JANUARY 1986
Commission Decisions
01-08-86
01-29-86
01-29-86
01-30-86

Disciplinary Proceeding
Pittsburg & Midway Coal Mining Co.
Halfway, Incorporated
.v. Kitt Energy Corp.,
Sec./Ronnie Beavers, et
and United Mine Workers
America

D
86-1
CENT 83-65
WEVA 85-15
WEVA 85-73-D

Pg.
Pg.
Pg.
Pg.

KENT 85-165
KENT 85-193
KENT 84-231-D
KENT 85-97
KENT 85-182
VA
85-33
PENN 84-205-D
HOPE 79-323-P
PENN 84-208-D
KENT 85-124
KENT 85-163
LAKE 85-81-M
LAKE 85-87-R
LAKE 85-12-R
SE
85-134
WEST 85-64-M
KENT 85-98
KENT 85-181
WEVA 84-33-D
KENT 85-187
WEST 85-98-RM
LAKE 84-98
CENT 85-47-DM
SE
85-132
WEVA 86-76
KENT 85-160-M
PENN 85-236
PENN 85-116-R
WEST 84-71-M
WEVA 85-242
LAKE 84-98
KENT 85-121-M

Pg.

1
4

8
15

Administrative Law Judge Decisions
01-02-86
01-06-86
01-07-86
01-07-86
01-07-86
01-07-86
01-07-86
01-08-86
01-08-86
01-14-86
01-14-86
01-14-86
01-14-86
01-15-86
01-16-86
01-16-86
01-21-86
01-21-86
01-21-86
01-21-86
01-21-86
01-22-86
01-23-86
01-22-86
01-23-86
01-24-86
01-24-86
01-27-86
01-27-86
01-28-86
01-30-86
01-31-86

B J D Coal Company, Inc.
Melanie Coal Company
Tennis Maynard v. Block Coal Company
Pyro Mining Company
Pyro Mining Company
Sutherland Coal Company
Donald C. Beatty, Jr. v. Helvetia Coal Co.
Monterey Coal Company
Rocco Curcio v. Keystone Coal Mining Corp.
Dixie Fuel Company
Peabody Coal Company
Landwehr Materials, Inc.
Nacco Mining Company
Turris Coal Company
Jim Walter Resources, Inc.
Southwestern Portland Cement Co.
Pyro Mining Company
Pyro Mining Company
Sec.Labor/Robert Ribel v. Eastern Assoc. Coal
Pyro Mining Company
Climax Molybdenum Company
Youghiogheny & Ohio Coal Company
Sec. Labor, ·MSHA v. Eisenman Chemical Co.
Jim Walter Resources, Inc.
Frontier-Kemper Constructors
Greenville Quarries, Inc.
Power Operating Company, Inc.
Lady Jane Collieries, Inc.
Kaiser Cement Corporation
Volunteer Coal Corporation
Youghiogheny & Ohio Coal Company (addendum)
Adams Stone Corporation

23
24
Pg. 26
Pg. 33
Pg. 36
Pg. 40
Pg. 42
Pg. 44
Pg. 46
Pg. 48
Pg. 51
Pg. 54
Pg. 59
Pg. 77
Pg. 79
Pg. 81
Pg. 83
Pg. 98
Pg. 107
Pg. 109
Pg. 120
Pg. 121
Pg. 142
Pg. 145
Pg. 147
Pg. 149
Pg. 151
Pg. 157
Pg. 180
Pg. 182
Pg. 183
Pg.

Pg. 186

JANUARY 1986
The following case was granted for review during the month of Ja~~:
Disciplinary Proceeding, Docket No. D 86-1.
referral of December 4, 1985.)

(Judge Koutras, disciplinary

The following cases were not granted for review during the month of January:
Secretary of Labor, MSHA v. Youghiogheny & Ohio Coal Company, Docket No.
LAKE 85-59. (Judge Koutras, November 21, 1985.)
Secretary of Labor on behalf of I.B. Acton and others v. Jim Walter
Resources, Docket No. SE 84-31-D, etc.. (Judge Melick, November 22, 1985.)
Secretary of Labor on behalf of F. Frederick Pantuso, Jr., v. Cedar Coal.
Company, Docket No. WEVA 84-193-D. (Judge Steffey, December 12, 1985.)
Secretary of Labor, MSHA v. Jim Walter Resources, Inc., Docket No.
SE 84-79. (Judge Broderick, December 20, 1985.)
Secretary of Labor, MSHA v. Youghiogheny & Ohio Coal Company, Docket No.
LAKE 85-90. (Judge Melick, December 19, 1985.)

COMMISSION DECISIONS

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

January 8, 1986

TIISCIPLINARY PROCEEDING

BEFORE:

Docket No. D 86-1

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

DIRECTION FOR REVIEW AND ORDER
BY THE

COMMISSION:

On December 4, 1985, Commission Administrative Law Judge George A.
Koutras issued a decision in White Oak Coal Co., FMSHRC Docket No. VA
85-21, in which he held the respondent in default and, pursuant to
Commission Procedural Rule 80, 29 C.F.R. § 2700.80, referred to the
Commission for possible disciplinary proceedings the failure of the
respondent's counsel to appear at the scheduled hearing. The
respondent's counsel has filed a timely petition for discretionary
review seeking review concerning only the judge's disciplinary referral.
The petition for review is granted. The referral is severed from
the proceedings on the merits, is assigned the above caption and docket
number, and is referred to the Chief Administrative Law Judge for assignment to an administrative law judge for appropriate proceedings under
Rule 80(c), 29 C.F.R. § 2700.SO(c). See, e.g., Disciplinary Proceeding,
7 FMSHRC 1957 (November 1985)(ALJ). If the attorney who is the suh_iect
of thfs proceeding is adversely af fecte<l or aggrieved by the subsequent

l

decision of the judge appointed by the Chief Administrative Law Judge,
he may file a notice of appeal with the Commission. 29 C.F.R. § 2700.SO(d).
The Commission expresses no view as to the merits of this referral.

