according to the Secretary, he has
proven that the cited doors were energized and not b~ocked
against motion at the time Tocchio was going to be lowered
through the doors with the resulting danger of him being crushed
or thrown from the basket. Id.
I believe u.s. Steel has the better part of the argument and
that the Secretary has not established the existence of an
imminent danger.
It is undisputed that the doors were not pinned
and that they were not de-energized and locked out.
Under u.s.
Steel's own safe job procedures these steps should have been
taken. 8 Tocchio testified without contradiction that when he had
done a similar job in the past, the procedures had been
implemented.
Tr. 79, 82, see also Tr. 105-106. I conclude from
this that without implementation of these safety precautions, a
hazard existed to miners working in the vicinity of the doors.
Indeed, common sense compels such a conclusion. The descent of a
12 feet by 15 feet steel door or doors onto a work basket or onto
hoisting cables attached to the basket clearly would subject any
person in the basket to the danger of being jostled and thrown
from the basket if not of being crushed outright.
Still, the existence of a hazard alone does not warrant
imposition of a withdrawal order pursuant to section 107(a). As
noted above the hazard must be imminent, that is there must be a
reasonable potential to cause death or serious harm within a
short period of time, and I conclude that it is here the
Secretary's case fails.
Toscano viewed the start up of the motor controlling the
doors as "very likely". Tr. 29. Yet, the circumstances which
would have caused this to happen were anything but.
Someone
would have had to purposefully activate the button controlling
the winch, a circumstance that was extremely remote since, as
u.s. Steel points out, any person standing at the button would
also have a view of a person suspended in the work basket. Or,
the button would have had to be activated accidentally by being
"smashed", simply touching the button would not have kept the
doors in motion. Tr. 50. Toscano offered no convincing
8
Tomassoni believed that pinning of the doors was all that was
required under U.S. Steel's safety procedures at the time the order was
issued. He stated "pinning the doors was satisfactory because the doors are
not powered in the down position, it's gravity controlled, gravity descent."
Tr. 106. However, Resp. Exh. R-4 indicates the power also should have been
turned off and Tocchio's testimony of his past work practice strongly suggests
this was in fact the rule.

1163

explanation of how the button could reasonably have been expected
to be struck hard, let alone have been "smashed."
Toscano did offer a "worse case" scenario for how the doors
could have fallen.
In this version of the hazard the cables or
the eyelets would have failed. Tr. 59. Yet, once Toscano
inspected the cables he found that they were not defective and
there is simply no evidence indicating that cable failure was
reasonable to anticipate. Further, Tomassoni's testimony that he
was unaware of any previous cable failures at the Minntac Plant,
was not refuted and suggests that such failures were unheard of
since u.s. Steel's safety engineer would certainly have known
about them had they occurred. Tr. 103. In addition, no
testimony or documentary evidence was offered concerning the
eyelets.
Finally, Toscano made a passing reference to the doors
starting to close if activated by an electric short in their
control circuit. Tr. 38. However, no credible evidence was
offered to prove that there was any reasonable likelihood that
such a thing could occur and without the doors closing there
could have been no reasonable expectation of serious injury or
death.
Obviously, almost anything can happen. But the fact that
conditions create circumstances in which hazards can occur does
not make them imminently dangerous. The Secretary must establish
more than the speculative possibility that a miner or miners may
be endangered. Because he has not done so, the inspector's
finding of an imminent danger must be vacated.
VIOLATION OF SECTION 56.14105

As previously noted, section 56.14105 requires that when
repairs or maintenance are performed on machinery or equipment
the machinery or equipment shall be blocked against hazardous
motion. The doors were not pinned and, as Toscano testified, the
motion against which pinning would have guarded was their
downward descent. Tr. 47. The motion was hazardous because it
could have subjected Tocchio to serious injury or even death.
Tr. 33-34.

u.s. Steel argues that this is not a violation of the cited
standard because the crusher was the machinery being repaired,
not the doors. u.s. Steel Br. 13-14. u.s. Steel observes that
the crusher was locked out and de-energized.
I reject this
argument and find that the violation existed as charged. The
doors, while not part of the mechanism that did the actual
crushing of the ore at the plant, were an integral part of the
crusher unit. They covered the crusher mechanism and, as Toscano

1164

explained, were designed to keep the dust and noise produced by
the crushing of ore from the upper levels of the plant. Tr. 55.
As part of the crusher unit which could cause injury to mine
personnel if they descended, the doors should have been blocked
against motion.

The Commission has held that a violation is "significant and
substantial" 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." Cement Division, National Gypsum Co.,
3 FMSHRC 822, 825 April 1981). In Mathies Coal Co., 6 FMSHRC 1,
3-4 (January 1984), the Commission further explained:
In order to establish that a violation
of a mandatory safety standard is
significant and substantial under
National Gypsum, the Secretary • . • must
prove: (1) the underlying violation of
a mandatory safety standard; (2) a
discrete safety hazard -- that is, a
measure of danger to safety -contributed to by the violation; (3) a
reasonable likelihood that the hazard
contributed to will result in an injury; and
(4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
Here I have concluded that a violation of mandatory safety
standard section 56.14105 existed as charged. Moreover, the
evidence establishes there was a discrete safety hazard
contributed to by the violation in that there was a possibility,
however remote, the cables or eyelets holding the doors in place
could have failed or that the buttons controlling the descent of
the doors could have been "smashed" and that the doors could have
fallen endangering anyone passing in the work basket. Moreover,
any injuries a person in the basket would have suffered from
having been struck by the doors or jostled in the basket or
thrown from it reasonably could have been expected to be of a
serious nature.
As is frequently the case when the Secretary alleges that a
violation is S&S, the question is whether the Secretary has
established a reasonably likelihood that the hazard would have
resulted in an injury? In other words, had normal mining
operations continued would th~re have been a reasonable
likelihood of "an event in which there [would have been) an
injury?" u.s. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). I conclude the answer is "no."

1165

As I have stated in discussing the nature of the Secretary's
imminent danger allegation, in my view the Secretary has
established only an extremely remote possibility of an injury
causing event. To prove s&s he must do more. There is no
evidence regarding the likelihood of cable or eyelet failure or
the likelihood of objects smashing the start/stop buttons.
(Indeed, the testimony of Tomassoni suggests that such
occurrences would be highly unusual. Tr. 103.) Therefore, I
conclude that the violation of section 56.14105 was not S&S.
Section l07(a) Order/Citation No. 4097164 must be modified to a
section 104(a) citation. The inspector's finding of an imminent
danger must be vacated and his S&S finding must be deleted.
DOCKET NO. LAKE 92-428-RM
CITATION NO. 4097166, 2/25/92

Citation No. 4097166 charges as follows:
Step 2 - Coarse Crusher
An employee was observed working below
the primary crusher dumping station. A
readily visible warning sign or signs were
not posted at all approaches, notifying
persons above that work was being done
below the open, unbarricaded dump station.
The hazard to the employee of dumping,
dropping or throwing material into the
opening, would not be readily obvious to
persons working, traveling, or cleaning-up
at track level.
Resp. Exh. 2. The citation alleges that the conditions
constituted a violation of 30 C.F.R. § 56.20011 and that the
alleged violation was S&S. 9
SECRETARY'S WITNESS

Toscano testified that after the inspection party had
completed its observation of the area of the hatch doors, the
party entered the area of the primary dump site (also known as
the lower crusher area) where the ore cars dump into the crusher.
Tr. 108. Toscano stated that from his discussion with Tocchio,
he knew that earlier in the shift Tocchio had been working in
this area.
In addition, Toscano said that Tocchio told him that

9

Section 56.20011 requires in pertinent part that "[A)reas where
safety hazards exist that are not immediately obvious to employees shall
be barricaded or warning signs shall be posted at all approaches."

1166

millwrights also had worked there earlier in the shift. Tr. 110,
130, 135. Toscano feared that given the area where Tocchio and
others had been working and where Tocchio would have been
required to work had the job gone ahead as planned, train loads
of ore could have been dumped on the men or material could have
been thrown down upon them because they could not have been seen
from the dumping area above.
Toscano observed that there were no signs posted to warn
anyone on the upper level that persons were working below.
Tr. 109. Nor were there an" barricades. Tr. 113. When asked
what constituted the viola·
n Toscano replied:
The violation would be . . . the failure
to post at all approaches an appropriate
sign describing wh~~ protective action
would be needed.
[T]he person who
would be protected would be for instance
• . • Tocchio or any other persons working
below . • . the main dumping station. The
person who would not know • . . Tocchio [was]
there is the person who would have to be
able to see the sign if he was traveling
or working or walking through the area.
Tr. 110. Although Toscano did not see anyone working in the area
that he believed should have been posted, he thought that he
recalled having seen miners walking through it. Tr. 110-111.
The standard requires where there is not an immediately
obvious health or safety hazard existing, the area should be
posted or barricaded. Toscano explained that under normal
operating procedures, a locomotive would pull ore cars into the
dumping station. The cars would be grabbed by a rock dumping
mechanism, be rotated and they would each in sequence dump up to
100 tons of ore into the hopper feeding the crusher. The one
would fall 20 to 25 feet to the lower level where Tocchio h~d
been. Tr. 111-112.
Not only would the dumping of the cars endanger anyone
working below, but, in Toscano's opinion, it would not be unusual
for a miner walking the track to pick up spillage from the cars
and "throw it where it [was] going to go anyhow." Tr. 113.
Toscano admitted however that should material fall from
above, anyone in the basket would have been provided some
protection in that the basket was enclosed on three sides to
waist height. Also, the person would have been afforded
protection by the basket's overhead canopy. Tr. 123. In
addition, a "safety tub" could be lowered around the basket and
the tub would have provided additional protection. Tr. 125-127.

1167

Toscano recognized that there were safety lights outside the
crusher building that were used to signal the train operator not
to enter and dump. Tr. 129-130. There was also a warning light
inside that Toscano believed a train operator could probably see.
Tr. 136. All rail traffic was controlled by computer from a
building separate from the crusher building. Tr. 137.
Toscano stated that he believed it was reasonably likely for
someone who was not aware of miners working below to throw
something down to the lower level. Tr. 114. He also stated that
he knew of an incident in 1977 in which a miner was fatally
injured by having rock dumped on him while working in the hopper
unbeknownst to the person who dumped the rock. Tr. 114-115.
Nonetheless, he agreed that when he observed the pertinent area
on February 25, it was clean and there were no ore cars present
nor other equipment present (such as a backhoe) capable of
dumping material into the crusher. Tr. 118. Moreover, the doors
to the crusher building were closed and Toscano stated that
ordinarily he would not expect a locomotive to pull loaded cars
into the building under those circumstances. Tr. 118-119.
Finally, Toscano stated that the violation was timely abated
when the company provided readily visible signs reading "danger,
men working below." Tr. 118, 147.
U.S. STEEL'S WITNESS

Tomassoni described the system of rail traffic control at
the crusher building. He stated that inside the building there
were warning lights at the crusher dump station and also at the
site where the train dumped its load. When the lights were "on",
they indicate that there is to be "no dumping." Tr. 139.
However, he agreed that the placement of the inside lights was
such that anyone using an end-loader or moving materials by hand
would have had his back to the lights. Tr. 144.
With regard to the outside lights Tomassoni's testimony was
conflicting -- although he stated he believed a red light outside
on the building indicated "no dumping," he also testified, "We do
not look at the outside lights on the building." Id. However, he
added that he was unaware of any instances in which loads had
been dumped even though the red lights were on. Tr. 144. He
also acknowledged that lights burn out and that burned out lights
were a problem at the plant. Tr. 145.
Tomassoni did not consider the lack of signs a violation of
the cited standard, because the people working in the crusher
building were a small, closely knit group and their jobs were
coordinated. Further, the area had been cleaned and Tocchio was
"well protected" while in the basket. Tr. 141. Moreover, in his
opinion, the basket could have been observed from the track
level. Tr. 142.
I

1168

STEELWORKERS' WITNESS

Timothy Kangas testified on behalf of the Steelworkers.
Kangas, a millwright at Minntac, is also the acting co-chairman
of the union safety committee. He testified that in 1989, he
monitored an investigation of an incident when a tra~n pulled
into the dump area against a red light and directly over an
electrician working from a work basket. Tr. 148-149.
VIOLATION OF SECTION 56.20011

U.S. Steel observes that the standard does not require
warning signs in all areas where work is being performed, but
only in areas where safety hazards exist that are not immediately
obvious to employees and it argues, in effect, that at the time
the citation was issued, its employees were aware of the
potential hazard to Tocchio. "The employees in the area, i.e.,
the crane operator, electrician, and attendant, were there to
assist Tocchio; it is unreasonable to believe that they would
drop material on him." u.s. Steel Br. 15.
I conclude otherwise. While I accept the testimony of
Tomassoni that those working in the crusher building were a
closely-knit group who knew one another's job assignments, it
seems to me that the purpose of the standard is to remind such
personnel that one or more of their number who is not always
readily observable is in a potentially hazardous area -- people
do afterall forget -- as well as to advise other miners coming
into the area of the situation existing therein.
Here the presence of miners working below was not
immediately obvious. The basket may well have been observable
from the track area if one looked, but it would have been
suspended below the track level and one would have had to look.
Also, any miners working below and not in the basket would have
been even less obvious.
Further, there was a potential for injury. Trains could
have entered the building and dumped while Tocchio was suspended
or others were working below. Even though the doors to the
buildings were closed, even though there were warning lights in
existence, even though, as discussed infra, Toscano later
accepted u.s. Steel's explanation that when he cited the
violation the switching system for the rail line to the crusher
was in such a position that trains were shunted away from the
building, all such added protective features could.have failed.
Thus, Tocchio and any other of his colleagues working on the
crusher were in a hazardous position and warning signs should
have been posted. I conclude, therefore, that in failing to post

1169

the warning signs or to barricade the area u.s. Steel violated
section 56.20001. 10

The violation existed as charged. As I have stated in
finding that the violation existed, the warning signs would have
served as an ever-present reminder to others that a miner or
miners, who were not immediately obvious, were at work in a
potentially hazardous area. They would have jogged the memory of
not only those on the section who were aware of the presence of
such miners but also they would have advised newcomers of the
miners' situation. Thus, they would have protected miners from
what was in fact a discrete safety hazard, the potential of
having material dumped or thrown down upon them. Obviously, if
such had happened, any miner struck would have been lucky to have
escaped with only serious injuries.
As with consideration of the S&S nature of the previous
violation, the critical question is whether the Secretary has
established a reasonable likelihood of an event in which there
would have been an injury had normal mining operations continued?
Again I conclude that the answer is "no."
Continued normal mining operations did not mean the usual
movement of trains to the crusher but rather the repair of the
crusher. That was the work being undertaken in the crusher
building on February 25. When the work was completed, trains
would again purposefully enter the building to discharge their
loads. However, by that time, the crusher would have been
repaired and Tocchio and any others working on it would have
left.
Thus, under normal m1n1ng operations Tocchio or others
repairing the crusher would have been subjected to the likelihood
of injury from the dumping of ore only if trains entered the
crusher building in spite of the protection afforded by the
building's closed doors, warning light system and, most
important, by the switches thrown to shunt trains away from the
building. See discussion, infra. The chance that these
precautions would have been ignored or would have failed is, in

10

The essence of u.s. Steel's arguments that it did not violate the
standard really go to the question of how likely an accident would been under
the circumstances, a question whose answer is essential in resolving the issue
of S&S.

1170

my opinion, remote at best. 11 Therefore, I cannot find that on
February 25, had normal mining operations continued there would
have been a reasonable likelihood of "an event in which there
[would have been) an injury." U.S. Steel, 6 FMSHRC at 1836. 12
For the foregoing reasons I conclude that the violation
of section 56.20011 was not S&S. The citation must be modified
to delete the inspector's S&S finding.
DOCKET NO. LAKE 92-249-RM
CITATION NO. 4097167, 2/25/92

Citation No. 4097167 charges as follows:
Step 2 - Course Crusher
An employee was observed performing work
on the primary crusher. He was situated below the railroad track level and adjacent
to the dump station and feeder. Although a
red light was "on" to "block" trains
approaching, the employee was not protected
from moving or runaway rail equipment with
a stop block, detailer or other stopping
device.
Resp. Exh. 3. The citation alleges that the conditions
constituted a violation of 30 C.F.R. § 56.9302. 13 Although
Toscano originally found that the alleged violation was s&s,
subsequently he modified the citation to indicate injury was

11

The danger of a rail car discharging onto Tocchio and any others
working to repair the crusher is the "event in which there (would have been)
an injury." u.s. Steel, 6 FMSHRC at 1836. Toscano agreed that the area along
the track had been cleaned and there being nothing for backhoes to pick up,
nor any backhoes present, it seems unlikely that any danger would have come
from that source or from any miner picking up spillage and throwing it into
the crusher.
12

While I was impressed with the testimony of Kangas involving a
previous incident at the plant where a train had moved into the dumping area
and was preparing to dump not only against the lights but over an electrician
in a work basket -- the very thing Toscano feared -- there was no testimony
indicating the train also had entered in spite of the crusher building's
closed doors and because of a failed railroad switch or switches.
13

Section 56.9302 states:
Stopblocks, derail devices, or other
devices that protect against moving or
runaway rail equipment shall be installed
whenever necessary to protect persons.

1171

unlikely and to delete the S&S designation.
modification upon the fact that:

He based the

Additional information indicated that at the
time of this citation, [a] track switch was
thrown to direct tract movements away from he
Step 2 Crusher. The switch and . • • track
were in view of the mine traffic controller,
who had 2-way radio communication with mine
trains.
Id. at 2.
SECRETARY'S WITNESS

Toscano testified that continuing the inspection of the same
general area that Tocchio had been assigned to work, he walked up
the track, in the direction from which loaded trains would have
come, and he asked if any derailer or other device to prevent
unauthorized entry of trains into the area was present? When
none was found, Toscano told Tomassoni that the company was in
violation of section 56.9302. Tr. 152-153.
Toscano stated that Tocchio would have been exposed to any
runaway train or rail car entering the area. Toscano believed a
stopblock or derailer should have been placed far enough from the
dumping area so that any runaway would derail before it entered
the area. Tr. 153. No trains were traveling the track at the
time Toscano issued the citation. Id.
Later in the day Kangas told Toscano that he thought the
company had a safe job procedure requiring the installation of a
derailer. Tr. 156.
Approximately three or four days later Toscano stated he
conferred with Tomassoni and Kangas about the citation.
Tomassoni emphasized the existence of the warning light system
used to prevent trains from entering the building and from
dumping. Also, Tomassoni showed Toscano the computerized control
center that directed rail traffic and switches at the plant. It
was then brought to Toscano's attention that on the morning of
February 25, 1992, the switching system had been activated to
prevent trail traffic from entering the building. Toscano
therefore changed his assessment of the likelihood of injury due
to the violation from reasonably likely to unlikely and he
deleted the S&S finding. Tr. 156-157.
However, Toscano did not agree with Tomassoni that the
lights and the computerized control system were the equivalent of
a stopblock or a derailer and he refused to vacate the citation.
Toscano rejected Tomassoni's connection because in his experience
and for various reasons (ice, rain, moisture), switches have been

1172

known to fail so that the person operating the control system
will think they have been thrown when, in fact, they have not.
Tr. 158. On the other hand a stopblock or derailer "is a
physical means when other systems fail to make sure that
approaching equipment does not get into a danger zone." Id.
Toscano stated that the violation was abated when a derailer
was installed. Tr. 159-160.
U.S. STEEL'S WITNESS

Tomassoni described rail traffic control at the Minntac
Plant as being under the direction of a clerk and a control
supervisor. It is the control supervisor's job to direct all
rail traffic hauling ore to the crushers for processing.
Tr. 166. This is done in part through computers logging the
direction of locomotives and switches. Because information
regarding all switches that are thrown is stored in the
computer's memory, Tomassoni was able to determine that on the
day the subject citation was issued switches had been in such a
position that all rail traffic would have been turned away from
the crusher building. Tr. 168. Thus, he was sure that no rail
traffic had been routed to the crusher building on February 25.
Moreover, Tomassoni stated that the control supervisor had been
advised early on February 25 that the No. 2 Crusher was "down"
that day. For these reasons, Tomassoni did not believe that u.s.
Steel had violated section 56.9302. Tomassoni admitted however
that a company safe job procedure in effect when the citation was
issued required a derail device. Tr. 170, 173, see also Resp.
Exh. 4 at 2.
VIOLATION OF SECTION 56.9302

There is no dispute a device that could stop or derail a
moving or runaway train or rail car was not in place on the track
leading to the No. 2 Crusher dump area. The question is whether,
given the circumstances at issue, such a device was, in the words
of the regulation, "necessary to protect persons?" I conclude
that it was.
As Toscano noted, Tocchio was working that day in the area
of the primary crusher. The testimony also makes clear that
other miners occasionally worked and traveled the area. These
people needed protection from moving or runaway trains or rail
cars, and I agree with Toscano that the computerized traffic
control system and switch monitoring system at the.plant, while
lessening the chances of miners being injured by such vehicles,
did not obviate the need to comply with the standard. Toscano
put it well, the required devices are "a • . . means when other
systems fail to make sure that approaching equipment does not get
into a danger zone." Tr. 157.

1173

Toscano's testimony that the switches could malfunction due
to ice, rain or humidity was not refuted.
Further, the warning
light system, while it hopefully would have alerted a locomotive
operator not to enter the crusher building, obviously would have
had no effect on a runaway train or rail-car.
In addition, the
control supervisor could have forgotten the crusher was "down" or
could have been unaware that a failed switch had not responded as
the system indicated. All of which may be why the need for such
a device was not recognized by government regulation alone but
was also required by u.s. Steel's own safety procedures, as
Tomassoni candidly admitted.
Therefore, I find that in failing to have installed a
stopblock, derail device or other device on the track leading to
the No. 2 Crusher dump area, u.s. Steel violated section 56.9302.
FINDINGS AND CONCLUSIONS
Based on the forgoing it is concluded that Order/Citation
No. 4097164, 2/25/92, properly sets forth a violation of section
56.14105 but fails to validly state a condition or practice
constituting an imminent danger and fails validly to state that
the violation was S&S.
It also is concluded that Citation
No. 4097166, 2/25/92, properly sets forth a violation of
section 56.20011 but fails validly to state that the violation
was S&S.
Finally, it is concluded that citation No. 4097167,
2/25/92, properly sets forth a violation of section 56.9302.
ORDER

The findings of imminent danger and S&S made in connection
with Order/Citation No. 4097164 are VACATED. The Secretary is
ordered to MODIFY the Order/Citation to a citation issued
pursuant to section l04(a) of the Act.
Citation No. 4097166 is AFFIRMED. The S&S finding made in
connection with the citation is vacated. The Secretary is
ORDERED to modify the citation accordingly.
Citation No. 4097167 is AFFIRMED.

_])~; r.l /,"'.811A ~,_
David F. Barbour
Administrative Law Judge

1174

Distribution:
Billy M. Tennant, Esq., U.S. Steel Corporation, 600 Grant Street,
Room 1580, Pittsburgh, PA 15219 {Certified Mail)
Miquel J. Carmona, Esq., Office of the Solicitor, u.s. Department
of Labor, 230 s. Dearborn Street, Chicago, Il 60604
{Certified
Mail)
Mr. James Ranta, United Steelworkers of America, Local 1938, 307
First Street, North, Virginia, MN 55792 {Certified Mail)
fepy

1175

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUH 161993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. PENN 92-648
A. C. No. 36-06440-03512

THE HARRIMAN COAL CORPORATION,
Respondent

PenagfGoodspring No. 1
Mine East & West

DEC:IS:ION

Appearances:

Before:

Richard W. Rosenblitt, Esq., Office of the
Solicitor, u. s. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary;
Mr. Herbert Trovinger, Brockton, Pennsylvania, for
Respondent.

Judge Maurer

This proceeding was filed by the Secretary of Labor, under
section 110(a) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 820(a) (hereinafter the Act), to assess civil
penalties against the Harriman Coal Corporation (Harriman).
Pursuant to notice, this matter was heard on January 22,
1993, in Reading, Pennsylvania. Both parties appeared,
introduced evidence and made oral argument on the record, which I
have considered in making this decision.
With regard to the history of previous violations by
Harriman, I find the number of violations in the 2 years previous
to the inspection at issue to be few and that the size of
Harriman can be considered small. Furthermore, in the absence of
any specific evidence to the contrary, I find that the proposed
penalties, if they are assessed in that approximate amount, will
not affect the ability of Harriman to continue in business.

\

1176
'·•

Citation No. 3079894
The inspector alleged in the citation that:
The Caterpillar Excavator, Model 245, Serial
No. 84X620 being used to move overburden at the mine
site was not provided with handrails along and around
the walkways or platforms on each side of the machine.
30 C.F.R.

§

77.409(b) provides that:

Shovels and draglines shall be equipped with
handrails along and around all walkways and platforms.
Inspector Harold J. Smith, a mine inspector employed by MSHA
for approximately 4 years, had occasion to issue the above citation on September 25, 1991. He testified that the subject
Caterpillar Model 245 Excavator, which could be described as a
shovel, was not provided with an adequate and proper handrail
along the outer edge of the walkways or platforms on either side
of the machinery. He considered this to be a violation because
the mandatory standard found at 30 C.F.R. § 77.409(b) specifically requires that shovels be so equipped.
Harriman does not dispute these facts, but for their defense
cite the fact that the manufacturer, Caterpillar, has not seen
fit to install these handrails on the outer side of the walkway,
but rather has put handholds on the inner side of the walkway.
Harriman believes this is sufficient to comply with the cited
mandatory standard.
I disagree. There is no handrail provided to prevent a
worker from slipping and falling off the equipment, and this is
what is specifically required by the standard. The pertinent
language recites that handrails will be "along and around" all
walkways and platforms. I read this to require the handrails to
be on the outer side of the walkways. I also find that the
violation is "S&S" because in inclement weather conditions, such
as rain, sleet or snow, it is reasonably likely that a worker
would slip and fall off this equipment and sustain a serious
injury.
I accordingly affirm Citation No. 3079894 as an "S&S"
violation and find that a civil penalty of $50 is appropriate,
considering the statutory criteria contained in section 110(i) of
the Act and the evidence adduced in this record.

1177

Citation No. 3079895
The inspector issued this citation on September 25, 1991,
for an alleged violation of 30 C.F.R. § 77.410 for the following
condition:
The Ford truck, Model 8000, used by the mechanic
at the mine site is not equipped with an automatic
warning device which shall give an alarm when such
equipment is put in reverse.
30 C.F.R.

§

77.410(a) (1) provides that:

(a) Mobile equipment such as front-end loaders,
forklifts, tractors, graders, and trucks except pickup
trucks with an unobstructed rear view, shall be
equipped with a warning device that-(1) Gives an audible alarm when the equipment is
put in reverse.
Respondent stipulates that the truck was being operated on
mine property on the day in question without a back-up alarm,
that a back-up alarm is required on the truck, and it therefore
was a violation of the cited standard.
(Tr. 62-64) I could not
agree more, and I also find that violation to be "S&S", and
serious because of the obvious danger of an inattentive person
standing or walking behind the vehicle being run over.
Taking into account the seriousness of the violation as well
as the other statutory factors contained in section 110(i) of the
Act, I conclude and find that a civil penalty of $100 is appropriate for the violation found herein.
ORDER
Based upon the above findings of fact and conclusions of
law, IT IS ORDERED that:
1.

Citation Nos. 3079894 and 3079895 ARE AFFIRMED.

2. Respondent, Harriman Coal Corporation, shall pay to the
Secretary of Labor a civil penalty in the sum of $150 within
30 days of the date of this decision.

aurer
s rative Law Judge

1178

Distribution:
Richard w. Rosenblitt, Esq., Office of the Solicitor, U. s.
Department of Labor, 3535 Market street, Philadelphia, PA 19104
(Certified Mail)
Ronald Lickman, President, The Harriman Coal Corporation,
101 N. Centre Street, Suite 309, Pottsville, PA 17901-2911
(Certified Mail)
dcp

1179

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 211993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

OGLEBAY NORTON TACONITE
COMPANY,
Respondent

. CIVIL PENALTY PROCEEDINGS
.
.. Docket No. LAKE 93-52-M
. A.C. No. 21-00828-05591
. Fairlane Plant
: Docket No. LAKE 93-53-M
.: A.C. No. 21-00200-05572
Docket No. LAKE 93-54-M
A.C. No. 21-00200-05573
Docket No. LAKE 93-55-M
A.C. No. 21-00200-05574
Thunderbird Mine

DECISION APPROVING SETTLEMENT
ORDER TO

PAY

These cases are before me due to Judge Melick's illness.
The parties have now filed an amended settlement motion.
The motion explains that the 53 citations in these cases all
were issued during the same inspection for failure to report
mine site injuries which were reportable under Part 50 of the
regulations. In forty-five instances, the injured miner had
not reported the injury while on the mine property, but
sought treatment later from a physician or chiropractor and
the injury did not result in lost time. The clerical staff of
the operator failed to recognize the information on the forms
sent to the mine as injuries reportable to MSHA. In light of
the foregoing, the parties represent that these violations were
not intentional and that, therefore, negligence was less than
originally thought. The amended settlement motion also sets
forth information regarding the six criteria of section 110(i)
of the Act. A penalty of $200 is recommended for each of these
violations which I find is appropriate under the Act in light
of the finding of reduced negligence which I accept.
The parties further represent that in eight citations
the operator should clearly have recognized the fact that the
injuries which occurred were reportable under Part 50 because

the injuries resulted in lost time.

1180

The parties recommend

settlements in the amount of $400 for each of these violations.
This was the amount of the Secretary's original assessment.
I conclude that these settlements are consistent with the
standards of section 110(i) of the Act. Finally, I am persuaded that the total amount of penalties assessed herein
will have the deterrent effect anticipated by the Act. In
this connection I note the assurances given me by operator's
counsel in a conference telephone call on May 28, 1993, that
the operator now understands its responsibilities under the
Act and is presently complying with the reporting requirements.
ACCORDINGLY, it is ORDERED that the recommended settlements
be Approved.
It is further ORDERED that in Docket No. IAKE 93-52-M,
the operator, within 30 days from the date of this order, pay
$3,400.
It is further ORDERED that in Docket No. IAKE 93-53-M,
the operator, within 30 days from the date of this order, pay
$4,600.
It is further ORDERED that in Docket No. LAKE 93-54-M,
the operator, within 30 days from the date of this order, pay
$4,000.
It is further ORDERED that in Docket No. IAKE 93-53-M,
the operator, within 30 days from the date of this order, pay
$200.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Lisa A. Gray, Esq., Office of the Solicitor, u.s. Department
of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL
60604 (Certified Mail)
J. Kent Hendricks, Esq., Hanft, Fride, O'Brian, Harries,
swelbar and Burns, P.A., 100 First Bank Place, 130 West
Superior Street, Duluth, MN 55802 (Certified Mail)
\lh

1181

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

June 21, 1993

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

v.
MID-CONTINENT RESOURCES INC.,
Respondent

.
.
.
.:

CIVIL PENALTY PROCEEDING
Docket No. WEST 91-168
A.C. No. 05-00301-03764
Dutch Creek Mine

AMENDED DECISION APPROVING PARTIAL SETTLEMENT
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Petitioner;
Edward Mulhall, Jr., Esq., Glenwood Springs,
Colorado,
for Respondent.

