JANUARY 1991

COMMISSION DECISIONS
01-25-91
01-29-91

Blackfoot Coal Company
Mettiki Coal Corporation

VA
90-44
YORK 89-6

Pg.
Pg.

1

KENT 90-116
PENN 90-186-D
WEST 89-365
LAKE 90-53
WEST 88-275-M
KENT 90-128
SE
87-87-D

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

9
32
33
40
46
48
66

SE
91-10-R
Pg.
YORK 90-11-M
Pg.
KENT 91-25-R
Pg.
WEST 91-104-DM Pg.

68
'81
93
96

3

ADMINISTRATIVE LAW JUDGE DECISIONS
01-08-91
01-08-91
01-08-91
01-09-91
01-11-91
01-14-91
01-14-91
01-14-91
01-14-91
01-15-91
01-16-91
01-16-91
01-17-91
01-17-91
01-17-91
01-17-91
01-17-91
01-18-91
01-18-91
01-18-91
01-22-91
01-23-91
01-23-91
01-24-91
01-24-91
01-24-91
01-29-91
01-31-91
01-31-91
01-31-91

Beech Fork Processing, Inc.
Donald F. Rados v. Beth Energy Mines
National King Coal, Inc.
Southern Ohio Coal Company
Sanger Rock and Sand
Ike Coal Company, Inc.
Sec. Labor for Michael Price & Joe John
Vacha & UMWA v. Jim Walter Resources
Drummond Company
Whibco, Incorporated
Prestige Coal Company
Sec. Labor for Robert J. Richardson v.
J.S. Redpath Corporation
Beaver Creek Coal Company
Energy Fuels Coal, Inc.
Energy Fuels Coal, Inc.
Energy Fuels Coal, Inc.
Energy Fuels Coal, Inc.
Energy Fuels Mining Company
GFD Construction Co., Inc.
Brighton Sand & Gravel
Consolidation Coal Company
Sec. Labor for Clyde C. Cole v. Canyon
Country Enter./Curtiss Sand & Gravel
Consolidation Coal Company
USS, a Division of USX Corporation
Keith Lewallen & Charles Patterson d/b/a
Tippy Coal Company
Ronald L. Shriver v. Consolidation Coal Co.
Explosives Technologies International, Inc.
Bethel Fuels Incorporated
Charles T. Smith v. KEM Coal Company
Drummond Company, Inc.
Drummond Company, Inc.

WEST 89-396-R Pg. 98
WEST 89-266-R Pg. 109
WEST 89-283-R Pg. 112
WEST 89-304-R Pg. 115
WEST 89-433
Pg. 118
WEST 90-91
Pg. 121
SE
90-6-M
Pg. 123
WEST 90-63-M
Pg. 127
WEVA 90-122
Pg. 137
WEST 90-165-DM Pg. 142
WEVA 90-302
LAKE 90-28-RM
KENT 89-201

Pg. 144
Pg. 145
Pg. 157

· WEVA 90-286-D
CENT 90-95-M
WEVA 90-186
KENT 90-30-D
SE
90-124
SE
90-143

Pg. 160
Pg. 161
Pg. 165
Pg. 166
Pg. 168
Pg. 170

...

'--~-~

JANUARY 1991
Review was granted in the following cases during the month of January:
Secretary of Labor, MSHA v. Southern Ohio Coal Company, Docket No.
WEVA 90-141. (Judge Broderick, November 26, 1990)
Roy Farmer and others v. rsiand Creek Coal Company, Docket No.
VA 91-31-C. (Judge Broderick, December 20, 1990)
Secretary of Labor ·on behalf of Michael Price and Joe John Vacha, .and
UMWA v. Jim Walter Resources, Inc., Docket No. SE 87-128-D. (Judge
Broderick, December 20, 1990)
Donald Northcutt, Gene Myers and Ted Eberle v. Ideal Basic Industries, Inc.,
Docket No. CENT 89-162-DM. (Judge Morris, Interlocutory Review of a
December 13, 1990 order.)
Review was denied in the following cases during the month of January:
Dennis Wagner v. Pittston Coal Group, etc., Docket No. VA 88-21-D.
(Judge Broderick, November 26, 1990)
Featherlite Corporation v. Secretary of Labor, MSHA, Docket No.
CENT 88-113-RM, etc. (Judge Cetti, December 13, 1990)
Secretary of Labor, MSHA v. Tunnelton Mining Company, Docket No.
PENN 90-17. (Judge Fauver, December 14, 1990)

COMMISSION DECISIONS

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

January 25, 1991
SECRETARY OF IABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 90-44

v.

Bl.ACKFOOT COAL COMPANY
BEFORE:

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

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On December
18, 1990, Commission Chief Administrative Law Judge Paul Merlin issued an
Order of Default finding respondent Blackfoot Coal Company ("Blackfoot") in
default for its failure to answer the Secretary of Labor's civil penalty
proposal and the judge's order to show cause. The judge assessed Blackfoot
a civil penalty of $4,273, as proposed by the Secretary. On January 14,
1991, Blackfoot filed a petition for discretionary review ("PDR") of the
judge's default order, requesting that the case be reopened. For the
reasons explained below, we vacate the judge's default order and remand for
further proceedings.
The record discloses that inspectors of the Department of Labor's Mine
Safety and Health Administration ("MSHA") issued to Blackfoot a section
104(d) citation, a section 104(d)(l) order, and three section 104(a)
citations alleging violations of various safety regulations. Upon
preliminary notification by MSHA of the civil penalties proposed for these
alleged violations, Blackfoot filed a "Blue Card" request for a hearing
before this independent Commission. On August 3, 1990, counsel for the
Secretary filed a proposal for penalty assessments, a copy of which was sent
to:. "Blackfoot Coal Company, Inc.[,] Attn: Gary A. Horn, President[,] P.O.
Box 395[,) Nora, VA 24222." When no answer to the penalty proposal was
filed, the judge, on September 17, 1990, issued a show cause order directing
Blackfoot to file an answer within 30 days or show good reason for its
failure to do so. The order was sent to Horn at the same Nora, VA address.
Under the Commission's rules of procedure, the party against whom a penalty
is sought must file an answer with the Commission within 30 days after
service of the proposal for penalty. 29 C.F.R. §§ 2700.S(b), 2700.28.
In its PDR, Blackfoot states that the Secretary's proposal for penalty
assessments and the judge's show cause order were sent to an incorrect
former address of Blackfoot, that Horn was never president of Blackfoot, and
that Horn was not employed by Blackfoot at the time the proposal and show
.

1

cause order were received by him, although he had previously been employed
by Blackfoot. Blackfoot asserts that mail incorrectly addressed to it has
sometimes been delivered to Horn because the postman thought Horn still
worked for Blackfoot. The PDR, filed by Blackfoot's president, Sam
Blankenship, states Blackfoot's correct address as P.O. Box 1802, Bristol,
VA, 24203.
The PDR raises issues concerning the correct address for service on
Blackfoot and whether an authorized individual received service on behalf of
Blackfoot. It also appears, according to the PDR, that Blackfoot responded
to the Secretary's discovery requests in this proceeding. In light of these
considerations, we conclude that the operator should have the opportunity to
present its position to the judge, who shall determine whether ultimate
relief from default is warranted. See,~. Patriot Coal Co., 9 FMSHRC
382, 383 (March 1987).

J6yce A. Doyle, Commissio'!Jr

~71/k
L. Clair Nelson, Commissioner

2

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

January 29, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. YORK 89-6

METTIKI GOAL CORPORATION

BEFORE:

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

DECISION
BY THE COMMISSION:
In this civil penalty proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §§ 801 et .fillll.· (1988) ("Mine Act"), the issue
before us is whether Commission Administrative Law Judge William Fauver
properly found that its roof control plan required Mettiki Coal Corporation
("Mettiki") to replace roof support posts that were removed in order to
install longwall equipment. Judge Fauver found that the plan required
replacement of the posts and that Mettiki violated its roof control plan, and
30 C.F.R. §§ 75.220 and 75.303(a). He assessed a civil penalty in the sum of
$200 against Mettiki for the violations alleged in Order Nos. 3115846 and
3115848. 1 12 FMSHRG 80, 89 90 (January 1990)(ALJ). For the reasons that
1

Section 75.220, entitled "Roof control plan," provides in pertinent
part:
(a) (1) Each mine operator shall develop and follow a
roof control plan, approved by the District Manager, that is
suitable to the prevailing geological conditions, and the
mining system to be used at the mine.
Additional measures
shall be taken to protect persons if unusual hazards are
encountered ....
Section 75.303(a) provides in pertinent part:
Within 3 hours immediately preceding the beginning of any shift, and
before any miner in such shift enters the active workings of a coal

3

follow, we affirm the judge's decision.
Mettiki operates the Mettiki Mine, an underground coal mine located in
Garrett County, Maryland. On July 13, 1988, Joseph Darios, an inspector with
the Department of Labor's Mine Safety and Health Administration ("MSHA"),
conducted a quarterly examination of the mine. Inspector Darios was
accompanied by Alan Smith, the company representative.
Upon arriving in the L-4 longwall set-up entry, Inspector Darios
observed that the area had been mined to widths greater than 18 feet, and that
roof support posts were missing from various locations in the L-4 entry and
the Nos. 5 and 6 crosscuts. He measured widths ranging from 20 feet 6 inches
to 23 feet 9 inches in the areas where the posts had been removed.
In
addition, he noticed that the roof in the cited area was "scaly," in that
there were fractures in the immediate roof, but not in its upper strata.
Inspector Darios also observed that the pan line, the conveyor system for
removing the coal from the longwall face, had been installed, but that neither
the longwall shields nor shearer had been installed. Inspector Darios stated
that he overheard two Mettiki employees state that the posts had been removed
on July 11, 1988, while the pan chains were being pulled around a turn into
the area. Tr. 451.
The roof control plan that was in effect when the first 155 feet of the
L-4 set-up entry was mined (the "old plan"), requires a single row of posts on
a maximum of 5-foot centers to be installed when the set-up entry is sheared
to 21 feet so as "to reduce the entry width to a maximum of eighteen feet."
Joint Exh. 5; Gov. Exh. 13; Tr. 434. The roof control plan subsequently
adopted by Mettiki and applicable to the remainder of the cited area (the "new
plan"), allows shearing of entries and connecting crosscuts to maximum widths
of 23 feet, but requires a double row of posts to be installed on a maximum of
5-foot centers "to reduce the width of the proposed sheared area to 18-feet
wide maximum prior to shearing."
Gov. Exh. 13; Joint Exh. 4, p. 31;
Tr.· 434-35. Both versions of the plan allow removal of the posts as the
longwall pan, shields and shearer are installed. 2 Joint Exh. 4, p. 31.

mine, certified persons designated by the operator of the mine shall
examine such workings and any other underground area of the mine
designated by the Secretary or his authorized representative.
Each such examiner shall ... examine and test the roof, face, and
rib conditions in such working section . . . and examine for such
other hazards and violations of the mandatory health or safety
standards, as an authorized representative of the Secretary may from
time to time require.
Each such mine examiner shall also
record the results of his examination ....
2
The new plan additionally provides that as "the longwall pan, shields
and shearer are installed, posts will be removed as necessary."
(emphasis
added).

4

Based upon his observations, Inspector Darios issued Order
No. 3115846 to Mettiki pursuant to section 104(d)(2) of the Mine Act, alleging
that Mettiki violated its roof control plan and section 75.220, and further
alleging that the violation was significant and substantial and caused by
Mettiki's unwarrantable failure to comply with the standard. Gov. Exh. 12.
Inspector Darios subsequently modified that order to designate which
conditions were violative of Mettiki's old roof control plan, and which
conditions were violative of Mettiki's new roof control plan. Tr. 407-08;
Gov. Exh. 13.
Inspector Darios also issued Order No. 3115848, pursuant to section
l04(d)(2) of the Act, alleging a violation of 75.303(a) because he believed
that suitable preshift examinations of the L-4 set-up entry and Nos. 5 and 6
connecting crosscuts were not conducted on July 12 and 13, 1988. He based
this conclusion on the fact that the last work day in that area was
July 11, 1988, and that the conditions cited in Order No. 3115846 were not
recorded in the July 12 and 13, 1988, preshift examination records. Order
No. 3115848. Inspector Darios further found Mettiki's alleged violation of
section 75.303(a) to be significant and substantial and caused by Mettiki's
unwarrantable failure to comply with the standard. Id.
The orders were te:i;:ininated wben posts were replaced in the cited
locations and when an adequate preshift examination of the cited areas was
conducted and the allegedly hazardous conditions were entered in Mettiki's
preshift examination records.
The Secretary proposed a civil penalty of $1100 for the alleged
violation of section 75.220 and Mettiki's roof control plan, and $1000 for the
alleged violation of 75.303(a). Mettiki contested the validity' of the
withdrawal orders, the associated special findings, and the civil penalties
proposed by the Secretary of Labor.
At the evidentiary hearing, the parties agreed to terminate the hearing
prior to Mettiki's presentation of its case, to stipulate the existing record,
and to limit the issues to be decided. Tr. 470-72. It was agreed that the
only liability issue remaining in dispute was whether Mettiki's roof control
plan required Mettiki to replace posts that were removed in order to install
longwall equipment. Tr. 470. The parties further agreed that if the judge
determined that Mettiki's plan required replacement of the posts, his holding
would be dispositive of both orders and the orders would be modified to
section 104(a) citations with reduced findings of negligence and gravity. Tr.
471-73. Finally, the parties agreed that the opinion evidence of Inspector
Darios to the effect that the plan did not require replacement of the posts
would not be binding on the government. Tr. 471-72.
Before the judge, Mettiki contended that the Secretary failed to meet
her burden of establishing that the provision allegedly violated was part of
its approved and adopted plan and that the condition cited by Inspector Darios
violated any provision of that plan. Mettiki argued that the plain wording of
the roof control plan did not proscribe the cited conditions because it did
not expressly require replacement of the posts. Mettiki contended that, as a
result, it did not receive adequate notice that it was expected to replace

5

posts which had been removed in order to install longwall equipment. Mettiki
argued alternatively that, even if its plan could be read to require the
replacement of posts removed to install longwall equipment, the Secretary's
enforcement actions were nonetheless invalid because Mettiki had not yet
installed the longwall shields or shearer.
The judge rejected Mettiki's arguments and interpreted Mettiki's roof
control plan to require Mettiki to replace the posts cited as missing. The
judge's interpretation of Mettiki's roof control plan emphasized that the plan
allows the operator to shear set-up entries and crosscuts an additional five
feet to a maximum of 23 feet only after a double row of posts on five-foot
centers have been installed. 12 FMSHRC at 89. The judge found that the
stated purpose of requiring the double row of posts is to maintain an 18 foot
width before the entries and crosscut are widened to 23 feet.
The judge interpreted "as" in the phrase "[a]s the longwall pan,
shields, and shearer are installed, posts will be removed as necessary," to
mean "during the time that" or "while." Id. The judge concluded that the
plan allows removal of the posts only during installation of the pan, shields,
and shearer. The judge also stated his belief that use of the phrase "as
necessary" in the plan further demonstrates that removal of the posts should
be minimized.
The judge also relied upon provisions in the plan setting forth the
order in which steps are to be performed so that the entries and crosscuts are
narrowed by and supported with posts at each step. The judge emphasized that
the plan provision stating that the "entry and crosscut will be sheared to
23 feet wide and supported to plan" read in conjunction with the provision
allowing removal of posts only when installation of the longwall equipment is
occurring, supports a conclusion that posts removed in order to install
longwall equipment must be replaced. The judge explained that a contrary
interpretation would render the cutting and roof support procedures
superfluous. Additionally, the judge stated that a contrary interpretation
would create a dangerous situation in which posts could be absent
indefinitely.
Consistent with the parties' stipulations, after the judge determined
that Mettiki's roof control plan required replacement of the posts and that,
consequently, Mettiki had violated its plan and sections 75.220 and 75.303(a),
he modified the orders to citations issued pursuant to section 104(a) of the
Mine Act. 12 FMSHRC at 90. The judge modified the allegations of negligence
in the orders from the original designation of high to moderate, and modified
the allegations of gravity in both orders by deleting the significant and
substantial designations. Id. Finally, the judge assessed a civil penalty of
$100 for each of the two violations.
Mettiki's petition for review challenged the judge's finding that
Mettiki's plan requires replacement of posts removed to install longwall
equipment. Mettiki essentially argues, as it did before the judge, that its
plan does not expressly prohibit the conditions cited in Order No. 3115846,
and that the Secretary cannot disregard the express terms of the plan in order
to require replacement of the posts without employment of the plan amendment

6

process. Mettiki asserts that it did not receive adequate notice that
replacement of the posts was required, and that even if such a requirement
could be read into the plan, the orders are nonetheless invalid because
Mettiki was in the process of installing longwall equipment. We disagree.
It is a well settled rule of construction that a written document must
be read as a whole, and that particular provisions should not be read in
isolation. U.S. v. Morton, 467 U.S. 822, 828 (1984); rehearing den.,
468 U.S. 1226 (statute); Washington Metro v. Mergentime Corp., 626 F.2d 959,
961 (D.C. Cir. 1980) (contract). If the provision allowing removal of the
posts is read in isolation from the provisions requiring that entries and
crosscuts be supported with posts to reduce the width of these areas to a
maximum of 18 feet, one might well reach the conclusion that the posts need
never be replaced. Such a reading, however, would result in a contradiction
between the provisions allowing removal of the posts and the provisions
requiring support and would render the support phrases superfluous. It is
well established that written provisions of the same document must be read and
interpreted consistently with each other and that effect must be given to each
part of a document to avoid making any word meaningless or superfluous.
Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (statute); 17 Am Jur. 2d
Contracts§§ 258-59 (1964).
We find that the judge properly interpreted Mettiki's roof control plan
in accordance with these settled canons of construction. We are unpersuaded
by Mettiki's assertion that the Secretary failed to meet her burden of proving
that Mettiki's plan required replacement of the posts because Inspector Darios
testified that the posts did not have to be replaced once they were removed.
The parties agreed to consider Inspector Darios' opinion testimony irrelevant
and non-binding on the Secretary. Tr. 443, 471-72; M. Br. at 9. We also are
unconvinced by Mettiki's argument that it did not receive adequate notice that
it was required to replace posts following their removal. If Mettiki's plan
is read as a whole, avoiding conflicts between provisions and without
rendering provisions superfluous, the plan clearly requires that a maximum
width of 18 feet must be maintained and that this plan requirement can be
exceeded only when posts are temporarily removed as necessary to install the
specified longwall equipment. Furthermore, Mettiki had notice of other
mandatory standards pertaining to roof control which recognize and seek to
prevent the hazards associated with excessive widths of entries and crosscuts.
See, i.e., 30 C.F.R. § 75.203(a), 75.203(e), and 75.206(a).
we similarly
ect Mettiki 1 s argument that the subject enforcement
action was nonetheless invalid since Mettiki had not yet completed
installation of the longwall equipment because, although it had installed the
longwall pan, it had not yet installed the shields and shearer. Mettiki
essentially argues that if the plan requires replacement of the posts, it
should be read to require replacement of the posts only after all three
components of longwall equipment have been installed. The Secretary responds
by stating that Mettiki's argument is unavailing in light of evidence in the
record that, in this instance, installation of the longwall equipment was not
a continuous, uninterrupted process. S. Br. at 8. The judge did not directly
consider Mettiki's argument that the orders were invalid because Mettiki was
in the process of installing the equipment. Instead, his determination that

7

Mettiki's plan required replacement of posts removed to install longwall
equipment was dispositive of this issue. 12 FMSHRC at 89-90. His decision is
consistent with the parties' stipulation that "the only issue remaining on
liability ... is whether Mettiki's roof control plan required Mettiki to
replace posts that were removed in order to install longwall equipment."
12 FMSHRC at 88. The parties further agreed that, if the judge decided "that
the roof control plan is [to be interpreted] as MSHA contends, then ... the
104(d)(2) order would be converted into a 104(a) citation, with reduced
allegations as to gravity and negligence." Tr. 472. Thus, in view of these
agreements between the parties, we need not determine the period of time
during which the posts could remain absent before Mettiki was required to
replace them in accordance with its roof control plan.
Finally, we reject Mettiki's argument that Order No. 3115848 alleging a
violation of section 75.303(a) should be vacated because the Secretary
allegedly failed to introduce the order into evidence or present evidence
regarding its issuance. At the evidentiary hearing, Mettiki agreed that the
judge's determination of whether Mettiki's plan required replacement of the
roof support posts would be dispositive of both orders. Tr. 472-73. We
believe, therefore, that the judge properly held Mettiki to the terms of its
agreement.

·- judge correctly interpreted Mettiki's roof control
We conclude that the
plans to require replacement of roof support posts which are removed in order
to install longwall equipment. Accordingly, we affirm the judge's decision.

Richard V. Backley, Acting Chgirman

,.,
',//--<- /C-"J 6yce

//.

,/_l,(_,:-_J {-:(___

Doyle, Commissioner

!lli. ~ .

L. Clair Nelson, Commissioner

8

//

ADMINISTRATIVE LAW JUDGE DECISIONS

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

22041

JAN 8 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 90-116
A.C. No. 15-16162-03529

v.
Docket No. KENT 90-162
A.C. No. 15-16162-03527

BEECH FORK PROCESSING
INCORPORATED,
Respondent

Docket No. KENT 90-163
A.C. No. 15-16162-03528
Mine No. 1
DECISIONS

Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
Craig s. Preece, Comptroller, Beech Fork
Processing, Inc., Lovely, Kentucky, for the
Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of civil
penalties 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), charging the respondent with twenty
(20) violation of certain mandatory safety and health standards
found in Parts 70, 75, and 77, Title 30, Code of Federal
Regulations.
The respondent filed timely contests and hearings
were held in Pikeville, Kentucky.
The parties waived the filing
of posthearing briefs, but I have considered all of their oral
arguments made on the record during the hearings in my adjudication of these matters.
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.

9

2.

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

3.

Commission Rules, 29 C.F.R. § 2700.1 et seq.
Issues

The issues presented in these proceedings are {1) whether
the cited conditions or practices constitute violations of the
cited mandatory safety and health standards; (2) whether several
of the cited violations were significant and substantial (S&S);
(3) whether one section 104(d) (1) violation in Docket No.
KENT 90-116, was unwarrantable; and (4) the appropriate civil
penalty assessments to be made for the violations which have been
affirmed.
Stipulations
The parties stipulated to the following (Tr. 7-8):
1. The respondent does not dispute the fact of violations
in these proceedings.
2.
The history-6f prior violations is reflected in an MSHA
computer print-out (exhibit P-1).
3.
The proposed civil penalty assessments for all of the
violations are appropriate to the size of the mining operations
conducted by the respondent.

Docket No. KENT 90-116
This case concerns one section 104(d) (1) citation and four
section 104(a) citations issued by MSHA inspectors during the
course of their inspections, and they are as follows~
Section 104 (d) (1) uus&S 1u Citation No. 3369907, October 4,
1989, 30 c. F. R. § 75. 316 (Exhibit P-2) ~ · "The air reaching the
face in the No. 2 left brk. where the 12 CM Joy continuous-mining
machine was being operated could not be measured with an approved
and calibrated anemometer."
MSHA Inspector Carlos Duff confirmed that he issued the
citation and he described the conditions he found which prompted
him to do so.
He stated that he detected less than 100 cubic
feet of a
per minute in the cited area which had been driven to
a depth of 120 feet without establishing the required ventilation
of 6 1 000 cubic feet a minute as provided by the ventilation plan
( exhib
P-3)
o

Mr. Duff confirmed that he detected no methane in the area
but that the absence of ventilation resulted in "real dusty"
conditions which created visibility problems. He stated that the

10

mining machine, shuttle cars, and scoops were potential sources
of ignition and in the event of any methane liberation while coal
was being cut at the face there was a hazard of a fire or explosion in the event the methane reached an explosive level.
Mr. Duff confirmed that the cited condition was corrected
within 20 minutes and that the violation was timely abated.
Although a ventilation curtain had been installed in the area,
and the respondent had a waiver allowing it to maintain the
curtain 20 feet from the face, no ventilation had been established for the 120 feet area which had been driven.
Mr. Duff stated that the superintendent, or foreman, Danny
Osborne, was a certified foreman and that he was required to
monitor the ventilation on the section and check for methane
every 20 minutes. Mr. Duff stated further that given the fact
the entry had been driven for 120 feet, the lack of ventilation
was not created during the shift and had to exist for at least
two shifts and that Mr. Osborne did not deny that he was aware of
the cited condition.
Mr. Duff confirmed that he did not check the mining machine,
and he conceded tha·t in the event the methane monitor were
functioning properly and there were no permissibility violations,
the gravity would be less than he found (Tr. 9-26).
Section 104(a) 11 S&S 11 Citation No. 3158954, December 18,
1989, 30 C.F.R. § 75.1103-4 (Exhibit P-4):
The automatic fire sensor and warning device
system was not properly installed on the No. 4 and 5
belt flight.
The fire sensor line ended approximately
120 feet outby the No. 5 tail roller. The fire sensors
on the Noo 4 and 5 belts were installed at or below the
bottom belt.
MSHA Inspector Foster I. Justice confirmed that he issued
the citation and he described the cited conditions. He stated
that the fire sensor devices were in fact installed along most of
the belt line but that they were hung from a wire rope and were
hanging below the belt rather than at an elevation above the
belt. He stated that the foreman, Gary Sumpter, advised him that
the fire sensors throughout the mine were installed in a similar
fashion but that no one had previously cited the condition or
said anything about it. Mr. Justice confirmed that because of
the 11 foot coal height in the mine, the respondent had a problem
installing the fire sensors at elevations above the belt because
of the roof and mining height conditions.
Mr. Justice stated that no sensors were installed for the
120 feet at the area outby the tail roller, but they probably
would have been when the belt was extended. He agreed that the

ll

mining height and roof conditions did present an installation
problem and he conceded that the condition was probably observed
and not cited during prior inspections. He confirmed that the
condition was timely abated and that the respondent repositioned
the sensors above the belt lines.
Mr. Justice stated that since heat and smoke rises, the
location of the sensors below the belt presented a hazard in that
there would be a delay in alerting the miners on the section in
the event of a mine fire and they could have been "smoked out"
before the sensors detected any smoke. He confirmed that the
belt drive motors, stop-start boxes, and electrical wiring on the
belt line were potential sources of ignition. Any belt slippage
or stuck rollers could have resulted in a belt fire and the eight
miners on the section would have been exposed to smoke inhalation
and carbon monoxide. The belt was running coal at the time he
observed the conditions, and Mr. Sumpter acknowledged that he was
aware of the fact that the sensors were installed below the
elevation of the belt (Tr. 28-42).
Section 104(a) 11 s&s 11 Citation No. 3158955, December 19,
1989, 30 C.F.R. § 7Q.B01 (Ex~ibit P-6):
Based on the results of a supplemental noise
survey conducted by MSHA on 12/18/89, the noise standard has been exceeded in the environment of the roof
drill operator, occupation code 014 on the 001-0 MMU.
The results obtained from a personal noise dosimeter,
Mark I, property No. 108221 showed a C/T value of
169.5%.
A hearing conservation plan as required by
30 C.F.R. § 70.510 shall be submitted to MSHA within
60 days from the date of this citation.
confirmed that he issued the citation and
that he conducted a noise survey on the designated
operator occupation, used an approved dosimeter, and
found that the noise exposure exceeded the required level. He
stated that the respondent is required to monitor the noise
:from the .equipment to insure compliance.
Mr. Justice stated that he conducted five additional noise
surveys and found the noise exposure to be in compliance in those
instances. He confirmed that one of the miner operators surveyed
was furnished
personal hearing protection with an EAR-plug
device, but that he did not determine whether the cited drill
operator had such a device. He conceded that any hearing damage
for excessive noise would occur over a protracted period of time.
The violation was timely abated after a subsequent test determined no excessive noise level exposure for the drill operator

12

and the respondent timely submitted a hearing conservation plan
(Tr. 42-51).
Section 104(a) "S&S" Citation No. 2982728, January 17, 1990,
30 C.F.R. § 77.216-3(a) (Exhibit P-7):
"The slurry impoundment
has not been examined and the instrumentation monitored by a
qualified person at intervals not exceeding seven days. The last
examination recorded in the book was dated 1-8-90. The last
piezometer readings recorded in the book were dated 12-22-89."
MSHA Inspector Robert H. Bellamy testified that he is a
mining engineer, has a degree in mining engineering from the
University of Kentucky, and that he is a specialist in dam
impoundments which are created for disposal of mine refuse. He
confirmed that he issued the citation after determining that the
coal fines slurry dam impoundment constructed and maintained by
the respondent was not being examined at least every 7 days and
that the piezometer instrument used to monitor the water level in
the impoundment was not being monitored and checked every 7 days
as required by the standard.,
Mr. Bellamy confirmed that an inspection book was maintained
at the mine but that it did not reflect that the required inspections and monitoring of the impoundment was being conducted and
recorded. He stated that plant superintendent James Chitti was
one of the three individuals qualified to inspect and monitor the
impoundment and that Mr. Chitti advised him that he was "caught
up in other work" or was "too busy" to perform these tasks.
Mr. Bellamy stated that the purpose of the inspection and
monitoring of the impoundment is to detect any hazards which may
be developing and whether or not the impoundment is being properly constructed. He described the impoundment as a 130-foot
high dam covering 900 acres and confirmed that the respondent was
continuing to build
up by placing refuse materials on it and
that a bulldozer is at the site at all times for this purpose.
He confirmed that people were living below the location of the
impoundment, and that in the event of a failure of the impoundment, they would be at risk.