~~

~~~

Richard V. Backley, Commissioner

~t1.~.
oyce:i50i1e, ComliliSSier

2

Distribution
Timothy W. McAfee, Esquire
Cline,· McAf ee & Adkins.
Professional Arts Buildi.ng
1022 Park Avenue, N.W.
Norton, VA
24273-0698
Administrative Law Judge George A. Koutras
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church., Virginia
22041
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, N.W~
Washington, D.C. 20006
Ann Rosenthal, Esquire
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
22203
Arlington, Virginia
Mark R. Malecki, Esquire
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Room 1237A
Arlington, Virginia
22203

3

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

January 29, 1986
SECRETA..~Y

OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

..

v.

Docket No. CENT 83-65

PITTSBURG
COMPANY

& MIDWAY COAL MINING

BEFORE:

Backley, Lastowka 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. (1982) (the "Mine Act").
I t involves a single issue:
Whether Pittsburgh & Midway Coal Mining
Company ("P&M") violated 30 C.F.R. § 77.202, a mandatory safety standard
which provides: "Coal dust in the air of, or in, or on the surfaces of,
structures, enclosures, or other facilities shall not be allowed to
exist or accumulate in dangerous amounts." Following a hearing on the
merits, a Commission administrative law judge concluded that P&M violated
the standard and assessed a civil penalty of $400. 6 FMSHRC 1347 (May
1984)(ALJ). We affirm the judge's decision.
The violation occurred at P&M's McKinley Mine. The mine includes
several surface facilities used in the processing of coal. Among these
facilities is a coal transfer building. In this building coal is transferred onto a conveyor belt, and, as a result of the transfer, coal dust
enters the building's atmosphere. At the top of the building is the
tipple control room. The control room serves as an observation post
from which the coal processing operations are monitored. In the room
are two electrical control boxes, the main breaker box and the main
crusher box! The main breaker box, as the name implies, contains several
circuit breakers. Inside the main crusher box are a motor starter, a
·
small transformer, an overload relay or circuit hreaker, and numerous
wires. The main breaker box is approximately 2 feet high and 2 feet
wide. The main crusher box is approximately 6 feet high and 2 feet wide.

4

The citation alleging the violation of section 77.202 was issued on
June 9, 1983. The MSHA inspector who issued the citation stated that he
observed coal dust in the bottom of each electrical box, that the coal
dust was black in color, and that it had accumulated in each box to a
depth of at least 1/8 of an inch. The inspector considered this amount
dangerous in that an electrical malfunction in the control boxes could
cause an arc or spark which could, in turn, put the dust into suspension
and propagate an explosion.
P&M's electrical foreman and P&M's director of safety training
stated that the accumulations of coal dust were not as extensive as
indicated by the inspector. They asserted that under nonnal operating
conditions the accumulations would not be dangerous because electrical
malfunctions in electrical control boxes are rare and electrical back-up
systems in both boxes are designed to prevent arcs or sparks in the
event of malfunctions.
The judge found that the accumulations existed in both boxes and in
the amount described by the inspector. 6 FMSHRC at 1349. The judge
also found that energized electrical facilities were present and that
faults or failures in such facilities are common occurrences. Id. The
judge concluded that the existence of accumulations in the presence of
potential ignition sources established that the accumulations were
"dangerous" within the meaning of the standard. Therefore, he concluded
that a violation occurred. Id.
Substantial evidence supports the judge's findings concerning the
presence of the accumulation. The inspector visually observed and
measured the coal dust. P&M's witnesses did not dispute the presence of
the coal dust. Rather, they argued that it was not as extensive as the
inspector testified. The judge, who heard the witnesses and who had an
opportunity to evaluate their testimony first hand, credited the inspector.
We find nothing in the record to warrant the reversal of the judge's
findings in this regard. Mathies Coal Co., 6 FMSHRC 1, 5 (January
1984).
The inspector also testified that the circuit breakers on the boxes
could short circuit and put the coal dust into suspension and thereby
propagate an explosion. He further testified that any broken wire in
the boxes could ignite the coal dust. MSHA's electrical specialist
confirmed that faulty circuit breakers and defects in the wiring could
create an ignition source. P&M's electrical foreman did not dispute
that the components of the electrical boxes could become ignition sources.
When asked i f there could be an electrical failure in the main crusher
box which could result in an ignition source, he replied, "Yes ••• I
guess [there] could." Moreover, he stated that he had twice seen circuit
breakers in a main breaker box explode. The foreman emphasized, however 9
that such occurrences are not common. Re stated -that there was a back-up
system to prevent electrical failures. He also stated that it would be
"very rare" for the circuit breakers to explode.

5

P&M argues on review that the judge erred in finding a violation
because the judge did not require the Secretary to establish the existence
of a present, actual ignition source in the vicinity of the accumulation
at the time of the inspection. Rather, the judge concluded that under
section 77.202, if a "potential" ignition source is present in the
vicinity of an accumulation, the accumulation is dangerous within the
meaning of the standard. 6 FMSHRC at 1349. We agree with the judge's
conclusion. It is well established that the Mine Act and the standards
promulgated thereunder are to be interpreted to ensure, insofar as
possible, safe and healthful working conditions for miners. Westmoreland
Coal Co. v. Federal Mine Safety and Health Review Commission, 606 F.2d
417, 419-20 (4th Cir. 1979); O.ld Ben Coal Co., l FMSHRC 1954, 1957-58
(December 1979). Section 77.202, like most coal mine safety standards,
is aimed at the elimination of potential dangers before they become
present dangers. Thus, we conclude that the judge did not err in seeking
to determine whether, under the circumstances, an ignition could have
occurred and that his finding of a violation is supported by substantial
evidence.
Accordingly, the decision of the administrative law judge is
affirmed. ];/

Richard V. Backley, Commissioner

.!/

Pursuant to section ll3(c) of the Mine Act, 30 U.S.C. § R23(c), we
have designated ours.elves a panel of three members to exercise the
powers of the Commission.

6

Distribution

John A. Bachmann, Esquire
The Pittsburg & Midway Coal Mining Company
1720 South Bellaire Street
Denver, Colorado
80222
Vicki J. Shteir-Dunn

U. S. Department of Labor
Office of the Solicitor ·
4015 Wilson Boulevard

Suite 400
Arlington, Virginia

22203

Administrative Law Judge James Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, lOtli Floor
Falls Church, Virginia
22041

7

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

January 29, 1986
SECRETARY OF LABOR,
MINE SAFETY.AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEVA 85-15

HALFWAY, INCORPORATED

BEFORE:

Backley, Doyle, Lastowka and Nelson, Commissioners
DECISION

BY THE COMMISSION:
The issue in this civil penalty proceeding is whether a violation
of a mine's roof control plan properly was found to be "significant and
substantial" within the meaning of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (the "Mine Act"). A citation,
issued by the Department of Labor's Mine Safety and Health Administration
("MSUA") pursuant to section 104(d)(l) of the Mine Act, 30 u.s.c. § 814(d)(l),
alleged that the mine operator, Halfway, Incorporated ("Halfway0 ) , violated
30 C.F.R. § 75.200 by failing to comply with the minimum requirements of its
approved roof control plan. Halfway contested the inspector's actions and
the jurisdiction of the Commission, an independent adjudicatory agency,
attached. Following a hearing on the merits, Commission Administrative
Law Judge James A. Broderick affirmed the citation and assessed a civil
penalty of Sl,000. 7 FMSHRC 884 (June 1985)(ALJ). We granted Halfway's
petition for discretionary review. For the following reasons, we affirm
the judge's decision.
Halfway operated the No. 1 Mine, an underground coal mine located
in Raleigh County, West Virginia. The mine was a "hilltop" mine, in
which entries are driven through the coal seam from the interior of the
mountain towards the outcrop. )j As part of a regular mine inspection
1/
The term "outcrop" is defined as " [ t }he part of a rock formation ·
that appea,.rs at the surface of the ground" or "[c]oal which appears at
or near the surface; the intersection of a coal seam with the surface. 11
.Bureau of Mines, U.S. Department of the Interior, A Dictionary of Mining,
Mineral, and Related Terms 778 (1968).

8

conducted on June 20, 1984, MSHA Inspector James Ferguson examined the
mine map. It showed that mining operations had advanced within 150
feet of the outcrop on the 001 Second South Section. The inspector
asked mine management whether supplemental support had been used in
advancing the entry, as required by the mine's approved roof control
plan when mining within 150 feet of the outcrop. 2/ He was informed by
Donald Hughes, Halfway's general mine foreman, that no supplemental
support had been used.
After proceeding underground to inspect the area in question, the
inspector observed that the entries had been driven at widths of 20
feet. Room No. 9 had been advanced for a distance of 150 feet beyond
the point 150 feet from the outcrop. The last 20 feet of top in that
room had deteriorated to such an extent that it had fallen. Similarly,
Room No. 8 had been advanced 100 feet beyond the point 150 feet from the
outcrop. The inspector also observed deterioration of the roof in that.
room. Roof bolting provided the sole means of roof support in these
areas. At the time of his inspection, the inspector observed no miners
in the particular rooms.
Because of these conditions, the inspector issued Halfway a citation
alleging a violation of 30 C.F.R. § 75.200. 3/ Pursuant to section 104(d)(l)

2/
Safety Precaution No. 15 of Halfway's Minimum Roof-Control Plan
provides:
Roof bolts shall not be used as the sole means of roof
support when underground workings approach and/or mining is
being done within 150 feet of the outcrop or highwall.
Supplemental support shall consist of at least one row of
posts on 4-foot spacing, maintained up to the loading machine
operator, limiting roadway widths to 16 feet. This does not
apply to new openings being developed from the surface.
Ex • G- 3 at 11.

3/

30 C.F.R. § 75.200 provides:
[STATUTORY PROVISIONS]
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
(footnote 3 continued)

9

of the Act, the inspector found that the violation was of such nature as
could contribute significantly and substantially to the cause and effect
of a mine safety hazard. The inspector terminated the citation after
Halfway abated the condition by dangering-off Room Nos. 8 and 9 and
agreed to use supplemental support in the remaining rooms as specified
in the roof control plan.
The judge found that Halfway violated 30 C.F.R. § 75.200 by mining
within 150 feet of the outcrop without the supplemental support required
by its roof control plan. 7 FMSHRC at 885. He found the violation to
be serious because roof conditions can deteriorate as mining operations
approach the outcrop, and referred to the deterioration of the roof in
Room Nos. 8 and 9 as evidence supporting his conclusion. Id. The judge
stated, "A serious injury or fatality would have been reasonably likely
had mining continued." 7 FMSHRC at 885-86. He determined that the
violation was therefore of such nature as could significantly and substantially contribute to the cause and effect of a mine safety hazard.
7 FMSHRC at 886.
A "significant and substantial" violation is described in section
104(d)(l) of the Mine Act as a violation "of such nature as could significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard[.]" 30 u.s.c. § 814(d)(l). The
Commission first interpreted this statutory language in Cement Division,.
National Gypsum Co., 3 FMSHRC 822 (April 1981):
[A] violation is of such nature as could significantly and substantially contribute to the cause
and effect of a mine safety or health hazard, if
based upon the particular facts surrounding the
Footnote 3 end.
conditions and mining system of each coal mine and
approved by the Secretary shall be adopted and set out in
printed form •••. The plan shall show the type of support
and spacing approved by the Secretary. Such plan shall
be reviewed periodically, at least every 6 months by the
Secretary, taking into consideration any falls of roof or
ribs or inadequacy of support of roof or ribs. No person
shall proceed beyond the last permanent support unless
adequate temporary support is provided or unless such
temporary support is not required under the approved roof
control plan and the absence of such support will not
pose a hazard to the miners. A copy of the plan shall be
furnished to the Secretary or his authorized. representative and shall be available to the miners and their
representatives.

10

violation, there exists a reasonable likelihood
that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.
3 FMSHRC at 825. In Mathies- Coal Co., 6 FMSHRC 1 (January 1984), the
Commission reaffirmed the analytical approach set forth in National Gypsum,
and stated:
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.
6 FMSHRC at 3-4 (footnote omitted). Accord, Consolidation Coal Co., 6
FMSHRC 34, 37 (January 1984). The Commission has 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).
On review, Halfway concedes a violation of its roof control plan,
but contests the finding that the violation was significant and substantial. It argues that the violation did not contribute to a discrete
safety hazard and that no reasonable likelihood existed for an injury.
We disagree.

By mining the subject entries within 150 feet of the outcrop without
supplemental support and in widths in excess of 16 feet, Halfway violated
its roof control plan and, hence, 30 C.F.R. § 75.200. There is ample
record evidence to support the judge's finding that this conceded violation
contributed to the discrete safety hazard of a roof fall. MSHA Inspector
Ferguson testified that the mine had a massive roof structure, which
diminished and deteriorated as mining approached the outcrop. He explained
that near the outcrop roof conditions could change without warning, and
that the deterioration created a danger of roof falls, which could occur
suddenly. Clearly, the roof control provision requiring supplemental
support within 150 feet of the outcrop was included in the roof control
plan in contemplation of those dangers. The inspector confirmed that
the purpose of the supplemental support was to replace some of the roof
support lost in driving 20-foot wide entries, by ~ffectively limiting
the width of the entries to 16 feet, and to serve as a visual indicator
of potential roof movement. Tr. 38-39. This evidence provides substantial
support for the judge's finding that the failure to provide the required
supplemental support contributed to a discrete hazard of roof falls in
the deteriorating mining conditions encountered near the outcrop.

11

Halfway further challenges the judge's finding that the hazard
contributed to by the violation was reasonably likely to result in
injury. It argues that the judge improperly assumed the existence of a
"continuing violation" because he conditioned his conclusion regarding
the likelihood for injury on continued mining activity, and, at the time
that the citation was issued, mining in Room Nos. 8 and 9 had already
been discontinued.
This argument misconstrues the importance of the timing of the
issuance of a citation in the significant and substantial violation
context. The fact that a miner may not be directly exposed to a safety
hazard at the precise moment that an inspector issues a citation is not
determinative of whether a reasonable likelihood for injury existed.
The operative time frame for making that determination must take into
account not only the pendency of the violative condition prior to the
citation, but also continued normal mining operations, National Gypsum,
supra, 3 FMSHRC at 825; U.S. Steel Mining Co., Inc., 6 F1-1s11Rc 1°573, 1574
(July 1984).
It is undisputed that Halfway's miners advanced Room Nos. 8 and 9
for distances of 100 feet and 150 feet, respectively, beyond the point
150 feet from the outcrop without the supplemental support mandated by
the mine's roof control plan. This was a major, not minor, departure
from the roof control plan and, during that phase of active mining, this
violation exposed miners to a roof fall hazard. The undisputed testimony
of MSHA Inspector Ferguson clearly supports this finding. T11e i.nspector
testified that the roof near the face area in the cited rooms had deteriorated to the point that a roof fall was likely to occur. Tr. 41, 53,
70, 77. He also testified that roof bolts would not anchor and that the
roof had fallen, exposing mud, dirt, and the roots of grass and trees.
Tr. 84-85. The testimony of Halfway's own witness supports the inspector's
testimony. See, e.g., Tr. 106. This constitutes substantial evidence
supporting the conclusion that a reasonable likelihood for injury existed
as the cited entries approached the outcrop.
We find further support for the conclusion that it was reasonably
likely that the roof fall hazard contributed to by the violation would
result in injury had normal mining operations continued because Room
Nos. 8 and 9 remained accessible until Halfway abated the citation by
dangering-off the entries. Tr. 44. !±._/ Active mining was taking place

4/
The evidence is conflicting as to whether Room No. 9 was dangeredoff at the time of the inspection. Compare Tr. 44 with Tr. 94. However,
in finding that the violation "was abated by dangering off rooms 8 and
9," 7 FMSHRC at 885, the judge appears to have implicitly credited the
MSHA inspector's testimony and found that Room No·. 9 had not been previously dangered-off.

12

in Room Nos. 3-7 and travelways to the cited areas could have been used
by miners. Tr. 29, 43-44, 74. In the absence of any affirmative measures
by Halfway to prevent miner exposure to the roof fall hazard found to
exist in Room Nos. 8 and 9, a roof fall with resulting injury to a miner
remained a reasonable possibility.
Finally, Halfway does not dispute on review that any actual injury
from a roof fall would be reasonably serious in nature. Our decisions
have stressed the fact that roof falls remain the leading cause of death
in underground mines. See, e.g., Consolidation Coal Co., supra, 6
FMSHRC at 37-38 & n. 4.~
Accordingly, we conclude that the violation in this case properly
was found to be "significant and substantial" in that there was a reasonable likelihood that Halfway's noncompliance with the supplemental
support requirements of its roof control plan could significantly and
substantially contribute to the cause and effect of a roof fall hazard.
The decision of the administrative law judge is affirmed. 2_/

L. Clair Nelson, Commissioner

5/

Chairman Ford assumed off ice after this case had been considered at

a Commission decisional meeting and took no part in the decision.
13

Distribution
William D. Stover, Esq.
Halfway, Incorporated
41 Eagles Road
Beckley, West Virginia 25801
Linda Leasure, Esquire
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge James Broderick
Federal Mine Safety &Health Review Co111111ission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

14

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

January 30, 1986

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

Docket No. WEVA 85-73-D

on behalf of

RONNIE D. BEAVERS,

et al.

v.

KITT ENERGY CORPORATION,
and

UNITED MINE WORKERS OF AMERICA

BEFORE:

Backley, Doyle, Lastowka and Nelson, Commissioners

DECISim1
BY THE COMMISSION:
This inquiry has been conducted to determine whether Commission
Administrative Law Judge Roy J. Maurer, the presiding judge in the
above-captioned case, and Frederick W. Moncrief, counsel for the
Secretary of Labor, engaged in prohibited ex parte communications in
violation of Commission Procedural Rule 82, 29 C.F.R. §. 2700.82. };;./

1/

Rule 82, entitled 11 Ex parte communications," provides:
(a) Generally. There shall be no ex parte communication with
respect to the merits of ariy case not concluded, between the
Commission, including any member, Judge, officer, or agent of the
Commission who is employed in the decisional process, and any of
the parties or intervenors, representatives, or other interested
persons.
(b) Procedure in case.of violation. (1) In the event an ex
parte comnunication in violation of this section occurs, the
Commission or the Judge may make such orders or take such action as
fairness requires. Upon notice and hearing, the Commission may
take disciplinary action against any person who knowingly and
willfully makes or causes to be made a prohibited ex parte
communication.
(2) All ex parte communications in violation of this
section shall be placed on the public record of the proceeding.
(c) Inouiries. Any inquiries. coneerning, filing requirements, the sta~of cases before the Commissioners, or docket
information shall he directed to the Office of the Executive
Director of the Comr.rl.ssion ••••

29 C.F.R.

§

2700.82.

15

This matter was brought before the Commission on October 30, 1985, when
Commission Administrative Law Judge Joseph B. Kennedy filed with the
Commission a memorandum asserting that ex parte telephone conversations
between Judge Maurer and Mr. Moncrief occurred on May 2, 1985, and
October 1 and 2, 1985, during the course of pre-trial proceedings in
this case. (Judge Kennedy attached to his memorandum copies of letters
in the record of this case from Moncrief to Judge Maurer memorializing
the telephone conversations in question.) Judge Kennedy requested the
Commission to conduct an inquiry to determine whether the telephone
conversations were in violation of Rule 82. The Commission solicited
and received from Judge Maurer and Moncrief statements making a full and
complete disclosure of the circumstances and content of the communications. In addition, the Commission severed this Rule 82 inquiry from
the merits of the case and stayed further proceedings before Judge
Maurer.
The case on the merits involves a discrimination complaint filed on
January 9, 1985, by the Secretary of Labor on behalf of Ronnie D. Beavers
and twenty-seven other miners pursuant to the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). The complaint
alleges that Kitt Energy Corporation("Kitt Energy") laid off the complainants because they lacked the underground safety and health training
specified in section 115 of the Mine Act, 30 U.S.C. § 825. The complaint
also states that although Kitt Energy subsequently provided the training
and recalled the complainants to work, it refused to compensate them for
their training. .The Secretary asserts that the layoff of the miners and
the refusal to compensate them after the recall violated section 105(c)(l)
of the Mine Act, 30 u.s.c. § 815(c)(l). Kitt Energy denied the allegations
of illegal discrimination, and the United Mine Workers of America ("UMWA")
intervened.
Frederick Moncrief represented the Secretary, Bronius Taoras represented Kitt Energy, and Earl Pfeffer represented the UMWA. The case was
assigned first to Commission Administrative Law Judge James A. Broderick~
On April 5, 1985, Judge Broderick issued a pre-hearing order directing
counsel to file stipulations concerning those factual matters not in
dispute and to specify witnesses and exhibits to be offered concerning
disputed factual issues. On April 25, 1985, after Judge Broderick's
pre-hearing order was issued, but before the specified dates for compliance with the order, the matter was reassigned to Judge Maurer.
Prior to the reassignment of the case, the Commission heard oral
argument in two cases posing the issue of whether an operator violated
section lOS(c)(l) of the Mine Act when it bypassed for rehire laid-off
individuals because they had not obtaine<l relevant training referred to
in section 115 of the Act. UMWA on behalf of Rowe, et al. v. Peabody Coal
Co., etc., 7 FMSHRC 1357 (September 1985), pets. for review filed, Nos.
85-1714 & 85-1717 (D.C. Cir. October 29 & 30, 1985); Secretary on behalf
of I.B. Acton, et al., etc. v. Jim Walter Resources, Inc., 7 FMSHRC 1348
(September 1985), pets. for review filed, Nos. 86-1002 & 86-1027 (D.C.
Cir. January 3 & 10, 1986)• In these cases, the Commission concluded

16

that an operator could bypass laid-off individuals who lacked training
but that if it recalled individuals who had obtained the training, it
had to reimburse them for their training costs. In large part, the
Commission rested its decisions on Secretary on behalf of Bennett, et al.
v. Emery Mining Corp., 5 FMSIIRC 1391 (August 1983), pet. for review filed,
No. 83-2017 (10th Cir. August 17, 1983), in which the Commission held
that although a mine operator may require that job applicants obtain
requisite training prior to hire, it must reimburse newly hired miners
who had obtained such training.
For the reasons that follow, we conclude that Judge Maurer and
Moncrief did not engage in ex parte communications in violation of Rule
82. The stay is dissolved and the matter is returned to Judge Maurer
for further proceedings on the merits.
Based upon the consistent and uncontested statements that Judge
Maurer and Moncrief submitted to the Commission pursuant to this inquiry,
and upon other aspects of the record in this matter, we find that the
following events pertinent to this inquiry occurred following the
reassignment of this case. On May 2, 1985, Moncrief telephoned Judge
Maurer. Moncrief told the judge that he was calling on behalf of both
himself and Kitt Energy's counsel, Mr. Taoras. Moncrief requested
relief for the parties from the various filing requirements of Judge
Broderick's previously issued pre-hearing order. Judge Maurer reminded
Moncrief that the UMWA had intervened. Moncrief stated that he had
contacted the UMWA's counsel, who had agreed with the Secretary and Kitt
Energy to seek relief from the pre-hearing order. As the basis for the
request, Moncrief told Judge Maurer that he and Taoras had agreed that
the case largely involved legal questions. He advised Judge Maurer that
the Peabody and Jim Walter cases, supra, had been argued before the
Commission and that Emery, supra, was pending in the Tenth Circuit.
Moncrief stated that these cases probably would be dispositive of the
issues at hand. In response, Judge Maurer told Moncrief to submit a
letter on behalf of the parties requesting the relief that they wanted.
Judge Maurer also stated that if he were to conclude that Peabody and
Jim Walter had a potentially decisive bearing on the issues of the case,
he would stay the matter but not past September 1985.
As the requested follow-up to the May 2 conversation, on May 8,
1985, Moncrief wrote to Judge Maurer. In the letter, Moncrief requested
relief from the pre-hearing order "on behalf of ••• Mr. Taoras, and
myself. 11 The letter asserted that the Peabody, Jim Walter, and Emery
cases were likely to resolve the issues in Kitt Energy, or at least
provide considerable guidance in their resolution. Accordingly, Moncrief
requested a continuance pending the Commission's decisions in Peabody
and Jim Walter, but stated that he had advised the other counsel of
Judge Haurer's desire not to continue the matter beyond September.
Moncrief ended his letter, "I trust that this eff_ectively summarizes our
conversation." Copies of the letter were sent to Taoras and Hr. Pfeffer,
and the .letter was placed in the official file of the case. Subsequently,
by order dated May 10, 1985, Judge Maurer granted the parties relief
from the requirements of Judge Broderick's pre-hearing order and notified
the parties that the matter would be set for hearing in Septembei:- 1985.

17

On September 5, 1985, Judge Maurer scheduled a hearing for October 9,
1985, in Morgantown, West Virginia. On September 30, 1985, the Commission
issued its decisions in Peabody and Jim Walter. On October 1~ 1985, Judge
Maurer received a copy of a letter written by Taoras to counsel for the
Secretary and the UMWA, which stated that the parties were attempting to
stipulate to the relevant facts in Kitt Energy. On October 1, about the
same time that Judge Maurer received the copy of the Taoras letter,
Moncrief again telephoned the judge. Moncrief stated that he was calling
on behalf of all of the parties and that he was seeking a continuance of
the scheduled October 9 hearing. Moncrief stated that the previous day's
issuance of the Commission's decisions in Peabody and Jim Walter probably
would obviate the need for an evidentiary hearing. Moncrief also stated
that the parties were working on stipulations to submit to the judge.
Judge Maurer told Moncrief that he would continue the hearing if Moncrief
and Taoras would agree to certain other conditions with respect to future
hearings.
On October 2, 1985, Moncrief called Judge Maurer and informed him
that Taoras had agreed to the other conditions. Judge Maurer asked
Moncrief to advise all of the parties that the judge would issue an
order continuing the hearing. Moncrief complied with this request and
on October 3, 1985, wrote the judge a letter in which he "confirm[ed]
[theJ telephone calls of October 1 and 2." Copies of the letter were
sent to counsel for Kitt Energy and the UMWA, and the letter was placed
in the record. On October 4, 1985, the judge made an order continuing
indefinitely the previously scheduled Morgantown hearing.
Commission Procedural Rule 82 (n. 1, supra) and section 557(d) of
the Administrative Procedure Act ("APA 11 ) , 5 U.S.C. § 557{d) (1982),
prohibit ex parte communications between a Commission judge and a party
regarding the merits of a pending case. UMWA on behalf of Rowe, et al.
v. Peabody Coal Co., etc., 7 FMSHRC 1136, 1142 (August 1985); Secretary
on behalf of Clarke v. T.P. Mining, Inc., 7 FMSHRC 1010, 1014 (July
1985); United States Steel Corp., 6 FMSHRC 1404, 1407-09 (June 1984);
Knox County Stone Co., Inc., 3 FMSURC 2478, 2482-86 (November 1981).
The term, "ex parte communication," is defined in the APA as:
an oral or written communication not on the public
record with respect to which reasonable prior
notice to all parties is not given, but it shall
not include requests for status reports on any
matter or proceeding •.••

5 u.s.c. § 551(14) (1982). The three telephone conversations between
Judge Maurer and Moncrief were not ex parte communications within the
meaning of our rule and the APA. The record reflects that reasonable
prior notice of the conversations was given to all of the parties.
Moncrief asserts that when he spoke with Judge Maurer, "it was after
discussion with and by agreement of (Kitt Energy's] and [the UMWA's]
counsel." Judge Maurer's statement and the record confirm Moncrief's
assertion. We note also that Moncrief's letters memorializing these
conversations were placed promptly in the record and served on the
parties.

18

Judge Maurer states that in the first conversation on May 2, 1985,
Moncrief informed him that he was calling on behalf of himself and Kitt
Energy and that he had been in touch with counsel for the UMWA. Judge
Maurer's contemporaneous handwritten notes on the conversation, which
are in the record, state, "Moncrief calling on behalf of both." (Emphasis
in original.) With respect to the telephone conversation--or-october 1,
1985, Judge Maurer states that Moncrief also informed him that he was
calling on behalf of all of the parties. It is clear from the statements
of Moncrief and Judge Maurer that Moncrief contacted Taoras and the
UMWA's counsel regarding the substance of the May 2 and October 1 conversations prior to calling Judge Maurer. (The October 2 conversation
was merely a follow-up to the October l conversation.) Moreover, copies
of Moncrief's letters of May 8 and October 3, 1985, in which Moncrief
indicated to the judge that counsel for the parties had been contacted
previously concerning the subjects of the conversations, were sent to
both counsel. Importantly, neither counsel for Kitt Energy nor counsel
for the UMWA has disputed the contents of Moncrief's letters, nor have
they objected to the contacts reflected in the letters. If Moncrief had
not been speaking for all of the parties and with their prior notice
when he contacted the judge, it is logical to assume that some objection
.from the other parties to the litigation would have been lodged.
Thus, we find that prior to the telephone conversations Moncrief
advised the parties that he would converse with the judge, and we find
further that the parties were aware of the subject matter that Moncrief
would raise with the judge in those conversations. It is not impermissible for a party to contact a judge on behalf of all the parties concerning essentially procedural matters, where the conversation remains
within the scope of the procedural subjects previously authorized by the
parties to be raised with the judge. Because we find that Moncrief was
acting with authorization on behalf of all parties and that "reasonable
prior notice" had been given to other parties regarding the conversations,
we conclude that the conversations at issue were not "ex parte communications" within the meaning of Rule 82 and the APA.
Even were we to conclude that the communications were ex parte, we
would not find them "prohibited ex parte communications." Rule 82
prohibits communications "with respect to the merits of any case." The
conversations of Judge Maurer and Moncrief were procedural in nature and
did not concern the merits of the Kitt Energy litigation. It is true,
as the Commission has stated, that the concept of the "merits of a case"
is to be construed broadly and, at the very least, includes discussion
of issues in a case and how those issues should or will be resolved.
Peabody Coal Co., supra, 7 FMSHRC at 1014; T.P. Mining, supra, 7 FMSHRC
at 1143. For example, a judge may not suggest to counsel in an off-therecord, ex parte conversation that counsel obtain a potential piece of
evidence from opposing counsel. T. P. Mining, 7 FMSHRC at 1015-16. Nor
may a judge solicit substantive, off-the-record information fro~ one
counsel concerning the position a party has taken in other pending
litigation when that position might influence the outcome of the case.
Peabody Coal Co., 7 FMSHRC at 1143. However, when counsel merely

19

advises a judge of the existence of pending decisions that may obviate
the need for an evidentiary hearing, as was done here in the conversations
of May 2 and October 1, 1985, the conversation is procedural and does
not pertain to the merits of the case.
It is one thing to discuss the substance of the issues in a case;
it is quite another to advise a judge -- on behalf of all of the parties
that decisions are forthcoming or already exist that may simplify the
procedural tasks of the judge and the litigants in the pending case. To
do the former is to influence the substance of the decision in a pending
case outside of the formal, public proceeding. See, e.g., Patco v.
Federal Labor Relations Authority, 685 F.2d 547, 570 (D.C. Cir. 1982).
To do the latter is to facilitate the procedural process by which the
decision is reached. The prohibition against ex parte communications
was not intended to erect meaningless procedural barriers to effective
agency action. Patco, supra, 685 F.2d at 563-64.
Further, that portion of the conversation of October 1, 1985, in
which Moncrief advised Judge Maurer that the parties were drafting
factual stipulations to submit to the judge was in the nature of a
status report to the judge. This type of conversation is permissible.
T.P. Mining, 7 FMSHRC at 1015. Similarly, the conversation of October
2, 1985, in which Moncrief advised the judge that Taoras had agreed to
the other conditions that the judge wished to impose with respect to
future hearings and in which the judge asked Moncrief to advise the
parties that he was continuing the hearing also concerned the status of
the case and did not violate Rule 82.
Thus, there is nothing in this record that in any way reflects
discredit on the conduct of Judge Maurer or Moncrief. Indeed, they
conducted themselves in an able and efficient manner. Their conduct in
handling the litigation was procedurally proper and in accordance with
accepted standards. We therefore conclude that the referral by Judge
Kennedy is without merit. l:._/
2/
Because. of the unusual manner in which this inquiry arose, the
Commission directed Judge Kennedy to make a full and complete disclosure
of the circumstances by which he became aware of the asserted f;:' prcr·t:e
communications. In doing so, Judge Kennedy also moved the C;J<,,:::::';;i.or, to
strike certain portions of Judge Maurer's statement. Because
our
resolution of this matter, we have determined that the question of how
the Moncrief Letters were obtained need not he addressed further in the
present proceeding. Accordingly, the motion to strike is denied.

20

For the foregoing reasons, this inquiry is closed and the case on
the merits may proceed. )_/

3/

Chairman Ford assumed office after this case had been considered at

a Commission decisional meeting and took no part in the decision.

21

Distribution
Frederick W. Mon~rief, Esquire
Office of the Solicitor
U.S. Department of Laoor
4015 Wilson Boulevard
·Arlington, Virginia
22203

B.K. Taoras, Esquire
P.O. Box 500
Race Track .Road
Meadow Lands, PA

15347

Earl R. Pfeffer, Esquire
United Mine Workers of America
900 15th Street,.N.W.
Washington, D.C.
20005
Administrative Law Judge Roy J. Maurer
Federal Mine Safety and Health Raview Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia
22041
Administrative Law Judge Joseph Kennedy
Federal Mine Safety and Health R-eview Commission .
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia
22041 .

22

ADMINISTRATIVE LAW JUDGE DECISIONS

•

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

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

JAN 2 1986

22041

CIVIL PENALTY PROCEEDING

.

Docket No. KENT 85-165
A.C. No. 15-12081-03530

.

Docket No. KENT 85-197
A.C. No. 15-12081-03531

BJ D COAL COMPANY, INC.,
Respondent

No. E-1 Mine
DECISION APPROVING SETTLEMENT
Before:

Judge Melick

These cases are before me upon petitions for assessment
of civil penalty under Section 105(d) of the Federal Mine
Safety and Health Act of 1977 (the Act).
Petitioner has
filed a joint motion to approve settlement agreements and to
dismiss the cases. Respondent has agreed to pay the proposed
penalties of $2,140 in full.
I have considered the representations and documentation submitted in these cases, and I
conclude that the proffered settlement is appropriate under
the criteria set forth in Section llO(i) of the Act.
WHEREFORE, the motion for approval of settlement is
GRANTED, and it is ORDERED that Respondent pay penalties of
$2,140 within 30 days of this order.
No amount of these
penalties shall be taken from nor detrac~ed from the estate
of the deceased Jimmy Dale Hamilton.

u
~·
1

Gaiy,~elick
Adminastrative
Distribution:

I

·\

aw

Solicito~,

W. F. Taylor, Esq., Office of thb
U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Timothy Crawford,, Esq. 1 Kelsey E. Friend Law Firm 1 2nd Floor,
Paulsey Building, PO Box 512, Pikeville, KY 41501 (Certified
Mail)
rbg
23

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

January 6, 1986

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

CIVIL PENALTY PROCEEDING
:

..•
.:
.

v.
MELANIE COAL COMPANY,_ INC.,
Respondent

Docket No. KENT 85-193
A. C. No. 15-14443-03517
No. 4 Mine

:

DECISION APPROVING SETTLEMENT
Before:

Judge Kennedy

Based on an independent evaluation and de nova review
of the circumstances, I find CMI Richy D. Hamilton and the.
Assessment Of £ice did a specially commendable job of
enforcement in this case and that unlike many of the
marginal proposals I receive this one is in full accord with
the purposes and policy of the Act.
Accordingly, It is ORDERED that the motion to approve
settlement be, and hereby is, GRANTED. It is FURTHER
ORDERED that the operator pay the amount of the settlement
agreed upon, $3,692, in six equal installments commencing
January 15, 1986 and each month thereafter until the full
amount is paid on or before June
, 1986. Finally, it is
ORDERED that subject to payment f the amount agreed upon
the captioned matter be DISMISS D

Joseph B. Kennedy
Administrative Law

24

Distribution:
Robert C. Haynes, Esq., Office of the Solicitor, u. s.
Department of Labor, 280 U. S •. Courthouse, 301 Broadway,
Nashville, TN 37203 (Certified Mail)
Randy A. Campbell, Esq., Weinberg & Campbell, Perkins
Building, P. o. Box 727, Hindman, NY 41822 (Certified Mail)
dcp

25

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

January 7, 1986
TENNIS MAYNARD,

v.

DISCRIMINATION PROCEEDING
Complainant
Docket No. KENT 84-231-D

BLOCK COAL COMPANY,
Respondent

.

MSHA Case No. Pike CD 84-12

DECISION
Appearances:

Before:

Hugh M. Richards, Esq., Prestonsburg, Kentucky,
for Complainant:
Thomas J. Blaha, Esq., Paintsville, Kentucky,
for Respondent.

Judge Maurer
STATEMENT OF THE CASE

Complainant filed a complaint with the Commission under
105(c) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 815Cc) [hereinafter referred to as the Act] on
August 23, 1984 alleging that he was "not able to take time
off with a paid vacation" in violation of company policy. He
further alleged that he was harassed on and off the job (presumably by the Respondent) as a result of filing an earlier
discrimination complaint against Block Coal company. This
11
harassment 11 allegedly has caused him severe mental anguish
and requires medical treatment. By his complaint, he sought
removal of all reprimands and personnel actions from his
personnel file and vacation with pay. At the hearing, this
request for relief was expanded to include reinstatement to
his former job at some future time when he becomes medically
able to return to work, three hours of pay at time and a half
(for which he had been docked) and that he be allowed ~o keep
the medical insurance he had prior to leaving the job.
§

This is the second Complaint of Discrimination filed
with the Commission by Mr. Maynard against essentially the
same Respondent. The earlier case is styled Secretary of
Labor, Mine Safety and Health Administration CMSHA), on
behalf of Tennis Maynard, Jr. v. Diamond P. Coal Company,
Inc., (Docket No. KENT 82-199-D). Exhibit No. C-1 herein is
the settlement agreement filed in that case and is signed by
Mr. Paul Pelphrey for both Diamond P. and Block Coal

26

Companies. That case was disposed of by Decision Approving
Settlement at 5 FMSHRC 1988 on November 25, 1983.
Insofar as
it is relevant, it will be discussed further in the body of
this decision.
Pursuant to notice, this case was heard in Prestonsburg, Kentucky on August 28 and 29, 1985. Tennis Maynard,
Jr., Elbie Pickelsimer and Joe Cook testified on behalf of
the Complainant; Paul Pelphrey and Dennis Marshall testified
on behalf of Respondent.
I have carefully considered the entire record and the
contentions of the parties, and make the following decision.
DISCUSSION AND F'INDINGS
Tennis Maynard, Jr. [hereinafter Complainant] had been
employed as a rock truck driver by Mr. Pelphrey in the surface coal mining business under various company names1
Diamond P. and Block Coal among them, and at various locations in Eastern Kentucky.
His former job with Diamond P.
terminated with his firing on May 17, 1982 because he refused
to work in an allegedly unsafe condition. As a consequence
of this firing, he filed a Complaint of Discrimination, which
was later settled prior to hearing and resulted in his reinstatement. His last job was in Morgan County, Kentucky on
Rou~e 650, where Dennis Marshall was again his supervisor on
the second shift.l This was the job he was reinstated in
as of October, 1983 as a result of the settlement of his
previous discrimination complaint, supra. He remained in
this job until he quit on June 14, 1984.
After Complainant 1 s return to work in October of 1983,
he felt that there were several incidents which occurred at
work which interfered with his job and amounted to
"discrimination".
Among them was one case where he had backed his rock
truck up a ramp into a four foot wide hole which almost
caused the truck to turn over. He was not warned of the hole
in time by the man "running field".
Another time there was a
tree improperly loaded on another truck, which broke the
windshield of Complainant's truck while passing at night.
I
specifically find that these two incidents were serious and
posed a grave danger to Complainant. However, Complainant

lThe second shift was a ten hour shift from six (6) in the
evening until four (4) in the morning, with frequent overtime
until seven (7) in the morning.

27

has failed to show that the management of Block Coal Company
was culpable in bringing these occurrences abouto There is
simply no evidence in the record to that effect from any
source, including the Complainant himself. The men involved
in these accidents were rank.and file workers in the same
relative position as Complainant with management.
Complainant also was docked three (3) hours of overtime
pay one night because he had parked his truck and was not
working due to problems with the truck's headlights. His
supervisor explained that the Complainant had failed to contact him concerning any difficulty with the truck and only
after one of the other men had told him that Maynard was
sitting out there did he go out to investigate. He found him
"reared back in the seat," appearing to be asleep. He was
docked three {3) hours pay because he didn't contact his
foreman to either have his truck repaired or to use the spare
truck which was available on the site that night. Mr.
Marshall's explanation of the Company's action in this matter
is credible •nd I so find.
With regard to malfunctioning equipment generally, a
somewhat related claim is made by Complainant that his supervisor provided him with inferior equipment in comparison with
the other rock truck drivers. It is not disputed' that the
trucks were assigned on a seniority basis, with the more
desirable trucks going to the most senior men. Complainant,
however, feels that he should have been assigned a better
truck earlier in his employment at the Morgan County site.
For purposes of this discrimination case and without deciding
which particular truck Complainant should have been driving
on any particular day, the important issue is safety on the
job. It is unrefuted in the record that the company rule was
that any truck driver having any problem with his truck is to
report it to the foreman.immediately and that he is not
required to operate an unsafe vehicle. In several places in
the record, Complainant states he did operate an unsafe
vehicle but he does not state that he was required to do so
or that he could not have reported the vehicle's condition·to
management. In fact Mr. Marshall testified that Complainant
didn't report problems with the vehicles as often as others
did.
Complainant further complains that on at least one
occasion, he was made to work harder than the other rock
truck drivers. No allegations of a derogation in job safety
are made. The Respondent of course contests this and replies
that the foreman 'involved in this instance only wanted
Complainant to put in a day's work for a day's pay. I find
this issue unnecessary to resolve as even if it is true, it

28

is not "protected activity" within the meaning of the Act.
Mere complaints about job duties and general disagreements
with supervisors are not "protected activities".
Finally, with regard to. the issue of Complainant's
entitlement to one week's vacation pay prior to his departure
from the Company, there is a definite split of opinion
between the parties. Complainant is aware that you have to
be on the job one year in order to get one week's paid
vacation, but he states he was going into his third year of
employment by senority and had never had a paid vacation.
The settlement agreement which the parties signed to
reinstate Complainant in 1983 (Exhibit No. C-1) states inter
alia that: "Respondent shall pay Maynard back wages in the
lump sum amount of Ten Thousand ($10,000.00) Dollars, less
deductions, required by law." Block Coal Company's position
on this issue, through Mr. Pelphrey, is that Complainant was
paid two weeks vacation as part of the $10,000 settlement.
Therefore he .would have to finish a full year's work after
reinstatement in order to be entitled to another week of paid
vacation. I note, however, that the settlement agreement
itself does not mention vacation pay. Nor does the Decision
Approving Settlement. The only evidence in the record concerning this issue comes from Mr. Pelphrey, who with his
counsel, personally negotiated the settlement with a Mr.
Grooms, the Department of Labor attorney who was representing
Complainant at the time. Since only Pelphrey, his lawyer,
and Grooms were privy to these settlement negotiations, if
the situation was other than as Mr. Pelphrey has testified,
it was incumbent upon Complainant to produce that testimony
from Grooms. Therefore, by a simple prepondera~ce of the
relevant, probative and credible evidence I find that the
$10,000 settlement paid the Complainant up through the time
of his reinstatement, including two weeks of paid vacation
that he had accumulated in the interim less $2,000 and some
odd dollars that he earned in other jobs during the time
period he was off work.
By early 1984, Complainant was having medical problems
with his stomach and nerves and was subsequently given
Tagamet and Mylanta for his stomach, Sinequan to help him
sleep at night, which was later changed to Amitriplyline, and
Chlorpromazine. Complainant traces these medical problems to
"harassment and discrimination" that he was going through on
the job. Towards the end of his employment with Block Coal
Company, he became worried about his safety and the safety of
the men that worked with him because he couldn't keep his
mind on his job. on June 14, 1984, Complainant filed the
instant discrimination complaint with MSHA and quit his job
with Block Coal Company on the advice of ,~is personal
physician, Dr. Param.
~
t

29

Dr. Robert P. Granacher, Jr. a Board certified psychiatrist, examined Mr. Maynard for 5-1/2 hours on June 5, 1985
in connection with a worker's compensation case in which
complainant is the Plaintiff .and concluded that he is
suffering a spontaneous major depression with paranoid
features unrelated to working conditions or occupational
cause. The doctor realized that Complainant feels very
strongly that his medical problems were brought about by his
work, more specifically, his problems at work, but he (the ·
doctor) feels he is having misperceptions about t;.he eti.ology
of his illness, is pr.obB:bly paranoid and may even be
delusional.
As of the date of the hearing in Aµgust of 1985, Complainant was himself still of the opinion that he could not
return to work at that time, because of his emotional
illness, and in fact, doesn't know if he ever will be well
enough to work again.
ISSUES

1.

Whether Complainant has established that he was engaged
in activity protected by the Act.

2.

If so, whether Complainant suffered adverse action as a
result of the protected activity.

3.

If so, to what relief is he entitled.
CONCLUSIONS OF LAW

Complainant and Respondent are protected by and subject
to the provisions of the Act, Complainant as a miner, and
Respondent as the operator of a mine.
In order to establish a prima facie case of discrimination under the Act, the miner has the burden of showing Cl)
that he engaged in protected activity and (2) that he was --·
subject to adverse action which was motivated in any part by
the protected activity. Secretary/Pasula v. Consolidation
Coal co., 2 FMSHRC 2786 (1980), rev'd on other grounds sub
nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd
Cir. 1981)~ Secretary/Robinette v. United Castle Coal Co., 3
FMSHRC 803 (1981>1 Secretary/Jenkins v. Hecla-Day Mines
Corporation, 6 FMSHRC 1842 (1984). The mine operator may
rebut the prima facie case by showing that no protected
activity occurred or that the adverse action was not motivated in any part by the protected activity.

30

On the facts presented in this proceediQg, I cannot
conclude that there is any credible evidence to suggest or
support any theory that Mr. Maynard's departure from Block
Coal Company or his difficulties while employed there from
October 1983 until June 14, 1984 were in any way connected
with any protected activity on his part. There is no evidence of any protected work refusals or retaliations for such
activity nor is there any evidence that Mr. Maynard made any
safety complaints to MSHA or to any state or local mining
authorities during this time period.
I do conclude, however, that when Complainant filed the
two Complaints of Discrimination which he has filed against
Diamond P. and Block coal Companies, he was engaged in
activity protected under the Act. Further, I conclude that
on those occasions during the eight (8) month period of his
reinstatement with Block Coal, when Complainant reported
accidents, incidents involving safety and safety-related
problems with the equipment he was using to management
personnel, he was engaged in activity protected under the
Act. Having found Complainant engaged in activity protected
by the Act, the critical issue in this case is whether Mr.
Maynard's termination of his employment was in any way
prompted by his engaging in protected activity under section
105(c) of the Act, or whether it resulted from his inability
to handle his job because of emotional or mental illness.
While there is some argument by counsel as to the.proper
characterization of Complainant's June 14, 1984 departure, I
find that Complainant quit his job because of his emotional
illness which is diagnosed as a major depression with
paronoid features, not because of any discriminatory action
on the part of the mine ownership or management.
The only ~dverse action therefore that I find in this
case is the docking of Complainant's pay for three (3) hours.
The crucial question here then is whether the evidence
establishes that the adverse action was motivated in any part
by the protected activity. I conclude for the reasons stated
earlier in this decision under Discussion and Findings· that·
it was not.
Whether the Respondent treated the Complainant unfairly
by assigning him to drive older equipment vice newer and
better equipment or making him work harder than other truck
drivers; or whether it sufficiently considered his emotional
problems are not issues properly before me in this case. My
jurisdiction is limited to considering whether the Respondent
discriminated against the Complainant for activity protected
under the Federal Mine Safety and Health Act of 1977. I
conclude that the evidence before me establishes that it did
not.

31

CONCLUSION AND ORDER
In view of the foregoing findings and conclusions, and
after careful consideration of all of the evidence and testimony adduced in this case, I conclude and find that the
Complainant here has failed to establish a prima f acie case
of discrimination on the part of the Respondent. Accordingly, the Complaint IS DISMISSED, and the Complainant's
claims for relief ARE DENIED.

4.1/1~
nistrative Law Judge

Distribution:
Mr. Tennis M~ynard, Jr., Rt. 264, Box 670, Oavella, KY 41212
(Certified Mail>
Hugh Richards, Esq., 715 North Lake Drive, Prestonsburg, KY
41653 (Certified Mail)
Thomas J. Blaha, Esq., J. Scott Preston Law Offices, 232
Second Street, P.O. Box 1361, Paintsville, KY 41240
(Certified Mail)
rbg

32

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

January 7, 1986

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 85-97
A.C. No. 15-13881-03554

v.
·:
PYRO MINING COMPANY,
Respondent

Pyro No. 9 Slope
William station

DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
Bruce Hill, Director of Safety and Training,
Pyro Mining Company, Sturgis, Kentucky, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 820(a).
Petitioner seeks civil penalty assessments against
the respondent for two alleged violations of certain mandatory
safety standards set forth in Part 75, Title 30, Code of
Federal Regulations.
The respondent filed a timely answer contesting the alleged violations, and a hearing was convened in
Evansville, Indiana, on December 3, 1985.
Issues
The issues presented in this case are (1) whether the
conditions or practices cited by the inspector constitute violations of the cited mandatory safety standards, and (2) the
appropriate civil penalty to be assessed for the violations,
taking into account the statutory.civil penalty criteria found
in section llO(i) of the Act.

33

Discussion
Section 104(a) "S&S" Citation No. 2505478 issued on
January 7, 1985, cites a violation of 30 C.F.R. § 75.301, and
the condition or practice is stated as follows:
A violation was observed on the No. 3 unit
I.D. 003 in that the quantity of air going
through the last open crosscut was less than
9000 CFM as required by the approved ventilation,
methane and dust-control plan. When measured
with an approved anemometer there was only
5710 CFM going through the last open crosscut.
Section 104(a) S&S Citation No. 2506565, issued on
January 28, 1985, cites a violation of 30 C.F.R. § 75.400, and
the condition or practice is stated as follows: "An accumulation of loose coal was present under the bottom belt and
rollers along the No. 1 belt conveyor entry starting at the
tail feeder and extending outby for a distance of approximately
20 feet."
11

11

This case is one of five cases heard in Evansville,
Indiana, on December.3, 1985. When this case was called for
trial, the parties advised me that the respondent admitted to
the violations, and sought leave to dispose of the matter by
tendering full payment of the proposed civil penalties filed
by the petitioner for the two violations in question.
Respondent's representative confirmed that the respondent
no longer contests the violations, and he agreed that the respondent would tender the full amount of the proposed civil penalties. He also agreed to the negligence and gravity findings
made by the inspector in support .of the citations issued in this
case.
The parties stipulated that at all times relevant to this
case, the overall coal production for the respondent's operating
company was 5,020,840 tons, and that the production for the
Pyre No. 9 William Station Mine was 2,041,542 tons.
_ The parties stipulated that the payment of the assessed
civil penalties will not adversely affect the respondent's
ability to continue in business.
The parties stipulated that the violations were promptly
abated in good faith by the respondent. I take note of the

34

fact that Citation No. 2505478 was abated within 20 minutes
of its issuance, and that Citation No. 2506565 was abated
within an hour of its issuance.
In both instances abatement
was achieved prior to the time fixed by the inspector.
The respondent's request to withdraw its contest and to
pay the proposed civil penalties was granted from the bench,
and I considered the proposed disposition of this case as a
settlement proposal pursuant to Commission Rule 30, 29 C.F.R.
§ 2700.30.
Further, after consideration of the pleadings,
stipulations, and arguments made on the record by the parties
in support of the proposed mutually agreed upon disposition of
the case, I rendered a bench decision approving the proposed
disposition, and this decision is reaffirmed and reduced to
writing herein pursuant to Corrimission Rule 65, 29 C.F.R.
§ 2700.65.
Conclusion
In view of the foregoing~ the citations issued in this
case ARE AFFIRMED.
Further, after careful consideration of
the information submitted by the parties with respect to the
six statutory civil penalty criteria found in section llO(i)
of the Act, I conclude and find that the proposed settlement
disposition advanced by the parties is reasonable and in the
public interest, and IT IS APPROVED.
ORDER
The respondent IS ORDERED to pay a civil penalty in the
amount of $206 in full satisfaction of Citation No. 2505478,
January 7, 1985, 30 C.F.R. § 301, and a civil penalty in the
amount of $112 for Citation No. 2506565, January 28, 1985,
30 C.F.R. § 75.400.
Payment is to be made to the petitioner
within thirty (30) days of the date of this decision and order,
and upon receipt of payment, this proceeding is dismissed.

fi~d~~
~{g#'A. ifo~fr:·as

Administrative Law Judge

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Mr. Bruce Hill, Director of Safety and Training, Pyro Mining
Company, P.O. Box 267, Sturgis, KY 42458 (Certified Mail)
/fb
35

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

January 7, 1986

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 85-182
A.C. No. 15-13881-03569

v.

·:

PYRO MINING COMPANY,
Respondent

Pyro No. 9 Slope
William Station

DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
Bruce Hill, Director of Safety and Training,
Pyro Mining Company, Sturgis, Kentucky, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 820(a).
Petitioner seeks a civil penalty assessment in the
amount of $241 against the respondent for an alleged violation
of mandatory health standard 30 C.F.R. § 70.501. The respondent filed a timely answer contesting the alleged violation,
and a hearing was convened in Evansville, Indiana, on December 3,
1985.
Issues
The issues presented in this case are (1) whether the
conditions or practices cited by the inspector constitute a
violation of the cited mandatory health standard, and (2) the
appropriate civil penalty to be assessed for the violation,
taking into account the statutory.civil penalty criteria found
in section llO(i) of the Act.
·

36

Discussion
Section 104(a) "S&S" Citation No. 2505980, issued on
June 12, 1985, cites a violation of 30 C.F.R. § 70.501, and
the condition or practice is stated as follows:
Based upon the results of a supplemental
noise survey conducted by MSHA on 5-30-85, the
noise exposure exceeds the allowable dose percentage of 132%. The noise exposure in the
working environment of the continuous miner
operator (occupation code 036) on Number 4 unit
MMU No. 0040 is 133.5%.
The operator shall take corrective actions
to reduce the noise level to within the allowable
limit of 132%. A hearing conservation plan as
required by section 70.501 shall be submitted to
MSHA within 60 days of this citation dated
6-4-85. Joy Miner 14 CM-5 Co. SN. M 004. No. 4
Unit located in the 1st west entries off the
5th north.
This case is one of five cases heard in Evansville,
Indiana, on December 3, 1985. When this case was called for
trial, the parties advised me that they reached a proposed
settlement of the controversy, the terms of which included
an agreement by the respondent to pay a civil penalty assessment in the amount of $50 for the violation in auestion.
The respondent's representative agreed that the violation
occurred as stated in the citation, and he also agreed to the
negligence finding made by the inspector in support of his
citation.
The parties stipulated that at all times relevant to this
case, the overall coal production for the respondent operating
company was 5,020,840 tons, and that the production for the
Pyro No. 9 William Station Mine was 2,041,542 tons.
The parties stipulated that the payment of the assessed
civil penalty will not adversely affect the respondent's ability
to continue in business. They also stipulated that the violation was abated in good faith by the respondent.

37

In support of the proposed civil penalty reduction in this
case, the petitioner's counsel asserted that he has taken into
consideration a possible error factor in connection with the
dosimeter used by the inspector to measure the noise level
exposure for the continuous miner operator's working environment. Under the circumstances, counsel asserted that the
gravity of the violation is not as great as originally determined by'the inspector.
I take note of the fact that in its answer to the initial
civil penalty proposal filed by the petitioner, the respondent
took issue with the inspector's "significant and substantial 11
(S&S) finding in view of the marginal dosimeter reading of
133.5 percent. The allowable noise exposure limit for the
tested occupation in question is 132 percent.
I also take
note of the fact that compliance was achieved and the noise
level exposure was reduced to within the allowable limit of
132 percent after the respondent replaced a worn part and
replaced a chain on the continuous-mining machine operated by
the affected miner in question. Under the circumstances, I
cannot conclude that the inspector's original gravity finding
indicating a permanently disabling possible hearing loss is
supportable.
Conclusion
After careful consideration of the pleadings, stipulations,
and arguments advanced by the parties on the record in support
of the proposed settlement disposition of this case, I affirmed
the citation and approved the proposed settlement in a bench
decision made pursuant to 29 C.F.R. § 2700.30. That decision
is reaffirmed and reduced to writing pursuant to 29 C.F.R.
§ 2700.65.
I conclude and find that the settlement disposition
is reasonable and in the public interest.
ORDER
The respondent IS ORDERED to pay a civil penalty in the
amount of $50 for the violation in question, and payment is
to be made to the petitioner within thirty (30) days of the
date of this decision and order. Upon receipt of payment,
th~s proceeding is dismissed •

.;~.r1'/J?
tf?. ~
~!i.gn.
Koutras
Administrative Law Judge

38

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Mr. Bruce Hill, Director of Safety and Training, Pyro Mining
Company, P.O. Box 267, Sturgis, KY 42458 (Certified Mail)

/fb

39

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

JAN 7 1986
. CIVIL PENALTY PROCEEDING

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

.

v.

Docket No. VA 85-33
A.C. No. 44-05831-03524
Mine No. 47

:

SUTHERLAND COAL COMPANY,
Respondent
ORDER APPROVING SETTLEMENT
Before:

Judge Broderick

On December 24, 1985, the Secretary of Labor filed a
motion for approval of a settlement reached by the parties
in this case. The two violations involved were originally
assessed at $3450, and the parties propose to settle for
the amount assessed with a provision for extended payment
of the assessment.
The violations were very serious, having resulted in
or contributed to the fatal injury of a mine foreman, who
was the son of the mine owner. The motion states that the
fatal accident resulted from the operator's reckless disregard
for safety.
Respondent was a small operator, with a limited
history of prior violations. The mine was closed following
the accident and has not reopened. Respondent states that
it can only pay the penalty in installments, and the Secretary
has agreed to this.
I conclude that the settlement agreement should be approved.
Therefore, IT IS ORDERED that the settlement is APPROVED.
It is further ordered that Respondent shall pay the sum of
$3450 for the violations alleged. Payment shall be made as
follows:
Respondent shall pay the sum of $143.75
on or before February 1, 1986, and a
like sum on the first day of each month
thereafter until the total amount is paid.

.ptj;vlt~v/__

J

.

fi//A-& 5
James A. Broderick
Administrative Law Judge

40

Distribution:
Craig w·. Hukill, Esq., U.S. Department of Labor, Office of
the Solicitor, 4015 Wilson Blvd.,. Arlington, VA 22203
(CertifieO. Mail)
Kermit R. Sutherland, Sutherland Coal Company, P.O. Box 41,
Birchf iela, VA 24220 (Certified Mail)
slk

41

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE t..AW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 7 1986
DONALD C. BEATTY, JR.,
Complainant

DISCRIMINATION PROCEEDING
:

v.

Docket No. PENN 84-205-D
Lucerne No. 8 Mine

HELVETIA COAL COMPANY,
Respondent
SUPPLEMENTAL DECISION
Appearances:

Before:

Earl R. Pfeffer, Esq., Washington, D.C., for
Complainant; William M. Darr, Esq., Indiana,
Pennsylvania, for Respondent.

Judge Broderick

I issued a decision on the merits in this case on
October 22, 1985 (corrected October 24, 1985). In that
decision, I found that Complainant established that he had
been discriminated against by Respondent in violation of
section lOS{c) of the Federal Mine Safety and Health Act
of 1977 (Act). As part of the relief, I ordered Respondent
to pay the costs and expenses {including attorney's fees)
reasonably incurred by Complainant in connection with the
institution and prosecution of this proceeding. I directed
counsel to confer and attempt to agree on the amount due
Complainant as costs and expenses.
Complainant has submitted a statement of attorney's
fees in the total amount of $6230. Of this amount, $4250
is claimed for Earl R. Pfeffer, Esq., $60 is claimed for
Mary Lu Jordan, Esq., and $1920 is claimed for the United
Mine Workers of America (UMWA) , by whom Pfeffer and Jordan
are employed. $441.12 is claimed by the UMWA for the attorney's
travel expenses.
Respondent does not object to these amounts.
Complainant has also filed a claim in the total amount
o.f $495. 72 for "briefing" of Donald Beatty, Tom Grove and
Robert Schork on May 14, 1985, and their appearance at the
hearing May 15, 1985. Beatty is the Complainant. Grove and
Schork testified on his behalf. The Local Union apparently
paid them $167.12, $165.99, and $162.61 respectively. There
is no explanation of the amount~ claimed.
I will allow reimbursement of the statutory witness fees for the three
individuals ($30 per day) •

42

Therefore, IT IS ORDERED that Respondent shall pay the
following costs and expenses in satisf actio~ of paragraph 3
of the Relief in my decision issued October 24, 1985:
1.
2.
3.
4.

To Earl R. Pfeffer, Esq.,
To Mary Lu Jordan, Esq.
To UMWA
To Local 3548, UMWA

$4250.00
60.00
2361.12
90.00

jt&\ttu:.~ .A-(i;p~ ~ i

James A. Broderick
Administrative Law Judge

Distribution:
Earl R. Pfeffer, Esq., Mary Lu Jordan, Legal Asst., UMWA,
·900 15th St., N.W., Washington, D.C. 20005 (Certified Mail)
William M. Darr, Esq., Helvetia Coal Company, 655 Church St.,
Indiana, PA 15701 (Certified Mail)
slk

43

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

CIVIL PENALTY PROCEEDING

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

Docket No. HOPE 79-323-P
A.C. No. 46-05121-03008F

v.

Wayne Mine

MONTEREY COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

The parties have moved for approval of a settlement to
dismiss this proceeding, upon the following grounds:
1. On May 8, 1978, Section 107(a) imminent danger
Withdrawal Order No. 25842 was issued to Monterey at its
Wayne Mine for three alleged violations of the mandatory
safety standards which are the subject of the present civil
penalty proceeding.
2. The violations were issued as a result of a fatal
shaft sinking accident which occurred at the mine on
May 5, 1978.
3. At the time the accident occurred, the intake air
shaft at the Wayne Mine was being constructed by FrontierKemper Constructors ("Frontier-Kemper") , an i:i.dependent
contractor employed by Monterey for the purpose of conducting
the shaft sinking operations.
4. While the shaft sinking operations at the Wayne
Mine were under the direct supervision and control of
Frontier-Kemper, MSHA enforcement policy on May 8, 1978, was
to cite the mine owner-operator for all violations which
occurred on mine property. Therefore, Withdrawal Order No.
25842 was issued to Monterey instead of Frontier-Kemper which
was actually conducting the operations which resulted in the
three violations at issue.
·

44

5. MSHA's enforcement policy with regard to issuing
citations or orders to independent contractors was later
revised and on July 26, 1985, Order No. 28542 was modified
to include Frontier-Kemper as the operator responsible for
the three alleged violations.
6. On December 13, 1985, the Secretary filed a civil
penalty proceeding with this Commission against Frontier-Kemper,
Docket No. WEVA 86-76, for the same three violations at
issue in this proceeding.
It is now the intention of the
Secretary to proceed solely against Frontier-Kemper as the
operator responsible for the violations at issue •

. 7. Therefore, the following settlement has been
agreed to by the parties:
a.
The Secretary will modify Order No. 28542 to
delete Monterey as the cited operator; and
b.
The Secretary will and hereby does move to
dismiss this civil penalty proceeding against Monterey
without penalty assessment.
I conclude that the settlement should be approved.
ORDER
WHEREFORE IT IS ORDERED that:

1.

The motion for approval of settlement is GRANTED.

2.

The hearing set for January 9, 1986, is CANCELLED.

3.

This proceeding is DISMISSED.

U)1i,~ ~VeA-

william Fauver
Administrative Law Judge

Distribution:
Thomas C. Means, Esq., Crowell & Moring, 1100 Connecticut
Avenue, N.W., Washington, D.C. 20036 {Certified Mail)
William A. Howe, Esq., Richard A. Steyer, Esq., Loomis,
Owen, Fellman & Howe, 2020 K Street, N.W., Washington, D.C.
20006 (Certified Mail)
Robert A. Cohen, Esq., U.S. Department of Labor, Office of
the Solicitor, 4015 Wilson Blvd., Suite 400, Arlington, VA
22203 (Certified Mail)
kg

45

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

ROCCO CURCIO,

JAN 8 1986

DISCRIMINATION PROCEEDING
Complainant
:

v.

Docket No. PENN 84-208-D
Emilie No. 1 Mine

KEYSTONE COAL MINING
CORPORATION,
Respondent

: '

.

SUPPLEMENTAL DECISION
Appearances:

Earl R. Pfeffer, Esq., Washington, D.C., for
Complainant; William M. Darr, Esq., Indiana,
Pennsylvania, for Respondent.

Before:

Judge Broderick

I issued a decision on the merits in this proceeding on
September 27, 1985. In that decision I found that Complainant
established that he had been discriminated against by Respondent
in violation of section 105(c) of the Federal Mine Safety and
Health Act of 1977 (Act). As part of the relief, I ordered
Respondent to pay the costs and expenses (including attorney's
fees) reasonably incurred by Complainant in connection with
the institution and prosecution of this proceeding. I directed
counsel to confer and attempt to agree on the amount due
Complainant as costs and expenses. Complainant has submitted
a statement of attorneys fees in the total amount of $5407.49.
Of this amount $3671.87 is claimed for Earl R. Pfeffer, Esq.,
$120. is claimed for Mary Lu Jordan, Esq., and $1615.62 is
claimed for the United Mine Workers of America (UMWA), by
whom Pfeffer and Jordan are employed. In addition, the UMWA
claims $370.65 for the cost of the attorney's hotel, per diem
and transportation expenses and ·for the transcript of the hearing.
Respondent does not object to these amounts.

Complainant also has filed a claim in the amount of
$294.72 for expenses incurred by Local 1412, UMWA in connection
with this proceeding. Respondent objects to this claim.
Section lOS(c) (3) of the Act provides that all costs
and expenses determined to have been reasonably incurred in
connection with the institution and prosecution of the
proceeding shall be assessed against the person found to
have violated section 105(c}.

46

·.: ·.· Local 1412 apparently paid Complainant $25.00 for a
two hour meeting he had with his counsel on December 12, 1984,
the day prior to the hearing herein. The amount is apparently
based on Complainants hourly rate of pay (12.50). There is
no showing or claim that he actually lost time or wages
as a result of the meeting. Therefore, it is not shown to
be an expense reasonably incurred in this proceeding, and I
reject the claim. However, I will allow the claim for mileage
and parking on that day in the total amount of $17.00. The
Local Union also apparently paid claimant $106.78 for his
attendance at the hearing on December 13, 1984 (8 hours at
$13.348 per hour. The discrepancy in the hourly rate is not
explained). Again, there is no showing or claim that he
actually lost wages in the amount claimed and I reject the
claim. The Local Union claims $115.32 for witness Jerry Duncan
who testified at the hearing (8 hours at $14.415 per'hour). The
reasonable expense for a witness at a hearing is the witness
·fee fixed by 28 u.s.c. § 1821, and I will allow reimbursement
for. the statutory witness fee ($30 per day) and the mileage
and parking expenses ($17.00). Claimant seeks reimbursement
to the Local Union for a one half hour meeting of Jerry Duncan
and Jim Bonelli with MSHA on July 23, 1984 in the total amount
of ~13.62. The complaint was filed with the Commission on
August 30, 1984. The expense is not explained and cannot
be said to have been incurred in connection with the present
proceeding. It is denied.
Therefore, IT IS ORDERED that Respondent.shall pay the
following costs and expenses in satisfaction of paragraph 3
of the Relief in my decision issued September 27, 1985:
1.
2.
3.
4.

To Earl R. Pfeffer, Esq.
To Mary Lu Jordan, Esq.
To UMWA
To Local 1412, UMWA

~rJ.A;i,Ll ~

J

$3,671.87
12Q.OO

2,086.27
64.00

Mt/l? 'l-~~ eL

James A. Broderick
Administrative Law Judge

Distribution:
Earl R. Pfeffer, Esq., Mary Lu Jordan, Legal Asst., UMWA, 900
15th St., N.W., Washington, o.c. 20005 (Certified Mail)
William M. Darr, Esq., Keystone CoalMining Corp., 655 Church St.,
Indiana, PA 15701 (Certified Mail)

slk

47

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

JAN 141986
SECRETARY OP LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner
v.
DIXIE FUEL COMPANY,
Respondent

...••
.
•.:
..•
.
.•

CIVIL PENALTY PROCEEDING
Docket No. KENT 85-124
A.C. No. 15-00590-03527
No. 1 Mine

DECISION AND ORDER APPROVING SETTLEMENT
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitionerr William A. Rice, Esq., Harlan,
Kentucky, for Respondent.

Before:

Judge Broderick

The above case was called for hearing pursuant to notice
on December 17, 1985 in Pineville, Kentucky. At the opening of
the hearing, counsel made a motion on the record for the
approval of a settlement agreement reached by the parties.
The case involves two citations, one for an alleged
violation of the ventilation standard, originally assessed at
$400.00, the other for an alleged violation of the roof control
plan originally assessed at $10,000.00. The agreement proposes
to settle for payment of $400.00 and $7500.00 for the
violations.
The operator operates two mines which in 1983 produced
223,504 tons of coal and in 1984 242,784 tons. There were 9
prior violations of 30 C.P.R. § 75.316, and 27 prior violations
of 30 C.F&R. § 75.200.
The ventilation violation alleged that the air had dropped
below the required 9000 cubic feet per minute at the last open
crosscut. Less than one tenth of one percent methane was
present. Because the operator could not determine the reason
for the air loss after diligent ~ffort, the area was abandoned.
The roof control violation was extremely serious. It
resulted in one fatal injury, and 3 other nonfatal injuries.

48

The citation charged that while advancing toward the outcrop,
subnormal roof conditions were encountered and a sufficient
number of additional roof supports were not installed to
adequately support the roof. Respondent's history of prior
roof control violations is not good and includes another fatal
roof fall in May, 1983. The mine in question has been closed,
having been operated for only two weeks in 1985.
As part of the settlement agreement, Respondent has agreed
to make available to all miners in its two mines a copy of the
approved roof control plan. It has further agreed that all the
miners up to and including section foremen will attend a
training class in roof control to be conducted by MSHA at its
Harlan, Kentucky office. The class will be held on company
time, that is, the miner.s ·will be paid at their regular rates
of pay for attending· the c:ia·ss •..
I have carefully considered the settlement agreement in
the light of the criteria in section llOCi) of the Act, and
conclude that it should be approved.
Therefore, IT IS ORDERED that the settlement agreement
proposed on the record December 17, 1985 is APPROVED;
IT IS FURTHER ORDERED that Respondent shall make available
to each of its miner-employees a copy of the current approved
roof control plan.
IT IS FURTHER ORDERED that all of Respondent's
miner-employees, up to and including section foremen, shall
attend a roof control class at the MSHA off ice in Harlan,
Kentucky and they shall be paid by Respondent at their regular
rates of pay. This class shall be held on or before February 7,
1986.

IT IS FURTHER ORDERED that Respondent shall pay the sum of
$7900.00 within 30 days after the roof control class referred
to above is held, and subject to the payment and the other
conditions set out above being fulfilled, this proceeding is
DISMISSED.

~, tli11J! s h3i z::il!A, !L;L

j James
A. Broderick
Administrative Law Judge

·

49

Distribution:
Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the
Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail>
William A. Rice, Esq., Rice, Huff & Uenderickson, 417 East
Mound Street, Harlan, KY 40831 (Certified Mail)
slk .

50

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 141986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 85-163
A.C. No. 15-03161-03558

v.
Star North Underground
PEABODY COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding filed by the petitioner
against the respondent pursuant to section llO{a) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 820{a) seeking
civil penalty assessments in the amount of $6,000 for two alleged
violations of certain mandatory safety standards found in Part 77,
Title 30, Code of Federal Regulations. The respondent contested
the alleged violations and the case was docketed for a hearing
on the merits. The hearing was subsequently continued after the
parties advised me of a proposed settlement of the violations.
By joint motion filed with me on January 6, 1986, pursuant
to Commission Rule 30, 29 C.F.R. § 2700.30, the parties seek
approval of a proposed settlement of the case, the terms of
which require the respondent to pay civil penalties in the
amount of $4,000 for the disputed violations.
Discussion
In support of the proposed settlement, the parties stete
that they have discussed the alleged violations and the statutory
criteria stated in section 110 of the Act. They have also submitted information concerning the civil penalty criteria and a
full disclosure of the circumstances connected with the issuance
of the violations.

51

The violations in this case were issued after an investigation of a fatal accident at the respondent's mine on January 15,
1985. According to MSHA's official accident investigation
report, which is a part of the record, chief maintenance foreman
James w. Warner was fatality injured when he became entangled
between a belt conveyor and belt roller. According to the report,
the accident victim had apparently removed a portion of the belt
conveyor guard without deenergizing the belt. Citation No.
2506470, January 15, 1985, cites a violation of 30 C.F.R.
§ 75.400(c) for a failure to adequately guard the belt conveyor
drive, and Citation No. 2506471, January 15, 1985, cites a violation of 30 C.F.R. § 77.404(c), for the failure of the accident
victim to deenergize the power from the beltline before performing
maintenance or repairs on th~ belt.
In support of the proposed settlement, petitioner states
that the.accident victim was grossly negligent in attempting
to repair or perform maintenance on the belt when he removed a
portion of the belt guarding and failed to deenergize the
belt. Based on a review of the available evidence, including
the information contained in the accident report, and citing
Old Dominion Power Company, 6 FMSHRC 1886, 1895-96 (1984), and
Nacco Mining Company, 3 FMSHRC 848 (1981), petitioner believes
that this gross negligence should not be attributed to the
respondent.
Petitioner asserts that the accident victim did not endanger
others by his negligent acts, and there is no evidence that the
respondent could have reasonably foreseen that he would act in
such a manner on the date the violations occurred. Petitioner
points out that the accident victim was chief maintenance
foreman at the mine with over 7 year..s experience at his occupation, had 14 years total mining experience, and had received his
annual retraining on October 26, 1984.
Conclusion
After careful review and consideration of the pleadings,
arguments, and submissions in support of the motion to approve
the proposed settlement of this case, I conclude and find that
the proposed settlement disposition is reasonable and in the
public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30,
the motion IS GRANTED, and the settlement IS APPROVED.

52

ORDER
The respondent IS ORDERED to pay a civil penalty in the
amount of $2,000 in satisfaction of Citation No. 2506470, and
$2,000 for Citation No. 2506471. Payment is to be made to MSHA
within thirty (30) days of the date of this decision. Upon
receipt of payment this matter is dismissed.

_·.~AtA// ~~·