Before:

Judge Morris

This is a civil penalty proceeding initiated by Petitioner
against Respondent pursuant to the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. S 801, et seq. {the "Act"). The civil
penalties sought here are for the violation of mandatory regulations promulgated pursuant to the Act.
1.
Respondent was issued five orders herein pursuant to
the Federal Mine Safety and Health Act of 1977 as follows:
Citation/Order
Number
3410800
3410363
3410351
3410391
3411019

30 C.F.R.
Reaulation

Date
May 01,
May 02,
May 29,
June 19,
June 27,

1182

1990
1990
1990
1990
1990

75.400
s 75.316
s 75.499
s 75.316
s 75.1704
§

2.
However, one of the orders, Order No. 3410351, is the
subject matter of a discretionary review now pending before the
Federal Mine Safety and Health Review Commission in Docket Nos.
WEST 91-594 and WEST 91-626. Order No. 3410351 was erroneously
included in the decision for partial settlement as well as the
order of the Commission entered thereon.
3.
Order No. 3410800 was reassessed and settled in Docket
No. WEST 92-717, therefore, it should be deleted from this civil
penalty proceeding.
4.
Respondent has previously agreed to reduce the proposed
penalties of the remaining orders by 40 percent based on Respondent's ability to pay.
5.
Accordingly, Petitioner has previously agreed to amend
the proposed penalties as follows. Such amendment is to be effective upon the approval of this settlement agreement by the
Federal Mine Safety and Health Review Commission.

Order No.
3410363
3410391
3411019

Proposed Penalty

Amended
Proposed Penalty

$1,000.00
1,100.00
1,600.00

$

600.00
660.00
960.00

$3,700.00

$2,220.00

In support of their motion, the parties submitted information relating to the statutory criteria for assessing civil
penalties as contained in 30 u.s.c. § 820(i).
I have reviewed the proposed settlement and I find it is
reasonable and in the public interest. It should be approved.
Accordingly, I enter the following:
ORDER
1.
Order No. 3410351 was erroneously included in the
motion for settlement as well as in the Order of the Commission
entered thereon and said Order is deleted from this amended
decision.

1183

2.
92-717.

Order No. 3410800 was reassessed and settled in WEST
Accordingly, it is deleted from this penalty proceeding.

3.
Citation Nos. 3580363, 3410391, and 3411019, and the
amended proposed penalties are AFFIRMED.
4.
Respondent filed a case under Chapter 11 of the
Bankruptcy Code and is operating its bankruptcy estate as a
debtor-in-possession. Accordingly, upon approval of the United
States Bankruptcy Court in Case No. 91-11658 PAC, it is ORDERED
that civil penalties be assessed against the Respondent in the
amount of $2,200.00 and Petitioner is authorized to assert such
assessment as a claim in Respondent's Bankruptcy case.
5.
The undersigned Judge retains jurisdiction of :this case
and related cases not otherwise disposed of by the settlement
herein.

Law Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Office Building, 1961 Stout street,
Denver, co 80294
(Certified Mail)
Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, P.C., P.O. Drawer
790, 818 Colorado Avenue, Glenwood Springs, co 81602
(Certified
Mail)
ek

1184

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

JUN 211993

ENERGY WEST MINING COMPANY 1
Contestant

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

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

v.
ENERGY WEST MINING COMPANY 1
Respondent

.
...
.
.
.
.
.
..
...
...
..
....
.

CONTEST PROCEEDING
Docket No. WEST 92-216-R
citation No. 3583185; 12/26/91
Deer Creek Mine
Mine I.D. 42-00121

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 92-421
A.C. No. 42-00121-03763
Deer Creek Mine

DECISION

Before:

Judge Lasher

This matter arises upon the filing by Energy West of a
Motion for Summary Decision seeking to vacate Citation No.
3583185 issued by Inspector Robert,L. Baker which alleges the
following condition or practice was a violation of 30 c.F.R.
s 75.316.
approved ventilation, methane, and dust control
plan was not being complied with in the 6th Right
longwall •action a• the plan requires 30,000 CFM of
air to reach the intake end of the longwall face, the
air reading was 22,680 CFM reaching the intake end of
the longwall. The crew had been withdrawn to the
headgate before my arrival on the •action.

~he

1185

Both parties have agreed that summary decision is appropriate in this matter and following Energy West's motion, the Secretary filed a cross motion for summary decision and Energy West
filed a response thereto.
In summary, Energy West contends (1) that the Citation
should be vacated because the Secretary-cannot prove that the
Mine's Section 75.316 Ventilation Plan was violated when less
that 30,000 CFM of air was supplied to a longwall face during an
idle shift, (2) that the regulations in effect at the time, Section 75.301 et seq. (1991), required certain minimums (3000 CFM
or 9000 CFM) at each working face unless otherwise specified in
the ventilation plan, and (3) that while at Deer Creek its Ventilation Plan did specify otherwise for longwalls during mining,
and required 30,000 CFM on the "water spray diagram" pages thereof which described the dust controls and practices required for
the operation of each longwall MMU, the context makes clear that
the 30,000 CFM requirement can only reasonably be construed to
apply during coal producing operations, (a) because such high
volume of air could only be needed for methane or dust control
when the longwall is operating, producing dust and potentially
producing methane 1 ; and (b) because that page of the Plan entitled "Water Spray Diagram," also contains requirements for the
number of sprays that must be operating and the number of gallons
per minute ("GPM") of water they must be spraying to keep down
the dust generated by longwall operations--and no one contends
that the water sprayers need to be operating during idle shifts.
See Energy West's Motion and Attachment B and Exhibit 1 thereto.
Thus Energy West maintains it only makes sense to construe the
30,000 CFM standard, like the water spray standards, to apply to
coal production periods, not to idle shifts.
Energy West explains that other references in the plan show
that the increased air quantity was only required during mining
and that Section XVII of the Ventilation Plan is clear that the
Plan's ventilation quantities during the period of longwall setup and extraction need not be followed.
Exhibit 1 to Attachment
B, Energy West's Motion. Energy West also maintains that it was
its intent in the Ventilation Plan to require 30,000 CFM only
during mining, not during idle periods when dust is not being
generated and methane is not potentially being released by the
use of the longwall, referring to Attachment B of its Motion.
Alternatively, Energy West contends that even if the scope
of the 30,000 CFM provision were deemed not limited to operating
longwalls, the plan would be ambiguous and unenforceable under

1

The Deer Creek Mine is virtually methane free.
of methane have ever been detected at this Mine.

1186

Only trace quantities

Commission precedents governing the interpretation and enforcement of such plans.
In a "Statement of Facts" contained in its motion, Energy
WEST sets forth a list of 14 facts as to which it believed there
was not genuine dispute. The Secretary, however, does not concur
in items numbered 9 and 10, 13 and 14 therein. Thus the Secretary denies the contention of paragraph 9 of the Statement of
Facts that "it (Energy West) intended [emphasis supplied] the air
quantity requirement of 30,000 CFM ••• to apply only during periods of coal production," and the allegation stated in paragraph
10 that "Energy West has consistently interpreted the 30,000 CFM
requirement to apply only during periods of coal production."
The Secretary states that theses statement as well as the arguments propounded at paragraphs 13 and 14, all of which ~~e based
upon the Affidavit submitted by Energy West's Director of Health
and Safety, Dave Lauriski, cannot be adopted by the Secretary."
The Secretary does accept Energy West's Facts numbered 1-8
and 11-12 and this is reflected in the "Findings" which follow.
The parties agree that if the Citation should be affirmed, then
the $20 penalty proposed in Docket No. WEST 92-421 would be
appropriate.
PINDINGS

Based on the facts set forth and agreed to in the motions,
the following findings of fact are made:
1.
Energy West Mining Company owns and operates the Deer
Creek Mine in Emery County, Utah.
2.
The Deer Creek Mine is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977 (the "Act").
3.
The presiding Administrative Law Judge has jurisdiction
over this proceeding pursuant to Section 105 of the Act.
·-

.
4. - The citation was issued on December 26, 1991, by Inspector Robert Baker, alleging that Energy West violated 30
c.F.R. S 75.316 by failing to comply with the approved ventilation, methane, and dust control plan at the 6th right longwall
section insofar as the Plan allegedly required 30,000 cubic feed
per minute ("CFM") of air to reach the intake end of the longwall
face. The citation was terminated on December 30, 1991.
5.
The applicable standards for measuring Energy West's
compliance with 30 c.F.R. S 75.315 are set forth in the Ventilation System and Methane and Dust control Plan (October 2, 1989)
("Plan") prepared by Energy West (then known as Utah Power and
Light company, Mining Division), and initially approved by the

1187

Mine Safety and Health Administration ("MSHA") on November 1,
1989. MSHA subsequently approved amendments on various dates in
1990 and 1991. See Plan excerpts attached as Exhibit 1 to Affidavit of Dave D. Lauriski, appended as Attachment B to Energy
West's motion.
6.
The air quantity requirement on which the Citation is
based is set forth on the individual water spray schematic for
mechanized mining unit ("MMU") No. 051-0 in Part V of the Plan
and was approved by MSHA on November 2, 1990.
7.
The individual water spray schematic on which the
Citation is based states that the "minimum quantity of air
reaching the intake end of the longwall face shall be 30,000
CFM." This schematic is the sole basis for the Secretacy.'s
Citation alleging that the failure to maintain air velocity at
30,00 CFM constituted a violation of 30 C.F.R. S 75.316.
8.
At the time the Citation was issued, the air quantity
measured 22,680 CFM at the intake end of the longwall face.
9.
At the time the Citation was issued, no coal production
was occurring.
10.
At the time the Citation was issued, the 6th right
longwall was idle.
After consideration of the arguments, evidence presented by
the parties and analysis of the supporting affidavits (one each
by Energy West and the Secretary), it is concluded that the Secretary's position is meritorious and it is here adopted.
A ventilation plan such as that involved here must be approved by the Secretary and adopted by the mine operator pursuant
to Section 75.316 and Section 303(o) of the Mine Act.
30 u.s.c.
S 863(o). Once the plan is approved and adopted, its provisions
are enforceable as mandatory standards. Jim Walter Resources.
Inc., 9 FMSHRC 903, 907 (May 1987); Zeialer Coal Co. v. Kleppe,
536 F.2d 398, 409 (D.C. Cir. 1976); Carbon County Coal Co ••
7 FMSHRC 1367, 1371 (September 1985); Penn Alleqh Coal Co.,
3 FMSHRC 2767, 2771 (December 1981).
.
Coal Mine Inspector Robert Baker issued Citation No. 3583185
on December 26, 1991.
The ventilation plan referenced in the Citation clearly and
unequivocally states: "The minimum velocity of air reaching the
intake end of the lonqwall face shall be 30,000 CFM."
(See Tab
A; Ex. 1, Diagram at pg. 4 in Energy West motion).

1188

The plan does not in any manner qualify the requirement of
30,000 CFM. The word "shall" is not ambiguous as explained
below.
As previously noted, while the Secretary agrees that at the
time the Citation was issued, coal was not being produced since
the MMU was being repaired, the Secretary contends that the air
quantity must be maintained at 30,000 CFM regardless of whether
or not coal is actually being mined at any given moment. Such
contention is based on the regulations:
30 c.F.R. S 75.301 states in pertinent part that:
••• the minimum quantity of air reaching the intake
end of a pillar line shall be 9000 cubic feet a minute
The authorized representative of the Secretary
may require in any coal mine a greater quantity and
velocity of air when he finds it necessary to protect
the health or safety of miners.
(Emphasis added].
30 C.F.R. S 75.301-3(c) states that "When longwall
mining is practiced the volume of air shall be
measured in the intake entry or entries at the intake
end of the longwall face and the longwall shall be
constructed as a pillar line."

Thus, the C.F.M. that is required by the District Manager
and specified in the approved ventilation plan is to be maintained at the intake end of the pillar line. The word "shall"
means at all times, since there is no qualifying language restricting the requirement to when coal is being mined.
30 C.F.R. S 75.301-3(c) requires that longwall face~ are to
be: "Constructed as a pillar line" for determining air quantity
locations. This means that the intake end of the pillar line
applies to longwall faces. Since the air quantity must be maintained at all times at the intake end of the pillar line, the
30,000 CFM, in Deer Creek's case, must be maintained at all
times. I find no ambiguity in theses requirements.
Also, as stated in the Affidavit of MSHA Supervisory Mining
Engineer, William Reitze, the reasons for requiring this air
quantity at this location at all times is to ensure that during
idle face periods not only is there sufficient air to maintain
the face clear of methane and other harmful or noxious gases but
that there is an adequate volume of air to ensure that the bleeder system is being provided with sufficient air to control methane and other harmful or noxious gases. He indicates therein
that it has always been understood by operators and enforced by
MSHA that the quantity of air at the last open crosscut and at
the intake end of the pillar line must remain constant at or
above the approved ventilation plan quantity, regardless of
whether coal is being produced or the MMV is idle. This ration-

1189

ale satisfactorily rebuts any contention that the Secretary's
interpretation would result in an absurdity.
In Energy Fuels Coal. Inc., 12 FMSHRC 698 (April 1990) it
was held:
It is a cardinal principle of atatutory and regulatory
interpretation that words that are technical in nature
"are to be given their usual, natural, plain, ordinary, and commonly understood meaning." Old Colony R.
Co. v. Commissioner of Internal Revenue, 284 u.s. 552,
560 (1932), When the meaning of the language of a
statute or regulation must be interpreted according to
its terms the ordinary meaning of its words prevails,
and it cannot be expanded beyond its plain meaning.
Old Colony R. Co. v. Commissioner of Internal Revenue,
supra; see Emery Mining Corp. v. Secretary of L&bor,
783 F.2d 155, 159 (lOth Cir. 1986).

The issue presented in this matter, i.e., whether the plan
requirements of 30,000 CFM apply only when coal is actually being
produced and not during idle periods, has been addressed and
decided by the Commission.
In Mid-Continent Coal and Coke, 3 FMSHRC 2502, 2504 (Nov.
1981), the Federal Mine Safety and Health Review Commission held:
The parties do not dispute that the requirements of a
duly adopted ventilation plan are generally enforceable under the Act. Zeigler Coal Company, 4 IBMA 30,
aff'd 536 F.2d 398, 409 (D.C. Cir.) (April 22, 1976).
Here, the area cited was a working face, the continuous miner had just backed away form the face to allow
the crosscut to be cleaned up and ventilation reestablished for further cutting in the production of coal.
A temporary halt in cutting, mining, or loading to
permit other mining activities in preparation for
further mining and production does not interrupt the
ventilation requirements of 30 C.F.R. S 75.316. ~
hold otherwise would allow unsafe conditions, as in
this instance, to escape sanction unless the operator
were caught in the act of cutting, mining, or loading.
The Judge's finding of violation ia affirmed.
(Emphasia aupplied].

Commission Judges have uniformly adopted the reasoning of
Mid-Continent coal and Coke, supra.
In Consolidation Coal Company, 3 FMSHRC 2207 (September
1981), Judge Gary Melick affirmed a violation of Section 75.316
for the failure by the operator to ventilate an entry with a line
curtain. Although the evidence established that the certain had
been in place 2.5 hours prior to the issuance of the Citation,
but had been taken down for some unexplained reason, the Judge

1190

found that the absence of the curtain at the time the Citation
was issued was still a violation.
In Windsor Power House Coal Company, 2 FMSHRC 671 (March
1980) (Commission review denied April 21, 1980), Judge Melick
affirmed a violation of Section 75.316 because of the operator's
failure to maintain adequate ventilation oat a working face as
required by its ventilation plan. Even though the evidence
showed that mining was temporarily halted in the cited area
because of a mechanical breakdown, it was held that the absence
of the required ventilation constituted a violation.
In Co-op Mining Company, 5 FMSHRC 2004 (November 1983),
Judge Virgil Vail affirmed a violation of Section 75.316, because
of an operator's failure to install a line curtain as required by
its ventilation plan. Although Judge Vail considered the fact
that the curtain may have been down for only a short time due to
possible rib sloughage, he found that such an unusual occurrence
was no defense. Citing Zeigler Coal Co., 4 IBMA 30 (1975),
aff'd, 536 F.2d 398 (D.C. Cir. 1976), and Consolidation Coal Co.,
supra, the Judge found that when an operator departs from his
ventilation plan, a violation of Section 75.316 is established.
In Consolidation Coal Co.m, 8 FMSHRC 612 (April 1986), Judge
John J. Morris affirmed a violation of Section 75.316, because of
the operator's failure to maintain the proper air velocity at a
face, as required by its ventilation plan, even though the air
reaching the face may have been interrupted for no more than 30
seconds because of a ventilation curtain being pushed against a
rib by a shuttle car trailing cable.
In Western States Coal Corp., in a decision that preceded
the Commission's Mid-Continent Coal and Coke holding, Judge
George Koutras found:
Failure by an operator to comply with any provision of
its ventilation plan constitutes a violation of the
provisions of 30 C.F. R. S 75.316. Pe&body eoal
Cgmpany, 8 IBMA 121 (1977)1 Valley Camp Coal Company,
3 IBMA 176 (1974)1 Zeigler Qoal Cgmpany y. Kleppe, 536
F.2d 398 (D.C. Cir. 1976). The fact that coal was not
being cut or loaded at the precise moment that the
Inspector arrived on the scene and observed that the
line curtain had not been advanced as required is
immaterial, and respondent's proposed interpretation
of the standard cited is rejected.
·

Western states Coal Corp. 1 FMSHRC 2059, 2061 - 1st unnumbered
FMSHRC Bluebook at page 24 (March 1979).

1191

Since the minimum quantity of air reaching the intake end of
the longwall face was less than 30,000 CRFM as required by the
Approved Ventilation Plan, the contest lacks merit and the
subject citation is AFFIRMED.

ORDIR
1.

Docket No~ WEST 92-216-R is DISMISSED.

2.
In related Penalty Docket No. WEST 92-421 the penalty
of $20 stipulated to by the parties in the premises is here
ASSESSED for Citation No. 3583185 and Respondent SHALL PAY the
same TO THE SECRETARY OF LABOR within 30 days from the date of
issue of this decision.

~£???. ~/},
Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Thomas C. Means, Esq., ·J. Michael Klise, Esq., CROWELL & MORING,
1001 Pennsylvania Avenue, NW, Washington, DC 20004-2505
(Certified Mail)
Robert J. Murphy, Esq., Office of the Solicitor, u.s. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, co 80294 (Certified Mail)
ek

1192

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

JUH "L, 11993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

.

v.

CONSOLIDATION COAL COMPANY,
Respondent

Docket No. WEVA 92-1194
... A.C.
No. 46-01455-03928 R
. Osage No. 3 Mine
:

PARTIAL DECISION
Appearances:

Wanda Johnson, Esq., Office of the Solicitor,
u.s. Department of Labor, Arlington, Virginia, for
the Petitioner;
Daniel E. Rogers, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding filed by the petitioner
against the respondent pursuant to section 110(a) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), seeking
civil penalty assessments for thirteen (13) alleged violations of
certain mandatory safety standards found in Part 75, Title 30,
Code of Federal Regulations.
The respondent filed a timely answer and contest, and in
response to a prehearing order the parties informed me that they
proposed to settle eleven (11) of the alleged violations. During
a subsequent prehearing conference, the parties presented
arguments in support of their proposed settlements, and they were
tentatively approved by me pending disposition of the two
remaining alleged violations which the parties were unable to
settle. The citations, initial assessments, and the settlement
amounts are as follows:
Citation No.

Date

30 C.F.R.
Section

3716253
3716194
3716047
3716050

9/9/91
9/11/91
10/11/91
10/11/91

75.1105
75.1403-S(d)
75.1403-9(c)
75.220

1193

Assessment
$20
$227
$276
$276

Settlement
$20
$227
$276
$276

Citation No.

Date

30 C.F.R.
Section

3716051
3716052
3716121
3716122
3315900
3716127
3716128

10/11/91
10/11/91
10/16/91
10/17/91
10/23/91
10/25/91
10/25/91

75.202(a)
75.1403
75.313
75.1403-9(a)
75.314
75.400
75.1100-3

Assessment

Settlement

$206
$227
$276
$227
$413
$276
$276

$206
$206
$276
$227
$248
$166
$166

Qiscussion
In support of the proposed settlements, the parties presented
information pertaining to the six statutory civil penalty
criteria found in section 110(i) of the Act. In addition, in the
course of two prehearing conferences, the parties discussed the
circumstances surrounding the issuances of the contested
citations, and their proposed settlement dispositions. The
respondent agreed to pay the full amount of the proposed civil
penalty assessments for eight (8) of the citations and to accept
the citations as issued. With respect to Citation Nos. 3315900,
3716127, and 371628, the petitioner's counsel agreed to delete
the "S&S" designations on the ground that the evidence at trial
would not support those findings, and the respondent agreed to
pay the modified civil penalty assessments for those citations in
settlement of the violations.
With regard to the two remaining citations in this proceeding
(Citation Nos. 3716124 and 3716254), the parties were unable to
reach a settlement, and the matters were consolidated for hearing
with several other cases heard in Morgantown, West Virginia, on
June 15, 1993. In the course of the hearings, the parties
informed me that after further discussions and negotiations, they
proposed to settle Citation No. 3716124, and they were afforded
an opportunity to present supporting arguments on the record.
Section 104{a) "S&S" Citation No. 3716124, concerns an alleged
violation of mandatory safety standard 30 C.F.R. § 75.604(b),
issued by MSHA Inspector Lynn Workley on October 25, 1991, for an
improperly made splice in a shuttle car trailing cable. The
petitioner's counsel stated that after further consultation with
the inspector, who was present in the courtroom, the inspector
agreed that the location of the splice made it unlikely that
anyone would come in contact with it, and that under the
circumstances, if the matter were to proceed to trial, the
petitioner did not believe that the evidence would support the
inspector's 11 S&S 11 finding. I take note of the fact that the
splice was redone and properly insulated and sealed within 15
minutes after the inspector issued the citation. The initial
proposed penalty assessment for the violation was $276, and the
parties proposed to settle the matter by deleting the 11 S&S 11

1194

finding, and the respondent agreed to pay a penalty assessment of
$166, for the violation and modified citation.
Findings and Conclusions
After careful consideration of the pleadings, arguments, and
submissions in support of the proposed settlement, and pursuant
to the requirements of Commission Rule 31, 29 C.F.R. § 2700.31,
the proposed settlement was approved from the bench, and my
decision is herein reaffirmed. In addition, my previous
tentative decisions approving the settlements with respect to the
aforementioned eleven (11) citations are likewise finalized and
reaffirmed.
With respect to section 104(a) Citation No. 3176254, issued on
September 9, 1991, citing an alleged violation of 30 C.F.R.
§ 75.1105, the parties jointly moved that this citation be
consolidated with three similar citations issued by the same
inspector and which are pending for trial before Judge William
Fauver in Docket No. WEVA 92-1193. In support of their oral
motion, the parties confirmed that all of these contested
section 75.1105 alleged violations involve identical factual and
legal issues and that in the interest of judicial efficiency they
should all be adjudicated by one judge. The motion was granted.
ORDER
The respondent IS ORDERED to pay civil penalty assessments in
the settlement amounts shown above in satisfaction of each of the
contested citations in question. Payment is to be made to the
petitioner (MSHA) within thirty (30) days of the date of this
partial decision and order. Further administrative action will
be taken to transfer the remaining Citation No. 3716254, to
Judge Fauver, and the parties will be further notified when this
is done.

~4\,~
Administrative Law Judge

Distribution:
Wanda Johnson, Esq., Office of the Solicitor, u.s .. Department of
Labor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203
(Certified Mail)
Daniel E. Rogers, Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified
Mail)
jml

1195

PBDBRAL Jll:IIB SAPBTY DID BBALTB REVIEW COIDUSSIOII
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN ~ 2 1993
CLIFFORD MEEK

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. LAKE 90-132-DM
MSHA Case No. UC-MD-90-06

ESSROC CORPORATION,
Respondent
DECISION ON REMAND
Appearances:

Robert J. Tscholl, Esq., Canton, OH, for
Complainant;
John c. Ross, Esq., and Monty Donohew, Esq.,
Canton, OH, for Respondent.

Before:

Judge Fauver

On April 27, 1993, the Commission affirmed the judge's
decision except for the failure to deduct Meek's unemployment
compensation from backpay. It remanded for "further findings on
the amount of unemployment compensation Meek received during the
backpay period" with direction to deduct the sum from Meek's
backpay award.
After remand, the parties moved the judge for various forms
of relief, with a number of contested issues. A hearing was held
at Cleveland, Ohio on June 9, 1993.
The issues were simplified and narrowed to the following,
all other issues raised by the parties being withdrawn or
abandoned:
1.
Does the judge have jurisdiction to award the
miscellaneous expenses specified in Paragraph 2 of Exhibit C-1
(Mr. Tscholl's letter to Mr. Ross, dated May 13, 1993)? If so,
are the expenses reasonable?
2.
Does the judge have jurisdiction to update the backpay
award and award of an attorney fee and litigation costs incurred
since March 2, 1992? If so, are the sums presented in Exhibit
C-1 accurate and reasonable?
3.
Should the judge grant Respondent's oral motion to stay
his reinstatement and backpay orders pending any appeal to the
courts?

1196

After evidence was taken and before oral argument on the
above issues, the judge issued a bench provisional order
expressing the intention of his reinstatement and backpay orders
as to two points, giving an opportunity to the parties to raise
any objection or disagreement with the provisional order. With
minor editing, these points are:
1. Respondent's liability for backpay, interest, an
attorney fee and litigation costs will continue to
accrue until Respondent, in writing, offers Complainant
reinstatement in compliance with the reinstatement
order of December 24, 1991, and either (A) Complainant
accepts reinstatement and goes to work or (B)
Complainant rejects the offer or within a reasonable
period (which the judge would deem to be five business
days) after receiving the offer, Complainant fails to
accept the offer. Until either event (A) or (B)
occurs, Respondent shall continue to be liable for
backpay, interest, a reasonable attorney fee, and
litigation costs incurred after March 2, 1992, as well
as the initial award of backpay, interest, an attorney
fee and litigation costs up to March 2, 1992.
2. The intention of the judge's backpay award of
March 31, 1992, is that Complainant shall receive all
of such award without reduction for any attorney fee
(e.g. a contingency fee); and that the only attorney
fee allowable in this case will be the attorney fee
awarded by the judge.
The parties indicated they had no objection to the above
interpretation of the judge's reinstatement and backpay orders.
Recognizing this, Respondent moved to stay the orders pending any
appeal to the courts.
DISPOSITION OF THE ISSUES

1.
A judge's jurisdiction on remand is limited to the
issues specifically remanded by the Commission. See generally
Hermann v. Brownell, 274 F.2d 842, 843 (9th Cir.), cert. denied,
364 U.S. 821 (1960); Secretary on behalf of Mullins v.
Consolidation Coal Co., 4 FMSHRC 1622, 1624, n.2 (1982); and
Boswell v. National Cement Company, 15 FMSHRC___ (June 7, 1993).
Here, the Commission has directed the judge to determine the
amount of unemployment compensation Complainant received in the
backpay period and to deduct that sum from the backpay award.
The judge's Final Order of March 31, 1992, awarded $24,000.00 in
backpay and interest for the period from February 27, 1990,
through March 2, 1992, and an attorney fee and litigation costs
of $17,065.80 for the same period. The order then provided that
liability for backpay, interest, an attorney fee and litigation
costs incurred after March 2, 1992, would continue to accrue
until conclusion of the case including any appeals.

1197

I conclude that my jurisdiction on remand is limited to
finding and deducting the unemployment compensation received in
the period for the initial backpay award (i.e., from February 27,
1990, through March 2, 1992). The evidence indicates that Meek
received $6,942.00 in unemployment compensation during this
period. His net backpay with interest through March 2, 1992, is
therefore $17,058.00 ($24,000.00 less $6,942.00).
As to damages incurred after March 2, 1992, I observe that
the Commission affirmed the judge's decision in all respects
other than the unemployment compensation point, including the
provision that:
Respondent's liability for back pay, interest and an
attorney fee and litigation costs after March 2, 1992,
shall continue to accrue until this case including any
appeals is concluded. [Judge's Final Order, March 31,
1992.]
Respondent states that it intends to appeal for judicial
review of the Commission's decision.
There is therefore no
necessity at this time to make findings on damages incurred after
March 2, 1992. If the case is appealed, any final order on
damages would have to be updated after the appeal. If there is
no appeal, Complainant may seek a court injunction to enforce the
judge's reinstatement order and order for monetary relief as
final orders of the Commission. In such an action, it may be
expected that the court will remand the case to the Commission
for findings as to the final amounts of backpay, interest, a
reasonable attorney fee and litigation costs due to Complainant.
In either case, any final computation of backpay incurred after
March 2, 1992, will be subject to deduction for unemployment
compensation in accordance with the Commission's ruling.
2. Section 106(c) of the Act provides that "The
commencement of a [judicial review) proceeding .•. shall not,
unless specifically ordered by the court, operate as a stay of
the order or decision of the Commission •••. " I find that the
question of a stay of the judge's reinstatement order and order
for monetary relief should be addressed to the court in the event
of an appeal, and that no adequate showing has been made for a
stay by this judge.
ORDER

WHEREFORE IT IS ORDERED that:
1.
The Final Order dated March 31, 1992, is AMENDED to
change the backpay award at p. 2, to read: "Backpay and Interest
--- $17,058.00 (after deducting $6,942.00 for unemployment
compensation received in this period)" and to change the total
award to read "$34,123.80" instead of "$41,065.80" for the period
up to March 2, 1992. In all other respects, the Final Order is
unchanged.

1198

2. Complainant's motion to find at this time the amounts of
backpay, interest, an attorney fee and litigation costs incurred
after March 2, 1992, is DENIED.
3.
Respondent's motion to stay the judge's reinstatement
order and order for monetary relief is DENIED.

M~
4AMVV\._
William Fauver
Administrative Law Judge
Distribution:
Robert J. Tscholl, Esq., Roetzel & Andress, 220 Market Avenue,
south, Suite 520, Canton, OH 44702 (Certified Mail)
John c. Ross, Esq., Monty Donohew, Esq., Ross & Robertson, P.
Box 35727, Canton, OH 44735 (Certified Mail)
jfcca

1199

o.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLJ

ttNRZH!3vlS~~A 22041

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 92-895
A. C. No. 36-00840-03845

v.
Mine No. 33
BETHENERGY MINES, INC.,
Respondent
DECISION
Appearances:

Before:

Pamela W. McKee, Esq., u.s. Department of Labor
Office of the Solicitor, Arlington, Virginia for
Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll
Professional Corporation, Pittsburgh,
Pennsylvania, for Respondent.