Mro Bellamy confirmed that at the time of the inspection the
impoundment was within the established safety factor, and that
the respondent had generally been in compliance in the past with
the required inspections and monitoring cycles (Tr. 52-68).
Section 104(a) "S&S" Citation No. 2982729, January 17, 1990,
30 C.F.R. § 77.216(d) (Exhibit P-8):
The maintenance of the slurry impoundment is not
being implemented in accordance with the plan approved
by the district manager in that drainage from the right

13

abutment {looking downstream) has been allowed to erode
the downstream outslope of the embankment. The erosion
has accumulated at the toe, partially blocking the
underdrain outlet.
Inspector Bellamy confirmed that he issued the citation
after observing that material at the toe of the impoundment
embankment had eroded and washed down the embankment blocking the
underdrain (Exhibit P-10, sketch of violative condition}. The
purpose of the underdrain is to relieve any excess water accumulated under the embankment, and as a result of the blockage
caused by the blocking of the underdrain, the water had accumulated and was seeping from the area above the drain.
If the
blockage had continued, the water would not flow through the
underdrain and it will accumulate in and saturate the embankment
and may eventually lead to a failure of the embankment and the
dam. Mr. Bellamy confirmed that the impoundment was not being
maintained in accordance with the approved plan (Exhibit P-9; Tr.
68-77)
0

Docket No. KENT 90-162
"

This proceeding concerns five (5) section 104(a) citations
issued on December 6, and 18, 1989, and they are as follows:
No. 3367667, 30 C.F.R.

§

77.216(d)

(S&S)

(Exhibit P-11).

The construction of the slurry impoundment is not
being implemented in accordance with the plan approved
by the district manager in that the landslide debris
and loose soils are not being removed from the left
abutment prior to the placement of coarse refuse.
Inspector Bellamy confirmed that he issued the citation
after finding that the mine refuse material deposited on the
impoundment embankment was being deposited on top of other loose
soils and debris which had slid down the embankment during a
prior 11 landslide 11 in the area. The landslide materials were
unsuitable for compaction and should have been removed from the
area before the refuse materials used to construct the impoundment were deposited. Mr. Bellamy described the area as 150 by
50 feetr and he confirmed that 1 or 2 months prior to his inspection he had discussed the construction methods with Mr. Chitti
and informed him that he could remove the landslide materials as
the dam was being constructed but that he could not cover it with
the refuse materials used to construct the damo
Mr. Bellamy stated that some of the landslide material had
been cleaned out prior to the day of his inspection, but that he
could not recall what Mr. Chitti may have said about the refuse
materials which had been deposited over the landslide area which
he observed. Mr. Bellamy confirmed that the failure to remove

14

the unstable landslide materials would cause seepage in that area
and would result in a "differential settlement" of the area and a
failure in that relatively small area. He did not believe that
any major failure of the impoundment would have occurred at the
time of the inspection but that a "worst case" scenario would be
a possible failure of the embankment if the condition were not
corrected. He considered the cited area to be a "weak zone" in
the dam embankment. He believed that construction work on the
impoundment began approximately a year or so prior to the time of
his inspection. He did not know when the initial landslide in
question occurred, but confirmed that he saw evidence of the
slide when the dam was being constructed at an earlier time.
Mr. Bellamy did not believe that the landslide itself was a
threat to the impoundment (Tr. 80-89).
No. 3367668, 30 C.F.R.

§

77.216(d)

(Non S&S)

(Exhibit P-12).

The maintenance of the slurry impoundment is not
being implemented in accordance with the plan approved
by the district manager in that refuse has been allowed
to block the main undergrain outlet. The refuse prohibits free flow from the underdrain.
The respondent withdrew its contest with respect to this
citation and agreed to pay the proposed civil penalty assessment.
Inspector Bellamy confirmed that the citation is distinguishable
from the prior impoundment citation which he issued (Exhibit
P-8), in that the water which was backed up in the blocked
underdrain was seeping through the blocked drain and was not
backed up and seeping through the embankment area above the
underdrain.
No. 3158951, 30 C.F.R. § 75.1722{b) (S&S) (Exhibit P-13).
The No. 4 conveyor head roller was not adequately guarded a
distance to prevent a person from reaching over the guard and
becoming caught between the belt and conveyor head roller. 10
99

Inspector Justice confirmed that he issued the citation
after observing that the guard over the conveyor head roller was
insufficient to prevent someone from reaching in and contacting
the pinch pointo He stated that the head roller was partially
guarded with pieces of metal but that it did not completely cover
the pinch points. He believed that the cited condition was
obvious.
Mr. Justice stated that while miners are prohibited from
cleaning up, greasing, or performing other work around a moving
conveyor, it is common knowledge that they do.
If there is any
slippage of the conveyor belt roller, it is a common practice to
throw rock dust on the roller to dry it out and anyone doing this
would be exposed to a hazard of getting their arm or had caught
in the unprotected pinch point. He was aware of an incident at

15

another mine where a miner had his arm torn off when it was
caught in an unguarded head roller while he was throwing rock
dust into it. He also believed that anyone cleaning up or
shoveling in the area could readily contact the pinch point if
they were to fall into it and contact the pinch point.
If this
were to occur, a serious injury would result.
Mr. Justice had no knowledge that the respondent required
anyone to rock dust the head roller, but it was his belief that
this is done anyway regardless of any instructions to the contrary. The condition was abated at the time he next returned to
the mine to terminate the citation and the head roller was
protected with an adequate guard (Tr. 90-100).
No. 3158952, 30 C.F.R. § 75.1722(b) (S&S) (Exhibit P-14).
"The No. 4 conveyor tail pulley was not adequately guarded to
prevent a person from coming in contact with the conveyor tail
pulley and belt. The tail roller was guarded with a piece of
belt across the back of the tail roller."
Inspector Justice confirmed that he issued the citation
after observing that,the conveyor tail pulley was not adequately
guarded to prevent a person from contacting the pinch point
between the pulley and the belt. He stated that the tail pulley
was guarded with a piece of belt material or a "flap" at the back
of the pulley but that it did not cover the ends or sides of the
pulley at the pinch points. He did not believe that the belting
material, which was not rigid and could easily be pushed aside,
constituted adequate guarding.
Mr. Justice confirmed that the hazards presented by the
inadequate guard were the same as those which were present with
respect to the previous citation which he issued for an inadequate guard on the conveyor head roller during the same
inspection (Exhibit P-13; Tr. 100-105)"
No. 3158953, 30 C.F.R. § 75.1715 (S&S) (Exhibit P-15).
niThe
che.ck-in and check-out system was not established at this mine.
There was no positive identification of the persons underground
who portal at the 1-A portal. 11
Inspector Justice confirmed that he issued the citation
after determining that several miners who were working underground were not identified or "tagged" on the check-in and checkout board provided at the mine. He explained that seven miners
who were assigned to work at a new mine area and who were checked
in at one area were in fact working at another area, and that
several miners working underground were not identified on the
board as being underground.
Mr. Justice explained the required check-in and check-out
system and stated that the identification tag which a miner

16

carries on his belt must conform to the one maintained on the
board. He was aware of a prior incident at another mine where a
miner who had worked a double shift had not checked in and was
unaccounted for after a rock fell on him and he could not move.
By the time rescuers reached him, he had died after being underground for 16 hours. Mr. Bellamy stated that miners are required
to check in and out at the end of their shift in order to account
for everyone who may still be underground at the end of their
normal work shift (Tr. 105-114).
Docket No. KENT 90-163
This case concerns ten (10) section 104(a) citations, and
they are as follows:
Section 104Ca) non- 11 s&s 11 Citation No. 9979793, November 13,
1989, 30 C.F.R. § 70.207(a):
The mine operator did not take five (5) valid
respirable dust samples from the designated occupation
036 on MMU I.D. 003-0, £or the bimonthly period of
September-October as shown in the attached Advisory
No. 010, dated November 7, 1989. Four (4) valid
samples were received and credited to this bimonthly
sampling cycle. Management shall collect and submit
five (5) valid respirable dust samples from the
Designated Occupation 036 on MMU I.D. 003-0. These
samples shall be received by the Pittsburgh Respirable
Dust Processing Laboratory on or prior to the termination due date listed on this citation.
Section 104(a) non- 11 S&S 11 citation No. 3364696, January 5,
1990, 30 C.F.R. § 77.1109(dL which states:
"A fiee extinguisher
was not provided for the main fan installation. 11
The contestant withdrew its contests with respect to CitaNos" 9979793 and 3364696, and agreed to pay the proposed
civil penalty assessments for these violations (Exhibits P-16 and
P-19).

~ion

Section 104(a) ius&S 11 Citation No. 3364694, January 3, 1990,
11 The roof bolter being used on the 002-0
30 C.F.R. § 75.503~
section was not being maintained in a permissible condition.
When checked with an approved device, the control panel cover had
an opening in excess of .006 of an inch. 11
(Exhibit P-17)
MSHA Inspector Lewis H. KlayKo confirmed that he issued the
citation after conducting a permissibility inspection of the roof
bolter. He used a feeler gauge and found an opening in excess of
.006 of an inch in the bolter control panel cover. This was in
excess of the required permissible opening of .004 of an inch.

17

Mr. KlayKo confirmed that he detected no methane in the
cited area. However, the roof bolter was in operation and the
area was dusty. Since there is always a chance of hitting a
pocket of methane in a dusty environment, a spark or an arc
through the control panel cover opening could ignite the methane
and the dust could contribute to a methane ignition. If this
were to occur, the miners working in the area would be exposed to
lost work days and restricted duty injuries.
Mr. KlayKo stated that the respondent is required to conduct
weekly inspections of its electrical equipment, including the
roof bolter. He believed that the cited condition should have
been detected during such an inspection or through the regular
maintenance of the equipment. He stated that foreman Ted
McGinnis informed him that he was having problems on the section
and that he had a man off sick and was behind on his electrical
maintenance of the equipment. Mr. KlayKo had no reason to
dispute this, and he indicated that the maintenance of the
equipment was "maybe not quite up to snuff."
Mr. KlayKo confirmed that the condition was abated within
15 minutes and that~J:le had experienced no prior problems with the
respondent with respect to permissibility violations other than
the citations which he issued in this case. He also confirmed
that the openings which he found in all of the cited equipment
probably resulted from some maintenance work where the cover
panels were not tightened sufficiently after they were removed
and replaced (Tr. 120-125).
Section 104(a) "S&S" Citation No. 3364695, January 3, 1990,
30 C.F.R. § 75.503:
"The Joy miner being used on the 002-0
section was not being maintained in a permissible condition.
When checked with an approved device, the master control panel
cover had an opening in excess of 006 of an inch.
(Exhibit
P=J_8

o

Inspector KlayKo confirmed that he issued the citation after
checking the Joy continuous-mining machine master control panel
with a feeler gauge and finding an opening in excess of .006 of
an inch, which was in excess of the required permissible opening¢
The miner was cutting coal at the face at the time of
inspect:ion, and it was backed out so that he could check ito
Mr. KlayKo confirmed that the hazards presented by the
violation were more serious than those presented by the previous
citation concerning the non-permissible roof bolter because the
miner was cutting coal at the face and that a sudden release of
methane could result in flame coming out of the control panel
cover opening and causing an ignition which would endanger the
seven men working the section.

18

Mr. KlayKo confirmed that he detected no methane and had no
knowledge of any prior methane ignitions in the mine. He also
confirmed that the violation was abated in 15 minutes and that
Mr. McGinnis' explanation for the existence of the condition was
the same as the one for the cited roof bolter (Tr. 125-129).
Section 104(a) 11 8&8" citation No. 3364697, January 5. 1990,
30 C.F.R. § 77.1605(a), which states as follows:
"The Caterpillar dozer S/N 92V12890, had broken windows in both doors of the
cab."
(Exhibit P-20).
Inspector KlayKo confirmed that he issued the citation after
finding cracks in the windows of both doors of the cited bulldozer which was pushing coal on a surface storage pile. He
stated that the dozer operator was not wearing any eye protection
and he believed that a sliver of glass could have flaked off the
cracked glass because of the vibration of the dozer while it was
operating and found its way to the eyes of the operator injuring
him. He believed that any sliver or flake of glass could have
fallen on the gloves of the operator and that he could have
inadvertently rubbed it in his. eyes.
Mr. KlayKo believed that the condition existed for "a few
days 11 and that the foreman or the equipment operator should have
observed the condition and taken corrective action. He stated
that foreman Chitti offered no explanation for the condition, and
Mr. KlayKo indicated that the surface areas, including the
equipmentf was required to be preshifted. He also confirmed that
the windshield was in good condition, and that the cracked door
windows were safety glass. The violation was timely abated and
the respondent replaced the cracked windows (Tr. 129-135).
Section 104(a) 11 S&S 11 Citation No. 3364698, January 5, 1990,
11
30 C.F.Ro ~ 77ol605(b)~
The International end loader Model
H-90r used to spread sludge on the haul road was not equipped
with adequate park brake"
It would not hold when set. 11
(Exhibit
P-21) ,

Inspector KlayKo confirmed that he issued the citation after
inspecting the cited end loader and finding that the parking
brake would not hold when it was engaged and tested on a 5 to
7 degree grade,
The loader was loading slag, or limestone rock
and gravel, on trucks which were spreading it on a haulage road
and the loader was also used to spread some of this materialo
Mr. KlayKo stated that the foot brakes were in good condition,
and that the front bucket is often lowered to the ground to serve
as an additional braking device.
Mr. KlayKo stated that the haul road was approximately
and while there were other steeper grades along the
road, the end loader would not be operated in those areas. He
believed that the inadequate parking brake presented a hazard in
50 feet wide,

19

the event the operator decided to stop the loader with the engine
running and got out to clear some debris from the roadway. If
this occurred, the loader would roll back and possibly strike
some of the trucks or the drivers who were out of their trucks
while working on the roadway.
Mr. KlayKo stated that the equipment operator is required to
check the brakes before operating the loader and to report any
inadequate brake condition to his foreman.
He confirmed that the
operator of the loader informed him (KlayKo) that the parking
brake was not working. Mr. KlayKo also confirmed that the
equipment operator is required to make a maintenance report but
that he did not check any such reports.
Mr. KlayKo stated that a possibility of an accident existed,
and he confirmed that a loader operator would not normally park
the machine on a grade. He also indicated that the parking brake
may have malfunctioned during the course of the working shift
(Tr. 135-146).
Section 104 (a) 11 s&s 11 Cit.ation .No. 3364699, January 5, 1990,
30 C.F.R. § 77.400(c)-, states as follows:
"The guards on the
refuse conveyor belt drive had been removed and not replaced."
(Exhibit P-22) .
Inspector KlayKo confirmed that he issued the citation after
finding that the guards on the refuse conveyor belt drive had
been removed and not replaced. He observed the guards about
3 feet from the belt which was running, but he saw no one working
in the area. He stated that he had walked by the belt a day or
two earlier and the guards were removed, but since the belt was
not running at that time he assumed that it was down for maintenance and did not issue a citation.
Mro KlayKo conceded that subsection (d) of section 77.400,
was more appropriate than subsection (c)
and without objection,
the petitioner was allowed to amend
pleadings to conform to
its evidence and to reflect a citation of subsection (d) rather
than (c).
Mro KlayKo stated that foreman Chitti informed him that a
roller had probably been changed out and that someone had
neglected to replace the guards. Mro KlayKo believed that the
belt should have been preshifted, and he believed that anyone
cleaning or greasing the belt while it was running could contact
the unguarded pinch points and suffer serious injuries. The
guards were reinstalled the same day, and Mr. KlayKo terminated
the citation when he next returned to the mine on January 8, 1990
(Tr. 146-153).
Section 104{a) "S&S" Citation No. 3364700, January 8, 1990,
30 C.F.R. § 75.503:
"The Joy miner being used on the 001-0

20

section was not maintained in a permissible condition. When
checked with an approved device, the trailing cable junction box
caver had an opening in excess of .008 of an inch."
(Exhibit
P-23).
Section 104(a) "S&S" Citation No. 3515144, January 9, 1990,
30 C.F.R. § 75.503:
"The roof bolter being used in the 001-0
section was not being maintained in a permissible condition.
When checked with an approved device, the cover for the lights
junction box had an opening in excess of .009 of an inch. 11
(Exhibit P-24).
Inspector KlayKo confirmed that he issued the permissibility
violations after checking the miner machine and roof bolter with
a feeler gauge and finding openings in the miner trailing cable
junction box and the roof bolter lights junction box greater than
permissible. The roof bolter opening was the largest that he has
ever found.
He confirmed that the hazards presented by the
violations were the same as the previous permissibility violations which he issued, and that the miner and bolter were both
operating immediately prior ~o his inspecting them.

·-

Mr. KlayKo stai:ed that foreman McGinnis 11 felt bad 11 about the
violations and corrected them immediately within 15 minutes.
Mr. KlayKo confirmed that his inspection was his first inspection
visit at the mine and he was not aware of any prior compliance
problems at the mine (Tr. 153-158).
Section 104(a) 11 S&S 11 Citation No. 3515145, January 9, 1990,
30 C.F.R. § 77.205(e), states as follows:
"The steps to the
parts trailer on the surface area of the 001-0 section was not
provided with handrails."
(Exhibit P-25).
Inspector KlayKo confirmed that he issued the citation after
he observed that the steps at the parts trailer were not provided
with hand ra s" He stated that there were four steps leading up
to the trailer interiorc He believed that the
were sub~
stantially constructed wooden steps approximately 40 inches wide
and 10 inches deep. The highest step leading into the trailer
was approximately 48 inches above ground level"
Hr" KlayKo believed that the lack of hand
ls presented a
siip and fall hazard.
Miners who would visit the trailer to

obtain parts could possibly slip on the stairs during the winter
season if they were frozeno The ground conditions near the steps
were wet and muddy and the freezing and thawing of the ground
would contribute to the slipping conditions since the materials
would be deposited on the steps. In the event someone slipped on
the steps they would have nothing to hold onto to break their
fall.
If they were to slip off the stairs they could suffer a
possible broken leg, back, or shoulder.

21

Mr. KlayKo stated that foreman McGinnis advised him that the
lack of handrails was an oversight and that he would install them
immediately. The condition was corrected and handrails were
installed on both sides of the stairway (Tr. 158-166).
Findings and Conclusions
Fact of Violations
As previously noted, the respondent has stipulated that all
of the conditions and practices cited by the inspectors in these
proceedings constitute violations of the cited mandatory safety
or health standards, and it has withdrawn its contests with
respect to three of the violations (Citation Nos. 3367668,
9979793, and 3364696). Further, the respondent has presented no
testimony or evidence to rebut the credible testimony of the
inspectors in support of the violations which they issued in the
course of their inspections. Under the circumstances, I conclude
and find that the petitioner has established all of the contested
violations by a preponderance of the credible and probative
evidence presented in these proceedings, and all of the violations ARE AFFIRMED. ,
Significant and Substantial Violations
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature. 11 Cement Division,
National Gypsum Co.
3 FMSHRC 822u 825 (April 1981)
¢

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial 11 ·as follows:
In order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum the Secretary of Labor must
prove~
(1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is,
a measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.

22

1129,

In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
(August 1985), the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

In United States Steel Mining Company, Inc., 7 FMSHRC 327
(March 1985), the Commission reaffirmed its previous holding in
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984) that it
is the contribution of a violation to the cause and effect of a
hazard that must be significant and substantial, and that a
determination of the significant and substantial nature of a
violation must be made in the context of continued normal mining
operations, including the question of whether if left uncorrected, the cited condition would reasonably likely result in an
accident or injury.
The respondent presented no testimony or evidence to rebut
the testimony and evidence adduced by the petitioner in support
of the significant and substantial (S&S) findings made by the
inspectors. Under the circumstances, and on the basis of the
credible and probative testimony presented by the inspectors, I
conclude and find that with the exception of Citation No. 3364697
broken door windows on a bulldozer), and Citation No. 3364698
·~inadequate parking brake on an end loader) v (Docket No. KENT
90-163) p all of the S&S findings made by the inspectors with
respect to the remaining contested citations and order are
supportable, and these findings ARE AFFIRMEDo
With regard to Citation Nos. 3364697 and 3364698, the
respondent 1 s representative argued that the cited conditions did
not present any hazards or a reasonable likelihood of an injury.
The same argument was made with respect to Citation No. 351545
(lack of hand-rails on parts trailer steps) (Docket No.
I-<ENT 90-163) ,
With regard to Citation No. 3364697, concerning the 11 brokenn
windows in both doors of the cited bulldozer operator 1 s cab, I
take note of the fact that the inspector testified that the
windows were 11 cracked" and he was concerned that a sliver of
glass could have flaked off the glass and found its way to the
eyes of the operator. He also believed that a flake or sliver of

23

glass could have fallen on the gloves of the operator and he
could have inadvertently rubbed the glass in his eyes with his
gloves.
The inspector confirmed that the bulldozer windshield, which
is directly in front of the bulldozer operator, was in good
condition, and that the cracked door windows were constructed of
safety glass. Under these circumstances, and in the absence of
any evidence as to the proximity of the doors to the operator's
face while seated in his normal position at the controls of the
machine, I find it highly unlikely that a sliver of glass from
the cracked safety glass doors would contact the operator's eyes.
I conclude and find that the inspector's belief that an injury
was reasonably likely is unsupported speculation, and his S&S
finding is vacated. The citation is modified to reflect a
non-S&S violation.
With regard to Citation No. 3364698, concerning the cited
end loader with an inadequate parking brake, the inspector
confirmed that the service or foot brakes which are normally
applied to stop the machine while it is working were in good
condition.
The inspector confirmed that the loader would not be operated in roadway areas steeper than the 5 to 7 degree grade where
the parking brake was tested. He believed that there was a
possibility of an accident in the event the loader operator
decided to stop the loader with the engine running and left his
machine to clear some debris from the roadway. However, the
inspector confirmed that the loader bucket is often lowered to
the ground to serve as an additional braking device, and he
conceded that a loader operator would not normally park the
machine on a grade.
The inspector confirmed that the loader operator informed
him that the parking brake was not working. However, the inspector apparently did not question the operator about his speculative conclusion that the operator would leave his machine with
the engine running on a grade to clear debris from the roadway.
In the absence of any evidence that this was in fact the case, I
cannot conclude that the inspector's speculation concerning the
possibility of an accident supports his S&S finding.
Accordingly, his finding in this regard is vacated, and the citation is
modified to reflect a non-S&S violation.
With regard to Citation No. 3515145, concerning the lack of
protective handrails on the parts trailer steps, I conclude and
find that the credible and unrebutted testimony of the inspector
supports his S&S finding, and it is affirmed.

24

Unwarrantable Failure Violation
In Docket No. KENT 90-116, Citation No. 3369907, issued on
October 4, 1989, and citing a violation of the ventilation
requirements of mandatory safety standard section 75.316, was
issued as a section 104{d) (1) unwarrantable failure citation.
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows at
295-96:
In light of the foregoing, we hold that an inspector should find that a violation of any mandatory
standard was caused by an unwarrantable failure to
comply with such standard if he determines that the
operator involved has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have known
existed or which it failed to abate because of a lack
of due diligence, or beqguse of indifference or lack of
reasonable care.In several recent decisions concerning the interpretation
and application of the term "unwarrantable failure," the
Commission further refined and explained this term, and concluded
that it means "aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of
the Act." Energy Mining Corporation, 9 FMSHRC 1997 (December
1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December
1987); Secretary of Labor v. Rushton Mining Company, 10 FMSHRC
249 (March 1988). Referring to its prior holding in the Emery
Mining case, the Commission stated as follows in Youghiogheny &
Ohio, at 9 FMSHRC 2010~
We stated that whereas negligence is conduct that
is 11 inadvertent, 11 "thoughtless" or "inattentive,"
unwarrantable conduct is conduct that is described as
"not justifiable" or "inexcusable." Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more that ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the Act's enforcement scheme.
In Emery Mining, the Commission explained the meaning of the
phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:
We first determine the ordinary meaning of the
phrase "unwarrantable failure." "Unwarrantable" is
defined as "not justifiable" or "inexcusable."
"Failure" is defined as "neglect of an assigned,
expected, or appropriate action." Webster's Third New

25

International Dictionary (Unabridged) 2514, 814 (1971)
("Webster 1 s 11 ) . Comparatively, negligence is the failure to use such care as a reasonably prudent and
careful person would use and is characterized by
"inadvertence," "thoughtlessness," and "inattention."
Black's Law Dictionary 930-31 (5th ed. 1979). Conduct
that is not justifiable and inexcusable is the result
of more than inadvertence, thoughtlessness, or
inattention. * * *
The inspector's credible testimony, which is not rebutted by
the respondent, supports his conclusion that there was little or
no ventilation in the cited area which had been driven for
120 feet.
Given the distance driven, with no ventilation, the
inspector's conclusion that the condition existed for at least
two shifts, is supportable. The respondent did not dispute the
inspector's testimony that the certified foreman present in the
area was required to monitor the ventilation and did not deny
that he was aware of the cited condition, and indeed admitted it
(Tr. 17). Although the inspector confirmed that he detected no
methane present, he nonetheless found that the absence of ventilation resulted in ''real dusty" conditions and that the mining
machine, shuttle cars, and scoops operating on the section
constituted potential ignition sources which presented a fire or
explosion hazard in the event of any methane liberation while
coal was being cut.
The respondent presented no evidence or testimony to rebut
the inspector's findings that a significant and substantial
violation existed, nor did it present any reasonable explanation
for the absence of ventilation in the cited area.
In addition to
the inspector's testimony that the section foreman, who was with
him during his inspection, admitted that he was aware of the lack
of ventilation, the inspector testified that the condition could
not have been created on the on-going shift, and that the lack of
ventilation existed for at least two, and possibly three prior
shifts (Tr. 23). He also confirmed that in order to abate the
condition and establish the required amount of ventilation
pursuant to the ventilation plan, three breaks had to be cut
through and this work was done the next day (Tr. 24-25). Under
all of these circumstances, I conclude and find that the inspector's credible testimony supports a finding of aggravated conduct
and his unwarrantable failure finding and citation IS AFFIRMED.
Size of Business and Effect of Civil Penalty Assessments on the
Respondent 1 s Ability to Continue in Business
The parties agreed that the respondent employs approximately
100 miners, and that its annual production for 1989 was approximately two-million tons of coal. The annual production for the
No. 1 Mine was one-million tons. The respondent's representative
confirmed that the respondent operates eight mines and that the

26

No. 1 Mine consists of an underground mining operation, a surface
plant, and an impoundment. The respondent stipulated that
payment of the proposed civil penalty assessments in all of these
proceedings will not adversely affect its ability to continue in
business.
In view of the foregoing I conclude and find that the
respondent is a large mine operator and that the payment of the
civil penalty assessments that I have made for the violations
which have been affirmed will not adversely affect its ability to
continue in business.
History of Prior Violations
The MSHA computer print-out listing the respondent's compliance record for the period October 4, 1987, through October 3,
1989, reflects that the respondent paid civil penalty assessments
in the amount of $18,742, for 160 violations, 44 of which were
"single penalty" non-S&S violations. With the exception of one
section 104(d) (1) order, one combined section 104(a) citation and
107 (a) imminent danger order,. . and five combined section 104 (a)
citations and sectiqn-104(b) orders, all of the remaining violations were issued as section 104(a) S&S citations.
With regard to Docket No. KENT 90-116, I take note of the
fact that the computer print-out reflects one prior violation of
30 C.F.R. § 75.316, issued on March 22, 1988, as a "single
penalty" citation for which the respondent paid a civil penalty
assessment of $20. No prior violations of sections 75.1103-4,
70.501, 77.216-3(a), or 77.216(d) are noted.
In Docket No. KENT 90-162, the computer print-out reflects
no prior citations for violations of sections 77.216(d) and
75ol722(b),
Six prior violations of the check-in and check-out
requirements of section 75.1715, were issued on April 6, 1988, as
g'single penalty 1u citations which were assessed and paid at $20
eacha
I assume that the multiple citations were issued for
failure to provide proper identification for six individual
miners.
In the instant proceeding, the inspector issued a single
violation for failure to provide proper identification for seven
miners working underground.
In Docket No. KENT 90-163 1 the print-out reflects no prior
violations of sections 70.207(a), 77.1605(a}, and 77.400(c}.
Three prior violations of section 77.1605(b} are noted, and they
were all issued on April 4, 1988.
Although I cannot conclude that the respondent's history of
prior violations is particularly good, for an operation of its
size where the No. 1 Mine had an annual production of one million
tons, I cannot conclude that it warrants any increases in the
civil penalty assessments which I have made for the violations

27

which have been affirmed. In this regard, I have considered the
fact that the respondent's history contains only a few repetitive
violations, none of which I consider particularly egregious, and
this is reflected in my civil penalty assessments.
Good Faith Compliance
The record in these proceedings establishes that the respondent timely corrected and abated all of the violations in good
faith.
In Docket No. KENT 90-163, the four permissibility
violations were all abated within 15 minutes, and the handrails
were installed in the parts trailer stairway immediately and
prior to the time fixed by the inspector.
In Docket No. KENT 90-116, the ventilation violation was
abated and the ventilation was restored within 30 minute& of the
issuance of the violation. One of the slurry impoundment violations (2982728), was abated within 2 hours, and 1-day earlier
than the time fixed by the inspector.
In Docket No. KENT 90-16.2,. the check-in and check-out
violation was abategwithin 3 hours, 2-hours earlier than the
time fixed by the inspector.
I have taken the respondent's good faith and rapid abatement
actions into consideration in the civil penalty assessments which
I have made for the violations in these proceedings.
Negligence
Except for Citation Nos. 3369907 and 3364696, the inspectors
found that all of the remaining violations resulted from a
moderate degree of negligence. The inspector who issued Citation
Noo 3369907 concluded that it resulted from a high degree of
negligence, and the inspector who issued Citation No. 3364696
concluded that it resulted from a low degree of negligence.
The respondent presents no testimony or evidence to rebut
the findings of the inspectors. Based on these findings, which I
conclude and find are supported by the evidence adduced in these
proceedings, I further conclude and find that all of the violations were the result of the failure by the respondent to exercise reasonable care to prevent the cited conditions or practices
which it knew or should have known existed. Under the circumstances, the negligence findings made by the inspectors are all
affirmedo
In Docket No. KENT 90-163, with respect to the violation for
the broken windows on the cited bulldozer, and the inadequate
parking brake on the cited end loader, I have considered the fact
that the equipment operators apparently failed to adequately
inspect the equipment and did not report the violative conditions

28

to their respective foremen.
The inspector testified that the
end loader operator acknowledged that the parking brake was
inadequate, and the broken glass on the bulldozer should have
been readily obvious to the operator.
Although the negligence of
the equipment operators does not absolve the respondent of any
liability for the violations, I have considered this in mitigation of the civil penalty assessments made for these violations.
Gravity
With the exception of the three citations which were issued
as ''single penalty" non-S&S citations (3367668, 9979793, and
3364696), I conclude and find that on the basis of the credible
testimony presented by the inspectors, all of the remaining
citations affirmed as significant and substantial (S&S) violations, were serious.
With regard to Citation Nos. 3364697 and 3364698, I conclude
and find that the cracked safety glass windows in the doors of
the cited bulldozer and the inadequate end loader parking brake
were nonserious conditions.
Civil Penalty Assessments
Although the respondent presented no testimony or evidence
with respect to the fact of each violation, its representative
confirmed that the respondent contested the violations because it
believed that the inspectors were issuing all citations at the
mine as significant and substantial (S&S) violations, and that
this has resulted in civil penalty assessments which the respondent believes are "high" for the conditions cited.
The respondent also took the position that the "high"
penalty assessments resulted from MSHAis inappropriate consideration of its history of prior violations.
In support of this
assertionf the respondent believes that any prior violations
issued on any of the mine working sections should be considered
and limited only to those mine sections rather than the entire
mine.
The respondent further believes that i t is unfair to
combine all of the prior violations and consider them as part of
the compliance record for the entire mine, rather than the
separate mine sections, and that by considering them in totality,
rather than separately, "double assessments" have resulted.
It is clear that I am not bound by MSHA's civil penalty
assessment procedures found in Part 100, Title 30, Code of
Federal Regulations.
Nor am I bound by MSHA's proposed civil
penalty assessments.
All civil penalty cases contested by a mine
operator before the Commission, an agency which is not part of
the U.S. Department of Labor, are considered de novo by the
presiding judge, and any civil penalty assessments are made in
accordance with the criteria found in section llO(i) of the Act.