~~~~- Ko~as
·
Administrative Law Judge

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Michael A. Kafoury, Esq., Peabody Coal Company, P.O. Box 373,
St. Louis, MO 63166 (Certified Mail)
/fb

•

53

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 141986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
.ADMINISTRATION (MSHA),
Petitioner

.
..

v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 85-81-M
A.C. No. 47-0095-05502
Mackville Quarry

.

LANDWEHR MATERIALS, INC.,
Respondent :

DECISION
Appearan.ces:

Miguel J. Carmona, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois, for
Petitioner; Thomas J.Landwehr, General Manager,
Landwehr Materials, Inc., Appleton, Wisconsin,
for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
The Secretary seeks a civil penalty for an alleged
violation of 30 C.F.R. § 56.5-SO(b). Pursuant to notice, the
case was heard in Green Bay, Wisconsin on December 10, 1985.
Arnie Mattson, a Federal mine inspector, testified on behalf of
Petitioner. No witnesses were called by Respondent. The
parties waived their right to file written post-hearing briefs,
but both made arguments on the record at the close of the
hearing. I have considered the entire record, and the
contentions of the parties, and make the following decision.
FINDINGS OF FACT

•

1. At all times pertinent to this proceeding,
Respondent was the owner and operator of a limestone quarry in
Outagamie county, Wisconsin, known as the Mackville Quarry and
Mill.

2.

The subject mine is open about 9 months of the year,

and works about 38,000 to 40,000 production hours annually.
About 20 employees work at the mine.

54

3. Inspections of the subject Quarry's noise levels were
conducted by MSHA in May, 1979 and March, 1984. In May, 1979
citations were issued because two miners were exposed to
excessive noise and were not wearing approved hearing
protection. The citations were terminated when Respondent
required the miners to wear hearing protection. In March,
1984, a noise sampling survey was conducted. It showed that
certain employees were exposed to noise in excess of the
prescribed limits. Citations wece not issued, because the
employees were wearing approved hearing protection.
4. Between October 17, 1982 and October 16, 1984,
Respondent had a history of one paid violation of a mandatory
health or safety standard.
S. Respondent· has ~~ways cooperated with the MSHA
inspectors in their inspections of its facilities.
6. On October 16 and 17, 1984, Federal Mine Inspector
Arnie Mattson conducted a health and safety inspection of
Respondent's mine. The inspection included a sound level
examination of the environment of a shovel operator. The
inspector determined that the shovel operator was exposed to 96
dBA for an 8 hour day. The operator was wearing personal
hearing protection. A citation was issued because the
Inspector determined that feasible engineering controls were
not being utilized.
7. Following a discussion between Respondent and the
Inspector, the MSHA Technical support Unit in Denver, Colorado
performed a noise control examination in April and May, 1985.
The citation termination date was extended because of this
examination.
8. A vinyl barrier curtain was installed between the
shovel operator and the engine compartment of the shovel.
Tests performed by MSHA's Industrial Hygienist showed that the
noise level was reduced in the shovel operator's environment by
almost 4 dBA (from an average of 101 dBA to an average of 98
dBA). This was a reduction in terms of the percentage of the
permissible noise levels of approximately 33 percent (101 dBA
is 459 percent of the allowable level; 98 dBA is 303 percent).
The reduction, though significant, did not reduce the noise to
permissible levels C90 dBA), so personal protection equipment
was still' deemed necessary.
9. The report from the Denver technical center indicated
that the ear muffs worn by the shovel operator did not afford
adequate protection because of a loose fit. This report was
issued after the citation was terminated.

55

10. The citation was terminated on May 1, 1985 after the
installation of a leaded vinyl curtain between the shovel
operator and the engine. ~he shovel operator was still
required to wear hearing protebtion.
REGULATORY PROVISIONS
30 C.F.R. § 56.5-50 provides in part as follows:
56.5-50 Mandatory.
(a) No employee shall be
permitted an exposure to noise in excess of that
specified in the table below. Noise level
measurements shall be made using a sound level
meter meeting_ spe.c~f ications for type 2 meters
contained in American· National Standards
Institute (ANSI) Standard Sl.4-1971, 'General
Purpose Sound Level Meters,' approved April 27,
1971, which is hereby incorporated by reference
and made ~ part hereof, or by a dosimeter with
similar accuracy. This publication may be
obtained from the American National Standards
Institute, Inc., 1430 Broadway, New York, New
Yark 10018, or ~ay be examined in any Metal and
Nonmetal Mine Safety and Health District or
Subdistrict Office of the Mine Safety and Health
Administration.
PERMISSIBLE NOISE EXPOSURES
Duration per day, hours of exposure

Sound level
dBA, slow
response

8. • . . . . . • • . • . . . . . . . . • . • . . . . . . . . . . . . .

90
92
95
97
100
102
105
110
115

6 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • ~ • • .. •

4. . . .

0

•

•

•

•

•

•

•

0

•

•

•

•

•

•

•

•

•

•

•

~

•

•

•

•

•

•

•

•

•

•

3• • • • • • • • • • ~ • e • • • • • • • ~ • • • • • • • • • • • • • •
2 .. . . . . . . . . . . . . . . . . . . . • . • . . . . . • . . . ~ ..
1-1/2 .. ~·-························•«>
1•• • • • • . • •. • . . • • • • .
l/ 2 ••.•••••.....•..••.•..••.•.•..•..
1/4 or less •••.•.••.•••••••.••.•••.•
0

*

*

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

*

(b) When employees' exposure exceeds that
listed in the above table, feasible
administrative or engineering controls shall be
utilized.
If such controls fail to reduce

56

exposure to within permissible levels, personal
protection equipment shall be provided and used
to reduce sound levels to within the levels of
the table.
ISSUES
1. Whether the evidence showed that Respondent failed to
utilize feasible engineering controls where an employee's
exposure to noise exceeded permissible limits?

2. If so, what is the appropriate penalty for the
violation?
CONCLUSIONS OF LAW
1. Respondent is subject to the prov1s1ons of the
Federal ~ine Safety and Health Act of 1977 (the Act) in the
operation of the subject mine. I have jurisdiction over the
parties and the subject matter of this proceeding.

2. Section llOCa) of the Act provides that if a
violation occurs of a mandatory health or safety standard, a
civil penalty shall be assessed for the violation.
3. On October 17, 1984, a shovel operator at the subject
mine was exposed to noise 2.28 times the permisible level; the
exposure was equivalent to 96 dBA for 8 hours per day.
4. There were feasible engineering controls available to
reduce the exposure, namely the installation of a vinyl curtain
between the shovel operator and the shovel motor.
5. Respondent was in violation of 30 C.F.R. § 56.5-50(b)
on October 17, 1984 because of its failure to utilize
engineering controls to reduce the exposure of its shovel
operator to excessive noise.
6. Respondent is a relatively small operator and
operates only 9 months of the year.
7. The violation was moderately serious: the exposure
was 2.28 times the permissible level; the shovel operator was
wearing inadequate personal protection. Therefore, a hearing
loss was likely to result from continued exposure to the
excessive noise.
8. Because MSHA had examined the noise level in the
facility previously, and had never required engineering

57

controls to reduce the noise levels, Respondent's negligence
must be deemed minimal.
9. There is no evidence that the imposition of a penalty
will have any effect on Respondent's ability to continue in
business.
10. Respondent abated the violation promptly and made a
good faith effort to comply with MSHA's requirements •
.11. Considering the moderately serious nature of the
violation, an appropriate penalty would be $90. Giving
Respondent credit for the minimal negligence, its cooperative
attitude, and prompt abatement, I conclude that an appropriate
penalty for the viol~tion~is_ $70.
ORDER
Ba.sed on the above findings of fact and conclusions of
law, IT IS ORDERED:
1.

Citation 2373982 issued October 17, 1984 is AFFIRMED.

2. Respondent shall within 30 days of the date of this
decision pay the sum of $70 as a civil penalty for the
violation found herein.

JItU1Ak5 A 11'/?c~,._,tl
./

James A. Broderick
Administrative Law Judge

Distribution:
Miguel J. Carmona, Esq., U.S. Department of Labor, Office of
the Solicitor, 230 s. Dearborn st., 8th Fl., Chicago, IL 60604
(Certified Mail)
T. J. Landwehr, General Manager, Landwehr Materials, Inc.,
Route 2, Appleton, WI 54911 (Certified Mail)
slk

58

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

20006

January 14, 1986
CONTEST PROCEEDING

NACCO MINING COMPANY,
Contestant

Docket No. LAKE 85-87-R
Citation No. 2330657; 6/5/85
Modified to
Citation No. 2330657-02; 6/24/85

v•

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

Powhatan No. 6 Mine

and
UNITED MINE WORKERS OF
AMERICA (UMWA),
Intervenor

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 86-2
A. C. No. 33-01159-03668

v.

Powhatan No. 6 Mine

NACCO MINING COMPANY,
Respondent

and
UNITED MINE WORKERS OF
AMERICA (UMWA),
Intervenor
DECISION
Appearances:

Paul W. Reidl, Esq., Crowell & Moring, Washington,

D. C. for Contestant/Respondent;
Patrick M. Zohn, Esq., Office of the Solicitor,
U. S. Department of Labor, Cleveland, Ohio for
Respondent/Petitioner;
Thomas M. Myers, Esq., United Mine Workers of
America, Shadyside, Ohio for Intervenor.
Before:

Judge Merlin
59

The above-captioned notice of contest is before me pursuant
to order of the Commission dated November 13, 1985. See also the
letter or the Commission's Acting General Counsel dated
January 7, 1986. The related penalty case is before me pursuant
to Order of Assignment dated November 14, 1985.
In a telephone conference call with the undersigned Administrative Law Judge counsel agreed that (1) the contest and
penalty cases be consolidated for decision; (2) the cases be decided on the basis of the present record without any further
hearing and (3) filing of post-hearing briefs be waived. l/
Accordingly, the contest and penalty cases are hereby consolidated and decided on the present record.
The subject citation dated June 5, 1985 and issued under
section 104(a) for a violation of 30 C.F.R. § 75.200, reads as
follows:
During an investigation of a 103(g)(l)
complaint it has been determined that
Bill Palmer, while operating the No. 14
continuous mining _machine in the 6+94
crosscut No. 3 to 2 entry in the 9 left
2 east section on the first shift
5-30-85 traveled at least 6 feet 5 inches
inby permanent roof supports (roof bolts)
and temporary roof supports had not been
installed. Information to substantiate
this violation was obtained by inspecting
the 6+94 crosscut and conferring with
management and mine employees. The
Section Foreman was Stanley Sikora.
The notice of termination dated June 11, 1985 provides:
Safety meetings were held and the roof
control plan and the hazards of going
beyond roof supports were explained to
all the working miners.
Subsequently on June 24, 1985, a modification was issued
changing the 104(a) citation to a 104(d)(l) citation. This
modification states as follows:
No. 2330657 issued on 6-5-85 is being
modified to show this action was a

l/

Operator's counsel filed a Notification of Subsequent
Authority which the Solicitor has moved to strike. The
operator has opposed the Solicitor's motion. The
matter is moot because I read the decisions in question
before the operator's notification was received. Since
the positions of the parties have been fully presented,
f u r t-h er b r i e f i ng i s unne c e s s a r y •
60

104(d)(l) type citation instead of a
104(a). Bill Palmer, continuous miner
operator under the supervision of
Stanley Sikora, Section Foreman, was
mining coal 6 feet 3 inches inby
permanent roof supports in an area of
unsupported roof. This violation
occurred May 30, 1985, in the 9 left
2 east section. This is an unwarrantable
failure. This citation was terminated
6-11-85.
The operator does not contest the fact of violation
(Tr. 6-7). Nor has it argued that the violation was not serious.
Its challenge is first, to the circumstances and procedures under
which the (d) citation was issued and second, to the existence of
unwarrantable failure (Tr. 7-8, 37).
The first issue is the validity of the citation in light of
the requirements of section 104(d) that the inspector issue the
citation on an 11 inspection 11 and make a 11 finding 11 of unwarrantable
fai 1 ure.
Three administrative law judges of this Commission now have
considered the meaning and effect of section 104(d) in cases like
this. In an Order Granting In Part For Summary Decision, Specifying Further Proceedings, And Granting Motion To Consolidate in
Westmoreland Coal Co., (WEVA 82-340-R et al.) (May 4, 1983),
Judge Steffey explained section 104(d)--,n~light of the
legislative history as follows:

wee correctly argues that an order issued under section 104(d) should be
based on an inspection as opposed to an
investigation. As hereinbefore indicated, the Secretary argues that Congress has not defined either term to
indicate that Congress recognized that
there is a difference between an 11 inspection11 as opposed to an 11 investigation. 11
If one wants to examine the legislative
history which preceded the enactment of
the unwarrantable-failure provisions of
the 1977 Act, one must examine the legislative history which preceded the enactment of section 104(c) of the 1969 Act.
The reason for the aforesaid assertion
is that Congress made no changes in the
wording of section 104(c) of the 1969
Act when it carried those provisions
over to the 1977 Act as section 104(d).
The history of the 1969 Act shows that
there was a difference in the language
of the unwarrantable-failure provisions
of s. 2917 as opposed to H. R. 13950.

61

Whereas S. 2917, when reported in the
Senate, contained an unwarrantable-failure section 302(c) which read almost
word for word as does the present section 104(d), H.R. 13950 contained an
unwarrantable-failure section 104(c)
which provided that if an unwarrantablefai lure notice of violation had been
issued under section 104(c)(l), a reinspection of the mine should be made within 90 days to determine whether another
unwarrantable-failure violation existed.
H.R. 13950 also contained a definition
section 3(1) which defined an "inspection" to mean "*** the period beginning
when an authorized representative of the
Secretary first enters a coal mine and
ending when he leaves the coal mine
during or after the coal-producing shift
in which he entered."
Conference Report No. 91-761, 9lst
Cong., 1st Sess., stated with respect to
the definition in section 3(1) of H.R.
13950 (page 63):
***The definition of "inspection 11 as
contained in the House amendment is no
longer necessary, since the conference
agreement adopts the language of the
Senate bill in section 104{c) of the Act
which provides for findings of an unwarrantable failure at any time during the
same inspection or during any subsequent
inspection without regard to when the
particular inspection begins or
ends.***
Section 104(c)(l) of H.R. 13950 provided
for the findings of unwarrantable failure to be made in a notice of violation
which would be issued under section
104(b). Section 104(c)(l)'s requirement
of a reinspection within 90 days to determine if an unwarrantable-failure violation still existed explained that the
reinspection required within 90 days by
section 104(c){l) was in addition to the
special inspection required under section 104(b) to determine whether a violation cited under section 104{b) had
been abated. Section 104(c)(l), as finally enacted, eliminated the confusion
about intermixing reinspections with

62

special inspections by simply providing
that an unwarrantable-failure order
would be issued under section 104{c)(l)
any time that an inspector, during a
subsequent inspection, found another
unwarrantable-failure violation.
(Conference Report 91-761, pp. 67-68).
The legislative history discussed above
shows that Congress thought of an inspection as being the period of time an
inspector would spend to inspect a mine
on a single day because the inspection
was to begin when the inspector entered
the mine and end when he left. It would
be contrary to common sense to argue
that the inspector might take a large
supply of food with him so as to spend
more than a single day in a coal mine at
one time. On the other hand, Congress
is very experienced in making investigations to determine whether certain
types of legislation should be enacted.
Congress is well. aware that an investigation, as opposed to an inspection, is
likely to take weeks or months to complete. Therefore, I cannot accept the
Secretary's argument that Congress did
not intend to distinguish between an
"inspection" and an "investigation" when
i t used those two terms in section
104(a) and section 107(a) of the 1977
Act.
It should be noted, for example, that
counterpart of section 104(a) in the
1977 Act was section l04(b) in the 1969
Act. Section l04(b) in the 1969 Act
provided for notices of violation to be
issued "upon any inspection," but section 104(a) in the 1977 Act provides for
citations to be issued "upon inspection
or investigation." Likewise, the counterpart of imminent-danger section
107(a) in the 1977 Act was section
104(a) in the 1969 Act. In the 1969 Act
an imminent-danger order was to be written "upon any inspection," but when Congress placed the imminent-danger provision of the 1977 Act in section
107(a), i t provided for imminent-danger
orders to be issued "upon any inspection
or investigation." On the other hand,
th~

63

when the unwarrantable-failure prov1s1on
of section 104(c) of the 1969 Act was
placed in the 1977 Act as section
104(d), Congress did not change the requirement that unwarrantable-failure
orders were to be issued "upon any
inspection.
11

The legislative history explains why
Congress changed section 104(a) in the
1977 Act to allow a citation to be
issued 11 upon inspection or investigation." Conference Report No. 95-461,
95th Cong., 1st Sess., 47-48, states
that the Senate bill permitted a citation or order to be issued based upon
the inspector 1 s belief that a violation
had occurred, whereas the House amendment required that the notice or order
be based on the inspector's finding that
there was a violation. Additionally, as
both the Secretary and WCC have noted,
Senate Report No. 95-181, 95th Cong.,
1st Sess., 30, explains that an inspector may issue a citation when he
believes a violation has occurred and
the report states that there may be
times when*** a citation will be delayed because of the complexity of issues raised by the violations, because
of a protracted accident investigation,
or for other legitimate reasons. For
this reason, [section 104(a)J provides
that the issuance of a citation with
reasonable promptness is not a jurisdictional prerequisite to any
enforcement action. ***
The legislative history and the plain
language of section 107(a) in the 1977
Act explain why that section was changed
so as to insert the provision that an
imminent-danger order could be issued
upon an investigation as well as upon
an 11 inspection. 11 Section 107(a) states
that 11 *** [t]he issuance of an order
under this subsection shall not preclude
the issuance of a citation under section
104 or the proposing of a penalty under
section 110. 11 Both Senate Report No.
95-181, 37, and Conference Report No.
95-461, 55, refer to the preceding
quoted sentence to show that a citation
11

11

64

of a violation may be issued as part of
an imminent-danger order. Since section
104(a) had been modified to provide for
a citation to be issued upon an inspector's "belief" that a violation had
occurred, it was necessary to modify
section l07(a) to provide that an imminent-danger order could be issued upon
an inspection or an investigation so as
to make the issuance of a citation as
part of an imminent-danger order conform
with the inspector s authority to issue
such citations under section 104(a).
1

Despite the language changes between the
1969 and 1977 Acts with respect to the
issuance of citations and imminent-danger orders, Congress did not change a
single word when it transferred the unwarrantable-failure provisions of section 104(c} of the 1969 Act to the 1977
Act as section 104(d). Conference Report No. 95-461, 48, specifically states
"(t]he conference substitute conforms to
the House amendment, thus retaining the
identical language of existing law."
My review of the legislative history
convinces me that Congress did not intend for the unwarrantable-failure provisions of section 104(d) to be based
upon lengthy investigations. Congress
did not provide that an inspector may
issue an unwarrantable-failure citation
or order upon a "belief" that a violation occurred. Without exception,
every provision of section 104(d) specifically requires that findings be made by
the inspector to support the issuance of
the first citation and all subsequent
orders. The inspector must first, "upon
any inspection" find that a violation
has occurred. T~he must find that
the violation could significantly and
substantially contribute to the cause
and effect of a coal or other mine
safety or health hazard. He must then
find that such violation is caused by an
unwarrantable failure of such operator
to comply with such mandatory health or
safety standard. He thereafter must
place those findings in the citation to

65

be given to the operator. If during
that same inspection or any subsequent
inspection, he finds another violat1on
of any mandatory health or safety standard and finds such violation to be also
caused by an unwarrantable failure of
such operator to so comply, he shall
forthwith issue an order requiring the
operator to cause all persons in the
area affected by such violation to be
withdrawn and be prohibited from entering such area until the inspector
determines that such violation has been
abated.
After a withdrawal order has been issued
under subsection 104(d)(l), a further
withdrawal order is required to be issued promptly under subsection 104(d)(2)
if an inspector finds upon any
subsequent inspection that an additional
unwarrantable-failure violation exists
until such time as an inspection of such
mine discloses no unwarrantable-failure
violations. Following an inspection of
such mine which discloses no unwarrantable-fai 1 ure violations, the
operator is liberated from the unwarrantable-failure chain. Conference Report No. 95-181, 34, states that "[b]oth
sections [104(d){l)] and [104(e)J require an inspection of the mine in its
entirety in order to break the sequence
of the issuance of orders." [Emphasis
supplied.]
Most recently, in Emery Mining Corporation, 7 FMSHRC 1908
(1985) Judge Lasher agreed with and followed Judge Steffey
stating in pertinent part:
The first mention of the words "inspection and "investigation" is at the
heading of Section 103 of the Act. That
heading reads "Inspections, Investigations, and Recordkeeping."
Section 103(a) of the Act provides:
"Authorized representatives of the Secretary ••. shall make frequent inspections
and investigations in ••• mines each
year for the purpose of ••• (4) determining whether there is compliance
with the mandatory health or safety
standards • • • 11

66

Section 103(b) of the Act, speaking only
of an 11 investigation, 11 provides: "For
the purpose of making any investigation
of any accident or other occurrence relating to health or safety in a ...
mine, the Secretary may, after notice,
hold public hearings, et cetera." II
Section 103(g){2) of the Act, relating
only to "inspection, 11 provides that
prior to or during "any inspection of a
••• mine, any representative of miners
••• may notify the Secretary ••• of any
violation of this Act, et cetera."~/
Of considerable significance, the most
used enforcement tool, section 104(a),
mentions both inspections and
investigations. It provides that "if,
upon inspection or investigation, the
Secretary ••• believes that an operator
of a ••• mine ••• has violated this Act,
or any ••• standard, ••. he shall, with
reasonable promptness, issue a citation
to the operator •••• The requirement for
the issuance of a citation with
reasonable promptness shall not be a
jurisdictional prerequisite to the
enforcement of any provision of this
Act. 11
Jj

I note here that this is one of the more
significant provisions of the Act in
determining the validity of the order in
question since it authorizes the
Secretary to make an "investigation" of
an accident or "other occurrence
relating to health or safety." It is
clear here, as well as in other
provisions of the Act, that Congress saw
an investigation as something different
from an inspection. One can readily see
the difference between the investigation
of some past happening or occurrence or
accident and the inspection of some
physical plant or property.

~/

Section 103(g)(l) provides a procedure
for the representative of miners to
obtain "an immediate inspection" by
giving notice to the Secretary of the
occurrence of a violation or imminent
danger.

67

Section 104(d)(l), in contrast to section 104(a), relates only to "inspections," providing that "if, upon any
inspection of a ••. mine, an authorized
representative of the Secretary finds
that there has been 9/ [footnote omitted] a violation of any mandatory health
or safety standard, and if he also finds
that, while the conditions created by
such violation do not cause imminent
danger, such violation is of such nature
as can significantly and substantially
contribute to the cause and effect of a
••• hazard, and if he finds such violation to be caused by an unwarrantable
failure ••• he shall include such ·findings in any citation given to the
operator under this Act."
The second sentence of section 104(d)(l)
provides for the withdrawal order in the
enforcement chain or scheme contemplated
by Congress in this so-called "unwarrantable failure" formula. Significantly, it provides that "If, during the
same inspection or any subsequent inspection of such mine within 90 days
after the issuance of such citation, an
authorized representative of the Secretary finds another violation ••• and
finds such violation to be also caused
by an unwarrantable failure ••• , he
shall forthwith issue an order requiring
the operator to cause all persons ••• to
be withdrawn from .•• such area •.•• 11
If the position of the Secretary in this
case were adopted, that is, if withdrawal orders could be issued on the
basis of an investigation of past occurrences, the effect would be to increase
the 90-day period provided for in the
second section of section 104(d){l) and
by the amount of time which passed between the occurrence of the violative
condition described in the order and the
issuance of the order. 10/ [footnote
omitted]
~
Section 104(d)(2) of the Act permits the
issuance of a withdrawal order by the
Secretary if his authorized representative "finds upon any subsequent inspection" the existence of violations similar
to those that resulted in the issuance of
the section 104(d){l) order.

68

Summing up, it is clear that nowhere in
section l04(d) is the issuance of any
enforcement documentation sanctioned on
the basis of an investigation. Although
Congress did not define the terms "inspection11 or 11 investigation 11 specifically in the Act, there is no question
but that Congress in using those terms
in specific ways in prior sections of
the Act, and by not using the term "investigation" in section 104{d)(l) and
(2) 11/ [footnote omitted] did so with
some-Premeditation.

*

*

*

*

*

Finally, it is noted that section 107(a)
of the Act permits the Secretary's
representative to issue a withdrawal
order where imminent danger is found to
exist either upon an inspection or
investigation.
Perusal of these various portions of the
Mine Act, commencing at the point where
the subject words are first used on
through to the end of their use, indicates that such terms were used with
care and judiciously and with an understanding of the general connotations
contained in their definitions • .!1/

*

*

*

*

*

Reference is made to Webster's Third New
International Dictionary, G. & C.
Merriam Company, 1976, which
defines 11 inspect 11 in the following
manner: 1: to view closely and
critically (as in order to ascertain
quality or state, detect errors, or
otherwise appraise): examine with care:
scrutinize (let us inspect your motives)
{inspected the herd for ticks) 2: to
view and examine officially (as troops
or arms). 11 The word 11 inspection," in
the same dictionary, contains various
definitions, which include references
to "physical" examinations of various
things, including persons, premises, or
installations. The word "investigate 11
is defined as follows: 11 to observe or
11

69

I conclude that the Act does not permit
a section 104(d)(2) order to be based on
an investigation, as here, but rather
the order must be based on and it must
have been a product of an inspection of
the site. Section 104(d)(2) provides
that an order may be issued only if,
upon an inspection of the mine, the
Secretary finds a violation of a safety
or health standard. Where an inspector
does not inspect the site but only
learns of the alleged violation from the
statements of miners a section 104(d)(2)
order may not be issued.
The foregoing decision was not appealed.
Again, most recently in Southwestern Portland Cement Company,
7 FMSHRC
(November 25, 1985) Judge Morris also issued an Order
employing-The same rationale and reaching the same result as
Judqe Steffey. Judge Morris concluded his discussion on this
issue as follows:

*

*

*

*

*

I agree with Judge Steffey and I conclude that the Act does not permit a

Footnote .JJ./ (continued)
study closely: inquire into systematically: examine, scrutinize (the whole
brilliance of this novel lies in the
fullness with which it investigates
a past) (a commission to investigate
costs of industrial production • • • )."
One concludes from reading these
definitions that an investigation is
more applicable to the study or scrutiny
of some past event or intellectual subject, whereas an inspection relates more
generally to looking at some physical
thing. This common distinction between
these phrases is consistent with the
congressional usage of the term "investigate," for example, in section 103(b) of
the Act and for the use of both terms in
section 104(a) of the Act.