Judge Weisberger
Statement of the Case

This case is before me based on a petition for assessment of
civil penalty filed by the Secretary (Petitioner) alleging a
violation by the operator of 30 C.P.R. § 75.316. Subsequent to
notice, a hearing was held in Johnstown, Pennsylvania on
March 10, and 11, 1993. At the hearing, John A. Kuzar, Gerald A.
Krosunger and Gene Ray testified for Petitioner. Robert L.
Price, Edward J. Fedorko, Stephen Horvath, and John M. Gallick
testified for Respondent.
On May 11, 1993, Respondent filed its Brief. Petitioner's
Brief was filed May 13, 1993. On May 19, 1993, Petitioner filed
a Reply Brief.
Findings of Fact and Discussion
1.
In May 1992, the 10 Left (LT) Longwall Section at
Respondent's Cambria Slope Mine No. 33, consisted of a return, an
intake, and a belt entry. The intake entry was between the
return and belt entries.
2.
Four carbon monoxide sensors were situated in the belt entry
to provide early warning, by way of a visual and auditory alarm,
of carbon monoxide (CO) in the atmosphere (indicating flaming or
combustion). One was placed 100 feet outby the drive at the head

1200

of the belt. The second sensor was situated 1,000 feet inby.
The third sensor was 1,000 inby the second. The fourth sensor
was 100 feet outby the tail of the belt.
3.
According to the Guidelines for the Installation and
Maintenance of a Mine Wide Carbon Monoxide Detection System at
cambria Slope Mine No. 33C BethEnergy Mines Inc .. CMSA. Dan
System), {"Ventilation Plan"), it is required that the co sensors
emit a visible and audible "warning" alarm when exposed to carbon
monoxide at a level more than 10 parts per million ("PPM"), above
the ambient 1 but less than 15 PPM. An "unannounced" alarm is
required to be emitted when the sensor is exposed to carbon
monoxide at a level of 15 PPM or more, and the source is unknown.
This alarm results in the activation of the fire defense and
evacuation plan.
4.
In actual practice, the carbon monoxide sensors at issue
were set to provide a "warning" at 4 PPM and an "alarm" at 7 PPM.
The presence of carbon monoxide at these levels is evidence of a
smoldering, flameless, combustion.
5.
The Ventilation Plan requires that "Air velocity along the
belt will be no less than 50 FPM."
6.
On May 16, 1992, John A. Kuzar an MSHA inspector-supervisor,
and Gene Ray, an MSHA inspector, inspected the intake entry of
the 10 (LT) longwall section at the subject mine.
An air
reading at the mouth of the intake entry indicated a velocity
above 50 feet per minute ("FPM"). An air reading taken at the
overcast of the mouth of the entry in question on May 19, 1992
indicated a velocity of 107 FPM. The section had extended only a
few hundred feet on May 19, 1992, and the inspectors were
concerned that air velocity would decrease as the entry
lengthened. According to Kuzar, the mine foreman, Edward J.
Fedorko, " ... was informed that there could be a problem
maintaining the 50 velocity on the belt if someone opens doors or
knocks one of their checks down on the track. He agreed.
I put
him on notice that they would have to watch the amount of air
because ten left could be warranting without fire protection."
(sic) (Tr. 55)
According to Fedorko, it was his recollection that the
discussions with Kuzar on May 19, regarding ventilation, related
to the latter's concern about the use of check curtains.
However, Fedorko did not explicitly rebut or contradict the
testimony of Kuzar that he (Fedorko) was informed by Kuzar of the
need to pay attention to the velocity of the air in the belt
entry. Nor did Stephen Horvath, the mine superintendent, who was
1

The ambient, considered as the normal background carbon
monoxide present in the atmosphere, was set at 11 0 11 •

1201

present on May 19, when Kuzar spoke to Fedorko, specifically
contradict Kuzar's testimony.
I therefore accept Kuzar's version
of the conversation he had with Fedorko and Horvath on May 19,
1992.
7. On July 6, 1992, at the end of the day shift, Horvath was
informed by the foreman of the day shift that the air velocity in
the belt entry, 10 LT, was more than 50 FPM, but was less than
normal. Horvath assigned Tom Corber, the shift foreman of the
next shift, to check the beltline and "make sure everything was
the way it was supposed to be." (Tr. 252) (sic). According to
Horvath, Corber advised him that readings that he took at
"several" locations indicated air velocity in the 70's, and that
independent readings taken by the Section foreman indicated an
air reading of 77 FPM. (Tr. 252)
8. Examinations of air velocity in the belt entry on the day and
night shifts on July 6, on all three shifts July 7-8, and on the
midnight shift, July 9, all indicated velocities in excess of 50
FPM.
9. On July 9, 1992, Kuzar inspected the 10 LT longwall section
at the sub~ect mine along with Gerald A. Krosunger, an MSHA
inspector.
At about 9:30 a.m. Kuzar took 5 traverse smoke tube
tests of the air movement in the belt entry 100 feet outby
station 7920, which indicated air velocity of 26.54 feet per
minute. 3 An order was issued under Section 104(d) (2) of the Act,
alleging a violation of 30 C.F.R. § 75.316.
10. About 40 minutes after the Order was issued, Horvath and
Fedorko traveled from other areas of the mine to the 10 Left
section. Along the way, Fedorko made a minor adjustment in a
check curtain that was installed in the track entry. This
adjustment did not affect the ventilation in the belt entry in
the 10 left section. Once Fedorko entered the 10 left belt
entry, he took an anemometer reading near the mouth of the
section between survey stations 7778 and 7785. The reading
indicated a velocity of 80 FPM. As he walked up towards the
section, he took four or five more readings along the belt, and
they were all between 70 and 80 FPM. When he arrived at the
tailpiece and met with Kuzar and Krosunger, he took a reading
that indicated a velocity of 68-70 FPM.

2

0n July 9, 1992, Krosunger had not yet received his
certification as an authorized representative of the Secretary.
3

In taking the smoke tube test, Kuzar and Krosunger stood 10
feet apart, and timed the flow of smoke between them. An order
was issued alleging a violation of the Ventilation Plan.

1202

11. Approximately 1 1/2 hours after the order in question was
issued by Kuzar, Horvath took an anemometer reading of 67 FPM at
the location where Kuzar had taken the initial smoke tube tests.
Kuzar then took smoke tube tests which indicated an air velocity
of 53 FPM and the order was terminated.
Discussion and Additional Findings of Fact
I.

Violation of the Ventilation Plan

It is the position of Respondent, that Petitioner has not
met his burden of proof in establishing that a violation occurred
herein i.e., that the air velocity was less than 50 FPM.
Respondent argues, in essence, that readings taken by Fedorko
after the order in question was issued, and all prior readings
indicated air velocities more than 50 FPM, including one taken a
few hours prior to the issuance of the order. Respondent also
argues that the smoke tube readings may have been inaccurate.
In
this connection, Respondent cites the fact that Kuzar utilized a
10 percent correction factor, which reduced the figure arrived at
by results of the smoke tube tests by 10 percent, whereas Horvath
testified that he has never utilized such a correction factor.
Respondent also argues, on the basis of responses given by
Krosunger on cross-examination, that in performing the smoke
tube test, at the time of the arrival of the smoke Kuzar had to
simultaneously observe the smoke, and the face of his watch.
Respondent also points to the disparity between the smoke tube
test results indicating an air velocity of 53 FPM which formed
the basis of the termination of the Order at issue, and the
anemometer readings, on two different types of anemometers, of 66
and 67 FPM.
I do not find Respondent's arguments to be
persuasive for the reasons that follow.
The Ventilation Plan requires that air velocity in the area
in question be at a minimum 50 FPM. Five smoke tube tests taken
by Kuzar indicated a velocity of only 26.54 FPM which, even
adding on to this figure the 10 percent that had been reduced by
Kuzar as a correction factor, results in a velocity of 26.89 FPM
which is significantly less than the required 50 FPM. Anemometer
readings taken before and after those taken by Kuzar indicated an
adequate velocity of air, and there was a disparity between the
smoke tube tests and anemometer test results at the time of
termination.
However, I place most significance on the fact
that there were no anemometer tests taken at the same time, at
the same place as those smoke tube tests taken by Kuzar which
indicated a velocity less than 50 FPM. Hence, there are no
anemometer results, or other physical evidence which directly
contradict the results obtained by the smoke tube tests taken by

1203

Kuzar. 4 I find that the smoke tube tests taken by Kuzar
establish that at about 9:00a.m., July 9, the air velocity in
the belt entry at the site of the tests was significantly less
than so FPM. Hence, I conclude that Respondent did violate its
Ventilation Plan, and hence a violation 30 C.F.R. § 75.316
occurred as alleged in the order at issue.
II.

Significant and Substantial

In analyzing whether the facts herein establish that the
violation was significant and substantial, I take note of the
recent decision of the Commission in Southern Ohio Coal Company,
13 FMSHRC 912, (1991), wherein the Commission reiterated the
elements required to establish a significant and substantial
violation as follows:
We also affirm the judge's conclusion that the
violation was of a significant and substantial nature.
A violation is properly designated as significant and
substantial "if, based on the particular facts
surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum Co.,
3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6
FMSHRC 1, 3-4 (January 1984), the Commission explained:
In order to establish that a violation
of a mandatory standard is significant and
substantial under National Gypsum the
Secretary must prove:
(1) the underlying
violation of a mandatory safety standard;
(2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to
by the violation; (3) a reasonable likelihood
4I

reject, as mere conjecture, Respondent's argument that
the smoke tube tests readings may have been inaccurate, as mere
conjecture. Respondent argues that Kuzar had to simultaneously
observe smoke and his watch face. This conclusion is not based
on any portion of Kuzar's testimony, but on responses given by
Krosunger on cross-examination. In this connection, Krosunger,
who at the time of the testing stood 10 feet from Kuzar,
testified as follows on cross-examination: "Q. Okay. So he
said to you now and then you release the smoke? A. Correct. Q.
And then the smoke would travel down to Mr. Kuzar? A. Correct.
Q. And he would look at his watch to see how long it took the
smoke to travel? A. Correct. Q. And he would do that --- or
he did that by watching a smoke cloud and simultaneously looking
at his watch? A. Correct." (Tr. 159) I find this testimony
insufficient to impeach the test results obtained by Kuzar.

1204

that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood
that the injury in question will be of a
reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d
99, 103-04 (5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria). The
third element of the Mathies formula "requires that the
Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which
there is an injury" (U.S. Steel Mining Co., 6 FMSHRC
1834, 1836 {August 1984)), and also that the likelihood
of injury be evaluated in terms of continued normal
mining operations (U.S. Steel Mining Co., Inc. 6 FMSHRC
1573, 1574 (July 1984); see also Halfway, Inc., 8
FMSHRC 8, 12 (January 1986)." {Southern Ohio, supra at
916-917).
Hence, as elaborated upon by u.s. Steel, supra, in order to
establish the third element set forth in Mathies supra, it must
be established that there was a reasonable likelihood of the
occurrence of an injury producing event, i.e., in this case a
fire.
{Petitioner's Post Hearing Brief, p.15) Petitioner
concedes that at the time of the violation there was "no evidence
of fire potential". Petitioner argues that the situation must be
viewed in terms of continued mining operations, and refers to the
testimony of the inspectors which Petitioner summarizes as
follows:
"During the normal course of mining, the possibility of
hot rollers, coal spills, and problems with electrical
components, the belt drive, or the starter box all contributed to
the reasonable possibility of a fire, which would go undetected
for a longer period because of the reduced air velocity."
(Emphasis added)
(Petitioner's Brief P.6) Certainly the fire
producing conditions referred to by the inspectors could have
occurred in the normal course of mining, but the record does not
establish that these conditions were reasonably likely to have
occurred. To the contrary, I take cognizance of the existence of
the following conditions within the framework of which it must be
considered whether a fire was reasonably likely to have occurred:
the lack of any accumulation of combustible materials along the
belt; the effect of the height of the belt and the reduction in
potential for friction between the belt or a belt roller and an
accumulation of combustible materials; the belt slip switches
were in good working order, reducing the potential for frictional
heating of the belt; the belt sequence switches were in good
working order, reducing the potential for an accumulation of coal
because of malfunction of an outby belt; the belt was in good
alignment on July 9, reducing the likelihood of spills or
frictional rubbing of the belt; there were no electrical defects
along the belt; there were no defective rollers along the belt;
the conveyor belt was fire resistant; and the lack of any history

1205

of reportable belt fires at the subject mine.
Within the framework of this record, I conclude that it has
not been established that there was a reasonable likelihood of
the occurrence of a fire herein. Accordingly the third element
of Mathies supra, has not been established. Thus, I conclude
that it has not been proven that the violation herein was
significant and substantial.
III.

Unwarrantable failure

According to Petitioner, the violation herein resulted from
Respondent's unwarrantable failure.
In this connection,
Petitioner argues that on May 19, 1992, Kuzar had put Respondent
on notice of his concern that there could be problems with the
air velocity in 10 left; that management was aware that the air
velocity was marginal; that when Horvath was informed on July 6,
1992 that there was a "surge" in the air velocity he should
thereby have become aware that there were velocity problems in 10
left; and that Respondent had failed to ensure that velocity
readings were taken toward the tail where the readings would most
accurately reflect the velocity along the entire belt entry.
For
the reasons that follow I reject Petitioner's arguments.
In Emery Mining Corp, 9 FMSHRC 1997, 2004 (December 1987),
it was determined by the Commission that unwarrantable failure is
aggravated conduct which constitutes more than ordinary
negligence. Management was made aware by Kuzar on May 19, that
there could be problems with the air velocity on the 10 Left
Section. However, there is insufficient evidence that the
specific violative condition herein i.e., air velocity below 50
FPM at approximately 9:30 a.m. on July 9, was the result of
Respondent's aggravated conduct. There is no evidence in the
record as to the cause of the decrease in the air velocity
observed by Kuzar. Nor is there any evidence that the decrease
in the air velocity below the requirement of the Ventilation Plan
had existed for any significant period of time.
To the contrary,
testing of the air velocity on July 6, on all three shifts July 7
and 8, and during the pre-shift examination between approximately
3:30 a.m. and 4:30 a.m. on July 9, all indicated air velocities
in excess of 50 FPM. 5 Further, according to Horvath, whose
testimony I found credible on this point based on observations of
his demeanor, when he had informed Kuzar on July 10 that he knew
the air was marginal, he meant to refer to an incident that had
occurred on July 6, 1992. On that date, he was advised by the
foreman at the end of the day shift that there was a surge in the
air velocity, and that although the air velocity was more than 50
FPM, it was less than normal. It is significant to note that
5

The pre-shift examination of air velocity was made 100 feet
outby the tail.

1206

upon receipt of this information, Horvath assigned the shift
foreman of the next shift to check the belt entry, and the latter
reported that air velocity readings were in excess of 50 FPM.
Within the framework of the evidentiary record as set forth
above, I conclude that it has not been established that the
violation herein resulted from any aggravated conduct on the part
of Respondent. Hence, I conclude that the violation herein did
not result from any unwarrantable failure on the part of
Respondent.
IV.

Penalty

In analyzing the gravity of the violation herein, I find
that in the event of a fire, or if smoke is present, time is of
the essence in warning miners to escape, these hazards.
In this
connection, I note that carbon monoxide in a stream of air, as a
result of a fire or smoke, would travel to the first sensor in
the belt entry in 2 minutes if the air velocity is 50 FPM.
In
contrast, if the air velocity is only 26 FPM, it would take
approximately 4 minutes for the air stream to reach the sensor.
However, it was the testimony of John M. Gallick, who was
Respondent's Director of Safety at the dates in question, that,
in essence, in the event of a fire producing co, the relative
amount of co that would be found in a quantity of air (expressed
as PPM) is related to the velocity of the air. The lower the
velocity of the stream of air, the greater would be its
concentration of co. Accordingly, he opined that a warning
sensor set at 4 PP~ would detect co in an air stream moving at
25 FPM at about the same time as a sensor set at 10 PPM7 • I
accept this testimony since it was not contradicted or impeached.
I find Respondent's negligence herein to have been mitigated
by the factors discussed above, III infra.
Considering all the above, and taking into account the
remaining factors set forth in Section 110{i) of the Act, as
stipulated to by the parties on the record at the commencement of
the hearing on March 10, 1993, I find that a penalty of $200 is
appropriate for the violation found herein.

~espondent's actual sensor setting for a warning alarm.
7

The Plan's requirement for a warning alarm.

1207

ORDER

It is ORDERED that Respondent pay a civil penalty of $200
within 30 days of this decision. It is further ORDERED that
Order No. 2689541 be amended to a Section 104(a) citation to
reflect the fact that the violation cited therein was not as a
result of Respondent's unwarrantable failure, and was not
significant and substantial.

--

.,

I

'

I

'~

.
Av am eJ.sberger
Administrative Law Judge

Distribution:
Pamela W. McKee, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market Street, 14480 Gateway Building,
Philadelphia, PA (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll Professional
Corporation, USX Tower, 57th Floor, 600 Grant Street, Pittsburgh,
PA 15219 (Certified Mail)
nb

1208

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203LEESBURG ~KE
FALLS CHURCH, VIRGINIA 22041

JUN 2 31993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 92-1075
A. C. No. 46-01977-03737R

vc No. 12-A Mine

VALLEY CAMP COAL COMPANY,
Respondent
DECISION

Appearances:

Before:

Pamela s. Silverman, Esq., u.s. Department of
Labor, Office of the Solicitor, Arlington,
Virginia, for Petitioner;
David J. Hardy, Esq., Jackson & Kelly, Charleston,
West Virginia, for Respondent.

Judge Weisberger

This case is before me based upon a Petition for Assessment
of Civil Penalty filed by the Secretary of Labor (Petitioner)
alleging a violation by Valley Camp Coal Company, (Respondent) of
30 C.F.R. § 75.316. Pursuant to notice, the case was heard in
Charleston, West Virginia, on April 20, 1993. At the hearing,
Sonny A. Davenport, testified for Petitioner, and Richard Waugh,
and Harold L. Proctor, testified for Respondent.
Subsequent to the hearing, on June 1, 1993, Petitioner filed
a Brief, and Respondent filed an Argument in Support of Findings
of Fact and Conclusions of Law. Respondent's Reply was received
on June 7, 1993, and Petitioner's Reply Brief was received on
June 11, 1993.
Findings of Fact and Discussion
I.

Violation of 30 C.F.R. § 316

On April 24, 1990, Sonny A. Davenport, an MSHA inspector,
inspected Respondent's No. 12-A Mine. He observed that in the
One Right Section, between entries 2 and 3, there were no
stoppings in the first two crosscuts outby the face.
He also
observed that there were only check curtains in the 3rd and 4th
crosscuts outby the face. He issued a Section 104(d) (2) order
alleging a violation of 30 C.F.R. § 75.316. Section 75.316
supra, in essence, requires a mine operator to comply with its
ventilation plan. That plan, as pertinent, provides as follows:

1209

"Permanent stoppings shall be erected between the intake and
return air courses and shall be maintained to and including the
third connecting crosscut outby the faces of entries . . . • "
{Government Exhibit No. 3, p.3) Respondent has conceded the
violation, and I find based on the testimony of Davenport, that
Respondent herein did violate Section 316, supra.
II.

Unwarrantable Failure

According to the uncontradicted testimony of Davenport, when
he examined the return entry at approximately 9:00 a.m. on
April 24, there were permanent stoppings only up to the 5th
crosscut outby the face, and there were no permanent stoppings in
the 4th and 3rd crosscuts outby the face, in violation of the
ventilation plan. Thus, Respondent initially had been in
violation of the ventilation plan when the present 2nd crosscut
outby the face was initially cut through, as the record does not
establish that there were permanent stoppings installed in the
3rd crosscut outby the face {the present 4th crosscut outby the
face)as required by the ventilation plan. The record does not
contain the testimony of any persons having personal knowledge as
to the amount of time that elapsed between when Respondent was
first in violation of the ventilation plan, and when the
violative conditions were observed and cited by Davenport. 1 Nor
is there any documentary evidence on this point.

1

According to Respondent's Safety Director, Richard Waugh,
it takes approximately an hour to cut a 30 foot break or crosscut
between two entries, and its takes approximately an hour and
a-half to cut an advance into the face, which is a 45 foot cut.
There is no evidence in the record as to the actual mining
sequence that took place i.e., the number of cuts taken between
the time the violative condition initially occurred, and the
state of development of the section as observed by Davenport on
April 24. According to Harold L. Proctor, who was the foreman of
the day shift at the time in question, a sequence of mining
straight across all six entries, as depicted in numerical order
on Government Exhibit No. 4, was the sequence that was used "most
of the time". {Tr.120) Considering the number of cuts in this
sequence, and the lack of coal production during the mid-night
shifts, it would have taken approximately 26 hours for mining to
have progressed from the time the crosscut creating the violative
condition was cut through, until the state of development was in
place as observed by Davenport. However, according to Proctor,
Respondent also utilized other sequences "a lot" {sic) {Tr.121)
in which only three entries were advanced at a time. Under this
sequence approximately 18 1/2 hours would have elapsed between
the time the violative condition was created, and the extent of
the development of the section that was observed by Davenport.

1210

The Preshift Mine Examiner's Report for the area in question
for April 23, 1990, indicates that an examination was made
between 2:00 p.m. and 2:30 p.m. but there is no notation that
stoppings were needed. However, the Preshift Mining Examiner's
Report for April 24, 1990, for the area in question indicates an
examination between 4:00p.m. and 4:30p.m., and notes as
follows: "need stopping intake and return". The Preshift Miner
Examiner's Report for April 23, 1990, indicates an examination
of the area in question between 9:30p.m. and 10:30 p.m., and
contains the following notation: "need stoppings intake and
return".
There is insufficient evidence in the record that Respondent
had taken timely action to correct the violative conditions.
According to Davenport, when he made his inspection on April 24,
no one was working on constructing the stoppings, and he did not
observe any stacks of blocks or construction materials. Richard
Waugh, Respondent's Safety Director, who was present with
Davenport, did not indicate that he observed any work being
performed on the construction of stoppings. However, he
indicated that Harold Proctor, the day shift foreman, had
informed him on April 24, after Davenport issued the order in
question, that when the crew had first arrived on the section
that day, he (Proctor) had assigned two men to get blocks for the
stoppings. However, Proctor testified that he did not remember
talking to Waugh, nor did he remember anything about the
construction of stoppings on the morning in question. Nor did he
recall telling two Inen on the crew to get blocks for stoppings.
In essence, Respondent argues that it fully heeded all the
notations in the Preshift Mine Examiner's Report, and did all the
requisite work with the exception of the construction of the
stoppings in the return entries. However, no evidence was
adduced by personnel having personal knowledge as to why
Respondent had not installed permanent stoppings as required by
the ventilation plan in a timely fashion i.e., no evidence was
presented to mitigate its negligent action in this regard. In
this connection, I find that the record establishes that:
(1)
Respondent initially violated its plan when it cut through the
present second crosscut outby the face without constructing a
permanent stopping in the third crosscut outby the face (the
present 4th crosscut outby); (2) Respondent continued mining
until, when observed by Davenport on 9:00 a.m. April 24, the face
had advanced, and an additional crosscut had been cut; and (3)
when observed by Davenport, Respondent was in violation of having
no permanent stoppings at both the 3rd and 4th crosscuts outby
the face.
Within the framework of the above evidence, I conclude that
the degree of Respondent's negligence herein was more than

1211

ordinary, and constituted aggravated conduct. 2
Mining Corp., 9 FMSHRC 1997, 2004 (1987)).
III.

(See, Emery

Penalty

Although the gravity of the violation herein was low
considering the fact that there was no methane present, and the
air velocity was more than adequate, the violation resulted from
Respondent's high degree of negligence as set forth above (II,
infra). Taking this factor into account, as well as the other
statutory factors set forth in Section 110(i) of the Act, as
stipulated to by the parties at the hearing, I conclude that a
penalty of $500 is appropriate for the violation found herein.
ORDER

It is hereby ORDERED that the Order issued by the inspector
be affirmed as written. It is further ORDERED that Respondent
shall, within 30 days of this decision, pay $500 as a civil
penalty for the violation found her;6f.
~

~sberger
Administrative Law Judge
Distribution:
Pamela s. Silverman, Esq., Office of the Solicitor, u.s.
Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203 (Certified Mail)
David J. Hardy, Esq., Jackson & Kelly, P.O. Box 553, Charleston,
WV 25322 (Certified Mail)
nb

2

Davenport indicated that in his view unwarrantable failure
means "knew or should have known" (Tr.54). It thus appears that
he did not use the proper test, as set forth by the Commission in
Emery, supra, in concluding that Respondent's negligence herein
constituted an unwarrantable failure. I find however, based upon
a de novo analysis of the record, that the evidence before me
establishes an unwarrantable failure, as defined in Emery supra,
on the part of Respondent.

1212

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

JUN 2 31993

CIVIL PENALTY PROCEEDING

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

Docket No. YORK 92-124-M
A.C. No. 18-00035-05508

v.

Medford Quarry

GENSTAR STONE PRODUCTS CO.,
Respondent
DECISION
Appearances:

Gayle Green, Esq., Office of the Solicitor,
u.s. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Kevin Sniffen, Esq., Genstar Stone Products
Company, Hunt Valley, Maryland, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil
penalty filed by the petitioner against the respondent pursuant
to section 110(a)of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking a civil penalty assessment of
$168 for an alleged violation of mandatory safety standard
30 c.F.R. § 56.14131(a), which requires seat belts to be provided
and worn in haulage trucks. The respondent filed a timely
contest and answer conceding the fact that the cited truck
operator was not wearing the seat belt, but contesting the
inspector's finding that the violation was "significant and
substantial" (S&S). A hearing was held in York, Pennsylvania,
and the parties filed posthearing briefs which I have considered
in the course of my adjudication of this matter.
Issues
The issues presented in this proceeding are (1) whether the
respondent has violated the cited standard as alleged in the
proposal for assessment of civil penalty, (2) whether the
violation was "significant and substantial", and (3) the
appropriate civil penalty that should be assessed based on the
criteria found in section llO(i) of the Act. Additional issues

1213

raised by the parties are identified and disposed of in the
course of this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

Section 110(i) of the 1977 Act, 30 u.s.c.

3.

30 c.F.R.

4.

Commission Rules, 20 C.F.R.

§

§

820(i).

56.14131(a).
§

2700.1 et seq.

Stipulations
The parties filed the following prehearing stipulations:
1.

Medford Quarry is owned and operated by the respondent.

2. Medford Quarry is subect to the jurisdiction of the
Federal Mine Safety and Health Act of 1977 ("the Act").
3. The presiding Administrative Law Judge has jurisdiction
over the proceeding pursuant to § 105 of the Act.
4. The citation and termination were properly served by a
duly authorized representative of the Secretary upon an
agent of the respondent at the date, time, and place stated
therein and may be admitted into evidence for the purpose of
establishing their issuance.
5. The parties stipulate to the authenticity of their
exhibits but not to the relevance or the truth of the
matters asserted therein.
6.

The alleged violation was abated in a timely manner.

7. The violation of 30 c.F.R. § 56.14131(a), occurred as
described in Citation No. 3869428, issued March 24, 1992.
The parties do not agree, however, with respect to the
Inspector's assessment of the gravity and negligence of the
violation.
8. The computer printout reflecting the respondent's
history of violations is an authentic copy and may be
admitted as a business record of the Mine Safety and health
Administration.
With regard to the proposed stipulations concerning the
Quarry production, Nos. 8 and 9, the respondent's counsel stated
that the total annual production of the Medford Quarry is

1214

approximately 600,000 to 700,000, tons per year, rather than the
65,630, stipulated amount previously submitted by the parties,
and that the total company production is greater than the 1.8
million production figure submitted by the parties (Tr. 7).
Discussion
The contested section 104(a) "S&S" Citation No. 3869428,
issued by MSHA Inspector Elwood s. Frederick, on March 24, 1992,
citing an alleged violation of mandatory safety standard
30 C.F.R. § 56.14131(a), states as follows:
The operator of the stock truck company No. 603 was not
wearing his seat belt. This truck was being operated
in and around the plant area hauling material to
stockpiles.
Petitioner's Testimony and Evidence
MSHA Inspector Elwood s. Frederick confirmed that he issued
the citation in question in the course of a regular inspection at
the respondent's quarry site on March 24, 1992, and that he was
accompanied by the mine superintendent. Mr. Frederick stated
that while with the superintendent in his pickup truck in the bin
area he noticed that the cited truck that had just dumped a load
of crushed stone material was proceeding down the slight grade
from the stockpile with the truck bed in the air. The driver
was lowering the bed as he was traveling down the road.
Mr. Frederick stated that he waited until the truck pulled into
the bin area, and as it was pulling in under the bin he walked
toward the truck and motioned the driver to open the door because
he wanted to speak with him about traveling with the truck bed in
the air. When the driver opened the door Mr. Frederick observed
that the seat belt was hanging down between the door and the
seat. When he asked the driver about it, the driver informed him
that he unhooked the seat belt when Mr. Frederick motioned to him
and that the belt fell down. Mr. Frederick stated that he
observed that the driver had both hands on the steering wheel as
he was pulling into the bin area and he informed the driver that
he was issuing a citation for not wearing his seat belt and told
him that he was not to travel around the plant with the truck bed
in the air (Tr. 14-16).
Mr. Frederick stated that the superintendent informed him
that his people are instructed not to travel with truck beds
raised in the air (Tr. 17). Mr. Frederick did not believe that
the driver had just unhooked his seat belt after he motioned to
him because he observed the driver with both hands on the wheel
and that the driver "had to be pretty fast to unbuckle that"
(Tr. 18). Mr. Frederick stated that "the road was fairly wide
and in fairly decent shape", and that the cited truck was

1215

traveling approximately ten miles an hour and one other truck was
also hauling material (Tr. 20-21).
Mr. Frederick stated that he considered the violation to be
significant and substantial because the truck bed was raised and
the driver was coming down a slight grade. With the bed in the
air, the center of gravity of the truck changed and it could
upset very easily. Mr. Frederick was aware of documented
accidents where trucks have hit potholes and overturned, or a
driver applies his brakes to avoid another truck and loses
control of the vehicle (Tr. 22). Mr. Frederick did not cite the
truck for having the bed raised, but in hindsight, stated that
"I should have issued an imminent danger order" (Tr. 24).
Mr. Frederick stated that traveling with the truck bed
raised was not a good safety practice, and MSHA requires that the
bed be down to the horizontal position after a driver dumps a
load at the stockpile and leaves the area. He also alluded to
several hazards associated with stockpiles, and confirmed that
the stockpile in question was well-maintained (Tr. 25-29). He
confirmed that he based his "S&S" finding on the raised bed of
the truck changing the center of gravity of the truck, and not
because of any stockpile conditions. He also indicated that
there was one other vehicle in the area, and that if the driver
hit a pothole or something in the road, "he has more likelihood
of upsetting that truck" (Tr. 30). He also believed that by
allowing the driver to continue to operate the truck with the bed
in the air "it's reasonably likely if nothing's ever done that
there will be an accident". The failure to wear a seat belt
would contribute to the severity of an accident if one were to
occur, and he was aware of accident reports where a driver not
wearing a seat belt was propelled about his cab and was killed
after striking his head. He believed that a driver with his seat
belt fastened "stands a greater chance of not coming out with
serious injury or fatality than he does if he's not wearing a
seat belt" (Tr. 31-33).
Mr. Frederick stated that he based his "moderate" negligence
finding on the fact that the respondent "does a good job", and
had a seat belt policy which it enforced, including disciplinary
action against its employees (Tr. 34, 37). Mr. Frederick stated
that if the truck bed were not raised, he would not consider the
failure to wear a seat belt to be "S&S" because the truck would
have been stable with the bed down (Tr. 42). The violation was
abated the same day it was issued after he instructed the truck
driver to hook up his belt and the driver was disciplined by the
respondent (Tr. 44).
On cross-examination, Mr. Frederick confirmed that he was
familiar with MSHA's policy guidelines concerning "S&S"
violations, and the requirement that any "S&S" finding should be
consistent with the information recorded in his notes and

1216

evaluation of all of the facts. He confirmed that the citation
and his notes do not mention that the raised truck bed was the
basis for his "S&S" finding (Tr. 47). He stated that the fact
that the bed was raised was significant, but that " a lot of
things we don't put in our notes", and he conceded that "to a
certain degree", he did not comply with MSHA policy in this
regard (Tr. 48).
Mr. Frederick confirmed that when he issued the citation,
the stockpile was in good shape and the road was smooth and wellmaintained "to a degree", and the truck was traveling on a slight
incline at a safe speed (Tr. 52). He reiterated that he based
his 11 S&S 11 finding on the fact that the truck bed was in the air,
thereby changing the center of gravity of the truck, and the
presence of other vehicles in the area (Tr. 57). The raised
truck bed was a contributing factor to his "S&S" finding, and the
failure to wear a seat belt contributed to the severity of any
accident (Tr. 57-59). Mr. Frederick confirmed that he has issued
seat belt violations which he did not consider were "S&S"
violations (Tr. 63-64).
In response to further questions, Mr. Frederick confirmed
that the truck driver in question was beginning to lower his
truck bed as he drove away from the stockpile, and it was down
when he pulled into the bin area (Tr. 67-68). He confirmed that
the respondent had established "rules of the road and traffic
patterns" for its vehicles (Tr. 71). He confirmed that the other
truck that he previously referred to was not in close proximity
to the truck that he cited, but it was possible for both trucks
to pass each other in opposite directions on the roadway
(Tr. 71). Mr. Frederick also explained the dumping of material
at the stockpile, and he conceded that he had no knowledge as to
whether the driver was wearing his seat belt while operating at
the stockpile area (Tr. 75-77). Mr. Frederick was not aware of
any prior seat belt violations at the respondent's quarry
(Tr. 81).
Respondent's Testimony and Evidence
Gene Larrick, quarry superintendent, confirmed that he was with
Inspector Frederick at the time the citation was issued.
Mr. Larrick confirmed that he observed the truck leaving the
stockpile with the truck bed up, but he did not observe the
driver without his belt on. Mr. Larrick also confirmed that the
driver was disciplined for driving with his truck bed raised and
for the seat belt violation (Tr. 90). He confirmed that the
respondent has a policy that drivers not leave dumping areas with
their truck beds raised, and that he and his supervisors
periodically check to see that employees wear their seat belts.
He stated that the respondent has a mandatory policy requiring
the wearing of seat belts at all times on equipment without
rollover protection (Tr. 91). He also confirmed that the

1217

respondent has a Job Safety Analysis (JSA) for employees covering
safety procedures at dumping areas and that seat belt training is
provided to employees (Tr. 91-92).
Mr. Larrick stated that he remained in his pickup truck in
the bin area while Mr. Frederick went to the truck to speak to
the driver, and that Mr. Frederick returned and told him that the
driver did not have his seatbelt on. Mr. Larrick confirmed that
he did not speak to the driver himself, and that Mr. Frederick
served the citation on him at the end of his inspection review.
Mr. Larrick stated that he spoke to the driver at a later time
and the driver told him that he had his seat belt on (Tr. 100).
Mr. Larrick confirmed that the driver received a written warning
for 11 a combination of the bed up and not wearing the seat belt 11
(Tr. 105). Mr. Larrick stated that he used the inspector's
observation to support the warning given to the driver for not
wearing a seat belt (Tr. 106).
On cross-examination, Mr. Larrick agreed that driving a
truck with the bed raised is a poor safety practice and against
company policy. The policy is based on safety considerations
(Tr. 107-108). Since he did not accompany the inspector when he
approached the truck to speak with the driver, Mr. Larrick could
not give an opinion as to whether or not the driver had just
disconnected his seat belt at that time (Tr. 109). Mr. Larrick
agreed that a raised truck bed could cause a problem with the
truck's center of gravity under certain conditions. Insofar as
the truck striking a pothole and becoming unstable is concerned,
Mr. Larrick stated that one would have to define a 11 pothole 11 and
stated 11 yes, it could happen. Anything can happen" (Tr. 110-111)
Jeff Carrey, respondent's safety supervisor, explained the
respondent's training policy with respect to safety and seat
belts (Tr. 112-114). He confirmed that he was familiar with the
citation issued by Mr. Frederick in this case and that he
participated in the closing inspection conference and discussed
the citation with the inspector (Tr. 115). He stated that he was
told at these meetings that "it was being written as 11 S and S 11
because the program policy manual indicated that they had to
write it 11 S and S" and that the inspector's 11 hands were tied"
because of the policy. The raised truck bed was discussed as a
separate issue (Tr. 115).
On cross-examination, Mr. Carrey confirmed that he was aware
of MSHA's program policy concerning seat belts and whether it
should be an 11 S&S" violation, and he stated that 11 1 see a lot of
MSHA inspectors, and their interpretation to me has been that the
seat belt violation is always an "S&S 11 violation (Tr. 119). He
.confirmed that his understanding of the policy language is that
11 under most circumstances 11 ,
such a violation is 11 S and S 11
(Tr. 119).