29

In the instant proceedings, my findings and conclusions with
regard to the violations are based on the preponderance of the
credible and probative evidence adduced on the record in the
course of the hearings. The civil penalty assessments which I
have made for the violations which have been affirmed are likewise based on the evidentiary record and the criteria found in
section llO{i) of the Act.
The respondent's assertion that its history of prior violation should be considered separately for each mine section,
rather than the entire mine, is rejected. I find no support for
the respondent's conclusion that MSHA's consideration of its
prior history of violations resulted in any "double" proposed
civil penalty assessments. The respondent's history of prior
violations for the purposes of any civil penalty assessments is
reflected in the computer print-out which is a part of the record
in this case.
I have considered this compliance record as the
overall compliance record for the No. 1 Mine, and I consider the
violations noted in the print-out as the total history for the
mine, regardless of the particular mine sections where the
violative conditions may havg occurred. Further, as noted
earlier, I have tak~n this history into account in assessing the
penalties for the violations in question, and I cannot conclude
that the respondent has been unreasonably penalized or treated
unfairly.
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment requirements of
section llO(i) of the Act, I conclude and find that the following
civil penalty assessments are reasonable and appropriate for the
violations which have been affirmed in these proceedings:

Docket No. KENT 90-116
Citation No.

Date

30 C.F.R. Section

Assessment

3369907
3158954
3158955
2982728
2982829

10/04/89
12/18/89
12/19/89
01/17/90
01/17 /90

75.316
75.1103-4
70.501
77.216-3(a)
77.216(d)

$950
$165
$100
$170
$150

'Docket No. KENT 90-162
Citation No.

Date

30 C.F.R. Section

Assessment

3367667
3367668
3158951
3158952
3158953

12/06/89
12/06/89
12/18/89
12/18/89
12/18/89

77.216(d)
77.216(d)
75.1722(b)
75.1722(b)
75.1715

$100
$ 20
$175
$175
$250

30

Docket No. KENT 90-163
Citation No.

Date

30 C.F.R. Section

Assessment

9979793
3364694
3364695
3364696
3364697
3364698
3364699
3364700
3515144
3515145

11/13/89
01/03/90
01/03/90
01/05/90
01/05/90
01/05/90
01/05/90
01/08/90
01/09/90
01/09/90

70.207(a)
75.503
75.503
77.1109(d)
77.1605(a)
77.1605(b)
77.400(d)
75.503
75.503
77.205(e)

$ 20
$160
$160
$ 20
$ 20
$ 20
$125
$160
$160
$170

ORDER
The respondent IS ORDERED to pay the civil penalty assessments shown above within thirty (30) days of the date of these
decisions and order.
Payment is to be made to MSHA, and upon
receipt of payment, t9ese proceedings are dismissed.

~!~
Administrative Law Judge

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor 1 2002 Richard Jones Road, suite B-201, Nashville, TN
37215 (Certified Mail)

s. Preece, . Comptroller, Beech Fork Processing, Inc. v
F.O. Box 190J Lovely, KY 41231 (Certified Mail)

:['fir o

/fb

31

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

JAN 8 1991
DONALD F. RADOS,
complainant
v.

DISCRIMINATION PROCEEDING

BETH ENERGY MINES, INC.,
Respondent

PITT-CD-90-06

Docket No. PENN 90-186-D

Livingston Portal 84 Complex
ORDER OF DISMISSAL
Before:

Judge Koutr?s

The complainant's unopposed request to withdraw his
complaint in this matter IS GRANTED, and this case IS DISMISSED.

k/~~
Administrative Law Judge

Distribution~

Paul H. Girdany, Michael Healey, Esqs., HEALEY WHITEHILL, Fifth
Floor, Law & Finance Building, Pittsburgh, PA 15219
(Certified
Mail)
Ro Henry Moore; Esqo, Buchanan Ingersoll, 600 Grant Street, 58th
Floor, Pittsburgh, PA 15219 (Certified Mail)
/ml

32

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

JAN 8 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 89-365
A.C. No. 05-00266-03556

v.

King Coal Mine

NATIONAL KING COAL, INC.,
Respondent
DECISION
Appearances:

Susan J. Eckerti Esq., Office of the Solicitor,

u.s. Department of Labor, Denver, Colorado,

for Petitioner;
Tom Bird, National King Coal, Inc., Durango,
Colorado,
for Respondent.
Before:

Judge Cetti

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section llO(a) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
~(the "Act").
The Secretary charges National King Coal,""""""Irlc.
(National)f the operator of an underground coal mineu with a
104(a) significant and substantial violation of 30 C.F.R.
§ 75.606.
National filed a timely answer to the Secretary's proposal
for penalty, denying the alleged violation. After notice to the
parties, an evidentiary hearing on the merits was held before me
at Durango, Colorado. Oral and documentary evidence was introduced. Both parties have filed post-hearing bri s, which I have
considered along with the entire record in making this decision.
STIPULATIONS
At the hearing 1 the parties entered the following stipulations into the record, which I accept.
1. National is engaged in the mining and selling of coal in
the United States, and its mining operations affect interstate
commerce.

33

2. National is the owner and operator of King Coal Mine,
MSHA I.D. No. 05-0026-03556.
3. National is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et~
4.
matter.

The administrative law judge has jurisdiction in this

5.
The subject citation was properly served by a duly
authorized representative of the Secretary, upon an agent of
respondent, on the date and place stated therein, and may be
admitted into evidence for the purpose of establishing its
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.

6. The exhibits to be offered by respondent and the Secretary are stipulated to be authentic, but no stipulation is made
as to their relevance or to the truth of the matters asserted
therein.

7. The propos~d penalty will not affect respondent's
ability to continue in business.
8. The operator demonstrated good faith in abating the
violation.
9. National is a small mine operator with 111,651 tons of
production in 1988.
10. The certified copy of the MSHA assessed violations history, marked as Exhibit P-1, accurately reflects the history of
this mine for the two years prior to the date of the citation.
If a violation of the requirements of 30 CoFoRo § 750606
is found, the violation is properly designated nsignificant and
substantial.•

12. If a violation of 30 CoF.R. § 75.606 is found, the appropriate civil penalty under llO(i) of the Act for the violation
is $168000.
I

Cosme Fo Gutierrezf the Federal Mine Inspector who issued
the citation charging a violation of 30 C.F.R. § 75.606f testified as to his experience and qualifications as a mine inspector.

34

He has conducted inspections of the King Coal Mine once or twice
a year since his transfer from West Virginia in 1984. His inspection includes the entire mine and take approximately two or
three weeks to complete. The mine is an underground seam, approximately 4.5 to 5.5 feet thick.
The mine has two sectors,
generally, consisting of 001 and 002 sections.
On March 23 both, Federal mine inspectors Cosme Gutierrez
and David L. Head were inspecting the King Coal Mine. Mr. Gutierrez was making a regular inspection. About 7:20 a.m., Inspector Gutierrez went underground and walked to the third east section which is the 001 section.
He proceeded into the third entry
where the continuous mine machine was operating and took an air
reading.
He then stood back away from the continuous miner to
observe a mining cycleo
As aptly stated in Respondentus post-hearing brief, "in a
typical continuous mining machine section of a coal mine there
are several pieces of equipment. These are:
the continuous
mining machine that cuts coal from the working face, two shuttle
cars (rubber-tired coal haulage vehicles) that move the cut coal
from the tail-boom of-the continuous mining machine outby to the
feeder-breaker, and the feeder-breaker which is a stationary
piece of equipment that feeds cut coal hauled by the shuttle car
onto the conveyor belt system for transport out of the mine."
Inspector Gutierrez testified that he observed the mining
cycle as he stood in the intersection between three and four
entry.
The power kicked off the miner and he saw Mr. Willie
Lucero, the face boss and section foreman, go over to Tom Bird,
the mine superintendent and tell him that the power kicked off
the continuous miner because a shuttle car ran over the miner's
trailing cable and damaged ito At the time he overheard this
conversationv he was standing about 30 feet from the site of
where the incident occurredo
After overhearing the section foreman tell the mine superintendent that the shuttle car ran over the miner's trailing cable,
Inspector Gutierrez proceeded to walk the 30 feet to the site of
the damaged trailing cable which was in the number three entry by
the last open crosscuto
Inspector Gutierrez saw the miner 1 s
trailing cable lying in the roadway where the shuttle car traveled back and fortho
The cable was lying in the roadway three or
four feet from the rib.
Mr. Gutierrez knelt down and examined
the trailing cable. The trailing cable was approximately two
inches in diameter.
The outer rubber covering had tire marks
indented on it whichu he observed, were the same type of tire
marks that would have been made by the shuttle car that was still

35

setting approximately 10 feet back from the miner. Mr. Gutierrez
testified that, once the shuttle car ran over the cable and the
power shut off the miner, the shuttle car backed off about ten
feet from the miner. At the time, the shuttle car was the only
piece of equipment in the entry other than the continuous miner.
Inspector Gutierrez testified that he knew the cable had
been damaged because the breakers in the power center had tripped
or shut off, and he saw "tire marks and indentations in the
slightly depressed rubber cable." He testified the miner's
trailing cable was not adequately protected because it was in the
roadway where the shuttle cars could run over it. He explained
that "once you but a cable where it can be run over, there is no
longer protection." lj
Inspector Gutierrez stated that he observed the trailing
cable being repaired and the damage he observed was not in an old
pre-existing splice. He told the Superintendent Bird that he was
going to issue a citation.
David L. Head has been a federal mine inspector for 14
years, specializing,tn electrical inspections. On March 23,
1989, Inspector Head, as well as Inspector Gutierrez, was making
a regular inspection in the King Coal Mine. At the time the
trailing cable power to the continuous miner "kicked off," Inspector Head stated he was in the second entry a short distance
away from where Inspector Gutierrez was standing. He could see
Inspector Gutierrez. He was only 25 to 30 feet from where he
could see into the face area of entry number three. He also
overheard the conversation in which the face boss Willie Lucero
came to the mine superintendent Bird and told him "that the
shuttle car had damaged the cable" and that the power to the
miner had tripped. 11 At the time Inspector Head overheard this
conversationu he was 30 feet from the spot where the face boss
Willie Lucero and the operator of the continuous miner Shane
Hurst talked to the mine superintendent and told him that the
shuttle car ran over the minerus trailing cable.

1/
A shuttle car is a piece of rubber-tired mobile equipment
with a truck-like bed that is loaded with coal by the continuous
miner"
The shuttle car travels back and forth hauling the cut
coal from where it is loaded by the continuous miner to a dump
site. The shuttle car weighs approximately 15 to 20 tons and has
a load capacity of about seven tons.
CTro 27).

36

Inspector Head testified that mobile equipment was moving
with high frequency through the area where the incident occurred.
He stated that, in his opinion, a trailing cable in the roadway
in tha area was not adequately protected and that it was very
probable that it could be run over by mobile equipment.
Neither Inspector actually saw the shuttle car run over the
miner's trailing cable. Neither saw any splice in the miner's
trailing cable. The only witness called by Respondent was
Mr. Tom Bird, the mine superintendent. His testimony conflicts
with that given by Inspectors Gutierrez and Head. He testified
that, when the power "kicked off" the continuous miner, he was at
a distant point in entry number two, several hundred feet away
from the continuous miner and that Inspector Gutierrez was with
him. Mr. Bird stated that, when the power kicked off the continuous miner, the only two employees in that area near the face
of the number three entry were the face boss Mr. Willie Lucero
and the operator of the miner Mr. Shane Hurst. The face boss,
along with the miner's operator, came to him and told him that
they needed an electrician to repair the trailing cable.
Mr. Bird testified that, when he asked why the "power kicked
off, 11 the face boss,replied he "thought somebody had run over it
with a shuttle car." Mr. Bird stated that they proceeded towards
the miner. Mr. Bird, however, did not go directly to the miner.
He testified, "I went back to the power center. I unplugged the
cable, locked it, tagged it out •••• I don't recall if anyone was
with me then or not •••• Then I proceeded back.to the miner." He
stated that, when he got to the miner, there was no shuttle car
behind the miner.
Mr. Bird recalled that "somebody that was there" said smoke
came out of a splice in the cable located about three feet behind
the miner. When the splice in the cable was opened, he found the
"black and red conductors (inside the cable) had rubbed together,
causing a short-circuitv causing a considerable amount of damage
inside the splice.n It was Mr. Bird 1 s theory that, as the miner
was advancing, npulling the cable taut" it caused the cable to
break down.
Inspector Gutierrez early in the hearing explained that the
mineris helper "normally" handles the continuous miner 1 s trailing
cableu frequently kicking it or moving it by hand to the rib, out
of the way of the mobile equipment traversing the area.
Mr. Gutierrez stated that it was the cable helper's job to continually move the cable 11 out of way 11 and the cable hadn't been
moved out of the was in this case. Mr. Bird testified, "Generally, we don 9 t use a cable helper," and that there was no helper or
cable man at the time the power in the trailing cable of the
miner "kicked off."

37

DISCUSSION
30 C.F.R. § 75.606 provides as follows:
Trailing cables shall be adequately protected
to prevent damage by mobile equipment.
The focus of this standard is to require operators to take
appropriate steps to ensure the protection of trailing cables
from damage by mobile equipment.
The Secretary is correct in asserting that it does not have to prove that a cable was in fact
damaged by a piece of mobile equipment in order to sustain a
finding of a violation of section 30 C.F.R. § 75.606.
See, Secretary of Labor CMSHA) v. United States Steel Mining Company-,~
Inc., 6 FMSHRC 155.157 (January 1984). In that case, a violation
of 30 C.F.R. § 75.606 was found even though the cable was not
damaged, but had been lying out in the roadway three feet from
the rib and was found therefore to not have been adequately
protected.
The Secretary is also correct in asserting that there is no
requirement that the ~nspector be an eye witness to an event in
order to issue a 104(a) citation for a violation arising out of
that event. The language of 104Ca) requires the Inspector to
issue a citation when "upon inspection or investigation" the
Inspector "believes that an operator of a coal mine or other
mine ••. has violated the Act •••• " (emphasis added). Emerald
Mines Co. v. Federal Mine Safety and Health Review Commission,
863 F.2d 51, 54 (D.C. Cir. 1988). In the case at bar, Inspector
Gutierrez investigated the situation and reasonably concluded
that there was a violation of 30 C.F.R. § 75.606.
I credit the testimony of Inspectors Gutierrez and Heado
Based upon their credible testimony summarized aboveu I find and
conclude that trailing cable of the continuous miner was not
adequately protected to prevent damage by mobile equipmento
Thus
there was a violation of the cited mandatory safety standard.
Even though there was no eye witness who saw the shuttle car
run over the cableQ the evidence presented established that it
was more probable than not that the shuttle car ran over the
trailing cable while it lay in the roadway and damaged ito Thusu
a preponderance of the evidence presented established the
violation of the cited safety standardo
Even assuming the face boss and the operator of the continuous miner said they "thought" or uiassumed" the shuttle car ran
over the cableu it appears (aside from the testimony of the two

38

federal coal mine inspectors, one of whom saw tire marks on the
trailing cable), the very fact that Respondent's face boss and
its operator of the continuous miner "thought" that the shuttle
car ran over the cable is indicative of the fact that they were
aware that the trailing cable was lying in the roadway where it
at least could be damaged by a shuttle car. The face boss, the
operator of the miner, and the shuttle car operator were the only
employees of the Respondent in the general area when the cable
was damaged. None of these employees were called to testify.
Respondent instead relied on hearsay statements as to what its
face boss said and thought. On the other hand, the testimony of
the mine inspector as to what they heard the face boss or section
foreman tell the mine Superintendent was admissible hearsay even
in a court of law where stricter rules of evidence are followed.
As previously stated, I credit the testimony of the two mine
inspectors and on the basis of their testimony find there was a
violation of the cited safety standard.
The evidence and the stipulations clearly established that
the violation was signif ican~ and substantial and that, taking
into consideration the statutory criteria in section llO(i) of
the Act, the Secretary's proposed $168 penalty is an appropriate
penalty for this violation.
ORDER
1. Citation No. 3412632, alleging a violation of 30 C.F.R.
75.606, including its finding that the violation was significant and substantial, is AFFIRMED.
§

2.

A civil penalty of $168 is ASSESSED for this violation.

3o
The Respondent is directed to pay $168 to the Secretary
of Labor within 30 days of the date of this decisionQ as a civil
penalty for the violation found herein,

A ust Fo Cetti
A ministrative Law Judge

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 9 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 90-53
A.C. No. 33-01173-03825
Meigs No. 2 Mine

SOUTHERN OHIO COAL COMPANY,
Respondent
DECISION

Appearances:

Before:

Patrick M. Zohn, Esq., Office of the Solicitor,
U.S. Department of Labor, Cleveland, Ohio for
the Secretary of Labor (Secretary) ;
David M. Cohen, Esq., Lancaster, Ohio for
Southern Ohio Coal Company (SOCCO).

Judge Broderick

STATEMENT OF THE CASE

The Secretary seeks a civil penalty for an alleged violation
of 30 C.FoRo § 7501403-lO(h)v charged in a section 104(a)
citation issued January 5, 19900 The violation was designated as
significant and substantial. It was based on a safeguard notice
issued on March 31, 1989, pursuant to section 314(b) of the Mine
Act.
Pursuant to notice, the case was called for hearing in
Columbus, Ohio on September 26, 1990. Patrick H. McMahon
testified on behalf of the Secretary. John Moore and Jon
Merrifield testified on behalf of SOCCO. At the conclusion of
the hearing, the Secretary argued her position on the record, and
waived her right to file a post-hearing brief. socco has filed a
post hearing brief. The case was ably tried on both sides, and
the issues are sharply defined. I have considered the entire
record and the contentions of the parties in making this
decision.

40

FINDINGS OF FACT
I

At all times pertinent to this proceeding, SOCCO was the
owner and operator of an underground coal mine in Meigs County,
Ohio, known as the Meigs No. 2 Mine. SOCCO is a large operator.
There is no evidence that a penalty assessed in this case will
have any effect on SOCCO's ability to continue in business, and I
find that it will not. During the period from January 5, 1988 to
January 4, 1990, the subject mine had 596 paid violations, of
which 30 were violations of 30 C.F.R. § 75.1403. Considering the
size of the subject mine, this history is not such that a penalty
otherwise appropriate should be increased because of it.
II

During an inspection on March 31, 1989, Federal Mine
Inspector Patrick H. McMahon discovered a rubber scoop being
operated along the supply track in the subject mine with only
6 inches of side clearance. -The scoop was taking on supplies
from the supply cars; and was bumping the sides of the supply
cars.
Inspector McMahon issued a notice to provide safeguards
requiring that a total of at least 36 inches side clearance (both
sides combined) be provided for all rubber tired haulage
equipment operated along the supply tracks in the subject mine.
In issuing the safeguard notice, the inspector was primarily
concerned that the scoop operator could be injured if the scoop
struck the rib or a supply car. He also considered the fact that
the track was a walkway, and miners using it as such could be
injured.
III

On January Sr 1990 9 Inspector McMahon was conducting a
regular inspection at the subject mine. He walked up the track
entry in the 001 section and observed a scoop tractor parked
between the coal rib and the supply cars. The scoop operator was
loading supplies. The inspector measured the distance between
the scoop operator 1 s compartment and the coal rib which he found
to be 24 inches. He then measured the distance from the other
side of the scoop to the supply car, which he found to be 4
incheso
The rib line was uneven, and the bottom was rutted from
vehicles operating in the area. There was a downhill slope
toward the face area. The scoop operator's view was partially
obstructed by the supplies which were on the scoop, some of which
were stacked on the battery compartment with no structure to hold
them in. Scoops are equipped with "articulated steering," which
the inspector believed rendered them less controllable by the
scoop operator.
Inspector McMahon issued a citation charging a
violation of 30 C.F.R. § 75.1403-lO(h) referring to the prior
safeguard notice.

41

REGULATION

30 C.F.R.

§

75.1403 provides as follows:

Other safeguards adequate, in the judgment of
an authorized representative of the
Secretary, to minimize hazards with respect
to transportation of men and materials shall
be provided.
30 C.F.R.

§

75.1403-lO(h) provides as follows:

75.1403.10 criteria-haulage; general

* * *
(h) A total of at least 36 inches of
unobstructed side clearance (both sides
combined) should be provided for all rubbertired haulage equipment where such equipment
is used.

1.

Whether the safeguard notice issued March 31, 1989, is

valid?
2. If so, whether the evidence shows a violation of the
safeguard as charged in the citation issued January 5, 1990?
3. If it does, whether the violation was properly
designated significant and substantial?
£!,"

If

doesff what is the appropriate penalty for the

CONCLUSIONS OF L:M-4
I

socco was subject to the provisions of the Mine Act in the
::;peration of the Meigs No. 2 Mine 0 and I have jurisdiction over
the parties and subject matter of this proceeding.
II

socco challenges the safeguard notice on the ground that it
is not mine-specific, that is, it is not directed to hazards
peculiar to the subject mine. Safeguard notices are authorized
by section 314(b) of the Mine Act which provides:
"other
safeguards adequate, in the judgment of an authorized
representative of the Secretary, to minimize hazards with respect
to transportation of men and materials shall be provided."

42

The Commission discussed safeguard notices and contrasted
them with mandatory health and safety standards in Southern Ohio
Coal Co., 10 FMSHRC 963 (1988). However, it declined to decide
whether a safeguard notice must be mine-specific to be upheld.
In the case of Southern Ohio Coal Company, 9 FMSHRC 273
(1987), petition for discretionary review granted March 1987,
Commission Judge Roy Maurer concluded that a safeguard "not
issued under any of the specific criteria for safeguards
contained in 30 C.F.R. §§ 75.1403-2 through 75.1403-11" is
invalid unless "demonstrably related to same mine-specific hazard
or unsafe condition sought to be corrected". The safeguard in
Judge Maurer's socco case was issued under 30 C.F.R. §75.1403 and
was not related to a mine-specific hazard. Therefore, it was
held invalid.
In Southern Ohio Coal .Company, 10 FMSHRC 1564 (1988), Judge
Avram Weisberger concluded that a safeguard notice requiring that
all track haulage in the mine be properly maintained and aligned,
was not mine-specific and was therefore invalid.
In the case of ,Beth Energy Mines, Inc., 11 FMSHRC 942
(1989), Judge Gary Melick found invalid a safeguard notice issued
pursuant to 30 c.F.R. § 1403-lO(e) which provides that positive
active stopblocks or derails should be used to protect persons
from danger of runaway haulage equipment. Judge Melick concluded
that safeguards may not be used to impose general requirements on
mines without regard to the circumstances present in the mine in
question.
In Southern Ohio Coal Company, 11 FMSHRC 1992 (1989),
petition for discretionary review granted November 1989, Judge
Maurer concluded that a safeguard notice issued pursuant to 30
CoFoRo § 75ol403-9(a) which provides that shelter holes be
provided on track haulage roads at intervals of not more than 105
was not issued on a "mine-by-mine" basis because of any
peculiar circumstance in the subject mine, and was therefore
lnvalid.
In Beth Energy Mines, Inc., 12 FMSHRC 761 (1990), petition
discretionary review granted May 1990, Judge William Fauver
upheld a safeguard notice though the hazard was of a general
rather than a mine-specific nature, when the safeguard was based
on one of the criteria in 30 C.F.R. § 75.1403-2 through
§ 7501403-110

Judge Fauver 1 s decision relied on the Court of Appeals
decision in the case of United Mine Workers of America v. Dole,
870 F.2d 662 (D.C. Cir. 1989), which held that MSHA's
implementing regulations including promulgated general criteria
(not limited to mine-specific conditions) for roof control plan
approval constituted a mandatory standard. Following the
reasoning in the UMWA decision, Judge Fauver concluded that the
published criteria for safeguard notices (1403-2 through 1403-11)

43

since they were promulgated pursuant to section lOl(a) may be
used as valid safeguard notices even though the hazards to which
they apply are general and nonspecific.
The socco cases before Judges Maurer and Weisberger, and the
Beth Energy case before Judge Melick were following the rationale
in the case of Zeigler Coal Co. v. Kleppe, 536 F.2d 398 (D.C.
cir. 1976) which held that a ventilation plan could not be used
to impose general ventilation requirements on a mine. According
to the Court, the latter should be the subject of a mandatory
standard promulgated under section 101 of the Act.
In the UMWA
decision, the court of Appeals, according to Judge Fauver,
11
clarified" the Zeigler decision when it held that the Secretary
may require generally applicable plan approval criteria in mine
plans. Since the criteria are promulgated pursuant to notice and
comment requirements, incorporating them in a mine plan makes
them mandatory standards. Similarly, incorporating published
criteria in a safeguard notice, makes it in effect a mandatory
safety standard.
I agree with the reasoning in Judge Fauver's decision, and
conclude that the not~ce challenged in this case is valid since
it cited and tracked the criterion in 30 C.F.R. § 75.1403-lO(h).
III

socco argues that the safeguard is invalid because it does
not minimize but increases hazards with respect to the
transportation of men and materials. The evidence does not
support this contention. In fact the safeguard addresses and
attempts to minimize hazards to the scoop operators and miners
using the track entry as a walkway to the face.
I accept the
inspector 1 s testimony on this issue. The fact that alternative
means of transporting materials (e.g.u carrying them by hand)
might pose other hazards
not a defense to the violation of the
safeguard noticeo
I conclude that the failure to maintain a
total of at least 36 inches of clearance for the scoop being
operated along the supply track was a violation of the safeguard
notice issued April 14p 1989u and of 30 C.F.R. § 75.1403-lO(h).
IV
A violation is properly cited as significant and substantial
a hazard contributed to by the violation and a
reasonable likelihood that the hazard will result in an injury of
a reasonably serious nature Cement Division/National Gypsum Co.,
3 FMSHRC 822 (1981); Mathies Coal Co., 6 FMSHRC l (1984).
Inspector McMahon testified that the scoops operated in the
haulage entry for only a "couple of minutes" per shift. A cage
was present on the scoop operator's compartment and he was
"probably fairly well protected, yes."
(Tr. 52)
Shelter holes
were provided in the vicinity of the supply cars for miners
walking toward the face.
I conclude that the Secretary has
failed to establish that the violation was reasonably likely to

if ~nere

44

result in injury. Therefore it was not properly denominated
significant and substantial.

v
Although I have concluded that a serious injury is not
likely to result from the violation, if an injury did occur,
whether to the scoop operator, or to a miner walking the entry,
it could be serious. I conclude that the violation was
moderately serious. socco has been cited for this violation
previously, and has received 44 citations or orders under part
75.1400 during the prior 12 month period.
I conclude that the
violation resulted from SOCCO's moderate negligence. Considering
the criteria in section llO(i) of the Act, I conclude that an
appropriate penalty for the violation is $150.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:

l,

Safeguard Notice 3124669 is AFFIRMED.