70

section 104(d) order to be based on an
investigation. But rather the order
must be based on and it must have been
.a. product .of an inspection of .the site.
Section 104(d) provides that an order
may be issued only if, upon an inspection of the mine, the Secretary finds a
violation of a safety or health standard. Where an inspector does not
inspect the site but only learns of the
alleged violation from the statements
of miners a section 104(d) order may
not be issued.
As previously noted, when it intended
to permit MSHA enforcement actions to
proceed on the basis of an inspection
or an investigation, Congress so provided. The section 104(d) requirement
of an inspection cannot be dismissed as
mere semantic inadvertence on the part
of Congress.
Section 104(d) sets forth the sanctions
that may be imposed against an operator
under the specific conditions discussed
in that section. It follows that the
inspector authorized on a miner's complaint by section 103(g)(l) cannot
reduce the safeguar~s Congress intended
to provide in section 104(d). The
Secretary s reliance on section
103(g)(l) is~ accordingly, rejected.
1

There is little that can or needs to be added to Judge
Steffey•s decision which thoroughly addresses the question of
what section 104(d) means and how it should be interpreted in a
case such as this. This decision is persuasive and the instant
matter falls squarely within it. The recent decisions of Judges
Lasher and Morris also follow Judge Steffey•s rationale and result. In this case there is no dispute that when the inspector
went to the mine he was looking into the circumstances of a past
event. The cited violative event of the continuous miner operator going beyond supported roof occurred and ended several days
before the inspector visited the mine. The unsupported roof was
bolted later on the same day the violation occurred which was
long before the inspector arrived •. Because the inspector here
was engaged in the investigation of a past happening rather than
an inspection of an existing situation he could not issue a (d)
citation. Since the inspector could not issue a (d) citation,
the sub-district manager could not do so either. The power to
modify exercised by the sub-district manager pursuant to section
104(h) does not mean that he, a step further removed from the

71

actual situation, could do what the statute forbids the investigating inspector from doing in the first instance. And section
103(g) cannot change the conditions so clearly required by
section 104(d) for issuance of an unwarrantable citation.
I have not overlooked Judge Koutras' decision holding that
walk-around pay was due when a miner representative accompanied
an inspector on a roof control technical investigation
Monterey Coal Company, 5 FMSHRC 1223 (1983). As the decision
makes clear, the term "investigation" in that case was the result
of MSHA computer code labels rather than the statute itself and
the Judge expressed difficulty in understanding any real distinction between a spot inspection and activity to determine whether
an operator was complying with its roof control plan. That there
was no real distinction in that case is apparent because the inspector there was looking into and observing on-going and present
events unlike this case which involved only looking back into a
specific past happening. Even more importantly, as Judge Koutras
explained, the walk-around pay provision is governed by its
unique legislative history and by judicial decisions which interpret it in light of that history. Section 104(d) which has its
own terms arid legislative history must be governed by them.
Accordingly, Monterey is distinguishable from this case.
11

11

•

In light of the foregoing, I hold that the (d) citation
cannot stand and must be modified to an (a) citation.
Mention must also be made of the manner in which the
sub-district manager proceeded. He ordered a supervisory inspector to order the issuing inspector to change the (a) citation
to a (d) citation (Tr. 351-352). And he testified that his decision to modify the citation was based upon prior safety meetings
he had held with the operator and upon certain MSHA policy memoranda regarding the issuance of 104(d) citations and orders for
roof control violations (Gx-5, Gx-6, Gx-7, Tr. 358-368). Finally, he never spoke to the issuing inspector and he did not know
or care what was done by the section foreman who was in charge
when the violation occurred (Tr. 351-352, 399). The sub-district
manager, is of course, a duly authorized representative of the
Secretary with power under section 104(h) to modify citations.
But he cannot exercise this power based solely upon blanket administrative fiat which indiscriminately decrees that all section
foreman must have known or should have known of this type of violation regardless of what actually occurred in the particular
case. I do not read the MSHA memoranda as requiring such an
approach (Gx-5, GX-6, GX-7). In any events the sub-district
manager followed such a policy here and his action must be disapproved of because the result reached by a duly authorized
representative> whatever his administrative level, must be based
upon the facts of the case involved. There is a dispute between
the sub-district manager and the operator's mine manager over
what was discussed at their meetings, but this makes no difference because unwarrantable failure can in no wise be based on
these meetings and general policies without reference to the
72

circumstances of the violation itself {Tr. 358, 376-377, 920,
933, 1077). Nevertheless, because a full and complete de novo
hearing was held before an administrative law judge of this Commission, the basis upon which the sub-district manager acted
would not in and of itself provide grounds for modifying the (d)
citation in this case unless the evidence on the merits showed no
unwarrantable failure which it does not. See the discussion of
negligence, infra. If an operator wishes to successfully
challenge an intermediate administrative action such as the
sub-district manager's, it would be better advised to make the
attempt where it can prevail on the merits. I set forth my views
on the propriety and effect of the sub-district manager's action
so that if an appeal is taken and the Commission disagrees with
my determination regarding the inspection" requirement of
section 104(d), further remands will be unnecessary.
11

There remains for consideration the penalty case. As set
forth above, the operator admits the violation and has not contested that the violation was serious. I take official notice
that roof falls remain a major source of serious accidents in the
mines.
Next, negligence must be determined. In this connection an
exposition of the facts is appropriate. Near the end of the hoot
owl shift on the morning of May 30, 1985, the section foreman,
Mr. Sikora, assigned the continuous miner operator, William
Palmer, the task of cutting coal in the crosscut going from the
No. 3 entry towards the No. 2 entry (Tr. 615-618). This was the
second cut into the crosscut. The first cut previously had been
taken by someone else (Tr. 437, 440). According to the engineer's map and the witnesses, the first cut was very much off
sight and on an angle (Tr. 189, 197, 269, 297-298, 324, 878-879)
(Op. Exhibit 4). But Sikora did not notice this and he said he
did not check because it was the end of the shift and he was in a
hurry to go home (Tr. 659-660, 718). Palmer also did not look to
see if the first cut was straight or on an angle (Tr. 451). The
crosscut could not have been holed through under supported roof
with just one cut and this was especially true because of the
angled first cut (Tr. 670, 719, 451). However, Palmer did hole
through to the No. 2 entry on one cut, but to do so he went at
least several feet beyond supported roof in violation of the roof
control plan (Tr. 867, 858, 954). Not only did Palmer go beyond
supported roof to cut through but he pushed the coal into a pile
to the further side of the No. 2 entry (Tr. 447, 677). As shown
by the engineer's map, pushing the coal required Palmer to go far
beyond where he should have stopped (Tr. 858, 995) (Op. Exhibit
4). Sikora stated that at the time Palmer was improperly cutting
through the crosscut, he (Sikora) was doing his pre-shift examination for the next shift (Tr. 617-618). He stated that when he
returned, Palmer was cleaning up and he (Sikora) did not notice

73

the wide and deep cut because a danger sign had been hung
(Tr. 623, 626, 655). Therefore, he did not go into the crosscut
(Tr. 620-627). However, testimony of others demonstrates that
the improperly deep and wide cut was visibly obvious as was the
pile of coal (Tr. 177, 869). Sikora said i t was 11 funny 11 he did
not notice the improper cut but again gave the excuse he was in a
hurry to go home (Tr. 687). The on-coming day shift was a maintenance shift and the roof was bolted on the afternoon shift of
May 30 (Tr. 105-106).
The foregoing facts demonstrate an egregious lack of reasonable and due care by the section foreman. When Sikora told
Palmer to cut coal in this crosscut, the cut previously taken was
way off sight. Yet Sikora gave Palmer no instructions about how
to proceed and did not supervise him (Tr. 617-618). Indeed, by
his own admission Sikora did not even recognize the existing cut
was wide because it was the end of the shift and he was in a
hurry to go home (Tr. 659-660, 718). Yet it was Sikora himself
who set the sight lines for the crosscut and as he admitted, it
was his responsibility to see Palmer did not make wide cuts (Tr.
638-639, 661). Moreover, Sikora acknowledged he had heard Palmer
cut a little wide (Tr. 632). In addition, the union safety committeeman testified Palmer was a fast worker who did not bother
to clean up and who had a tendency to go to the limit to get as
much coal as he could (Tr. 306, 334-335, 341). Palmer's own
testimony demonstrates his unreliability both as a continuous
miner operator and as a witness. Thus, Palmer admitted he did
not pay much attention to excessively wide or deep cuts (Tr.
427-428). His attempt to excuse his wide cuts because
a
missing lug was contradicted by every other witness who addressed
the issue {Tr. 422-424, 455, 632-633, 740, 950). So too, his
general justification of his conduct on the grounds the company
encouraged such actions is undercut by his acknowledgment that
management did not tell him to take wide or deep cuts (Tr. 461,
484, 486-487). Finally, Palmer described himself as one of the
fastest workers there is (Tr. 428). The picture is, therefore,
clear. Palmer was a fast and careless worker who gave little, if
any, thought to safety and whose excuses are unsupported by
anyone else and are lost in a maze of self-contradictions.

of

It was to such an individual that Sikora assigned the task
of cutting coal in the crosscut near the end of the shift. But
Sikora turned his back on the time element and on the off sight
nature of the pre-existing first cut, both of which increased the
pre~sure on the continuous miner operator to complete the
crosscut on that shift in one cut. When the circumstances under
which this task was assigned are combined with the nature of the
individual to whom the job was given, what happened was all but
inevitable, i.e. the taking of all coal on one cut and the continuous mine operator in violation by going far beyond supported
roof. The union safety committeeman testified the circumstances
made it "tempting" to take all the coal on one cut (Tr. 329). To
an individual like Palmer it would be virtually irresistible to
get the extra 10 tons in the one cut (Tr. 720). Sikora must have
realized this. He knew Palmer and he knew the conditions under

74

which he was assigning him this task. Sikora's conduct is far
worse than mere lack of supervision. It was he who created the
circumstances under which the violation was all but bound to
happen. And it was he whose first priority was not safety but
getting home as fast as he could at the end of the shift. The
operator put Sikora in his position of supervisory and managerial
responsibility. His careless, reckless and wilful behavior is
attributable to the operator which must bear the consequences.
Southern Ohio Coal Company, 4 FMSHRC 1459 (1982). I conclude the
operator is guilty of gross negligence.~/
Clearly too, Palmer was extremely negligent and since his
work habits were well known, his conduct was foreseeable and
therefore also attributable to the operator, A. H. Smith, 5
FMSHRC 13 {1983). However, for purposes of determ1n1ng assessment of the amount of the penalty in light of negligence,
consideration of Sikora's behavior is sufficient.
The operator's size is large {Tr. 972, 980). In absence of
evidence to the contrary I find imposition of a penalty will not
affect its ability to continue in business. The parties agreed
that since October 1982 there were two violations at this mine,
for going under unsupported roof (Tr. 380). Overall, the
operator had a worse than average history of violations but it
was improving by the time of the hearing, and the operator was
now showing a positive attitude toward safety (Tr. 384-387). I
accept the evidence regarding prior history, but as appears
herein evidence of improvement is after-the-fact insofar as this
case is concerned. Finally, in absence of any evidence to the
contrary I find there was good faith abatement.

In light of the foregoing considerations and in accordance
with the statutory criteria in section llO(i) a penalty of $5,000
is assessed.
ORDER
It is Ordered that the subject 104(d) citation is Modified
to a 104(a) citation.

£!

I have not overlooked testimony regarding the operator's
generally cooperative and positive attitude. But that
evidence cannot overcome what occurred in this case.

75

It is further Ordered that a penalty of $5,000 is assessed
which the operator is ORDERED TO PAY within 30 days from the date
of this decision.

Chief Administrative Law Judge

Distribution:
Patrick M. Zohn, Esq., Office of the Solicitor, U. S. Department
of Labor, 881 Federal Office Building, 1240 East Ninth Street,
Cleveland, OH
44199 (Certified Mail)
Paul W. Reidl, Esq., Nacco Mining Company, Crowell and Moring,
1100 Connecticut Avenue, N.W., Washington, DC 20036 (Certified
Mai 1 )

Thomas M. Myers, Esq., UMWA District 6, 56000 Dilles Bottom,
Shadyside, OH 43947 (Certified Mail)

/gl

76

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

January 15, 1986
TURRIS COAL COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. LAKE 85-12-R
Citation No. 232.3276; 10/16/84

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

Docket No. LAKE 85-31-R
Citation No. 2491962; 12/12/84
Docket No. LAKE 85-32-R
Citation No. 2491965; 12/12/84
Docket No. LAKE 85-35-R
Citation No. 2491973; 12/18/84
Elkhart Mine

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

CIVIL PENALTY PROCEEDINGS

.

v.

Docket No. LAKE 85-53
A.C. No. 11-02664-03547
Docket No. LAKE 85-68
A.C. No. 11-02664-03551

TURRIS COAL COMPANY,
Respondent

Docket No. LAKE 85-70
A.C. No. 11-02664~03552
Elkhart Mine

ORDER DENYING MOTION TO APPROVE SETTLEMENT
On January 13, 1986, Petitioner filed a motion to dismiss
these proceedings and approve a settlement reached between
the parties.
Four alleged violat.ions are involved. The first is included
in Order 2323276 which charges a violation of 30 C.F.R.
§ 75.200 because of an alleged inadequately supported roof. ·
The violation was originally assessed at $900, and the parties
propose to settle for $750. The motion states that the
violatioh resulted from a high degree of negligence-~nd that
"if a roof fall would have occurred two miners could have
been killed." The order indicates that the occurrence

77

of the event against which the cited standard is directed
was highly likely. The motion states that the proposed
assessment is reduced because of an amendment to the order
which presumably (this is not clear) reduces the area
of unsupported roof. In my judgment this is not a sufficient
reason for the proposed reduction.
The two other roof control violations contained in
Docket No. LAKE 85-70, the parties propose to settle for
the amount originally assessed.
Order 2491973 (issued under section 104(d) (2)) was
originally assessed at $850. It charged a violation of 30
C.F.R. § 75.503 because of a permissibility violation on a
battery powered scoop. The motion states that the violation
resulted from a high degr~e of negligence and that one miner
could have been killed,fiom.operating equipment not in
permissible condition. The motion further states that
Petitioner has agreed to amend the citation from a 104(d) (2)
order to a 104(a) citation and that Respondent "did not
intentionally operate its machine in violation of the Act.
In my judgment, the motion does not show justification for
the reduction in the penalty, based on the criteria in
section llO(i) of the Act.
Therefore, the motion to dismiss and approve settlement
is DENIED. The matter will be rescheduled for hearing by
a subsequent notice.

;/,
J

.,
4

.

.

l ,.,,f

ti,/., v :.:_, !;, /Jff1 v

'

_/

Ir f:.' CJ.g-:, '!

,.

j

c:/t

James A. Broderick
Administrative Law Judge

Distribution:
Kathleen A. Phillips, Esq., Turris Coal Company, P.O. Box
576, Houston, TX 77001 (Certified Mail)
Rafael Alvarez, Esq., U.S. Department of Labor, Office of
the Solicitor, 230 s. Dearborn St., 8th Floor, Chicago, IL
60604 (Certified Mail)
slk

78

II

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

JAN 16 1986
SECRETARY OF LABOR,
. CIVIL.PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
JIM WALTER RESOURCES, INC.,
Respondent.

Docket No. SE 85-134
A.C. No. 01-01401-03609

.:
.

No. 7 Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

The Solicitor has filed a motion to approve a settlement for the two violations involved in this matter. The
originally assessed amounts totalled $2,500 and the proposed
settlements are for $1,200.
The first citation was issued for failure to make a
diligent search for a fire after cutting operatipns. After
an acetylene and oxygen torch was used to cut a belt header,
employees checked for fire and found nothing. But several
hours after again searching and using appropriate measuring
instruments a fire was found. The Solicitor states inter
alia, that the only evidence he has that a diligent search
was-not made was the failure to find the fire immediately. I
have some difficulty understanding the Solicitor's representations but interpret him to be saying that the degree qf diligence shown by the operator was not as great as it should
have been rather than the inspector's original thought that
there was no diligent search. On.th~s'basis I accept the
Solicitor's representation and approve the recommended
settlement of $300.
The second citation·was issued for an accumulation of
combustible materials. The Solicitor states .that although an
accumulation admittedly existed, MSHA does not know its
extent. On this basis I accept the recommended settlement
which is a substantial amount and adequately reflects the
described gravity of the violation.

79

Accordingly, the recommended settlements are Approved
and the operator is Ordered to Pay $1,200 within 30 days from
the date of this decision.

:

\

•

\

Paul Merlin
Chief Administrative Law Judge

Distribution:
L. K. Cooper, Esq., Office of the Solicitor, U.S. Department
of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL
35203 (Certified Mail)
Harold o. Rice, Esq., Jim Walter Resources, Inc., P.O. Box

C-79, Birmingham, AL 35283 (Certified Mail)

Robert Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O.
Box C-79, Birmingham, AL 35283 (Certified Mail)
H. Gerald Reynolds, Esq., Jim Walter corporation, P.O. Box
22601, Tampa, FL 33622 (Certified Mail)
Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street,
N.W., Washington, DC 20006 (Certified Mail)
rbg

80

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0.C. 20006

January 16, 1986

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 85-64-M
A. C. No. 04-04230-05506

v•

Quarry~Quarry

Plant

SOUTHWESTERN PORTLAND CEMENT
COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

The Solicitor has filed a motion to approve settlements of
the three violations involved in this matter. The original
assessments totaled $1,800, and the proposed settlements tota1
$600.

Citation No. 2364967 was issued for a-violation of
30 C.F.R. § 56.14-1 when an inspector observed that the clinker
belt conveyor tail pulley was not guarded. The original assessment for this violation was $600, and the proposed settlement is
$200. ·The original assessment was based on the operator's
failure to abate the violation which had been previously reported
to management by the company's safety department. The Solicitor
advises however, that the violation itself was of low gravity and
that the operator which is large has an exceptionally small prior
history of violations. Also the proposed settlement is almost
twice as much as would have been assessed under the regular
formula. I accept the Solicitor's representations and approve
the proposed settlement. Howeve~. a failure to abate promptly is
a matter for concern and the operator should take steps to see
this does not happen again because if it does. I wi11 not accept
such a settlement from the So1icitor regarding this operator.
Citation Nos. 2364968 and 2364969 were issued for violations
of 30 C.F.R. § 56.9-7 and 30 C.F.R. § 56.11-12, respectively. An
inspector observed lack of an emergency stop cord on the clinker
belt and unguarded openings at the tail pulley area of the belt.
The Solicitor advises that the same considerations already set
forth apply here as well. Accordingly, I approve the proposed
settlements of $200 for each of these violations.

81

Accordingly, the operator is ORDERED TO PAY $600 within 30
days of the date of this decision .

....-.:-----~r(~

,

Paul Merlin
Chief Administrative Law Judge
Distribution:
Joseph Bednarik, Esq., Office of the Solicitor, U. S. Department
of Labor, Room 3247 Federal Building, 300 North Los Angeles·
Street, Los Angeles, CA 90012 (Certified Mail)
Mr. Norris M. Overly, Safety & Training Director, P.
Victorville, CA 92392-0623 (Certified Mail)
/gl

82

O.

Box 937,

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

l C; 1~ •.
' '~ "
'

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

......

i

"

CIVIL PENALTY PROCEEDING
:

:
:

.

v.

Docket No. KENT 85-98
A.C. No. 15-13881-03555

: ·Pyro No. 9 Slope
William Station

PYRO MINING COMPANY,
Respondent

DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the
Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Petitioner;
Bruce Hill, Director of Safety and Training,
Pyre Mining Company, Sturgis, Kentucky, for
the Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 820(a).
Petitioner seeks a civil penalty assessment in the
amount of $206 against the respondent for an alleged violation
of mandatory safety standard 30 C.F.R. § 75~1103-4(a)(l). The
respondent filed a timely answer contesting the alleged violation, and a hearing was convened in Evansville, Indiana, on
December 3, 1985. The parties waived the filing of posthearing briefs. However, I have considered the oral arguments
made by the parties during the hearing in the adjudication of
this case.
Issues
The issues presented in this case are (1) whether the
conditions or practices cited by the inspector constitute a
violation of the cited mandatory health standard, and (2) the
appropriate civil penalty to be assessed for the violation,

83

taking into account the statutory civil penalty criteria
found in section llOCi) of the Act •
.Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seg.
2.

Section llOCi> of the 1977 Act, 30 u.s.c.

3.

Commission Rules, 20.C.F.R.

§

§

820Ci).

2700.1 et seg.

Stipulations
The parties stipulat~d that at all times relevant to
this case, the overall coal production for the respondent
operating company was 5,020,840 tons, and that the production
for the Pyro No. 9 William Station Mine was 2,041,542 tons.
The parties stipulated that the payment of the assessed
civil penalty will not adversely affect the respondent's ability to continue in business. They also stipulated that the
violation was abated in good faith by the respondent (Tr.
26).
Discussion
section 104Ca> 11 S&S 11 Citation No. 2505477, issued on
January 7, 1985, cites a violation of 30 C.F.R.
§ 75.1103-4(a)(l), and the condition or practice is stated as
follows:
A violation was observed on the No. 3
unit, I.D. 003 in that the automatic fire sensor line was not installed the entire length
of the beltline going to the unit 3 tailpiece.
The automatic fire sensor line was installed
up to within two crosscuts outby the tailpiece
(140 ft. from the end of the sensor line to
the tai lp iece > •
Petitioner's Testimony
MSHA Inspector George Siria testified as to his background and experience, and he identified exhibit P-7 as a
copy of the citation issued by Inspector F'rank R. Gerovac on
January 7, 1985.. Mr. Siria stated that Mr. Gerovac was relatively new in the area and was not familiar with the mine or
MSHA's policies and that he accompanied Mr. Gerovac in order

84

to be available should any problems arise. He confirmed that
Mr. Gerovac has retired for health reasons and is presently
residing somewhere in Michigari (Tr. 33-41).
Mr. Siria confirmed that he also conducted an inspection
of the mine on January 7, 1985, while he was with Mr. Gerovac,
and that he issued a citation for some violative conditions.
He identified exhibit P-5 as an official copy of an MSHA
inspection report which indicates that he and Mr. Gerovac
inspected the mine and issued citations. He confirmed that
the report verifies that Mr. Gerovac issued the citation for a
violation of section 75.1103-4(a)(l) after finding that the
fire sensor line had not been installed for the entire length
of the beltline on the number three unit (Tr. 43).
Mr. Siria stated that,the hazard associated with the
violation concerns a lack of warning in the event of a fire
on the beltline. The fire sensors are activated by a sensoring head located at 125-foot distances, and they are required
to alert miners in the event of a fire on the conveyor belt.
The sensors are interconnected with the warning device boxes
which sound an alarm in the event of a fire. Possible
sources of ignition along the beltline would be loose coal,
coal dust, and float coal dust (Tr. 45-57).
On cross-examination, Mr. Siria confirmed that
Mr. Gerovac's prior experience was in metal and non-metal
inspections, and he did not know the extent of his experience
in underground coal mining. He confirmed that he did not
travel the belt with Mr. Gerovac during his inspection, and
petitioner's counsel stipulated that Mr~ Gerovac did not
issue any citations for coal spillage on the beltline during
his inspection (Tr. 49). Counsel also stipulated that no
citations were issued for lack of water or rock dust on the
beltline CTr. 52-53).
Mr. Siria did not know when the belt was last added on
the unit in question, and could not state whether it was
installed within 24 hours of the issuance of the citation by
Mr. Gerovac (Tr. 54). When asked to explain his understanding of an exception found in section 75.1103-4Ca)(l),
Mr. Siria responded as follows at (Tr. 54-56):
Based on what you just read, if the belt
hypothetically speaking -- if the belt had
been put on in the past twenty-four hours,
would there be a citation associated with what
was written.
Q.

85

A. Really.
book • • •

you can't always go by the

MR. HILL:

Just tell me yes or no.

WITNESS:

Repeat the question.

Q. If, according to the standard, the belt
had been put on within twenty-four hours of
the citation and it was within a hundred and
twenty-five feet, would there be a violation.

A.

I didn't make the belt.

BY THE COURT: No, -h~ ~ants you to assume that
it was. In other words, what he 1 s trying to
establish is whether or not this section would
apply in this case given the assertion that
• • • the argument that twenty-four hours
hadn't elapsed yet and, therefore, they
weren't required to have the belt sensors at
the places where Mr. Gerovac thought they
should be.
WITNESS: Your Honor, it's hard to answer that
question yes or no. There's always extenuating circumstances.
BY THE COURT: All right, you can explain whatever • • • go ahead and explain that.
A. If the • • . if I felt that there was a
danger with the beltline being back, with the
fire sensor line being a • • • ah, more than a
hundred twenty-five outby • • • really, I
mean, I'm not meaning argumentative and I'm
not trying to be smart, but I wouldn't care
when the belt had been moved if I thought
there was a danger to a coal miner, I would
require the belt be • • • the sensoring line
to be moved up if there was any • • • this is
a dust problem area and, like I previously
stated, •
Q. Based on what has already been stipulated,
do you know of any problems in that area that
would have dictated that to be considered a
problem area to the point a citation would be
written beyond the standard of the law.

86

A. I'm sure if • • • with Mr. Gerovac's observation and his judgment, if there had been
another violation of the standard, he would
have issued additional citations.
So if there would have been additional
problems that would have warranted writing the
citations above and beyond the standard of the
law, he would have also written citations to
correspond with that.

Q.

A.

In his judgment.

Q.

And within his-j~dg~ent, he did not.

A.

We don't see them.

Mr. Siria stated that the presence of coal dust mixed
with fire clay on the unit did not present an ignition problem, and even though he independently found an exposed cable
wire in another area during his inspection, any fire resulting from that condition would not be detected by the required
sensor in question in the area cited by Mr. Gerovac because
the cable was too far from the cited belt <Tr. 58) •. Mr. Siria
found no excessive levels of methane on the unit CTr. 60), and
he confirmed that he did not personally observe the conditions
cited by Mr. Gerovac CTr. 61).
Respondent's Testimony
.
Ray Taylor, respondent's chief electrician testified
that his responsibilities include the operation of the beltlines at the mine and to insure that they are properly
installed. He was on the unit on the day of Mr. Gerovac's
inspection. He stated that the belt extension was installed
during the 2:00 a.m. shift on January 6th, and it was moved
two or three crosscuts for a dis~ance of approximately
120 _feet. The fire sensors were installed by his crew during
the day shift on January 7th within 24 hours of the extension
and installation of the belt, and he believed they were
installed before 4:00 p.m. that day (Tr. 62-70).
Mr. Taylor stated that based on his interpretation of
the regulation, once a belt extension is completed, the
respondent has 24 hours within which to install the sensors.
In hi~ view, regardless of the number of feet that the belt
is extended, the respondent would still have 24 hours within
which to advance and install the sensor line. He confirmed

87

that he was present when the mechanic arrived to install the
sensor, but was not present when he completed the job (Tr.
71-72). He confirmed that the first sensor line was installed
within 24 hours of the installation of the belt (Tr. 74). The
belt extension was installed by the morning of January 7, and
the installation of the sensor line began before he left the
unit that day, and the citation was aba~~d on January 8 (Tr.
75).
Mr. Taylor described the fire sensor system and the
installation procedures, and he confirmed that in the event
of a malfunction of one of the sensors, the entire system
will malfunction and a warning light or alarm will indicate
that the faulty sensor needs to be repaired (Tr. 103-104).
Arguments Presented by the Parties
0

Petitioner's interpretation of the standard is that it
requires that belt sensors be installed at the beginning and
end of a beltline regardless of its length. Petitioner maintains that the regulatory exception allowing 24 hours for the
installation of sensors only applies to the distances between
the beginning and end of a beltline and does not apply to the
requirement that a sensor be at the end of the beltline
regardless of its distance. Assuming a beltline is 375 feet
long, petitioner argued that a sensor must be installed at
the beginning and end at the time the belt or any extension
is installed, and that the remaining sensors in between the
beginning and end may be installed within 24-hours (Tr. 84,
92, 128-129).
Petitioner argued that since there is electrical power
at the belt tailpiece, and since shuttle cars are operating
in that area, there is a likelihood of coal accumulations and
a potential £ire at that location, and the rationale of an
interpretation that a sensor is required at the end of the
belt is a reasonable one (Tr. 96).
Assuming that the regulatory exception is applicable to
the end of the belt line, which had been extended for a distance of 140 feet, petitioner concedes that the respondent
would be allowed 24 hours within which to install a sensor at
the 125 foot location (Tr. 98). Petitioner agrees that the
inspector was apparently concerned about the lack of a sensor
at the end of the 140 foot extended belt, and it took the
position that subparagraph (1) of the regulation required a
sensor at the end notwithstanding the 24 hour exception found
in subparagraph (3) (Tr. 99).

88

Inspector Siria explained that the respondent's beltlines begin as belt headers and extend to the tailpiece. As
the belt is further extended, the tailpiece is advanced in an
inceremental series of headers and tailpieces (Tr. 108-109).
Respondent explained that the belt is advanced by its production personnel, and once this is done, its maintenance personnel will advance the fire sensor line CTr. 116-117).
The respondent explained that its belts are advanced for
distances of 120, 180, or 210 feet at a time depending on the
crosscut centers. The fire sensors are purchased in 500 foot
rolls, with sensors at 75 foot intervals. The sensors are
premeasured, and the sensor li·ne is uncoiled and advanced for
installation after the belt has been advanced (Tr. 103).
Assuming the belt is advaQceµ 140 feet, as it was in this
case, the sensors would' be.advanced for this same distance up
to the tailpiece end of the extended belt, and respondent
believes that the regulatory exception permits a 24-hour
period for this to be done (Tr. 87).
The respondent does not dispute the fact that the fire
sensor line was not immediately advanced for 140 feet at the
time the belt was extendeq that distance. However, respondent takes the position that when the distance from the tailpiece to the loading point reaches 125 feet, it has 24 hours
to advance the sensor heads to the end loading point (Tr.
127). On the facts of this case, the respondent points out
that Inspector Gerovac arrived at the scene four hours after
the belt had been extended, and even though it had been
extended for more than 125 feet, the respondent believes that
it was not required to immediately advance the fire sensor
line because of the 24 hour "grace period" exception found in
subparagraph C3> of section 75.1103-4(a) (Tr. 85-851 101).
The respondent points out that the fire sensor line had
been extended up to the point where the belt extension
started, and that automatic fire suppression devices were
located at the tailpiece feeders (Tr. 113). In response to
the petitibner's assertion that the regulatory exception
applies only to the 125 foot belt increments, or the points
between the beginning and end, respondent points out that
requiring the immediate installation of a sensor at the end
of the belt while allowing 24 hours to install one in the
middle makes no sense because the sensors operate in sequence
and not independently of each other. A sensor located at the
end of a belt will not operate until such time as the middle
one is installed CTr. 94).

Inspector Siria was recalled as the court's witness and
he was asked to ·explain his interpretation of the exception
found in section 75.1103-4(a)(l). He stated that he personally preferred the application of subsection (1) which
requires sensors at the "beginning and end of each belt
flight," and that he did not fully understand the application
of the exception found in subparagraph (3) {Tr. 106). When
asked to give an opinion as to what the standard writers had
in mind when the regulation was promulgated, he responded "I
don't know what this guy was thinking about when he wrote
that" (Tr. 107-108).
Mr. Siria candidly conceded that accepting the petitioner's argument that the 24 hour exception applies only to
the sensors between the-b~g~nning and end of a beltline could
result in a 500 foot· belt without fire sensors between the
beginning and end of the belt over a 24-hour period. When
asked to explain the logic of requiring an immediate sensor
at the end of the belt and not in the middle, he responded
"because that's the most likely place for a fire to begin, at
the tailpiece" <Tr. 108).
When asked for his opinion about the theory of the
respective positions of the parties in this case, Mr. Siria
responded "I think they're both right" (Tr. 110), and he
explained further as follows (Tr. 113-114);
I think you have twenty-four hours to get
the sensoring head if it's in excess of a
hundred and twenty-five feet. But I think the
sensoring are supposed to be from the beginning to the end of the belt like it states in
the first part of the paragraph. But like the
guy • • • like I said, maybe the guy that wrote
this said • • • when they extend their sensoring wire, they're automatically on a hundred
and twenty-five, they don't have to put them on.
Ray said now they're seventy-five. So they
don't have to add these sensoring heads. But
I'm sure that when the law first came into
effect, they put a line in and they added sensoring heads later. But I think, like the
first paragraph, like Tom, Mr. Grooms said, it
should be from the beginning to the end. And I
th~nk • • • like Bruce says that it should be
• • • they should have twenty-four hours to put
that in, any in between. Now, this would be an
exception to them because they don't have to

90

put them in: they're already built in, they
come built in.
Findings and Conclusions
Fact of Violation
The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 75.1103-4(a)(l), which provides
as follows:
(a) Automatic fire sensor and warning
device systems shall provide identification of
fire within each belt flight (each belt unit
operated by a belt_d7ive).
'
Cl) Where used,
sensors responding to
temperature rise at a pGint (point-type sensors) shall be located at or above the elevation of the top belt, and installed at the
beginning and end of each belt flight, at the
belt drive, and in increments along each belt
flight so that the maximum distance between
sensors does not exceed 125 feet, except as
provided in paragraph (a)(3) of this section.
(Emphasis added.)

The exception referred to in paragraph (a)(l), provides
in relevant part as follows:
(3) When the distance from the tailpiece
at loading points to the first outby sensor
reaches 125 feet when point-type sensors are
used, such sensors shall be installed and put
in operation within 24 production shift hours
after the distance of 125 feet is reached.
* * * (Emphasis added.)
The parties agreed that the respondent's belt fire sensors are point-type sensors. The term "flight" as applied to
a belt system is defined by the Dictionary of Mining,
Mineral, and Related Terms, U.S. Department of the Interior,
1968 Edition as "a term sometimes applied to one conveyor in
a tandem series."
Inspector Gerovac noted in his citation that the required
fire sensor line in question had been installed up to the
flight connection point in question at the time he viewed the
cited condition. The parties assumed and agreed that the

91

•

respondent was in compliance up to the point of the newly
installed belt flight connection, and that the sensor line up
to that point was in place and functional (Tr. 97). They also
agreed that at that point in time the newly extended belt
extension or "flight" had been extende4 in excess of 125 feet
for a distance of 140 feet and the fire sensor line had not
been immediately extended to the end of the newly advanced
belt flight. The termination notice issued by Inspector
Gerovac states that the violation was abated by extending the
fire sensor line to the belt tailpiece. Since the fire sensor
line is one that is simply uncoiled and advanced as the belt
flight is advanced, I assume that the respondent uncoiled it
and extended it for 140 feet to the end of the newly extended
tailpiece and loading point location to achieve abatement and
compliance.
It seems to me that the starting point for the application of the regulatory language found in section 75.1103-4(a)
is the newly installed belt flight connection location.
According to the credible testimony the belt flight was
installed on the immediate shift prior to the inspector's
arrival, and it had been in place some 4 hours prior to his
arrival. The parties agreed that the fire sensor line was in
place up to and including th~ belt flight connection location, but disagree as to what was required from that point on.
The petitioner relies on the language. found in paragraph (1)
which requires the installation of sensors at the beginning
and end of each belt flight and in increments along each belt
flight so that the maximum distance between sensors does not
exceed 125 feet. The petitioner's interpretation of this
regulatory language is that it imposes a requirement that
sensors be installed at the beginning and end of each belt
flight. Since there was no sensor at the end of the newly
extended belt flight in question, petitioner maintains that a
violation has been established.
With regard to the application of the 24 hour exception
found in paragraph (3), petitioner's interpretation is that
it only comes into play when the extended belt flight tai·lpiece reaches a point 125 feet from the last outby sensor at
the flight connecting point. In the instant case, petitioner
agrees that the respondent had 24 hours from the time the
belt flight in question was installed to advance the fire
sensor 125 feet in order to comply with the requirement that
sensors be located at distances not to exceed 125 feet, but
insis_ts, that the sensor at the end of the 140 foot belt
flight should have been installed immediately upon completion
of the installation of the advanced belt flight. In short,
the petitioner suggests that the sensor line should have been

92

extended up to and including the end of the 140 flight extension when that work was completed.
The respondent's interpretation of the regulatory language found in paragraphs Cl) and (3) of section 75.1103-4Ca),
is that the 24 hour exception applies to the sensors at the
beginning and end of a belt flight as well as the sensors
which are required at intervals of 125 feet along the belt
flight. Respondent's representative conceded that when the
belt was advanced 140 feet, sensor's were required at the
beginning and end of that belt flight. However, he took the
position that the fire sensor line would be advanced to the
beginning of the flight when the belt is advanced, and that
the respondent would still have 24 hours within which to
advance the line to the ·end ~f the flight (Tr. 87-88).
Respondent's representative argued that section 75.1103-4
does not impose any time period within which the sensors must
be located at the beginning and end of a belt flight, and he
asserted that since the regulation does not differentiate as
to when sensors must be installed at the beginning and end of
a belt flight, the respondent is free to rely on the 24 hour
for the installation of sensors at both locations (Tr.
99-100). His interpretation of the exception noted in paragraph Cl) is that it also applies to the end of a belt flight
(Tr. 101).
Respondent argues that requiring a sensor at the end of
the belt flight immediately upon the completion of the installation of the belt flight, while permitting 24 hours to
install one at the beginning, is inconsistent because the
beginning and intervening 125-foot locations will be without
fire sensor protection for a 24-hour period, while the end of
the belt will be immediately protected. Petitioner maintains
that requiring a sensor at the end immediately within the
completion of the belt flight will insure fire protection at
the critical tailpiece loading point where equipment is operating and coal accumulations or spillage are most likely to
occur. Since the remaining portion of the belt will be protected with sensors located at intervals of 125 feet, petitioner maintains that requiring the immediate location of the
sensor at the end of the belt will simply insure that the
entire belt flight has fire sensoring devices when it is
installed and operational.
Petitioner maintains that the acceptance of the respondent's interpretation of the standard will result in the use
of an unprotected belt flight during coal production. Since
the 24 hour exception applies to production hours, petitioner

93

points out that the respondent could be operating a belt during two or more production shifts with no fire sensor at the
end loading point, and that the standard was never intended
to be interpreted in such a way as to permit such a hazard to
exist.
The respondent asserts that allowing 24 hours to install
intervening sensors on a belt flight while at the same time
insisting that a sensor be immediately installed at the end
when the flight is installed is illogical because its belt
sensors operate in sequence or in tandem much like a "string
of Christman lights," and that in the event one sensor malfunctions, the entire sensor system will not work. In support of this claim, the respondent relies on the testimony of
its Chief Electrician Ray~.Tc9;ylor ..
Mr. Taylor's testimony does not support the respondent's
suggestion that one malfunctioning sensor along a belt flight
will render the entire sensor system useless or cause it to
shut down. Mr. Taylor testified that if one sensoring device
should fail at one location along a belt flight it will trigger an alarm or signal to indicate that there is a malfunction or fault in the system which needs attention. He specifically stated that one malfunctioning sensor will not shut
down the entire sensoring apparatus, but will simply give an
alert that repairs are required (Tr. 103-104). The only malfunction which will shut the entire system down is one caused
by the cutting of the sensoring cable itself (Tr. 104).
Paragraph (1) states that where used, sensors must be
located at the beginning and end of a belt flight. This language is clear and unequivocal. In my view, once a belt
flight is installed sensors must be located at the beginning
and end of the belt flight regardless of the length of the
flight. If the flight is 100 feet long, two sensors are
required; one at the beginning and one at the end. If the
flight is 150 feet long, three sensors are required; one at
the beginning, one at the end, and one at an intervening location not in excess of 125 feet from the first one. As additional belt flights are added, the requirements for additional
sensors must be determined by using the last installed sensor
at the new tailpiece location as a new starting reference
point.
With regard to the exception found in paragraph (3), I
agree with the petitioner's interpretation that it applies
only to the location of sensors which must be located at
intervening locations along a belt flight not in excess of

94

125 feet of the last installed sensoro In my view, paragraph
(1) imposes two separate requirements for the installation of
fire sensors along a belt flight. The first requirement is
that sensors be located at the beginning and end of a belt
flight, and a second requirement is that sensors be located
in increments and distances not to exceed 125 feet. The regulatory exception in my view modifies the requirements for
locating sensors at locations which exceed 125 feet, and does
not affect the requirement that they be at the beginning and
end of a belt flight. The first sentence of the exception
found in paragraph (3) provides that when the distance from a
belt tailpiece to the first outby sensor reaches 125 feet
such sensors shall be installed and put in operation within
24 production shift hours after the 125 feet distance is
reached. Thus, I conclud~ ~hat the phrase "such sensors"
only applies to the sen'sors which are required at 125 . foot
intervals along a belt flight, and not to those required at
the beginning and end of the flight.
On the facts of this case, I conclude and find that the
petitioner's interpretation and application of the standard
in question is correct, and I reject the interpretation
advanced by the respondent. I conclude and find that a sensor was required at the point where the cited belt flight
reached a distance of 125 feet as well as at the end of the
flight. Since the flight had been installed 4 hours prior to
the arrival of the inspector on the scene, I conclude that
the exception found in paragraph (3) of section 75.1103-4
allowed the respondent an additional 20 production shift
hours within which to advance and install a sensor at the
125 foot distance, but did not allow the respondent any additional time within which to advance and install a sensor at
the end of the flight. I conclude that a sensor at the end
of the belt flight was required immediately upon the installation of the operational belt flight. Since the belt flight
was in use and operational at the time the citation was
issued, and since there is no dispute that a sensor was not
located at the end of the flight, I conclude that a violation
has been established and the citation IS AFFIRMED.
History of Prior Violations
Exhibit P-1 is a computer print-out summarizing the
respondent's complian·ce record for the period January 1, 1983
through January 6, 1985. That record reflects that the
respondent paid civil penalty assessments totalling $75,033
for 800 violations, 29 of which were for violations of the
fire sensor requirements found· in 30 C.F.R. § 75.1103,
75.1103-1, 75.1103-4, and 75.1103-5. Taking into account the

size of the respondent's mining operations, I do not consider
the respondent's history of compliance to be a particularly
good one, and I have considered this in the civil penalty
assessment made for the violation in question in this case.
Size of Business and Effect of Civil Penalties on the
Respondent's Ability to Continue in Business
The parties have stipulated ·as to the scope of the
respondent's mining operations and agreed that the payment of
civil penalty will not adversely affect the respondent's ability to continue in business. I adopt these agreements as my
findings on these issues.
Good Faith Abatement
The parties stipulated that the conditions cited as a
violation in this case were corrected in good faith by the
respondent within the time fixed by the inspector. I agree
and conclude that the respondent exercised good faith in abating the violation.
Negligence
I conclude and find that the respondent knew or should
have known of the requirement for locating the sensor at the
end of the belt flight in question and that its failure to
advance the sensor line before the inspector found the violative condition is the result of its failure to exercise
reasonable care. Although I have taken into account the testimony of Chief Electrician Taylor that work had begun to
advance the sensor line during the shift when the violation
was issued, the fact is that the line was not extended to the
end after the belt flight was installed. Considering
Mr. Taylor's interpretation of the standard, there is a
strong inference that had the shift ended, the respondent
would have waited until subsequent shifts to advance the line
to the end of the belt.
Gravity
I conclude and find that the violation was serious.
Failure to extend the fire sensoring device to the end of the
belt flight after it was installed presented a hazard in that
in the event of a fire at the end of the belt, there would be
no warning device available to alert the miners of such a
hazard. Although the respondent's representative asserted
that a fire suppression device was installed at the end of the
belt, there is no credible testimony to support his assertion.