1218

Mr. Carrey confirmed that the truck driver who was warned
took the matter no further (Tr. 120). He also confirmed that the
driver had previously been disciplined for leaving work early,
and that he had been involved in past accidents when he collided
with two county trucks (Tr. 128-129). Mr. Carrey further
confirmed that the quarry had never been previously cited for any
seat belt violations (Tr. 129).
Insoector Frederick was recalled by the presiding judge, and
he reiterated how he determined that the truck driver in question
was not wearing his seat belt. Mr. Frederick stated that the
driver told him that he had his seat belt on, and Mr. Frederick
stated that he informed the driver that "the indications to me as
an inspector, you did not" (Tr. 123). Mr. Frederick stated that
the driver was not sitting on the seat belt, that it was hanging
down between the door and the seat, and he explained further as
follows at (Tr. 125):
A. Well, I based everything on the fact that when he
opened the door that I seen the seat belt hanging down.
Now, if it was laying up on his lap, it's very possible
that he could have unhooked it and it was unhooked
laying on his lap. But with the belt hanging down
between the seat and the door it was an indicator to me
that he did not have it on. He was not getting out of
the truck. He was still sitting in the seat of the
truck.
Roger McClintock, MSHA Special Investigator, was called as a
rebuttal witness by the petitioner. He explained his duties and
confirmed that he was familiar with MSHA's enforcement policies.
He stated that he has also served as an MSHA inspector and
training specialist, and he explained that the seat belt policy
is only a "guideline" for an inspector to use when evaluating a
seat belt violation. Mr. McClintock explained his understanding
of why Inspector Frederick found the violation to be "S&S", and
he indicated that if an accident occurs without the driver
wearing a seat belt, "the severity of that accident is going to
be much greater" (Tr. 135). He agreed with Mr. Frederick's "S&S"
finding because "he knew the operator did not have his seat belt
on • • • and he suspected that he came off the . . .possibly came
off the pile with the bed in the air and with the machine in an
unstable, you know, condition" (Tr. 138).
On cross-examination, Mr. McClintock confirmed that he was
aware of the definition of "significant and substantial", and in
his opinion, although the failure to wear a seat belt may not
cause an accident, it can affect an accident (Tr. 139).
Mr. McClintock further confirmed that there has to be a
reasonable likelihood of an accident and not just a remote
possibility. He confirmed that he was not present at the time

1219

the citation was issued and could not attest to the prevailing
conditions
(Tr. 142).
Findings and Conclusions
Fact of Violation
The respondent is charged with a violation of mandatory
standard 30 c.F.R. § 56.14131(a), which states that "Seat belts
shall be provided and worn in haulage trucks". In support of the
violation, the petitioner points out that in its answer filed in
this case the respondent stated that it "does not dispute the
fact that the operator of the stock truck was not wearing his
seat belt".
The petitioner also relies on the inspector's
testimony that when the driver opened the truck cab, he observed
that the seat belt was hanging down between the door and the
seat, and that when the driver was pulling his truck into the bin
area just prior to stopping and opening his door, both of his
hands were on the steering wheel. The petitioner concludes that
the clear inference from the time sequence of these observations
by the inspector is that the driver was not wearing his seatbelt
while driving the truck.
The petitioner asserts that the only indication of record
that the facts were not as stated above is the signed statement
of the truck driver, Mr. Francis Dorsey (Exhibit R-1). The
statement, which is dated March 9, 1993, reads in relevant part
as follows:
• • • • The safety inspector Gene Larrick was setting in
Gene's truck talking about 50 Ft. away. The inspector
got out was (sic) coming toward my truck being (sic)
loaded. I open my door starte (sic) out to meet (sic)
because in our J s A no one should walk under bins when
plant (sic) in operator (sic). He pointed and yelled
get back in and close door. I did not put my seat back
(sic) on. Its Genstar's rule that everyone must wear
seat belts when driving truck and etc.
The petitioner maintains that Mr. Dorsey's statement is mere
hearsay and is entitled to little, if any, weight. In addition
to the fact that the statement was not given under oath, the
petitioner asserts that it is also ambiguous and unclear. As an
example, the petitioner states that it is unclear· who Mr. Dorsey
was referring to in the phrase "he pointed and yelled get back
in" or what the statement "I did not put my seat back on" means.
Under the circumstances, the petitioner concludes that
Mr. Dorsey's statement is highly unreliable evidence, and that it
contradicts the other evidence in the record. The petitioner

1220

points out that neither the inspector, nor superintendent
Larrick, who waited in his truck while the inspector and
Mr. Dorsey talked, reported seeing Mr. Dorsey make any attempt to
get out of the truck.
The petitioner concludes that Mr. Dorsey's statement cannot
overcome the sworn testimony of the inspector, which was subject
to cross examination, as to what happened. Further, given the
fact that Mr. Dorsey was disciplined for not wearing his seat
belt, the petitioner concludes that even the respondent believed
the inspector's conclusion that Mr. Dorsey was not wearing his
seat belt, and did not believe Mr. Dorsey's story.
Relying on Mr. Dorsey's statement, the respondent maintains
that Mr. Dorsey was wearing his seatbelt at the time of the
alleged violation. The respondent asserts that Mr. Dorsey's
explanation is logically supported by the facts presented, and it
relies on Mr. Dorsey's contention that he was attempting to get
out of the truck when the inspector motioned for him to open the
door of the truck, and concludes that it was then that Mr. Dorsey
most likely unbuckled his seatbelt. Since the seatbelt was
between the door and the seat, the respondent believes that the
belt was buckled and then fell off Mr. Dorsey's lap when he
unbuckled it, as opposed to not having been worn at all and found
on the seat under him.
The respondent points out that the inspector admitted that
he did not actually see Mr. Dorsey operating the truck without
wearing his seatbelt, and simply observed that the belt fell out
of the truck when Mr. Dorsey opened the door. Under the circumstances, the respondent concludes that the inspector relied on
circumstantial evidence that Mr. Dorsey was not wearing his
seatbelt. Acknowledging the fact that it is almost impossible to
catch a driver "in the act" of not wearing his seatbelt, the
respondent contends that the inspector ignored persuasive and
convincing evidence that Mr. Dorsey had his seatbelt on and
unbuckled it to open the door when the inspector approached his
truck, as he was trained to do under the respondent's policy and
common practice.
The respondent believes that Mr. Dorsey's
story is the more credible and logical explanation of the facts
and refutes the circumstantial evidence presented by the
petitioner. Finally, the respondent asserts that Mr. Dorsey
contested the violation and the reprimand he received "by writing
and meeting with MSHA (the MSHA inspector and his-supervisor) and
Genstar's representatives to discuss the alleged violation".
In its answer filed on October 8, 1992, the respondent
stated as follows: "Genstar does not dispute the fact that the
operator of the stock truck was not wearing his seat belt".

1221

Further, the record reflects that on February 18, 1993, the
petitioner's counsel submitted prehearing stipulations agreed to
by the parties, and included therein is stipulation No. 7, which
states as follows:
The violation of 30 c.F.R. § 56.14131(a), occurred as
described in Citation No. 3869428, issued March 24 8
1992. The parties do not agree, however, with respect
to the inspector's assessment of the gravity and
negligence of the violation.
I take note of the fact that at the time the stipulations
were submitted the parties reserved the right to amend or
supplement their prehearing statements following further trial
preparation and within a reasonable time before the hearing.
However, during opening statements at the hearing, the previously
filed stipulations were reviewed by the parties, and except for a
minor disagreement concerning the respondent's production,
respondent's counsel agreed with the remaining stipulations,
including Stipulation No. 7, quoted above (Tr. 6-8). Further, at
the close of the petitioner's case, the respondent's counsel
agreed that there was no dispute as to the fact of violation (Tr.
82). However, he then proceeded to rely on Mr. Dorsey's
statement in support of his motion for summary judgement, and
argued that the statement establishes that Mr. Dorsey unbuckled
his seat belt when he got out of his truck, or was exiting the
vehicle, "the inference being that he was wearing his belt up to
that point" (Tr. 83). The motion for summary judgement was
denied (Tr. 85), and counsel's alternative motion for judgement
on the ground that the evidence did not support the inspector's
"S&S" finding was taken under advisement, and counsel proceeded
with his defense (Tr. 87-88).
Mr. Dorsey was not called to testify in this proceeding, nor
was he deposed by either party. Insofar as his unsworn statement
is concerned, I find it lacking in reliability and somewhat
confusing and I have given it little weight. Although the
respondent's counsel suggested that the statement was prepared
and witnessed by Mr. Larrick, when asked if this was true,
Mr. Larrick responded "it was just prepared and then I did read
the statement" (Tr. 92). Further, although Mr. Larrick confirmed
that he questioned Mr. Dorsey after the citation was issued and
stated that Mr. Dorsey told him that he did have his seat belt
on, I take note of the fact that Mr. Dorsey's statement is dated
March 9, 1993, more than a year after the issuance of the
citation.
Mr. Larrick testified that he remained in his own pickup
truck while the inspector approached Mr. Dorsey's truck, and
although Mr. Larrick stated that most drivers will get out of
their trucks and come to his truck when he is in the bin area, he
did not state that this was case with Mr. Dorsey. Indeed,

1222

Mr. Larrick doubted that Mr. Dorsey knew that Mr. Frederick was
an inspector when he approached his truck, and he indicated that
Mr. Dorsey initially opened the door as the inspector approached
his truck, and then closed it again (Tr. 94).
Inspector Frederick testified that as he approached
Mr. Dorsey's truck, he motioned for him to open his door because
he wanted to discuss his travelling with the truck bed in the
air. When the door was opened, Mr. Frederick noticed the seat
belt hanging down between the door and the seat, and he stated
that Mr. Dorsey told him that he had just unhooked it after
Mr. Frederick had motioned to him (Tr. 15-16). However,
Mr. Frederick obviously did not believe him since he issued the
citation, and he did so because he observed that Mr. Dorsey had
both hands on the steering wheel as he pulled into the bin area
and did not believe that he had time to unhook his belt as he
claimed (Tr. 16, 18).
Mr. Larrick testified that Mr. Dorsey was disciplined for
having his truck bed up as well as not having his seat belt on
(Tr. 105). Mr. Larrick confirmed that he did not personally see
the seat belt when Mr. Dorsey opened the truck door for the
inspector and that he could not state an opinion as to whether or
not Mr. Dorsey had just disconnected his seat belt before opening
the door. Mr. Larrick further confirmed that he relied on the
inspector's observations to support the disciplinary action taken
against Mr. Dorsey (Tr. 106).
The respondent's assertion that Mr. Dorsey contested the
violation and the company's disciplinary action taken against him
suggests that Mr. Dorsey formally appealed his reprimand and
therefore lends credence to his claim that he was wearing his
seat belt. I reject any such conclusion. The respondent's
safety supervisor, Jeff Carrey, explained that in addition to the
inspection closing conference, Mr. Dorsey sent a letter to MSHA,
and met with the inspector and his supervisor, to state his
position and disagreement with the inspector's finding that he
did not have his seat belt on (Tr. 114). However, Mr. Carrey
confirmed that since no company official observed the incident
regarding the seat belt citation, the respondent agreed with the
inspector and gave Mr. Dorsey a warning, and the matter went no
further within the company {Tr. 120-121). Mr. Larrick confirmed
that Mr. Dorsey has been involved in other "incidents" with the
truck other than seat belts, including collisions with two county
trucks (Tr. 128-219).
After careful review of all of the testimony and evidence
adduced in this proceeding, and apart from any admissions and
stipulations made by the respondent with respect to the
violation, I conclude and find that the petitioner has
established through a preponderance of all of the credible
evidence and testimony, albeit circumstantial, that Mr. Dorsey

1223

was not wearing his seat belt when he drove his truck into the
bin area after departing from the stockpile area on the day in
question. I further conclude and find that the failure by
Mr. Dorsey to wear his seat belt constitutes a violation of the
cited section 56.14131(a), and the violation issued by the
inspector IS AFFIRMED.
Significant and Substantial Violations
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove:
(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." u.s. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. u.s. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

1224

The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf. Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987). Further, any determination of the significant
and substantial nature of a violation must be made in the context
of continued normal mining operations. National Gypsum, supra,
3 FMSHRC at 825; U.S. Steel Mining Company, 6 FMSRC 1573, 1574
(July 1984); U.S. Steel Mining Co., Inc., 7 FMSHRC 327, 329
(March 1985). Halfway, Incorporated, 8 FMSHRC 8, (January 1986).
The Petitioner's Argument
The petitioner maintains that the violation was significant
and substantial (S&S). In support of its position, the
petitioner asserts that the record reflects the existence of a
discrete safety hazard, or a measure of danger to safety,
contributed to by the violation. The petitioner argues that
there was extensive testimony concerning the safety effects of
not wearing seat belts in haulage truck accidents, and it cites
Inspector Frederick's testimony concerning accident reports that
he had studied and reviewed showing injuries and fatalities
resulting from the failure to wear seat belts, and establishing
that a person secured in a seat belt stands a greater chance of
avoiding serious injury or death in an accident. The inspector
alluded to operators being propelled around inside their truck
cab or being ejected from the truck and either sustaining serious
injuries on impact from the fall or being struck or run over by
the truck itself. The petitioner also cites the testimony of
Supervisory Special Investigator McClintock concerning his review
of numerous haulage truck accidents, both fatal and non-fatal,
which the petitioner believes establishes that the failure to
wear seat belts constitutes a discrete safety hazard that
contributes to a measure of danger to safety because it
contributes to the severity of an injury suffered in an accident,
and can mean the difference between severely disabling injuries
and minor injuries.
The petitioner further argues that the facts presented in
this case support a conclusion that there was a reasonable
likelihood that the hazard contributed to by the violation would
result in a reasonably serious injury from a haulage truck
accident, and that it was reasonably likely that such an
accident, and resulting injury, would occur. In support of this
conclusion, the petitioner asserts that a truck travelling with
its bed in the air causes the center of gravity of the truck to
shift, and it becomes less stable and easily subject to upset.
The petitioner points out that the respondent admitted that
travelling with the bed up is an unsafe practice that affects the
stability of the vehicle, that it is against company policy, and
that employees have been instructed not to do it.

1225

The petitioner maintains that the practice of traveling with
the truck bed raised itself makes it more likely that a haulage
accident will occur, and that other factors observed by the
inspector, in combination with the raised bed, made an accident
reasonable likely. These "other factors" included twodirectional traffic on the same road going to the stockpile,
another haul truck operating in the same area and at the same
time hauling from the bins to the stockpile, a slightly graded
roadway, and the existence of a stockpile which is made of
material that is not compacted and is affected by weather
conditions. The petitioner asserts that all of these factors
contributed to the inspector's assessment that an accident was
reasonably likely, and that any injury received as a result of
the accident would be reasonably serious.
The petitioner denies the respondent's contention that
Inspector Frederick based his "S&S" findings on MSHA's June 27,
1990, Program Policy Letter regarding the wearing of seat belts,
and his belief that the policy required all seat belt violations
to be cited as "S&S", rather than on the facts and conditions
that he observed at the time the citation was issued. The
petitioner points out that the policy letter does not state that
all seat belt violations are "S&S", and merely states that the
failure to provide, maintain, or wear seat belts is a serious
safety hazard and under most circumstances should be a
significant and substantial violation. The petitioner agrees
that the appropriateness of an "S&S" designation depends on the
facts and circumstances observed at the time a·citation is
issued, and it maintains that the inspector's testimony
establishes that he relied on all of the aforementioned
conditions he observed. The petitioner also points out that
Inspector Frederick has issued non-"S&S" seat belt citations in
the past and confirmed that he would not have designated the
contested citation as "S&S" if the conditions had been different.
Commenting on three cases cited by the respondent's counsel
in the course of the hearing in which seat belt violations were
found not to be "S&S", the petitioner points out that in two of
those cases, the inspectors did not cite the violations as "S&S"
(Island Construction Co .. Inc., 11 FMSHRC 877 (April 1990); Brown
Brothers Sand Co., 12 FMSHRC 877 (April 1990). In Brown
Brothers, the petitioner states that the violation was not "S&S"
because the loader was being operated in a level area and there
were no facts that would make it likely that it would strike
other equipment or roll over. In the third case; Bennett
Trucking Co. and B & s Trucking Company, 12 FMSHRC 1038 (May
1990), the petitioner points out that the cited regulation,
section 77.1710(i), applied only to vehicles where there was a
danger of overturning, which was not established in that case,
whereas the language of the cited seat belt regulation in the
instant case is mandatory for all haulage trucks. Further, as
previously discussed, the petitioner states that there were a

1226

combination of factors, the most important one being the fact
that the truck was travelling with its bed raised, in itself an
unsafe practice against company policy, that made it reasonably
likely that an accident would occur. Under the circumstances,
the petitioner concludes that the cases relied on by the
respondent do not lend support to its position that the violation
should not have been cited as "S&S".
The Respondent's Argument
Citing the Commission's National Gypsum Company decision,
supra, and MSHA's policy manual guidelines for determining "S&S"
violations, the respondent maintains that it must be shown that
there was a reasonable likelihood of a serious accident, based on
the surrounding facts of the case, before the contested violation
can be designated as "S&S". The respondent asserts that an
objective standard of reasonable likelihood requires that the
probability of a serious accident resulting from a violation be
more than just remote or speculative. On the facts of this case,
the respondent concludes that there did not exist a reasonable
likelihood that a hazard or accident would have occurred on the
day in question.
The respondent further argues that MSHA's policy manual
states that before designating a violation as "S&S", a serious
injury must be "reasonably likely" to occur if the violation is
not abated. Citing Bennett Trucking Company, 12 FMSHRC 1038
(May 1990), the respondent maintains that the petitioner must
first establish the danger of the truck overturning before a
seatbelt violation could be designated as "S&S". The respondent
submits that MSHA's policy, and the case law, require that such
danger be reasonably likely, not just possible, and that the
inspector supported this position by admitting that he had first
determined that an accident was reasonably likely from the
truck's bed being in the air before stating that the seatbelt
violation would only then contribute to the severity of any
injuries.
The respondent contends that the evidence in this case does
not support the inspector's application of the "reasonable
likelihood" standard. In order for the inspector to have
properly determined that the violation was "S&S", the respondent
believes that he would have been required to find that there
existed the "reasonable likelihood" that the truck would have
overturned simply from having its bed being lowered as it pulled
away from a stable stockpile. The respondent asserts that there
was no evidence of any other unsafe conditions that could have
contributed to a potential accident, and that without the
presence of other factors, such as an unstable stockpile, or a
roadway pot hole, the probability of the truck overturning is
speculative at best, much less reasonably likely to have
occurred.

1227

The respondent concludes that the petitioner offered no
other evidence to support the inspector's 11 S&S" finding other
than references to irrelevant cases and studies which involved
factors not present in the instant case.
The respondent emphasizes the fact that there has never been
an instances at its quarry where a truck has overturned from
lowering its bed while safely proceeding down a slight grade, and
that the inspector could not recall of any instances in his
experience where this has occurred without some other unsafe
force or factor involved.
The respondent points out that MSHA's policy manual dealing
with "S&S" violations provides that an inspector shall include
all of the factors relevant to his evaluation of a violation as
"S&S" in his inspection notes. Although the inspector claimed at
the hearing that he based his "S&S" finding on the fact that the
truck bed was up, and that he tries to include pertinent
information in his notes "right there on the spot", the
respondent points out that he made no mention of the truck bed
being up in the air in his notes or in the citation. The
respondent contends that the inspector gave little weight to the
raised truck bed when he designated the violation as "S&S". In
support of this conclusion, the respondent relies on the absence
of this information in the inspector's notes, and his statement
at the closing conference that his hands were tied because of
MSHA's seatbelt policy. The respondent submits that the raised
truck bed only became a significant factor once it decided to
challenge the seatbelt policy.
Finally, the respondent maintains that on the basis of its
dealings with MSHA, it believes that the inspectors are
overzealously assessing all alleged seatbelt violations as "S&S"
pursuant to its policy statement, irrespective of mitigating
circumstances. Even assuming the existence of mitigating
circumstances, the respondent still believes that MSHA's policy
does not state the proper standard by which "S&S" violations
should be judged as required by its own policy that requires an
inspector to find that there is a "reasonable likelihood" of an
injury or illness in order to designate the violation as "S&S",
and not just a remote possibility of an accident, or the
presumption of an 11 S&S" violation based on the policy manual.
The respondent concludes that the inspector in this case
improperly applied MSHA's policy, as well as the case law, in
finding that the violation was "S&S".
I conclude and find that whether or not Inspector Frederick
relied on MSHA's policy manual as the basis for his "S&S" finding
is not particularly critical. The Commission has held that such
policy instructions "are not officially promulgated and do not
prescribe rules of law binding upon an agency" (Commission) • Ql9.
Ben Coal Company, 2 FMSHRC 2806, 2809 (October 1980). However,

1228

since the policy manual guidelines and instructions are intended
to provide instructions and assistance to inspectors as they go
about their daily inspection duties, and are relied on by the
industry so that it may be aware of MSHA's interpretations and
applications as a means of staying in compliance, I would expect
an inspector to follow the policy. In this case, the inspector
conceded that he failed to follow the policy with respect to
noting and documenting each essential factor that prompted him to
make his "S&S" finding.
Although I find some merit in the respondent's suggestion
that MSHA's policy guidelines with respect to seat belt
violations provide a ready formula for an inspector to conclude
that all such violations are per se "S&S", I cannot conclude that
the inspector in this case made a per se finding of "S&S" based
solely on such a policy. However, I do take note of the fact
that the policy instructions which state that "the failure to
wear seat belts is a serious hazard and under most circumstances
should be a significant and substantial violation"; that "all
citations issued for failure to wear seat belts should be
reviewed for special assessment", e.g., violations cited as
contributing to serious injury or fatality, or violations
evaluated as having extraordinarily high gravity (highly likely
and fatal); and that "without mitigating circumstances, the
gravity evaluation of reasonably likely or highly likely, and
fatal would usually be justified" (without identifying examples
of mitigating circumstances), are rather suggestive and do
provide convenient and expedient ingredients for an inspector to
conclude that all seat belt violations are per se "S&S", without
considering all of the prevailing conditions mandated by the case
law to support such a finding.
At the heart of the petitioner's case is its contention that
the raised truck bed, in combination with other factors, such as
two-directional traffic of the roadway, another truck hauling
from the bins to the stockpile, a slightly graded roadway, and a
stockpile made of material that is not compacted and is affected
by weather conditions, support the inspector's belief that an
accident was reasonably likely. However, as indicated by the
discussion which follows below, the testimony of the inspector
himself does not support the petitioner's suggestions that these
"other factors" made it reasonably likely that an accident would
have occurred. Having viewed the inspector in the course of the
hearing, and having carefully reviewed his testimony, I find it
to be rather contradictory, equivocal, and lacking. in credible
support for his asserted reasons for his "S&S" finding.
Inspector Frederick initially testified that he based his
"S&S" finding on the fact that the truck driver was travelling
down a slightly graded roadway with his truck bed in a raised
position, and the inspector believed that the truck could easily
upset because its center of gravity would shift with the bed in

1229

the air (Tr. 22, 45). Although the inspector suggested that this
was an imminently dangerous situation, he did not issue an
imminent danger order or otherwise cite the raised truck bed
condition (Tr. 24). The inspector later testified that the
raised truck bed "was one of the contributing factors", rather
than "the direct cause" for his "S&S" finding (Tr. 57). He also
stated that any determination as to the type of citation he would
issue would depend on "the conditions at the time that the
violation is cited", and that MSHA's seat belt policy statement
"is only a guidance, it's not a set forth enforcement tool"
(Tr. 64) •
Inspector Frederick testified that the roadway was "fairly
wide and in fairly decent shape" (Tr. 19). Although
Mr. Frederick relied on several accident reports concerning
incidents at other mining operations where truck drivers hit
potholes and lost control of their vehicles, causing an overturn,
or encountered other vehicles on a roadway and lost control after
hitting their brakes (Tr. 22), there is no evidence that any of
these conditions ever existed at the respondent's mine or at the
time of the inspection. Indeed, while testifying that he also
relied on a general "history" of poorly maintained stockpiles and
trucks encountering overhead wires, the inspector conceded that
these conditions were different and distinguishable from those
presented in this case (Tr. 64-65). With regard to the accident
reports mentioned by special investigator McClintock, there is no
evidence that any of the conditions that may have been present
during those events were present in the instant case, and Mr.
McClintock confirmed that he was not present when the citation
was issued by Inspector Frederick,and Mr. McClintock could not
attest to the conditions that prevailed at that time (Tr. 142).
There is no evidence in this case to establish that the
raised bed of the truck in question in fact changed its center of
gravity or affected its stability. Although the respondent
conceded that driving with the truck bed up was an unsafe
practice and against company policy, superintendent Larrick
testified that whether or not the truck's center of gravity could
be affected would depend on certain conditions. The evidence
establishes that the driver was lowering the truck bed as he
departed the stockpile area at a low rate of speed and there is
no evidence that he travelled for any substantial distance with
the bed completely in the air. Under the circumstances, I cannot
conclude that in the normal course of mining activities the
driver would have driven the truck with the truck bed
continuously in a raised position. Indeed, the evidence
establishes that when the truck reached the bin area, the truck
bed was completely down, and the inspector conceded that with the
bed down the truck would have been stable and he would not have
considered the fact that the driver did not have his seat belt
fastened to be an "S&S" violation (Tr. 41-42).