2. Citation 3323861 is MODIFIED to delete the significant
and substantial finding and, as modified, is AFFIRMED.
3. SOCCO shall pay a civil penalty in the amount of $150
within 30 days of the date of this decision.

'j ,{

),1

I

i

r,l ii,,:,;:_.:; -r/.-c // l:J<.itA ..,_, ~'//\-..__
James A. Broderick
Administrative Law Judge

Distribution~

Patrick Mo Zohn, Esqof UoSo Department of Labor, Office of the
Sol
881 Federal Office Building, 1240 East Ninth Street,
Cleveland, OH 44199
(Certified Mail)
David Cohen; Esqo, American Electric Power Service Corporation,
Supply Department, PoO. Box 700, Lancaster, OH 43130-0700
(Certified Ma )

Yml

45

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

JAN 111991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket Noo WEST 88-275-M
AeC. No. 04-01937-05505

v.

Docket No. WEST 89-71-M
A.C. No. 04-01937-05506

SANGER ROCK & SAND,
Respondent

Sanger Pit and Mill

DECISION APPROVING SETTLEMENT
AFTER REMAND
Before:

Judge Morris_

On September 19, 1990, the Commission remanded the above
case.
Prior to considering the issues raised in the order of
remand, the parties filed a proposed settlement agreement.
Robert Pountney, the successor-in-interest and current
representative of Respondent Sanger Rock and Sand, agreed to
withdraw its notice of contest.

In view of Respondent 1 s motion to withdrawf Petitioner
agreed to dismiss the complaintso
The citationsv the original assessments, and the proposed
disposition are as follows~
Citation No"

Assessment

Disposition

3076869
3074994

$20
$20

$20
$20

I have reviewed the proposed settlement and I find it is
reasonable and in the public interest.
It should be approved&

Accordingly, I enter the

following~

ORDER
1.

The settlement agreement is APPROVED.

2.

The above citations and proposed penalties are AFFIRMED.

46

3. Respondent is ORDERED to pay the sum of $40 to the
Secretary of Labor within 15 days of the date of this decision.
4. Upon payment of said amount by Respondent to Petitioner,
the cases herein are DISMISSED.

Law Judge

Distribution:
Susanne Lewald, Esq., Office of the Solicitor, U.S. Department of
Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA
94105-2999 (Certified Mail)

Mro Robert Pountney, Cal Met Central California, 11599 North
Fryant Roadv Fresnot CA 93720
(Certified Mail)

/ek

47

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

22041

~JAH141991
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 90-128
A.C. No. 15-07253-03568
No. 10 Mine

IKE COAL COMPANY, INC.,
Respondent
DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner~
Arnold D. Coleman, Secretary-Treasurer, Ike Coal
Company, Inc., Elkhorn City, 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),
seeking a civil penalty assessment in the amount of $1,200, for
an alleged violation of mandatory safety standard 30 C.F.R.
§ 75.507.
The respondent filed an answer denying the violation,
and a hearing was held in Pikeville, Kentucky. The parties
waived the filing of posthearing briefs, but I have considered
their arguments made on the hearing record in my adjudication of
this matter.
Issues
The issues presented in this proceeding are (l} whether the
respondent has violated the standard as alleged in the proposal
for assessment of civil penalty, (2) whether the violation was
"significant and substantial," and (3) the appropriate civil
penalty that should be assessed based on the civil penalty

48

criteria found in section llO(i). Additional issues raised in
this proceeding are identified and disposed of in the course of
my decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 U.S.C. § 801 et seq.
2.

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

3.

Commission Rules, 20 C.F.R.

§

2700.1 et seq.

Discussion
Section 104(a) "S&S" Citation No. 3368426, issued by MSHA
Inspector Thomas M. Charles on September 21, 1989, cites a
violation of mandatory safety standard 30 C.F.R. § 75.507, and
the cited condition or practice is described as follows:
Evidence indicates,that a nonpermissible power
connection poi:qt-in the form of a bulldozer is being
used in the main return air course of this mine. There
are numerous sets of bulldozer tracks extending underground through the No. 1 entry return portal. There is
a diesel power case 450 dozer parked next to the No. 1
return portal. The electrical system of this dozer is
not permissible.
A 107-A Order #3368425 has been issued in conjunction with this citation. No termination due date is
set.
The aforementioned Imminent Danger Order No. 3368425 1 issued
simultaneously by Inspector Charles on September 21, 1989, states
as follows~
Evidence indicates that a work practice which
constitutes an imminent danger is being performed at
this mine. There are bulldozer tracks (numerous) in
the number one return portal. These tracks extend
underground for an unknown distance.
(Mine is idle no
fan running} . A diesel powered Case 450 bulldozer is
parked next to the No. 1 return portal. Evidence
indicates that the dozer has been used underground to
pull equipment out of this mine. This dozer has an
open nonpermissible electrical system. Given the
equipment height and finished mining height of this
area of the mine there can not be much clearance for
the dozer operator. Also the internal combustion

49

engine of the bulldozer puts off harmful gasses which
in the confined underground area of a mine could be
fatal.
A citation number 3368426 is being issued in
conjunction with this 107-A order. A special assessment will be asked for on this order, also a special
investigation will be asked for.
Inspector Charles subsequently filed a report, which is
included with the pleadings filed by the petitioner, requesting a
special assessment for the cited violation, and the report states
as follows:
Special assessments are requested. There is no
way that the operator could not of been aware of this.
This mine is nonproducing, the owners are in the process of pulling the equipment out, possibly doing this
work their self. By using the bulldozer underground in
a close clearance confined area in the main return air
course a reckles$ disregard for health and safety has
been demonstrated.
Petitioner•s Testimony and Evidence
MSHA Inspector Thomas M. Charles testified that he has
served as an inspector since 1978, and that he has 22 years of
mining experience, including work as a mine foreman.
He confirmed that he conducted a spot inspection of the mine on
September 21, 1989, and that the mine was in a "non-producing,
men working" status at that time. He stated that the mine gate
was locked and that he walked onto the mine property and went
past the mine fan to the mine opening at the number one return
portalo He observed evidence of some "work activity 11 at the mine
and observed a Case 450 bulldozer parked 11 around the hill from
the
nu entry and observed dozer tracks in and around the
area.
He observed that the dozer had 11 greyish and blue" mud on
it up and over the bulldozer "cat pads" for some 34 inches.
Since he did not have his usual equipment with him, he only went
25 feet underground and used a stick or a reed to measure the
and length of the dozer cat pad tracks on the ground, and
when he compared the measurements with those of the cat pads on
·the dozer, he found a 11 direct match. 11
Mr. Charles stated that he also observed a rubber tired
battery tractor, a flatbed truck, and some scoops at the site,
and he identified a sketch of the site which he prepared
(exhibit P-4). There was no one working at the mine, but he saw
a pickup truck parked at the mine office and a private security
guard hired by the mineral owner was sitting in the truck.
He
did not observe any joy loader on the mine surface. He stated
that the mine entry was approximately 6 feet high at the entry

50

portal, and he walked into the entry for a distance of 25 feet
and observed the same dozer tracks which he had observed in and
around the portal entry. He also observed that the dozer exhaust
stack and roll-over protection had been removed and were lying on
the flat bed truck. He assumed that this equipment had been
removed from the dozer in order to allow it to clear the portal
entry into the underground mine, and based on his observations
and measurements of the tracks, he concluded that someone had
taken the dozer inside the mine opening and used it underground.
He then left the mine to call his supervisor, and returned to the
mine to do his "paperwork." :'\e placed a red closure tag at the
mine and left a copy of the citation and order at the mine
office.
Mr. Charles stated that the "blueish and greyish" mud and
tracks which he observed outside the mine entry is the same kind
of mud found underground and that it was not the usual kind of
mud found on the surface. He confirmed that there was a mud hole
with tracks around it outside of the portal entry, but that this
surface mud was not the same kind which was underground.
If the
dozer exhaust stack and rollover protection had not been removed
from the dozer, the ,.machine could not have been taken underground
because of the lack of clearance at the entry, and his assumption
was that this equipment had been removed so that the dozer could
go underground to help bring out some of the equipment which the
respondent was removing from the mine.
Mr. Charles stated that after the citation and order were
conferenced 11 by the district manager in Pikeville, he was
instructed to return to the mine to conduct a special investigation and he next returned to the mine with two other inspectors
on September 26, 1989, to inspect the mine again, and that Ike
and Rodney Coleman were there at that time. Mr. Charles stated
that the inspection party went underground for a distance of
approximately 800 feetF and he observed that a scoop had been
used to R~back-:bladeiu or wipe out some of the dozer tracks 1 and
that a scoop was stuck in the mud. He stated that the mine was
wet and had "standing water and mud," and that he observed the
same type of dozer tracks underground as he had previously
observed on September 21, when he issued the citation and order.
11

Mr" Charles confirmed that on September 26, the dozer was
still parked outside of the mine, and he measured the cat pads
with a tape measure and found that they were 16 inches wide and
6 inches between the track blades. He compared these measurements with the tracks which he observed underground, and he again
found the same match as he had found during his prior inspection
of September 21. He also measured the finished mining height at
the portal entry at 6 feet, and he indicated that the mining
heights were higher inside the underground mine and were suff icient to allow the dozer to operate underground.

51

Mr. Charles stated that the respondent informed him that a
Joy 1410 front-end loader was used underground to help retrieve
some of the equipment and claimed that the tracks were made by
the loader. Mr. Charles did not believe that the tracks were
made by a loader because from his experience, any track prints on
the ground made by the loader would be different from those made
by the dozer. He explained that the Joy loader in question was a
common piece of equipment, and that he had previously inspected
the loader during two complete inspections of the mine which he
had conducted prior to September 21, and that he was familiar
with the loader tracks. He did not observe any loader at the
surface or underground in the area where he traveled, and he
confirmed that he did not travel to the mine face.
Mr. Charles identified exhibit P-5, as a picture of a Cat
dozer which is representative of the type of "cleat" or gripping
pattern of the dozer which he believes was used underground. He
also identified a standard cat pad from a Joy 1410 loader which
was produced in court for demonstration purposes by the petitioner's counsel. Mr. Charles explained that the loader pad
gripping pattern and configuration was different from the dozer
tracks which he obse~ved underground, that the loader pad is
12 inches wide, and that any tracks left by the loader in the mud
would be different from those made by the dozer.
Mr. Charles stated that he returned to the mine on
September 27, to meet with the respondent in order to terminate
the citation and order, and that he "looked over" the surface
area of the mine, while one of his fellow inspectors, Billy
Ramey, went underground to continue his inspection and investigation. Mr. Charles stated that the dozer was still parked on the
surface, and the exhaust stack had been replaced. However, the
rollover protection was still removed from the dozer at this
timeo Mro Charles stated that there was no question in his mind
that the bulldozer had been used underground at various times in
the main return air courseo
Mr. Charles stated that the bulldozer in question was a
nonpermissible piece of equipment, and that its electrical
components which constitute power connection pointsr are nonpermissibleo He confirmed that the cited mandatory section 75.507,
prohibits the use of such a piece of equipment underground in a
return air courseo He further confirmed that the use of such
equipment underground in return air presents a dangerous and
hazardous situation because the nonpermissible dozer, including
its electrical system and components, are a potential ignition
sources.
In the event of any accumulation of methane underground, and given the fact that the dozer would be operating in a

52

confined area, an ignition was possible. If this had occurred,
anyone working underground would be exposed to a serious ignition
hazard and would likely suffer burns or fatal injuries (Tr.
8-63) .
Mr. Charles stated that the mud which he observed on the
bulldozer was "way up on the framework." He confirmed that he
had not previously observed the dozer at the mine site, and in
his opinion, it was brought to the site to pull the equipment
out. Referring to his sketch, exhibit P-4, he confirmed that the
measurement shown as 5.3, represents the measured height of the
dozer which was five and three-tenths of a foot high, and that
the measured height of the entry was 6 feet.
He further confirmed the entry heights increased inby to heights of 8 and
9 feet and that it "rolled out in places," and that the next
lowest height he found was in the low top area approximately
800 feet underground, and that this area was 6 feet high. He
also confirmed that when he visited the mine on September 21 and
26, 1989, the power was on, but he observed no one working there
(Tr. 64-68).
He stated that the respondent would not have been
given permission to use the dgzer underground because it was
nonpermissible and was not equipped with a scrubber to keep the
diesel ignitions clean (Tr. 69).
MSHA Inspector Billy Ramey testified that he has served as
an inspector since September, 1982, and he confirmed that he went
to the mine on September 27, 1989, with Inspector Charles to
conduct a spot inspection. Mr. Ramey stated that he was aware of
the citation and order issued by Mr. Charles on September 21,
1989, and that he (Ramey) went underground for a distance of
approximately 180 feet, or "three breaks," to check the
conditions (Tr. 70-72).

Mro Ramey stated that he observed equipment tracks underground along the left rib and that the nbottom rockn was clean.
He also observed a pump cable lying in the roadway and determined
that a piece of equipment had traveled over it and cut a piece of
the cable. Although most of the underground mud on the bottom
had been cleaned up or 11 drug over 11 by scoops, and he observed no
tracks in the remaining mud, he did observe equipment track
indentations on the mine rock bottom and over the pump cable. He
measured the trac)(S which were in plain view, and found that they
were 16 inches wide and 6 inches long.
The bulldozer which had
been cited by Inspector Charles was still parked on the surface 1
and after measuring the cat pads, Mr. Ramey found that his
measurements conformed with the tracks measurements which he made
underground, and he concluded that the tracks were made by the
same bulldozer (Tr. 72-73).
Mr. Ramey stated that he observed some mud on the frame of
the bulldozer but he could not find any muddy areas on the

53

surf ace where the bulldozer could have operated in mud deep
enough to cause it to come up and over the frame of the machine.
Mr. Ramey confirmed that he was familiar with a 1410 Joy
loader but that he did not observe one at the mine site when he
was there. After examining a Joy loader cat pad used for demonstration purposes by the petitioner's counsel, Mr. Ramey was of
the opinion that the tracks which he observed underground were
not made by such a loader. He confirmed that the bulldozer
exhaust stack was on the machine which was parked on the surface,
and that Mr. Charles lifted it off and then replaced it.
Mr. Ramey did not believe that the rollover protection was on the
machine (Tr. 74-76).
On cross-examination, Mr. Ramey stated that he has never
observed a piece of steel welded across a 1410 Joy loader cat
pad. He confirmed that no one was at the mine when he was there
on September 27, except for a security guard. He also confirmed
that he helped Inspector Charles measure the height of the
bulldozer, but he could not recall the measurements. He did
recall that Mr. Charles measµred the height of the portal entry,
but he could not re9all the measured height. Mr. Ramey confirmed
that the mine was still closed and "red-tagged" when he was there
(Tr. 77-79) .
Mr. Ramey stated that he observed 10 or 12 "good pad marks"
underground which he believed were made by the bulldozer. He
confirmed that he observed a gob pile outside the portal entry
with mud which appeared to be from inside the mine, but he did
not see any evidence of any bulldozer tracks in the job pile area
(Tr. 79-81) •
Mr. Ramey stated that he has never observed a loader being
used to pull any equipment out of a mine and he did not
ieve
that a loader would be used for this purpose. He confirmed that
he detected no methane with his methane spotter while he was
underground and he did not observe any loader at the mine site
when he was there on September 27. He did observe the bulldozer,
a battery tractor motor, 30 to 40 feet of cable inside the mine,
and more cable on the outside, but he did not see any scoops (Tr.
70-86).

Inspector Charles was recalled, and he confirmed that while
he believed that someone had gone underground between
September 21 and 26, and wiped out some of the dozer tracks, he
did not issue any citation or further order for a violation of
his closure order because he did not observe this happen and did
not know who may have gone underground, and since this would have
been a "willful" offense, he did not believe that he had enough
evidence to establish such a violation (Tr. 89).

54

Mr. Charles confirmed that he discussed the use of the dozer
underground with the respondent, but that the respondent denied
using it underground and claimed that a loader was used and that
the tracks were caused by the loader. Mr. Charles confirmed that
he had previously observed a loader at the mine prior to his
inspection of September 21, but he did not see it on the surface
after he issued his closure order, nor did he know where it was
at (Tr. 90). He did not find the absence of the loader unusual
because he and the respondent "had a pretty rough relationship
going right at that time" and that the conversations about the
dozer being used underground "were confined to a few questions
and gruff replies and yes and no, you know, try to take care of
business and get out" (Tr. 91). Mr. Charles confirmed that
during the 7-month period when he conducted inspections at the
mine he had never observed any dozer at the mine and he believed
it was rented or leased (Tr. 93). Given the conditions he
observed on September 21, he believed that a loader would have
had difficulty tramming on the soft mine bottom because it does
not have much bottom clearance and he did not believe it would
have been capable of pulling any other equipment out of the mine
in the mud (Tr. 94).
Respondent's Testimony and Evidence
Rodney Coleman testified that he is employed by the respondent as a maintenance person, and after viewing the "cat pad"
produced in court by the petitioner, he stated that "it looks
like a loader track, but not like we use," and he explained the
differences (Tr. 95-96). Mr. Coleman stated that the 450 Case
dozer in question was not used underground and that it was used
in front of the surface drift mouth in the area of a "big mud
hole." He denied that any 5/8 inch steel cable hooked to the
winch of the dozer was used in the mine to pull out the equipment,, and he stated that the respondent had two 1410 loaders ('I'r"
96)
He stated that when it was necessary to clean the drift
mouth; the materials removed from the mine bottom were pushed to
the mud hole. He could not recall the height of the portal entry
but stated that he could probably touch his head to the beams
across the portal (Tr. 97).
o

Mr. Coleman stated that no men were employed at the mine
from September 8 to 21, 1989, and he confirmed that when Inspector Charles closed the mine on September 21, no one was there and
the npaperwork 11 was left at the off ice and he found it 2 days
later (Tr. 97). Mr. Coleman confirmed that 11 several times 11 he
has hooked a chain to a 1410 loader and pulled a piece of equipment around with the loader, and in his opinion, this can be
done. He indicated that the loader has a ground clearance of
7 inches "between the tracks, 11 and that this was approximately
the same clearance as a scoop (Tr. 98).

55

In response to further questions, Mr. Coleman stated that
to September 21, the equipment which was underground
consisted of two small scoops, a flat bottom feeder, a 11-RU
cutter and a 16 cutter. He believed that they were trying to
remove the flat bottom feeder by pushing it on one end with a
scoop and pulling on one end with a loader, and he confirmed that
it was removed from underground (Tr. 99). He again denied that
the dozer was used underground to remove any of the equipment,
and he confirmed that he did not go underground with any of the
inspectors in September 26 (Tr. 101).

pr~or

When asked about the respondent's relationship with Inspector Charles, Mr. Coleman stated that "he kept the men tore up.
Kept all the men in an upset mood. With his arrogant way of
going about his job. Instead of doing the job, he would always
have to criticize them and made them feel bad" during his prior
mine inspections (Tr. 101). Mr. Coleman confirmed that he did
not get along with Mr. Charles, and that he was the only inspector that he ever had a problem with (Tr. 102).
Findings and Conclusions
Fact of Violation
The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 75.507, which provides as follows:
1
iExcept where permissible power connection units are used, all
power-connection points outby the last open crosscut shall be in
11
intake a
In its answer filed on July 23, 1990, the respondent denied
that the cited bulldozer was used underground. The respondent
asserted that it was closing the mine because the company was
insolvent and that it used a Joy loader to bring the underground
equipment to the mine surface. The respondent further asserted
·that Inspector Charles never observed any nonpermissible equipment underground, and that his opinion that the nonpermissible
bulldozer was used underground was not fair.
Rodney Coleman
testif
that "we all" drafted the answer and that Branson
Coleman signed it in
capacity as president of the company
(Tr,,

103) e

Inspector Charles 1 credible and unrebutted testimony establishes that the cited diesel powered bulldozer was a nonpermissible p
of equipment, and that
electrical components
constituted nonpermissible power connection points. His credible
and unrebutted testimony further establishes that the use of this
equipment in an underground return a
course is prohibited by
section 75.507.

56

Neither Inspector Charles or Inspector Ramey actually ever
observed the cited bulldozer operating underground.
Inspector
Charles' belief that the dozer was used underground to help
remove some mine equipment was based on his personal observations
of certain equipment tracks which he observed in the soft and
muddy roadway underground.
He went underground for a distance of
25 feet on September 21, 1989, and 800 feet on September 26,
1989. On each occasion, he observed the tracks, and confirmed
that they extended some 300 feet inby the portal entry on
September 26.
Inspector Ramey, who went to the mine with Inspector Charles on September 27, 1989, confirmed that he went underground that day for a distance of approximately 180 feet, and
also observed the tracks in the soft mine roadway.
Inspector Charles' conclusion that the tracks which he
observed were made by the dozer was based on certain measurements
which he made of the tracks in the roadway and the dozer which he
found parked outside of the portal entry.
He made these measurements on two separate occasions on September 21, and 26, and in
each instance he found that his measurements of the tracks, when
compared to his measurements of the dozer cat-pads, were an
"exact match." Inspector Ramey.also measured the tracks which he
observed in the roadway while he was underground on September 27,
1989, and he testified that they conformed with the measurements
which he made of the dozer cat pads that same day.
He testified
that he observed approximately 10 to 15 "good marks" in the
roadway, and based on these measurements and observations, he too
concluded that the dozer was used underground.
In addition to his measurements and comparisons of the
tracks with the configuration and measurements of the dozer
cat-pads, Mr. Charles measured the height of the dozer and the
portal entry and concluded that the mining heights at the entry,
as well as inby, were sufficient to allow the dozer to operate
undergroundo
This conclusion was further supported by his
observation that the dozer exhaust stack and rollover protection
had been removed from the dozer in order to allow the dozer to be
taken through the portal entry and be operated underground with
sufficient roof clearance.
Inspector Ramey believed that the
rollover protection was not on the dozer when he observed it, and
although the exhaust stack had been replaced when he observed it,
he stated that Inspector Charles easily removed it with his hand
and then replaced it.
The respondent denied that the cited dozer was taken and
used underground to help remove its underground equipment, and it
asserted that the tracks observed by the inspectors were made a
Joy 1410 loader.
Inspector Charles and Ramey testified that they
observed no loader at the mine during their September inspections, and they both confirmed that they were familiar with the
type of loader in question, had previously observed it, and they
described it as a common piece of equipment used in mining.
They

57

were also familiar with the loader cat-pads and testified
unequivocally that the tracks which they observed and measured
were not made a loader. They also were in agreement that given
the poor roadway conditions and the operational parameters of a
loader, it was not likely that a loader was used to help remove
the equipment from the underground mine.
During closing arguments on the record, Mr. Arnold Coleman
stated that during the period in question when the dozer was
cited, approximately $10,000 worth of tools and supplies were
stolen from the mine. Mr. Coleman denied that the cited dozer
was used by the respondent underground and he indicated that
"anything was possible," and suggested that someone else could
have gone to the mine and taken the dozer underground (Tr. 112).
When reminded of the inspector 1 s testimony that he had not
previously observed any dozer at the mine prior to his
September 21, inspection, and believed that it was a leased piece
of equipment, Mr. Coleman responded "I say it's roughly that time
when they went in and stole all that stuff" (Tr. 112).
I take note of the fact,that when Inspector Charles went to
the mine on Septemb~r-21, 1989, he found a security guard there
and the mine entrance had been secured. Mr. Coleman indicated
that supplies and tools had been stolen from the mine, but he did
not indicate that any underground equipment had been stolen.
Under these circumstances, I find it highly unlikely that any
thieves would have taken a dozer to a secured mine and used it
underground in an attempt to steal equipment.
The respondent suggested that the dozer remained outside of
the portal entry while a length of cable was attached to the
dozer winch and was used to remove the equipment which was
underground.
Inspector Ramey confirmed that he observed 30 to
40 feet of rusty cable on the dozer winch outside of the mine
Tro 84)"
Inspector Charles confirmed that on September 26, the
respondent mentioned something about winching the equipment out
of the mine with a cable, but that when he observed the cable on
September 27, he estimated that it was 60 to 80 feet long.
Since
the roadway where the equipment was located was approximately
400 feet underground, and the respondent was experiencing some
fficulty in moving the equipment through the roadway, Inspector
Charles believed 91 there was no way that the rope would be long
enough to reach' 0 the equipment (Tr. 31).
Rodney Coleman testified that the equipment which the
respondent was attempting to remove from the mine was located in
"a real rough areaH 500 feet inside the mine in an uphill area
which was "real muddy 16 (Tr. 99).
Although he alluded to a
5/8 inch steel cable hooked to the dozer winch, Mr. Coleman
denied that the dozer was used underground to do this (Tr. 96).
However, I find no testimony from Mr. Coleman that the equipment
was removed by using the cable.
Indeed, Mr. Coleman testified

58

that he was attempting to remove a flat bottom feeder by pushing
one end with a scoop and pulling on one end with a loader (Tr.
99) •
Mr. Coleman's testimony concerning the roadway conditions
where the equipment which was being removed was located corroborates Inspector Charles• testimony that the worst roadway conditions were 400 to 600 feet inside the mine where the roadway
could not be maintained and where "you couldn't hardly get a
piece of equipment in and out of the mine" (Tr. 39). In view of
these conditions, Mr. Charles believed that the dozer was probably being used to move the equipment through this area (Tr. 40).
Rodney Coleman further testified that he had used a Joy 1410
loader on prior occasions to pull a piece of equipment around,
and in his opinion, the loader could be used for such a purpose.
Inspector Charles confirmed that during his mining experience he
has observed mine operators use a Joy 1410 loader to pull shuttle
cars around under good tramming conditions (Tr. 46). However,
the fact that such a loader may have been used on prior occasions
to pull equipment around, and is capable of doing such a job,
does not per se estabJish that it was used underground for that
purpose, or that the tracks observed by the inspector were loader
tracks rather than dozer tracks. Given the roadway conditions
testified to credibly by Inspector Charles, conditions which were
not rebutted by the respondent, I find the inspector's belief
that it was not likely that a loader would be used in the muddy
soft bottom roadway in an attempt to remove the equipment to be
credible.
Although the respondent maintained that the loader was used
underground, there is no evidence that at any time during the
inspections of the mine on September 26, or 27, 1989, did the
respondent offer to show the loader to the inspectors, and
Inspector Charles 9 credible testimony that he saw no loader and
could not determine its whereabouts when he was at the mine
during his inspections remains unrebutted. The absence of the
loader, and the respondent's failure to bring it to the attention
of the inspectors, or to account for it, particularly when it was
claiming that it was used, raises a strong inference that the
loader was not at the mine during the inspections.
After careful review of all of the testimony and evidence in
this case, and having viewed the inspectors in the course of the
hearing, I find them to be credible witnesses. Notwithstanding
the fact that the inspectors never observed the dozer operating
underground, I conclude and find that the evidence they developed
during their inspections to support their conclusions that the
dozer was used underground to help remove some of the equipment,
albeit circumstantial, supports their conclusions in this regard.
I further conclude and find that the respondent has presented no
credible or probative evidence to support its assertion that the

59

equipment tracks were made by a loader, rather than the cited
dozer, and that it has not rebutted the conclusions made by the
inspectors to the contrary.
Although there is no direct evidence as to who may have used
the dozer underground, the fact remains that the respondent was
the operator of the mine and that it was under its control.
Further, the respondent admits that it had decided to cease
mining operations and was at the mine conducting work to recover
its equipment which was underground. Under the circumstances, I
believe one can reasonably conclude that the dozer was taken
underground by the respondent and used to recover some of the
equipment. As the responsible mine operator, the respondent is
accountable and liable for any violations which may occur at the
mine.
On the basis of the foregoing findings and conclusions, I
conclude and find that the petitioner has established a violation
of the standard by a preponderance of the credible and probative
evidence adduced in this case, and the contested citation issued
by the inspector IS AFFIRMED~

·-

Significant and Substantial Violations
A "significant and substantial" violation is described in
section 104{d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Coo, 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984)v the
Commission explained its interpretation of the term "significant
and substantial 01 as follows:
In order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum the Secretary of Labor must
prove~
(1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is,
a measure of danger to safety-contributed to by the
violation< (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
1129,

In United states Steel Mining Company, Inc., 7 FMSHRC 1125,
(August 1985) , the Commission stated further as follows:,

60

We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984) . We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
Although the evidence establishes that the mine was not
actively producing coal when the inspectors conducted their
inspections, the power was on and inspector Charles confirmed
that methane liberations were possible at any time in an underground mine (Tr. 39, 67}. Although Inspector Ramey confirmed
that he did not detect any methane with his methane spotter
during prior mine inspections, he believed that methane was
present in certain bottle air samples which he had taken at the
mine (Tr. 82). Furth~r, in its answer filed in this proceeding,
the respondent conceded that the operation of a nonpermissible
bulldozer in its underground mine would be hazardous.
Inspector Charles' credible and unrebutted testimony establishes that the nonpermissible dozer and its electrical components were potential ignition sources, and that the operation of
the dozer underground where there was a possible build up of
dangerous pockets of gas presented an ignition hazard which
exposed anyone underground to burns or fatal injury. He indicated that the mine was idle for certain periods of time, and
anyone going underground to attempt to remove the equipment would
be exposed to pockets of gas which could have been present (Tr.
31~32)
The inspector also confirmed that the nonpermissible
diesel powered dozer was not equipped with a scrubber to keep the
diesel ignitions clean (Tro 69)"
o

The respondent presented no evidence to rebut the inspector's credible testimony with respect to the hazards associated
with the operation of a nonpermissible dozer in the underground
mine" Under the circumstances, I conclude and find that the
evidence presented by the petitioner supports the inspector's
significant and substantial (S&S) finding, and IT IS AFFIRMED.
History of Prior Violations
Exhibit P-1 is an MSHA computer print-out reflecting the
respondent's history of prior violations for the period
September 21, 1987, through September 20, 1989. The information
presented establishes that the respondent was served with 186
assessed violations, 145 of which were designated as 11 significant