96

Even if the fire suppression device was present, the lack of a
warning device still presented a hazardous condition.
Significant and Substantial Violation
There is no credible testimony to support a finding that
the violation in this case was significant and substantial.
The burden of proof in this regard is on the petitioner, and
since the inspector who issued the citation did not testify
as to any factors which could contribute to an accident, I
have no factual basis, other than the fact that the sensor at
the end of the belt was missing, to support an '1 S&S" finding.
Inspector Siria did not view the cited conditions, and he was
not with Inspector Gerovac when the citation was issued.
Under the circumstances; t.h~ "S&S" finding in this case IS
VACATED.
Civil Penalty Assessment
On the basis of the foregoing findings and conclusions,
respondent is assessed a civil penalty in the amount of $175
for section 104(a) Citation No. 2505477, issued on January 7,
1985, for a violation of 30 C.F.R. § 75.1103-4(a)(l).
ORDER
The respondent IS ORDERED to pay a civil penalty in the
amount of $175 within thirty (30) days of the date of this
decision. Payment is to be made to MSHA, and upon receipt of
same, this proceeding is dismissed.

/~~~~~
Administrative Law Judge

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S.
Department of Labor, 280 U.S. Courthouse, 801 Broadway,
Nashville, TN 37203 {Certified Mail>
Mr. Bruce Hill, Safety Manager, Pyro Mining Company, P.O.
Box 267, Sturgis, KY 42459 (Certified Mail)
/fb

97

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

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

PENALTY PROCEEDING
.:• CIVIL
Docket No. KENT 85-181
:

v.

A.C. No. 15-13881-03568

:
•
•

.. Pyro
No. 9 Slope
William Station

PYRO MINING COMPANY,
Respondent

DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the
Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the petitioner1
Bruce Hill, Director of Safety and Training,
Pyro Mining Company, Sturgis, Kentucky, for
the Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llOCa) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 820(a).
Petitioner seeks civil penalty assessments against
the respondent for three alleged violations of certain mandatory safety standards found in Part 75, Title 30, Code of
Federal Regulations. The respondent filed a timely answer
contesting the alleged violations, and a hearing was convened
in Evansville, Indiana, on December 3, 1985. The parties
waived the filing of posthearing briefs. However, I have
considered the oral arguments made by the parties during the
hearing in the adjudication of this case.
Issues
The issues presented in this case are (1) whether the
conditions or practices cited by the inspector constitute
violations of the cited mandatory safety standards, and

98

(2) the appropriate civil penalty to be assessed for the violations, taking into account the statutory civil penalty
criteria found in section llOCi> of the Act.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seg.

u.s.c. § 820(i).

2.

Section llOCi> of the 1977 Act, 30

3.

Commission Rules, 20 C.F.R. § 2700.1 et seg.

Stipulations
The parties stipul ated ·that at all times relevant to
this case, the overall coal production for the respondent's
operating company was 5,020,840 tons, and that the production
for the Pyro No. 9 William Station Mine was 2,041,542 tons.
1

The parties stipulated that the payment of the assessed
civil penalties will not adversely affect the respondent's
ability to continue in business. They also stipulated that
the violations were abated in good faith (Tr. 26).
Procedural Ruling
During the course of the hearing in this case, the parties raised the question of the validity of the section
104(d)(2) unwarrantable failure order issued by the inspector.
In a bench ruling, I held that the "unwarrantable failure"
issue in connection with the order is not an issue in a civil
penalty case. I also ruled that the validity of the underlying order is irrelevant, and I advised the parties that the
issue here is whether or not a violation of mandatory safety
standard 30 C.F.R. § 75.316 occurred, and if so, the appropriate civil penalty which should be assessed taking into
account the civil penalty criteria found in section llOCi) of
the Act.
Discussion
Section 104{d)(2) Order No. 25C8809, issued on May 16,
1985, cites a violation of 30 C.F.R. § 75.316, and the condition or practice is stated as follows:
The approved ventilation, methane and
dust control plan (approved 2/28/85 see page 1
paragraph A) was not being followed on the

99

No. 5 unit, I.D. 005 because permanent stoppings were not installed up to the loading
point Ctailpiece of the belt) on the intake
side. The permanent stoppings terminated two
crosscuts outby the loading point.
Section 104(a) "S&S" Citation No. 2508577, issued on
June 3, 1985, cites a violation of 30 C.F.R. § 75.400, and
the condition or practice is stated as follows:
A violation was observed on the No. 3
unit Sec. ID 003 in that an accumulation of
loose coal approximately 4 feet wide, 14 feet
long and 18 inches in depth was present on the
north side of the Fatio feeder. The accumulation of loose coai was ·an a trailing cable of
one of the joy shuttle cars.
Section 104Ca) "S&S" Citation No. 2508574, issued on
May 23, 1985, cites a violation of 30 C.F.R. § 75.400, and
the condition or practice is stated as follows:
A violation was observed on the No. 3
unit ID No. 003 in that an accumulation of
loose coal approximately 3 to 8 inches in
depth, 10 feet wide, and 30 feet long was
present in front of the ratio feeder in the
belt entry of this unit. Loose coal also had
accumulated around side of feeder on and
around the main contact switch panels.
Petitioner's Testimony
MSHA Inspector James Franks testified that he conducted
a section 103(i) spot inspection of the mine on May 16, 1985,
and confirmed that he issued section 104(d)(2) Order No.
2508809 because of a violation of the respondent's ventilation and methane and dust-control plan. The mine was on a
"spot inspection" status because it liberates in excess of
200,000 cubic feet of methane in a 24-hour period. He identified exhibit P-9 as the applicable plan in question and confirmed that the respondent failed to install permanent stoppings up to the loading points between the intake aircourse
and beltline as required by Paragraph A, pg. 1 of the plan.
Two crosscuts had been developed and no stoppings were
installed as required by the plan.
Mr. Franks identified exhibit J-1, as a sketch of the
area where the violation occurred. The sketch was made from

100

notes that he took during the inspection, and he identified
the two stoppings or brattices which were not installed as
required by the plan. He indicated that the stoppings were
required to be constructed with concrete blocks and mortar up
to the loading point in order to provide a smoke-free intake
escapeway for the use of miners in the event of an emergency
such as a mine fire. The failure to provide the required
stoppings increased the chances of a fire spreading. One of
the crosscuts had no curtain across it, and it was possible
that the other one did. The stoppings are also required to
isolate the belt in the event of a fire, and to insure adequate ventilation and air control on the beltline (Tr.
135-143).
Mr. Franks stated th~t .coal was being mined at the time
of his inspection, and that four entries were being driven to
develop a longwall. He observed no stopping materials or
work being performed to erect the stoppings in question, and
he discussed the matter with the face boss and with respondent's safety manager Tom Hughes. They informed him that
they intended to install the stoppings, but Mr. Franks saw no
evidence of any work being done to accomplish this (Tr. 145).
Mr. Franks explained the reasons for issuing a section
104(d)(2) order, and while he believed that the respondent
was going to install the stoppings, he saw no evidence of any
materials in the area and saw no work taking place which
would indicate when this would be done. His impression was
that the respondent wanted to run coal and build the stoppings
when they got around to doing it. Under the circumstances, he
believed that there was a high degree of negligence and that
is why he issued the order (Tr. 147).
Mr. Franks confirmed that he did not consider the violation to be "significant and substantial" because the ventilation was good and he found no dangerous amounts of methane
present at the faces. He did not believe that the circumstances presented indicated a reasonable likelihood of an
accident (Tr. 147).
Mr. Franks stated that coal production ceased at
2:00 a.m. on May 16, 1985, but would have continued again at
7:00 a.m. Five people were on the unit for the purpose of
installing a beltline and the stoppings, and he estimated
that it would take 45 minutes to an hour to install a stopping at one crosscut, assuming the materials were at the
location (Tr. 149).

101

On cross-examination, Mr. Franks confirmed that he found
an adequate supply of air and no dangerous amounts of methane
on the unit. He confirmed that five men were used to install
the beltline between 2:00 a.m. and 7:00 a.m. on May 16, and
while he agreed that it may not have been practical to put
the stoppings in before the beltline was installed, he
believed that it could have been done. He confirmed that
other mines install stoppings before a beltline is completed,
but conceded that the respondent's longwall system presents
some problems in this regard, particularly when shuttle cars
are used (Tr. 154).
Although Mr. Franks could not recall the presence of an
air lock by the beltline, he conceded that one could have
been present. The purpos~ qf the air lock is to control the
air current and to keep the air from going away from the
faces and down the beltline. Mr. Franks confirmed that the
two required stoppings were installed and abatement was
achieved within an hour of the issuance of the violation (Tr.
157). Although he could not recall a scoop at the end of the
track with cement blocks on it when he first arrived at the
scene, he conceded that it was possibly present and that his
delay in arriving at the scene of the violation could have
been caused by the fact that the travelway was blocked by the
scoop and blocks. He did not know how long it took to bring
the blocks to the stopping areas, and he could not recall
seeing anyone working in one of the breaks before he issued
the order {Tr. 157-160).
Mr. Franks confirmed that he marked the gravity section
of the order "unlikely" and did not consider the violation to
be "significant and substantial" (Tr. 163-164).
In response to further questions, Mr. Franks confirmed
that coal was being loaded on the beltline, and that a continuous miner and possibly three shuttle cars were being used
during the time he was at the scene. He expressed surprise
that production was not halted in order to construct the stoppings. He did not consider the use of temporary brattice
curtains to be dangerous (Tr. 170). Petitioner's counsel
confirmed that an air lock was in fact installed as shown on
the sketch and that Inspector Pranks was simply unclear as to
this (Tr. 172).
Respondent's Testimony
Thomas E. Hughes, respondent's safety manager, testified
that he was familiar with the cited conditions and he confirmed that the beltline had been installed on the morning of

102

May 16. He confirmed that he travelled with Inspector Franks,
and when they arrived at the end of ·the track· of the number
five unit, the third shift was leaving, and a supply trip and
a scoop added to the congestion in the area. He and the
inspector were held up because of this congestion. Mr. Hughes
confirmed that the unit was running and that Mr. Franks was
concerned that it was running with two open stoppings. The
unit was then shut down. Although he recalled some blocks in
one of the "open holes" on the unit, he could not recall that
any brattice men were on the unit. However, preparations were
being made to construct the stoppings (Tr. 176), and the brattice men would be assigned to do this work (Tr. 177>.
On cross-examination, Mr. Hughes confirmed that he was
not present when the be1tii~e was installed, and he explained
that someone could have told him that it was installed the
evening before, or he may have read that in a report (Tr.
178-179).
Findings and Conclusions
Fact of Violation - Order No. 2508809
The respondent does not dispute the fact of violation in
this case (Tr. 183-184). In mitigation of the violation,
respondent's representative argued that the respondent
intended to install the stoppings regardless of the presence
of the inspector on the scene (Tr. 184). In support of this
argument, respondent asserted that the blocks for the con. struction of the stoppings were either stored on the unit or
about to be transported to the stopping areas while the inspector was at the scene CTr. 165-166). Respondent candidly
admitted that it contested the violation in order to mitigate
the proposed $1,000 penalty assessment levied by MSHA for the
violation (Tr. 164).
The unrebutted testimony of Inspector Franks clearly
establishes that the required permanent stoppings were not
installed up to the loading point or tailpiece of the beltline on the intake side of the unit in question. The respondent's approved ventilation and methane and dust-control plan
required that permanent stoppings be installed at that location, and the failure by the respondent to follow its plan
constitutes a violation of mandatory safety standard 30 C.F.R.
§ 75.316 as charged in the order issued by the inspector.
Accordingly, the violation IS AFFIRMED.

103

Section 104(a) Citation Nos. 2508577 and 2508574
During the course of the hearing, the respondent stated
that it no longer wished to contest the coal accumulations
violations and admitted that they occurred as stated by the
inspector in the citations. Respondent requested that it be
permitted to pay the full amounts of the proposed civil penalty assessments made by MSHA for the violations, and petitioner's counsel agreed to this proposed disposition (Tr.
7-8).
The respondent agreed to the negligence and gravity findings made by the inspector at the time the citations were
issued, and I took note of the fact that the cited coal accumulations were cleaned up ~nq abated within 30 minutes of the
issuance of the citations.,
I considered this matter as a joint settlement proposal
pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, and
after consideration of the six statutory criteria found in
section llO(i) of the Act, the settlement was approved from
the bench, and it is herein reaffirmed.
History of Prior Violations
Exhibit P-2 is a computer print-out summarizing the
respondent's compliance record for the period June 4, 1983
through June 3, 1985. That record reflects that the respondent paid civil penalty assessments totaling $93,693 for 918
violations. Eighty-three of these prior violations were for
violation of mandatory safety section 75.316, and 187 are for
violations of section 75.400.
Taking into account the size of this respondent, I do
not consider its history of compliance to be a good one, and
I believe that the respondent needs to pay closer attention
to its coal accumulations cleanup procedures and the requirements of its ventilation and methane and dust-control planso
I have considered the respondent's compliance record in
assessing the civil penalties in this case.
Size of Business and Effect of Civil Penalties on the
Respondent's Ability to Continue in Business.
The parties have stipulated to the size and scope of the
respondent's mining operations and they agreed that the payment of civil penalties will not adversely affect the respondent's ability to continue in business. I adopt these stipulations as my findings on these issues.

104

Good Faith Abatement
The parties stipulated that all of the conditions and
practices cited as violations in this case were corrected in
good faith by the respondent within the time fixed by the
inspectors. The stopping violation was abated within an hour
of its issuance, and as previously noted, the coal accumulations violations were abated within 30 minutes of the issuance of the citations. I conclude that the respondent
exercised rapid good faith abatement of the violations.
Negligence
With regard to the.stopping violation, Inspector Franks
believed that the respondent exhibited a high degree of negligence in failing to construct them before the unit was placed
in operation. In mitigation of its negligence, the respondent argued that it fully intended to construct the stoppings
and had the materials available. Although this may be true,
the inspector believed that the available manpower on the
unit was insufficient for such a project, and he saw no evidence of any actual work in progress to construct the stoppings. However, he conceded that constructing the stoppings
on an operating longwall section presented some practical
problems, and he believed the respondent's contention that it
fully intended to construct the stoppings. The inspector's
view is that the stoppings should have been constructed when
the section ceased operating on the shift prior to his
arrival on the scene, and I am convinced that the inspector's
arrival prompted the immediate movement of materials necessary for the construction of the stoppings. I conclude that
at the time the violation was discovered, the respondent had
made preparations for the construction of the stoppings, and
that the arrival of the inspector simply speeded up the
process. Once the work began, the stoppings were completed
within an hour.
I have considered the respondent's preparatory efforts
in constructing the stoppings, including the presence of materials for this work on the unit, as factors mitigating the
civil penalty assessed for the violation. However, I conclude and find that the respondent knew or should have known
of the stopping requirements of its own ventilation plan, and
that its failure to construct the required stopping before
the inspector found the violative condition is the result of
its failure to exercise reasonable care.

105

Gravit;:
I conclude and find that the failure by the respondent
to construct the required stoppings in question constitutes a
serious violation. While it is true that the inspector did
not consider the violation to be "significant and substantial," found no dangerous amounts of methane, and that adequate air and an air lock were present on the unit, the
stoppings were required to maintain a smoke-free escapeway in
the event of a fire and to insure the adequate control of air
ventilation on the beltline.
Civil Penalty Assessments
The respondent has-agr~ed to pay the full $168 assessment
for Citation No. 2508574, May 23, 1985, 30 C.F.R. § 75.400,
and the full $168 assessment for Citation No. 2508577, June 3,
1985, 30 C.F.R. § 75.400.
On the basis of the foregoing findings and conclusions
with respect to Order No. 2508809, May 16, 1985, 30 C.F.R.
§ 75.316, respondent is assessed a civil penalty in the
amount of $900.

ORDER
The respondent IS ORDERED to pay the civil penalties in
the amounts indicated above within thirty (30> days of the
date of this decision.

J
'(I

If
/
~
.z;;;;
~u~~

•
~ative
Law Judge

ge
Distribution:

Thomas A. Grooms, Esq., Office of the Solicitor, U.S.
Department of Labor, 280 U.S. Courthouse, 801 Broadway,
Nashville, TN 37203 (Certified Mail)
Mr. Bruce Hill, Safety Manager, Pyro Mining Company, P.O.
Box 267, Sturgis, KY 42459 (Certified Mail)
/fb

106

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

SECRETARY OF LABOR,
MINE SAFETY AND HEA.LTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
ROBERT RIBEL,
Complainant

22041

DISCRIMINATION PROCEEDING
Docket No. WEVA 84-33-D
MSHA Case No. MORG CD 83-18
Federal No. 2 Mine

v.
EASTERN ASSOCIATED COAL
CORPORATION,
Respondent
SUPPLEMENTAL DECISION AND ORDER
Before:

Judge Koutras

On December 18, 1985, the Commission issued its decision in
this matter affirming my decision of September 24, 1984, 7 FMSHRC
2203, and my supplemental decision on remand of July 10, 1985,
7 FMSHRC 1059, that the respondent discriminated against the
complainant in violation of section 105(c) (1) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c} (1). With
regard to the issue of attorneys' fees for the complainant's
private counsel, the Commission ruled that Mr. Ribel's counsel
is entitled to a limited attorney's fees award, and it remanded
the matter to me for further limited adjudication of this issue.
In response to my order of December 31, 1985, the parties
have submitted a stipulation with respect to the amount of
attorneys' fees due to Mr. Ribel, and it states as follows:
That the amount of attorneys' fees due to
Mr. Ribel in connection with the participation
of his private attorney in obtaining an award
of costs in the amount of six hundred and five
dollars ($605) is seven hundred and twenty one
dollars and fifty cents ($721.50);

107

That this Stipulation is without prejudice
and shall not constitute a waiver of the right
of either party to petition for review of the
aforementioned decisions of Judge Koutras and
the Commission, including specifically the
disposition by Judge Koutras and the Commission
of Mr. Ribel's motion for an award of attorneys'
fees and costs.
ORDER
The respondent IS ORDERED to pay to Mr. Ribel 1 s private
attorney the agreed upon amount of $721.50, and payment is to
be made within thirty (30) days of the date of this supplemental
decision and order.
·

A~~/7,f//,ff/ IiJ::~

'ef51!ge/l'A.. Koutras
Administrative Law Judge

Distribution:
Barbara Fleischauer, Esq., 258 McGara Street, Morgantown, WV
26505 (Certified Mail)
Ronald s. Cusano, Anthony J. Polito, Esqs., Corcoran, Hardesty,
Ewart, Whyte & Polito, P.C., Suite 210, Two Chatham Center,
Pittsburgh, PA 15219 (Certified Mail)
Sally s. Rock, Associate General Counsel, Eastern Associated
Coal Corp., One PPG Place, Pittsburgh, PA 15222 (Certified Mail)
/fb

108

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

0 .' i ,,........
; 1

, It l

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

:

CIVIL PENALTY PROCEEDING

:
:

Docket No. KENT 85-187
A.C. No. 15-13881-03570

...
No. 9 Slope
. Pyro
William Station

v.

PYRO MINING COMPANY,
Respondent

DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the
Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Petitioner1
Bruce Hill, Director of Safety and Training,
Pyro Mining Company, Sturgis, Kentucky, for
the Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 820Ca). Petitioner seeks civil penalty assessments against
the respondent for two alleged violations of certain mandatory safety itandards in Part 75, Title 30, Code of Federal
Regulations. The respondent filed a timely answer contesting
the alleged violations, and a hearing was convened in
Evansville, Indiana, on December 3, 1985. The parties waived
the filing of posthearing briefs. However, I have considered
the oral arguments made by the parties during the hearing in
of this case.
Issues
The issues presented in this case are Cl) whether the
conditions or practices cited by the inspector constitute
violations of the cited mandatory safety standards, and

109

(2) the appropriate civil penalty to be assessed for the violations, taking into account the statutory civil penalty
criteria found in section llO(i) of the Act.
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 llO(i) of the 1977 Act, 30 u.s.c.

3.

Commission Rules, 20 C.F.R.

§

§

820(i).

2700.1 et seq.

Stipulations
The parties stipulated that at all times relevant to
this case, the overall coal production for the respondent's
operating company was 5,020,840 tons, and that the production
for the Pyro No. 9 William Station Mine was 2,041,542 tons.
The parties stipulated that the payment of the assessed
civil penalties will not adversely affect the respondent's
ability to continue in business. They also stipulated that
the violations were abated in good faith within the time
allotted (Tr. 26).
Procedural Ruling
The subject of this civil penalty proceeding is a section 104(d)C2J "unwarrantable failure" order issued by Inspector Stanley on May 21, 1985. The petitioner seeks a civil
penalty assessment for a violation of mandatory safety standard 30 C.F.R. § 75.316, as stated on the face of the order.
In support of his order, Inspector Stanley made reference to
a previously issued section 104(d)(l) Order No. 2508757,
issued at the mine on May 9, 1985 (Exhibit P-10).
The parties stipulated that there was no intervening
"clean inspection" of the mine during the period May 9, 1985,
the date of the underlying order, and May 21, 1985, the date
the order in this case was issued.
Petitioner's counsel asserted that since the underlying
order of May 9, 1985, has been contested by the respondent,
he was unclear as to whether or not the validity of that
order had to be first established in order to support the
order issued by Inspector Stanley on May 21, 1985.
In a ruling made from the bench, I advised the parties
that the "unwarrantable failure" aspect of the order which is

110

the subject of this civil penalty case is not in issue in
this proceeding. I ruled that the validity of the order is
not an issue to be determined in a civil penalty case, and
that the validity of the preceding underlying order is irrelevant. The parties were advised that the issue here is whether
or not a violation of mandatory standard section 75.316, has
been established, and if so, the appropriate civil penalty
which should be assessed for that violation, considering the
civil penalty criteria .found in section llOCi) of the Act.
Discussion
Section 104Cd)(2) Order No. 2507449, issued on May 21,
1985, cites a violation of 30 C.F.R. § 75.316, and the condition or practice is statep ~s follows:
The ventilation and methane and dust control plan was not being followed in the working section in south entries off 2 east off
2 north of main east CID 0030) in that
permanent-type stoppings were not erected up
to and including the third connecting crosscut
outby the faces between the intake and return
as required. There were 3 open crosscuts
which had no permanent stopping in them an~
the faces were driven far enough through the
crosscuts.
Section 104Cd)(2) Order No. 2507452, issued on May 20,
1985, cites a violation of 30 C.F.R. § 75.400, and the condition or practice is stated as follows:
Loose coal was permitted to accumulate on
the floor of the Nos. 1 through 5 entry in the
working section in east entries off 4 north
(ID 002-0). The coal was from rib to rib and
8 to 14 inches deep. The accumulation was
from the faces outby for 50 to 60 feet. In
the feeder entry the coal was accumulated from
the face to the feeder (120 feet.).
Petitioner's Testimon¥
MSHA Inspector Louis w. Stanley testified as to his background and experience, and he confirmed that he inspected the
mine on May 16, 1985, and issued the order in question. He
stated that he inspected the return side of the number three
unit and found that permanent type stoppings had not been
erected up to and including the third connecting crosscut

111

outby the faces. He identified exhibit P-9 as the applicable
ventilation and methane and dust~control plan, and exhibit
P-17 as a sketch of the area where the violation occurred.
He testified that he found a line curtain installed where the
permanent stopping should have been erected, and he confirmed
that he discussed the violation with Mr. Doug Harris, the
respondent's safety representative who was with him during
the inspection (Tr. 192-197).
Mr. Stanley testified that the section foreman admitted
that he was aware of the fact· that the required stoppings had
not been installed and advised him that men had been assigned
to obtain material to build the stoppings. Mr. Stanley saw
no evidence of any construction taking place, and there were
four or five men on the-s~c~ion. The section was a conventional mining section, ·and. coal was drilled, shot, and then
loaded out. When Mr. Stanley arrived on the section, the
power was on all of the equipment, and a loading machine and
coal drill were at the face, and a cutting machine was outby.
Although someone advised him that no work had been done that
morning, the section foreman admitted that coal had been shot
at one place in the number four entry. Mr. Stanley stated
that he found 2.4 percent methane in the number four entry
and issued a section 107(a) imminent danger order because of
the methane. The methane was cleared up after a curtain was
hung across the last open break through and into the number
four entry (Tr. 200).
Mr. Stanley stated that he issued the unwarrantable failure order because of the admission by the section foreman
that an entire shift had been worked without installing the
required permanent stoppings. He confirmed this by noting
that the face had been advanced past the third crosscut and
coal had been removed from these areas inby the last open
crosscut (Tr. 201). The reason for requiring the stoppings
is to insure positive air ventilation at the faces, and to
prevent curtains being torn down, thereby short circuiting
the air. Failure to maintain proper ventilation will allow
methane and coal dust to accumulate, thereby presenting a
hazard of an ignition or explosion (Tr. 201-203).
Mr. Stanley confirmed that he did not consider the violation to be "significant and substantialn because his air readings indicated a sufficient quantity of air present in the
area and he did not believe that an accident was likely (Tr.
203). He confirmed that coal had been mined on the previous
shift and he did so by checking the onshift mine records (Tr.
205). The required stoppings were erected within 35 minutes
of the issuance of the violation CTr. 205)~

112

On cross-examination, Mr. Stanley testified to the air
readings which he took, and he confirmed that the unit was
not "running" when he first arrived. He confirmed that coal
had been mined during the previous shift and that the mine
foreman admitted that had he not appeared on the scene coal
would have continued to be mined and the stoppings would have
been constructed on the intake. Mr. Stanley also determined
that coal had been extracted from the last open crosscut inby
for a distance of 50 to 60 feet, and he confirmed that
2.4 percent methane is not within an explosive range (Tr.
209-211). He confirmed that only one required stopping had
not been constructed, and he identified the location by placing an "X" on his sketch (exhibit P-17) (Tr. 213).
Mr. Stanley identified.a previous citation he issued at
the mine on March S, 1985, citing a violation of section
75.316, for a missing brattice and he explained why he considered that one to be "S&S," and the one in issue in this case
to be unwarrantable (Tr. 213-215).
Respondent's Testimony
David Winebarger, respondent's Director of Support, identified exhibit R-2 as a sketch of the operating unit as it
appeared on the day the violation was issued. He stated that
the belt was installed that same morning, and confirmed that
the line brattices shown on the sketch were required to be
installed on the return when there are three open breaks. He
also confirmed that there were no permanent brattices on the
intake up to the loading point, and that five or seven brattices had to be installed that day. He stated that no coal
had been loaded up to the time Inspector Stanley arrived on
the scene, but that power was on the equipment, and adequate
air was present across the last open crosscut. The belt was
running in order to load out coal which needed to be cleaned
up. He indicated that he ordered the crew not to run coal
until the brattices were installed, and also instructed them
to build seven brattices (Tr. 217-224).
On cross-examination, Mr. Winebarger stated that Inspector Stanley arrived on the unit after he (Winebarger> had
been there and that he informed Mr. Stanley that coal was not
being run and that he intended to install the brattices.
Mr. Winebarger testified as to the activities taking place
both before and after Mr. Stanley's arrival (Tr. 224-229).

113

Findings and Conclusions
Fact of Violation - Order No. 2507449
Respondent's representative conceded that the ventilation plan required the installation of a permanent stopping
at the location noted by Inspector Stanley, and that the failure to install the stopping in question constituted a violation of the plan. However, he took the position that as long
as coal is not being mined, there is no requirement for the
stoppings. He argued that since no coal had been mined immediately prior to the arrival of Inspector Stanley, the respondent was not required to construct the stoppings. He also
argued that construction of the stopping could not take place
while coal was being mine9 b.ecause this would violate the
plan, but he conceded that· the stopping was required to be
constructed before the start of any coal production (Tr.
231-232).
When asked to explan his position that a stopping ·is not
required unless coal is being produced, respondent's repre·sentati ve ref erred to Paragraph A, pg. 1 of the plan (Tr. 232 >.•
The plan provision in question, exhibit P-9, provides as
follows: "Permanent stoppings shall be maintained up to and
including the third crosscut outby the face on the return
side and up to the loading point on the intake side."
Mr. Winebarger was asked to point out the plan provision
that provided for the construction of stoppings only when
coal was being mined, and he responded "I don't know" (Tr.
237). Mr. Winebarger stated that coal was last produced on
the unit on the 4:00 p.m. to 12:00 shift on May 20, 1985, the
day before the citation was issued, and on the midnight shift
of May 21, 1985 (Tr. 234). Although the morning shift from
7:00 a.m. to 5:00 p.m. on May 21, was a production shift,
Mr. Winebarger insisted that no coal was produced, but he
confirmed that at 8:50 a.m., work was being performed on the
unit, including the cleaning up and loading out of coal by
means of the belt, a loader, and shuttle cars (Tr. 235-236).
Respondent's representative stated that three crosscuts
were mined several days prior to the issuance of the violation, and that the last one was opened up during the second
night shift prior to the inspector's arrival on the scene.
He conceded that the opening of these crosscuts constituted
the mining of coal- CTr. 238)1 but believed that the stopping
was required to be constructed when the crosscut is cleaned
up and travelable (Tr. 239).

114

Respondent's representative conceded that the third
crosscut had been completely mined through at the time the
inspector arrived on the scene. He argued that in the normal
course of business the required stopping would have been constructed before further coal production took place and that
this indicates good faith on the respondent's part (Tr. 243,
253). In response to questions from the bench, respondent's
representative stated further as follows (Tr. 256-257):
BY THE COURT: • • At the time the inspector
arrived on the scene, it was clear to him that
the third crosscut outby the face, there was
no permanent stopping there, is that correct.
MR. HILL:

That's co~r~ct.

BY THE COURT: Technically, that was a violation or realistically that was a violation in
his eyes correct.
MR. HILL:

Correct.

BY THE COURT:
MR. HILL:

You agree with that.

That's correct, he wrote it.

BY THE COURT: Given those facts, it was a
violation, wasn't it.
MR. HILL:

That's correct.

BY THE COURT: You were three crosscuts out by
the face and no permanent stopping had been
erected.
MR. HILL:

Correct.

BY THE COURT: That violates the ventilation
plan, doesn't it.
MR. HILL:

That's correct.

Petitioner's counsel took the postion that when the
third crosscut was mined through, it became a crosscut, and
that at that point in time the third stopping was required to
be constructed. Since it was not constructed when the inspector viewed it, a violation has been established and the fact
that coal was not being produced at that precise moment is
irrelevant Tr. 240-242).

115

Inspector Stanley was recalled and he confirmed that the
last open crosscut outby the face was completely opened and
travelable at the time he issued the violation. Had it not
been opened, but simply cut into, he would not have issued
the violation. He confirmed that once he determined that the
last open crosscut was completed, he then determined the location of the third crosscut outby the face where the stopping
was required, and when he found that it was not constructed
as required by the plan, he issued the violation. Mr. Stanley
stated that the fact that coal was not being mined is irrelevant, and he believed that the respondent raised this issue
only to support its contention that it intended to construct
the stopping in question {Tr. 264-265). In his opinion, had
the respondent intended·t9 c.onstruct the stopping, the
required materials woultl have been present and it would have
been constructed when the crosscut was opened up. Instead,
the respondent ran the previous production shift for four or
five cuts of coal without the stopping being constructed in
violation of the plan during the previous shift (Tr. 266-267).
After careful consideration of all of the testimony and
evidence adduced in this case, I conclude and find that the
petitioner has established by a preponderance of the evidence
that the failure by the respondent to construct the stoppings
in question constituted a violation of the requirements of
its approved ventilation and methane and dust-control plan.
It is clear that the stopping up to and including the third
connecting crosscut outby the faces between the intake and
return was not constructed as required by the plan, and the
respondent conceded that this was the case. A violation of
the requirements of the plan constitutes a violation of mandatory safety standard 30 C.F.R. § 75.316 as charged in the
order issued by Inspector Stanley.
I find nothing in the plan to support the respondent's
contention that the active mining of coal has to be taking
place before the stopping requirements come into play, and
this defense is REJECTED. The evidence establishes that at
the time the inspector arrived at the scene, coal had been
produced on the immediate preceding shift, the critical crosscut had been completely mined through and developed, and work
was taking place on the unit when the inspector viewed the
violative conditions, including the loading out of coal on
the belt and with the use of shuttle cars and a loader. At
that point in time, the plan required the stopping in question to be completed and in place. Under all of these circumstances, the violation IS AFFIRMED .

•
116

Order No. 2507452
With regard to Order No. 2507452, respondent's representative stated that the respondent does not contest the violation and admits that it occurred as alleged by the inspector
(Tr. 8). Respondent requested that it be permitted to pay
the full amount of the proposed civil penalty assessment made
by MSHA for the violation, and the petitioner's counsel
agreed to this proposed disposition. The respondent agreed
to the negligence and gravity findings made by the inspector
at the time the order was issued. Under the circumstances, I
considered the matter as a joint settlement proposal pursuant
to Commission Rule 30, 29 C.F.R. § 2700.30, and after consideration of the six statutory criteria found in section llO(i)
of the Act, the settlemen~ ~as approved from the bench and it
is herein reaffirmed.
History of Prior Violations
Exhibit P-2 is a computer print-out summarizing the
respondent's compliance record for the period June 4, 1983
through June 3, 1985. That record reflects that the respondent paid civil penalty assessment totalling $93,693 for 918
violations. Eighty-three of these prior violations were for
violation of mandatory safety section 75.316, and 187 are for
violations of section 75.400. In addition, exhibit P-1, which
is a computer print-out of the respondent's compliance record
for the period January 1, 1983 through January 6, 1985,
reflects six additional violations which occurred within
2 years of the violations issued in this case, two of which
are for violations of section 75.316, and one for a violation
of section 75.400.
Taking into account the size of this respondent, I do
not consider the respondent's history of compliance to be a
particularly good one, and I believe that the respondent needs
to pay closer attention to its coal accumulations cleanup procedures and the requirements of its ventilation and methane
and dust control plans. I have taken the respondent's compliance record into account in the civil penalty assessments made
for the violations in question.
Size of Business and Effect of Civil Penalties on the
Respondent's Ability to Continue in Business
The parties have stipulated as to the scope of the
respondent's mining operations and agreed that the payment of
civil penalties will not adversely affect the respondent's

117

ability to continue in business.
my findings on these issues.

I adopt these agreements as

Good Faith Abatement
The parties stipulated that all of the conditions and
practices cited as violations in this case were corrected in
good faith by the respondent within the time fixed by the
inspectors •. I agree and conclude that the respondent exercized good faith in abating the violations.
Negligence
With regard to Order No. 2507449, I conclude and find
that the respondent knew 9r should have known of the stopping
requirements of its own ventilation plan, and that its failure to construct the required stopping before the inspector
found the violative condition is the result of its failure to
exercise reasonable care.
Gravity
With regard to Order No. 2507449, I conclude and find
that the failure of the respondent to construct the stopping
in question was a serious violation. Although the inspector
found an adequate supply of air on the unit, the failure to
install the stopping presented the possibility of improper
ventilation in the unit, thereby contributing to a possible
ignition or explosion hazard.
Penalty Assessments
Respondent has agreed to pay the full $1,000 assessment
for Order No. 2507452, issued on May 30, 1985, for a violation of 30 C.F.R. § 75.400.
On the basis of the foregoing findings and conclusions
with respect to Order No. 2507449, issued on May 21, 1985,
for a violation of 30 C.F.R. § 75.316, respondent is assessed
a civil penalty in the amount of $975.
ORDER
The respondent IS ORDERED to pay the civil penalties in
the amounts shown above within thirty (30) days of the date

118

of this decision. Payment is to be made to MSHA, and upon
receipt of same, this proceeding is dismissed.