1230

Inspector Frederick confirmed that the driver "wasn't really
travelling fast", and he estimated the speed of the truck at 8 to
10 miles an hour as it left the slight incline away from the
stockpile area. The inspector also confirmed that the driver did
not travel the entire distance of 150 to 200 feet from the
stockpile area to the bin area with his truck bed raised, and
that he was lowering the bed as he left the stockpile area
(Tr. 68). The inspector further confirmed that the respondent
had established "rules of the road", passing routes, and a righthand traffic pattern in place (Tr. 70). Although he alluded to
other vehicle traffic on the roadway in question, he could not
recall any traffic in close proximity to the cited truck at the
time of his inspection (Tr. 71).
The inspector conceded that he did not observe the driver
dumping his load at the stockpile, and that he did not know
whether he had his belt on or off when he was at the stockpile
area prior to pulling the truck into the bin area (Tr. 76-77).
The inspector also confirmed that the stockpile area "was well
maintained" (Tr. 28) and I find no evidence to support the
petitioner's suggestion that the stockpile materials in question
were not compacted or otherwise unstable.
In view of the foregoing, and after careful consideration of
all of the evidence and testimony adduced in this case, including
the arguments advanced by the parties in support of their
respective positions, I conclude and find that the petitioner has
failed to make a case in support of its contention that the
violation cited by the inspector was significant and substantial
(S&S). Accordingly, the inspector's "S&S" finding IS VACATED,
and the contested citation IS MODIFIED to a non-"S&S" section
104(a) citation.
Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
I conclude and find that the respondent is a small-to-medium
size operator, and I find nothing to suggest that the payment of
the civil penalty assessment for the violation in question will
adversely affect the respondent's ability to continue in
business.
History of Prior Violations
The parties stipulated to the admissibility of a computer
print-out purportedly containing a record of the respondent's
compliance record (Exhibit G-3). However, the document contains
no meaningful information. The inspector had no knowledge of the
respondent's compliance record and was unaware of any prior seat
belt citations issued at the quarry (Tr. 80-81). The
petitioner's counsel and MSHA supervisory Inspector McClintock
agreed that the document reflects no prior history of violations

1231

for the two-year period preceding the issuance of the contested
citation in this case (Tr. 148-150). Under all of these
circumstances, and for purposes of a civil penalty assessment for
the violation which has been affirmed, I conclude and find that
the respondent has no history of prior assessed violations.
Negligence
The inspector found that the violation resulted from a
"moderate" degree of negligence on the part of the respondent.
He confirmed that the respondent did a good job with its seat
belt program and that it held safety meetings, instructed its
drivers in the use of seat belts, periodically checked to make
sure its employees were in compliance, and disciplined them if
they were not (Tr. 34). The inspector testified that the
respondent "did a lot of things to protect their employees. They
had the seat belt policy, they enforced the seat belt policy,
they disciplined the people" (Tr. 37). The inspector indicated
that the cited driver "for some reason, I guess, forgot or didn't
pay much attention to what was going on and drove with the bed in
the air" (Tr. 67-69). Under all of these circumstances, I
conclude and find that there was a low degree of negligence on
the respondent's part.
Good Faith Compliance
The parties have stipulated that the violation was abated in
a timely manner, and the inspector confirmed that it was
terminated the same day it was issued. I conclude and find that
the respondent demonstrated rapid good faith compliance in taking
the appropriate action to abate the cited condition.
Gravity
I conclude and find that on the facts of this case, the
violation was non-serious.
Civil Penalty Assessment
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section 110(i) of the Act, I conclude and find that a civil
penalty assessment of $50 is reasonable and appropriate for the
violation which has been affirmed.

1232

ORDER
The respondent IS ORDERED to pay a civil penalty assessment
of $50, within thirty (30) days of the date of this decision and
order. Payment is to be made to the petitioner (MSHA), and upon
receipt of payment, this matter is dismissed.

4&0~

Administrative Law Judge

Distribution:
Gayle M. Green, Esq., u.s. Department of Labor, Office of the
Solicitor, 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104
(Certified Mail)
Kevin E. Sniffen, Esq., Genstar Stone Products Co., Executive
Plaza IV, Hunt Valley, MD 21031-1091 (Certified Mail)
jml

1233

PBDBRAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

JUN 2 4 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

v.
C.W. MINING COMPANY
Respondent

..

..

CIVIL PENALTY PROCEEDING
Docket No. WEST 92-204
A.C. No. 42-01697-03637
Bear Canyon No. 1

.

DECISION
Appearances:

Robert J. Murphy, Esq., Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Petitioner;
Carl E. Kingston, Esq., Salt Lake City, Utah,
for Respondent.

Before:

Judge Cetti

This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. S 801 et seq., (1988)
("Mine Act" or "Act"). The Secretary of Labor issued a citation
to c.w. Mining Company (C.W. Mining) alleging a violation of 30
C.F.R. S 75.220(a) (1) (1991) 1 for operating a mine without an
approved roof control plan.
It is c.w. Mining's contention that there was no violation
of 30 C.F.R. § 75.220(a) (1), that the mine's old roof control
plan was improperly revoked, that MSHA did not negotiate in good
faith, that the mine's old roof control plan was adequate, more
suitable and a safer roof control plan than the new current plan,
that the current roof control plan was submitted by the operator
to the MSHA district manager for approval under protest and for
these reasons the citation charging the operator for operating
the mine without an approved roof control plan should be vacated.

30 C.F.R. S 75.220(a)(1) (1991), provides as follows:
Each mine operator shall develop and follow a roof
control plan, approved by the District Manager, that is
suitable to the prevailing geological conditions, and
the mining system to be used at the mine.
Additional
measures shall be taken to protect persons if unusual
hazards are encountered.

1234

SYNOPSIS

With the safety of the miners, my evaluation of the evidence
and the established applicable law in mind, I find on careful.
review of the record that within the framework of the evidence
presented, MSHA has carried its burden of proof on the critical
central issues in this case and conclude the violation of 30
C.F.R. S 75.220(a) (1) was established.
STIPULATIONS

At the hearing the parties entered into the following
stipulations, which I accept.
1. c.w. Mining Company is engaged in mining and selling of
bituminous coal in the United States and its mining operations
affect interstate commerce.
2. c.w. Mining Company is the owner and operator of Bear
Canyon No. 1 Mine, MSHA I.D. No. 42-01697 an underground coal
mine.
3. c.w. Mining Company is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. §§ 801
et ~ ("the Act").
4.
matter.

The Administrative Law Judge has jurisdiction in this

5. The subject citations and orders were properly served by
duly authorized representatives of the Secretary upon agents of
c.w. Mining Company on the dates and places stated therein, and
may be admitted into evidence for the purpose of establishing
their issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
6. The exhibits to be offered by c.w. Mining Company and
the Secretary are stipulated to be authentic but no stipulation
is made as to their relevance or the truth of the matters
asserted therein.
7. The proposed penalty will not affect c.w. Mining
Company's ability to continue business.
8. c.w. Mining Company is a medium size mine operator with
551,084 tons of production in 1990.
9. The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine for the two
years prior to the date of the citation.

1235

c.w. Mining is the owner and operator of the Bear Canyon No.
1 Mine 2 in Huntington, Utah. The Bear Canyon Mine is an underground coal mine required by the Mine Act to operate under an
approved roof control plan. At all times prior to october 23,
1991, the date the citation in question was issued, c.w. Mining
operated the Bear Canyon Mine under a roof control plan approved
by the Secretary of Labor. In June 1991, when its roof control
plan came up for its six-month review as provided by 30 C.F.R.
s 75.223(d), 3 MSHA proposed certain revisions of the plan that
c.w. Mining found unacceptable. The parties communicated for
several months particularly with respect to the two primary
differences in the old plan and the new current plan. The two
primary differences between the old plan and the new or current
approved roof control plan are (1) the distance that the miners
can mine before permanent roof bolts are installed and (2) the
manner and sequence of the steps taken in pulling (extracting)
pillars.
Under the old plan the operator was allowed to advance 120
feet where adequate top coal was available to provide temporary
roof support between 120 foot bolting cycles. Only where adverse
roof conditions were encountered or where insufficient top coal
existed, was the operator required by the old plan to roof bolt
every 20 feet and not allow miners inby the last row of roof
bolts.
Under the new current plan, top coal irrespective of its
thickness and strength cannot be used as temporary roof support
and Respondent must be on a 20 foot bolting cycle at all times,
regardless of the condition or the amount of the top coal. With
respect to extracting pillars under the old plan, roof bolting
the splits was not required when adequate top coal was available
for support. Under the current plan, all pillar splits are
required to be roof bolted, regardless of good or bad roof
conditions and the required fender cut sequence is different than
the sequence under the old plan.
(Tr. 54, 88-89, 531, 601-602,
604).

2

This mine is also referred to by its former name the "Coop Mine" in
the exhibits and the transcript of testimony.
3

30 C.F.R. 5 75.223(d) provides:
(d) The roof control plan for each mine shall be
reviewed every six months by an authorized representative of the Secretary.
This review shall take into
consideration any falls of the roof, face and ribs and
the adequacy of the support systems used at the time.

1236

Under the new current plan miners always work under a fully
bolted roof.
This follows from the fact that C.W. Mining under
the current plan is limited to 20 foot cuts with a 20 foot roof
bolting cycle.
It is undisputed that 20 feet is the maximum ·
distance Respondents' continuous miners is able to travel under
remote control.

BRIEF PROCEDURAL AND FACTUAL HISTORY OF
NEGOTIATIONS LEADING TO APPROVAL
OF CURRENT ROOF CONTROL PLAN
In 1988 the regulations concerning roof support in 30
C.F.R., subpart c were revised. Section 30 C.F.R. 75.220(f) as
revised mandated that existing roof control plans that conflict
with the revised regulations meet the requirements of the revised
roof regulations by September 28, 1988. c.w. Mining's president,
superintendent and engineering consultant met with District 9
roof control specialist in early January 1989 and the roof control plan was reviewed and revised. This old plan was approved
by the district manager on January 26, 1989. Thereafter, the
roof control plan was reviewed by MSHA every six months and on
each review was found to be adequate until August 9, 1991, when
MSHA informed the operator that the roof control plan was inadequate.
(Tr. 522-524). This is the same plan that was later
rescinded by MSHA on October 23, 1991. The citation in question
was issued the same day the plan was revoked when mining operations continued without an approved roof control plan. MSHA gave
the operator several extensions to abate the citation to permit
uninterrupted production until the citation was abated on
November 4, 1991.
Abatement was accomplished by c.w. Mining submitting under
protest the current plan which was approved November 4, 1991 by
the MSHA district manager.
The sequence of the Bishop type negotiations in this case
for a suitable roof control plan can be summarized as follows:
June 29, 1991, c.w. Mining sent to the MSHA District 9
Manager for the six months review its 22 page roof control plan
for Bear Canyon #1 Mine last approved March 5, 1990. In the
letter transmitting the plan c.w. Mining stated that it did not
feel any changes were needed at that time.
(Govt~ Ex. 2).
August 9, 1991, MSHA sent a five page letter to c.w. Mining
stating that on review by MSHA personnel the plan was found to be
inadequate. The letter listed 30 "necessary" changes in the
pillar section of the roof control plan and 10 "necessary"
changes in the development section of the roof control plan.
(Govt. Ex. 3). MSHA requested c.w. Mining to submit a new plan

1237

by August 26, 1991 addressing the 40 concerns MSHA set forth in
the letter.
August 22, 1991, c.w. Mining sent a letter to MSHA stating
that the roof control systems set forth in the plan submitted for
review had been used at the mine for 30 years and there had been
no uncontrolled roof falls during that time. c.w. Mining once
again asked that the submitted plan be approved with no change.
The letter did not otherwise respond to the 40 concerns MSHA
listed in its letter of August 9, 1991.
September 9, 1991, MSHA sent a second letter to MSHA (Govt.
Ex. 6) requesting that c.w. Mining respond to and comply with
MSHA's letter of August 9, 1991. This letter also informed c.w.
Mining that if an acceptable plan was not received by the due
date, September 30, 1991, that the plan may be rescinded and that
any further mining activity would result in the issuance of a
citation charging a violation of 30 C.F.R. S 75.220.
It is the Secretary's contention that as of September 9,
1991, all the requirements of the Bishop decision were fulfilled.
MSHA nevertheless agreed to extend the deadline so that a faceto-face discussion could be held with c.w. Mining concerning the
reasons that the roof control plan had to be revised. The due
date was extended to September 24, 1991.
On September 24, 1991, a face-to-face meeting of mine management and MSHA was held in Price, Utah. Present at the meeting
in Price included the following:
Bill Stoddard - President of c.w. Mining
Ken Defa
- Superintendent of Bear canyon No. 1
Mine
Jerry Taylor - MSHA District Engineering Coordinator
(Acting District Manager
William Ponceroff - MSHA District Roof Control
Supervisor
Tony Gabossi - MSHA Acting Subdistrict Manager
Bill Ledford - MSHA Field Office Supervisor
At the meeting the need for full roof bolting was discussed
in detail as well as other requested changes addressed in MSHA's
second disapproval letter dated September 9, 1991.
On October 4, 1991, the district manager sent a follow-up
letter to c.w. Mining recapping the discussion and agreement
reached at the September 24, 1991, face-to-face meeting. The
letter concludes as follows:
During a phone conversation with William
Ponceroff, District Roof Control Supervisor,
on September 30, 1991, Mr. Bill Stoddard,

1238

President, C.W. Mining Co., agreed to submit
an acceptable plan within two weeks.
It is
agreeable to extend the deadline for the
submittal of an acceptable roof control plan
to October 11, 1991.
As discussed in the meeting held on September 24, 1991, deadlines for ending the
review process have been extended too many
times. c.w. Mining Co. must make the necessary revisions and submit an acceptable
roof control plan by October 11, 1991, or the
currently approved roof control plan will be
rescinded. Any further mining activities
without an approved plan would be a violation
of 30 CFR 75.220.
Be advised that the requirements for the
Bishop decision and Program Policy Letter No.
P89-V3 (copy attached) have been fulfilled.
c.w. Mining Co. must have an acceptable roof
control plan ready for submittal in order to
prevent loss of production. The company may
then contest the provisions of the roof
control plan on the basis of a technical
citation.
If you have any questions. please contact
this office at (303) 231-5462.
Sincerely,

fsf William A. Holgate
October 12, 1991, c.w. Mining submitted a "new revised" roof
control plan (Govt. Ex. 12) which MSHA found unacceptable and
rejected.
October 22, 1991, MSHA faxed to c.w. Mining 16 reasons why
it found the "new revised" roof control plan unacceptable.
(Govt. Ex. 13). The hard copy of the same date, October 22,
1991, in addition to specifying the reason the plan was
unacceptable again recapped the history of negotiation and
concluded as follows:
This requested rev1s1on is necessary to
formulate a plan suitable to the present
conditions and mining systems at the mine,
and to ensure the health and safety of the
miners when future mining occurs. ·since all
negotiations concerning the development of an
acceptable roof control plan, in accordance

1239

with 30 CFR 75.220, remain at an impasse, the
currently approved roof control plan is rescinded. Any further mining activities without an approved plan is a violation of 30 CFR
75.220.
If you have any questions, please contact
this office at (303) 231-5462.
On October 23, 1991, the date that the old roof plan was
revoked and the citation issued for violation of 30 C.F.R.
S 75.220, c.w. Mining submitted another revised roof control plan
that was similar to the current approved plan.
In its transmitted letter, c.w. Mining stated as follows:
Under protest we do agree to the enclosed
plan as dictated by your office. We still
believe the original roof control plan is
just as safe, and in pillar extraction your
system is less safe because it puts our
people in the pillar splits where they are
exposed to sloughing ribs and possible injury
while bolting. It also forces us to extract
more than one pillar at a time and will cause
the pillars to load up and be more apt to
cause out bursts.
We also feel more comfortable with the
pillar extraction sequence we have used for
over 30 yrs. with no serious accidents or
injures (sic) related to roof problems. We
found it works better and has proven to be
safer than other systems we have tried, including the system Mr. Ponceroff is forcing
us to use.
In rebuttal to the c.w. Mining claim that MSHA dictated the
new plan, counsel for the Secretary points to Mr. Ponceroff's
testimony at the hearing as follows:
We did not dictate this plan. We approve
plans, we don't say what goes in them. As
long as they comply with statutory provisions
and good mining principle as determin~d by
the district and the representative of techs
and the mining industry as a whole in relation to site specific instances in that mine,
we approve them.
[TR 95)
On October 29, 1991, the Mine Superintendent, Ken Defa,
after a telephone conversation with Mr. Ponceroff, MSHA Supervisory Roof Control Specialist, sent MSHA revised plans concern-

1240

ing the pillar extraction sequence that Mr. Ponceroff had
requested.
(Govt. Ex. 16).
October 30, 1991, the District Manager sent the mine operator, Mr. Stoddard, six detailed specific reasons the submitted
roof control plan remained unacceptable.
In response to the
District Manager's letter, C.W. Mining that same day (October 30,
1991), faxed the six revisions to the plan that were specifically
requested by the District Manager.
(Govt. Ex. 19).
November 4, 1991, the MSHA District Manager approved the
revised c.w. Mining roof control plan.
November 25, 1991, the District Manager corrected an inadvertent error on page 15 of the approved plan and reissued a new
copy of the entire approved plan consisting of 18 pages. The
approved plan included the disputed 20 foot roof bolting cycle
and the new disputed pillar extraction procedure and fender cut
sequence.
(Govt. Ex. 35-A).
XII
DISCUSSION AND FINDINGS
Preliminarily it should be noted that in Dole, 870 F.2d 662
at 667 the court stated,"[t]he specific contents of any individual mine [roof control] plan are determined through consultation
between the mine operator and the [MSHA] district manager." In
Peabody Cole Company, 15 FMSHRC 389 (March 1993) the Commission
held that "both the Secretary and the operator are required to
enter into good faith discussions and consultation over mine
plans." The Commission in Peabody, supra, further explained this
process and quoted their decision in Carlson County, 7 FMSHRC 137
as follows:
The requirement that the Secretary approve
an operator's mine ventilation plan does not
mean that an operator has no option but to
acquiesce to the Secretary's desires regarding the contents of the plan. Legitimate
disagreements as to the proper course of
action are bound to occur. In attempting to
resolve such differences, the Secretary and
an operator must negotiate in good faith and
for a reasonable period concerning a disputed
provision. Where such good faith negotiation
has taken place, and the operator and the
Secretary remain at odds over a plan provision, review of the dispute may be obtained
by the operator's refusal to adopt·the disputed provision, thus triggering litigation

1241

before the Commission. 7 FMSHRC at 1371
(citation omitted) (emphasis added).
Section 302(a) of the Mine Act mandates each operator to
carry out on a continuing basis a program to improve the roof
control system of each mine as follows:
Sec. 302. (a) Each operator shall undertake
to carry out on a continuing basis a program
to improve the roof control system of each
coal mine and the means and measures to
accomplish such system. The roof and ribs of
all active underground roadways, travelways
and working places shall be supported or
otherwise controlled adequately to protect
persons from falls of the roof or ribs. A
roof control plan and revisions thereof
suitable to the roof conditions and mining
system of each coal mine and approved by the
Secretary shall be adopted and set out in
printed form within sixty days after the
operative date of this title. The plan shall
show the type of support and spacing approved
by the Secretary.
(Emphasis added).
30 u.s.c. S 862(a)
Upon review of the exhibits referenced above, the testimony
of the witnesses and the records as a whole I find that both the
operator and the Secretary negotiated in good faith and for a
reasonable period of time over their legitimate differences.
Nevertheless, the parties were unable to resolve their differences. Consequently, in order to continue production after
revocation of the old plan the operator under protest submitted
the revised current approved plan.
Although the operator and the Secretary in an attempt to
resolve their legitimate differences negotiated in good faith and
for a reasonable period of time, they remained at odds. In Dole
supra the court of Appeals at page 669 footnote 10 4 states that

4

Dole supra at footnote 10. We note that while the mine
operator had a role to play in developing plan contents,
MSHA always retained final responsibility for deciding
what had to be included in the plan. In 1977 Congress
"caution[ed) that while the operator proposes a plan and
is entitled, as are the miners and representatives of
miners to further consultation with the Secretary over
revisions, the Secretary must independently exercise his
judgment with respect to the content of such plans in
connection with his final approval of the plan." s.
Rep. No. 95-181, 95th Cong., 1st Seas. 25 (1977),

1242

while the mine operator had a role to play in developing plan
contents, MSHA always retained final responsibility for deciding
what had to be included in the plan.

IV
MSHA'S REASONS FOR REVOCATION OF OLD PLAN

The reasons why the MSHA District Manager revoked the old
roof control plan are summarized by MSHA in its Post-Hearing
Brief, page 6 and 7, as follows:
The roof control plan was revoked for several
reasons:
1. Under the old plan, men were allowed to
work and travel under unsupported roof.
Mining experience has shown that traveling
under unsupported roof is the most hazardous
conduct in mining. Roof falls are the
largest cause of fatalities in underground
mines today. Statistics show that persons
are killed by going under unsupported roof.
[TR 34-37; 126-127].

2. Under the old plan, c.w. Mining was only
required to bolt when it believed that it was
necessary, yet it is too difficult to know
when it might be necessary to fully bolt.
The transitional areas between good roof and
bad roof can only be determined under the old
plan by human judgment. Offset in the roof
observed by Mr5 Ponceroff indicates that the
company was not successful in determining
when the conditions were bad. They must be
aware of the conditions, before someone goes
under them, not after. The only way to avoid
that is to fully bolt. [TR 40-44; 83-84].
3. Transitional areas between good roof and
bad roof can only be determined under the old
plan, by human judgment and the violation
history at this mine shows that numerous
citations and orders existed for failure to
follow the roof control plan. Also preshift,
and on shift violations were issued for
failure to properly examine the mine roof,
and an imminent danger order for a bad roof
has been issued at this mine, further indiU.S.Code Cong.&Admin. News 1977, p.3425.

1243

eating the unwillingness of the operator to
keep the roof in good condition.
4. The operator maintained that 1 to 3 feet
of top coal was the primary roof support at
this mine. However, roof bolts were being
installed systematically throughout all
development sections. Hence the mine has
agreed that the roof is bad in many
locations.
5. Conditions of the mine observed by
inspectors, District 9 specialists and MSHA
technical support indicate that it is an
extremely unsafe practice for the miners to
work under roof that is not supported, since
it is uncertain what a miner may encounter.
All sections of the roof must be bolted
before anyone goes under the roof.
6. History of Violations - roof falls at this
mine.
(Exhibit Nos. 1 and 4).
7. c.w. Mining had a particularized history
of violations of its own Roof Control Plan.
(Exhibit 25).
Based upon all of the information provided by
the on site inspectors, the visits made by
Technology Center experts, the history of
this mine and the newly revised roof control
regulations, Mr. Ponceroff recommended that
changes be made in the old roof control plan.
Those changes primarily related to a system
of full-bolting. That is a system where the
area is bolted before any miner is required
to work or travel under the roof. The result
of the recommendation was that c.w. Mining
would be limited to 20 foot cuts with its
continuous miner, since that is the distance
that the equipment can travel under remote
control. Under the old system, the miner
operator could go under the roof in areas
just cut, without supporting, and could
develop a distance of more than 100 feet.
Under the new plan with full bolting, the
distance is reduced to 20 feet.

* * * * *
The Commission has taken note of the fact
that mine roofs are inherently dangerous and

1244

that even a good roof can fall without
warning. Consolidation coal Company, 6
FMSHRC 34, 37 {January 1984). It has also
stressed the fact that roof falls remain the
leading cause of death in underground mines,
Eastover Mining co., 4 FMSHRC 1207, 1211
{July 1982), Halfway Incorporated,
8 FMSHRC 8, 13 (January 1986).

v
Respondent presented considerable evidence to support its
contention that its old roof control plan last approved by the
District Manager on March 5, 1990, was adequate and appropriate
for the particular conditions at the mine and therefore should
not have been revoked. Respondent presented the testimony not
only of its officials and employees but also the testimony of
three federal coal mine inspectors to this effect. These MSHA
coal mine inspectors were quite familiar with the particular
conditions at the mine. Their testimony supports Respondent's
contention that in most areas of the mine top coal was of adequate thickness and strength to be used as temporary roof support
for the 120 foot cuts and bolting cycles used under the old plan.
Evidence was also presented that a 20 foot full roof bolting
cycle was used by c.w. Mining under the old plan when adverse
roof conditions were encountered. The mine inspectors called by
Respondent also testified that the pillar extraction procedure
under the old roof control plan was safe and even safer than the
pillar extraction procedure under the current approved roof
control plan.
VI

Respondent's expert witness Dr. Krishma Sinha, a geological
engineer, based upon the tests he performed and his computer analysis of the results he obtained, testified that there was no
added safety benefit in requiring roof bolts to be installed in
20 foot cycles over 120 foot cycles. Dr. Sinha's testimony was
not persuasive. He did not take or supervise the taking of samples used in his analysis. He did not know who took the samples
or·even what part of the mine from where the samples were allegedly taken.
(Tr. 993)• He took neither tensile nor sheer
strength tests. (Tr. 995). He assumed the material to be homogeneous.
(Tr. 999). Mr. Ropchan the mining engineer employed by
the MSHA Technology Center testified this assumption was a fatal
miscalculation. Mr. Ropchan stated that Mr. Sinha's computer
analysis failed to consider the joints and fractures of the coal.
(Tr. 996-998, 1091).
The Secretary in support of his position presented the testimony of M. Terry Hoch, the mining engineer who heads the Roof
Control Division of the MSHA Safety and Health Technology Center

1245

in Pittsburg (Tr. 381, Govt. Ex. 27); Jerry Davidson, a geologist
employed by the MSHA Safety and Health Technology Center and
David Ropchan, a mining engineer for the MSHA Safety and Health
Technology Center since 1971.
(Tr. 315). All of these experts
visited the mine in question and made visual observations of the
mine conditions.
David Ropchan testified that the method of pillar extraction
used under the old plan was more dangerous than pillar extraction
under the current plan since the old plan opened up more ground
and thus exposed the miners to more unsupported roof. He stated
that stress on the roof increases with the square of the span of
the roof and when the roof span increases, tensil stress is
greatly increased.
(Tr. 1088-1089).
Jerry Davidson, the MSHA geologist, testified he did not
consider pillar extraction under the old plan a safe way to
extract pillars "because under the old plan a lot of ground (is)
opened up" and practically no ground support was installed. Thus
under the old plan the continuous miner operator, his helper and
the shuttle car operator and possibly the section foreman would
be exposed to a greater hazard of roof falls than under the
current plan which involves "opening up" less ground.
Mr. Hoch who heads the MSHA Technology Roof Control Division
testified that District 9, where the mine in question is located,
was the only district that still has a roof control plan that
permitted miners to travel under an unsupported coal roof or a
roof supported only by head (top) coal.
(Tr. 393-394). He explained that a coal roof cannot be a sole means of support
because as a material, it is inconsistent, it is jointed, has
cleats and, most importantly, can and will fall.
(Tr. 448-449).
Mr. Hoch stated that the primary thrust of the 1988 revised
roof control regulations was to "incorporate new technologies so
that miners would not be required to work or travel in areas
where roof was not supported. He stated that head or top coal
can "mask" roof problems so you can't see hazards such as joints
and fractures. He also stated that coal left on the roof can
enhance the resistance to absorption of humidity increasing the
dangers of roof falls.
Based on the testimony of the experts from the Safety and
Health Technology Center and the undisputed fact that the operator was encountering changing adverse roof conditions in the mine
that all parties agree required a 20 foot roof bolting cycle, I
find that the new current roof control plan is suitable for the
mine in question and is mine specific. It is not necessary or
appropriate in this case to reach the question of whether the use
of top coal alone to support the roof is proscribed by the present roof control regulations.

1246

Respondent argues that its witness should be credited since
its witnesses were more familiar over a longer period of time
with the particular conditions at the mine and spent more time
observing the mine in operation rather than MSHA's witnesses who
were less familiar with the mine and who spent less time observing and examining the conditions of the mine. The Commission in
Cyprus Tonopah Mining Corp., 15 FMSHRC 367 at 372 (March 1993)
quotes from its earlier decision Asarco, Inc., 14 FMSHRC 941, at
949 (June 1992) as follows:
The Commission has recognized that:
[e]xpert witnesses testify to offer their
scientific opinions on technical matters to
the trier of fact.
If the opinions of expert
witnesses conflict in a proceeding, the judge
must determine which opinion to credit, based
on such factors as the credentials of the
expert and the scientific bases for the
expert's opinion.
Based upon their superior credentials I credit the op1n1on
of the Secretary's Safety and Health Technology Center experts.
Based upon their testimony and the undisputed fact that there
were changing adverse roof conditions in the mine that required
full roof bolting on 20 foot cycles, I find that the old roof
plan was no longer suitable to the conditions of the mine in
question and was properly revoked. On the same basis I also find
the current approved roof control plan is suitable to the
conditions of the Bear Canyon No. 1 Mine as contemplated by 30
C.F.R. S 75.220(a) (1) and section 302(a) of the Mine Act.
Consistent with the above findings and conclusions I find
the violation of 30 C.F.R. S 75.220(a) (1) as charged in the
citation was established. The violation is technical nature.
Consequently the $20 penalty MSHA proposes is appropriate.
ORDER

1. Citation No. 3582718 and the MSHA proposed $20 penalty
are affirmed.
2. Respondent shall pay a civil penalty of $20 to the
Secretary of Labor within 30 days of this decision and upon
receipt of payment, this proceeding is dismissed.

A
st F. Cetti
Administrative Law Judge

1247

Distribution:
Robert J. Murphy, Esq., Office of the Solicitor, u. S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, co
80294
(Certified Mail)
Carl E. Kingston, Esq., 3212 South State Street, P.O. Box 15809,
Salt Lake City, Utah 84115 (Certified Mail)

sh

1248

FEDERAL IIDIB SAFETY A1ID BBAI.TH REVIEW COJOITSSIOlf
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 2 51993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner

v.

CIVIL PENALTY PROCEEDING
:

Docket No. KENT 92-625
. A.C.
No. 15-03178-03713
.
Ohio No. 11 Mine

ISLAND CREEK COAL COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Melick

This case is before me upon remand by order of the
Commission dated June 23, 1993. Pursuant to said r
and,
upon the joint request of the parties and for demon rated
good cause, the Decision Appr ving Settlement in th' case
dated May 4, 1993, is hereby acated nd this case
dismissed.

Gary Me ck
Adminis i;ative
Distribution:
Anne T. Knauff, Esq., Office of the
icitor,
u.s. Department of Labor, 2002 Richa Jones Road,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail}
Marshall s. Peace, Attorney at Law, 201 W. Vine Street,
Lexington, KY 40575 (Certified Mail}
/lh

1249

FEDERAL IIDIE SAFETY Aim HRAIII'H REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 2 51993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF RONNY BOSWELL,
Complainant

v.

NATIONAL CEMENT COMPANY, INC.,
Respondent

. DISCRIMINATION PROCEEDING
.

. Docket No. SE 93-48-DM
. MSHA Case No. SE MD-92-05
. Ragland Plant
.

DECISION
Appearances:

William Lawson, Esquire, Office of the
Solicitor, u.s. Department of Labor,
Birmingham, Alabama, for Complainant;
Thomas F. campbell, Esquire, Lange,
Simpson, Robinson and Somerville,
Birmingham, Alabama, for Respondent

Before:

Judge Melick

This case is before me upon the complaint by the Secretary
of Labor on behalf of Ronny Boswell pursuant to Section 105(c)(2)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 801,
et seg., the "Act," alleging that National Cement Company, Inc.
(National Cement) issued Mr. Boswell a three day suspension in
violation of Section 105(c)(1) of the Act. 1

Section 105(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, representative of miners or
applicant for employment in any coal or other mine subject
to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under
or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of
the miners at the coal or other mine of an alleged danger
or safety or health violation in a coal or other mine, or
because such miner, representative of miners or applicant
for employment is the subject of medical evaluations and
potential transfer under a standard published pursuant to
section 101 or because such miner, representative of miners
or applicant for employment has instituted or caused .to be
1250

More particularly it is alleged that Mr. Boswell's
suspension was the result of certain activities protected
by the Act, namely:

* * *
(a) During the course of the work shift
on or about December 27, 1991, Complainant made a
daily inspection of loader no. 950 and noted that
the lights were 'faulty' and further noted under
remarks: total disregard by the company to keep
mobile equipment in proper working order may lead
to damage to equipment are [sic] possible harm to
employees.
(b) On or before December 27, 1991,
Complainant's supervisor questioned him regarding
the information complainant had entered on the
daily inspection report.
(c) Complainant was then instructed to
shut down the 950 loader for the rest of the night
and to commence operating a different piece of
equipment, a 540 loader.
(d) Complainant did as he was instructed
and operated the 540 loader until the odor of antifreeze affected his ability to operate the loader.
(e) Upon notifying his supervisor of
the condition in the 540 loader, complainant was
instructed to resume his work duties by operating
the 950 loader which had previously been shut down
by the supervisor.
(f) Complainant informed his supervisor
that it would be a violation of the company's safety
procedures and requirements as well as federal regulations if the 950 loader was placed back in service
without correcting the safety defects for which it
had been shut down by management.

fn. 1 (continued)
instituted any proceeding under or related to this Act or
has testified or is about to testify in any such proceeding,
or because of the exercise by such miner, representative
of miners or applicant for employment on behalf of himself
or others of any statutory right afforded by this Act."