61

and substantial" (S&S) violations. Six violations received
"special assessments" totalling $2,750, and 30 violations were
designated as "single penalty assessments." Twenty-five citations attributable to the No. 10 Mine reflect that they were
issued in conjunction with section 104(b) withdrawal orders for
noncompliance or failure to take timely action to abate the cited
conditions.
The computer print-out further reflects proposed civil
penalty assessments totalling $18,591, for all of the aforementioned violations, and that the respondent has paid only
$1,025.46, of this amount. MSHA has apparently served the
respondent with "delinquency letters" for the assessments which
remain unpaid. Petitioner's counsel had no additional information with respect to the status of these unpaid assessments or
whether or not they have been ref erred to the Department of
Justice for collection action.
I conclude and find that for an operation of its size, the
respondent has an extremely poor compliance record, and I have
taken this into consideration in assessing the civil penalty for
the violation which has been·· affirmed.
Size of Business and Effect of civil Penalty Assessment on the
Respondent's Ability to Continue in Business
The information contained in MSHA's pleadings, Proposed
Assessment Form 1000-179, reflects that the respondent's overall
coal production in 1989 was 85,110 tons, and that the No. 10 Mine
had an annual coal production of 24,290. Mr. Arnold (Ike)
Coleman agreed that the No. 10 Mine had an annual coal production
of approximately 24,000 tons when it was producing in 1989, and
that it employed 10 miners. In the absence of any evidence to
the contrary, I conclude and find that the respondent is a small
mine operator and I have taken this into consideration in assessing the civil penalty for the violation which has been affirmed.
Mr. Arnold (Ike) Coleman, stated that he is the
secretary-treasurer of Ike coal Company, and that his father,
Branson Coleman, served as the company president. Although
Branson Coleman was present in the court room, he was not called
to testify in this proceeding. Arnold Coleman confirmed that his
family is no longer mining coal and that the company is out of
business. He stated that he was unable "to work the mine"
because of the "attitude" of the MSHA inspectors. He maintained
that most of the citations reflected in MSHA's computer print-out
w; ere issued at the No. 10 Mine by Inspector Charles and contributed to his decision to close the mine (Tr. 104).
1

Mr. Coleman confirmed that the respondent also operated the
c-22 and C-23 mines, and he asserted that the prior violations
issued at those mines resulted from conditions which had existed

62

when they were operated by the previous owner. However, he
conceded that the violations were issued to his company, that his
company owned the equipment and was responsible for maintaining
the permissibility of that equipment (Tr. 105-106).
The respondent's history of prior violations, as corroborated by copies of the citations and orders produced by the
petitioner, reflect that violations were issued at several mining
locations operated by the respondent under MSHA mine identif ication numbers associated with mines operated by the respondent and
which are identified as the No. 3 1 No. 7, B.C. Energy c-22, and
B.C. Energy C-23. Citation No. 3360514, issued on January 5,
1989, at the No. 3 Mine (Exhibit P-52), reflects that the mine
"has been abandoned for more than 90 days." No information was
forthcoming with respect to the current status of the other
mines, but it would appear that as of the dates the violations
were issuedr the mines were actively producing coal.
Twenty (20) of the prior citations and orders issued at the
No. 10 Mine were issued by three different inspectors, and 15
were issued by Inspector Charles,. four of which were non-S&S
violations. The citations were issued to the respondent under
its mine identification number, and with the exception of one
citation served on an individual identified as Bill Wetsel, the
remaining citations and orders were served on Arnold "Ike"
Coleman and Rodney Coleman, and another individual (Ralph
Coleman) 1 who I assume is a member of the coleman family that
operated the mine. Under the circumstances, and contrary to
Arnold Coleman's assertions, I cannot conclude that these violations involved preexisting conditions resulting from the operations of the mine by an operator other than the respondent. The
violations include electrical and permissibility violations, roof
control and ventilation violations, conveyor belts and fire
warning devices sump pumpsf underground cables, a roof-bolting
machine? and a loading machineo Under the circumstances, and in
~he absence of any probative evidence to the contrary, I conclude
and find that all of this equipment belonged to the respondent
and was used by the respondent while it was operating the mine,
and that the conditions cited were within its control and
resulted from its operation of the mine"
I find no credible evidence in this case to support any
conclusion that any of the inspectors who issued the aforementioned citations at the Noa 10 Mine, including Inspector Charles,
harassed the respondent 1 and the cited conditions and practices,
on their face, reflect conditions which prompted the inspectors
to issue the citations and orders in question. Accordingly, the
respondent's suggestion that he was forced to close the mine
because of the nattitude 11 of the inspectors is rejected. To the
contrary 1 I can only conclude that any effect the citations and
orders had on the respondent's decision to close the mine and

63

cease mining coa~ came about as a result of its failure to stay
in compliance with the required mandatory safety standards.
No probative information or documentation was forthcoming
from the respondent with respect to its current financial condition, and the respondent has produced no tax, financial, or networth statements conclusively establishing that it is insolvent
or has filed for bankruptcy. Although the petitioner's counsel
alluded to a $200,000 debt owed to the respondent for contract
work which it performed for an unknown company or individual,
Arnold Coleman indicated that he has not collected this debt and
has sued the individual for the money, but that this individual
has declared bankruptcy (Tr. 109).
No information was forthcoming with respect to the status of
the mining equipment which was removed from the No. 10 Mine, as
well as the equipment used by the respondent at its other mining
operations, and I have no basis for determining whether or not
this equipment is owned or mortgaged, or whether it is still in
the possession of the respondent as part of its corporate assets.
Under all of these circumstances, and in the absence of any
evidence to the contr~ry, I cannot conclude that the respondent
has established that it cannot pay the civil penalty assessment
which I have made for the violation which has been affirmed in
this case.
Negligence
In his inspection report filed in connection with the order
and citation which he issued, Inspector Charles took the position
that by using the cited nonpermissible dozer underground, the
respondent exhibited a "reckless disregard" for safety. He made
the same finding of "reckless disregard" on the face of the
citation which he issued. In support of this negligence finding,
the petitioner argued that assuming that the fact of violation is
established, it would be obvious that the respondent knew about
this violationp and it pointed out that in its answer filed in
this case, the respondent conceded that using a nonpermissible
dozer underground would be hazardous (Tr. 111). I agree with the
inspector's negligence finding of "reckless disregard," and IT IS
AFFIRMED"
Gravity
In view of my "significant and substantial" (S&S) findings,
I conclude and find that the violation was serious.
Indeed, in
its answer filed in this proceeding, the respondent conceded that
operating the nonpermissible bulldozer underground would be
hazardous.

64

Good Faith Compliance
The evidence in this case reflects that in conjunction with
the citation which he issued, the inspector also issued a section
107(a) imminent danger order "red-tagging" or closing down the
entire underground area of the mine.
Since there is no evidence
that the respondent timely contested the issuance of the order,
it is not in issue in this case.
I take note of the fact that in
issuing the citation, the inspector did not establish an abatement time and it seems obvious that the inspectors never observed
the dozer being operated underground.
On the facts here presented, although I conclude and find that the violation was
abated, it was effectively abated by the inspector when he closed
the underground mine area, and not by the respondent who denied
that the dozer was used underground. Under the circumstances, I
have no basis for finding that the respondent abated the violation in good faith.
Civil Penalty Assessment
On the basis of the foregoing findings and conclusions, and
taking into account.the civil penalty assessment criteria found
in section llO(i) of the Act, I conclude and find that a civil
penalty assessment of $950, is reasonable and appropriate for the
violation which has been affirmed.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment
of $950 for the section 104(a) "S&S" Citation No. 3368426,
September 21, 1989, 30 C.F.R. § 75.507.
Payment is to be made to
MSHA within thirty (30) days of this decision and order, and upon
receipt of payment, this matter is dismissed.

Distribution~

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Branson Coleman, Arnold D. Coleman, Ike Coal Company, Inc.,
103 Wolfpit Creek Road, Elkhorn City, KY 41522 (Certified Mail)
/fb

65

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

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

JAN 14 J99l
TEMPORARY REINSTATEMENT
PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
MICHAEL L. PRICE AND
JOE JOHN VACHA,

Docket Noo SE 87-87-D
No. 4 Mine

Complainants
and

UNITED MINE WORKERS OF
AMERICA (UMWA) ,
Intervenor
v.

JIM WALTER RESOURCES, INC.,
Respondent

DECISION DISMISSING TEMPORARY REINSTATEMENT PROCEEDING
Before:

Judge Broderick

Following a hearing on June 29, 1987, I issued an order
directing Respondent to immediately reinstate complainants Price
and Vacha to the positions from which they were discharged on
March 2v 1987. The order of temporary reinstatement was affirmed
by the Commission on August 3, 19870 9 FMSHRC 1305 ·(1987)0
The
Comrnissionus decision was affirmed by the Court of Appeals for
the 11th Circuito Jim Walter Resources, Inc. v. FMSHRC, No. 877484, (11th Cir., December 21, 1990).
In the meantime, I issued
a decision following a hearing on the merits
Docket Noo SE 87128-D 7 ordering JWR, inter aliac to permanently reinstate Price
and Vacha.
10 FMSHRC 896 (1988).
The Commission reversed in
part and remanded the case to me in August 19900
12 FMSHRC 1521
(1990)"
On December 20, 1990, I issued a decision on remand
again' ordering JWR to permanently reinstate Price and Vacha.
12
FMSHRC
(1990).
Under the above circumstances the Temporary Reinstatement
Proceeding is moot. Accordingly, the above docket is DISMISSED.

I
J

I

" -

....

¢

/;{, v 1'CL ·S.

,

1

d

.

/;f"f~'AJ I· -f\/ .....,, , l. '-o /t._
/

.

I

,

,4,''

~ James A. Broderick
'

Administrative Law Judge

66

Distribution:
Colleen A. Geraghty, Esq., U.S. Department of Labor, Office of
the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Robert K. Spotswood, Esq., John W. Hargrove, Esq., Bradley,
Arant, Rose & White, 1400 Park Place Tower, Birmingham, AL 35203
(Certified Mail)
Patrick K. Nakamura, Esq., Longshore, Nakamura & Quinn, 2101 City
Federal Bldg., Birmingham, AL 35203 (Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th
Street, N.W., Washington, D.C. 20005 (Certified Mail)
slk

67

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

JAN 14 1991
DRUMMOND COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. SE 91-10-R
Citation No. 3020151;
10/4/90

Vo

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

Docket No. SE 91-11-R
Citation No. 3020153;
10/4/90
DECISION

Appearances:

Before:

David M. Smith, Esq., Maynard, Cooper, Frierson
and Gale, Birmingham, Alabama, for the Contestant;
William Lawson, Esq., U. s. Department of Labor,
Office of the Solicitor, Birmingham, Alabama, for
the Respondent.

Judge Weisberger

Statement of the Case:
These cases are before me based upon Notices of Contest
iled by the Operator (Contestant) on October 26, 19900 On the
same date Contestant filed a Motion to Expedite a Hearing on the
issues raised by the Notice
Contest" In a conference call on
October 29, 1990, between the undersigned and counsel for both
Parties, it was agreed that a hearing be scheduled for November
14 and 15, 1990, and a hearing was subsequently held on those
dates
Hoover, Alabama" Walter Deason and Sidney Hill
testified for the Secretary (Respondent)o George Cappsp John Mo
Busbyv Bi
Jo Johnson; and Larry Lee, testified for the
Contestanto
At the close of the hearing, Contestant indicated that it
sought an opportunity to submit Proposed Findings of Fact and a
Brief, and the Parties were allowed to file same within 15 days
after receipt of the tr~nscript of the proceedings. The Parties
were further granted a right to file a reply brief 5 days
thereafter" Respondent filed a Brief on December 17, 1990, and
Contestant filed Proposed Findings of Fact and Conclusions of Law
on December 20, 1990. Contestant and Respondent filed Reply
Briefs on December 27 and 26, respectively.

68

Docket No. SE 90-10-R
Findings of Fact and Discussion
I.

On October 4, 1990, whi"le inspecting Contestant's Mary Lee
No. 2 Mine, MSHA Inspector Walter W. Deason, issued a Citation
alleging a violation of 30 C.F.R. § 75.400 in the area of the
4315 conveyor belt drive. Section 75.400, supra, provides, as
pertinent, that, inter alia, coal dust, including float coal dust
deposited on rock-dusted surfaces, and loose coal shall not be
permitted to accumulate.
The 4315 section conveyor belt transports coal from the face
outby to the 430 belt line. In essence, Deason indicated that he
measured an accumulation of float coal dust, up to 19 inches
deep, beneath the take-up rollers and extending outby. The
accumulation also extended across the 36 inch wide belt. Deason
described the.material as powdery dry, like gun powder, and real
fine. After he issued the Citation in question, he had some
miners shovel under ~he rollers to clean the accumulation. He
indicated that the material that was shoveled was powdery dry.
According to Deason, he measured the material around the
tight side of the belt with a ruler, and it was 16 inches deep.
He described the material as black. He indicated that he stuck
his stick in it, and opined that it was dust all the way through.
However, according to Deason, he doubted he could have put his
hand in the material, as it was compacted. On cross-examination
he conceded that coal dust becomes compacted when it is wet.
Sidney Hill, Jr., an international representative employed
by the United Mine Workers of America, who performs safety

inspections 9 testified that he traveled with Deason on October 4r
and that
the belt header there 11 o
was indeed perhaps one
of the worst cases of accumulation that I had observed."
(Tr. 209). He described an accumulation of coal along the main
rollers beneath the belt, which he estimated to be a foot and a
half deep. He indicated that the material was loose and 11
dry in some caseso" (Tro 209). Hill testified that subsequent
to the discovery by Deason of the accumulation, it was removed
with a shovel. Hill said he then got down on his hands and knees
and examined the coal 11 and I would say for the most part it was
dry coal."
(Tr. 211).
0

o

0

• •

I find that the testimony of Contestant's witnesses do not
rebut the testimony of Respondent's witnesses which I find

69

establishes an accumulation of coal in the area in question.
George Capps, a miner employed by Contestant who served as the
Chairman of the Union's Mine Safety Committee on the dates in
question, testified that he measured with a ruler the depth of
coal indicated on a walking stick that Deason had inserted in the
coal, and it showed a depth of only 9 inches. In the same
connection, John M. Busby, Contestant's evening shift safety
inspector, testified that the material, in essence, was at most
10 inches deep, and that on the tight side it tapered down from
that level. I find the detailed testimony of Capps with regard
to the procedure that he used in measuring the depth of the coal
to be persuasive. I conclude, however, that the coal in the area
in question to a depth of 9 inches, as testified to by Capps, is
nonetheless indicative of an accumulation within the purview of
Section 75.400, supra.
Capps indicated that with regard to the accumulation in the
area where Deason measured the depth of the coal at the top of
the take-up, "it was just mush, mushy stuff." (Tr. 230). He
said that the material had some rocks in it, and that when he
shoveled under the belt after,:the condition had been observed by
Deason, the material,was not dry. Busby indicated that, in the
area where the power center is close to the belt line, he was a
foot to a foot and a half from the material, and it contained
rock dust coal and muck. He described it as hardened and ashen
gray in color. However, he indicated that, on the tight side of
the belt, the accumulation that was opposite the power center and
between the two rollers contained some dry material. He also
indicated that he saw float coal dust around the conveyor drive.
He also agreed that under the take-up roller, where a roller was
missing, the material "in general" was dry {Tr. 374-375). He
described the accumulation that the belt was touching, as a
mixture of lump coal, fine lump coal, and ashen particles, and
that there was a "smattering" of black on top. (Tr. 337).
The testimony of Deason is confusing with regard to whether
he termed the material in question coal dust or float coal dust.
However, I conclude that Contestant's witnesses have not rebutted
the testimony of Deason and Hill that the material in question,
to a depth of at least 10 inches, contained coal that to some
degree was not solid and was loose. Although Busby described the
material as damp and wet, he indicated that it was not "running
wet" (Tr. 388). Capps indicated that the material that he
shoveled under the belt was not dry, and that at the at the top
of the take-up it was wet and mushy.
I find the testimony of Busby and Capps inadequate to rebut
either the testimony of Hill who indicated that he was on his
hands and knees when he observed that the coal was dry for the
most part, or the testimony of Deason that at least in some areas
the coal was fine and powdery dry. Further, although ---Contestant's witnesses disagreed with Deason with regard to the

70

texture of the material in question, they, in essence, agreed
with him that the belt was running in the material. Taking this
fact into account, and considering the depth of the material
being at least 10 inches, and the extent of the material,
consisting of loose coal, which was found across the 36 inch belt
and under the take-up rollers and extending outby thereby, I
conclude that there was an accumulation of loose coal. As such I
find that Contestant herein did violate Section 75.400, supra, as
alleged.
II.

In the Citation at issue, Deason indicated that the
violation was significant and substantial. None of Respondent's
witnesses contradicted the testimony of Deason that a roller was
missing from the take-up unit, and as a consequence the conveyor
belt was rubbing against metal creating friction, which is a
source for ignition. According to Deason, the belt, under the
bottom of the rollers, was running in an accumulation of coal
that was "powdery dry" (Tr. 29). He noted that the belt was
"flipping it up in the air" J.Tr. 29). Hill indicated that he was
on his hands and kn~es and " . . . for the most part it was dry
coal" (Tr. 211). On the other hand, Capps, while agreeing that
the belt was turning in an accumulation of coal, testified that
he shoveled under the belt and "it wasn't dry" (Tr. 264). Busby,
who also shoveled the coal, indicated that the material that the
belt was touching was "caked" (Tr. 376), and that "It was a
mixture of lump coal, fine lump coal ashen particles. There was
some rock dust in it and there was a smattering of black on top"
(Tr. 337). However, on cross examination he agreed that "in
general," the mixture was dry in consistency (Tr. 375). Also,
although he testified that the material was damp to dry and was
not "dusty dry" (Tr. 386)? on cross examination, he indicated
the material directly underneath the missing roller "was
dryn (Trc 385)" Also, although. he indicated that he did
not see 11 a great deal of dust 11 being "stirred" by the belt, he
nonetheless indicated that "there was float coal dust on the
surface" (Tr. 348).
Thusp taking into account the presence of significant
amounts of coal accumulation, the running of a conveyor belt in
coalp the existence of dry coal particles, and the presence of
friction, an ignition source, I conclude that 2 given the
continuation of the violative condition herein, a hazard of a
fire would have been reasonably likely to have occurred.
Further, inasmuch as the flow of air went from the area in
question inby, smoke from a f
in this area would be carried
inby. It was the conclusion of Deason, which has not been
rebutted by testimony from any of Contestant's witnesses, that
serious injuries to miners would have resulted due to smoke
inhalation or other hazardous conditions occasioned by a fire.
Hence, I conclude that there was a reasonable likelihood of an

71

injury of a reasonably serious nature.
I thus conclude that it
has been established that the violation herein was significant
and substantial (See, Mathies Coal Company, 6 FMSHRC 1 {January
1984)).
III.
Deason indicated that the violation herein was as a result
of Contestant's unwarrantable failure. It thus is incumbent upon
Respondent to establish that the accumulation herein resulted
from Contestant's aggravated conduct (Emery Mining Corporation,
9 FMSHRC 1997 (1987)). For the reasons that follow, I conclude
Respondent has not met this burden.
a. History of Accumulations at Conveyor Belts
At 1:03 a.m., on October 2, 1990, two days before Deason
issued the Citation in question, he cited Contestant for an
accumulation of coal beneath and around the take-up unit at the
slope belt. According to Deason, he found that shift inspectors
were not placing their initia~s in places they inspected. Deason
testified that he then told Carl Ware, the foreman of the owl
shift, to tell the fire bosses that they needed to make
inspections and to place their initials on inspection reports.
The following day at 4:16 p.m., Deason served Contestant with a
Citation alleging an accumulation of coal under the belt line
drive and the take-up unit of the 40 North No. 1 Conveyor Belt.
On October 4, at 4:48 p.m., Deason served Contestant with a
Citation alleging an accumulation of coal beneath the belt drive
and a take-up unit of the 40 North No. 3 Conveyor Belt. Ten
minutes later, Deason cited Contestant for an accumulation of
coal from the end drive rollers to the discharge rollers at the
4050 section conveyor drive.
According to Deason, the accumulation at the slope belt was
13 inches deep as measured by him; and extended from rib to ribo
He indicated that the accumulation 20 to 30 feet away from the
take-up unit had been there for an extended period of time as it
was impossible for coal to spill that far back off the belt.
This testimony was not contradicted or otherwise impeached by
Contestanto
According to Deasonr the accumulation at the 40 North No. 1
Belt extended 50 to 60 feet and was 35 inches deep at the deepest
point. Deason indicated that this condition was readily visible.
He indicated that the material consisted of small particles of
coalff and hence was not considered to be a spillage which is
lumpy and is usually on the side of a belt. In contrast, the
accumulation at the 40 North No. 1 belt was at the bottom of the
belt. According to Deason it takes time for material to
accumulate on the bottom. Hence, according to Deason, this
accumulation did not occur overnight. Deason discussed this

72

condition with Busby as follows: "I just -- basically I just
told him, you know, we had to clean the accumulations up and got
with him on the, you know, discussing the amount of time that it
would take to clean the accumulations up, you know, and establish
an abatement time" (Tr. 61). (sic).
In essence, Deason testified that the accumulation at the 40
North No. 2 Belt was up to 12 inches deep and the belt was
rubbing against the accumulations for a distance of approximately
30 feet. This testimony was not impeached or contradicted by
Contestant.
Essentially it was the testimony of Deason that the
accumulations at the 4050 section conveyor drive extended 20 to
30 feet outby the belt and between the tracks. He indicated that
the accumulations were up to 13 inches deep and consisted of
small particles and that the material was not lumpy. He opined
that a driver of a vehicle in the area would be able to see the
accumulations.
After noting the accumulations in the 4050 section conveyor
drive, Deason went to the area in question (4315 section conveyor
belt) and in thl neutral entry saw coal dust extending a distance
of 7 crosscuts. I He described the material therein as float
coal dust and black, which led him to conclude that it presented
a serious hazard. He then went to look for the source of the
dust he had observed in the neutral entry, and went to the 4315
header where he observed dust being flipped in the air.
In general, Hill testified that on October 3 while
inspecting the mine with Billy Ray Powell, a member of the Local
Union's safety committee, he asked Powell the reason why the
amount of coal had accumulated, and the latter told him that
ii
"
in the past they had some problems on the belt line and
the conditions were ones that were being worked upon, . . . 11
(Tro 207)0 However, Hill did not describe the nature of these
problems, nor did he indicate that they were prevalent in the
area in question.
o

o

b. The Length of Time the Coal Was Allowed to Accumulate
With regard to the accumulations in the areas in issue,
Deason indicated that because the consistency of the material
therein was powdery and real fine it had to have been ground. He
thus concluded that the accumulations could not have-occurred in
the time that elapsed from the end of the previous day shift.
Hill opined that inasmuch as there was no indication of any
blockage on the belt which would have caused a rapid accumulation
1;

Each crosscut is 70 feet in length.

73

(spillage), the accumulations herein occurred over a period of
time. Neither Deason's nor Hill's testimony was impeached or
rebutted by Contestant.
c. Visibility of the Accumulations
Deason, testified to having observed powdery dry
accumulations at the 4315 header which were 19 inches deep.
However, he did not indicate with any degree of specificity as to
where he was when he observed this condition, and as to whether
this condition was readily observable from the walkway side.
Hill indicated in this connection that he walked with Deason from
the tail roller to the take-up unit, and that "along the belt
roller, the main roller, there was accumulations of coal beneath
the belt and extended in varying degrees all the way back to the
belt take-up unit. The coal was very deep." [sic] (Tr. 209).
He indicated that these conditions were readily visible to him
and"· • . they would be visible to a person walking by them, I
would think" (Tr. 214).
According to Capps, when he made his own inspection of the
area in question inunediately'prior to the arrival of Deason, the
area "looked good" CTr. 251), and there were no hazards. He
indicated, essentially, that he was not able to see the belt
running in accumulations or rubbing against the frame w2ere the
roller was missing, as the guards had not been removed. I He
also indicated that the belt line was clean and that,
specifically, the area under the rollers was clean. However, he
indicated that the take-up area was not clean, and that he would
have seen that area if he would have looked through the screens.
Busby indicated that the area of the header is difficult to
see because of the mesh screens, but conceded that the area in
·which the rollers are located is susceptible to spillage, and
hence demands a closer inspection than other areas of the belt"
Indeed he indicated that he kneeled down along the walkway or
travel side of the belt, looked over the guards to the belt line,
and saw an area of hardened material which extended under the
belt to a depth of about 10 inches. He noted that he was standing
one to one and a half feet away when he made this observation.
d. Analysis
I conclude that the weight of evidence establishes that
Contestant did not use due diligence in inspecting for
accumulations in the area in question. The weight of the

2I

On the date in issue 7 mesh guards measuring approximately
4 by 8 feet were in place.

74

evidence specifically establishes that the accumulations in
question would have been noticed upon a careful inspection. Due
to the extent and depth of the accumulations (see I, infra), I
conclude that it is highly likely that they existed at least
4 hours earlier when the preshift examination was made.
In its Brief, Respondent asserts that Contestant knew of the
violation herein and did not abate it until cited by Deason. The
record fails to establish such knowledge on the part of
Contestant of the specific accumulations at the specific
locations in issue, i.e., the 4315 section conveyor belt. (c.f.,
Southern Ohio Coal Company, 12 FMSHRC 1498 (1990)). The fact
that accumulations on four other belt lines were found and cited
by Deason, on October 2-4, 1990, does not per se establish either
knowledge or aggravated conduct with regard to the specific
accumulations herein at the 4315 belt header (see, Eastern
Associated Coal Corporation, 12 FMSHRC 239 (1990)). There is
insufficient evidence that Deason had any discussion with any of
Respondent's personnel prior to the issuance of the Citation in
issue, with regard to problems with accumulations at the belt
lines. The only evidence proffered by Respondent is the
testimony of Deason .with regard to his conversation with Busby
after he (Deason) found an accumulation at the 40 North No. 1
belt on the evening of October 3, 1990. (III, a, infra). A
plain reading of this testimony reveals that it does not
establish that Deason informed Busby of the need either to take
care of accumulations in general on belt lines, or to be aware of
such problems in the area in question. It would appear that
Deason's comments to Busby were related solely to abating the
accumulations at the 40 North No. 1 header. Similarly Deason's
conversation with Ware on October 2, in which he told Ware to
tell fire bosses of the " • . . need to be making these
examinations and need to putting dates and times and
11
initialso
(Tr 48)p was in the context of Deason's concern
with the failure by inspectors to enter their initials upon
making examinationso There is no evidence that Respondent was
informed by Deason of the need to make a thorough inspection of
the area in question. Thus, the fact that Deason found
accumulations after he spoke to Ware and Busby does not, per se,
establish aggravated conducto
o

o

Further, I reject the argument advanced by Respondent, that
Contestant made a conscious decision not to stop production of
coal to clean the accumulations, but rather to wait until the
idle owl shift to do so. This argument is based on the testimony
of Busby that, "normally," he.would have had the cited conditions
cleaned during the owl shift when the guards would be removed

75

allowing the area on the tight side to be cleaned (Tr. 377). 3 /
Since the record does not establish that Respondent had knowledge
o.f the accumulations herein, I do not place much weight on what
Busby would have done, had he in fact known of the accumulations.
I find this testimony too speculative. I place more weight on
evidence of what Contestant .actually did with regard to the
removal of the accumulations.
In this connection, neither Deason nor Hill saw anyone
shoveling coal from under the belt on October 4, prior to the
issuance of the Citation. Busby also indicated that no one was
shoveling when he walked into the 4315 area. On the other hand,
Capps, in essence, testified that a miner was shoveling out from
under the belt about 200 to 250 feet inby the headers. I find
Capps' testimony credible inasmuch as none of the other witnesses
who were present indicated specifically that they did not see a
miner cleaning from under the belt, 200 to 250 feet inby the
headers. Also, Busby testified that at the time of Deason's
inspection he was told by Don Clark, the evening shift mine
foreman, that the latter had previously assigned an employee to
shovel. In addition, Deason,_in essence, indicated that he saw
that some accumulations had been shoveled on the tight side in
the area of the header. In this connection, Busby testified that
the first 25 or 30 feet inby the area in question, from the
walkway across to the tight side, was clean and that "the residue
with shovel markings was wet" {Tr. 393). This testimony has not
been rebutted. I thus conclude that Respondent made some efforts
to clean up the accumulations.
Based on all the above, I conclude that the record is
insufficient to support a conclusion that the accumulations at
issue resulted from Respondent's aggravated conduct. Hence, the
violation herein is not the result of Respondent's unwarrantable
failure"
Docket Noo SE 90-11-R
On October 4, 1990, Deason issued Citation/Order No. 3020153
alleging a violation of 30 C.F.R. § 75.303 in that "adequate belt
examinations" were not conducted on the day and evening shifts
3; In this connection, Respondent in its Brief, also refers
to the testimony of Capps that , in essence, screens (guards) are
11
never 11 taken down while the belt is running, and that "usually"
this is done during the owl. shift when the belt is shut down
(Tr. 297). I do not place much weight on these conclusions, as the
record does not establish the basis for these conclusions. There
is no evidence that Capps had personal knowledge of these matters,
nor does the record indicate the source he relied on for his
conclusions.