/

14~4~~
• I(o~tras

~~ge

Admin strative Law Judge

..

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S.
Department of Labor, 280 U.S. Courthouse, 801 Broadway,
Nashville, TN 37203 (Cert.if ied mail>
Mr. Bruce Hill, Safety'Manager, Pyro Mining company, P.O.
Box 267, Sturgis, KY 42459 (Certified Mail>
/fb

119

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

CLIMAX MOLYBDENUM COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. WEST 85-98-RM
Citation No. 2358527; 3/21/85

v.
:

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

Climax Mine

DECISION APPROVING WITHDRAWAL
Appearances:

Richard W. Manning, Esq., Climax Molybdenum Company,
Greenwich, Connecticut,
for Contestant;
Robert J. Lesnick, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Respondent.

Before:

Judge Carlson

This contest case was consolidated for hearing with dockets
WEST 85-96-RM, WEST 85-97-RM, WEST 85-99-RM, and WEST 85-120-M.
During the hearing, the parties presented extensive evidence concerning WEST 85-98-RM. Before the presentations were complete,
however, the contestant, Climax Molybdenum Company, moved for
leave to withdraw its notice of contest of the single citation in
that docket. The Secretary did not oppose the motion.
Accordingly, Climax's motion is granted. The contest proceeding, docketed as WEST 85-98-RM (citation 2358527), is severed
from those cases with which it was earlier consolidated, and is
hereby ORDERED dismissed.

Distribution:
Richard W. Manning, Esq., Climax Molybdenum Company, a division of
AMAX Inc., One Greenwich Plaza, Greenwich, Connecticut 06836-1700
(Certified Mail)
Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado
80294
(Certified Mail)
/ot

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

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

CIVIL PENALTY PROCEEDING
:
:
•

.
.
...
..
.

v.
YOUGHIOGHENY & OHIO COAL

co.,

Respondent

Docket No. LAKE 84-98
A. C. No. 33-00968-03568
Nelms No. 2 Mine

DECISION
Appearances:

Patrick M. Zohn, Esq., Office of the
Solicitor, U. S. Department of Labor,
Cleveland, Ohio, for Petitioner
Robert C. Kota, Esq., St. Clairsville, Ohio,
for Respondent

Before:

Judge Kennedy
Foreword

Without passing on the sufficiency of the findings of
fact and conclusions of law set forth in the bench decision
of May 31, 1985 as confirmed and incorporated in the final
order issued August 8, 1985, 7 FMSHRC 1185, the Commission
by its order of September 17, 1985, 7 FMSHRC 1335, remanded
this matter to the trial judge for issuance of his bench
decision as a written decision as required by Rule 65 or
issuance of a new decision setting forth the trial judge's
findings on all the material issues of fact, law or discretion presented by the record.
Thereafter, the trial judge issued an order dated
October 4, 1985, setting forth in a signed writing the
tentative bench decision together with his reasons for
declining to sit as a board of review on the sufficient of
the record made by MSHA in support of its Part 100.S special
assessments. The trial judge found that since the
Commission had refused to acquiesce in the proposition that
its trial judges are bound by the penalty point formula of

121

penalty assessment set forth in Part 100, it was unnecessary
to make findings for determination of penalty amounts as
outlined in 30 C.F.R. 100.3 and 100.5. See Sellersburg
Stone Company, 5 FMSHRC 287, 2 MSHC 2010 (1983), aff'd sub
nom. Sellersburg Stone Company v. FMSHRC, 736 F. 2d 1147,
1150-1153 (7th Cir. 1984), rehearing en bane denied July 24,
1984; United States Steel Mining Company, Inc. 6 FMSHRC
1148, 3 MSHC 1362 (1984).
Ignoring the fact that Cl) the operator's reliance on
Allied Products v. FMSHRC, 666 F. 2d 890, 894-896 (5th Cir.
1982) was misplaced, if not frivolous, and (2) that the
operator had failed to avail itself of the opportunity to
challenge the sufficiency of the trial judge's findings on
any other ground, the Commission refused to treat the
written transcript of the judge's bench decision, which
contained his findings of fact, conclusions of law and the
bases therefor, as part of his final order and remanded the
matter for the insufficiency of 'the final order which
adopted and confirmed the findings and conclusions set forth
in the written transcript of the bench decision.
Accepting the Commission's curious remand in good
grace, the trial judge include~ in his order of October 4,
1985, a direction to the parties to file post-hearing
briefs, including their proposed findings of fact, annotated
to the record, with respect to the material issues of fact,
law and discretion presented by the record. On October 31,
1985, one day before its post-hearing brief was due, counsel
for the operator filed a second petition for review with the
Commission seeking vacation of the trial judge's order to
file a post-hearing brief. The only ground asserted was the
futility" of attempting to attack the trial judge's bench
decision. On November 1, 1985, the Commission denied
Youghiogheny & Ohio's second petition ·for interlocutory
review and thereafter on November 25, 1985, the trial judge
issued an order to show cause why counsel's failure and
refusal to file a post-hearing brief should not be deemed a
default and a summary order entered assessing as final the
penalties assessed in the bench decision of May 31, 1984.
Counsel for Youghiogheny & Ohio made no response and offered
no execuse for his contemptuous refusal to file a posthearing brief.
11

The premises considered, therefore, it is ORDERED that
the operator be, and hereby is, determined to be in DEFAULT.
It is FURTHER ORDERED that the penalties assessed in my
decision of May 31, 1985 as adopted and confirmed in my
final order of August 8, and my supplemental order of

122

October 4, 1985 in the amount $1,950 be, and hereby are,
deemed final and directed to be paid.
Finally, I find the penalties assessed were not arbitrary, capricious, excessive or an abuse of discretion for
the reasons set forth in the findings and conclusions contained in the written transcript of my bench decision of
May 31 as adopted and confirmed in my final order of
August 8, 1985 and reiterated in my supplemental order of
October 4, 1985.
Under section 557(c) of the APA and Commission Rule 65
a judge's decision must be in writing and must "include
findings of fact, conclusions of law, and the reasons and
bases for them, on all the material issues of fact, law or
discretion presented by the record." The written transcript
of May 31, 1985 and my supplemental order of October 4, 1985
both set forth in writing the findings, conclusions and
reasons in support of my penalty assessments, including (1)
the fact of violation, which in each instance was never
disputed, and (2) the six statutory criteria which, except
for gravity and negligence, were the subject of stipulations
and/or undisputed documentary evidence.
In Sellersburg Stone, supra, the court held that a
judge's decision complies with the APA and Rule 65 if it
considers a contention and discusses it, whether or not the
judge makes a specific finding on it. Further, the court
held that the Commission should not overturn or remand a
case if the judge's position on a contention is "reasonably
to be discerned." Indeed, the court commended to the
Commission the practice of modifing a judge's decision to
include undisputed record evidence.
In Sellersburg the
Commission did this as to four of the statutory criteria on
which the judge had made no findings. The undisputed record
evidence here showed that Youghiogheny & Ohio is a medium
sized coal operator and that its ability to continue in
business would not be impaired by any penalty found appropriate. The other four criteria (1) prompt abatement, (2)
gravity, C3) negligence--and ( 4) history of prior violations
are all set forth in the findings, conclusions, and discussion of the tentative bench decision which the operator
declined the opportunity to challenge. What more the
Commission may want is impossible for me to discern at this
time.
To insure compliance with the order of remand and
because the circumstances of this case provide a unique

·123

opportunity to consider what a trivial, if dangerous, pursuit MSHA's $20 penalty assessment program has become, I
provide the following supplemental findings and conclusions.
Ventilation at Nelms #2
For years, ventilation has been a problem at the Nelms
#2. More specifically, between March 14, 1982 and March 13,
1984, the mine was cited for 83 ventilation violations, for
an average of 3.5 violations a month. If the violations
found by the UMWA safety committeemen were included the rate
would be even higher. Despite the dangerous pattern established, 87 percent or 72 of the cited violations were
allegedly harmless and assessed single penalties of $20.
Ten others were assessed penalties that averaged approximately $100 and one was vacated.
Ventilation problems continued throughout 1984 and up
to the time of the hearing in May 1985. ~n the areas that
are the subject of this case, this was principally due to
the fact that the sections being developed were almost a
mile, 4,000 feet, from the main air shaft and because the
air had to travel over or around many obstacles and obstructions to reach the working faces. A new air shaft was under
construction but its completion was not expected until late
1985 or early 1986. Because MSHA had been tolerant of the
problem and the Union had not pressed the matter, most,
approximately 90 percent, of the violations were treated as
minor and insignificant.
It came as a distinct shock therefore that within a
period of less than 30 days MSHA suddenly decided to upgrade
enforcement and specially assess the recirculation violations that occurred on March 14, and April 5, 1985. Upset
over this crackdown, Youghiogheny & Ohio took both citations
to conference. When the district manager held fast and
refused to rescind or vacate his staff's recommendations for
special assessments and when they were later assessed a
total of $1,800 Youghiogheny & Ohio filed a notice of
contest.
·
Youghiogheny & Ohio admitted the existence of both violations. Its contest was bottomed on the claim that because
the violations were not serious the special assessment determination was clearly erroneous and the amounts assessed
excessive, arbitrary, capricious and an abuse of discretion.
Citing Allied Products v. FMSHRC, supra, counsel for the
operator insisted that the penalties were assessed erroneously because the District and Assessment Offices failed to
make the findings required by Part 100 or that such findings

124

as were made were not supported by the evidence. Counsel
wanted a de novo review of only the MSHA administrative
(Part 100) record not a de novo determination of the merits
based on the evidence adduced at the hearing. Counsel
obdurately refused to recognize that under Rule 29(a) and
section llO(i) of the Mine Act the Commission and its trial
judges exercise their independent judgment in applying the
six criteria and are in no way bound by the determinations
made by MSHA.
More specifically, however, the operator's challenge
was to the time allowed for abatement of Citation #2203748;
to its special assessment since the inspector had initially
characterized it as non-S&S; and, most importantly, to the
finding that a special assessment was warranted because of
management's negligent failure to prevent a recurring recirculation problem in the northern sections of the mine.
Nothing causes management to send its legal gladiators into
the adversarial arena faster or with greater forensic ferocity than a finding that top management was guilty of
negligence, especially a "high" degree of negligence, with
respect to a safety violation.
Cognizant of the sensitivity of this issue, the
Commission early on decided to assiduously avoid making findings as to the degree of management's culpability. Penn
Allegh Coal Co., Inc., 4 FMSHRC 1224, 1127, 2 MSHC 1781,
1783; Monterey Coal Company, 7 FMSHRC 996, 1002, 3 MSHC
1833, 1836 (1985). This refusal to "quantify the degree of
the operator's negligence," no matter how great, tends to
minify violations in a way that is contrary to the intent of
Congress.
With respect to Citation #2327363, issued April 5, 1985,
the operator specifically challenged the findings of negligence, gravity, S&S, and the alleged failure to give it the
30 percent discount allowable for prompt abatement.. Finally
there was the bold assertion, summarily denied, that despite
the record made at the hearing the judge must remand the
matter to the Assessment Off ice for reassessment because the
narrative findings were not in accord with Part 100.5.
The Youghiogheny & Ohio Coal Company
Youghiogheny & Ohio, a subsidiary of Panhandle Eastern
Corporation, is a medium sized coal operator with production
of approximately 900,000 tons of bituminous coal a year.
Its home office is in St. Clairsville, Ohio. The Nelms #2
Mine is located in Hopedale, Harrison County, Ohio. It is
the only mine operated by Youghiogheny & Ohio. At the time

of the violations in question, the mine employed 312 contract miners and 57 management or supervisory employees.
Youghiogheny & Ohio's counsel agreed that any penalty found
warranted would not adversely affect its ability to continue
in business.
Walking the 013 Section
Because of recurring complaints and problems with the
recirculation of return air in the northern part of the
Nelms #2 Mine, two MSHA inspectors, Robert Cerena, a ventilation specialist, and Mark Eslinger, a supervisory mining
engineer and ventilation expert, were sent to make a ventilation technical inspection of the mine on March 14, 1984.
Both worked out of District 8 in Vincennes, Indiana. Both
were experienced underground coal mine inspectors.
Cerena and Eslinger arrived at the mine at 0745 hours,
and at 0800 hours, went underground accompanied by Larry
Ward, a UMWA safety committeeman, and Lawrence (Ozzie) Wehr,
a member of Youghiogheny & Ohio's safety compliance staff.
The four men traveled to the 013 section. The inspectors
picked this section because recirculation citations had been
written on this section in January and February. Nine
miners worked the section with a continuous mining unit.
Other electrically energiz,ed machinery on the section consisted of ram cars, a roof bolting machine, a battery
powered scoop, and an auxiliary ventilation fan.
The inspection party approached the face area through
the "A" entry. Mr. Wehr testified the mathane reading at
the working face was one to two tenths of one percent, well
within safe limits. The mine emitted 1.5 million cubic feet
of methane every 24 hours which put it in the category of a
gassy mine with a pervasive extrahazardous condition. The
party then proceeded through the last open crosscut to the
"B" entry. In the "B" entry Cerena found a ram car with a
permissibility violation. After the citation for the
permissibility violation was abated, the party inspected the
face of the "B" entry where a continuous miner was producing
coal in the last crosscut to the left off the "B" entry.
Exhaust tubing was installed on the right rib. The tubing
extended from the working face down the right rib and outby
the "B" entry into the last open crosscut between the "B"
and "C" entries. At this point the exhaust tubing was
attached to an auxiliary fan.
Intake air which came down the "A" entry became return
air once it swept across the working face. The return air
was then exhausted through the last open crosscut, the vent

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tubing and the auxiliary fan across the inactive faces in
the "C" and "D" eritries and out the "D" entry. In the last
open crosscut between the "B" and "D" entries Eslinger and
cerena could see float coal dust in suspension and at this
point suspected a recirculation problem. Proceeding outby
in the "C" entry the inspectors and the others observed
perceptible amounts of float coal dust in the 11 C11 entry. At
the first man door along the return stoppings Cerena made a
smoke tube test and confirmed that return air was coming
through the cracks in the man door. This air was then being
drawn up the "C" entry to the check curtain and diverted
through the second crosscut (8 plus 28) outby the face area
and drawn up the "B" entry where it was recirculating across
the working face to be vented out the tubing through the
auxiliary fan and once again into the return.
At this time, 1015 hours, Cerena advised the section
foreman, Clifford Bolen, that a recirculation condition
existed for which a citation would be written. Since no
methane was detected in the "C" entry or along the stopping
line, Cerena, following standing instructions, permitted
coal production to continue and considered the violation not
reasonable likely to result in a serious injury or illness
if abated within the time set, 1215 hours. Because this was
the third recirculation violation cited in as many months
and others had been reported on this and other sections,
·Eslinger and Cerena believed management should have been
more alert to discover the problem, had failed to exercise
the high degree of care imposed by the Mine Act, and could
point to no mitigating circumstance. They also believed
that if the hazards against which the standard is directed
occurred they could result in permanently disabling
injuries.
Because at 1015 hours Cerena and Eslinger were not
aware of the total extent of the recirculation and did not
consider the condition an immediate hazard they did not
press for rapid abatement. They apparently believed that
allowing 2 hours and 15 minutes for abatement would permit
the section foreman to mesh his production with his abatement effort without undue interruption of production. All
the members of the inspection party agreed that abatement
should have been accomplished within 45 minutes to 1 hour.
The inspection party continued to walk outby in the C"
entry. Recirculation was discovered again at the next two
man doors outby. The man doors were installed at every five
crosscuts along the stopping line. Thus, the recirculation
problem extended over an area of 10 or more crosscuts outby
the last open crosscut along the stopping line.
11

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The float coal dust encountered, while clearly visible
and palably perceptible, was not so dense as to impair
vision.
It apparently resembled a fine mist and was determined to be filtering through all three man doors and some
of the permanent stoppings. It was steadily accumulating on
the surface of the rock dust.
Because the standard prohibits "any recirculation of air at any time," neither
Eslinger nor Cerena nor the operator made any attempt to
measure the actual volume or velocity of air recirculating.
30 C.F.R. 75.302-4(a). Eslinger, when pressed, estimated
the volume at up to 3,000 cfm which would be approximately
half the amount of air, 6,700 cfm the operator's engineer
calculated to be sweeping the working face.
The estimate of the amount of air recirculating seems
reasonable, because, as the inspection party later discovered, return air was also recirculating over two battery
charging stations in the "C" entry at the 3 plus 50 station.
The air vents for the battery chargers measured 8 x 8 or 9 x
9 inches. It is obvious that a considerable volume of air
could recirculate through these large vents. A citation was
written for this condition because impermissible battery
chargers located on intake air must be ventilated through
return air vents to remove any hydrogen gas fumes and to
preclude the circulation of any noxious gases, including
carbon monoxide, to the face area in the event of a fire or
explosion. Overall Cerena estimated the area affected by
recirculation extended from the working face in the "B"
entry across the other two face areas and down the "D" entry
outby and back to the working face for a distance of approximately 1,300 feet.
The inspection party completed its observations and
returned to the face area around 1100 hours. At that time,
they found that Bolen, the section foreman had been unsuccessful in his attempts to abate the recirculation.
Bolen
said he first tightened the check curtain in the "C" entry
and when this did not help installed a tail tube on the
exhaust end of the auxiliary fan and extended it down the
crosscut into the return. The effort was designed to reduce
the auxiliary fan pressure and keep it from overriding the
mine pressure. At the time, the intake air was measured at
14,000 cfm and the return at 19,800 cfm.
As Eslinger pointed out, a system wide deficiency in
the amount of air available to the section markedly contributed to the problem. This had been corrected previously by
adjusting the regulators so as to rob air from one section
to make up for a deficiency in another. This is a temporary

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and, at times, a very dangerous solution. The immediate
problem here, however, was caused by the fact that the auxiliary fan which was exhausting air at a velocity of 5,000
feet per minute in an ambient air atmosphere of 170 feet per
minute was "robbing" or short circuiting intake air from the
"B" and "C" entries. This created a negative air pressure
or vacuum along the return stoppings line of the 11 0 11 or
return entry. As Eslinger explained:
" • • • there was a higher pressure in the return entry,
which is the "D" entry than the "C" entry and what was
causing the higher pressure in the "D" entry than the
11
c 11 entry was due to the velocity pressure or the velocity of the air exiting from the fan.
Okay.
That pressure created a higher pressure in the "D"
entry than the "C" entry; therefore air flows from a
high pressure to a low pressure, it was flowing from
the 11 D11 entry to the 11 C 11 entry. Once back in the "C"
entry, the fan was wanting air and, therefore, it was
drawing it from the "B" entry. Well, air that's in the
"C" entry fills into the "B" entry and, therefore, part
of the [recirculated] air was going back through the
tubing." Tr. 157.
Wehr pitched in trying to help Bolen. The fan was
repositioned and the tail tubing changed twice.
All
curtains were tightened and curtains were hung in the
crosscuts where the return air was leaking through the man
doors. But nothing seemed to work.
Bolen believed he asked
Cerena if he could suggest a solution. Cerena said he was
not asked but that in any event he would not have known of a
solution. Eslinger, the most expert of all present, said he
was never asked for a suggestion and did not believe he
should volunteer. Operators, of course, are rightly jealous
of their perogative of managing their mines. An inspector
who volunteers a plan of abatement can find himself compromised if the plan does not work. Since the section was
reasonably clean, dry and rock dusted and the methane
readings remained within a safe tolerance there was no
reason, the inspectors believed, not to permit the abatement
effort to proceed as the operator saw fit.
For reasons not disclosed by the record, the section
foreman did not seek assistance from his shift foreman. He
said he was not authorized to contact anyone else. Finally,
when the abatement time expired, the section foreman advised
Eslinger and Cerena he had exhausted his knowledge and
resources and had given up trying to abate the condition.
At this point, the inspectors decided the only thing they

129

could do was issue a 104Cb) closure order. The section
foreman did not ask for an extension of the time to abate
and testified he believed the time given was reasonable and
issuance of the closure order proper. Mr. Wehr agreed and
immediately called out to his supervisor, Mr. Wood, who
apparently communicated the problem to the mine foreman and
the mine superintendent.
Shortly thereafter the mine foreman and superintendent
arrived on the section. Mr. Wµrschum, the mine superintendent and a former MSHA inspector, immediately recognized
that the recirculation problem was resulting from the
venturi effect of the auxiliary fan. He had discussed such
a problem with Mr. Jay Haden of MSHA's district office in
Pittsburgh in February. Haden told him the solution was to
install baffle curtains between the exhaust end of the fan
and the return entry to deflect and slow the velocity and
negative pressure on the air along the stopping line. With
this done, the recirculation abated and the closure order,
written at 1230 hours, was conditionally terminated at 1330
hours. The conditional termination allowed production to
resume pending an evaluation of the adequacy of the operator's ventilation plan for the entire section. This
evaluation never occurred as the operator idled the section
on March 16, 1984 and the order was terminated unconditionally on April 4, 1984.
Negligence
I find the mine superintendent was negligent in failing
to pass on to the section foreman and his safety compliance
staff the information given him in February by Mr. Haden of
MSHA. Both Bolen and Wehr testified they had never been
told that baffle curtains could be used to decrease the
negative pressure caused by an auxiliary fan. In view of
the number and frequency of citations and complaints of
ventilation problems, including recirculation problems, the
mine superintendent should have promptly disseminated all
the corrective action information available to him and
directed the holding of training sessions to insure section
foreman and other line personnel were capable of detecting,
recognizing, and abating hazardous recirculation conditions.
Mr. Ingold, the operator's mine engineer, indicated
Mr. wurschum sought a solution to localized negative
pressure problems because the condition was fairly pervasive
in the mine. He further stated that as of the time of the
hearing the operator was still experiencing problems with
diffusing the pressure from its auxiliary fans and building
baffles on its fans to diffuse the pressure on its return

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airways. The preponderant evidence clearly established that
in failing to train its section foreman in the methods and
practices for abating a venturi effect on a return airway
top management at the Nelms #2 was highly negligent.
Gravity
The operator claims the inspector's evaluation of the
violation as non-S&S and the gravity as "unlikely" as of the
time it was discovered, 1015 hours, is conclusive of the
fact that the violation was not serious, indeed was harmless, and any penalty in excess of $20 unwarranted.
This, of course, is nonsense, but dangeFous nonsense
because it finds support in MSHA's practice of treating
violations that do not pose an immediate or imminent danger
as insignificant and insubstantial. Both inspectors
testified they initially considered the recirculation
condition a non-S&S violation because the concentration of
methane, one to two tenths of one percent, was well within
safe limits. Both realized, of course, that if normal
mining operations continued, as they did, and the condition
remained unabated, as it did, it could make a significant
and substantial contribution to a mine fire or explosion.
What MSHA's training apparently overlooks is the provision
of the law that makes even a nonserious or seemingly
harmless conditions S&S if, as must be assumed, mining
operations were to continue with the condition ignored or
undiscovered and unabated.
Thus, despite the fact that the citation in question
reflected the inspectors' belief that if unabated the condition "could reasonably be expected" to result in "permanently
disablingli injuries to the nine miners working on the section, the controlling finding, absent the closure order, insofar as the penalty assessment was concerned was the erroneous
non-S&S finding.
Many violations, considered in isolation, are not
serious in the sense that they present no immediate or
imminent danger of a permanently disabling or fatal injury.
But that does not mean that, if not detected and abated,
they could not in the course of continued mining operations
"significantly and substantial contribute to the cause and
effect of a mine safety or health hazard." The Commission
has made clear that if a violation is of such a nature as to
create a recognizable health or safety hazard that in the
course of continued mining operations could reasonable be
expected to contribute to a serious injury or fatality it
should be classified as S&S, regardless of the seriousness

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of the condition or practice "at the precise moment of
inspection." United States Steel Mining Co., Inc. 6 FMSHRC
1573, 1574, 3 MSHA 1445 (1984); United States Steel Mining
Co., Inc. 6 FMSHRC 2058, 2069-2070, 3 MSHC 1622 (1984).
Thus, all violations are to be evaluated in terms of
the probable consequences of the continued existence of the
violation under normal mining operations, without any assumptions as to the time of abatement. In other words, for a
violation to be deemed significant and substantial, S&S, it
need not be one. The sole requirement is that its "contribution" be S&S. United States Mining co., Inc. 7 FMSHRC.1125,
1129, 3 MSHC 1871, 1872 (1985).
The corollary of this interpretation is that an operator is entitled to mitigation for prompt abatement but not
for getting caught. An operator is not to be accorded
leniency because the inspector found the violation before it
made a possibly lethal contribution to a fatal hazard but
only to consideration for moving quickly and effectively to
abate the condition found and cited. United States Steel
Mining Co., Inc., supra 7 FMSHC 1130, 3 MSHC 1974.
The passage of time and the failure to abate while
mining operations continued increased the inspectors'
apprehension over what at first blush and under the erroneous standard applied appeared to be an inconsquential
violation. At 1215 hours, Cerena and Eslinger reevaluated
the situation and, as noted, at 1230 hours issued a 104Cb)
closure order. This, of course, guaranteed the safety of
the section until the condition was corrected and the order
terminated. It also had the effect of superseding the
non-S&S finding and making the violations immediately
eligible for a regular or special assessment. 30 C.F.R.
100.4. Counsel apparently overlooked the fact that one of
the circumstance that justifies special assessment of a
citation designated as non-S&S is the failure to abate the
condition cited within the time set by the inspector.
Belatedly, if inadvertently, sensing this hole in its
non-S&S defense to the amount of the penalty, the operator
asserted but never proved that the time allowed for abatement was unreasonable and the issuance of the closure order
arbitrary, capricious and unwarranted. To the contrary,
neither the mine superintendent nor the mine foreman protested issuance of the closure order and both the section
foreman and the operator's walkaround, Mr. Wehr, testified
that in their opinion the time for abatement was reasonable
and issuance of the closure order proper.

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The rapidity of the attention given the problem by top
management after issuance of the closure order demonstrates
the striking difference between the tokenism of the $20
single penalty enforcement scheme and meaningful enforcement. The comparison in reaction was not unlike that which
Mark Twain made between lightning and lightning bug. The
mine superintendent, who almost never appeared underground,
and the mine foreman appeared on the scene within a very
short period of time and quickly directed installation of
the three baffle curtains. By 1330 hours the curtains had
been installed, the fan restarted and the air along the
return stoppings tested to show that the pressure was now
positive from the intake to the return.
Inspector Eslinger remarked upon the aclarity with
which top management gave its time and attention to the
condition after the closure order issued. While he considered the means adopted a mere "band-aid" upon a problem
endemic to the operator's entire ventilation system, he
believed the closure order much more "attention getting"
than allowing the operator to "eat $20 penalties"
indefinitely while largely ignoring the gravity of the
systemic problem.
The operator's history of prior violations shows that
during the 2-year period March 1982 to March 1984 only 92
out of 552 violations were designatd S&S. In other words,
for 83 percent of the violations cited during this period
the operator got off with a $20 penalty. As noted, during
this same period the operator was cited for 83 ventilation
violations 87 percent of which were designated non-S&S and
assessed only $20. Of these 83 violations 9 involved
recirculation problems 7 or 75 percent of which were
designated non-S&S and assessed at $20. At least five
additional recirculation violations occurred in 1984, only
one of which was designated S&S. A recirculation violation
was also cited on February 5, 1985. The record shows no
further specifics but the testimony by Mr. ward, the Union
safety committeeman, indicated recirculation violations were
frequent and expected to continue until the new air shaft
was completed.
As Inspector Eslinger noted the ease with which operators "eat" $20 penalties shows it is not a credible
deterrent. When coupled with MSHA's misapplication of the
non-S&S designation, enforcement becomes a largely trivial
pursuit. Top management was well aware of the ventilation
problem in the northern sections of the mine. But top
management also knew it was more cost effective to just pay
the $20 fines and get on with producing coal than to train

133

the work force in the procedures necessary to insure safe
production methods.
The recirculation ceased when the baffle curtains were
installed. These curtains were available to the section
foreman but he had never been trained in their use. Management's failure to train the section foreman in the use of
this device for abating a serious reciculation problem was
negligence clearly and directly imputable to the mine superintendent.
It measureably increased the gravity of the
violation as every hour of delay in abatement measureably
contributed to the risk of a major mine hazard.
On gravity, therefore, I find that by the time the
closure order issued the likeihood of a major mine hazard if
mining operations continued was high and the severity of the
consequences for the nine miners, two inspectors, and two
walkarounds serious to extreme.
The Special Assessment
The operator's attack on the MSHA's special assessment
procedures is without merit. The Commission has repeatedly
held that the procedures by which penalty assessments are
proposed by the Secretary of Labor are irrelevant and
immaterial to a penalty assessment by the Commission or its
trial judges. Black Diamond Coal Company, 7 FMSHRC 1117,
1121-1122, 3 MSHC 1889, 1892-1893 (1985). Had counsel done
his homework he would have known that his reliance on Allied
Products Company v. FMSHRC 666 F. 2d 890 (5th Cir. 1982) was
misplaced.
As the court pointed out in Sellersburg Stone
Company v. FMSHRC, 736 F. 2d 1147, 1152 (7th Cir. 1984),
rehearing en bane denied, the reasonableness of penalties
assessed in Commission penalty proceedings are not measured
by the penalty point formula set forth in Part 100. I note
in passing, however, that a special assessment in the amount
of $850 for a ventilation violation that significantly and
substantially contributed to hazards similar to those
involved in this violation was made and upheld in Monterey
Coal Company, 7 FMSHRC 996, 999, 3 MSHC 1833, 1834 (1985).
The violation in this case was S&S.
In addition a
closure order was necessary to get sufficient attention from
top management to bring about abatement. Short of issuing a
closure order there was no way to do this.
By 1230 hours,
the inspectors knew they had a serious problem on their
hands, especially since the section foreman stated he had
exhausted his resources for abating the condition. At this
point, and to their credit, Cerena and Eslinger concluded

134

that enough was enough and that management's recidivism
justifie4.th~ closure •. As Eslinger testified,
" • • • the frequency of occurrence • • • was probably
the key factor • • • the fact that it was a reoccuring
problem that seemed to be happening again and again and
only band-aid type solutions were being applied to it."
Tr. 165.
On March 29, 1984, Eslinger wrote a memorandum to the
District Manager in which he made an independent evaluation
of the violation and concluded that to overcome the operator's "reluctance" to provide sufficient intake air and
encourge compliance a special civil penalty assessment was
in order.

My only disagreement with the inspectors is over the
degree of the operator's culpability. They found "high"
negligence. I find the operator's failure to provide the
necessary preventive training and instruction to the section
foreman when, as the record shows, the mine superintendent
was possessed of that information demonstrated a reckless
disregard for safety that warrants an increase in the
penalty from $850 to $1,000~
Walking the 021 Section
Three weeks later, on the morning of April 5, 1984,
Inspector Cerena accompanied by a union walkaround and
company escort, made another ventilation technical
inspection in the 021 section of the Nelms #2 Mine. The
undisputed facts show the inspector found a recirculation
violation that involved the last open crosscut and two
crosscuts outby in the "B" entry involving an area of about
300 feet. The recirculation resulted from the removal of a
tail tube from the auxiliary fan. The methane reading at
the working face was sS percent. Recently an outburst of
1.8 percent had occurred.
The inspector issued a 104(a), S&S citation because he
believed the potential for a methane buildup was reasonably
likely if mining operations continued and therefore the condition could significant and substantially contribute to the
hazard of a mine fire or explosion. He also believed the
amount of float coal dust in suspension presented a respirable dust hazard that could significantly and substantially affect the health of miners working or traveling in
the area.

135

The inspector believed the section foreman was negligent in failing to discover the condition; that he had
alerted the foreman to watch for a recirculation problem
when a mean air violation was corrected by removing the tail
tube; and that the mine sup~rintendent was "highly" negli~
gent in failing to instruct and train the section foreman in
the use of baffle curtains to diffuse the venturi effect
caused by the high velocity of air coming from the exhaust
fan.
Because this was the fourth occurrence of a serious
recirculation violation in as many months, and followed
closely after the closure order issued on March 14,
Inspector Eslinger recommended the violation be specially
assessed. In his judgment the mine superintendent was
highly negligent in failing to give his ventilation problems
the time and attention they deserved; was applying only
band-aid remedies to a systemic problem of considerable
magnitude; and had aggravated the problem by his failure to
train and instruct his section foreman in the use of baffle
curtains to relieve the negative pressure created by use of
high velocity auxiliary fans.
The operator admitted the violation but claimed the
special assessment, $950, was, in view of mitigating circumstances, excessive. The record shows the condition was
timely, but not rapidly, abated only because the inspector
told tbe foreman to use baffle curtains. Counsel failed to
prove the existence of any mitigating circumstances.
I find the preponderant evidence supports the inspector's finding that the violation was serious and could
significantly and substantially contribute to a mine health
or safety hazard.
Gravity and Negligence
With respect to the special finding, the record shows
the hazards associated with inadequate ventilation, of which
recirculation is a symptom, are among the most serious
encountered by the mining industry. A basic reason for the
total prohibition on recirculation of return air is the
danger of an ignition of an explosive concentration of
methane, either alone or mixed with coal dust, liberated at
the face during mining operations. When coal is freshly
cut, methane can be liberated in dangerous amounts in short
periods of time. Although methane itself becomes explosive
at a 5 percent concentration, even a smaller percentage
concentration of the gas mixed with float coal dust can
generate an explosion. Crickmer and Zegeer Ced.), Elements

136

of Practical Coal Mining, 264-265, 296-298, 312-315 {1981)1
R. Lewis & G. Clarke, Elements of Mining 695 C3d ed. 1964).
The legislative history of the Mine Act shows Congress
was acutely aware of these, and related, dangers associated
with inadequate ventilation. s. Rep. 181, 95th Cong., 1st
Sess. 41 {1977). The Nelms #2 is a gassy mine that
liberates excessive amounts of methane and is under the
extrahazardous inspection cycle required by section 103{i).
The citation was issued at a working face where coal was
being cut. The discrete hazard contributed to by the
recirculation of return air was a potential buildup at the
face of methane and coal dust that could result in a
possible methane ignition or that could propogate a dust
explosion.
I further find that if the hazards contributed to
occurred it was reasonably likely that one or more miners
would suffer fatal or disabling injuries. As the inspector
testified, methane in an explosive concentration could have
been liberated at any time and with the turbulence caused by
the recirculation could have achieved an explosive concentration within a relatively short time. The continuous mining
machine, the operation of which may cause arcing and
sparking, was a ready and potential source of ignition. I
conclude MSHA carried its burden of showing a discrete
safety hazard contributed to by the violation, namely the
possible accumulation of mathane and coal dust in the
presence of a potential ignition source.
Finally, I find the inaction of the mine superintendent
in the face of the recurring recirculation problems at the
Nelms #2 demonstrated a reckless disregard for the safety of
the miners. Indeed, management of the Nelms #2 developed a
pattern of ventilation violations which fully warranted
application of the sanctions provided in section 104{e) of
the Mine Act. As the Senate Committee Report observed, "The
existence of such a pattern should signal to both the operator and the Secretary that there is a need to restore the
mine to effective safe· and healthful conditions and that the
mere abatement of violations as they are cited is insufficient." Sen. Rep., 95-181, 33 {1977).
Under section 104{e) of the Act, the Secretary of Labor
was authorized to issue a pattern of violations notice to a
mine operator if the mine showed a pattern of S&S violations.
Congress established this provision to address the problem
of mine operators who have recurring violations of health
and safety standards. The principle expressed was that a
104(e) pattern of violations notice should be available as

137

an enforcement tool against chronic violators. Congress
made clear that chronic violators demonstrate a reckless
disregard for the safety and health of miners by allowing
the same mine hazards to occur again and again without
addressing the underlying problems. Id, at 32-33. That
describes this case precisely.
Had the sanctions of 104Ce) been applied, a pattern of
violations notice would have been issued to Youghiogheny &
Ohio long before March 14 or April 5, 1984. Consequently,
by that time the chronic ventilation deficiency would either
have been abated or 10.4Ce> closure orders would have brought
the condition forcefully to the attention of management.
This did not and could not happen because section
104(e) of the Mine ~ct is a dead letter. For the past 8
years, since its enactment and through the administrations
of two Presidents, four Secretaries of Labor, and four
Assistant Secretaries of Labor for Mine Health and Safety,
the Executive Branch's duty to "take care that" section
104(e) "be faithfully executed" and enforced has been
ignored.
After considering the other statutory criteria as set
forth in my findings and as stipulated to by the parties, I
find the amount of the penalty warranted for this violation
is $950.
ORDER
To impress upon the operator the need to address in a
more urgent and resolute manner chronic problems with the
ventilation system at the Nelms i2 Mine it is ORDERED that
the operator pay the penalties assessed in the total amount
of $1,950, on or before Friday, February 21, 1986.
Disciplinary (Rule 80) Reference
Rule 80 of the Commission's rules provide for the.
imposition of disciplinary sanctions for violations of the
standards of professional conduct. Except as provided in
Rule 80(e), however, a trial judge is required to refer such
matters to the Commission which, by majority vote, determines whether the circumstances reported warrant disciplinary
action. Having carefully reviewed the record in this
matter, I find the following circumstances warrant
reference:
1.