1251

(g) A safety review was eventually
requested by complainant.
(h) The safety director for the company
was summoned to the area and the lighting defects
ultimately corrected. Complainant then proceeded
to operate the 950 loader for the remainder of the
shift.
The Commission has long held that a miner seeking to
establish a prima facia case of discrimination under section
105(c) of the Act bears the burden of persuasion that he
engaged in protected activity and that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal co.,
2 FMSHRC 2786, 2797-2800 (1980), rev'd on other grounds
sub nom. Consolidation Coal Co., v. Marshall, 663 F.2d 1211
(3rd Circuit 1981); Secretary of Labor on behalf of Robinette
v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (1981).
The operator may rebut the prima facia case by showing either
that no protected activity occurred or that the adverse
action was in no part motivated by any protected activity.
If an operator cannot rebut the prima facia case in this
manner, it may nevertheless defend affirmatively by proving
that it would have taken the adverse action in any event on
the basis of the miner's unprotected activity alone. Pasula,
supra; Robinette, supra. See also Eastern Assoc. Coal Corp.
v. FMSHRC, 813 F.2d 639, 842 (4th Cir. 1987); Donovan v.
stafford Construction Co., 732 F.2d 954, 958-59 (D.C. Cir.
1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)
(specifically approving the Commission's Pasula-Robinette test).
Cf. NLRB v. Transportation Management Corp., 462 u.s. 393,
397-413 (1983) (approving nearly identical tests under National
Labor Relations Act.
Ronny Boswell has been an employee of National Cement for
18 years and has been a payloader operator since 1990. The
Ragland Plant where he had been working operates 3 shifts,
24 hours a day and Boswell rotates on all three shifts. On
December 27, 1991, Boswell was to work the night shift on the
950 Payloader. According to Boswell, following company safety
procedures, before starting the equipment, the operator must
complete a daily inspection report. This safety inspection
report is then given to the foreman near the beginning of the
shift.
On December 27, Boswell wrote on the daily inspection
report for the 950 Payloader that the lights were "faulty"
and noted in the remarks column "total disregard by the
company to keep mobile equipment in proper working order
may lead to damage to equipment are [sic] possible harm to
employee" (Government Exhibit No. 1). Boswell had similarly

1252

reported the lights as being "faulty" and noted a bent left
lower headlight bracket on reports dated December 15, 16,
17, 19, 24 and 26, 1991 (Government Exhibit No. 2). Boswell
explained that there are actually two pairs of lights on the
front of the 950 Payloader, one factory installed pair 7 feet
above ground and an additional pair on the upper cab 12 feet
above ground and explained that his reports related only to
the upper lights.
After filing his report on December 27, Boswell
returned to the 950 loader and resumed working at the "clay
house" where ample overhead lighting existed and obviated the
need for any lights on the payloader. Around 12:00 or 12:30
that night substitute foreman Rudy Hall approached inquiring
about the daily inspection report. Boswell acknowledges that
he never refused to operate the 950 Payloader because of
inadequate lighting and never told Hall that the loader was
unsafe. Indeed, Boswell has always maintained that the loader
was not unsafe to operate and presented no hazard. Following
this discussion Hall nevertheless told Boswell "shut it down
and get on the 540 loader -- turn the ignition off and let it
sit where it [is]."
According to Boswell, the 540 Payloader was 7 years
older than the 950 and after operating it for 20 to 25 minutes
antifreeze fumes "got to me." He told Foreman Hall that he
could not operate the 540 loader because he "couldn't breathe."
Hall accommodated Boswell's difficulty with the 540 loader and
told him to return to the 950 loader. Boswell then refused
telling Hall that "it's in the company safety book that you
can't start it up until the problem is fixed." Boswell
maintains that he had the "company safety requirements" in
his possession at the time and maintains that he was referring
to paragraph (g) on page 4 of a document entitled "National
Cement Company Safety Procedures and Requirements" (Government
Exhibit No. 3). The cited provision states as follows:
Report and, if possible, repair any defects found.
Do not use machine with uncorrected safety defects
which present a hazard. If the loader is unsafe
and removed from service, tag it to prohibit
further use until repairs are completed.
Boswell also maintains, although it is not clear he raised
this contention with Hall at the time, that he understood from
Federal regulations in his possession that he was also prohibited
by those regulations from resuming operation of the 950 loader.
In particular, he cited the provisions of 30 C.F.R. § 57.14100(c)
which provide as follows:

1253

When defects make continued operation hazardous
to persons, the defective items including selfpropelled mobile equipment shall be taken out of
service and placed in a designated area posted
for that purpose, or a tag or other effective
method of marking the defective items shall be
used to prohibit further use until the defects
are corrected. 2
According to Boswell, Hall became "very upset" when he
continued to refuse to start the 950. Boswell states that
Hall then asked him what he was to do and Boswell responded
11 I'm not going to start the 950 loader back up to get your
ass out of a crack." Hall made further inquiry as to what
it would take to resolve the impasse and Boswell made it
clear that he was not refusing to operate the loader because
it had been shut down for safety reasons but only that it
could not be restarted without violating Federal regulations
and company rules.
Boswell then asked for a "safety review" -- apparently
a procedure wherein union representatives review an employee
safety complaint for possible further action.
According to
Boswell, Hall would not call the union safety representative
but subsequently Cedrick Phillips, the company safety director,
reported to the plant, examined the loader and had the brackets
straightened. The light was replaced by Boswell himself.
Boswell then restarted the 950 Payloader and operated it for
the remainder of his shift. The above recitation of facts
taken from the testimony of Boswell is uncontradicted.
Rudy Hall was present at trial but was never called as a witness.
On January 13, 1992, Boswell attended a meeting at which
he was given a disciplinary action report and was notified of
his three-day suspension (Government Exhibit No. 6). Boswell
acknowledges that although a number of reasons for his suspension
were cited in the "disciplinary action report" (and mine manager
Remy Demont later testified that he also considered prior oral
and written warnings in Boswell's personnel file) he conceded
and understood that the disciplinary action related only to
events that occurred on December 27.
Within this framework of undisputed evidence it is clear
that Boswell has established a prima facia case that he engaged
in protected activities by (1) reporting in the daily equipment
2

On cross examination Boswell acknowledged that the
950 loader had never in fact been "tagged out" nor "taken out
of service and placed in a designated area posted for that
purpose."

1254

inspection report for the 950 Payloader on December 27, 1991,
and on at least nine other prior occasions, that its lights
were "faulty" and (2) in complaining about and refusing to
operate the 540 loader on the evening of December 27, 1991,
because of the complaints regarding antifreeze leakage and
fumes causing difficulty in breathing. I further find that
the disciplinary action taken against Boswell was motivated at
least in part by the latter protected activity. Plant Manager
Remy Demont, who made the decision to suspend Boswell, in fact
testified that the suspension was based in part upon Boswell's
refusal to operate the 540 Payloader.
It may also reasonably be inferred because of its close
relationship to his later refusal to operate the 950 loader
on the evening of December 27, 1991, that Demont also was
motivated at least in part in suspending Boswell based on his
complaints in the daily inspection reports noted above. Under
the circumstances the Secretary has established a prima facia
case of discrimination under Section 105(c) of the Act in proving
that indeed, Boswell engaged in protected activities and his
suspension was motivated in part by those activities. Pasula,
supra; Robinette, supra.
I find, however, that National Cement has affirmatively
defended against that prima facia case by proving that it
would have taken the adverse action in any event on the basis
of Boswell's unprotected activity alone, i.e., his subsequent
insubordination in refusing to operate the 950 Payloader for
reasons not related to any safety or health hazard. Pasula,
supra; Robinette, supra. In this regard I find credible the
testimony of Plant Manager Demont that the triggering event
for Boswell's discharge was in fact this insubordination in
refusing to operate the 950 Payloader. Demont further explained
that Boswell's demand for a "safety committee review" while
admitting there was no safety hazard on the 950 loader was the
specific causative grounds for his suspension. The critical
issue to be determined then is whether Boswell's refusal to
operate the 950 Payloader on the evening of December 27, 1991,
was a protected work refusal.
A miner has the right under Section 105(c) of the Act to
refuse work, if the miner has a good faith, reasonable belief
in a hazardous condition. Pasula, 663 F.2d at 1216 n. 6, 1219;
Miller v. Consolidation Coal Co., 687 F.2d 194, 195 (7th Cir.
1982). The complaining miner has the burden of proving both the
good faith and the reasonableness of his belief that a hazard
existed. Robinette, 3 FMSHRC at 807-12; Secretary on behalf of
Bush v. Union Carbide Corp., 5 FMSHRC 993. A good faith belief
"simply means a honest belief that a hazard exists." Robinette,
at 810. The purpose of this requirement is to "remove from the
Act's protection work refusals involving frauds or other forms
of deception." Id.

1255

Since Boswell acknowledges that he did not refuse to
operate the 950 loader because of any hazard, this work
refusal is clearly not protected. The Secretary nevertheless argues that a miner has a right to refuse to work if
the miner has a good faith, reasonable belief that he would,
by continuing to work, violate a mandatory safety standard.
In this regard, the Secretary maintains that to operate the
950 loader once it had been removed from service pursuant
to 30 C.F.R. § 57.14100(c) would constitute ~violation of
that standard.
Even assuming, arguendo, that the Secretary's legal
theory is correct in this regard, the credible evidence in
this case does not demonstrate that the 950 Payloader had
ever been removed from service pursuant to that mandatory
standard. It was admittedly never "tagged out" nor "taken
out of service and placed in a designated area posted for
that purpose" as would be required under the standard and
there is no evidence that it was ever cited by the Secretary.
Moreover, Boswell himself at all times insists that the
lighting problems on the 950 Payloader did not create any
hazard. Under the circumstances the Secretary is disingenuous
in claiming on behalf of Boswell that the 950 Payloader was in
a hazardous condition and was taken out of service under the
cited standard. In summary, I cannot find that Boswell has
met his burden of proving that he entertained a good faith
and reasonable belief that to operate the 950 loader would
have been hazardous or that it would have violated the cited
mandatory standard. Thus, in any event, his complaint herein
must fail.
ORDER
Discrimination Proceeding Docket No. SE
DISMISSED.

-48-DM is

...

Law Judge

1256

Distribution:
William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, 2015 Second Avenue North,
Suite 201, Birmingham, AL 35203 (Certified Mail)
Thomas F. Campbell, Esq., Lange, Simpson, Robinson
and Somerville, 1700 First Alabama Bank Building,
Birmingham, AL 35203 (Certified Mail)
Mr. Ronny Boswell, P.O. Box 220, Ragland, AL 35131

(Certified Mail)
\lh

1257

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 2 8 1993
CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 92-818
A. C. No. 15-14074-03614

v.
Martwick Underground
PEABODY COAL COMPANY,
Respondent

Docket No. KENT 92-869
A. C. No. 15-02705-03754
Docket No. KENT 92-986
A. C. No. 15-02705-03763
Camp No. 2 Mine
DECISION

Appearances:

w. F. Taylor, Esq., Office of the Solicitor,
U. S. Department of Labor, Nashville, Tennessee,
for the Secretary;
David R. Joest, Esq., Henderson, Kentucky, for
Respondent.

Before:

Judge Maurer

In these three proceedings, the Secretary seeks to impose
civil penalties on the respondent, Peabody Coal Company (Peabody)
under section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801 et seq., for three alleged violations of
the mandatory standard found at 30 C.F.R. § 75.316. The
respondent filed timely answers contesting the alleged violations
and these cases were in due course docketed for hearing. Pursuant to notice, an evidentiary hearing was held in Owensboro,
Kentucky, on March 9, 1993.
Subsequent to that hearing, the parties filed a written
joint motion to approve their proposed settlement with regard to
Docket Nos. KENT 92-869 and KENT 92-986.
In Docket No.
KENT 92-869, the parties propose to reduce the assessed civil
penalty from $2900 to $2600 and in KENT 92-986, no reduction of
the assessed $5000 penalty is proposed. Based on the representations of the parties, I conclude that the proffered settlement is
appropriate under the criteria contained in section 110(i) of the
Mine Act and it is approved. The financial terms of this

1258

settlement agreement will be factored into my order at the end of
this decision. There remains for my decision on the merits, a
single section 104(a) citation: Citation No. 3552659, contained
in Docket No. KENT 92-818. I make the following decision.
DISCUSSION AND FINDINGS

Citation No. 3552659, issued pursuant to section 104(a) of
the Mine Act, alleges a violation of the mandatory standard at
30 C.F.R. § 75.316 and charges as follows:
The methane and dust control plan was not being
followed in that the air behind the curtain in No. 3
entry was 4000 cfm while the wet bed scrubber was off.
Mine Safety and Health Administration (MSHA) Inspector
George Newlin issued the citation at bar on May 28, 1992, during
a respiratory dust survey. In a nutshell, the inspector felt
that the company was operating in violation of its approved
ventilation plan because the plan calls for 5000 cubic feet of
air at the end of the line curtain while the miner is cutting
coal and when he took his air reading, he only found 4000 cubic
feet of air moving. Specifically, the plan provides in relevant
part:
"A minimum of 5000 cfm of air shall be delivered to the
inby end of the line brattice before the scrubber is started and
shall be maintained until the cut has been completed."
The overriding issue in this case then is whether or not the
miner operator cut out a load of coal just before the inspector
took his air reading. Because if he did not, then everyone
agrees, there is no violation. That seems simple enough, but
there is a complicating feature present in the case.
From where
the inspector was positioned in the crosscut waiting for the
miner to start cutting before he took his air reading, he could
not see the continuous miner machine in the No. 3 entry.
Therefore, the inspector did not see the miner operator cut coal,
nor did he see any coal being loaded into the shuttle car, but he
believes that he heard the miner cut into the coal and he then
went into the entry to take his reading. Peabody's evidence is
to the contrary, i.e., they did not start cutting coal until
later that morning.
Mr. Geary, a maintenance supervisor at the mine, testified
that as part of the federal dust survey, they have to maintain
17 water sprays on the miner with a minimum of 100 psi pressure
with the sprays running and, also, in the wet bed scrubber
itself, there is one spray that has to also be operating with
100 psi with the wet bed running.
In order to check the pressure
on these water sprays, you have to unhook a spray or a hose from

1259

the miner and then hook another hose with a pressure gauge teed
into it in its place. While this apparatus is installed, you
cannot mine coal; but in order to check the water pressure on the
sprays, you do have to turn the scrubber on.
After Mr. Geary had checked the water pressure on the
sprays, he sent someone to get the inspector to perform his
pressure check. When he came over, but before he checked the
pressure on the sprays, he checked the air behind the wing
curtain and said they did not have enough air to run coal with.
The inspector concurs with that chronology of events (Tr. 34).
I find the testimony of Mr. Geary to be most convincing.
The pressure-checking apparatus was installed on the miner until
after the inspector checked the water pressure, and even the
inspector agrees that this was in turn after he took the air
check which prompted the citation at bar. At the same time, it
is uncontroverted that while the pressure-checking apparatus is
installed it is not possible to cut coal. Therefore, the only
logical explanation that takes into consideration all the facts
is that the inspector's assumption vis-a-vis cutting coal is
wrong. The inspector apparently mistook the sound of the
scrubber running on the miner for the somewhat similar sound of
the miner cutting coal. Although there is testimony on the
record that it is possible to tell the difference in sound
between the miner setting with its scrubber running and the miner
cutting coal, it was also stated that the farther away a person
is from the miner, the harder it would be to detect the
difference.
I believe that is exactly what happened in this
instance. Accordingly, Citation No. 3552659 will be vacated.
ORDER

Based upon the above findings of fact and conclusions of
law, it IS ORDERED that:
1.

Citation Nos. 3547038 and 3552661 ARE AFFIRMED.

2.

Citation No. 3552659 IS VACATED.

3. Peabody Coal Company SHALL PAY a civil penalty of $7,600
within 30 days of the date of this decision.

Law Judge

1260

Distribution:

w. F. Taylor, Esq., Office of the Solicitor, U. s. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
{Certified Mail)
David R. Joest, Esq., 1951 Barrett Court, P. 0. Box 1990,
Henderson, KY 42420-1990 {Certified Mail)
dcp

1261

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5267/FAX (303) 844-5268

June 29, 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

.
..

v.

Docket No. WEST 91-168
A.C. No. 05-00301-03764
Dutch Creek Mine

MID-CONTINENT RESOURCES INC.,
Respondent
AMENDED DECISION APPROVING PARTIAL SETTLEMENT
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Petitioner;
Edward Mulhall, Jr., Esq., DELANEY & BALCOMB,
P.C., Glenwood Springs, Colorado,
for Respondent.

Before:

Judge Morris

This is a civil penalty proceeding initiated by Petitioner
against Respondent pursuant to the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. S 801, et seg. (the "Act"). The civil
penalties sought here are for the violation of mandatory regulations promulgated pursuant to the Act.
A hearing in this case and related cases commenced in Glenwood Springs, Colorado, on April 15, 1992. The parties reached a
partial amicable settlement and subsequently filed a written
Joint Motion to Approve settlement.
Respondent further filed a suggestion of bankruptcy.
The Citations, the original assessments, and the proposed
disposition are as follows:
Citation/Order
lfUmber

Proposed
Penalty

3410363
3410391
3411019

$1,000.00
1,100.00
1.600.00

$

$3,700.00

$2,220.00

1262

Amended
Proposed Penalty
600.00
660.00
960.00

In support of that motion, the parties submitted information relating to the statutory criteria for assessing civil
penalties as contained in 30 u.s.c. S 820{i).
I have reviewed the proposed settlement and I find it is
reasonable and in the public interest. It should be approved.
Accordingly, I enter the following:
ORDER
1.
citation Nos. 3410363, 3410391, and 3411019 and the
amended proposed penalties are AFFIRMED.
2.
92-717.

Order No. 3410800 was reassessed and settled in WEST
Accordingly, it is deleted from this penalty proceeding.

3.
Respondent filed a case under Chapter 11 of the Bankruptcy Code and is operating its bankruptcy estate as a debtorin-possession. Accordingly, upon approval of the United States
Bankruptcy Court in Case No. 91-11658 PAC, it is ORDERED that
civil penalties be assessed against the Respondent in the amount
of $2,200.00 and Petitioner is authorized to assert such assessment as a claim in Respondent's Bankruptcy case.
4.
The undersigned Judge retains jurisdiction of this case
and related cases not otherwise disposed of by the settlement
herein.

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294 {Certified Mail)
Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, P.C., P.O. Drawer
790, 818 Colorado Avenue, Glenwood Springs, co 81602
{Certified
Mail)
ek

1263

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 3 0 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDINGS

.

CONSOLIDATION COAL COMPANY,
Respondent

Docket No. WEVA 92-992
A.C. No. 46-01453-04013
Docket No. WEVA 92-993
A.C. No. 46-01453-04014

.

Docket No. WEVA 92-1042
A.C. No. 46-01453-04020

:

Humphrey No. 7 Mine

:

PARTIAL DECISION PENDING FINAL ORDER

Appearances:

Charles M. Jackson, Esq., Office of the Solicitor,

u.s. Department of Labor, Arlington, Virginia,
for Petitioner;
Daniel E. Rogers, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Barbour
STATEMENT OF THE CASE

In these civil penalty proceedings arising under the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. S 801 et seq. (the
"Mine Act" or "Act"), the Secretary of Labor ("Secretary"), on
behalf of the Mine Safety and Health Administration ("MSHA"),
charges Consolidation Coal Company ("Consol") with violating
various safety regulations for underground coal mines,
promulgated by the Secretary at Title 30, Part 75 of the Code of
Federal Regulations ("C.F.R."). In addition, the Secretary
charges that certain of the violations constituted significant
and substantial contributions to mine safety hazards ("S&S"
violations) and that one was the result of Consol's unwarrantable
failure to comply with the cited regulation.
A hearing on the merits was conducted in Morgantown, West
Virginia. At the commencement of the hearing, counsels advised
me they had agreed to stipulations applicable to all of the
violations they would try. Tr. 9. They advised me further they
had agreed to settle one of the violations at issue and they
requested a stay in the contest of another citation pending the
then forthcoming decision of another Commission administrative
law judge. They added that they would resolve their. differences
with respect to the stayed contest based upon that judge's
decision. Tr. 13-14. In response, I requested the parties read
1264

their stipulations into the record. I also indicated that I
would entertain on the record a motion to approve the settlement
and would rule upon the motion in this decision. Finally, I
indicated that I would grant the stay. Tr. 13-15.

STIPULATIONS
The parties stipulated as follows:
1. Consol is the owner and operator
of the Humphrey No. 7 Mine;

2. Operations of Consol are subject
to the jurisdiction of the Mine
Act;
3. This case is under the jurisdiction
of the Federal Mine Safety and Health Review
Commission and its designated administrative
law judge pursuant to sections 105 and 113
of the Mine Act;

4. The individual whose signature
appears on the citations at issue,
Thomas w. May, Sr., was acting in his
official capacity as an authorized
representative of the Secretary of
Labor when each of the citations was
issued;
5. True copies of each of the citations
at issue in this case were served on
Consol or its agent as required by the
Mine Act;

6. The total proposed penalty for the
citations contested by Consol in this
case will not affect Consol's ability
to continue in business.
~

Tr. 9-10.

'IJIB SBTTLBMBNT
pocket NO. WBVA 92-992
Citation Bo.
3108615

~

2/3/92

30 C.P.R.
section
77.402

Assessment

Settlaent

$20

$20

The citation was issued because a Black & Decker hand-held
drill did not have controls requiring constant hand or finger

1265

pressure to activate. Rather, the drill was equipped with a lock
on its trigger switch. Thus, the drill had a safety device, but
not the kind of protective device required by the standard. The
inspector found that the violation was not S&S and was due to
Consol's moderate negligence. The inspector also indicated it
was unlikely the drill operator would have been injured due to
the violation. The parties stated that the had agreed that
Consol would pay the proposed civil penalty.
Considering the fact that the drill was protected from
accidental activation by a safety device and taking account of
the inspector's low assessment of gravity and his finding of
moderate negligence, as well as the other civil penalty criteria
set forth at the close of this decision, I conclude that the
proposed settlement is warranted and I approve it. Subsequently,
I will order Consol to pay the agreed amount.
'l'JIE STAY
DOCKET NO. WEVA 92-992
30 C.P.R.

Citation No.

3108613

Date

1/28/92

Section

Assessment

75.1003(c)

$206

Counsel for the Secretary stated the parties' request that
the contest of the penalty proposed for this alleged violation be
stayed pending a decision by Commission Administrative Law Judge
Avram Weisberger. He further stated that the parties expected to
resolve their differences regarding this violation based upon
that decision. I granted the parties' request.
Judge Weisberger's decision was issued subsequent to the
hearing on this matter. Consolidation Coal Co., 15 FMRHRC 436
(March 1993). The parties have yet to advise me that they have
resolved their differences. Therefore, at the close of this
decision I will order the parties to file their settlement
agreement and to move for my approval of said agreement. This
decision will not become final until all issues concerning
Citation No. 3108613 have been resolved.
CONTESTED CITATIONS AND ORDER
QRDER 01' PROCEEDING

I will discuss and decide the contests in the sequence in
which the parties chose to try them: Docket No. WEVA 92-993,
Docket No. WEVA 92-992 and Docket No. WEVA 92-1042.

1266

POCKET NO. WBVA 12-113
Section 104Cal Citation No. 3108745. 2/6/92. 30 C.F.R. S 75.305
The citation states:
The weekly examination for
hazardous conditions conducted on
2/3/92 by R. Calonero was not
adequate. The examination was of
the 12 East return aircourse.
There was damage to one stopping
and a 1/2 block out of another
stopping that was not listed in the
record book.
G. Exh. 5. The citation charged that the condition constituted a
violation of section 75.305 and that the violation was S&S. 1
THE TESTIMONY

\

'l'IIOMAS W. MAY

Thomas w. May, an inspector employed by MSHA, was the sole
witness for the Secretary. May stated that on February 6, 1992,
he arrived at Consol's Humphrey No. 7 Mine at approximately
7:45 a.m. He was at the mine to conduct a regular inspection.
Tr. 28-29. Shortly after arriving, May went underground
accompanied by Stanley Brozik, Consol's safety supervisor, and by
the representative of miners, Sam Woody. Tr. 29. As the
inspection party traveled the 12 east return aircourse, May noted
two defects in stoppings located between the number three and
number four entries.
One of the defects was "a place in the stoppings where half
a block had been left out." Tr. 29. (May described the "place"
as a hole approximately eight inches square. ~) May explained
that such a hole normally is made to permit the hose from a rock

1
30 C.F.R S 75.305 which was in effect when the subject citation
was issued and which subsequently has been revised effective August 16,1992,
57 PR 20914 (March 15, 1992), required in pertinent part, that in addition to
preshift and daily examinations, examinations for hazardous conditions be made
at least once each week by a certified person designated by the operator at
certain specified areas and that if any hazardous condition is found it shall
be reported to the operator promptly and that a record of the examinations
shall be kept in a book on the surface by the operator and open to inspection
by interested persons. Section 75.305 was replaced by 30 C.F.R. S 75.364.

1267

dusting machine to pass through the stopping. After rock dusting
has been completed, the hose is withdrawn and the hole is
patched. In this case, although the hose was no longer there, no
one had repaired the stopping. Tr. 29-30.
Also, May observed another stopping that was being crushed
due to "heaving" of the floor.
(May described "heaving" as
"where the bottom actually goes into an arch. The pressure on
the coal pillars shoves down and the bottom in the open entries
then comes up." Tr. 31.) May testified that the crushing of the
stopping created gaps in the stopping around the frame of its man
door and May said he could hear air leaking through the gaps.
Tr. 33.
Plastic had been placed over the stopping in what May
speculated was an attempt to stop the air from leaking.
According to May, this was not successful and the "plastic was
flapping (in the leaking air] and making all kinds of noise."
Tr. 37. The plastic was on the intake side of the stopping, and
May was walking the return side. Nonetheless, May could see the
plastic through the holes and could hear it flapping. He
believed that Robert Calonero, who had conducted a weekly
examination for hazardous conditions on February 3, and who had
walked the return entry as part of that examination, likewise
could have seen and heard the plastic. Tr. 51-52.
With regard to the hazards presented by the crushed
stopping, May noted that the air was leaking from the intake
entry into the return entry and he was fearful the leaking air
would cause a short-circuit of the ventilation of the working
section, which in turn would result in a velocity of air at the
face that was inadequate to render harmless and carry away
methane and respirable dust. Tr. 34. In addition, the hole in
the first stopping would contribute to the recirculation.
May explained that he believed the hole in the first
stopping was purposefully cut to allow the hose from the rock
dusting machine to pass through the stopping. Although he did
not know exactly when this had happened, he had observed a
person's footprints on the rock dusted floor of the return entry
and he believed that the footprints were made by Calonero when he
examined for hazardous conditions on May 3. Tr. 30. May also
explained that he believed the second stopping had been subjected
to heaving pressures for a long time and that the condition of
the stopping had deteriorated progressively until it had reached
the stage in which he found it.
Upon returning to the surface, May inspected the book in
which the reports of the weekly examination for hazardous
conditions were kept. He noted that not only was the examination
report for February 3 missing a reference to the condition of the
stoppings, but also that there was no reference to the condition
in the report of the examination conducted previous to

1268

February 3. Tr. 36-37, 43-44. May found the failure to report
the condition of the stoppings to be a violation of
section 75.305. Tr. 40.
May also found that the violation was S&S. He stated that
the mine liberates methane at the rate of more than one million
cubic feet every twenty-four hours. Tr. 40. Had the condition
of the stoppings been allowed to continue unabated during normal
mining operations, he believed that ventilation in the return
entry would have been short circuited to the extent that it was
reasonably likely an explosive concentration of methane would
have accumulated and an ignition or an explosion ignited by
friction from the bits on the continuous mining machine cutting
into rock at the face would have occurred. Tr. 41, 62.
He explained that without the condition of the stoppings being
recorded, the stoppings probably would not have been repaired,
and it was reasonably likely that the stopping that was being
crushed would have collapsed completely and short-circuited the
air. Tr. 62-63. In May's opinion, by recording the condition of
the stoppings in the examination book, "the mine foreman can
address the situation, get it corrected in a timely manner and
eliminate the hazard." Id. (However, May also confirmed that at
the time he observed the condition of the stoppings there was
27,450 cfm at the face of the affected section-- three times
more than the required minimum and that he had found point-one
percent (.1%) methane in the return air, as low a reading as he
could obtain using his methane detector. Tr. 57-58, 61-62.)
Further, May believed Consol was negligent in failing to
note the condition in the weekly examination book. May testified
that the foreman, Earl Hagedorn, had told him that he did not
want such conditions put in the book and that he preferred miners
write descriptions of conditions needing correction on slips of
paper and give him the slips. Tr. 44-45. May told Brozik what
Hagedorn had said and Brozik told Hagedorn that the conditions
"had to be put in the book." Tr. 45.
May also testified he believed that Calonero should have
been aware of his failure to perform an adequate examination on
February 3. Tr. 47. May testified that he believed the
footprints in the rock dust on the floor of the return entry were
Calonero's and were made after the hole for the rock dusting
machine's hose had been cut in the stopping. He believed this
because the footprints went straight up the entry the way an
examiner would have walked, rather than back and forth across
it, the way a miner rock dusting the entry would have traveled.
Tr. 54-55, 83-84. Moreover, and in May's opinion, the stopping
that was being crushed-out had deteriorated gradually and thus
should have been readily observable on February 3. Tr.87-88.