76

"in that the record books indicate none observed" on th~
40 North, Nos. 1, 2 and 3, 430, and 4315 section belts. I
Section 75.303, supra, in essence, provides that within
3 hours inunediately preceding a shift, certified persons shall
examine every working section, and that "belt conveyors on which
coal is carried shall be examined after each coal-producing shift
has begun." Section 75.303, supra, further provides as follows:
such mine examiner shall place his initials and
the date and time at all places he examines. If such
mine examiner finds a condition which constitutes a
violation of a mandatory health or safety standard or
any condition which is hazardous to persons who may
enter or be in such area, he shall indicate such
hazardous place by posting a 11 danger 11 sign
conspicuously at all points which persons entering such
hazardous place would be required to pass, and shall
notify the operator of the mine.
In order for Respondent"toestablish a violation herein for
a failure to examine,- it must first be proven that there were
hazardous conditions that were not reported in an area required
to be examined, i.e., "active workings." That term is defined in
30 C.F.R., Section 75.2(g)(4) as 11 • • • any place in a coal mine
where miners are normally required to work or travel." In
essence, the testimony of Deason described accumulations of coal,
for which he cited Contestant, at the slope belt, 40 North No. l
belt, 40 North No. 3 belt, and 4050 Section drive.
(Docket No.
SE 91-10-R, III, (a) infra). Contestant has not rebutted or
impeached Deason's testimony in this regard. Deason indicated in
his testimony that the 40 North belt No. 1, and the area cited
concerning the 4050 belt, were areas that were regularly traveled, Deason also indicated that in the area of the slope belt
that contained an accumulation of coal 9 the take-up unit
rollers were not guarded,
violation of 30 C.F.R.
Section 75.1722(a , as the guards had rusted and were torn. He
noted that this was in an area that was traveled daily and where
miners worked daily. None of these conclusions were rebutted or

4 ; The Section 104(d) Order in issue is predicated upon the
underlying Section 104(d}(l) Citation, discussed in Docket No.
SE 91-10-R, infra, wherein I found that the violation therein was
not the result of Contestant's unwarrantable failure. Hence, the
Order should be amended to a Section 104(d} Citation.

77

impeached by Respondent. I thus conclude that it has been
established that there were violative conditions in areas
required to be examined.
Deason indicated that if one would walk by, one could not
help but see the condition of the guarding at the slope belt.
This opinion was not rebutted or impeached. In addition,
Deason's testimony that guards had been removed on the tight side
of the 4315 belt header, was corroborated by Capps and Busby.
Although there were accumulations and a guard missing in the
4315 header area, these facts were not reported in the Preshift
Mine Examiner's Report, for the period from September 25, 1990,
through the evening shift of October 4, 1990. The 2:00 p.m. to
2:30 p.m. examination of October 3, 1990, indicates "belt needs
cleaning," but did not specify the specific accumulations at the
header, nor did it note the missing guard. In the same fashion,
the Preshift Report for the period from 8:00 p.m. to 10:30 p.m.,
October 3, 1990, indicates "cleaned og belt," but does not
specify the area that is in question. I
Contestant did net offer the testimony of any of its
examiners to attempt to establish that the violative
accumulations at the 40 North No. l and 4050 belts were examined
and reported to the Operator. 6 I Nor did Respondent offer any
testimony to establish that the violative condition of missing
guards at the 4315 belt was examined and reported.
Similarly the Preshift Mine Examiner's Reports for the 4050
Section conveyor drive for the period from September 25, 1990,
through the night shift of October 4, 1990, do not report any
accumulations at the rollers. The remarks for the 6:00 a.m.,
examination of September 25-28, October 1-3, were not accorded
any probative value as they were not legible and could not be
understoodo

5I
Entries in the preshift examination section in the
Examiner's Reports for~ 10/l/90v 10/2/90 for the period 5:10 a.m.
to s~12 a.m., 10/3/90 for the period 5:10 a.m. to 5:12 a.m.r and
the remarks for October 4p 1990, for the time period 4:00 a.m. to
4:12 a.m., were not accorded any probative value as they were not
legible and could not be understood.
6 ; Busby indicated that, within the scope of his duties, he
normally examines the belt line, although there is a designated
belt examiner.
However, he did not make any examination on
October 3 or 4, and could not state when he last examined it prior
to the date the Citation herein was issued, i.e., October 4.

78

The Preshift Mine Examiner's Report for the period from
September 25, 1990, through the day shift of October 4, 1990, did
not indicate any of the accumulations at the slope, 40 North
No. 2 and 3 belts, as set forth above, infra.
Hence, it is concluded that inasmuch as Contestant did not
report the conditions ~et forth above, infra, it did violate
Section 75.303. supra. I
Deason had told Ware on October 2, to inform the fire bosses
of the need to make inspection and enter dates, times, and
initials. Subsequently, Deason observed hazardous conditions of
missing guards at the 4315 header, and accumulations of coal at
the 40 North No. 1 and 4050 belts, areas that were regularly
traveled. The record fails to establish that these areas
containing hazardous conditions were examined. No evidence was
presented to excuse Contestant's actions in this regard. In this
circumstances, I conclude, that the failure to examination was
the result of Contestant's unwarrantable failure (See, Emery,
supra).
ORDER
Docket No. SE 91-10-R.
It is ORDERED that, the Notice of Contest is sustained in
part in that Citation/Order No. 3020151 shall be AMENDED to
reflect the fact that the Citation therein was not the result of
Contestant's unwarrantable failure.

1; Thus 9 since a violation of Section 750303 1 supra, has been
established, it is not necessary to resolve the conflict in
testimony between Busby and Deason with regard to the distance of
the unguarded area at the 40 North Noo 3 belt, and as to whether or
not the area that was unguarded at the 40 North No. 2 belt was
regularly traveled or not.
Deason also cited missing guards at the 4050 belt. However;
there was not a mandated requirement to make a preshift examination
of the area of the 4050 belt where the guard was missing, as
Busby 1 s testimony that no one works around the tail piece, was not
contradicted by Deason who indicated that the area was not heavily
traveled.
Further, although Deason indicated that people go to
that area to clean the belt, Busby indicated that, in such an
event, the belt is turned off. Since this area did not have to be
inspected, it is not necessary to resolve the conflict between
Deason and Johnson with regard to whether the missing guard at the
4050 belt drive exposed a pinch point.

79

It is further ORDERED that, in all other respects the Notice
of Contest is DISMISSED.
Docket No. SE 91~11-R
It is ORDERED that the Notice of Contest is sustained in
part in that Citation/Order No. 3020153 shall be AMENDED to
reflect that it is to be reduced from Section 104(d) Order to a
Section 104(d)(l) Citation. It is further ORDERED that, in all
other respects, the Notice of Contest be DISMISSED •

. J(}~
~eisberger

Administrative Law Judge

Distribution:
Davis M. Smith, Esq., Maynard, Cooper, Frierson and Gale,
1901 6th Avenue North, 2400 AmSouth/Harbert Plaza, Birmingham, AL
35203-2602 (CertifiedMail)
William Lawson, Esq., Office of the Solicitor, u. s. Department
of Labor, 2015 2nd Avenue North, Suite 201, Birmingham, AL 35203
(Certified Mail)
dcp

80

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

JAN 14 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. YORK 90-11-M
A.C. No. 30-01212-05519
McConnellsville Plant

WHIBCO, INCORPORATED,
Respondent
DECISION
Appearances:

William G. Staton, Esq., Office of the Solicitor,
U.S. Department of Labor, New York, New York, for
the Petitioner~
Mr. David E. Hergert, Vice President, Production,
Whibco, Inc., Leesburg, New Jersey, 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 1 30 u.s.c. § 820(a) 1
seeking a civil penalty assessment in the amount of $300, for an
alleged violation of mandatory safety standard 30 C.F.R.
§ 56.1410l(a) (1).
The respondent filed a timely answer denying
the alleged violation, and a hearing was held in Syracuse,
New York. The parties waived the filing of posthearing briefs,
but I have considered their oral arguments made on the hearing
record in the course of my adjudication of this matter.
Issues
The issues presented in this proceeding are (1) whether the
respondent has violated the standard as alleged in the proposal
for assessment of civil penalty, (2) whether the violation was
"significant and substantial," and (3) the appropriate civil

81

penalty that should be assessed for the violation based upon the
civil penalty assessment 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. § 820(i).

3.

Commission Rules, 20 C.F.R.

§

2700.1 et seq.

Stipulations
The parties agreed that the respondent is subject to the Act
and that the presiding judge has jurisdiction to hear and decide
this matter. The respondent's representative stated that the
respondent has annual mining revenues of approximately 12 million
dollars, and that its McConnellsville plant generates revenues of
approximately $700,000 annually. He confirmed that the plant has
five employees and a plant manager, and the parties agreed that
the plant is a small mining operation, and that the respondent is
a small-to-medium size operator.
Discussion
Section 107(a) - 104(a) 11 S&S 11 Order-Citation No. 3045987,
issued on December 12, 1989, by MSHA Inspector Harold Adams,
cites a violation of mandatory safety standard 30 C.F.R.
§ 56.1410l(a) (1), and the cited condition or practice is stated
as follows:
Service brakes on Terex loader, Ser. # 53437, are in
very poor condition. Loader could not be stopped with
an empty bucket on a 2 percent grade (approx) by use of
service brakes.
Condition has existed for approx. 30 days. Suspected
cause as stated by supervisor is cold weather. When
loader was checked, air pressure gauge did not register. Loader was removed from service.
Petitioner 1 s Testimony and Evidence
MSHA Inspector Harold Adams confirmed that he inspected the
respondent 1 s plant on December 12, 1989, and issued the contested
citation after finding that the service brakes on the cited Terex
loader would not hold the loader when it was tested on an approximate grade of 2 percent. He stated that the loader had just
dumped a load of sand into the processing plant, and the loader
operator advised him that the brakes were "not very good. 11 The

82

loader normally operates on level ground, but it travels up a
ramp of approximately 2 percent grade to the plant where it dumps
its bucket load of sand. After dumping the load, the operator
applied the brakes at the top of the ramp, and the loader, with
an empty bucket, drifted backwards down the ramp to level ground,
and the brakes had no effect and would not hold the loader.
Mr. Adams described the route of travel taken by the loader,
and he confirmed that it made several trips a day with a loaded
bucket along the same route. He stated that service and vendor
trucks use the same roadway t~aveled by the loader, and that mine
personnel also walk along the roadway on occasion. He confirmed
that the loader operator informed him that the cited brake
condition had existed for about 30 days, and that Jeff Scott, the
plant manager, told him that the condition was caused by the cold
weather and that the loader air receiver had to be drained nitely
because of moisture accumulations in the air line caused by the
cold weather conditions. Mr. Adams confirmed that the brakes
would not stop the loader when it was tested, and he also issued
an imminent danger order taking the loader out of service.
Mr. Adams stated that he discussed the citation and order
with Mr. Scott when.he issued them, and that Mr. Scott informed
him that there was an air leak. Mr. Adams stated that his
supervisory inspector was with him when he cited the loader and
that his supervisor got into the cab of the loader and observed
that the air pressure gauge showed no air pressure. Mr. Adams
believed that the lack of pressure could have resulted from an
air leak or a defective pressure gauge, but that when he next
returned to the plant he was advised that an air leak had caused
the brake condition and that an air line or hose had to be
replaced. He then checked the brakes again with a full bucket of
sand on the ramp and found that the brakes would hold the loader
and that the air pressure gauge indicated 120 pounds of air
pressure in the systemo
Mr. Adams confirmed that he made a gravity finding of
nreasonable likely" and that he based this on the fact that the
loader routinely traveled along the roadway to and from the plant
with a full and empty bucket and that its route of travel took it
by the plant office and employee parking lot.
In view of the
presence of other vehicular traffic on the roadway, and occasional foot traffic by employees who used the roadway, he
believed that the loader with inadequate service brakes would
reasonably likely have an accident.
If an employee or other
vehicle were struck by the loader, which is a heavy piece of
equipment, he believed that an injury resulting in lost work days
or restricted duty would reasonably likely occur if the loader
were continued to be used with service brakes which would not
stop it.

83

Mr. Adams confirmed that he made a negligence finding of
"moderate." He believed that Mr. Scott knew that the brake
condition had existed for approximately 30-days prior to the
inspection and that the loader had a leaky hose. Mr. Adams
confirmed that he made no inquiry as to whether the loader had
been used during this 30-day period, but based on his observations and the fact that this may have been the only loader, he
concluded that it had been used during this time. He further
confirmed that in making his negligence finding he considered the
fact that Mr. Scott had taken steps to try and correct the
condition by bleeding the brakes of all moisture on a daily basis
prior to the inspection. Mr. Adams also confirmed that he issued
a separate citation on the loader after finding that it had a
cracked windshield and cracked side windows (Tr. 9-19).
On cross-examination, Mr. Adams confirmed that he had
previously visited the plant, but he could not recall whether it
was during the summer or winter months. He confirmed that his
supervisor Jim Green was with him on the day of the inspection in
question. Mr. Adams further confirmed that he has not inspected
any other plants operated by-the respondent and that his prior
inspection experience with "cold weather operations" were limited
to open pit copper mines in Arizona, but that they did not
present any equipment freezing problems. He confirmed that the
weather conditions at the time of the inspection were "cold and
freezing" and that there was "a couple of inches of snow" on the
ground. He further confirmed that the respondent did explain to
him that the loader air pressure tank was being bled at the end
of each shift prior to the inspection and that this was done to
remove the moisture from the air system to prevent freezing.
In response to further questions, Mr. Adams confirmed that
there were no particular hazards on the plant ramp where the
loader dumped its load, and that the loader was equipped with an
adequate hand brake and operable backup alarmo He also confirmed
that the loader bucket could also be used as a braking device and
that the loader normally travelled at a speed of 5 miles per hour
or less. Mr. Adams further stated that he checked the respondent's "accident lost time" records, and had no knowledge that
the respondent had any prior lost time accidents (Tro 19-22) o
Respondent 1 s Testimony and Evidence
Jeffrey Scott, plant manager, testified that at the time the
problem developed with the cited loader 7 Inspector Adams was in
the plant conducting his inspection. Mr. Scott stated that there
was approximately 6 to 8 inches of snow on the ground, and that
once the loader brake problem was identified the loader was put
in the garage and the air pressure gauge line was replaced and
the loader was allowed to warm up before being used. He believed
that the freezing weather conditions and moisture in the air line
caused the braking problem found by the inspector and Mr. Scott

84

did not believe that there was any serious risk with the loader
prior to the time it was cited. He identified the loader operator as Philip Pike and stated that he was an experienced loader
operator. Mr. Scott confirmed that the respondent had no lost
time accidents (Tr. 27-28).
On cross-examination, Mr. Scott confirmed that he was not
with Inspector Adams when he asked the loader operator to test
the loader brakes on the plant ramp. Mr. Scott further confirmed
that he was aware of the braking problem, and that due to the
cold weather, the loader had experienced similar freezing problems "off and on" on three or four occasions, and each time, the
loader was taken to the garage so that the air lines could be
bled to remove the moisture and to permit the loader to warm up
in the garage. He experienced no braking problems with the
loader when the weather was not cold and freezing. He described
the loader as an old machine, and he indicated that the air
dryers were not too efficient.
Mr. Scott stated that the roadway used by the loader was 75
to 80 feet wide, and he confirmed that seven or eight large
trucks or tractor t~ailers were in and out of the plant roadway
area on any given day and that employees would also be travelling
on foot along the roadway. He stated that the air leak was in
the air pressure gauge itself and did not directly affect the
braking system. He did not believe that the lack of pressure in
the air gauge would affect the efficiency of the brakes, and that
the only hose or line which was replaced was the one connected to
the air pressure gauge (Tr. 29-32).
Mr. Scott stated that after the loader was taken out of
service by the inspector on December 12, 1986, it was returned to
service that same afternoon within approximately 5 hours.
During
this timeu no servicing was done on the brake system, and the
brakes 91 worked good" (Tr 34)
However, when the loader was
tested? one brake was not adjusted properly and three of the four
wheels were locking up. The brake pads had to be adjusted so
that the one wheel would brake (Tr. 34). He did not believe that
the three wheels which were locking up made much difference in
stopping the loader (Tro 35).
o

o

Mro Scott stated that the cited loader was not used on a
daily basis at the plant and it is only used when another loader
which is normally used at the plant is at the pit area doing
other work (Tro 35). Mr. Scott stated that the inspector allowed
him to use the loader after the brakes were adjusted on
December 12, and after he retested it because it was needed on
the night shift (Tr. 37).
Mr. Scott stated that he was not aware of the condition of
the loader when it was tested by the inspector on December 12,
but he confirmed that he had problems with the loader prior to

85

this time and the operator would leave it in the garage for as
long as it took to thaw out. He further confirmed that no one
would observe the loader during the shift to determine whether
the brake system was operating correctly (Tr. 38).
Mr. Scott confirmed that the drivers of the contractor
trucks at the plant were familiar with the plant, and that the
drivers and plant employees were familiar with safely maneuvering
around a loader (Tr. 39).
In response to further clarifying questions, Mr. Scott
confirmed that the pressure gauge line was replaced and the
loader was allowed to warm up in the garage after it was cited by
the inspector and that nothing was done to the loader prior to
the inspection. The inspector observed the loader "fresh for the
first time" on the morning of his inspection "in the condition
that it was in" (Tr. 40). He confirmed that he was not present
when the operator applied the brakes and the loader drifted, but
that he was present and did observe it drift down the ramp when
the brakes were applied when the inspector took him to the loader
and had the operator test it .. a second time. Mr. Scott did not
dispute the fact th~t the loader brakes would not hold the
machine on the ramp, regardless of what caused the condition (Tr.
41) .
Inspector Adams was recalled by the petitioner and he stated
that he did not recall informing Mr. Scott that he could place
the loader back in service on December 12. He stated that he
next inspected the loader on December 14, when he terminated his
order (Tr. 42). He stated that on December 12, the mechanic who
was working on the loader informed him that there were air leaks.
Mr. Adams stated he did not observe the loader in operation
before leaving the mine that day and December 14, and did not see
it in operation after he cited it (Tr. 43-44).
Mr. Adams stated that he returned to the plant on
December 14, at which time Mr. Scott provided him with information about the corrections made to the loader, and he terminated
the order on that day ('I'r. 44) . Mr. Adams stated that once a
section 107(a) order is issued taking a piece of equipment out of
service, the mine operator must advise MSHA that the cited
condition has been corrected before he can place the equipment
back in service. However, if a citation is issued, the equipment
may be placed in service after the condition
corrected and
MSHA need not be notified (Tr. 47). Mr. Adams could not recall
any conversation with Mr. Scott which would have led him to
believe that once the loader was repaired it could be placed back
in service (Tr. 47). Mr. Adams could not recall whether there
were two loaders ~t the plant {Tr. 48).
Mr. Scott was recalled by the court, and he reiterated that
after the loader brakes were adjusted on December 12, after it

86

was taken out of $ervice, the inspector allowed it to be placed
back into service that same day (Tr. 49).
Findings and Conclusions
Fact of Violation
The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 56.14101(a) (1), which provides as
follows:
(a) Minimum reguirements.
(1)
Self-propelled
mobile equipment shall be equipped with a service brake
system capable of stopping and holding the equipment
with its typical load on the maximum grade it travels.
This standard does not apply to equipment which is not
originally equipped with brakes unless the manner in
which the equipment is being operated requires the use
of brakes for safe operation. This standard does not
apply to rail equipment.
The credible and.-unrebutted testimony of the inspector
establishes that the cited loader service brakes were in poor
condition and would not hold the loader and keep it from drifting
down the plant ramp when the brakes were tested.
The respondent
does not dispute the fact that the brakes would not hold, and its
defense is that the loader is required to be used at all times
while the plant is in operation during the winter season and that
the poor braking condition was caused by the operation of the
loader in sub-freezing weather. Although I recognize the operational difficulties in operating equipment under adverse weather
conditions, the cited standard makes no allowances or exceptions
and it requires as a minimum that the service brakes be maintained so that they are capable of stopping and holding the
equipment with its typical load on the maximum grade
travels.
In
case, the evidence establishes that when the loader
operator tested the loader brakes in the presence of the inspector, they would not hold or stop the machine, and plant manager
Scott did not dispute this fact.
Accordingly, I conclude and
find that the petitioner has established a violation by a preponderance of the credible testimony and evidence adduced in this
case, and the contested citation issued by the inspector IS
AFFIRMED"
Sianificant and Substantial Violations
A 11 significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard. 11
30 C.F.R. § 814(d) (1).
A violation is properly designated
significant and substantial "if, based upon the particular facts

87

surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3~4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum the Secretary of Labor must
prove:
(1) the underlying violation of a mandatory
safety standard: (2) a discrete safety hazard--that is,
a measure of danger to safety-contributed to 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.
1129,

In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
(August 1985), the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984): U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

I take note of the fact that the "narrative findings"
supporting the "special assessment" made by MSHA in this case
reflects that when the cited loader was tested on the 2 percent
grade it could not be stopped and that it could have become
uncontrollable and collided with another vehicle, a stationary
object, or a pedestrian. However, there is no evidence in this
case that the loader was "uncontrollable" when it drifted down
the ramp, nor is there any evidence that any other vehicular
traffic or people were present, or are normally present, in the
ramp area.
Further, except for the ramp area, there is no
evidence that the roadway where the loader travelled was other
than level, and the inspector confirmed that he perceived no
collision hazards in the immediate ramp area.

88

Although the loader travelled at a relatively low rate of
speed, it nonetheless was driven on the roadway traveling to and
from the stockpile area to the processing plant. Although the
roadway was 75 to 80 feet wide, there is no evidence that the
loader, other traffic, or individuals on foot, were restricted to
any particular part of the roadway, and the respondent confirmed
that seven or eight large trucks or tractor trailers were on the
roadway on a daily basis coming and leaving the plant area, and
that employees would also be walking on the roadway.
Since the
loader was apparently used throughout the winter season with snow
on the ground, I believe one can reasonably conclude that in the
normal course of travel, any slippery or adverse road conditions
would contribute to the hazard presented by a loader whose
service brakes would not hold or stop the loader when they were
applied. Although the loader was equipped with a serviceable
parking brake and backup alarm, and the bucket could be used as a
braking mechanism, these devices would only be relevant when the
loader is backing up or parked. There is no evidence that the
loader operator would lower his bucket if it were full to stop
the machine in an emergency situation to avoid a collision with
another vehicle or someone on foot on the roadway, and the
inspector's unrebutted testimony reflects that it would be more
difficult to stop the loader with a full loaded bucket than it
would if the bucket were empty.
In view of the presence of other large trucks coming and
going from the plant at any given time while using the roadway,
and the presence of plant employees on foot on the roadway,
particularly under inclement weather conditions, I conclude and
find that the operation of the cited loader on the roadway with
brakes which would not stop or hold the loader when they were
applied, presented a situation which would reasonably likely
result in an accident.
In the event the loader collided with
another vehicle, or struck someone walking along the roadway, I
believe that this would result in injuries of a reasonable
serious nature. Although there is no evidence that the loader
brakes were tested on a level portion of the roadway, and the
parties offered no evidence to establish whether the loader was
capable of stopping on a level area if the brakes were to be
applied, I nonetheless conclude and find that a loader with
brakes which were incapable of holding or stopping the machine on
the 2-percent grade.where they were tested presented a hazard to
vehicles and pedestrians using the roadway. The roadway was at
the bottom of the ramp, and the loader would be backed down the
ramp after dumping its load (Tr. 11, 15).
Although there is a dispute as to whether or not the inspector permitted the loader to be placed back into service after he
issued the order-citation, the fact remains that at the time the
inspector observed the loader in operation and had the brakes

89

tested, they would not hold or stop the machine. Under all of
the aforementioned circumstances, I conclude and find that the
inspector's significant and substantial (S&S) finding is supportable, and IT IS AFFIRMED.
History of Prior Violations
The petitioner did not produce a computer print-out reflecting the respondent's history of prior paid assessed violations.
However, petitioner's counsel stated that according to the
information he has received the respondent was assessed for 26
violations in 1987, two in 1988, and three in 1989. Counsel
confirmed that this information may apply to the respondent as
the corporate operate and that the violations may apply to all of
the plants which it operates rather than the particular plant in
question. He further confirmed that he had no information to
indicate that the respondent had been previously cited for a
violation of the same mandatory standard cited in this case (Tr.
50-53) •

The respondent's representative confirmed that the plant in
question has been inspected two or three times annually by MSHA,
and he believed that two or three citations may have been issued
during each of these inspections. He agreed that the 22 violations for the past 24-months noted as part of MSHA's proposed
assessment information found on MSHA Form 1000-179, which is part
of the pleadings, appears to be accurate. Under all of these
circumstances, and in the absence of any further evidence of
record, I cannot conclude that the respondent's compliance record
warrants any additional increase in the amount of the civil
penalty which I have assessed for the violation in question.
Size of Business and Effect of civil Penalty Assessment on the
Respondent 1 s Ability to Continue in Business
I conclude and find that the respondent is a small-to-medium
size mine operator, and that the civil penalty assessment which I
have made for the violation is appropriate.
In the absence of
any evidence to the contrary, I cannot conclude that the payment
of the assessment will adversely affect the respondent's ability
to continue in business.
Good Faith Compliance
The respondent's representative stated that the respondent
has always timely corrected any cited conditions and has in the
past paid the civil penalty assessments for those violations
which is has not contested. The parties are in agreement that
the cited loader brake conditions were corrected and that the

90

respondent abated the violation in good faith (Tr. 53-55).
I
conclude and find that this was the case, and I have taken this
into consideration.
Gravity
Based on the credible testimony of Inspector Adams with
to the hazards associated with the violation, I conclude
and find that it was serious.
·

~espect

Negligence
Although plant superintendent Scott acknowledged that he was
aware of the cited loader brake condition, the evidence establishes that he at least made an effort to check the condition by
taking the loader to the garage to bleed the moisture out of the
air pressure system and to allow the loader time to warm up.
Although Mr. Scott's assertion that the inspector allowed the
loader to be placed back into service after it was taken to the
garage on the day of the inspection was disputed by the inspector, the fact remains that thg loader brakes would not hold when
the inspector had it tested and Mr. Scott was not with the
inspector at that time. Under the circumstances, I agree with
the inspector's moderate negligence finding and it is affirmed.
Civil Penalty Asse~sment
In its answer, the respondent took issue with MSHA's proposed "special assessment," including the "narrative findings"
supporting the proposed assessment. However it is clear that I
am not bound by MSHA 1 s proposed civil penalty assessment, and
that once a penalty is contested and Commission jurisdiction
attached, a judge's determination of the amount of the penalty is
de novo, based upon the statutory penalty criteria and the record
developed in the adjudication of the case. See: Sellersburg
Stone Company 1 5 FMSHRC 287 (March 1983) 1 aff'd, 736 F.2d 1147
(7th Cir" 1984); United States Steel Mining Co., Inc., 6 FMSHRC
1148 (May 1984)"
On the basis of the foregoing findings and conclusions, and
taking into account the six statutory civil penalty assessment
criteria found in section llO(i) of the Act, I conclude and find
that a civil penalty assessment in the amount of $150 is reasonable and appropriate for the violation which I have affirmed.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment
of $150 for the violation in question, and payment is to be made

91

to MSHA within thirty (30} days of the date of this decision and
order. Upon receipt of payment, this matter is dismissed.

b.~~

Administrative Law Judge

Distribution:
William G. Staton, Esq., Office of the Solicitor, U.S. Department
of Labor, 201 Varick Street, Room 707, New York, NY 10014
(Certified Mail)
Mr. David E. Hergert, Vice President, Production, Whibco, Inc.,
P.O. Box 259, Leesburg, NJ 08327 (Certified Mail)

/fb

92

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

January 15, 1991

CONTEST PROCEEDINGS

PRESTIGE COAL COMPANY,
Contestant

Docket No. KENT 91-25-R
Citation No. 3416484; 8/29/90

v.

Docket No. KENT 91-26-R
Order No. 3416485; 8/29/90

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

Docket No. KENT 91-27-R
order No. 3416486: 8/29/90
Mine ID 15-16582

-

Before:

ORDER OF DISMISSAL

Judge Merlin

These cases are notices of contest filed by the operator
seeking to challenge citations issued by an inspector of the Mine
Safety and Health Administration under section 104(a) of the
Federal Mine Safety and Health Act of 1977.
The citations were issued on August 29, 1990. The notices
were not received by the Commission until October 19, 1990.
Section 105(d) of the Mine Act, 30 U.S.C.
relevant part:

§

815(d), provides

If u within 30 days of receipt thereof, an operator
of a coal or other mine notifies the Secretary that he
intends to contest the issuance or modification of an
order issued under section 104, or citation or a notification of proposed assessment of a penalty issued
under subsection (a) or (b) of this section, or the
reasonableness of the length of abatement time fixed in
a citation or modification thereof issued under section
104 * * * the Secretary shall immediately advise the
commission of such notification and the Commission
shall afford an opportunity for a hearing * * * *

On November 9, 1990, the Solicitor filed her answer to the
. notices of contest in which she stated that the citations were
properly issued and therefore the contests should be denied. The

93

Solicitor's answer did not raise the issue of timeliness. 1
Thereafter, on November 20, 1990, an order was issued pointing
out the time interval between the issuance of the citations and
the filing of the notices. In addition, the order noted the
general view that the 30 day filing requirement of section 105(d)
is jurisdictional and that unless the contest is brought within
the prescribed time, it must be dismissed. In light of these
circumstances, the parties were ordered to submit memoranda
setting forth their positions with respect to the timeliness of
the operator's pleadings which they have now done.
The Solicitor's memorandum concurs with the November 20th
order regarding the date the citations were issued and date the
contests were served on the Commission. The Solicitor argues
that the notices of contest were due on October 3, 1990. 2 According to the Solicitor, the cases cited in the November 20,
1990, order regarding timeliness supports the conclusion that the
30-day requirement for contesting the issuance of a citation or
order is jurisdictional. Therefore, the Solicitor moves that
these cases be dismissed for the operator's failure to serve the
notices within the statut6ri~y prescribed time.
The operator asserts that the notice of contests were not
filed earlier because it had sought to exhaust other administrative remedies provided by the Mine Act, referring to its attendance at a conference with MSHA on September 28, 1990. The
operator notes that the contests were filed within 30 days of
that conference. In the alternative, the operator argues that
since the three citations were subsequently modified by MSHA on
November 13, 1990, in a manner favorable to it, MSHA has acquiesced in the timeliness of its filing.
As stated in the November 20th order, a long line of decisions going back to the Interior Board of Mine Operation Appeals
held that cases contesting the issuance of a citation must be
In her memorandum filed in response to the November 20
order, the Solicitor defends this oversight by highlighting the
short time frame in which she has to answer the contests. While
I understand that the short period does not allow an in-depth
review of the citations, it would appear rudimentary that the
timeliness of the contests would be checked and that it would be
possible to alert this matter to the presiding judge.
2

The Solicitor's reference to 29 C.F.R. 2700.S(b) is
erroneous since that provision applies to responsive pleadings.
In her answer the Solicitor had used the date October 15, 1990,
as the date of service, referring to 29 C.F.R. § 2700.7(b), which
provides that service is complete upon mailing. Whether the
filing date is October 15 or October 19 has no effect on the
result.