Counsel for the operator refused to comply with the
trial judge's order to file a post-hearing brief

138

and persisted in that refusal even after the
Commission denied his appeal from the judge's
order.
2.

Before, during, and after the trial, counsel for
the operator persisted in citing Allied Products v.
FMSHRC, supra, as the controlling precedent on the
issue of the alleged excessiveness of the
penalties, ignoring and failing to distinguish in
any way controlling precedent to the contrary.

3.

Throughout the trial of this matter, counsel for
the operator persisted in badgering the witnesses
and the trial judge with the totally erroneous
claim that Part 100.3 of the Secretary's penalty
assessment formula was controlling of the amount of
the penalties properly to be assessed.

4.

Throughout the trial of this matter, counsel for
the operator persisted in badgering the witnesses
and the trial judge with the clearly erroneous
claim that MSHA misapplied Part 100.5 when
resonable inquiry would have demonstrated that by
virtue of issuance of the closure order on
March 14, 1984, special assessment of the citation
in question was mandated by Part 100.5.

5.

Throughout the trial of this matter, counsel for
the operator persisted in ignoring controlling
precedent on the definition of an S&S violation.

6.

Counsel for the operator persisted throughout the
trial of this matter in advancing frivolous
arguments and claims with respect to both the facts
and the law as the findings on the merits
demonstrate.

With respect to specification 1, Disciplinary Rule
7-106 of the Code of Professional Responsibility provides:
"CA) A lawyer shall not disregard • • • a ruling of a
tribunal made in the course of a proceeding, but
he may take appropriate steps in good faith to
test the validity of such • • • ruling."
Despite this clear injunction, counsel for the operator
failed and refused, after denial of his appeal, to comply
with the trial judge's order to file his post-hearing proposals and brief. While, under appropriate circumstances,
it is not uncommon for a party to waive the filing of a

139

brief, Bradford Coal Company, 7 FMSHRC 862, 3 MSHC (1985),
in this case counsel's appeal from the trial judge's order
requiring a brief was denied. While the basis for the
denial was not stated, it followed closely upon the
Commission's earlier grant of counsel's appeal from the
trial judge's claimed failure to consider the arguments he
wished to present in support of his position.
As Ethical Consideration 7-22 notes, "Respect for
judicial rulings is essential to the proper administration
of justice." By failing to comply with the trial judge's
order, counsel not only showed his disrespect for this
tribunal but failed in his duty to protect the interests of
his client by pressing his argument, if legitimate, that the
tentative bench decision was erroneous. If, on the other
hand, he had no legitimate argument to present he should
have accepted the bench decision and avoided waste of the
Commission's time and resources by filing a frivolous
appeal. The Preamble to the Code of Professional Responsibility states that the Disciplinary Rules are mandatory in
character and "state the minimum level of conduct below
which no lawyer can fall without being subject to disciplinary action."
With respect to specifications 2 through 6:
Rule 1.1 of the Model Rules of Professional Conduct
impose a duty of competence on a lawyer that includes a duty
to make thorough and adequate preparation for the trial of a
matter. The record in this proceeding shows that counsel
for the operator failed to make the necessary inquiry and
analysis of the factual and legal issues controlling of the
outcome with the result that much time, effort, and expense
was incurred by both parties and the Commission in disposing
of a matter that should never have been contested.
Rule 3.1 of the Model Rules provides that "A lawyer
shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis for
doing so that is not fri~olous • • • " An action is
"frivolous" if it cannot be supported by a "a good faith
argument for an extension, modification ·or reversal of
existing law." Counsel for the operator never advanced a
legitimate argument for modifying or reversing the law
governing the assessment of civil penalties in Commission
proceedings. An advocate has a duty to use legal procedure
to the fullest benefit of a client's cause, but also a duty
not to abuse legal procedure, including the Commission's
administrative process. The litigation process may, of

140

course, be abused for reasons other than delay. See
Advisory Committee Note to amended Rule 11 of the FRCP
(1983).

Rule 3.3 of the Model Rules provide that "A lawyer
shall not knowingly • • • (3) fail to disclose to the
tribunal legal authority in the controlling jurisdiction
known to the lawyer to be directly adverse to the position
of the client and not disclosed by opposing counsel." The\
record shows that with the exercise of reasonable diligence,
as required by Rule 11 of the Federal Rules of Civil
Procedure, counsel for the operator should have known that
Allied Products, supra, was not controlling precedent in
this Commission proceeding.
Under the circumstances presented, the trial judge
recommends that if the Commission finds the unprofessional
conduct alleged warrants disciplinary action, Robert c.
Kota, Esq., a member of the bar of the State of west
Virginia, be publicly reprimanded for contempt of the
Commission and suspended from practice before the Commission
for 6 months.
The premises considered, therefore, it is ORDERED that
the actions heretofore specified as violative of the
standards of professional conduct by Robert C. Kota, Esq., a
member of the bar of the State of West Virginia, be, and
hereby are, REFERRED to the Commission pursuant to Rule 80
for such disciplinary action as
Commission deems
appropriate.

Distribution:
Patrick M. Zohn, Esq., ·Office of the Solicitor, u. s.
Department of Labor, 1240 East Ninth Street, Cleveland, OH
44199 <Certified Mail)
Robert c. Kota, Esq., The Youghiogheny & Ohio Coal Co.,
P. o. Box 1000, St. Clairsville, OH 43950 (Certified Mail)
dcp

141

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
, .:·i ?~:

i

...: \>""" ,t\

SECRETARY OF LABOR,

DISCRIMINATION PROCEEDING

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Complainant

Docket No. CENT 85-47-DM
Docket No. CENT 85-68-DM

v.

MD 85-04

EISENMAN CHEMICAL COMPANY,
Respondent

Corpus Christi Mine

DECISION APPROVING SETTLEMENT
Appearances:

,Jack F. Ostrander, Esq., Office of the
Solicitor, U.S. Department of Labor,
Dallas, Texas, for Complainant
Steven R. Baker, Esq., Houston, Texas,
for Respondent

Before:

Judge Maurer
STATEMENT OF THE CASE

This is a consolidated discrimination proceeding initiated
by the complainant against the respondent pursuant to Section 105(c)
of the Federal Mine Safety and Health Act of 1977, charging the
respondent with unlawful discrimination against Mr. Juan
Gilberto Pena, for exercising certain rights afforded him under
the Act. A hearing in this matter was convened in Corpus Christi,
Texas on December 18, 1985. At that time the parties advised
me of a proposed settlement disposition of the dispute.
Counsel for the Secretary read the settlement into the
record as follows:
MR. OSTRANDER: Comes now the Secretary of Labor,
Complainant, and Eisenman Chemical
Company, Respondent in the above styled
case, and agree to settle this case
on the basis of the following stipulations:
A.

Respondent agrees to pay Complainant,
Juan G. Pena, the sum of $13,000 in
full and complete satisfaction of back
wages due to Complainant under Section 105(c)

142

of the Act, without admitting a
violation of the Act.
B.

Secretary agrees to waive a civil penalty
in this case upon payment of the sum of
$13,000 to Juan G. Pena.

c.

the intent of this agreement is to
settle all claims Complainant may be
due under the provisions of Section
105{c) of the Act.

D.

C0.mplainant waives any right to reinstatement and any right to reapply for a
position.

E.

Eisenman Chemical will remove from the
personnel file any references of Juan G.
Pena's termination, including the letter
of discharge. Such documents and/or
references, however, may become a part
of any relevant litigation file, and
this agreement in no way prejudices
Respondent's rights to use any such
documents and/or references in any
relevant litigation or investigation.

F.

Respondent will give Juan G. Pena neutral
references in the future.
CONCLUSION

After careful review and consideration of the settlement
terms and conditions proposed by the parties in this proceeding,
I conclude and.find that it reflects a reasonable resolution
of the complaint. Further, since it seems clear to me that all
the parties, including Mr. Pena personally, are in accord with
the agreed upon disposition of the complaint, I see no reason
why it should not be approved.
ORDER
The proposed settlement is APPROVED. Respondent IS ORDERED
AND DIRECTED to fully comply with the terms of the agreement.

143

Upon full and complete compliance with the terms of the
agreement, this matter is dismissed.

Roy J

Administrative Law Judge
Distribution:
Jack F. Ostrander, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Federal Building, Dallas, TX 75202
(Certified Mail)
Steven R. Baker, Esq., Fulbright and Jaworski, 800 M. Bank
Building, Houston, TX 77002 (Certified Mail)
Mr. Juan Gilberto Pena, 2038 Rockford Drive, Corpus Christi,
TX 78416 (Certified Mail)

/db

144

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0.C. 20006

January 22, 1986

CIVIL PENALTY PROCEEDING

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

Docket No. SE 85-132

A. C. No. 01-00328-03585
Bessie Mine

v•

JIM WALTER RESOURCES, INC.,
Respondent
DECISION APPROVING SETTLEMENTS
ORDER TO PAY
Before:

Judge Merlin

The Solicitor has filed a motion to approve settlements of
the three violations involved in this matter. The originally
assessed amounts were $15,000, and the proposed settlements are
for $9,500.
Order No. 2482343 cites the operator for a violation of 30
C.F.R. § 77.500 because work was performed inside a wall-mounted,
520-volt, a.c., three-phased switchbox while the box was enerqized and the violation contributed to a fatal accident. An
employee was working on energized terminals inside the box when
he was electrocuted. Had the box been deenergized and locked
out, the accident would not have occurred. A settlement is recommended for the original amount of $5,000. I approve this
settlement.
Citation No. 2483515 cites the operator for a violation of
30 C.F.R. § 77.505 because a cable, supplying power to a distribution center at the motor pit, had not been installed through
proper fittings. This violation was serious because it contributed to the accident. However~ the Solicitor advises that if
the wall mounted switchbox had been deenergized and locked out,
(the first vio1ation discussed above) there would have been no
electrical exposure to the electrician who was killed. In other
words, this citation is part and parcel of the entire situation
for which Order 2482343 sets forth the principal violation. I
accept the recommended settlement of $2,000.

145

Order No. 2482352 cites the operator for a violation of
30 C.F.R. § 77.501 because the pole-mounted power-disconnecting
devices which controlled the power to the safety switchbox, w~~
not disconnected •. Here again, the Solicitor advises. that this.
condition would not have been a violation if the wall mounted
switchbox had been deenergized and locked out (the first violation discussed above). For the reasons already set forth I
accept the recommended settlement of $2,500.

,

The operator is ORDERED TO PAY $9,500 within 30 days from
the date of this decision.

,,,,_
..............................

•

\
Judge
Distribution:
George D. Palmer, Esq., Office of the Solicitor, U. S. Department
of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL
35203 (Certified Mail)
Harold D. Rice, Esq., Jim Walter Resources, Inc., Post Office B~x
C-79, Birmingham, AL . 35283 (Certified Mail)
Robert Stanley Morrow, Esq., Jim Walter Resources, Inc., Post
Office Box C-79, Birmingham, AL 35283 (Certified Kail)
H. Gerald Reynolds, Esq., Jim Walter Corporation, P. O. Box
22601, Tampa, FL 33622 (Certified Mail}
Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, N.W.,
Washington, OC 20006 (Certified Mail)
/gl

146

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

'

22041

...

' ) 1 ' .

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 86-76
A.C. No. 46-05121-03501
Wayne Mine

v.
FRONTIER-KEMPER CONSTRUCTORS,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

This case is before me upon a petition for assessment
of civil penalties under section 105(d) of the Federal Mine
Safety and Health Act of 1977, 3·0 U.S.C. 801 et seq. The
parties have 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 section llO(i) of the Act.
ORDER
WHEREFORE IT IS ORDERED that the motion for approval of
settlement is GRANTED and Respondent shall pay the approved
penalties in the amount of $7,500 within 30 days of this
Decision. Upon such payment this proceeding is DISMISSED.

(J)~

-:;a.u vie/LI

William Fauver
Administrative Law Judge

Distribution:
Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
William H. Howe, Esq., Loomis, Owen, Fellman & Howe, 2020 K
Street, N.W., Suite 800, Washington, DC 20006 {Certified Mail)
Mr. Robert Pond, General Manager, Frontier-Kemper Constructors,
P.O. Box 6548k, 1695 Allen Road, Evansville, IN 47712 (Certified
Mail)
kg

147

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

' '.

CIVIL PENALTY PROCEEDING

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

Docket No. CENT 85-43-M
A. C. No. 41-03162-05504

v.

Chadwick Pit

EL PASO SAND PRODUCTS, INC.,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

a

The Solicitor has filed
motion to approve settlements
of the eight violations involved in this matter. The originally assessed amounts were $3,600 and the proposed settlements are for $3,600. The Solicitor's motion is wholly
inadequate because it does not analyze the violations or
demonstrate why the proposed settlements should be allowed
beyond reciting the bare conclusion that they are fair and
reasonable. Moreover, the Solicitor erroneously refers to
section 105(b) (1) (B) of the Act which concerns the Secretary's
assessment of civil penalties instead of section llO(i) which
sets forth the Commission's authority. However, MSHA's
narrative findings fully explain and justify the violations
and penalty amounts in light of the statutory criteria set
forth in section llO(i). Ori the basis of MSHA's analysis,
I accept the recommended proposals.
Accordingly, the recommended settlements are Approved
and the operator having paid, this matter is Dismissed.

-----~--~?cS-

•

Paul Merlin
Chief Administrative Law Judge

Distribution:
James J. Manzanares, Esq., Office of the Solicitor, u. s.
Department of Labor, 525 Griffin Square Bldg., Rm. 501,
Dallas, TX 75202 {Certified Mail)
Ralph Scoggins, Esq., El Paso Sand Products, Inc., No. 1
McKelligon Canyon Rd., El Paso, TX 79930 (Certified Mail)

yh

148

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

J/HJ :
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. KENT 85-160-M
A.O. No. 15-00034-05506

v.

Greenville Quarry and Mill

CIVIL PENALTY PROCEEDING

GREENVILLE QUARRIES I . INC • '
Respondent
DECISION APP.ROVING SETTLEMENT
Appearances:

William F. Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, TN for
Petitioner,
Rees Kinney, Esq., Jnrvis, Payton and Kinney,
Greenville, KY for Respondent

Before:

Judge Maurer

This case is before me upon a petition for assessment of
civil penalty under Section 105(d} of the Federal Mine Safety
and Health Act of 1977 (the Act). Subsequent to their
opening statements at the hearing on December 6, 1985 at
Nashville, Tennessee, the parties jointly moved for approval of
a settlement agreement and dismissal of the case. The
violations in this case were originally assessed at a total
of $1600 and the parties propose to reduce the penalty to a
total of $800. I have considered the representations and
documentation submitted in this case, and I conclude that
the proffered settlement is appropriate under the criteria
set forth in Section llO(i) of the Act.
WHEREFORE, the motion for approval of a settlement is
GRANTED, and it is ORDERED that Respondent pay a penalty
of $800 within 30 days of this decision. Upon payment,

these proceedings are DISMISSE:~~r~~

Administrative Law Judge

149

Distribution:
William F. Taylor, Esq., Office of the Solicitor, U.S.
Department of Labor, Rm. 208. U.S. Courthouse, 801 Broadway,
Nashville, TN 37203 (Certified Mail)
Rees Kinney, Esq., Jarvis, Payton and Kinney, 118 O'Bryan
Street, P.O. Box 569, Greenville, KY 42345 (Certified Mail)

/db

15C

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

.• CIVIL PENALTY PROCEEDING

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

:
:

Docket No. PENN 85-236
A..
No. 36-02713-03509

c..: Frenchtown
Strip Mine

v.

POWER OPERATING COMPANY, INC.,:
Respondent
:
SUMMARY DECISION
Before:

Judge Koutras
Statement of the Case

This case concerns a civil penalty proposal initiated by
the petitioner against the respondent pursuant to section
llOCa) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 820Ca>, seeking a civil penalty assessment of $20
for an alleged violation of the reporting requirements of
30 C.F.R. § 50.20Ca). The alleged violation is stated in a
section 104(a) citation served on the respondent's representative by an MSHA inspector on April 15, 1985.
The matter was scheduled for a hearing on the merits.
However, the hearing was subsequently cancelled after the
parties agreed to submit the matter to me for summary decision pursuant to Commission Rule 64, 29 C.F.R. § 2700.64.
The parties have filed cross-motions for summary decision,
with supporting stipulations and arguments.
Issue
The issues presented here is whether the respondent violated the requirements of 30 C.F.R. § 50.20(a}, and if so,
the appropriate civil penalty which should be assessed taking
into account the requirements of section llO<i> of the Act.

151

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977:
Pub. L. 85-164, 30 U.S.C. § 801 et seg.
2.

Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i).

3.

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

4.

30 C.F.R. § 50.20(a).
Discussion

Section 104(a) Citation No. 2403692, issued on April 15,
1985, cites a violation of 30 C.F.R. § 50.20Ca), and the cited
condition. or practice is stated as follows:
The operator has omitted on Section A,
the company name. Section C, No. 9, the condition contributing to the accident. No. 10,
equipment involved. No. 11, name of witness
to accident, if any, on the Mine Accident and
Injury and Illness Report, MSHA Form 7000-1,
for accident that occurred on 3-21-85.
The facts in this case are not in dispute. The parties
have stipulated that on March 21, 1985, at 9:30 a.m.,
Mr. John J. Podliski, a miner employed by the respondent,
slipped while on duty and bruised his right knee. He continued to work the remainder of the work day on March 21, but
was off from work on March 22, for reasons associated with
the injury he sustained.
The parties stipulated that the respondent filed the
required accident report with MSHA on March 25, 1985, and
there is no dispute that when it was filed the company name
was omitted from Section A, line two of the report, and that
items 9, 10, 11 of Section C were left blank.
Item 9 is the
space provided for the full description of the conditions
contributing to an accident; item 10 is the space for describing any equipment involved in an accident1 and item 11 is the
space for listing the name of any witness. The citation was
issued because of these omissions.
In support of the citation, petitioner argues that the
reporting requirements of 30 C.F.R. Part 50 implements sections 103(a) and (b) of the Act, and are intended to achieve
the statutory objective or acquisition and analysis of accident, injury, and illness data for the purpose of reducing

152

mine safety and health hazards. Petitioner states that the
reporting requirements established by Part 50 provide a mechanism for the identification of those aspects of mining which
need intensified attention through health and safety regulation. 44 Fed. Reg. 52827 (1979). Part 50 requires the reporting of all occupational injuries irrespective of whether there
exists a causal nexus between the miner's work and the injury
sustained. Secretary of Labor v. Freeman United Coal Mining
Company, 3 MSHC 1447 (1983).
The petitioner points out that the form in question
requires the respondent to fully describe the conditions contributing to an occupational injury a"nd to quantify the resulting damage or impairment. Petitioner maintains that the
failure of the respondent to complete question No. 9 on the
form on its face violates 30 C.F.R. ·§ S0.20(a), and directly
impinges upon MSHA's ability to comprehensively compile data
on injury causation factors. Petitioner also believes that a
delay in the reporting and description of an occupational
injury can .impede the investigative capability of MSHA, and
that an omission on the reporting form def eats the twin goals
of the reporting requirements of Part 50-- swift investigation
of accidents and compilation of injury causation factors.
since these objectives are central to MSHA's efforts at health
and safety regulation, petitioner concludes that the partially
completed form violated 30 C.F.R. § S0.20(a) as a matter of
law.
The respondent concedes that the purpose and scope of
Part 50 is to implement MSHA's authority to investigate, to
obtain and utilize information pertaining to mine accidents,
injuries, and illnesses, and that the information received
will be used to develop the rates of injury occurrence, and,
data respecting injury severity.
Respondent acknowledges that 30 C.F.R. § 50.20-4 sets
forth the criteria for completion of Section A of the form,
and that this includes identification data such as the mine
identification number CI.D.), and the min~ and company name.
Conceding that the obvious purpose for this information is to
identify the mine location and name for investigation purposes, the respondent argues that the information should be
read together with the information at the end of the form
which requires the name of the person completing the form,
the title, date, and the area code and phone number. The
respondent asserts that when it provided the mine I.D. number,
the location of its mine, the name of its clerk, and its phone
number, MSHA had all the information it needed to promptly
investigate. Respondent suggests that had MSHA dialed the

153

listed phone number, the first thing which would be learned is
the company's name, and coupled with its listed I.D. number,
the respondent's involvement would have been readily
identified.
With regard to item No. 9, section C of the form, the
respondent points out that 30 C.F.R. § 50.20-6 states that
the condition contributing to the accident should be
described, and that this means stating what happened, the
reasons therefor, and the factors which contributed to the
injury and damage. Respondent asserts that these requirements should be read together with item Nos. 20, 21, and 22
of the form. Respondent points out that in the report which
i~ filed on March 25, 1985, it was stated that the employee
slipped and bruised his right knee. The amended form which
MSHA accepted as abatement stated that the employee was "walking around the dozer and sprained knee," and the information
provided in the initial report stated the same "slipping and
bruising the knee" information, and that nothing more could
be said.
With regard to item No. 10 as to "equipment," respondent
states that it was left blank since no equipment was involved.
Item No. 11 as to "witnesses" was left blank because no witnesses were involved. Respondent suggests that when all of
the information it submitted on its initial form is read
together, MSHA had all the information necessary to carry out
the purposes of the Act and regulations. Respondent points
out that even with the amended form which was accepted by
MSHA to abate the violation, nothing more was added.
Respondent asserts that the alleged violation and proposed $20 civil penalty assessment is based on a de minimus
and highly technical construction of the regulations. Respondent concludes that the information provided was in substantial compliance with the regulation, and was sufficient for
MSHA to perform its information gathering duties.
Findings and Conclusions
I conclude and find that the injury suffered by
Mr. Podliski was an "occupational injury" as defined by

30 C.F.R. § 50.2Ce), and that it was required to be reported
on MSHA Form 7000-1, as stated in 30 C.F.R. § S0.20(a).
While I agree with the respondent's assertion that the information furnished on the form as originally filed with MSHA
was in substantial compliance with the reporting requirements
of section S0.20Ca), I conclude and find that the failure of
the respondent to fully describe the conditions conttibuting

154

to the accident in question, coupled with the total omission
of the information required in question No. 9, constitutes a
violation of section 50.20(a). While it is true that the
information submitted by the respondent indicated that the
accident victim slipped and bruised or sprained his knee,
there is no information to explain how it occurred, what
caused the slip, etc. The applicable criteria found in section 50.20-6(a)(3), required that this information be
supplied.
Respondent suggests that since the form was filled out
by one of its office clerks, the omissions were the result of
clerical oversight. While this may be true, I take note of
the fact that section 50.20Ca) requires that the form in question be completed or reviewed by the respondent's principal
officer in charge of health and safety at the mine or the
supervisor of the mine area in which the accident or injury
occurred. I find nothing in this case to suggest that this
was done. It seems to me that the preparation or review of
the form by the mine safety officer, or some supervisory foreman at the area where the accident occurred, before it was
submitted may have resulted in the full completion of the
form and may have prevented the issuance of the citation.
With regard to the respondent's assertion that its failure to, include the name of the operator and to complete item
Nos. 10 and 11 were de minimus oversights, while it may be
true that no equipment or witnesses were involved in the
accident, MSHA has no way of knowing that unless the person
submitting the form clarifies it by indicating "none" or otherwise explaining it. MSHA may wish to clarify its instructions
to preclude future oversights and omissions of this kind.
With respect to the omission of the company name, while it is
true that the mine I.D. and telephone number were supplied,
the requirement that the company name be included on the form
seems like a rather basic and innocuous requirement that
should be complied with.
In view of the foregoing, I conclude and find that a
violation has been established, and the citation IS AFFIRMED.
Civil Penalty Assessment
The parties have filed no information concerning the six
statutory criteria found in section llO(i) of the Act. However, I take note of the fact that the violation was assessed
as a "single penalty" by MSHA. The information contained in
the pleadings and proposed assessment made by the pleadings
reflects that the respondent is a small operator. I conclude

155

that a civil penalty of $10 is appropriate and reasonable for
the violation in question.
ORDER
The respondent IS ORDERED to pay a civil penalty in the
amount of $10 for the violation in question, and payment is
to be made to MSHA within thirty (30) days of the date of
this decision. Upon receipt of payment, this matter is
dismissed.

/::!~;
t:?. ~~
~e/A7Ko~
Administrative Law Judge

Distribution:
William T. Salzer, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
John W. Blasko, Esq., McQuaide, Blasko, Schwartz, Fleming &
Faulkner, Inc., 811 University Drive, State .College, PA 16801
(Certified Mail)
/fb

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

LADY JANE COLLIERIES, INC.,
Contestant

22041

CONTEST PROCEEDINGS

v.

Docket No. PENN 85-116-R
Citation No. 24036261 2/5/85

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

Docket No. PENN 85-117-R
Citation No. 24036271 2/5/85
:

:
:

Docket No. PENN 85-151-R
Order No. 24036441 2/21/85

;

Docket Noe PENN 85=152-R
Order No. 2403645; 2/21/85

.

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

.
.: Stott No. 1 Mine
:

CIVIL PENALTY PROCEEDING

:

:

v.

Docket Nb. PENN 85-216
A.C. No. 36-00880-03533
Stott No. 1 Mine

LADY JANE COLLIERIES, INC.,
Respondent
SUMMARY DECISIONS
Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern two citations issued to the
contestant/respondent Lady Jane Collieries (hereinafter
Lady Jane), on February 5, 1985, for two alleged violations
of mandatory health standard 30 C.F.R. § 90.103(b). The citations were issued pursuant to section 104(a) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 814Ca),
because of the alleged failure by Lady Jane to maintain the
pay status of two "Part 90 11 miners who were transferred to
other jobs. The citations were timely contested by Lady Jane
in Docket Nos. PENN 85-116-R and PENN 85-117-R.

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On February 21, 1985, two section 104(b) orders were
issued to Lady Jane because of its alleged failure to timely
abate the previously issued section 104(a) citations.
Lady Jane timely contested the issuance of these orders in
Docket Nos. PENN 85-151-R and PENN 85-152-R. MSHA subsequently filed a proposal for assessment of civil penalties
pursuant to section llO(a) of the Act seeking civil penalty
assesments of $90 for each of the alleged violations.
The parties mutually agreed to waive a hearing on the
merits, and agreed to submit the matters to me for summary
decisions pursuant to Commission Rule 64, 29 C.F.R. § 2700.64.
The parties have filed cross motions for summary decision, a
joint stipulation of facts, and briefs in support of their
respective positions.
Issues
The principal issue presented in these proceedings is
whether or not Lady Jane violated the provisions of 30 C.F.R.
§ 90.103(b) by failing to adequately compensate the two "Part
90 miners" in question. Additional issues raised by the
parties are disposed of in the course of these decisions.
Stipulations
The parties have stipulated to the issuance of the citations and orders, the size and scope of Lady Jane's mining
activities, and to the relevant civil penalty assessment criteria found in section llO(i) of the Act. The joint stipulation of facts with respect to the remaining issues in these
proceedings are as follows:
1. The Stott No. 1 Mine was a medium
sized mine producing approximately 200,000
tons annually.
2. Lady Jane Collieries, Inc., is ultimately owned by Pennsylvania Power and Light
Company. Captive coal mines owned by
Pennsylvania Power and Light Company produced
2,925,361 tons of coal in 1984.
3. Lady Jane employed approximat~ly 100
employees, while operating two active working
sections.

158

4. The mine operated 5 days a week on
three production shifts and produced approximately 1,000 tons of coal per day.
5. In the middle 1970's, the company
built a cleaning plant which processed the
coal from the mine and also from coal purchased from neighboring operations.
6. During 1983, it was determined that
the workable coal seam was being exhausted and
would in fact be depleted sometime late in
1984.

7. In April 1983, the company met with
its employees and informed them of the fact
that the mine's life was nearing an end.
8. It then indicated to the employees
that at the conclusion of the underground
reserves Lady Jane would remain as a surf ace
facility.
9. The surface facility would consist of
a preparation plant which would handle coal
purchased locally from various operators.
10. The employees were informed that
fewer jobs would be available at the plant,
probably 15 or 20 as a maximum.
11. The employees were further advised
that they would be informed in the near future
as to who was chosen to remain at Lady Jane.
12. Additional employees would be
afforded opportunities, if they so chose, at
either construction jobs at Pennsylvania Power
and Light Company or at mining positions with
Pennsylvania Mine Corporation and its various
related companies.
13. Additionally, the opportunity for
severance pay and for early retirement was
discussed at a meeting with the employees.
14. On May 23, 1983, a list of personnel
to remain at Lady Jane was published. That
list included names of personnel and the jobs

159

for which they had been selected. Selection
was done on the basis of seniority and ability
to perform the position in question
(Exhibit 1).
15. Shortly thereafter, some employees
who were not designated to remain at Lady Jane
began to take advantage of jobs with PP&L or
PMC. Exhibits 2 and 3 show employee displacement activity as of June 24, 1983 (Exhibit 2)
and January 28, 1985 (Exhibit 3).
16. Exhibits 4 and 5 show organization
charts of Lady Jane as it existed in 1982
(Exhibit 4) and in August 1984 (Exhibit 5).
17. The underground mining operations at
Lady Jane ceased on December 14, 1984.
18. At that time, all underground coal
production ceased at Lady Jane; the only underground activity which remained was the recovery of the equipment and the mine sealing work.
19. The equipment recovery took a relatively short time while the mine sealing work
currently continues, and it is estimated that
the sealing project will be completed sometime
prior to the end of 1985.
20. On December 17, 1984, a reorganization took place at Lady Jane. That reorganization is exemplified by an organizational chart
(Exhibit 6) which shows the structure of the
organization effective December 17, 1984.
21. At that time, Lady Jane began functioning as a coal preparation facility. Coal
from various local suppliers was trucked into
Lady Jane, processed through its preparation
plant and shipped via Conrail to the Sunbury
Power Plant of PP&L. The only underground
activity that continued was the sealing project which would continue well into 1985.
22. On December 14, 1984, a number of
employees were displaced from Lady Jane. Each
was given an option election in which they
could chose the following:

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Option 1 - Possible employment with
PP&L or PMC
Option 2 - Early retirement with
severance allowance
Option 3 - Severance allowance
Each employee had 30 days following the date
of his layoff to make his determination.
23. Prior to December 14, 1984, Arnold
McCracken had been employed as the general
outside foreman. His job responsibilities
were those as listed on Exhibit 7. With the
closing of the underground mining operation,
many of Mr. McCracken's duties as outside shop
foreman were eliminated since a majority of
his activities had to do with the repair of
underground mining equipment which was no
longer called for. Based upon the completion
of underground mining, Mr. McCracken's position and that of a number of other employees
were terminated as no longer needed.
24. In May 1983, Mr. McCracken had been
designated to stay at Lady Jane as a sampler
(Exhibit 1). The rate on the sampler position
was $10.78 per hour. That rate did not become
effective for Mr. McCracken until January 2,
1985, since from December 17 until January 2,
he was on vacation (Exhibit 8).
25. In 1983, when positions were assigned
for the surface facilities, it was determined
by management that Mr. McCracken did not have
the necessary experience to perform the position of plant foreman. He had never performed
that task in the past, and the incumbent, Clair
Ireland, was designated to perform that task
subsequent to the termination of underground
mining operations at Lady Jane.
26. Some tasks formerly done by
Mr. McCracken were now assigned as additional
responsibility to Mr. Clair Ireland or other
Lady Jane employees; other tasks formerly

161

assigned to Mr. McCracken were completely eliminated due to the closing of the underground
facilities.
(Exhibit 9 •hows those tasks
involved).
27. On January 2, 1985, Arnold McCracken
assumed the position of coal sampler which had
been designated to him since May 23, 1983.
During that period of time, Mr. McCracken would
have had opportunities to move to other f acilities of PP&L or PMC had he so chosen. Even
though he designated to stay at Lady Jane, he
could have opted to transfer as several others
on the designated list had done.
28.
retired.

On January 11, 1985, Mr. McCracken

29. He indicated in his option election
form the option of early retirement with severance allowance. This option entitled
Mr. McCracken to retire at full retirement
even though he had not reached the age of 65
and the severance option permitted him 1 week
of severance pay for each full year of Lady
Jane service. (Exhibit 10.)
30. On January 15, 1985, Mr. Mccracken
filed a discrimination complaint with the Mine
safety and Health Administration.
31. In November 1984, Lady Jane was notified by MSHA that Mr. McCracken was a Part 90
Miner who must be working in an environment
which meets the respirable dust standard
(Exhibit 11).
32. Mr. McCracken was sampled for dust
and MSHA was advised by letter dated
December 3, 1984, that he was already working
in an atmosphere which complied with the
reduced standard and there was no need to
transfer him from his position as outside foreman (Exhibit Nos. 12 and 13).
33. On January 14, 1985, Lady Jane wrote
to MSHA informing them that Mr. McCracken had
retired (Exhibit 14).

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34. Lady Jane received a letter dated
April 16, 1985, from Ronald J. Schell, Chief,
Off ice ~f Technical Compliance and Investigation for MSHA, concerning Mr. McCracken's
105(c) discrimination complaint. The Schell
letter concluded" "A review of the information gathered during the investigation has
been made. On the basis of that review, MSHA
has determined that a violation of Section
105(c) has not occurred" (Exhibit 15).
35. On November 9, 1979, Lady Jane was
informed that Raymond R. Graham was a Part 90
miner (Exhibit 16).
'
36. On August 27, 1980, Raymond R.
Graham transferred from his position as belt
maintenance man to the position of car
dropper-surface, retaining his underground rate
of pay (Exhibit 17).
37. Pursuant to the May 23, 1983,
reorganization plan, Mr. Graham was designated
to stay at Lady Jane as a greaser and mechanic
(Exhibit 1).
38. On December 17, 1984, the Lady Jane
facility was reorganized from a deep mine
facility into a surface preparation facility.

39. Immediately prior to December 17,
1984, Mr. Graham's rate of pay was $15.12 per
hour as a car dropper. (The normal rate of
pay for this surface position was $13.38).
Mr. Graham had retained his high rate from
underground.
40. On December 17, 1984, Mr. Graham's
position was changed from a car dropper-surface
to a greaser-surf ace. His new rate of pay was
$13.38 per hour, which is the surface rate of
pay.
41. The car dropper-surface position was
not eliminated but is currently filled by
Ardell Wallace.

163

Discussion
section lOl(a) of the Act authorizes the Secretary to
"develop, promulgate, and revise as may be appropriate,
improved mandatory health or safety standards for the protection of life and prevention of injuries in coal or other
mines."
Section 101Ca)(7) of the Act provides in pertinent part
as follows:
[W]here appropriate, any such mandatory standard shall prescribe the type and frequency of
medical examinations or other tests which shall
be made available, by the operator at his cost,
to miners exposed to such hazard in order to
most effectively determine whether the health
of such miners is adversely affected by such
exposure. Where appropriate, the mandatory
standard shall provide that where a determination is made that a miner may suffer material
impairment of health or functional capacity by
reason of exposure to the hazard covered by
such mandatory standard, that miner shall be
removed from such exposure and reassigned. ~
miner transferred as a result of such exposure
shall continue to receive compensation for such
work at no less than the regular rate of pay
for miners in the classification such miner
held immediately prior to his transfer. In the
event of the transfer of a miner pursuant to
the preceding sentence, increases in wages of
the transferred miner shall be based upon the
new work classification. * * * (emphasis
added).
The mandatory health standards covering miners who have
evidence of the development of pneumoconiosis were promulgated pursuant to section 101 of the Act, and they became
effective on February 1, 1981, 45 Fed. Reg. 80760-80774. The
regulations appear at Part 90, Title 30, Code of Federal
Regulations.
A "Part 90 Miner" is defined at 30 C.F.R.
follows:

§

90.2, as

"Part 90 miner" means a miner employed at
an underground coal mine or at a surface work

164

area of an underground coal mine who has exercised the option under the old section 203(b)
program (36 FR 20601, October 27, 1971), or
under § 90.3 (Part 90 option1 notice of eligibility1 exercise of option} of this part to
work in an area of a mine where the average
concentration of respirable dust in the mine
atmosphere during each shift to which that
miner is exposed is continuously maintained at
or below 1.0 milligrams per cubic meter of
air, and who has not waived these rights.
The term "transfer" is defined by 30 C.F.R.
follows:

§

90.2, as

"Transfer" means any change in the work
assignment of a Part 90 miner by the operator
and includes: (1) Any change in occupation
code of a Part 90 miner1 (2) any movement of a
Part 90 miner to or from a mechanized mining
unit; or (3) any assignment of a Part 90 miner
to the same occupation in a different location
at a mine.
30 C.F.R. § 90.3(b) and (c) provide as follows:
(b) Any miner who is a section 203(b)
miner on January 31, 1981, shall be a Part 90
miner on February 1, 1981, entitled to full
rights under this part to retention of pay
rate, future actual wage increases, and future
work assignment, shift and respirable dust
protection.
(c) Any Part 90 miner who is transferred
to a position at the same or another coal mine
shall remain a Part 90 miner entitled to full
rights under this part at the new work
assignment.
30 C.F.R. § 90.103 <Compensation), provides in pertinent
part as follows:
(a) The operator shall compensate each
Part 90 miner at not less than the regular
rate of pay received by that miner immediately
before exercising the option under § 90.3
(Part 90 option; notice of eligibility1 exercise of option).