1269

When asked by counsel whether the violation cited was for
failing to record the condition of the stoppings or for failing
to notice the conditions during the weekly examination, May
replied, "It would be one and the same • • • If he did not record
them, then the only thing that I can assume is that he didn't
notice them or did not do his exam properly as the regulation
requires." Tr. 48. May added, "He failed to report the stopping
damage, so the only thing that you can assume from that was that
he was unaware [of the condition of the stoppings] because he
wasn't doing the job that was required by section 75.305. 11
Tr. so.
Finally, May stated that the ventilation plan for the
Humphrey No. 7 Mine required the stoppings to be reasonably air
tight and that the conditions he found on February 3 violated the
plan. Nonetheless, he wrote the citation solely "for the
examination." Tr. 56, 61.
ILDON HAGEDORN

Eldon Hagedorn, the mine foreman at Humphrey No. 7 Mine, was
the first witness to testify for Consol. Not surprisingly,
Hagedorn had a different view of the conversation in which he
told May that he wanted conditions requiring correction to be
written down and the written reports to be given to him. He
stated the practice at the mine was for the shift foremen to
advise him of conditions that were not yet hazardous but which
had the potential for so becoming. He wanted to be advised of
the conditions in order to make certain they were taken care of.
Tr. 94-95. He stated that he had never given instructions that
hazardous conditions should not be entered in the weekly
examination book because, "It would be my job." Tr. 95.
Calonero, he added, had not told him about the condition of the
subject stoppings nor ever given him a written slip of paper
referring to it. Tr. 95-96.
STANLEY BROZIK

Stanley Brozik, safety supervisor at the Humphrey No. 7
Mine, was Consol's last witness. He accompanied May when May
issued the citation, and he agreed that the stoppings were
basically as described by May. Tr. 100-101. Further, he stated
that if the stopping that was being crushed had failed completely
there would have been a significant reduction of ventilation at
the face. He explained that the intake air would have leaked
directly into the return entry at the crushed stopping, robbing
the face of ventilation. Tr. 101-102. He noted, however, that
had normal mining operations continued at the face, the
continuous mining machine was equipped with a methane monitor
which would have "knock[ed] the power" long before the methane
content of air at the face would have reached an explosive level.
Tr. 102. He also noted that the continuous mining machine

1270

operator had to check for methane every twenty minutes and that
the section foreman had to check every two hours. Tr. 102-103.
Brozik speculated that the crushed stopping would not have
collapsed the next day or the following day. He stated that it
might have lasted "over a period of years" but he admitted this
was "only • • • speculation." Tr. 106.
'l'RE VIOLATION

Consol is charged with an inadequate weekly examination for
hazardous conditions. There is no serious dispute that the
stoppings were in the condition described by May. There is
likewise no dispute that the condition of the stoppings was not
entered in the weekly examination book. Section 75.305 requires
hazardous conditions found by the examiner during the course of
the weekly examination of a return aircourse to be reported
promptly and a record of the examinations to be recorded in a
book kept on the surface. As May testified, and as common sense
indicates, a main purpose of the recording requirement is to
alert miners to the hazardous conditions and to facilitate their
correction, an action also required by the regulation.
Because the condition of the stoppings was not recorded, the
question is whether the condition was hazardous? I fully credit
May's testimony regarding the danger presented by the defective
stoppings, and I note that May was not alone in recognizing the
hazard. Brozik too agreed that had the second stopping been
crushed-out, air reduction at the face would have been
significant. I conclude that the condition of the stoppings
created the potential for a serious mine accident and I find that
the condition was hazardous.
I also conclude that the condition existed on February 3
when the weekly examination was conducted. I am fully persuaded
by May's explanation that the footprints he observed in the entry
were most likely those of Calonero. Certainly, none of Consol's
witnesses offered as plausible an explanation.
Moreover, the
weight of the evidence establishes that the hole in the first
stopping was purposefully made to accommodate the hose of the
rock dusting machine. Obviously, the entry had to have been
rockdusted before Calonero's footprints could have appeared in
the dust. Thus, I infer that the hole existed when Calonero
passed it.
With respect to the crushed stopping, May's testimony that
such a condition happens over time is persuasive and was not
refuted. While the stopping may not have been as badly crushed
on February 3 as when May saw it three days later, I conclude
that it was nonetheless in a noticeably deteriorated state and
its condition should have been recorded.

1271

I therefore aqree with May that consol's failure to record
the condition of the subject stoppinqs in the surface examination
book establishes that the weekly examination for hazardous
conditions conducted on February 3 was inadequate and that the
Secretary has proved a violation of section 75.305.

In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the
Commission set forth the four elements of a "siqnificant and
substantial" violation. The Commission explained that to find a
violation S&S, the Secretary has the burden of provinq an
underlyinq violation of a mandatory safety standard, a discrete
safety hazard (a measure of danqer to safety) contributed to by
the violation, a reasonable likelihood that the hazard
contributed to will result in an injury, and a reasonable
likelihood that the injury in question will be of a reasonably
serious nature. In u.s. Steel Mining co., 6 FMSHRC 1834, 1836
(Auqust 1984),the Commission amplified the meaninq of the third
element of the Mathies test, explaininq it "requires that the
Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an
injury."
Here, I have found that there indeed was a properly cited
violation of section 75.305. Moreover, I aqree with May that the
failure to adequately inspect for hazardous conditions
contributed to a discrete safety hazard -- a failure to fix the
stoppings and the resulting danger of inadequate ventilation at
the face leading to the buildup of methane and the exposure of
miners at the face and on the section to an ignition and
explosion hazard. I further agree with May that had there been
an ignition and explosion the incident would have resulted in
reasonably serious, even fatal, injuries to miners.
The question is whether the Secretary has established a
reasonable likelihood that the failure to repair the stoppings
would have resulted in an event in which there would have been an
injury? I conclude that he has. I note the Commission's
admonition that the likelihood of injury must be evaluated in_
terms of continued normal mining operations, u.s. steel Mining
Co., 6 FMSHRC 1573, 1574 (July 1984), and further that the
operative time frame for determining if a reasonable likelihood
of injury exists includes the time the violations would have
existed if normal mining operations had continued. Halfway, Inc.,
8 FMSHRC 8,12 (August 1986), U.S. Steel Mining Co. 7 FMSHRC 1125,
1130 (Auqust 1985).
In essence, Brozik agreed with May that had normal mining
continued, the stopping that was being crushed would have
collapsed and that this would have led to a loss of ventilation
at the face. Their fears were warranted in view of the nature of

1272

the pressures to which the stopping was being subjected and in my
view establish the reasonable likelihood that face ventilation
would have been disrupted and given the gassy nature of the of
the mine, that methane would have accumulated to explosive
levels. I come to this conclusion because the testimony
establishes that the pressure on the stopping was continuous and
that the resulting deterioration of the stopping was ongoing. In
addition, the area in which the stoppings existed was not
inspected on a daily basis and one of the premises of the
standard's requirement to record reported hazardous conditions
obviously is that the recording will serve as a signal for
correction. In short, the failure to adequately comply with
section 75.305 on February 3, was causally linked with the
condition of the stoppings on February 6, and would have remained
so linked had normal mining operations continued.
GRAVITY AND NEGLIGENCE
This was a serious violation. The importance of adequate
compliance with the cited regulation was pointed out by May and
is implicate in the standard itself. As I have noted, the
recording of hazardous conditions can be fundamental to their
correction and, in my opinion, is especially important when the
hazard relates to something so central to safety as the
ventilation of the face in a gassy mine.
The fact that the condition of the stoppings was visually
obvious and was not entered in the weekly examination book, in
and of itself establishes Consol's negligence. The regulations
requires such recording and in failing to comply Consol failed to
meet the standard of care required by the regulation. 2
Section 104Cal Citation No. 3108748, 2/12/92. 30 C.F.R.§ 75.503
The citation states:
The Joy continuous miner on the 12 East
section is not maintained in permissible
condition. The continuous miner is in
the face of the [No.] 1 entry and there
are two headlights that are not securely
mounted on the equipment. The headlight[s)
are at the roof bolting station opposite
the operator. One headlight is loose
and the other has one bolt missing.

2
I am not persuaded, however, that Hagedorn instructed miners to
di•regard section 75.305's requirement to record hazardous conditions. He
denied it, and as he said, such instructions would have been cause for his
dismissal. Moreover, in the context of running a productive mine, Hagedorn's
explanation that he wanted to be advised in writing about conditions that were
not yet hazardous but that could deteriorate to that level is both pragmatic
and plausible.

1273

G. Exh. 6. The citation charges that the condition constituted a
violation of section 75.503 and that the violation was S&S. 3
THE TESTIMONY
THOMAS W. MAY

May testified that on February 12, 1992, he conducted an
inspection at the Humphrey No. 7 Mine in the company of Consol
safety escort, Robert Smith, and miners• representative, Sam
Woody. While visiting the 12 east section, May checked the
continuous mining machine to determine whether it was maintained
in permissible condition. Tr. 113-114. On the left side of the
machine May observed two headlights. Each light had two bolts
that attached the light to the frame. The bolts holding one of
the headlights to the frame were loose. The other headlight also
had a bolt missing and May described its second bolt as
"extremely loose." Tr. 115. According to May only "a couple of
threads" held the second bolt to the frame. The nut that should
have secured the bolt to the frame had fallen off. Tr. 116.
May stated that when he observed the continuous mining
machine it was inby the last open crosscut. The machine was
energized but was not mining. If it had been mining, the
headlights would have been approximately ten feet from the face.
Tr. 117. May could not say for certain whether the continuous
mining machine had been in use prior to his arrival on the
section, but he believed that if it had not been, it was ready to
start mining. Tr. 180-181. (May testified that he asked the
mining machine operator if he were ready to begin and the
operator answered, "Yeah." Tr. 178.) May stated that when he
called the condition of the headlights to Smith's attention,
Smith summoned a mechanic who replaced the missing bolts and nut
and who then tightened the headlights to the frame. Tr. 117.
May was asked his opinion as to whether the condition of the
headlights violated a mandatory safety standard? He stated that
section 75.503 requires electric face equipment taken into or
used inby the last open crosscut to be maintained in permissible

3

Section 75.503 states:
The operator of each coal mine
shall maintain in permissible condition
all electric face equipment required by
SS 75.500, 75.501, 75.504 to be
permissible which is taken into or used
inby the last open crosscut of any such
mine.

Consol does not challenge the Secretary's contention that the cited continuous
mining machine is "electric face equipment."

1274

condition. According to May, "permissible condition" means that
such equipment be maintained as approved by MSHA. May stated
that the regulations setting forth the standards for approval are
found at 30 C.F.R. Part 18. In particular, he noted that section
18.46(b) requires headlights to be protected from damage by
guarding. Tr. 119-120, 145-147. 4
Regarding the hazard presented by the violation, May stated
that had the mining machine continued in operation, the vibration
of the machine could have caused the headlights to fall from the
machine. In fact, in his opinion, the headlight that was missing
one bolt altogether and had the nut missing from the other bolt
would have fallen during the course of the shift on which the
violation was cited. Tr. 123. Further, the other headlight would
have continued to loosen during ongoing mining, and it too
ultimately would have fallen, although perhaps not during the
course of the ongoing shift. Tr. 157.
Had one or both of the lights fallen from the frame they
would have pulled their conductors loose, which in turn would
have exposed bare, uninsulated wires. If the exposed wires had
contacted a person (and May noted the miner installing roof bolts
at the face usually worked within one foot of the lights) the
person could have been seriously shocked or even electrocuted.
Or, had the uninsulated conductors touched one another, they
could have sparked and become an ignition source for methane or
coal dust at the face. Tr. 124-127. In addition, any arc or
spark could have ignited the lubricant used to grease the mining
machine's ripper heads. Tr. 157-158. In May's opinion, the
situation created by the condition of the headlights was "very
dangerous." Tr. 129.
May believed it reasonably likely that a miner would have
been shocked had one of the headlights become detached from the
machine. He noted that the roof bolter's proximity to the light
and the fact that the miner installing the roof bolts would have
had his back to the machine while he was working and would have
been unable to see the condition of the headlights. Tr. 129-130.
May also believed it "real likely" an instantaneous arc or
spark sufficient to ignite methane or coal dust at the face or to
ignite the lubricant on the machine would have occurred when a
headlight fell from the machine. Tr. 131. May acknowledged that
the machine had short circuit protection, however he stated that

4

Section 18.46(b) states:
Headlights shall be mounted to
provide illumination where it will be
effective. They shall be protected from
damage by guarding or location.

1275

power to the machine would not have deactivated necessarily if
the conductors touched. Tr. 150-151.
May was of the opinion that consol manageme.nt should have
been advised of the condition of the headlights through having
been told by the continuous mining machine operator or the miner
installing roof bolts. or, management should have known of their
condition through the foreman's on-site observation.
Tr. 136-140. May emphasized that the condition of one of the
lights was visually obvious because due to the missing and loose
bolts the light was not "sitting square." Tr. 141. In fact, its
out of kilter position had alerted May to check the condition of
both headlights. Tr. 144.
ROBERT SMITH
Company safety escort Smith agreed with May that the
headlights were loose. Tr. 166. However, he did not recall
whether one of the lights was missing a bolt. Tr. 169.
Smith
stated that the continuous mining machine operator would have
checked the headlights before he started to mine. Although the
fan was on and the section was ventilated, Smith did not believe
mining had actually started when the inspection party arrived on
the section. Tr. 170-171. Smith admitted that the party had not
arrived on the shift until two hours after the shift had
commenced and he acknowledged that this would have been a late
time to have begun mining, however, he explained the late start
by speculating, "things • • • break down." Tr. 172. Smith
reviewed notes he had written after the violation had been cited.
They indicated that "the people on the section had not had time
yet to make the checks on the miner. At the time of the
inspection, the crew had not started mining." Tr. 174. Smith
stated that although he did not recall May asking the foreman if
he was ready to start mining, it would not have surprised him if
May had done so. Tr. 175.
THE VIOLATION
I conclude that May properly cited Consol for a violation of
section 75.503. That regulation requires to be in permissible
condition all electric face equipment taken into or used inby the
last open crosscut. There is no doubt, and I find, that the
headlights were loose as described by May. Nor is there any
doubt but that the continuous mining machine is electric face
equipment and that when it was observed by May it was inby the
last open crosscut. Indeed, it had been backed but a little
distance away from the face in order to bring it under supported
roof. Tr. 179. The question is whether the condition of the
lights meant that the continuous mining machine was no longer in
permissible condition?

1276

May and counsel for the Secretary believe that the missing
and loose bolts and the resulting loose nature of the lights
establish they were not adequately protected from damage by
guarding or location and thus were not permissible pursuant to
section 18.46(b). ~ Tr. 191. I disagree with this rationale.
It seems to me that when section 18.46(b) refers to protection
from damage by "guarding or location" it references the design of
the equipment, not defects in the implementation of the design.
Moreover, as I read the testimony, there is no basis for
concluding the "location" of the headlights failed to protect
them, and May was clear in his belief that the headlights did not
require a quard.
In any event, I need not rule on the adequacy of the
Secretary's permissibility theory because there is another well
established basis for finding the headlights were not maintained
in permissible condition. Section 75.506, 30 C.F.R. § 75.506,
sets forth the requirements for permissibility. Section
75.506(a), 30 C.F.R. S 506(a), states that permissibility is
dependent upon two criteria: (1) equipment must be built
according to Schedule 2G or a modification thereof, and (2) it
must be maintained according to schedule 2G or a modification
thereof. Schedule 2G contains the substantive prerequisites of
permissibility for, among other things, continuous mining
machines. Appendix II of Schedule 2G lists various conditions
that must be satisfied to retain permissibility, and one of the
conditions is that "all bolts, nuts, screws and other means of
fastening • • • shall be in place, properly tightened and
screwed." Nor should this requirement come as a surprise to
either Consol or the Secretary, for it has long been recognized.
See Kaiser Steel Corporation, 1 MSHC 1229, 1233 (December 24,
1974).
As I have found, all bolts and nuts on the two lights were
not in place and properly tightened. Therefore, the violation
existed as charged.

I conclude that the Secretary also has established the S&S
nature of the violation. May was specific in describing the
potential hazards presented to miners, both in terms of a shock
hazard and in terms of an explosion and fire hazard, and I find
that both discrete safety hazards were established by his
testimony. It makes sense, given the missing and loose bolts and
the vibration of the lights caused by the operation of the
continuous mining machine that, as May testified, one of the
lights would have fallen during the shift on which the violation
was cited, and it makes equal sense that the falling light would
have pulled the conductors loose and exposed the bare wires,
either touching them to the frame of the machine or to each
other. (There was, afterall, nothing to restrain the lights

1277

should they have started to fall from the frame.) The fact that
the continuous mining machine had short-circuit protection, while
lessening the chances of a shock injury, did not defeat it
because, as May testified, such protection could have failed.
Moreover, an arc or spark sufficient to serve as an ignition
source in the gassy mine would have occurred almost
instantaneously upon the conductors contacting the frame or one
another and before the short-circuit protection could have
"kicked in." Further, May's testimony clearly establishes, the
presence in the immediate vicinity of the lights of at least two
miners -- the continuous mining machine operator and the miner
installing roof bolts -- who would have been subjected to the
hazards had mining continued.
In my view, the testimony also establishes the reasonable
likelihood that a shock injury or a methane explosion or fire
would have occurred. I credit May's statement that he was told
mining was about to begin on the section. While Smith's notes
indicated there had not yet been time to check the continuous
mining machine, the shift was already two hours old and there is
no indication that the lights would have been checked and their
condition detected and corrected before mining. In addition,
while there was no testimony regarding the presence of methane on
the section or coal dust or combustible lubricants on the machine
when the violation was cited, all could have accumulated as
mining progressed during the course of the shift and this is
especially so of methane, given the fact that the Humphrey No 7
Mine is a gassy mine. See u.s. Steel Mining co., 6 FMSHRC
1866,1868-69 (August 1984).
Finally, I credit May's belief that had a miner been shocked
or subject to an ignition or explosion, the resulting injuries in
all likelihood would have been of a reasonably serious nature.
Indeed, had the hazard occurred the continuous mining machine
operator and/or the miner installing roof bolts would have been
lucky to have been only seriously injured.
GRAVITY AND NEGLIGENCE
This was a serious violation. The magnitude of the injuries
that could have been triggered by the violation and the fact that
miners on the section were exposed to hazards that were
reasonably likely to occur establishes its grave nature.
Moreover, the violation was the result of n~gligence on
Consol's part. As May noted, one of the lights was obviously
skewed due to its missing and loose bolts, and this visual clue
led May to check both headlights and to detect the violation.
When he found that both headlights were loose, miners had been on
the section for over two hours. Mining may not have commenced,
but there were miners in the immediate vicinity of the continuous
mining machine and they were ready to begin mining. Therefore, I

1278

agree with May that·the section foreman should have detected the
condition and should have had it corrected.
POCKET HO. WEVA 92-992

Section 104Cal Citation No. 3108607. 1/28/92, 30 C.F.R.
75.1722{b)

s

The citation states:
The guard on the stationery
dolly takeup pulley is not guarded
for a distance sufficient to
prevent a person from reaching
behind the guard and becoming
caught between the belt and the
pulley. The guard is 33 inches wide
and 20 inches high. It is 11 inches
from the end of the guard to the
pulley. There is another guard
that has been removed from this
area that is against the coal rib.
There has been no shoveling done in
the area of the guard that would
have constituted removal of the
guard when the belt was out of
service. This condition is on the 5
Northwest section belt.
G. Exh. 10. The citation charges that the condition constituted
a violation of section 75.1722(b) and that the condition was
s&s. 5
THE TESTIMONY
THOMS W. KAY

May testified that on January 28,1992, he conducted an
inspection of the Humphrey No. 7 Mine in the company of Smith and
Sam Woody, the miners' safety representative. The inspection
party proceeded to the Five Northwest Section conveyor belt
drive. The drive mechanism powered the conveyor carrying coal
from the longwall face. Tr. 235. Upon arriving at the drive May
5

Section 1722(b) states:
Guards at conveyor-drive, conveyorhead, and conveyor-tail pulleys shall
extend a distance sufficient to prevent a
person from reaching behind the guard and
becoming caught between the belt and the
pulley.

1279

saw that the guard over the top of the drive pulley had been
removed and placed against the rib. Tr. 206. The pulley itself
was stationary, and as May acknowledged, guided the belt but did
not drive it. Still, in his view the stationary pulley was part
of the belt drive unit and thus was a "conveyor-drive pulley" as
that term is used in section 75.1722. Tr. 233-234. As May
stated, "You can have pulleys in your drive unit that do not have
power going to them." Tr. 234. (He explained that the pulley
helped to keep tension on the belt so that the belt would not
slip. Without the pulley the conveyor belt drive mechanism could
not drive the belt. Tr. 233.)
May described the removed guard as being approximately 4 by
The guard had been fastened to the belt
structure and had hung down over the point where the conveyor
belt passed the drive pulley. Tr. 207. In place of this larger
guard a smaller guard had been installed, it being about 30
inches wide by 20 inches high. According to May, the smaller
guard left a gap of approximately 11 inches between the end of
the guard and the pinch point. Tr. 206-207. Further, the rib
was about 24 inches from the guard. Tr. 209. The area between
the rib and the belt structure was used as a walkway. Tr. 210.
Although usually the belt was positioned in the middle of the
entry (Tr. 262), in this instance it was off to one side (the
right hand side when facing outby) and thus a wider walkway
existed on the left side of the belt than on the right side.
May agreed that there was screening all along the left side of
the belt to prevent access to the belt. Tr. 235-236 and 238.
In addition, there were crossovers and crossunders at intervals
along the belt to provide access to the narrow side of the belt
to those walking the right side and vise versa. Tr. 238. In
fact, there was a crossunder just outby the subject belt drive
unit. ~ According to May the narrow walkway on the right side
(the walkway between the rib and the belt drive pulley guard) was
used by preshift examiners on alternate shifts during their
examinations of the belt. (In other words, preshift examiners
walked both sides of the belt on an alternate basis.) According
to May the narrower walkway also was used by miners assigned to
clean the belt and by miners who were required to travel to the
regulator. Tr. 210-212.
6 feet in size.

In May's opinion the smaller guard was inadequate because
the 11 inch gap would have allowed a miner to reach in and become
caught in the pinch point between the belt and the pulley.
Tr. 208.
May also testified that the area involved had an "area
guard," which purportedly guarded the entire area containing the
conveyor belt drive mechanism. The area guard consisted of
pieces of screen secured to the belt structure and extending to
the right side ribs at both ends of the drive mechanism. One
screen was located approximately 10 to 15 feet from the area

1280

where the belt drive pulley guard was in place and the second
screen was located at the other end of the belt drive belt
mechanism. May could not recall how far that was from the
pulley, but estimated that it might have been 200 feet.
Tr. 238-241, 250-252. According to May, the screen nearest the
pulley was not locked or fastened in any way and to enter the
area that had been screened-off all that was necessary was to
push the screen back. Tr. 214. May could not recall whether
there were any warning signs on or near the screen. Tr. 215.
May had first seen this area guard during an inspection on
January 15. Smith was with him then and Smith told May that MSHA
had accepted area guards as satisfactory to guard the entire area
they enclosed. Tr. 213. May had never observed area guarding
before and he advised Smith that he would discuss it with his
supervisor and fellow inspectors. Tr. 213. May went back to his
office (the MSHA office located in Fairmont, West Virginia) where
he was advised that when the Humphrey No. 7 Mine had been
transferred for inspection purposes to the Fairmont office from
the Morgantown, West Virginia MSHA office in April 1991, another
MSHA inspector, one of the first from the Fairmont office to
inspect the mine, had told mine management that area guarding was
not acceptable to MSHA and that although the area guarding could
be left in place the individual drive pulleys also would have to
be guarded to meet the requirements of section 75.1722(b).
Tr. 217.
(May testified that he did not know what MSHA policy
was with respect to area guarding when the mine had been
inspected out of the Morgantown office. Tr. 245.)
On January 27, a meeting was conducted involving various
officials from mine management, including Smith, Brozik, and mine
foreman Eldon Hagedorn. MSHA officials involved including May
and Fairmont MSHA office supervisor, Cecil Branham. Union
representatives also participated. Tr. 219. Area guarding was
among the subjects discussed. May believed that prior to the
January 27 meeting Branham had already told Brozik in a telephone
conversation that MSHA would not accept area guarding as
complying with section 75.1722 and, according to May, Branham
reiterated this position at the January 27 meeting. May
testified that Branham stated that he would accompany May to the
mine to see for himself whether Consol was complying with the
guarding regulations by guarding the actual pulleys rather than
the area around the pulleys. Tr. 220.
May was shown and identified the section from MSHA's Program
Policy Manual ("PPM") that relates to section 1722. G. Exh 11. 6
6

The PPM states in pertinent part:

75.1722

Mechanical Equipment Guards
(continued ••• )

1281

Citing to item 4 of the policy, May stated: "The guard that was
installed that day was not of adequate size to prevent anyone
from reaching in or slipping, tripping and falling in, and their
arm from coming in contact with this pinch point." Tr. 221. May
rejected the idea that the screens between the belt structure and
rib met the requirements of the standard. He noted that section
75.1722 "doesn't say anything about area guarding" and he
observed that the screen nearest the pulley was not secured to
prevent anyone from walking through it. Tr. 222-224.
May explained that in order for an individual to have had
his or her hand go through the guard opening and be caught in the
pulley's pinch point, the person would have had to fall or slip
to come in contact with the point, or would have had to reach
purposefully through the opening. Injuries likely to have
resulted from such an accident ranged from dismemberment to
death. Tr. 225-226.
May believed it was reasonably likely that a miner would
have been caught in the pinch point due to the inadequate guard.
This was because the area between the rib and the guard was
narrow and thus miners who had to travel past the guard when
conducting required inspections were in close proximity to the
pinch point. Tr. 227. (May stated that miners had to travel and
examine the right side of the belt in order to check for belt
spillage and accumulations of coal dust. Tr. 253.) May
testified that from his discussions with miners who worked on the
belt he was sure that the area inside the screens was traveled by
preshift examiners. Tr. 229. In addition, May testified the
miners had told him that they were required to enter the area to
shovel coal spillage from underneath the belt. Tr. 242-243. (As
May remembered it, Smith had been present during these
conversations. However, May later stated that he could have been
6( ••• continued)
Guards installed to prevent contact with moving parts of
machinery shall:
1. Be of substantial construction;
2. Be of such construction that openings

in the guard are too small to admit a
person's hand;
3. Be firmly bolted or otherwise installed

in a stationary position; and
4. Be of sufficient size to enclose the moving

parts and exclude the possibility of any part
of a person's body from contacting the moving
parts while such equipment is in motion.

G. Exh 11.

1282

mistaken in believing Smith was there. Tr. 272.) In addition,
May believed that miners were assigned to "sweep or drag" the
narrow side of the belt to mix the coal dust with rock dust.
Tr. 253.
Because of normal sloughage from the belt, coal would be on
the floor of the walkway in the vicinity of the pulley which
would make slipping and tripping likely. Tr. 227. In May's view
the coal on the floor would have made it "very easy" for miners
to slip. Tr. 228.
In addition, miners frequently would have had to enter the
guarded area to pull debris off the belt, and the gap in the
guard would have made it tempting for them to do this without
first shutting down the belt. Tr. 228. Had the regular guard
(the guard May observed sitting against the rib) been in place,
miners could not have gained access to the pinch point either
inadvertently or purposefully. Tr. 242.
With regard to Consol's negligence in allowing the violation
to exist, May stated that the inadequate guard was attached on
the midnight shift (the prior shift). May was not certain
whether the larger guard had been taken off before or after the
preshift examination for the shift on which he observed the
condition had been completed, but in either event the violation
should have been observed. If the larger, adequate guard had
been removed prior to the preshift examination, the preshift
examiner should have noted the remaining inadequate guard. If
not, the section foreman should have observed it. Tr. 230-231.
(May maintained that because miners were working in the vicinity
of the drive pulley, the section foreman "would have had to have
walked right past [the inadequate guard]." Tr. 231.)
STANLEY BROZIK
Brozik described how the entire left side (the wide side) of
the belt drive area was guarded by screening. Tr. 255-256.
(Once outside the drive area the rest of the belt was not
guarded.) He further explained the history of guarding at the
mine -- how in the face of repeated guarding violations he had
asked two MSHA supervisors, including Branham, if he could cure
the problem by putting gates at the front end of the drive
mechanism and at the stationary pulley and how he also proposed
bolting "on and off" switches for the belt on each side of the
belt at the crossovers and crossunders nearest the mechanism, as
well as installing signs at both ends of the drive mechanism
saying "do not enter while belt is running." Tr. 257-258. Brozik
indicated that MSHA officials in Morgantown approved this
arrangement.
According to Brozik, area guarding had been employed first
at Humphrey No. 7 Mine at some time during the mid to late 1980s .
•
1283

Tr. 258, 260. (Brozik could not recall the exact year.)
However, in 1991, when inspection of the mine was transferred to
Fairmont, Consol was advised that its prior arrangements were no
longer acceptable and that the pulleys themselves would have to
be guarded. Tr. 258. At that point, guards were put on the
pulleys. Nonetheless, the area guards were left in place. ~
Brozik also stated that after the January 27 meeting, in
which Consol was told that area guarding was not acceptable, he
had advised someone, he believed it was Hagedorn, that he wanted
to make certain the pulleys were guarded. The large guard that
May found against the rib was the result of this instruction.
Tr. 259. As to why the smaller guard had been installed, Brozik
simply stated, "someone though that [the larger guard] was
inadequate so they put a smaller one there." Tr. 259. The
condition was corrected by welding the larger guard over the
smaller guard. Tr. 260-261.
With regard to the hazard presented by the supposedly
inadequate guard, Brozik stated that he never had been informed
that anyone was ever in the area of the pulleys while the belt
was running and that he never had observed a miner in that
position. Tr. 260, 265. Brozik agreed that it was a practice at
the mine for examiners to walk. both sides of the belt. The belt
was not shut off when they conducted their inspections. Tr. 262263. However, if the belt was running and an examiner came to an
area guard, the examiner would not go inside the guard but would
cross at the crossover or crossunder. Tr. 264-265. Brozik
emphasized that it was Consol's policy that DQ person go inside
the area guards while the belt was running. Tr. 263-265.
ROBERT SMITH

Smith, who accompanied May, testified that the screens used
as area guards had signs hung on them stating "Do Not Enter When
Belt Is Running", or words to that effect. Tr. 268. Smith did
not believe that the guard May found inadequate could have been
circumvented easily. Tr. 269. Nor did Smith believe the
situation posed a reasonably likely chance of injury because no
person "should have been
• inside the area guard." Tr. 270.
TIE VIOLATION

Section 75.1722(b) requires guards at conveyor-drive pulleys
sufficient to prevent a person from reaching behind the guard and
becoming caught between the belt and the pulley. Consol argues
that the pulley involved was a takeup pulley, a type of pulley
not mentioned in subsection (b) and one that, according to
Consol, does not come within the regulation. Tr. 284.
The
Secretary's position is that the conveyor drive would not have
worked without the pulley and therefore "the stationary dolly
take-up pulley was a conveyor drive pulley." Tr. 278. In my

1284

view the subject pulley was a "conveyor-drive pulley" and thus
came within the scope of the regulation.
A "drive pulley" is defined as a "pulley or drum driven
through gearing by some source of power and which, through
contact friction, drives a conveyor belt." u.s. Department of
the Interior, A Dictionary of Mining, Mineral and Related Terms
(1968) at 354. A "takeup pulley" is defined as "(a]n idler
pulley so mounted that its position is adjustable to accommodate
changes in the length of the belt as may be necessary to maintain
proper belt tension." IsL.. at 1118. The subject pulley does not
seem to fit squarely within either definition in that it was not
driven by a source of power but rather turned as the belt passed
over it and was not adjustable but rather was stationary,
although it did serve to keep tension on the belt. Tr. 233-234.
It cannot be expected that those who write safety and health
regulations can specifically incorporate every technological
variation into a regulation. Nor can it be expected that every
objective situation faced by an inspector will fit neatly within
the wording of a pertinent regulation. Thus, when faced with a
hybrid situation such as this, the inspector must take into
account the words of the standard, keep its intent in mind and
apply a rule of reason.
Here, it seems to me that May did just that. Under a
reasonable interpretation of section 75.1722(b) the standard is
broad enough to incorporate the subject pulley. As May noted,
the pulley, while not having power going to it to drive the belt,
was nonetheless a part of the drive unit. Tr. 234. The belt
drive would not have operated correctly without it. I conclude
therefore that in that broad yet reasonable sense the pulley was
a conveyor-drive pulley, and as such it was required to be
guarded to prevent a person from reaching behind and becoming
caught between the belt and the pulley.
Consol does not dispute that the 11 inch gap upon which May
based the citation existed as described by May. However, it
maintains that area guarding prevented persons from going into
the vicinity of the pulley and thus that persons could not become
caught between the pulley and the belt despite the presence of
the gap.
The regulation requires the pulleys to be guarded. While
the area guards were sufficient to restrict access to the area
adjacent to the pulley drive mechanism, they did not guard the
cited specific pulley. Much as the use of chains to rail off
access to walkways and travelways over moving machine parts and
the presence of signs to warn against entry cannot, in my view,
be regarded as compliance with the guarding regulations for
surface metal and nonmetal mines-- overland Sand & Gravel Co.,
14 FMSHRC 1337, 1342, (August 1992), see alsoP PM, Vol V

1285

at 55(a) (6/18/91) -- so here the area guards fail to conform to
what the regulation requires. 7 Rather than excuse the violation,
the presence of the area guards and warning signs may mitigate
the potential gravity of the violation and impact whether it is
of a S&S nature.
Because the 11 inch gap was sufficiently large for a
person's hand andjor arm to enter and become caught between the
belt and pulley, I find that the violation existed as charged.