94

brought within the statutory prescribed 30 days or be dismissed.
Freeman coal Mining Corporation, 1 MSHC 1001 (1970) ; Consolidation Coal Co., 1 MSHC 1029 (1972); Island Creek Coal Co. v. Mine
Workers, 1 MSHC 1029 (1979); aff'd by the Commission, 1 FMSHRC
989 (August 1979); Amax Chemical Corp., 4 FMSHRC 1161 (June
1982); Rivco Dredging Corp., 10 FMSHRC 889 (July 1988); See
Also, Peabody Coal Co., 11 FMSHRC, 2068 (October 1989); Big Horn
Calcium Company, 12 FMSHRC 463 (March 1990); Energy Fuels Mining
Company, 12 FMSHRC 1484 (July 1990). The time limitation for
contesting issuance of citations must therefore, be viewed as
jurisdictional.
The notices of contest in these cases were filed over 50
days after the citations were issued which was 20 days late. The
Mine Act and applicable regulations afford no basis to excuse
tardiness because the operator mistakenly believes it can pursue
avenues of relief with MSHA before coming to this separate and
independent Commission to challenge a citation. The Act clearly
provides otherwise. Nor does relevant case law suggest support
for any such approach. Finally, the subsequent modifications of
the citations cannot affect the operator's duty to file its
contests within the"prescribed time. Accordingly, the operator's
arguments cannot be accepted.
The operator should be aware, however, that the issues it
seeks to raise here may be litigated in the penalty suit when
MSHA proposes a monetary assessment.
In light of the foregoing, it is.ORDERED that these cases
be, and are hereby, DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Richard Eo Peyton, Esq. 1 Frymire, Evans, Peyton, Teauge &
Cartwright, Po O. Box 695, One South Main Street, Madisonville,
KY 42431
(Certified Mail)
Anne Fo Knauff, Esq., Office of the Solicitor, U. S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215
(Certified Mail)

95

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

January 16, 1991

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
ROBERT J. RICHARDSON,
Complainant

DISCRIMINATION PROCEEDING

..

Docket No. WEST 91-104-DM
Star Point No. 2 Mine

v.
J. S. REDPATH CORPORATION,
Respondent _
DECISION APPROVING SETTLEMENT
ORDER TO PAY
ORDER OF DISMISSAL

Before:

Judge Merlin

On December 31, 1990, the Solicitor filed a stipulation of
settlement, consent and motion in the above-captioned discrimination case. The stipulation sets forth the proposed agreement as
follows:
The Respondent has authorized the Secretary to
represent the following agreements and stipulations to
the Court~
1.
Respondent hereby agrees to compensate Robert
Richardson in the amount of $480.00 for loss of back
wages and other expenses resulting from his discharge.
2.
Robert Richardson 1 s employment record will be
expunged of any adverse references relating to this
matter.
3.
The Secretary hereby agrees to withdraw his request for a penalty in this case, based upon the
Respondent 1 s good faith and willingness to resolve this
matter.
4.
Complainant and the Secretary hereby accept the
above stipulations as full settlement of the case filed
herein.

96

The parties jointly move for an order requiring
respondent within 30 days to (1) tender to Robert
Richardson the sum of $480.00, and (2) expunge from
Robert Richardson's employment records any adverse
reference to this matter
Robert Richardson has been fully paid in this
matter and has authorized the Secretary to represent to
the court that he consents to the settlement of his
discrimination claim against respondent in accordance
with settlement (sic) agreement contained in the above
stipulation.
Each party hereby agrees to bear its own fees and
other expenses incurred by such party in connection
with any stage of this proceeding.
In light of the foregoing, I find the settlement appropriate
under the circumstances.
Accordingly, it is ORDERED that the proposed settlement be
APPROVED and the operator wit~in 30 days of the date of this
order EXPUNGE from Robert Richardson's employment records any
adverse reference to' this matter. The operator having paid, it
is further ORDERED that this case be DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Margaret Ao Miller, Esq., Office of the Solicitor 1 U. s. Department of Labor 0 1585 Federal Office Building 1 1961 Stout Street,
Denver 0 CO 80294
(Certified Mail)
Carol H. Sapakie, Esq., Jennings, Strauss & Salmon, One Renaissance Square, Two North Central, Phoenix, AZ 85004-2393 (Certified Mail)
So Redpath Corporation, P. o. Drawer PMC, Price, UT
(Certified Mail)

J"

84501

Redpath Engineering, 1855 W. Baseline, Suite 240, Mesa, AZ
(Certified Mail)
/gl

97

85202

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

JAN 16 \99\

CONTEST PROCEEDINGS

BEAVER CREEK COAL COMPANY,
Contestant

v.

:

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

Docket No. WEST 89-396-R
Citation No. 3411573; 7/13/89
Docket No. WEST 89-408-R
Citation No. 3411781; 8/3/89
Docket No. WEST 89-410-R
Citation No. 3411783; 8/3/89
Trail Mt. No. 9 Mine
Mine ID 42-01211
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 90-40
A.C. No. 42-01211-03562
Docket No. WEST 90-103
A.C. No. 42-01211-03564

BEAVER CREEK COAL COMPANY,
Respondent

DECISION
2'!..ppearances;

David M. Arnolds, Esq., Atlantic Richfield
Company, Denver, Colorado, for the
Contestant/Respondent;
Robert J. Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
the Respondent/Petitioner.

Before~

Judge Maurer
STATEMENT OF THE CASE

These consolidated cases are before me under section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seq., the "Act" to challenge four citations issued by
the Secretary of Labor (Secretary) against the Beaver Creek Coal
Company (Beaver Creek) and for review of the civil penalties
proposed by the Secretary.

98

Prehearing th~ Secretary filed a Motion to Approve Partial
Settlement and Order Payment. The motion requested approval to
vacate Citation No. 3411573 contained in Docket No.
WEST 89-396-R, and also requested approval to redesignate
section 104{d) (1) Citation No. ~411783 as a section 104(a), nonsignificant & substantial violation and to reduce the proposed
penalty from $1100 to $200. I granted the motion on the record
(Tr. 5).
Therefore, there remained for trial two section 104(a)
citati0ns: Citation No. 3411781, contested in Docket No.
WEST 89-408-R and assessed in Docket No. WEST 90-40 for a $213
penalty, and Citation No. 3412086, an uncontested citation
assessed at $259 in Docket No. WEST 90-103.
Pursuant to notice,
these cases were tried before me in Provo, Utah on June 20, 1990.
Both parties have filed post-hearing proposed findings of fact,
conclusions of law, and briefs which have been considered by me
in the course of making this decision.
The general issues before me concerning each of the
remaining citations and its accompanying civil penalty petition
are whether the citations were properly issued, whether there was
a violation of the cited standard, and, if so, whether that
violation was "significant and substantial" as well as the
appropriate civil penalty to be assessed for the violation should
any be found. Included as part and parcel of any determination
of these questions is whether or not the inspector who issued the
citations properly collected the dust samples which allegedly
substantiate the violations.
STIPULATIONS
No

o

The parties stipulated to the following (Joint Exhibit
1) ~

lo
Beaver· Creek Coal Company is engaged in mining and
selling of coal in the United statesp and its mining operations
affect interstate commerce.
2"
Beaver Creek Coal Company is the owner and operator of
Trail Mto No. 9 Mine, MSHA I.D. No. 42-01211.

3. Beaver Creek Coal Company is subject to the jurisdiction
of the Federal Mine Safety ·and Health Act of 1977, 30 u.s.c.
§§ 801 et seq. ("the Act").
4.
matter.

The Administrative Law Judge has jurisdiction in this

5. The subject citations were properly served by duly
authorized representatives of the Secretary upon an agent of
respondent Beaver Creek Coal Company on the dates and places

99

stated therein, and may be admitted into evidence for the purpose
of establishing their issuance, and not for the truthfulness or
relevancy of any statements asserted therein.
6. The exhibits to be offered by respondent Beaver Creek
Coal Company and the Secretary are stipulated to be authentic but
no stipulation is made as to their relevance or the truth of the
matters asserted therein.
7. The proposed penalties will not affect Bea~er creek Coal
Company's ability to continue business.

a.

The operator demonstrated good faith in abating the
violation.
9. Beaver Creek Coal Company is a medium mine operator with
244,097 tons of production in 1988.
10. The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine for the two
years prior to the date of the citation.
THE APPLICABLE STANDARD
Both citations herein involved were issued by MSHA for
alleged violations of 30 C.F.R. § 75.403, which states in
pertinent part:
Where rock dust is required to be applied, it shall be
distributed upon the top, floor and sides of all
underground areas of a coal mine and maintained in such
quantities that the incombustible content of the
combined coal dust, rock dust, and other dust shall be
not less than 65 per centum, but the incombustible
content in the return air courses shall be no less than
80 per centumo
I. Docket No. West 89-408-R, and WEST 90-40; citation No. 3411781
Citation No. 3411781, issued pursuant to section 104(a) of
the Act charges as follows:
Rock dust was not applied to the ribs and roof and
maintained in such quantities that the incombustible content
shall not be less than 65 per centum in the No. 4 entry of
the main North working section. The effected area was in
the No. 3 entry from 40 1 outby the face to the intersection
a distance of about 65 1 •
They were roof bolting inby the
affected area. A sample was taken to verify the citation.
The ribs slough heavily in this section.

100

FINDINGS OF FACT
1. On August 3, 1989, Inspector Fred L. Marietti,
accompanied by his Supervisor, William E. Poncerhoff, arrived at
Beaver Creek's Trail Mountain No. 9 Mine to perform a regular
triple-A inspection. Marietti and Poncerhoff were joined by Gary
Curtis, the Maintenance Supervisor at the mine, and they
proceeded underground. They were joined underground by Dan Lucy,
the Safety Director for the mine, and Dan Meadors (misspelled
"Metters" in the transcript). Mr. Meadors was the Operations
Manager at the mine at the time.
2. The inspection party proceeded to the No. 3 or 4 entry
(it doesn't matter which) where Inspector Marietti described the
condition of the entry .as black from 40 feet outby the face to
the intersection, a distance of about 65 feet. The ribs and the
roof were black. He opined that just by visual observation, he
could tell that there was not a sufficient amount of rock dust
applied to maintain the required 65 percent incombustible
content.
3. The inspect~r then proceeded to take a sample to verify
the violation he felt existed. He used a dust kit--a brush, a
pan and a sieve screen. He went across the right rib and then
the left rib with his brush and pan, collecting dust. Then
because Mr. Meadors was commenting to him about a "band sample"
being more representative, he also went across the roof with his
brush and pan. He did not, however, collect any material from
the floor in this area because the floor was wet and he was
satisfied that the dampness itself would suffice to make that
material incombustible.
4. The dust sample collected by the inspector was
subsequently analyzed by the MSHA laboratory at Mt. Hope, West
Virginia. The analysis showed that only 13% of the sample was
incombustible. Therefore, 87% of the sample was combustible.
DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS
The inspector went on to opine that this presented a very
dangerous situation. In the event that you had an ignition,
there was a reasonable likelihood that there would be fatal
injuries to miners working on the section. He went on to state
that there were numerous ignition sources present in this
particular area that could instigate an explosion and/or a fire.
Mr. Curtis testified that this entry had previously been
rock dusted and the inspector conceded that it had been at some
prior time, but that it was not an adequate amount of rock dust
at the time it was cited. The inspector also stated that the
ribs slough heavily in this area and therefore heavier and more
frequent applications of rock dust are required to maintain the

101

65 percent incombustible content in the intakes and 80 percent in
the returns.
Both Curtis and Lucy opined that the entry was adequately
rock dusted. Obviously, this testimony is diametrically
opposed to Inspector Marietti's. In order to reconcile this
difference of opinion or choose between the two, it is necessary
to examine the entire record, including the method the inspector
used to obtain the dust sample that corroborates his opinion.
Mr. Curtis did not observe the inspector take the sample.
Mr. Lucy did. He testified that Inspector Marietti sampled only
one spot on the right rib of about 1 foot by 1-1/2 feet, where a
piece of coal had fallen out and that he had dug his pan into the
sloughage on the floor, picking up coal fines. Lucy testified
that he was present the entire time and that the inspector did
not sample the remainder of the right rib or the roof and left
rib as he claims to.
I believe and have found as a fact that the inspector
obtained the sample as he clq~med (Finding of Fact No. 3). The
inspector is a very experienced and well-trained coal mine safety
and health inspector who I felt testified in a truthful and
forthright manner. Furthermore, his field notes, made
contemporaneously with the incident, as well as the form he used
to submit the dust sample to the Mt. Hope Laboratory state that
the sample was taken from the roof and both ribs. Mr. Lucy, on
the other hand, has a mere three months of underground coal
mining experience, and I therefore assign little relative weight
to his descriptions and opinions concerning the adequacy of the
rockdusting or the dust sampling.
The senior company representative on the scene at the time,
Mro Meadors, had asked the inspector to take a "band sample" to
include the roof u the floor and both ribs. The company felt that
this would be a more representative sample of the area. They
feel that the 65% criteria .applies on an averaging basis to the
roof, floor and ribs. The inspector declined to do so because
the floor was wet.
There is some precedent for their request. The MSHA
Underground Manual, which was published on March 9, 1978,
considered the "band sample" to be the most accurate method of
measuring incombustible content. However, this manual was
rescinded and replaced by the MSHA Program Policy Manual in
December 1988. The new manual provides no guidance on dust
sampling methodology.
Another MSHA publication, however, entitled The Explosion
Hazard in Mining, published in 1981, contains the following
excerpt at page 50 (Gov't Exhibit No. 5):

102

Band sampling, or the combining of the mine dust into a
single sample from collection from the floor, ribs, and
roof (perimeter) was adopted in 1952 by the Bureau of
Mines. Band sampling .reduces the time required for
collection, quartering, packing, handling, and chemical
analysis, thus promoting the possibility of sampling in
more locations in mines. In most mines the quantity of
dust on the floor is many times greater than that on
the ribs and roof. conseguently, band samples tend to
represent the dust on the floor. Thus, band sampling
should only be used where it is obvious from visual
examination that the rib-roof surf aces are adeguately
rock-dusted. Dust on all mine surfaces--namely, the
ribs, roof, and floor--should be neutralized by rock
dust. Where an obvious deficiency in rock dust exists
on one of these surfaces separate samples should be
taken.
(Emphasis Added).
In my judgment, whichever methodology is the more correct,
or the "best", neither is proscribed for use. The inspector is
free to use his judgment as to which technique to employ in the
particular circumsta11ces.
·
An administrative appellate decision with respect to this
issue can be found at North American Coal Corporation, 1 MSHC
1130, 1134 (1974). It is~ decision of the Interior Board of
Mine Operations Appeals, the predecessor to the Federal Mine
Safety and Health Review Commission in which the Board held:
With respect to Order 3 TJD, August 16, 1971; 1 JF,
September 3, 1971, and 1 TJD, September 16, 1971, North
American challenges the findings of violation on the
ground that the samples relied on reflected only the
incombustible content of the floor. North American
urges that the samples should have reflected the
combined incombustible content of the roof and ribs, as
well as the floor, at the cited locations.
Section 304(d) 1 was designed to prevent the occurrence
of conditions which could lead to a fire, or still
worse, an explosiono The floor samples in the instant
case, falling as they did within the proscribed area
indicated a dangerous condition because a spark might
very well have led to at least a fire. We hold
therefore that a floor sample standing alone may be the
basis of a finding that a section 304(d) violation has
occurred. Accordingly, we conclude that the Judge did

1

Section 304(d) of the 1969 Coal Act is identical in language
to 30 C.F.R. §75.403.

103

not err by determining that these alleged violations
occurred.
I am satisfied with the inspector's explanation of why he
took no sample from the wet floor and his method of obtaining,
handling and packaging the sample he did take fo.r shipment to the
laboratory. During cross-examination (Tr. 68), the inspector was
asked if every spot in the mine more than 40 feet from the face
must be rockdusted in accordance with 30 C.F.R. § 75.403. He
replied that:
I would say that no inspector, including myself, is
going to go throughout the mine and look where there
has been a little sloughage on a rib or a spot on the
floor that don't have rock dust and issue you a
violation. It would be a considerable area involved.
Given the fact that I find the sample was properly obtained,
and that analysis of it demonstrated that only 13% of the sample
was incombustible, I must disagree with Curtis and Lucy that the
affected area was adequately rockdusted. Rather, I make that
credibility choice in favor of the Secretary since the
inspector's visual observation and evaluation was subsequently
verified by laboratory analysis. Accordingly, I find that a
violation of 30 C.F.R. § 75.403 existed as the inspector cited
it. Furthermore, I also believe the violation was significant
and substantial ( S.&S) .
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 c.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
lness of a reasonably serious nature. 11 Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial 11 as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the

104

injury in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated fur~her as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104{d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984): U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
Coal dust has long been recognized as an active cause of
coal mine explosions and its suppression is of primary concern to
those involved in the profession of mine safety. The principal
suppression measure utilized is the dilution of coal dust with
calcium carbonate, better known as rock dust. In underground
coal mining operations, rock dust must be applied to all areas
within 40 feet of a working face unless those areas are
inaccessibleu unsafe to enter, too wet or too hi~h in
incombustible content to propagate an explosion.
The danger presented by these combustible dust accumulations
is a mine fire or a mine explosion. Furthermore, where you have
accumulations of combustible materials, there is always the
possibility that you will have a methane ignition in the_face
area and these accumulations would cause the ignition to probably
spread or propagate into other areas of the mine, depending how
fine, dry and pulverized the accumulations are. There was a lot
of electrical equipment on the section at the time as well.
Serious injuries were reasonably likely to occur to the section
crew such as smoke inhalation in the event of a mine fire, which
occurrence I find to be reasonably likely. If a fire were to
loccur, it would be reasonably likely that the miners would be
exposed to smoke and fire hazards and suffer disabling injuries
2

30 C.F.R.

§

75.402

105

of a reasonably serious nature. The focus is clearly and
properly on the potential of the risk involved and I find that
there was plenty of potential for a mine fire here given the
conditions the inspector found. All the ingredients were
present: accumulations of cert~fiably combustible materials and
nearby ignition sources. If you had a methane ignition which
propagated into a mine dust explosion, then it could be fatal.
Therefore, I concur with the inspector that the violation was
"significant and substantial", and serious.
He also marked the negligence as moderate. I concur that
the appropriate level of negligence established by inference in
the record is ordinary or moderate negligence.
Considering the criteria in section llO(i) of the Act, I
conclude that an appropriate civil penalty for the violation is
$213, as originally proposed by the Secretary.
II.

Docket No. WEST 90-103; Citation No. 3412086

Citation No. 341_2086, issued on October 16, 1989, pursuant
to section 104(a) of the Act, charges as follows:
The analytical results of seven spot dust samples
collected on 7-31-89 by a MSHA inspector showed that
all seven of the samples fall below the required amount
of incombustible content. A copy of the dust sampling
lab report is attached to this citation.
FINDINGS OF FACT
1. Citation No. 3412086 was issued by Inspector Robert
Jones on October 16 1 1989, based on the lab analysis of dust
samples taken by Inspector Marietti on July 31, 1989.
2o
On July 31, 1989 1 Inspector Marrieti went underground
with Mr. Curtis to the Second Left Section Return. He took seven
spot samples at different locations in the return in what he
considered to be a representative area. He performed the
sampling function generally as previously described in Finding of
Fact No. 3 in the previous section utilizing his rock dust kit.

3. Mr. Curtis objected to this spot sampling and asked the
inspector to take a "band sample" in each of those spots. The
inspector refused because he believes that all surfaces of the
mine, roof, ribs and floor must have the required amount of
incombustible content.
4. The Dust Sampling Lab Report from Mt. Hope, West
Virginia, indicates that four of the samples were taken solely
from the right rib; one sample was taken from the roof and one
rib and the other two were taken from both ribs. The amount of

106

incombustible material in the seven samples ranged from a low of
38% to a high of 74.6%.
Inspector Marietti admitted on crossexamination that if he had taken a "band sample" of the roof,
both ribs and the floor at each of those spots, the samples would
possibly have exceeded the required 80% incombustibility.
DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS
The inspector also believed this to be a S&S violation.
It
presented a dangerous situation because of the same reasoning
that applied in the previous section of this decision--only more
so. This violation occurred in a return entry which is carrying
dust and liberated methane gas from the face area into the return
entry during the mining cycle.
Rather than repeat myself, for the same reasons I gave in
the earlier part of this decision, I find the samples were
properly obtained within the inspector's discretion to do so and
do substantiate an S&S violation of 30 C.F.R. § 75.403.
I also
once again find a moderate degree of negligence on the part of
the operator and considering the statutory criteria in section
llO(i) of the Act find and conclude that the appropriate civil
penalty for the violation is $259, as originally proposed by the
Secretary.
To reiterate the major point of these cases, I do not
believe that the operator can impose a requirement of "band
sampling" on the inspector as a precondition to his citing a
violation of 30 C.F.R. § 75.403. The Interior Board of Mine
Operations Appeals has so held and the Commission has not chosen
to reverse that precedent to date.
ORDER
Citation Noo 3411573 IS VACATED"
2o

Section 104(d) (1) Citation Noo 3411783 IS
MODIFIED to a non-s&s section 104(a) citation
and AFFIRMED.

3a

Citation Nos. 3411781 and 3412086 ARE
AFFIRMED.

4.

Beaver Creek Coal Company is ordered to pay
the sum of $672 within 30 days of the date of
this decision as a civil penalty for the
violations found herein.

·----vltlawwv"

urer
ative Law Judge

107

Distribution:
David M. Arnolds, Esq., Atlanta Richfield Company, 555
Seventeenth St., Denver, CO 80202 (Certified Mail)
Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, co 80294 (Certified Mail)
/ml

108

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

JAN 171991
CONTEST PROCEEDINGS

ENERGY FUELS COAL, INC.,
Contestant

Docket No. WEST 89-266-R
Citation No. 2873916; 4-17-89

v.

Docket No. WEST 89-280-R
Citation No. 2875275; 4-06-89

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

Docket No. WEST 89-281-R
Citation No. 2875274; 4-06-89
Southfield Mine
Mine I.D. 05-03455

SECRETARY OF LABOR,
MINE SAFETY AND HE~~TH
ADMINISTRATION (MSHA),
Petitioner

.

CIVIL PENALTY PROCEEDINGS

.....•

Docket No. WEST 89-356
A.C. No. 05-03455-03568

v.
Southfield Mine
ENERGY FUELS COAL, INC.,
Respondent
DECISION
ORDER TO PAY
DISMISSAL OF CONTEST CASES
Appearances~

Phillip D. Barber, Esq., John S. Cowan, Esq.g
WELBORNu DUFFORD 8 BROWN & TOOLEY, Denver, Colorado,
for Contestant/Respondent;
Margaret A. Miller,, Esq. 8 Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Respondent/Petitioner.

Before~

Judge Cetti

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges Respondent with violating
safety regulations promulgated under the Federal Mine Safety and
Health Actu 30 u.s.c. § 801, et~ (the "Act").
After notice to the parties, a hearing scheduled for three
days commenced in Denver, Colorado, on December 18, 1990. At the
hearing, the parties announced they had reached an amicable settlement of all issues not previously settled in the eight remaining citations in Civil Penalty Docket No. 89-356. ~

1/

Two of the original 10 citations in this penalty docket,
Citation Nos. 2840175 and Citation No. 2873917 were vacated
by an earlier order.
109

Energy Fuels agrees to pay in full MSHA's initial penalty
assessment for the five of the citations in Civil Penalty Docket
No. WES'r 89-356, as reflected in the summary shown below.
Citation
Number

Proposed
Penalty

DiSEOSition

2874086
2874087
2864088
2864090
2873916

$68.00
$85.00
$68.00
$68.00
!?68.00

$68.00
$85.00
$68.00
$68.00
$68.00

Agreed

Pursuant to this settlement, MSHA seeks modification of
Citation Nos. 2874091, 2815274, and 2875275 to delete the "Significant and Substantial" designations thereon, and the parties
agree that the penalty should be reduced to $50.00 each for
Citation Nos. 2874091 and 2875274, and reduced to $61.00 for
Citation No. 2875275.
Thus the total penalty for the eight
citations is $518.00.
The deletion of the 11 Significant and
Substantial" designat;.ion was'based on insufficient evidence.
In support of their motion, the parties have further submitted information relating to the statutory criteria for assessing
civil penalties in llO(i) of the Act.
I have reviewed the proposed settlement and I find it is
reasonable and in the public interest.
It should be and is
APPROVED.

ORDER
lo Citation Noso 2875274, 2875275, and 2874091 are MODIFIED
to delete the designation "Significant and Substantial" and, as
so modified, are AFFIRMEDo
2o Citation Nos. 2874086, 2874087, 2874088, 2874090, and
2873916 are AFFIRMED.
3o
Penalties are ASSESSED in the amounts agreed to by the
parties, as shown above, totaling $518.00.

4. Contest Proceeding Docket Nos. WEST 89-226-R, WEST
89-280-Ru and WEST 89-281-R are DISMISSED.

110

5. Contestant/Respondent is ORDERED to pay to the Secretary
of Labor the sum of $518.00 within 30 days of the date of this
decision and, upon payment, Civil Penalty Proceeding Docket WEST
89-356 is DISMISSED.

August F. Cetti
Administrative Law Judge

Distribution:
Phillip D. Barber, Esq., John S. Cowan, Esq., WELBORN, DUFFORD,
BROWN & TOOLEY, P.C., 1700 Broadway, Suite 1700, Denver, CO
80290-1701 (Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of LaborQ 1585 Federal Office Building, 1961 Stout Street,
Denverr CO 80294 (Certified Mail)

/ek.

111

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER. CO 80204

JAN 17 l99l
ENERGY FUELS COAL, INC.,
Contestant

CONTEST PROCEEDINGS
Docket No. WEST 89-283-R
Citation No. 3298277; 5-11-89

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'rRATION ( MSHA),
Respondent

.

Docket No. WEST 89-284-R
Citation No. 3298276; 5-11-89
Docket No. WEST 89-285-R
Citation No. 3298275; 5-11-89
Docket No. WEST 89-286-R
Citation No. 3298274; 5-11-89

:

Docket No. WEST 89-287-R
Citation No. 3298273; 5-11-89
Docket No. WEST 89-305-R
Citation No. 2875247; 5-11-89
Docket No. WEST 89-309-R
Order No. 2875243; 5-11-89

:

Docket No. WEST 89-311-R
Citation No. 2875241; 5-11-89
Southfield Mine
Mine I.Do 05-03455

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 89-449
A.C. No. 05-03455-03569
Southfield Mine

Vo

ENERGY FUELS COAL, INC.u
Respondent
DECISION and ORDER TO PAY
and
DISMISSAL OF CONTEST PROCEEDINGS
Appearances:

Phillip D. Barber, Esq., Welborn, Dufford, Brown &
Tooley, Denver, Colorado,
for Contestant/Respondent;
Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner/Respondent.

Before:

Judge Cetti
112

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration CMSH..~), charges respondent with violating
safety regulations promulgated under the Federal Mine Safety and
Health Act, 30 u.s.c. § 801, et~ (the "Act").
After notice to the parties, a hearing commenced in Denver,
Colorado, on December 18, 1990.
At the hearing, the parties announced they had reached an
amicable settlement of all issues not previously settled.
The citations, the original assessments, and the proposed
disposition of all matters in controversy are as follows:
Citation
Number

Contest Case
Number

3298277
3298276
2875247
2875243
2875241

WEST
WEST
WEST
wEST
WEST

Proposed
Penalty

89-283-R
89-284-R
89-30-S-R
89-309-R
89-311-R

$170
$170
$ 79
$ 79
$ 79

Modification
& Disposition
Non S&S
Vacated
Non S&S
Non S&S

$170
$ 50
$ 79
$ 50

I

Pursuant to their settlement agreement, the Secretary moves
to amend Citation Nos. 3298277, 2875241, and 2875247 to delete
the characterization "significant and substantial." Based on the
fact on review, the Secretary finds the violations alleged therein do not contribute significantly and substantially to the cause
and effect of a mine safety or health hazard and there is insufficient evidence to prove otherwise.
The parties advise that Contest Proceeding Nos. WEST
89-285-Ru WEST 89-286-R, and WEST 89-287-Ru involving respective
Citation/Order Naso 3298275u 3298274u and 3298273 carry no penaltieso
Energy Fuels Coalu Inc., agrees to withdraw its contest
filed in each of these dockets. Consequently, these three contest proceedings, along with all the above-captioned contest proceedingsu are dismissed pursuant to the· proposed settlement
agreemento
The settlement was considered under the statutory criteria
for civil penalties in section llOCi) of the Act.
I find the
settlement is reasonable and in the public interest.
It is
APPROVED.