165

Cb) Whenever a Part 90 miner is transferred, the operator shall compensate the
miner at not less than the regular rate of pay
received by that miner immediately before the
transfer.
Cc> The operator shall compensate each
miner who is a section 203Cb) miner on
January 31, 1981, at not less than the regular
rate of pay that the miner is required to
receive under section 203Cb) of the Act immediately before the effective date of this part.
Cd) In addition to the compensation
required to be paid under paragraphs (a), Cb)
and Cc) of this section, the operator shall
pay each Part 90 miner the actual wage
increases that accrue to the classification to
which the miner is assigned.
Lady Jane is charged with a failure to maintain the pay
status of Part 90 miners Arnold M. McCracken (Citation
No. 2403626), who was transferred from his occupation of outside shop foreman to surface coal sampler, and Raymond R.
Graham (Citation No. 2403627), who was transferred from his
occupation of surface car dropper to surface greaser. The
factual stipulations provide the information upon which this
matter arises. The stipulations reveal that in April 1983,
Lady Jane met with the mine employees and informed them that
the workable coal seam would soon be exhausted and at the
conclusion of the underground reserves, Lady Jane would
remain as a surface facility. The surface facility would
consist of a preparation plant which would prepare coal purchased from various local operators. Arnold M. McCracken and
Raymond G. Graham were employees at Lady Jane at that time.
The employees were further informed that as a result of this
change in circumstances, fewer than 15 to 20 jobs would be
available at the preparation plant and that a list of
employees chosen to fill those jobs would soon be posted.
The remaining employees would be afforded the opportunity to
go to work at construction jobs with Pennsylvania Mines
Corporation and its various related companies.
On May 23, 1983, a list of personnel to remain at Lady
Jane was posted. The personnel were selected on the basis of
seniority and ability to perform the position. Mr. McCracken's
name appeared on the list as a sampler. Mr. Graham's name
appeared on the list as a greaser and mechanic. On

166

December 14, 1984, the underground mining operations at Lady
Jane ceased, and on December 17 1984, the reorganization as
reflected on the May 23, 1983; list took effect. As of
December 17, 1984, Lady Jane began functioning as a coal
preparation facility.
MSHA's Arguments
In support of its position in these proceedings, MSHA
relies on the specific wage protection provisions found in
Part 90, as well as its comments and policy statements made
during the rulemaking process in connection with the promulgation of the regulations. The relevant comments deal with the
transfer and compensation rights of the affected miners, and
one significant area of comment concerns changed circumstances
at a mine which may require changes in job assignments. These
comments are noted in pertinent part as follows at 45 Fed.
Reg. 80761:
The operator may transfer a Part 90 miner
without regard to these job and shift limitations if the respirable dust concentration in
the position of the Part 90 miner complies
with the dust standard, but circumstances
require changes in job assignments at the mine.
Reductions in workforce or changes in operational methods at the mine may be the most
likely situations which would affect job
assiqnments. Any such transferred Part 90
miners would still be protected by all other
provisions under this Part. (Emphasis added.>
Another relevant rulemaking comment relied on by MSBA in
connection with section 90.3, is found at 45 Fed. Req. 80764,
and it is as follows:
Although the incidence of pneumoconiosis
amonq miners in surface occupations is thought
to be less than that of underground miners,
dust levels in certain surface jobs, for
example, at cleaning and preparation plants,
may frequently exceed average respirable dust
concentrations of 1.0 mg/m3. Accordingly,
under this rule, any Part 90 miner who Is
transferred by the operator to any surf ace
position, including positions at surface coal
mines~ remains a Part 90 miner In the new surface _ob and Is entitled to all Part 9o
protections. (Emphasis added.)

167

MSHA also relies on the comment made at 45 Fed. Reg.
80767, in connection with the promulgation of section 90.103,
that "This wage protection afforded miners by this regulation
is consistent with Section 10l(a)(7) of the Act and the legislative history pertaining to the enactment of that section."
With regard to the circumstances in connection with the
citation for failure to adequately compensate Arnold
McCracken, MSHA states that prior to December 14, 1984,
Mr. McCracken had been employed at Lady Jane as the general
outside foreman earning $20.70 per hour. A lot of his duties
would be eliminated during the conversion of the facility
because as foreman he had been responsible for the repair of
underground mining equipment. This job would no longer be
necessary at the preparation facility. His new position in
the reorganization would be a coal sampler, and the rate of
pay for the sampler position was $10.78 per hour.
By letter dated November 13, 1984, Lady Jane was notified by MSHA that Mr. McCracken was a Part 90 miner, who had
exercised his option to work in a less dusty atmosphere. The
letter informed Lady Jane that by the 21st calendar day after
receipt of the letter, Mr. McCracken must be working in a low
dust area. If however, he was already working in an atmosphere which complied with the reduce standard, there would be
no need to lower the dust concentration or to transfer him,
but he nevertheless retained his Part 90 rights until he
waived them.
In response to this letter, Lady Jane advised MSHA by
letter dated December 3, 1984, that Mr. McCracken was already
working in an atmosphere which complied with the reduced standard, and thus, there was no need to transfer him to another
position. To support its position, Lady Jane took five samples of dust from Mr. McCracken from December 3, 1984 to
December 7f 1984, which revealed low dust levels.
On December 17, 1984, the date that the reorganization
took effect, Mr. McCracken began his vacation. He did not
return to work until January 2, 1985. Upon his return on
January 2, he assumed the position of coal sampler. On
January 11, 1985, Mr. McCracken retired pursuant to the
option of early retirement with severance pay.
On January 15, 1985, Mr. McCracken filed a section
105(c) discrimination complaint with reference to his transfer. During the course of that investigation, section 104(a)
Citation No. 2403626 was issued, because Lady Jane had failed
to maintain Mr. McCracken's pay status as an.outside general
168

foreman. He had been transferred to the coal sampler position and paid the coal sampler's lower rate of pay.
In response to Lady Jane's assertions that it had no
obligation to continue to pay Mr. McCracken at the rate of
pay of an outside general foreman because a year and a half
earlier, on May 23, 1983, he was made aware of his transfer
based upon the mine reorganization and not his Part 90
status, MSHA submits that the preamble to Part 90 clearly
recognizes no exceptions to the provisions found in Part 90,
and.that any transfer of a Part 90 miner pursuant to a reduction in work force or change in operational methods does not
negate the protections afforded by Part 90. Further, MSHA
points out that any Part 90 miner who is transferred to any
surface position, including positions at a surface coal mine,
remains a Part 90 miner in the new surf ace job. MSHA concludes that upon Mr. McCracken's transfer on December 17,
1984, his Part 90 rights remained with him, and the record is
void of any decision on his part to waive his Part 90 rights.
Accordingly, MSHA believes that the compensation provisions
found at Part 90.103Cb) followed Mr. McCracken to his new
position, and his rate of pay as a coal sampler should have
been the same rate of pay he received as an outside general
foreman, i.e. $20.70. MSHA concludes that Lady Jane's failure to compensate him accordingly was clearly a violation of
Part 90.103Cb), and that the citation was appropriately
issued.
With regard to the issuance of the citation in connection with the failure by Lady Jane to adequately compensate
Raymond s. Graham, MSHA states that on August 27, 1980,
Mr. Graham was transferred from his underground position as
belt maintenance man to the surface position of car dropper.
This transfer occurred as a result of Lady Jane's notification on November 9, 1979, that Mr. Graham was a Part 90 miner
who had elected to transfer. As a result of the transfer,
Mr. Graham incurred no lost wage rate in that he retained his
underground rate of pay.
The May 23, 1983, reorganization plan indicated that
Mr. Graham was to remain at Lady Jane as a greaser and
mechanic. Prior to December 17, 1984, Mr. Graham's salary
was that of an underground belt maintenance man, i.e. $15.12
per hour, although he actually worked on the surface as a car
dropper.· The normal rate of pay for the car dropper was
$13.38 per hour. As of December 17, 1984, Mr. Graham's new
position became effective, i.e., greaser and mechanic-surface,
and his new rate of pay became the normal rate of pay for said

169

position, i.~. $13.38 per hour. Mr. Graham's former position,
of car dropper was not eliminated during the reorganization.
MSHA states that Mr. Graham was transferred from one
surface position to another surface position as a result of
Lady Jane's change in operational method, and that during
this transition he never declined to exercise his Part 90
option. Relying on the rulemakers comments at 45 Fed. Reg.
80764, MSHA maintains that Mr. Graham was in fact a Part 90
miner who was protected by the Part 90 provisions at the time
of the proposed reorganization, as well as at the time of the
actual reorganization. Accordingly, his rate of pay as of
December 17, 1984, should have continued to have been that of
an underground belt maintenance man. MSHA concludes that the
reduction in pay which Mr. Graham incurred as a result of his
transfer was clearly a violation of section 90.103(b), and
that the citation was appropriately issued.
With regard "to the issuance of the section 104(b) orders,
MSHA argues that Lady Jane's failure to abate the violations
within the time allowed by the inspector (February 19, 1985),
appropriately resulted in the issuance of the orders. Citing
Judge Melick's decision in Consolidation Coal Company v.
Secretary of Labor, 3 FMSHRC 2201 (September, 1981), MSHA
asserts that the criteria for examining the validity of the
orders are Cl> the degree of danger that any extension would
have caused to miners, (2) the diligence of the operator in
attempting to meet the time originally set for abatement, and
(3) the disruptive effect an extension would have upon operating shifts.
Although conceding that the violation did not present
any immediate health or safety threat to any miner, MSHA maintains that the violations presented a "chilling effect" upon
the miner's guaranteed statutory Part 90 rights. Since
Congress guaranteed these rights to miners affected by pneumoconiosis without exception, MSHA concludes that Lady Jane's
lack of diligence in attempting abatement, and its continued
failure to date to abate the violations, compounds the "chilling effect" upon statutorily guaranteed compensation rights.
Lady Jane's Arguments
Lady Jane states that in ·Apr 11 of 1983, it met with its
employees and informed them that the life of the underground
mine was coming to an end. On May 23 1983, a list of personnel to remain at the mine along with job titles was posted.
On that list Arnold McCracken was listed as a sampler and
Raymond Graham was listed as a Greaser-Mechanic. Underground

170

mining operations ceased on December 14, 1984, and on
December 17, 1984, a reorganization took place and the mine
began functioning as a surface coal preparation facility.
Lady Jane asserts that in November of 1984, it was
notified that Mr. McCracken had Part 90 status. After
Mr. McCracken was sampled for dust, it was determined there
was no need to transfer him. On January 2, 1985, Mr. McCracken
assumed the position of coal sampler-surface. Prior to the
closing of the underground mine, he had been outside shop foreman, but that position was eliminated as of December 14, 1984.
Prior to December 14, 1985, Mr. McCracken's rate of pay as outside shop foreman was $20.70 per hour and his rate of pay as
coal sampler was $10.78 per hour. On January 11, 1984,
Mr. McCracken retired, choosing an early retirement with severance pay option. On January 15, 1985, Mr. McCracken filed a
discrimination complaint with MSHA, and by MSHA letter of
April 16, 1985, to Mr. McCracken, it was determined that no
violation had occurred. No appeal of that decision has been
taken.
Lady Jane points out that it was not notified of
Mr. McCracken's Part 90 status until November of 1984. However, in May of 1983, Mr. McCracken had been designated to
stay at Lady Jane as a sampler. Under the circumstances,
Lady Jane maintains that it did not violate Part 90 in his
case by reducing his compensation upon transfer to the sampler position because that designation had been made in May
1983, approximately 6 months prior to Lady Jane being notified of his Part 90 status.
Lady Jane points out that section 101Ca)(7) of the Act
states in pertinent part that "any miner transferred as a
result of such exposure shall continue to receive compensation for such work at no less than the regular rate of pay
for miners in the classification such miner held immediately
prior to his transfer." However, in Mr. McCracken's case,
Lady Jane maintains that no transfer "as a result of such
exposure" ever took place. In support of this argument, Lady
Jane points out that after it was notified of Mr. McCracken's
Part 90 status in November of 1984, he was sampled for dust
and MSHA was advised by letter of December 3, 1984, that he
was already working in an atmosphere which complied with the
reduced dust standard and there was no need to transfer him
from his outside foreman position.
Lady Jane concedes that there is a substantial difference in the pay rate of $20.70 an hour received by
Mr. McCracken while serving as an outside shop foreman, and

171

the $10.78 hourly rate he received in his coal sampler's job.
However, Lady Jane states that the $10.78 hourly coal sampler's pay is the prevailing pay rate on that particular job
classification, and it points out that Mr. McCracken had
ample opportunity from May 1983 to seek other job opportunities with either Pennsylvania Power and Light Company or
Pennsylvania Mines Corporation, but did not do so. Instead,
he expects to be paid approximately twice as much per hour as
of December 17, 1984, as a similarly situated employee, and
Lady Jane believes that this is windfall which makes no
economic sense.
Lady Jane states that Mr. McCracken filed a discrimination complaint in which he made the following complaint:
They transferred me from general outside
foreman to sampler at the scales for truck
coal and in doing this they cut my wages, and
still have another man doing my original job.
They said my job was no longer there so if I
wanted to work it would be the sampling job.
Lady Jane points out that Mr. McCracken's complaint was
thoroughly investigated by MSHA, and that on April 16, 1985,
MSHA made a determination that Lady Jane had not discriminated against Mr. McCracken, and that a violation of section
105(c) the ~ct did not occur. Mr. McCracken did not appeal
that ruling.
With regard to Mr. Graham, Lady Jane asserts that on
November 9, 1979, it was informed that Mr. Graham was a Part
90 miner. On August 27, 1980, Mr. Graham transferred from
his underground position as belt maintenance man to the
surface position of car dropper, retaining his underground
rate of pay. On May 23, 1983, Mr. Graham was designated to
stay on after the reorganization as a greaser and mechanic.
Immediately prior to December 17, 1984, Mr. Graham's rate of
pay was $15.12 per hour as a car dropper.
(The normal rate
of pay for this surface position was $13.38). Mr. Graham had
retained his high rate from underground. On December 17,
1984, Mr. Graham became a greaser-surface at $13.38 per hour.
The car dropper surface position was not eliminated, but is
currently filled by Ardell Wallace. The rate for that job is
$13.38 per hour. Mr. Graham's previous· underground position
of belt maintenance man was eliminated on December 14, 1984.
Lady Jane maintains that the purposes of the Act are not
served by requiring it to continue paying Mr. Graham underground pay rates after the closing of its underground mine.

172

Lady Jane states that although Mr. Graham transferred from
the underground mine in August of 1980 and retained his underground rate of pay until December 14, 1984, when the underground mining operation ceased, MSHA would now require Lady
Jane to pay him $15.12 per hour when his fellow surface
employees are receiving $13.38 per hour for a like position.
Lady Jane submits that as of December 14, 1984, it
ceased underground coal mining operations and became a surf ace preparation facility only for coal from other mines.
Since it was no longer an "underground coal mine" or a "surface work area of an underground coal mine" as stated in
30 C.F.R. § 90.3(a), Lady Jane maintains that the cited mandatory health standard 30 C.F.R. § 90.103{b), is no longer
applicable and the citations and orders should be dismissed.
Lady Jane argues that the legislative history of the Act
reflects a congressional intent that Part 90 miners be protected when they are transferred because of a dust problem,
and not when they are transferred because of independent
legitimate business reasons. Further, Lady Jane argues that
MSHA's Part 90 rules must be interpreted and applied in light
of their underlying statutory goals and purposes, and since
it is clear in these proceedings that Mr. McCracken and
Mr. Graham were indisputably transferred for legitimate business reasons rather than any dust problems, MSHA's policy
determinations with respect to the interpretation and application of its Part 90 rules in·these proceedings conflict with
the legislative intent and should not be followed.
Lady Jane submits that MSHA's Part 90 rules should not
be interpreted to create a class of "elite miners" who are
immune to the economic forces that affect everyone else, and
that simply because a miner has exercised his Part 90 option,
does not mean that he has acquired economic invulnerability.
Lady Jane asserts that the rules must be interpreted with an
eye to protecting miners who may be developing black lung and
to encourage them to exercise their right to transfer, without, in the process, "turning them into demigods."
Lady Jane submits that so long as no discrimination is
shown under the Act, a Part 90 miner should be able to be discharged for cause or laid off as a result of a down turn in
employment. So too, given a reorganization from anunderground mine to a surface preparation facility and a work force
of substantially smaller proportion, the mine,operator should
not be required to pay a Part 90 miner a premium rate for surf ace work when the purpose for the regulation no longer
exists.

173

Assuming that MSHA prevails in these proceedings, Lady
Jane believes that any payment to Mr. Graham should only be
the pay differential between $13.38 and $15.12 per hour from
December 17, 1984, to the present for hours worked. Lady Jane
does not believe that a penalty and/or interest would be appropriate under the instant circumstances. As to Mr. McCracken,
Lady Jane believes that the pay differential would be the difference between $10.78 per hour and $20.70 per hour for hours
worked between January 2, 1985, Cprior to this Mr. McCracken
had been on vacation) when he took the sampler position, and
January 11, 1985, when he retired CStip. 36, 37, 38 and
Exhibit 10). Lady Jane does not believe that a penalty and/or
interest would be appropriate under the circumstances.
Findings and Conclusions
With regard to Mr. McCracken, MSHA does not dispute the
fact that upon elimination of Lady Jane's underground mining
operation and the conversion to a surf ace mining coal preparation facility, many of Mr. McCracken's duties as a general
outside foreman would be eliminated, and his prior responsibilities for the repair of underground equipment would no
longer be necessary. MSHA concedes that Mr. McCracken's new
position in the reorganization would be as a coal sampler at
the regular rate of pay of $10.78 per hour for such a
position.
MSHA takes the position that when Lady Jane was notified
on November 13, 1984, that Mr. McCracken was a Part 90 miner
who had exercised his option to work in a less dusty atmosphere, his rights at a Part 90 miner vested, and the fact
that a subsequent reduction in the work· force or change in
operational methods resulted in the elimination of the underground mine, including Mr. McCracken's surface position, did
not divest him of his Part 90 miner rights.
At the time Lady Jane was advised that Mr. McCracken had
Part 90 miner status, MSHA also advised Lady Jane that there
would be no need to transfer Mr. McCracken if he were already
working in an atmosphere which complied with the reduced dust
standard. Lady Jane advised MSHA that Mr. McCracken was
already working in an atmosphere which complied with the
reduced dust standard, and that there was no need to transfer
Mr. McCracken. When the reorganization took effect on
December 17, 1984, Mr. McCracken's prior position as a general outside foreman was eliminated, and he was placed in the
position of coal sampler. He assumed the duties of this position on January 2, 1985, when he returned from vacation, and

174

served in that capacity until his retirement on January 11,
1985.
Mr. McCracken had prior notice that his outside foreman's job would be eliminated and that he would assume the.
job as a coal sampler when Lady Jane posted a list of
employees who were slated to remain at the new surface facility on May 23, 1983, approximately six months prior to
Mr. Mcracken's designation as a Part 90 miner. Under the
circumstances, I conclude and find that Lady Jane's decision
in connection with its reorganized operations and realignment
of the remaining workforce was communicated to Mr. McCracken
prior to his transfer option eligibility as a Part 90 miner,
and there is nothing to suggest that the decision in this
regard was other than a legitimate and good faith business
decision made by Lady Jane in the face of changed economic
circumstances. It seems clear to me that the placement of
Mr. McCracken in the coal sampler position came about as a
result of the reduction of the workforce rather than any
hazardous dust exposure.
·
I conclude that Mr. McCracken was entitled to take advantage of the "wage savings" provisions of section 10l(a)(7} of
the Act and 30 C.F.R. § 90.103(b), provided it is. established
that his placement or "transfer" in the new position was the
direct result of his exposure to hazardous levels of dust. I
construe the transfer language found in section 10l(a)(7) to
require a showing of a nexus between the dust exposure and
the transfer. The statute requires that a miner exposed to
hazardous levels of dust be removed from such exposure and
reassigned. If he is transferred as a result of such expo.!!:!£.!, he is entitled to be compensated according to his regular rate of pay for the job held immediately prior to his
transfer. The miner's exposure to hazardous dust levels is a
condition precedent to his removal and reassignment.

The purpose of the protected wage provisions found in
the Act and rule with respect to Part 90 miners is to encourage miners to exercise their transfer option to a job in a
less dusty atmosphere. By not having to take a pay cut upon
transfer to a position which may pay less, the miner is more
likely to transfer to protect his health than he would be
otherwise. In Mr. McCracken's case, at the time Lady Jane
was advised of Mr. McCracken's Part 90 status no transfer
took place, and Lady Jane had no duty to transfer him because
it was In compliance with the dust exposure requirements connected with Mr. McCracken's working environment. As a matter

175

of fact, Mr. McCracken ended up in the position of coal sampler after a legitimate reduction in force eliminated his
prior position.
MSHA's argument that Part 90 recognizes no exceptions
with respect to the reasons for a miner's transfer IS
REJECTED. I find ·nothing in the legislative history to
suggest that Congress intended that an eligible Part 90 miner
or potential transferee be forever insulated from the economic realities of the mining business. Nor do I find anything to suggest that a mine operator must forever guarantee
a miner's wages in any subsequently acquired jobs which may
come about as the result of changed economic circumstances.
I find nothing in the legislative history to suggest
that when Congress enacted the remedial provisions of section
101Ca)C7), it intended to guarantee a miner continued job
security, or to insulate a miner from any future adverse economic consequences which may flow from a mine operator's
legitimate business concerns and decisions. Further, I find
nothing in the legislative history to suggest that Congress
intended to forever penalize a mine operatqr economically in
the case of a Part 90 miner transferee. The intent of the
statute is to afford the miner an opportunity to remove himself from dusty work environment, and I take note of the fact
that while a transferred miner is entitled to the pay rate of
his old position, any future pay increases are based on his
new position. If the new position is at a pay rate lower
than that of the previous job held by the miner, the miner
would only be entitled to future raises computed on the basis
of the lower pay scale of the new job classification, notwithstanding the fact that his regular salary remains tied to his
former job. It seems to me that had Congress intended to
fully guarantee a miner's pay, it would have enacted a provision to ensure that any future salary increases be maintained
at the higher rate of pay. However, rather than doing that,
Congress placed a special limitation on any subsequent wage
increases received by a transferred miner.
I take note of MSHA's rulemaking comments at 45 Fed.
Reg. 80767. In referring to the legislative history from the
Conference committee Report, MSHA quotes language which
reflects a Congressional concern that miners reassigned jobs
pursuant to section 10l(a)(7) should not suffer an immediate
financial-disadvantage. While this suggests an intent that a
miner not be penalized economically at the time he exercises
his option to transfer to a job in a less dusty atmosphere,
it does not suggest that he be forever insulated from the
prospects of receiving a lower wage in any future jobs which

176

come about as a result of events which are far removed from
the conditions which placed him a Part 90 status in the first
place.
·
I find no rational support for MSHA's suggestion that
once transferred, a Part 90 miner is entitled to perpetual
wage protection as long as he remains on a mine payroll, even
though that mine may no longer fall within the parameters of
section 101Ca)(7) of MSHA's Part 90 regulations. I note that
during the rulemaking comment period when it was suggested
that Part 90 miners who are so situated on the effective date
of the rules receive retroactive wage increases, MSHA was of
the view that there would be no benefit in terms of enhanced
health protection to be gained from applying the rule retroactively, 45 Fed. Reg. 80767. Similarly, I cannot conclude
that there is any enhanced health benefit to be gained by
requiring a mine operator to forever guarantee a miner's wage
when he finds himself in another job that is the direct
result of changed economic circumstances rather than health
or safety circumstances.
·
I conclude and find that Mr. McCracken's placement in
the coal sampler's job was the result of a legitimate and
good faith reorganization and reduction in force, rather than
an exposure to hazardous dust levels. Under the circumstances, and in view of my findings and conclusions concerning my interpretation and application of section 10l(a)(7)
and 30 C.F.R. § 90.103(b), I conclude that Lady Jane was
under no obligation to maintain Mr. McCracken's pay status as
an outside shop foreman at the time he was placed in the coal
sampler's job. Accordingly, MSHA has not established a violation of 30 C.F.Ro § 90.103Cb), and section 104(a) Citation
No. 2403626, February 5, 1985, and section 104Cb) Order
No. 2403645, February 21, 1985, are VACATED. MSHA's civil
penalty proposal for the citation IS REJECTED AND DISMISSED.
As stated earlier, the purpose of the wage provision
found in the Act and rule with respect to Part 90 miners is
to encourage miners to exercise their transfer option to a
job in a less dusty atmosphereo By not having to take a pay
cut upon transfer to a position which may pay less, the miner
is more likely to transfer to protect his health than he
would be otherwise. In Mr. Graham's case, his August, 1980,
transfer from underground belt maintenance man to surface car
dropper was an option exercised by Mr. Graham to preclude his
further exposure to hazardous dust, and the transfer was
accomplished by Lady Jane in response to MSHA's earlier notification of Mr. Graham's Part 90 miner status.

177

At the time of his transfer to the car dropper's position, Mr. Graham retained his underground belt maintenance
man pay rate and continued to be paid at that rate while occupying the position of surface car dropper. Although he was
subsequently designated by Lady Jane in May, 1983, to be
retained in its employ as a surface greaser after the effective date of the reduction in force and reorganization, Lady
Jane continued to pay him his underground rate until
December 17, 1984, when he actually became a surface greaser.
Under these circumstances, it seems clear to me that
Mr. Graham's initial transfer and salary retention were accomplished in full compliance with the applicable statutory and
regulatory requirements of the law. It also seems clear that
Mr. Graham's initial transfer in 1980 was the direct result
of his Part 90 miner status, and his decision to exercise his
transfer option. There is no evidence to suggest that at
that point in time Lady Jane or Mr. Graham had knowledge of
the subsequent chain of events which gave rise to the reorganization and reduction in force.
With regard to Mr. Graham's subsequent placement in the
surface greaser position, I conclude and find that it came
about as the result of the reorganization and reduction in
force, and not because of Mr. Graham's Part 90 miner status.
On the effective date of the reorganization, the underground
mine was no longer in existence, the remaining work force was
realigned in accordance with seniority, and Mr. Graham was
placed from one surface job to another. Even" if he had not
been a Part 90 miner, the result would have been the same,
and his options were somewhat limited. He could have
resigned, taken optional retirement, or sought employment in
other positions within Lady Jane's corporate structure. He
obviously opted to stay on as an employee of Lady Jane, and
had no choice as to the position for which he was selected to
be retained in the realigned work force.
! conclude and find that Mr. Graham's placement in the
surface greaser 9 s position was the result of a leqitimate
business need of Lady Jane, and that it was the result of a

reduction in force and reorqanization, rather than a transfer
resulting from dust exposure. For the same reasons discussed
with respect to my findings and conclusions aoncernin9 my
interpretation and application of section 101Ca>C7> and
30 C.F.R. § 90.103(b), in Mr. MoCraoken's case, I conclude
and find that Lady Jane was under no obligation to maintain
Mr. Graham 1 s pay status as a greaser. Accordingly, I cannot
conclude that MSHA has established a violation of section
90.103(b) 1 and section 104(a) Citation No. 2403627,
February S, 1985, and section 104(b) Order No. 2403644,

178

February 21, 1985, ARE VACATED. MSHA's civil penalty proposal for the citation IS REJECTED AND DISMISSED.
Lady Jane's contentions that the citations and orders
should be dismissed because it no longer operates ari underground coal mine or a surf ace work area of an underground
·coal mine, and therefore 30 C.F.R. § 90.103Cb) is no longer
applicable, ARE REJECTED. I conclude that at the time of the
operative violations in these proceedings, Lady Jane was subject to the provisions of section 90.103Cb). When the underground mine was in operation, the surface cleaning plant
processed coal from that mine as well as neighboring mines,
and it was shipped to the Sunbury power plant of Pennsylvania
Power & Light Company. When the underground mine was closed,
the surface preparation plant continued to process coal from
various local mine operators, and it continued to be shipped
to the Sunbury plant. Thus, I conclude that the area of the
new surf ace preparation plant was a surface work area of an
underground mine at the time Mr. McCracken and Mr. Graham
were designated and placed in their last work positions. I
also conclude that the definition of "surface work area of an
underground coal mine" found in 30 C.F.R. § 90.2, is broad
enough to cover Lady Jane's surface preparation facility.
ORDER
On the basis of the foregoing findings and conclusions,
Lady Jane's contests ARE GRANTED, and the citations and
orders in question ARE VACATED. MSHA's civil penalty proposals ARE REJECTED, and the civil penalty proceeding IS
DISMISSED.

«/

f,/",fA!,i:'.
~~
/ §Uge
,J<. Kou flrrt"~
Administrative Law Judge

Distribution:
Joseph T. Kosek, Jr., Esq., Lady Jane Collieries, P.O.
Box 367, Ebensburg, PA 15931 {Certified Mail)
Covette Rooney, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
/fb
17 9

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

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

·. ·7 ,.H
.. I ! ;/

CIVIL PENALTY PROCEEDING

...
.

Docket No. WEST 84-71-M
A.C. 04-00157-05507

:

Cushenbury Cement Plant

:

v.
KAISER CEMENT CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Lasher

Upon Petitioner's motion for approval of a proposed settlement, and the same appearing proper and in the full amount of the .
initial assessment as to 3 of the 4 violations involved, the
settlement is approved.
The terms of the settlement are as follows:

Citation
2245606
2245607
2245608
2245609

Date
11/17/83
11/17/83
11/17/83
11/17/83

Health and Safety
Standard Violated
56.6-113

56.6-117
56.6-161
56.5-112
Total

Original
Proposed Settlement
Penalty Amount
$2,000
$2;000
2,000
2,000
1,000
650
100
100
$5,100
$4,750

In the premises, approval of the settlement is warranted.
The documentary record in this matter reflects that while
the violations were promptly abated by Respondent, they resulted
from a high degree of negligence and were of a high degree of
gravity since an injury resulted from the improper blasting procedures practiced.
The reduction in the penalty originally proposed by the
Secretary with respect to Citation No. 2245608 appears justified
since it is but one of the four infractions charged arising from
the same incident and since a question of proof exists as to such
violation as charged.
In the 24 months preceding the violation, no alleged
violations were assessed against the Respondent at the facility
involved.
180

The size of the Respondent, a large mine operator, ia approximately 2,025,808 man-hours per year. The size of the
subject facility is approximately 550,000 man-hours per year.
The ability of the Respondent to continue in business will
not be impaired by the payment of the settlement amounts
specified.
In the premises, approval of the settlement is warranted.
Respondent, if it has not previously done so, is ordered to
pay to the Secretary of Labor within 30 days from the date hereof
the sum of $4,750.00.

./ /

/j/tv~

p //
, .,
t/. ~C-L /'L-

Mic hael A. Lasher, Jr.
Administrative Law Judge
Distribution:
Lyle R. Nishimi, Esq., and Rochelle Ramsey, Esq., Office of the
Solicitor, U. S. Department of Labor, 3247 Federal Building, 300
N. Los Angeles Street, Los Angeles, CA 90012 (Certified Mail)
James P. Hargarten, Esq., Thelen, Marrin, Johnson & Bridges, Two
Embarcadero Center, San Francisco, CA 94111 (Certified Mail)
/blc

181

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner
v.
VOLUNTEER COAL CORPORATION,
Respondent

.
.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 85-242
A.C. No. 46-06805-03509

..:

No. 1 Mine

DECISION APPROVING SETTLEMENT
Appearances:

Before:

Jonathan M. Kronheim, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for Petitioner1
William Stover, Esq., M.A.E. Services Inc.,
Beckley, West Virginia, for Respondent.

Judge Melick

This case is before me upon a petition for assessment
of civil penalty under Section 105(d) of the Federal Mine
Safety and Health Act of 1977 Cthe Act). Petitioner has
filed a motion to approve a settlement agreement and to
dismiss the case. Respondent has agreed to pay the proposed
penalty of $800 in full. I have considered the representations and documentation submitted in this case, and I conclude that the proffered settlement is appropriate under the
criteria set forth in Section llO(i) of the Act.
WHEREFORE, the motion for approval of settlement is
GRANTED, and it is ORDERED that Respondent pay a penalty of
$800 within 30 days of this order.

;i\

G~ry~e~~ ~

\

A<;lminis_trative ~aw Judge \ j ~
Distribution:
i
·'\.

Jonathan M. Kronheim, Esq., Officelof the S~licitor, U.S.
Department of Labor, 4015 Wilson Bbulevard, 'jRoom 127A,
Arlington, VA 22003 (Certified Mail>
William Stover, Esq., M.A.E. services Inc., 41 Eagles Road,
Beckley, WV 25801 (Certified Mail)
Mark M. Neil, Esq., 1800 Parker Road, Beckley, WV 25801
(Certified Mail)
182

rbg

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

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

••

v.
YOUGHIOGHENY & OHIO COAL

co.,

.••
.••

Respondent

..•
.
.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 84-98
A• c. No. 33-00968-03568
Nelms No. 2 Mine

ADDENDUM TO DISCIPLINARY REFERENCE
Appended to the trial judge's decision of January 22,
1986, in the captioned matter was a Disciplinary (Rule 80)
Reference on Robert c. Kota, counsel for the operator. In
support of Specifications 2 through 6, the trial judge cited
provisions of the Model Rules of Professional Conduct. These
rules are reflective of the standards of professional conduct
impos~d by Rule 11 of the Federal Rules of Civil Procedure as
amended and promulgated in 1983.1 Three recent decisions
by United States courts of Appeals show that amended Rule 11
imposes a duty of competence and diligence that is to be
judged by a standard of objectivity designed to deter the
filing and prosecution of unfounded claims.
Thus, in In Re TIC, Ltd., 769 F. 2d 441, 445 (7th Cir.
1985), the Court held that "If a lawyer pursues a path that a
reasonably careful attorney would have known, after appropriate inquiry, to be unsound, the conduct is objectively
unreasonable and vexatious." The Court further held that
lawyers who continue to litigate even initially plausible
claims after it becomes clear they are unfounded violate
Rule 11 Id. at 448-449.

lRule l(b) of the Commission Rules of Practice provides that
on any proc.edural question not otherwise covered by the rules
"the Commission or its Judges shall be guided so far as
practicable by any pertinent provision of the Federal Rules
of Civil Procedure as appropriate."
183

In Eastway Construction Company, 762 F. 2d 243, 253-254
(2d Cir. 1985), the Court admonished the bar as follows:
No longer is it enough for an attorney to claim that he
acted in good faith, or that he was personally unaware
of the groundless nature of an argument or claim. For
the language of the new Rule 11 explicitly and unambiguously imposes an affirmative duty on each attorney to
conduct a reasonable inquiry into the viability of a
pleading before it is signed. Simply put, subjective
good faith no longer provides the safe harbor it once
did.

*

*

*

In light of the express intent of the drafters of Rule
11, and the clear policy concerns underlying its amendment, we hold that a showing of subjective bad faith is
no longer required to trigger sanctions imposed by the
rule. Rather sanctions shali be imposed against an
attorney and/or his client when it appears that a
pleading has been imposed for any improper purpose, or
where, after reasonable inquiry, a competent attorney
could not form a reasonable belief that the pleading is
well grounded in fact and is warranted by existing law
or a good faith argument for the extension, modification or reversal of existing law.
Accord: Davis v. Veslan Enterprises, 765 F. 2d 494, 497,
n. 4 (5th Cir. 1985).
· ·
It is clear that the position taken by counsel for the
operator in this proceeding was based on a legal theory that
had been authoritatively rejected and sought remedies for
which there was no precedent or statutory authority.
The premises considered, th
this addendum be made a part of
this proceeding.

it is ORDERED that
of reference in

eph B. Kennedy
Administrative Law

184

Distribution:
Patrick M. Zohn, Esq., Office of the Solicitor, u. s.
Department of Labor, 1240 East Ninth Street, Cleveland, OH
44199 (Certified Mail)
Robert c. Kota, Esq., The Youghiogheny & Ohio Coal co.,
P. O. Box 1000, St. Clairsville, OH 43950 (Certified Mail)
dcp

185

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

2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

CIVIL PENALTY PROCEEDING

SECRETARY OF LA.BOR /
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

Docket No. KENT 85-121-M
A.C. No. 15-00056-05502

v.

Jenkins Mine & Mill

ADAMS STONE CORPORATION,
Respondent
DECISION
Before:

Judge Fauver

This case is scheduled for hearing in Lexington, Kentucky,
on April 7, 1986.
Respondent has filed a statement that it will not attend
the hearing.
This statement is deemed to be a waiver of
Respondent's hearing rights and a withdrawal of its contest
of the Secretary's Proposal for Assessment of Civil Penalty.
ORDER
WHEREFORE IT IS ORDERED that:
1. The allegations in the Secretary's Order No. 2385598,
January 16, 1985, and amended on January 20, 1985, are deemed
to be true and are incorporated herein as Findings of Fact
and Conclusions of Law.
2. Considering the criteria of section llO(i) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801,
et seq., Respondent is ASSESSED a civil penalty of $180 for
each of the four violations alleged in the attachments to
the Secretary's Proposal for Civil Penalty.
3o
Respondent shall pay the above-assessed civil
penalties in the total amount of $720 within 30 days of
this Decision.

lJ:u~~.;~
William Fauver
Administrative Law Judge
Distribution:

186

Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Mr. David Adams, Vice President, Adams Stone Corporation, P.O.
Box 2320, Pikeville, KY 41501
(Certified Mail)

kg

-Q-U.S GOVERNMENT PRINTING OFFICE:

I 9 8 6 - 4 9 l - 2 2 3 / 4 7 O5 3

187