There are, in my op1n1on, several factors that warrant
deletion of the inspector's S&S finding. I agree with Consol
that the evidence does not establish a reasonable likelihood of a
miner having a hand and/or arm caught between the pulley and the
belt. In the first place, the testimony does not establish that
it was a practice for miners to work or to travel immediately
adjacent to the pulley while the belt was running. Although the
belt was inspected from the walkway adjacent to the pulley and
while miners might occasionally have had to clean up the walkway
or clean up under the belt next to the pulley, there was no
confirmation that any of these activities regularly occurred
while the belt was running. May was told by an unidentified
miner that miners had worked adjacent to the pulley while the
belt was in operation, and I do not doubt the conversation took
place and that, in fact, such occasionally happened, but I also
do not doubt that Consol had a strict policy of barring access to
the area of the belt drive while the belt was operating. The
presence of the warning signs, whose existence I credit, and the
presence of the area guards, corroborate the testimony of Brozik
and Smith that such was the case. I also find credible Brozik's
testimony that he had never been told about miners being in the
area of the pulleys while the belt was running and never had seen
them in that position and I conclude from this that it was rare
indeed when such an incident occurred.
Moreover, while it would have been possible for a miner to
ignore the policy and to walk through the screens used as area
guards and to have traveled or worked adjacent to the subject
pulley, there was no testimony that the floor next to the pulley
was slippery or uneven or that coal spillage from the belt
habitually littered the walkway floor next to the pulley and I
conclude from this that if a slipping or tripping hazard existed,
it was infrequent.

7
I note parenthetically that even had I held that area guarding
could satisfy the regulation's mandate, the testimony of May that the
screening had not been secured to the rib and could have been easily walked
through would have lead me to the conclusion that the guarding was inadequate.

1286

Further, even if a miner had slipped or tripped and fallen
toward the pulley while the belt was running, the miner's hand
and/or arm would have had to be positioned so that the guard that
was in place was missed and the gap was "hit," and it should be
recalled that although the guard was inadequate, it covered a
qood deal more space than the qap. I therefore conclude that the
Secretary did not establish a reasonable likelihood that the
failure to adequately guard the pulley would have resulted in a
miner's hand or arm becoming caught in the pulley's pinch point,
and I find that the violation was not S&S.
GRAVITY AND NEGLIGENCE
In assessing the qravity of the violation, both the
potential hazard to the safety of miners and the probability of
such hazard occurring must be analyzed. Clearly, the potential
hazard was grave, a severe injury, even dismemberment could have
been expected. However, such an accident was decidedly less than
likely qiven the presence of the signs, the area quarding,
Consol's policy of barring entry to the subject area while the
belt was running and the presence of the pulley guard, inadequate
thouqh it was. I conclude, therefore, that although the
potential injuries resulting from the violation were extremely
serious, the likelihood of them occurring was so remote as to
make this a non-serious violation.
I also conclude that Consol was negligent in allowing the
violation to exist. The presence of the inadequate guard was
visually obvious, especially so given the fact that the larger,
adequate guard was leaning against the rib and, in effect,
drawing attention to the condition of the pulley it no longer
guarded. May's testimony that the inadequate guard was attached
on the midnight shift was not refuted. Nor was his observation
that the inadequate guard should have been observed either by the
preshift examiner or the foreman supervising miners working in
the area of the belt drive. Thus, Consol knew or should have
known of the violation.

WBYA 92-1042
Section 104Cdl C2lOrder No. 3108651. 3/17/92/, 30 C.F.R. § 75.303
The order states:
The preshift examination record on the
12 East, 13 East and 14 East section
does not contain all areas that are
required to be examine[d]. The following
conditions were found: 12 East preshift
record: 03-16-92, day shift, no record of
the section track inby the mouth to the
section. 03-16-92, afternoon shift, no

1287

record of the section track inby the mouth
to the section. 03-17-92, midnight shift,
no record of the section track inby the
mouth.
13 East preshift record: 03-16-92, midnight
shift, no record of the belt line from
40 block to the tailpiece at 70 block.
03-16-92 midnight shift, no record of the
section track. 03-16-92 afternoon shift,
no record of the section track. 03-16-92
afternoon shift, no record of the section
belt from 41 block to the track at 70 block.
14 East preshift record: The preshift of the
7 North belt is maintained in this record
book. 03-16-92, day shift and afternoon shift,
no record of the 7 North belt from 13 East
to the (car) loading point. This is 6,600 feet as
measured on the mine map.
The preshift examination records at this mine
have been cited several times for no record
of examined areas that are required, therefore
the operator's negligence is high. The records
have also been countersigned by the mine
foreman. If these conditions were allowed to
exist and the required examinations were not
made, a condition would exist that would cause
a lost workdays or restricted duty accident.
I believe that this is unlikely because I
assume that this is only record keeping, but the
operator can not verify by the records that
the examinations were made.
Conferences with Robert Smith, Mr. Smith agrees
with the gravity but disagrees with the action
and the negligence because old habits are hard
to break.
G. Exh. 15. The order charges a violation of section 75.303 and
that the condition was the result of Consol's unwarrantable
failure to comply with the standard. 8
•1

Section 75.303 requires in pertinent part:
(a) Within 3 hours immediately proceeding
the beginning of any shift, and before any
miner in such shift enters the active
workings of a coal mine, certified persons
designated by the operator shall examine
(continued ••• )

1288

Til TESTIMONY

uopsw. QY
May testified that he went to Humphrey No. 7 Mine on March
17, 1992 to conduct a regular inspection. One of the first
things he did after arriving at the mine was to examine the
preshift examination records. Tr. 297. The records were kept in
the foreman's office, and it was there that May reviewed them.
With May at the time were Smith and Janet Todd, a representative
of miners. May testified that upon reviewing the records he
found several areas of the mine that were required to be examined
and for which there were no records of a preshift examination
having been performed. Tr. 298.
May therefore issued the
order in question for Consol's failure to record the
examinations. Tr. 299. (There is no question but that Consol
performed the required examinations. As May stated, "[A]ll of
the areas had been covered but just not recorded." Tr. 311.)
May explained that section 75.303 requires the examiner to
report the results of the examination to a designated person on
the surface and that this usually is done by calling out the
reports on the mine telephone. The reports are then recorded and
the mine examiner must countersign the reports when he comes out
of the mine to make sure that what he has reported has been
recorded accurately. Tr. 300, 302.

8 ( ••• continued)
such workings and any other underground
area of the mine designated by the
Secretary or his authorized
representative.
The regulation goes on to require the examination of every working section,
other specified areas and the conducting of tests for gases and air velocity
at designated places. The examiner is also required to examine for other
hazards and violations of the mandatory safety and health standards. The
regulation concludes:
Upon completing his examination, such mine
examiner shall report the results of his
examination to persons authorized by the
operator to receive such reports at a
designated station on the surface of the
mine, before other persons enter the
underground areas of such mine to work in
such shift. Each such mine examiner shall
also record the results of his examination
with ink or indelible pencil in a book
approved by the Secretary kept for such
purpose in an area on the surface of the
mine • • • and the record shall be open
for inspection by interested persons.

1289

May was asked what he believed to be the purpose of the
reporting and recording requirements? He replied that the
results of the examination have "to be called out so that the
oncoming shift knows that the mine is safe so they can enter the
underground area of the mine to go to work" and that recording
the results of all areas examined is required so that the
oncoming shift and mine management will be aware of any hazardous
conditions they will encounter. Tr. 301. He described the
recording requirement as "very important" because it assures that
"problems are addressed and taken care of immediately." ~, see
also Tr. 310-311.
According to May, the problem was that Consol was not
recording that areas specified in section 75.303 had been
inspected and found safe, but rather was recording that larger
sections of the mine that included the specific areas had been
found safe and it was doing so by writing the phrase "section
safe."
Tr. 303-304. May maintained that writing the phrase
"section safe" to indicate preshift examiners had detected no
hazards did not comply with the recording requirements because
the regulation itself does not refer to the examination of a
"section" but rather to various parts of working areas -"working sections," and specific areas within the working
sections, as well as "belt conveyors on which coal is carried,"
etc. Tr. 323-328, 333, 335-336. May,objected to the "second
safe" approach to compliance not only because it did not conform
to the wording of section 75.303 but also because preshift
examinations of all of the specified areas might not be done by
the same person and the miner countersigning "section safe"
might not know for certain that no hazardous conditions had been
detected in the specified areas. May stated that Humphrey No. 7
Mine was the only mine he had inspected where preshift
examinations were recorded using the phrase "section safe."
May maintained that this was not a new problem at the mine
and he identified two citations that he had issued previously, on
January 23, 1992 and February 18, 1992 (G. Exhs. 18 and 17), for
the same violation. Tr. 306-308. May claimed when he issued the
January and February citations he had spoken with Smith about the
company's failure to specifically record the results of the
preshift examinations but did not get any explanation from Smith
about why the practice existed. Tr. 306. In addition, he had at
least three conversations with various examiners prior to issuing
the order in which he explained the inadequacy of recording
"section safe." Tr. 258-9. Nonetheless, he believed that Smith
had tired to instruct mine foremen in order to ensure the
preshift examinations were properly recorded. Tr. 309.
May believed that the violations of January and February
were the result of Consol's "moderate negligence." However, due
to the number of unrecorded areas that he found on March 17, the
fact that the recording deficiencies existed for all three of

1290

that day's preshift examinations and due to his previous efforts
to have the practice eliminated, May reached the conclusion that
the failure to properly record the preshift examinations of March
17 was the result of Consol's unwarrantable failure to comply
with the cited standard. Tr. 310. May testified that he was
offered no explanation for the existence of the violation other
than that Smith told him, "[O]ld habits are hard to break."
Tr. 313.
STANLEY BROZIK
Stanley Brozik testified that when the word "section" was
used at the mine, it was generally understood to mean the area
from the mouth all the way to the working face and that this area
included the belt and the track. Tr. 339-340. Brozik maintained
that state examiners had accepted the "section safe" designation
as adequate. Tr. 340.
ELDON HAGEDORN
Hagedorn testified that he first assumed foreman's duties at
the mine in 1969 and that in 1976 he was appointed mine manager,
a position he has since held. During all of this time, the word
"section" has meant the area "from the mouth of the section where
you get the supply track to the face." Whenever Hagedorn saw the
term "section safe" recorded it meant to him "that [the] section
from the mouth and all the faces • • • belts, track, wire, were
safe." Tr. 353.
'l'BE VIOLATION
I conclude that the violation existed as charged. The
regulation requires that "the results of [th]e examination" be
reported and that the "results of [the] examination" be recorded.
The required "examination" is described in detail in the
regulation, both with respect to the observations and tests that
should be made during the examination and with resect to the
areas where they should be made.
I agree with May that a purpose of recording the results of
the preshift examination is to appraise the oncoming shift of
hazards and violations they may encounter so that they may
correct the conditions and so that they may avoid the hazards
before they can be corrected. Clearly, another purpose is to
apprise "interested persons", e.g., state and federal inspectors
and representatives of miners, of the same information,
information that may alert such persons to compliance problems at
the mine.
May's view that the standard requires the recording of the
results of the examinations of the areas it specifies and his
collateral view that a blanket recording of "section safe" is not

1291

acceptable are, in my op1n1on, reasonable interpretations of the
recording requirement set forth in section 75.303(a) in that they
further the purposes of the requirement. His logic that a person
reviewing a blanket recording -- even a person familiar with the
interpretation of the word "section" at the mine -- would not
always be able to determine for certain whether the required
examinations had been conducted seems irrefutable, and the lack
of certain knowledge that required examinations had been
conducted would mean the person would likewise lack certain
knowledge of possible hazards to correct andjor to avoid. I find
therefore that Consol failed to record the results of preshift
examinations as stated in Order No. 3108651 and in so doing
violated section 75.303(a).
GRAVITY

This was not a serious violation. It bears repeating that
although the preshift examinations were not properly recorded,
they were conducted. Moreover, although use of the phrase
"section safe" would not convey with certainty that the specified
areas had in fact been inspected and found safe, it is clear from
the testimony of Brozik and Hagedorn that the phrase was common
parlance at the mine and might also at times accurately indicate
that the "section" had been examined and that the area from the
mouth of the section to its face was hazard free.
As I have found, this does not excuse Consol's failure
properly to record the preshift examinations, but it does lessen
the likelihood of injury or illness as a result of the violation.
tnnfARRANTABLE FAILURE AND NEGLIGENCE

Whether the violation was the result of the "unwarrantable
failure" of Consol to comply with the section 75.303(a) depends
upon whether it was the result of aggravated conduct constituting
more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997,
2004 (December 1987). See also, Youghiogheny & Ohio Coal co.,
9 FMSHRC 2007, 2010 (December 1987). In Emery the Commission
compared ordinary negligence (conduct that is inadvertent,
thoughtless, or inattentive) with conduct that is not justifiable
or inexcusable.
I cannot find that the failure of Consol to properly record
the cited preshift examinations of March 17 was the result of
unjustifiable or inexcusable conduct. While I fully credit May's
testimony that following issuance of the January and February
citations he discussed with Smith the way to properly record the
examinations, I am also struck by the fact that May believed that
Smith, by instructing the appropriate foremen, had tried to
ensure that the examinations were recorded correctly. Tr. 309.

1292

In addition, although I credit May's testimony that on at
least three occasions he discussed with Consol foremen the way in
which to properly record the examinations, I note as well
Brozik' s testimony that state inspectors had acce-pted the "safe
section" designation as adequate. From all that appears on the
face of this record, I conclude that it was not until May raised
the issue in January that Consol became aware that the way in
which it had been recording the results of preshift examinations
was not acceptable to MSHA.
Further, I credit May's testimony that Smith explained the
violation with the statement that "old habits are hard to break"
and it appears to me that Smith's observation was right on the
money. Tr. 313. Consol personnel were used to employing the
"section safe" method of recording the results of its preshift
examinations. Smith was trying to bring the practice into
compliance with the regulation. This proved difficult, not
because those recording the results were inexcusably negligent,
but because they were in the habit of doing it the "old way" and
through inadvertence or inattention continued in the habit. I
would add that I do not find this surprising due to the fact that
the violation was not serious and thus did not signal an
immediately urgent need to comply. Tr. 313.
Given the conclusion that Consol's failure was the result of
inattention or inadvertence, I find that Consol was negligent in
allowing the violation to exist but not guilty of an
unwarrantable failure to comply. Thus, the section 104{d) {2)
order must be modified to a section 104{a) citation, and the
inspector's designation of "high" negligence must be modified to
one of "moderate" negligence.
OTHER CIVIL PENALTY CRITERIA

As revealed by the proposed assessment forms contained in
each docket, the Humphrey No. 7 Mine is a large mine and Consol
is a large operator.
The parties have stipulated that the penalties proposed will
not affect Consol's ability to continue in business. Because of
this and because of the fact that Consol is a large operator, I
find that any penalties I assess for the subject violations will
likewise have no affect upon Consol's ability to continue in
business.
In each instance where a violation has been found Consol
demonstrated its good faith in abating the violations.
The history of previous violations contained in the MSHA
Office of Assessments print-out reveals that in the 24 months
prior to the date of the first violation in this case a total of
750 violations were cited at the Humphrey No. 7 Mine, of these

1293

there were 7 violations of section 75.305, 23 violations of
section 75.503, 2 violations of section 75.1722(b), and 15
violations of 75.303. While the other violations do not have a
history warranting an increase in penalties that might otherwise
be assessed, I conclude that the history of previous violations
of section 75.503 is such that the penalty should be moderately
increased.
CIVIL P8HALTY ASSESSMENTS POR CONTESTED VIOLATIONS
POCKET NO. JBVA 12-192

Section 104Cal Citation No. 3108607. 1/30/92. 30 C.F.R.
s 75.1722(b)
The Secretary has proposed a civil penalty of $206. As I
have found, this was a non-serious violation and Consol was
negligent in allowing the violation to exist. Noting especially
that Consol is a large operator and taking into account the other
civil penalty criteria, I conclude that a civil penalty of $250
is appropriate.
POCKET NO. WBVA 12-913

Section 104Cal Citation 3108745. 2/6/92. 30 C.F.R.

§

75.305

The Secretary has proposed a civil penalty of $206. As I
have found, this was a serious violation and Consol was negligent
in allowing the violation to exist. Noting especially that
Consol is a large operator and taking into account the other
civil penalty criteria, I conclude a civil penalty of $400 is
appropriate.
Section l04Cal Citation No. 3108748. 2/12/92. 30 C.F.R. S 75.503
The Secretary has proposed a civil penalty of $206. As I
have found, this was a serious violation and Consol was negligent
in allowing the violation to exist. Noting especially that
Consol is a large operator, that its history of previous
violations of the cited standards warrants a moderate increase in
the civil penalty that should otherwise be assessed and taking
into account the other civil penalty criteria, I conclude that a
civil penalty of $500 is appropriate.
POCKET NO. WBVA 12-1042

Section 104CdlC2l Order No. 3108651. 3/17/92. 30 C.F.R. S 75.303
The Secretary has proposed a civil penalty of $1,200. As I
have found, this was a non-serious violation and Consol was
negligent in allowing the violation to exist. Noting especially
that Consol is a large operator and taking into account the other

1294

civil penalty criteria, I conclude that a civil penalty of $250
is appropriate.
ORDER

Consol is ORDERED to pay a civil penalty in the approved
settlement amount shown above in satisfaction of the violation in
question: Citation No. 3108615, 2/3/92, S 77.402 (Docket No.
WEVA 92-992). Further, Consol is ORDERED to pay civil penalties
in the assessed amounts shown above in satisfaction of the
contested violations in questions.
The Secretary is ORDERED to modify section 104(a)
Citation No. 318607 by deleting the inspector's S&S designation.
The Secretary is ORDERED to modify Section 104(d) (2) Order
3108651 to a section 104(a) citation and to delete the
inspector's finding of "high" negligence and to substitute a
finding of "moderate" negligence.
The parties are ORDERED to advise me within ten (10) days of
the date of this decision of their settlement agreement with
regard to citation No. 3108613, 1/28/92, 30 c.F.R. S75.1003(c)
(Docket No. WEVA 92-992) in light of Judge Weisberger's decision
in Consolidation Coal co., 15 FMSHRC 436 (March 1993), and to
move for my approval of same.
I retain jurisdiction in this matter until all issues with
respect to Citation No. 3108613 have been resolved. Until such
time, my decision in this matter is not final. Payment of
approved and assessed civil penalties and modification of the
citation and order are held in abeyance pending a final
dispositive order.

3~/~~~~~~
David i.'ifa;bour
Administrative Law Judge
(703) 756-5232

Distribution:
Charles M. Jackson, Esq., Office of the Solicitor,

u.s. Department of Labor, 4015 Wilson Boulevard, Suite 516,

Arlington, VA

22203

(Certified Mail)

Daniel E. Rogers, Esq., Consolidation Coal Company, Legal
Department, 1800 Washington Road, Pittsburgh, PA 15241
(Certified Mail)
fepy

1295

JUL-09-1993

14:38

FROM

FED MINE SAFETY & HEALTH

m

92026535030

P.02

OFFJCE CF AIIMI.lSTlATI\IE LAW .MXiES
2 IICYLU1~ 1 10th FLOOR
$20.5 UfSallla PJKE
FAU.S QUU;"• '11fl$liUA 22041

lA\' 2 5 1993
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
PERRY PODDEY I
Applicant
v.
TANGLEWOOD ENERGY 1 iNC. 1

Respondent

..: TEMPORARY
REINSTATEMENT
PROCEEDING
.•

..• Docket No. WEVA 93-287-D
. MORG CD 93-01
:

:
".

Coal Bank No. 12 Mine

..

OllDBR 01' TBIIPOUR.Y RIJMSTADIIBlft
Befor~:

Judqe Amchan

on April 30, 1993, the Secretary of Labor filed an
application for temporary reinstatement, pursuant to section
105(c) of the Federa1 Mine Safety and Health Act, 30 u.s.c.
section 815(c), on behalf of Perry Poddey, a miner. The
application alleged that Mr. Poddey bad been discharqed by
respondent on January 6, 1993 in retaliation for engaging in
protected safety activity.

AttaChed to the application was the

affidavit of Lawrence M. Beeman, Chief of MSHA•s Office of
Technical Compliance and Investigation Division, and the miner•s
complaint. Mr. Beeman's affidavit indicates that Mr. Poddey had
talked to MSHA Inspector Ken Tenney on November J, ~992 and
January 5, 1993 about a defective parkinq brake on the scoop he

operated •

MSHA citations were issued to Respondent on both

those dates regarding the parking brake.

Mr. &eeman's affidavit also indicates that the miner
discussed the malfunctioning parking brake with his foreman in
November and December, 1992. and on January 4, 1993. Mr. Seeman
also found that Respondent admitted that Mr. Poddey reported the
defective parking brake to his foreman on January 4, 1993. He
further found that Mr. Poddey's foreman, Jeff Simmons had
threatened to disoharqe the miner following the issuance of the
citation of November 3, 1992, and that Mr. Poddey was in fact
discharged the day after the second citation. The miner's
complaint alleges that on the day he was fired he had a telephone
conversation with General Mine Foreman Randy Key, who blamed him
for the citation just issued to Respondent regarding the parking

brake.

JLIL-09-1993

14: 39

FROM

FED 1"1 I I~E SAFETY & HERLTH

m

92026535030

P.03

Pursuant to the Commission's Rules of Procedure, 29 C .. F .. R ..
2700.45(c), Respondent had ten days from the date of receipt
of the Secretary's application for temporary reinstatement to
request a hearing on the application. As the application was
received by the Commission on May J, 1993, Respondent had until
May 18, 1.993., to request a bearing, taking into accowtt the
five days allowed to respond to doou.ents served by .ail,
29 C.F.R. 2700.8.

On May l4, 1993, Respondent requested a hearing which was
scheduled for May 25 and 26, 1993, in Elkins, West Virginia.
SUbsequently on May 2~. RespOndent withdrew its hearinq request.
The parties filed a stipulation in which the App~icant agreed
to file his complaint by May 28, ~993, and initiate discovery
by June ~~, ~993. The parties have also agreed, with qualifications, to the scheduling of the hearing on the discrimination
complaint in August 1993.

Commission Ru1e 45(c), 29 C .. F.R. 2700.45(c), provides

that if no hearing is requested on an application for temporary reinstatement, the judge shall review the application

and immediately issue an order of temporary reinstatement if
the judge determines that the complaint vas not frivolously
brought. Having reviewed the application, l conclude that
the complaint was not frivolously brouqht and order that
Respondent reinstate Mr. Poddey to the position from which
he was discharged on or about January 6, ~993, or to an
equivalent position,. at the same rate of pay, and with the
same or equivalent duties. T.be application indicates that
Mr. Poddey engaged in activity protected by the Mine Act in
complaining about the defective parking brake to his foreman
and to MSHA. The application also indicates that Respondent
was aware of the protected activity and displayed animus
towards the miner as a result of that activ.ity. The timing
of the discharge, one day after Respondent was cited for a
condition al:::tout which the ainer complained, creates an
inference that Mr. Poddey would not have been discharged
but for his protected activity.
The application before me provides ample evidence to
suqgest that Mr. Poddey was discharged in violation of
Section 105(c) of the Mine Act. Secretary on hehalf of
BQbinette v. United states Coal Company, 3 FMSHRC 803 (April
198~).
Although the Secretary may not necessarily prevail at
a trial on the merits of the discrimination complaint, he has
~t his burden of proving that the complaint was not frivolously
brought. Given the fact that I would have ordered reinstatement
on Kay 18, 1993, had no hearing request been filed, I will order
reinstatement effective that date in view of the fact that
Respondent's hearing request has been withdrawn. Tbe ~licant
2

JUL -09-1993

14: 40

FROM

FED t'II NE SAFET~' & HEALTH

TO

92026535030

P.04

should not suffer any loss of pay by virtue of the fact that
Respondent requested a hearing on the application for temporary
reinstatement and then had second thouqhts.
QRPf!R
Respondent i.s hereby ordered to reinstate Perry Poddey to
the position from which he was discharged on January 6, 1993,
or to an equivalent position, at the same rate of pay, and with
tbe same or equivalent duties, effective May 18, 1993.

!?~~

~\&J.Amchan

Administrative Law Judge
703-756-4572

Distribution:
Heather Bu.pp-Babuda, Esq., Office of the Solicitor,

u.s. Department of Labor, 4015 Wilson Blvd., Room 516,
Arlington, VA 22203 (Certified Mai1)

Paulo. Clay, Jr., Esq., conrad and Clay, P.O. Drawer 958,
Fayetteville, WV 25840 {Certified Mail)

\lh

TOTAL P.04

ADMINISTRATIVE LAW JUDGE ORDERS

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

JUN 111993
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 92-802-M
A. C. No. 45-02961-05553

v.
ASAMERA MINERAL (US), INC.,
Respondent
Cannon Mine
ORDER DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION
Before:

Judge Merlin

This case is before me upon a petition for the assessment of
a civil penalty under section 105(d) of the Federal Mine Safety
and Health Act of 1977. The parties have filed a joint motion to
approve settlement of the one violation involved in this case.
The settlement seeks a reduction in the penalty amount from the
originally assessed amount of $100 to $50.
A review of the file discloses that the citation was issued
on the ground that the operator allegedly altered an accident
scene before MSHA could investigate.
MSHA issued a special
assessment for the violation, although the narrative findings of
the special assessment represents that the violation was not
serious. The settlement motion asserts in part that the special
assessment was not warranted and states further that negligence
and gravity are reduced to a level where a single assessment of
$50 is appropriate.
The settlement motion is inadequate because it provides no
reasons to support the 50% reduction in what was already a very
modest penalty assessment. None of the circumstances under which
the accident scene was altered are described. And there is no
discussion of the effect of the alteration of the accident scene.
As a general matter, alteration by the operator of a accident
scene prior to investigation would seem to me to be a serious
matter involving some degree of fault by the operator. In this
connection, I note that the inspector on the citation found that
negligence was high, but that the narrative statement appears to
find only ordinary negligence, although the finding of high
negligence is not specifically contradicted. The settlement
motion does not discuss negligence beyond stating that the
finding of negligence is supportable. High negligence is, of
course not consistent with a penalty of $50.

1299

The amounts involved in this case are not significant, but
the principles are. The parties are reminded that the Commission
and its judges bear a heavy responsibility in settlement cases
pursuant to section llO(k) of the Act. 30 u.s.c. § 820(k); See,
s. Rep. No. 95-181, 95th Cong., 1st Sess. 44-45, reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 632-633 (1978). The Commission has
the duty to determine the appropriate amount of penalty, in
accordance with the six criteria set forth in section llO(i) of
the Act. Sellersburg Stone Company v. Federal Mine Safety and
Health Review Commission, 736 F.2d 1147 (7th Cir. 1984).
Based upon the parties' motion, I cannot conclude that the
recommended penalty reduction is warranted and that the suggested
amount is consistent with the factors mandated in section llO(i).
The parties must provide explicit reasons for the action they
recommend.
In light of the foregoing, it is ORDERED that the motion for
approval of settlement be DENIED.
It is further ORDERED that within 30 days of the date
of this order the parties submit additional information to
support their motion for settlement. Otherwise this case
will be assigned and set for hearing.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Douglas White, Esq., Counsel, Trial Litigation, Office of the
Solicitor, u.s. Department of Labor, 4015 Wilson Blvd.,
Arlington, VA 22203 (Certified Mail)
Robert A. Friel, Esq., Office of the Solicitor, u. s. Department
of Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212
(Certified Mail)
'Mr. Melvin J. Wattula, Manager, Asamera Minerals (US), Inc., P.O.
Box 398, Wenatchee, WA 98801 (Certified Mail)
jgl

1300

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

JUN 111993
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 93-105-M
A. C. No. 45-02961-05557

v.
ASAMERA MINERAL (US), INC.,
Respondent

Cannon Mine

ORDER DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION

Before:

Judge Merlin

This case is before me upon a petition for the assessment of
a civil penalty under section 105(d) of the Federal Mine Safety
and Health Act of 1977. The parties have filed a joint motion to
approve settlement of the one violation involved in this case.
The parties seek approval of a reduction in the penalty amount
from $157 to $20.
A review of the file shows that the citation in this case
was issued for an alleged violation of 30 C.F.R. § 50.10 because
the operator failed to notify MSHA as soon as possible of an
ignition of methane. The citation as modified was designated
significant and substantial and the operator's negligence was
characterized as moderate. The parties offer absolutely no
reasons to support the reduction they seek. More importantly,
they provide no basis for me to approve their suggested penalty
under the six criteria set forth in section 110 (i) of the Act.
30 u.s.c. § 820(i).
The failure to report a methane ignition may well be
serious. At the very least, the parties must explain why it is
not. In addition, the findings of significant and substantial
and of moderate negligence are inconsistent with a $20 penalty
which I note is even less that what is now the Secretary's single
penalty assessment.
The parties are reminded that the Commission and its judges
bear a heavy responsibility in settlement cases pursuant to
section llO(k) of the Act.
30 u.s.c. § 820(k); See, s. Rep. No.
95-181, 95th Cong., 1st Sess. 44-45, reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and Health
Act of 1977, at 632-633 (1978). It is the Commission's responsibility to determine the appropriate amount of penalty, in accordance with the six criteria set forth in section llO(i) of the
Act. Sellersburg Stone Company v. Federal Mine Safety and Health
Review Commission, 736 F.2d 1147 (7th Cir. 1984). A settlement

1301

motion, such as the one filed in this case, is insufficient to
allow the Commission to discharge its responsibilities under the
Act, particularly where the suggested penalty amount is so very
low.
In light of the foregoing, it is ORDERED that the motion
for approval of settlement be DENIED.
It is further ORDERED that within 30 days of the date
of this order the parties submit additional information to
support their motion for settlement. Otherwise this case
will be assigned and set for hearing.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Douglas White, Esq., Counsel, Trial Litigation, Office of the
Solicitor, u.s. Department of Labor, 4015 Wilson Blvd.,
Arlington, VA 22203
(Certified Mail)
Robert A. Friel, Esq., Office of the Solicitor, U. s. Department
of Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212
(Certified Mail)
Mr. Melvin J. Wattula, Manager, Asamera Minerals (US), Inc., P.O.
Box 398, Wenatchee, WA 98801 (Certified Mail)
jgl

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1302

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