113

ORDER
1. Citation Nos. 3298277, 2875241, and 287247 are MODIFIED
to delete the "Significant and Substantial" designations thereon
and, as so modified, are AFFIRMED.
2.

Citation No. 2875243 is AFFIRMED.

3.

Citation No. 3298276 is VACATED.

4. Contest Proceedings Docket Nos. WEST 89-283-R, WEST
89-284-R, WEST 89-305-R, WEST 89 309-R, WEST 89-311-R, WEST
89-285-R, WEST 89-286--R, and WEST 89-287-R are DISMISSED.
5. The penalties agreed to by the parties in the total sum
of $349 are here ASSESSED and Energy Fuels Coal, Inc., is ORDERED
to pay the same to the Secretary of Labor within 30 days from the
date of this Decision. Upon said payment, Civil Penalty Proceeding Docket No. WEST 89-449 is' DISMISSED.

~~~
t F. Cetti
istrative Law Judge

Distributiong
Phillip D. BarberQ Esq., John S. Cowan, Esq., WELBORN, DUFFORD,
BROWN & TOOLEY, P.C., 1700 Broadway, Suite 1700, Denver, co
80290-1701 (Certified Mail)
Margaret Ao Milleru Esq.u Office of the Solicitor, U.S. Department of Laboru 1585 Federal Office Building, 1961 Stout Street,
Denver 0 CO 80294 (Certified Mail)

/ek

114

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

JAN 17 1991
ENERGY FUELS COAL, INC.,
Contestant

.

CONTEST PROCEEDINGS
Docket No. WEST 89-304-R
Order No. 2930823; 5-11-89

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

..

..
.

Docket No. WEST 89-308-R
Order No. 2875244; 5-11-89
Southfield Mine
Mine I.D. 05-03455
CIVIL PENALTY PROCEEDING
Docket No. WEST 89-437-A
A.C. No. 05-03455-03574
Southfield Mine

v.
ENERGY FUELS COAL, INC.
Respondent

.
DECISION
ORDER TO PAY
DISMISSAL

Appearancesg

Phillip D. Barberv Esg.u Johns. Cowan, Esq.u
WELBORN, DUFFORD, BROWN & TOOLEY, Denver, Colorado,
for Contestant/Respondent;
Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Laboru Denver, Colorado,
for Respondent/Petitioner.

Before~

Judge Cetti

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges Respondent with violating
safety regulations promulgated under the Federal Mine Safety and
Health Act, 30 u.s.c. § 801, et~ (the "Act").
After notice to the parties, a hearing commenced in Denver,
Colorado, on December 18, 1990. At the hearing, the parties
announced they had reached an amicable settlement of all issues
not previously settled.

115

Contest Proceeding No. 89-308-R
Order No. 2875244 in this docket was issued to Respondent as
a Section 104(d)(l) order for a violation of 30 C.F.R. § 75.400
because loose coal and coal dust were allegedly permitted to
accumulate under the Long Airdox coal feeder and the tail pulley
of the 2 north belt conveyor in piles ranging from six to eight
inches, for a distance of about six feet.
At the hearing, the Secretary moved to amend the order to a
104(a) citation with a $500.00 penalty, and Energy Fuels agreed
to withdraw its objection to the amended citation and penalty.
Contest Proceeding No. 89-304-R
Order No. 2930823 in this docket is a Section 104Cd){l)
Order with a proposed penalty of $850.00 in the civil penalty
docket. This order was issued to Respondent for the alleged
violation of 30 C.F.R. § 75.220 because the approved roof-control
plan was not being complied with in the 1 right entry on the 2d
south 003 section. The plan required that, when heads or roofbol t supports are dislodged or sheared off, additional supports
are to be installed to provide adequate support of the mine roof.
MSHA charged that additional roof supports were not installed in the roof area in the 1 right entry, where roof-bolt
supports had been sheared off or pulled down by the mining equipment. The affected area in the 1 right entry started at the
intersection and extended inby for a distance of about 30 feet.
MSHA contends the mine roof was not being adequately supported to
the miners in the area from falls-of-the-roof
o

At the hearing, Energy Fuels agreed to withdraw its contest
and any objection to the Order as written and to the $850.00
proposed penalty.

The parties 0 with the approval of the undersigned Judgeu
agreed that the order is deemed effective as of the date it was
written and not as of the date of the settlement. The mine has
gone through a clean unwarrantable failure cycle since the order
was issuedu and therefore it is deemed effective as of the date
its issue to ensure this settlement does not trigger a new
cycleo
Thus, the Order No. 2930823 in this contest case, the original assessments 1 and the proposed disposition of all matters in
controversy are as follows:

116

Order
Number

Contest
Case No.

Proposed
Penalty

2875244
2930823

WEST 89-308-R
WEST 89-304-R

$650.00
$850.00

Modification
& Dis12osition
104Ca)
$
104(d)(l)

TOTAL

500.00
850.00

$1,350.00

I have considered the proposed settlement disposition of
this matter.
I find the proposed settlement is reasonable, consistent with the Act, and in the public interest.
The settlement
disposition should be and is APPROVED.
ORDER
1. Order No. 2875244 is MODIFIED to change the type of
action from a 104(d)(l) Order to a 104(a) Citation, and, as so
modified, is AFFIRMED. A civil penalty of $500.00 is ASSESSED.
2. Order No. 2930823, with its finding that the violation
is "Significant and Substantial" is AFFIRMED. A civil penalty of
$850.00 is ASSESSED].
3o
Contest Proceeding Docket Nos. WEST 89-308-R and WEST
89-304-R are DISMISSED.

4. Respondent Energy Fuel Coal Inc. is ORDERED to pay to
the Secretary of Labor the sum of $1,350.00 within 30 days of the
date of this decision, as and for the civil penalties assessed
hereino Upon such payment, this proceeding is DISMISSED.

a~~~
Aug

Ad

t F. Cetti
nistrative Law Judge

Distributiong

Phillip Do Barberu Esq.v John S. Cowan, Esq.u WELBORN, DUFFORD;
BROWN & TOOLEY PoCov 1700 Broadway, Suite 1700v Denveru CO
80290-1701 (Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294 (Certified Mail)
/ek
117

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

JAN 1 7 1991
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 89-433
A.C. No. 05-03455-03570

v.
ENERGY FUELS COAL,
INCORPORATED,
Respondent

.

Southfield Mine

DECISION
Appearances:

Phillip D. Barber, Esq., Welborn, Dufford, Brown &
Tooley, Denver, Colorado,
for Contestant/Respondent;
Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner/Respondent.

Before:

Judge Cetti

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA) u charges Respondent with violating
safety regulations promulgated under the Federal Mine Safety and
Health Actu 30 UoSoCo § 80lu et~ (the 11 Act 11 )0
After notice to the parties, a hearing commenced in Denver,
Colorado, on December 18, 1990. At the hearing, the parties announced they had reached an amicable settlement of all issues not
previously settled in the 11 remaining citations in this docket.
At the hearingu the Secretary 1 s counsel moved to modify Citation Nos. 3077189, 3077190 6 3077191, and 3977192, to delete the
~significant and substantial" characterization of the violations on
the grounds that there was insufficient evidence to prove the violations were "significant and substantial" and to reduce the proposed civil penalties of each of the four citations to $50 each, as
indicated in the summary table below.
The Secretary was permitted to amend Item 10 D of Citation
Nos. 3077185 and 3077187 to show in each citation that the "number
of persons affected" was two (2) rather than ten ClO>, and to
reduce the proposed penalty in each of the two citations from $147
to $100, as indicated in the summary table below. The other five

118

citations and their proposed penalties were not amended or modified.
Respondent withdrew its contest as to these five citations and
agreed to pay the Secretary's original proposed penalties in the
amounts indicated in the summary table below.
The citations, the regulation, the original assessments, and
the proposed disposition of all citations in controversy are as
follows:
SUMMARY TABLE
Citation
Number

30 C.F.R. §

Proposed
Penalty

Dis_Eosition

2931193
2931194
3077174
3077184
3077185
3077186
3077187
3077189
3077190
3077191
3077192

75.208
75.400
75.400
75.1722(a)
75.1707
75.400
]5.202(a)
75.1723(a)(2)
75.400
75.400
75.1725(a)

$105.00
$112.00
$ 85.00
$ 79.00
$147.00
$126.00
$147.00
$ 79.00
$ 85.00
$ 79.00
$ 79.00

$105.00
$112.00
$ 85.00
$ 79.00
$100.00
$126.00
$100.00
$ 50.00
$ 50.00
$ 50.00
$ 50. 00

The settlement disposition was considered in light of the
statutory criteria in section llOCi) of the Act, and the parties'
representtion as to lack of sufficient evidence in specified cases.
I find the settlement is reasonable and in the public interest.
It
is APPROVEDo
ORDER

lo
tation NOSo 3077189P 3077190u 307719lv and 3077192 are
modified to delete the characterization 11 significant and substantial 0' and, as so modified, are AFFIRMED.
2o
Citation NOSo 2931193u 2931194P 3077174, 3077184q 3077186
are AFFIRMEDo
3o
Citation Noso 3077185 and 3077187 are amended to show in
item 10 D of each citation that the number of persons affected is
two (2) rather than twelve (12) and, as so modified, are AFFIRMEDo

4o
The civil penalties agreed to by the parties, as specified
in the summary table above totaling $907.00, are ASSESSED.

119

5. Respondent Energy Fuels Coal Inc. is ORDERED to pay to the
Secretary of Labor the sum of $907.00 as and for the civil penalties assessed herein. Upon such payments, this proceeding is
DISMISSED.

Aug st F. Cetti
Administrative Law Judge

Distribution:
Phillip D. Barber, Esq., Welford, Dufford, Brown & Tooley, P.C.,
Energy Fuels Coal, Inc., 1700 Broadway, Suite 1700, Denver, CO
80290-1701 (Certified Mail)
Margaret Ao Miller 0 Esqou Office of the Solicitoru UoS. Department
Laborv 1585 Federal Buildingu 1961 Stout Streetu Denverv CO
80294 CCertif ied Mail)

/ek

120

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

JAN 17 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
ENERGY FUELS MINING COMPANY,
Respondent

CIVIL PENALTY PROCEEDING
:

.
.

Docket No. WEST 90-91
A.C. No. 05-03771-03520
Raton Creek Mine No. l

DECISION
Appearances:

MargarBt A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Phillip D. Barber, Esq., WELBORN, DUFFORD, BROWN &
TOOLEY, Denver, Colorado,
for Respondent.

Before:

Judge Cetti

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 for alleged violations
of mandatory safety standards 30 C.F.R. §§ 75.1704 and 70.400.
Respondent filed a timely answer contesting the alleged violations. Pursuant to notice to the parties, a hearing was held in
Denver, Colorado, on December 18, 1990. At the hearing, the parties announced they had reached an amicable settlement of all
matters at issue.
Citation No. 2931280 was issed as an S&S violation of 30
C.F.R. § 75.1704 with a $74.00 proposed civil penalty. Pursuant
to their proposed agreement, the Secretary amended the citation
to delete the S&S characterization of the violation and amended
the proposed penalty to $50.00. The Secretary based her amendments upon insufficient evidence to prove the violation was "Significant and Substantial. 11 Respondent withdrew its objection to
the citation and penalty as amended.
Citation No. 2340524 alleges an S&S violation of 30 C.F.R.
At the hearing,
Respondent withdrew its contest to the citation as originally
issued and to the Secretary's original proposed penalty of
$54.00.
§ 75.400 and has a proposed penalty of $54.

121

This settlement disposition was considered and approved.
It is found reasonable and in the public interest.
ORDER
1. Citation No. 2931280 is MODIFIED to delete the "Significant and Substantial" designations and, as so modified, is
AFFIRMED. A penalty of $50.00 is ASSESSED.
2.

Citation No. 3412632, alleging a violation of 30 C.F.R.
including its finding that the violation was "Significant and Substantial, 11 is AFFIRMED, and a civil penalty of $54.00
is ASSESSED.

§ 75.400,

3. Respondent is directed to pay $104.00 to the Secretary
of Labor within 30 days of the date of this decision, as a civil
penalty for the violations found herein.
Upon payment, this
proceeding is DISMISSED.

C)~if.v.tf .;/( r22L
Aug
Adm

t F. Cetti
istrative Law Judge

stribution~

Margaret A. Millerg Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denveru CO 80294
(Certified Mail)
llip Do Barberu Esq. 9 WELBORN, DUFFORD 0 BROWN & TOOLEYu 1700
Broadwayu Suite 1700u Denveru CO 80203
(Certified Mail)

/ek

122

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

JAN 18 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.

CIVIL PENALTY PROCEEDING
Docket No. SE 90-6-M
A.C. No. 08-01046-05508

v.

Green's Pit
GFD CONSTRUCTION CO., INC.,
Respondent
DECISION
Appearances:

Before:

William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama,
for the Secretary of Labor (Secretary);
Anthony Green, Sr., owner, GFD Construction Co.,
Pensacola, Florida, for GFD Construction (GFD).

Judge Broderick

STATEMENT OF THE CASE
The Secretary seeks civil penalties for three alleged
violations of mandatory health and safety standards by GFD.
Pursuant to notice, the case was called for hearing in Pensacola,
Florida 0 on November 27, 1990. Anthony Green was called as an
adverse witness by the Secretary; Ralph Hawks and Lawrence
Richardson testified on behalf of the Secretary; Anthony Green,
Sr., testified on behalf of GFD. Both parties were given the
opportunity to file post-hearing briefs. The Secretary filed
such a brief. GFD did not. I have considered the entire record
and the contentions of the parties and make the following
decision.
FINDINGS OF FACT
I

GFD is the owner and operator of a masonry sand extraction
operation in Pensacola, Florida, known as Green's Pit. The sand
is separated from foreign material and trucked by GFD to home
builders, the U.S. Naval Air Station, the state of Florida,
Escambia County, Florida, the city of Pensacola and other
purchasers. GFD has drills, pumps, a separator, front end
loaders, drag lines and trucks. About 17 to 18 persons are

123

employed by GFD. It has been in business in Pensacola for 19
years. It is a small operator.
II

on July 11, 1989, MSHA cited GFD for failing to file a
quarterly report for the first quarter of 1989. GFD had been
cited on 3 prior occasions for the same violation. The citation
was terminated the same day it was issued.
III

On October 18, 1988, Federal Mine Inspector Lawrence
Richardson conducted an inspection of Green's Pit. He found that
the LK 600 Kobelco front-end loader had an inoperative reverse
signal alarm. The loader was classified as heavy duty mobile
equipment.
Its wheel diameter was about 5 feet, the overall
height was about 12 feet, and its length was over 25 feet. The
vehicle had a rear motor protruding out approximately 8 feet
which obstructed the operator's view to the ground at the rear of
the vehicle. Inspector Richardson issued a 104(a) citation
alleging a violation of 30 .C.F.R. § 56.9087 (now§ 56.14132). No
work activity was observed at the time, but two employees were
proceeding to the dredge.
The citation was not issued in written form on the date the
violation was observed, because Mr. Green ordered the inspector
off the mine property. It was later served by mail. The
citation was terminated July 11, 1989, after the back-up alarm
had been repaired.
Mr. Green contended that the front-end loader was in the
shop at Pensacola Ford Tractor, Inc. on October 18, 1988, and was
not on the mine property" He submitted a repair estimate dated
October 12ff 1988v estimating repairs at $7u23lo I have carefully
considered this evidence and the testimony of Mro Green and
Inspector Richardsono
I find that the loader was at the mine on
October 18, 1988v and did not have an operative back-up alarm.
:CV

On October 18 1 1988~ the automatic reverse signal alarm on
Kobelco LK 700 front-end loader was not operative. The
LK 700 loader is larger than the LK 6000 The operator of this
machine also has obstructed vision to the rearo The citation was
terminated July llv 1989, after the back-up alarm had been
repairedo

v
GFD had five prior violations of the regulation requiring
back-up alarms between March 1978 and October 1988. When the

124

cited equipment was purchased by GFD, they did not have back-up
alarms; GFD had them installed. The machines cost over $100,000
each; the back-up alarms cost about $30 each. Because of the
nature of GFD's operation, the wires to the back-up alarms are
frequently cut and have to be repaired.
REGULATIONS

30 C.F.R.

§

50.30(a) provides in part as follows:

Each operator of a mine in which an
individual worked during any day of a
calendar quarter shall complete a MSHA Form
7000-2 • • • and submit the original •
30 C.F.R.

§

9087 provides as follows:

Heavy duty mobile equipment shall be
provided with audible warning devices. When
the operator of such equipment has an
obstructed view to,the rear, the equipment
shall have--either an automatic reverse signal
alarm which is audible above the surrounding
noise level or an observer to signal when it
is safe to back up.
ISSUES

1. Whether the cited violations were established by a
preponderance of the evidence?
2.

If so, what are the appropriate penalties?

CONCLUSIONS OF LAW

GFD is subject to the provisions of the Mine Act in the
operation of Green's Pit, and I have jurisdiction over the
parties and subject matter of this proceeding. Green 1 s Pit is a
mine; it produces and sells a mineral, masonry sandu to private·
business entities, and to local, state and Federal government
agencies. Its equipment or some of it, was manufactured in other
states and foreign countries. Its business affects interstate
commerce.

:n:
There is no dispute concerning the violation of 30 C.F.R.
50.30(a). A quarterly report was not timely filed. The
violation was not serious, but resulted from GFD's negligence.
conclude that $50 is an appropriate penalty for the violation.
§

125

I

III

The two violations cited for inoperative front-end loaders
were established by a preponderance of the evidence. They were
moderately serious, and resulted.from GFD's ordinary negligence.
There is no evidence concerning the abatement of the violations.
The fact that Mr. Green ordered the inspector off his property
was presumably the subject of another citation (and a criminal
proceeding in the Federal District Court), and is no part of this
case. I conclude that a penalty of $300 is appropriate for each
of these violations.
ORDER

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

1.

Citations 2856056, 2856057 and 3429647 are AFFIRMED.

2. Respondent GFD Construction Company shall, within 30
days of the date of this order, pay to the Secretary, the sum of
$650 for the violations found herein.

r

j

t:",(e-s ,kh~o~r,c.,el(_
James A. Broderick
Administrative Law Judge

Distribution:
William Lawson, Esq., U.S. Department of Labor, Office of the
Solicitorv 2015 Second Avenue North, Birmingham, AL 35203
(Certified Mail)
Anthony Jo Greenv GFD Construction Co.v Inc.v 470 East Ensley
Streetv Pensacola, FL 32514 (Certified Mail)
slk

126

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

JAN 18 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

.

Docket No. WEST 90-63-M
A.C. No. 05-04390-05501

.

v.

Brighton Quarry

.

BRIGHTON SAND & GRAVEL,
Respondent

DECISION
Appearances:

s. Lorrie Ray, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado,
for p·etitioner;
Ronald w. Loser, owner, Brighton Sand and Gravel,
Brighton, Colorado,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), alleges Respondent Brighton Sand
and Gravel violated safety regulations promulgated under the
authority of the Federal Mine Safety and Health Act, 30 u.s.c.
§ 802 et~ (the "Act")o
After notice to the parties, a hearing on the merits was
held on November 19u 1990u in Denveru Colorado.
The parties waived the filing of post-trial briefs and submitted the issues on the evidence and oral arguments.
Threshold Issues
The evidence shows MSHA conducted a CAV 1/ inspection of the
operator in April 1989. Four months later the same MSHA inspector conducted a regular inspection of the siteo
The operator argues MSHA, in its CAN inspection, should have
inspected all areas of the plant including the equipment repair
shed. Hence the operator asserts any violations not detected in
the CAV inspection should be vacated.

!/

Courtesy Assistance Visit
127

The operator has misconstrued the scope of CAV inspections.
The program was initiated in 1979 to provide technical assistance
to mine operators under certain conditions. A copy of the initial memorandum prepared by the Assistant Secretary of Labor for
CAV inspections is attached to this decision.
(The memorandum
was not offered in evidence by either party but it is attached to
show MSHA's policy for its program.)
When a CAV inspection takes place, MSHA cannot guarantee
that all areas of a mine will be inspected, nor can it guarantee
that all possible violations will be detected by the inspector.
This is because the primary obligation for compliance with the
regulations rests with the mine operator.
For these reasons, the opera.tor's threshold objections are
denied. However, under the broad umbrella of statutory good
faith, I note the operator fully abated the 13 CAV notices of
violation ~/ and further abated the violative conditions in this
case.
Citations
The five citations in this case were issued under the
authority of Section 104(a) of the Act.
Background
Jake J. DeHerra, a federal mine inspector and a person experienced in mining, inspected Respondent's plant on August 21,
1989. The operator's owner, Mr. Ron Loser, only accompanied the
inspector when he entered the tool shed.
Mr. Loser has been in business for 40 years. No disabling
injuries have occurred in the business and he does not permit
unsafe conditions to exist. He has also received awards for safety.
Citation No. 3451630
In the tool shed, the inspector found the grounding plug was
missing from a service cord, a battery charger, a bench grinder,
a power saw, a vacuum cleaner, and a ventilating fan.

'~/

The 13 CAV notices are contained in Exhibit P-1.

128

Since all of this equipment was electrically powered, the
inspector concluded that a violation of 30 C.F.R. § 56.12025 ~/
existed.
The operator argued that this equipment was double insulated
and no grounding plug was required. The equipment itself was
marked "UL."~/
On this credibility issue, I credit the inspector's testimony: the equipment was not protected against shock, since it
was not enclosed in plastic nor was it marked with the "Double
D," C"DD") symbol.
In the presence of the inspector, Mr. Laser immediately
abated these violations by cutting the ends off the plug. He
intended to prevent the equipment from being used.
Citation 3451630 should be affirmed.
The operator was negligent, since he should have known of
this condition. Further, I accept the inspector's view that the
gravity was moderate.
Citation No. 3451631
_
Inspector DeHerra observed that a piece of conduit was
broken loose from the connection box.
He originally cited this condition as a violation of 30
C.F.R. § 56.12005, but he later changed the regulation to 30
C.F.R. § 56.12004.
Exhibit P-3 was drawn by the inspector to illustrate his
testimony.

11

§

56.12025

Grounding circuit enclosures

All metal enclosing or encasing electrical circuits shall be
grounded or provided with equivalent protection. This
requirement does not apply to battery-operated equipment.

!/

Underwriters Laboratory

129

It is true that the conduit had broken loose at the main
electrical box. However, the ~ondition as described, does not
fall within the purview of 30 C.F.R. § 56.12004.
Citation No. 3451631 and all penalties therefor should be
vacated.
Citation No. 3451632

Mr. DeHerra wrote this citation when he saw an unguarded
tail pulley. 5/ The witness further illustrated his testimony in
drawing Exhibit P-4.
The tail pulley was not in a normal work area but there was
a nearby walkway. If a worker fell or slipped into the pinch
points, he could be injured.
The uncontroverted evidence establishes a violation of the
regulation. The citation should be affirmed.
Concerning civil penalties:
This condition could have been observed by the operator.
A failure to remedy it indicates the operator was negligent.
Since the unguarded equipment was not in a regular work
area, the gravity is low.

The cited regulation readsg

§ 56.14107

Moving machine parts.

Ca) Moving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chainsu driveu
headu tail 0 and takeup pulleys, fly-wheelsv couplings 0
shafts 0 fan blades 0 and similar moving parts that can cause
injury"
(b) Guards shall not be required where the exposed movmoving parts are at least seven feet away from walking or
working surfaces.

130

Citation No. 3451634
During the inspection, Mr. DeHerra observed a discharged
fire exinguisher. 6/ A needle on the extinguisher gauge indicates whether it ii charged or discharged. If discharged, there
would be no pressure in the equipment.
However, there was a pressurized replacement fire extinguisher in the operator's office but there was no record of the
date it was inspected.
The uncontroverted evidence establishes a violation of the
regulation. Citation No. 3451634 should be affirmed.
Since there was a nearby replacement fire extinguisher {even
without an inspection tag}, these factors indicate the opera~
tor's negligence and gravity were low.
Citation No. 3451635
Mr. DeHerra testified that the regulation 8/ involved here
requires a test of the grounding system. Although the system was
grounded, it had not been checked. When the inspector asked for
the records, Mr. Loser stated he had contacted an electrical contractor but no action had been taken.

_I

The cited regulation
§

5604203

reads~

Extinguisher recharging or replacement.

Fire extinguishers shall be recharged or replaced with a
fully charged extinguisher promptly after any discharge.
~/

The cited regulation 30 C.F.R. § 56.12028 reads:
Continuity and resistance of grounding systems shall be
tested immediately after installation, repair, and modification1 and annually thereafter. A record of the resistance
measured during the most recent tests shall be made available on a request by the Secretary or his duly authorized
representative.

131

The facts establish that the continuity of the equipment
grounding conductors had not been checked since the plant was
moved. These facts establish a violation of the regulation which
requires the system be tested immediately after installation.
In this case, it is uncontroverted that a test was made by
an electrical contractor. However, the check was after the citation had been issued.
Citation No. 3451635 should be affirmed.
I consider the operator's negligence to be moderate since
the company was aware of the testing requirements. However, the
gravity is low, since the electrical system was grounded.
CIVIL PENALTIES
Respondent argues the r~gulations involved here are "Mickey
Mouse." I disagree. The regulations clearly relate to safety
and, given unfavorable factual circumstances, severe injuries
could result. I further note that the Mine Act mandates that a
penalty be assessed if a violation is found to exist.
Section llOCi) of the Act further establishes certain
criteria to be considered in assessing civil penalties.
In this case, the Secretary proposed penalties of $20 for
each violation. The evidence as to negligence, gravity and good
faith have been previously discussed.
In connection with the remaining criteria, I find the operamust be considered as smallv even miniscule, since only
Mro Loser and his son customarily operated the business.
Mro Loser also indicated he has now sold the business&
~or

The operator's prior history is very favorable. The
computer printout, Exhibit P-2, fails to establish any prior
olationso
On balance, I consider the penalties as hereafter assessed
to be propero

For the foregoing reasons, I enter the following:

132

ORDER
L

Citation No. 3451630 is AFFIRMED and a penalty of $20 is

ASSESSED.
2.

Citation No. 3451631 and all penalties are VACATED.

3. Citation No. 3451632 is AFFIRMED and a penalty of $10 is
ASSESSED.
4.

Citation No. 3451634 is AFFIRMED and penalty of $10 is

ASSESSEDo
5.

Citation No. 3451635 is AFFIRMED and a penalty of $10 is

ASSESSED.

Law Judge

stributiong

s. Lorrie Ray, Esq., Office of the Solicitor, U.S. Department of
Laboru 1585 Federal Office Building, 1961 Stout Street, Denveru
(Certified Mail}

co 80294

Ronald Wo Loseru OWneru BRIGHTON SAND & GRAVEL, 695 North 11th
Avenuev Brightonu CO 80601 (Certified Mail)
/ek

133

U. §5. Department of Lf.bor
~1\P"\I
J
..... \

:'RD!'~:

\

tl1ne Selt:ty tli::1 Hea:th A.::l:ninis1ra11on
~:J1 E- Y>1ISD'I E>oule>·erd
A•iin;i:or•. Viq~in;t. 2.<::203

3 191?

ROEERT B. L.1>G1'.TEER

kssistunt s~~tary ior
Kine Safety and He~lth
SUB.JECT:

Corr.pliance kssista.nce Visits

In the past Y..SHA has receiveo rr.any requests f:rorr, r..ine opere.tors
for ~SHh inspectors who, by virtue of their tr~ining and
experience:, posi;ess Eigr:.ific~nt expertise in xr.ine £c.fety and
heal th e.nc5 kno;..·leoge of r.ine. E af ety ano heal th £ te.naards and
reg:.llctions, to e.s:::i.st the opero?..tors in t.he.ir efforts t.o co:::-.ply
\dth the :t-~ine kct Of l9i7. Operators have requested t.hat KSHJ..
:representatives visit t.heir n.ines for the purpose of pointing
out any conoitions or practices which Lre in violation of t.he
J..ct or stanch.rds £0 th~t t.he operator rr.ay correct thern, but that
no monetary civil penalties be ~ssesseo.
In :response to the open~ tors' :request£, Y..SFJ.. hc.s 2.ne.ly:z.eo t.he
question ~nc haE. concluc5eo that inspectors may rr.cke visits to
mines in certain £ituationE to point out potential viol~tions
,...i thout :rrone tl..ry civil pen!.l ties being proposed.
Section 502
(b) of the Y.ine ~c! Qirects t.he Secretary ~* * * to the greatest
~xtent possibleu [to/ provide technical assiEtance to operators
:i rnee'c.ing the. :reguirernent.s of this i-..ct l&'?.na in further irr.proving
·we hee 1th c:L"'"ld IE i;.f ety conci t.ions and pre cti ce s in coal er other
lS a

The 6ituetions in the mining industry ~here such a pro;r.?..m would
be feasible are~ (1) new ~ines not yet proouc~ng, (2) seasonal 9
closed or ab~ndoned mines prior to reopeningu and (3) new
nstalletionE in mines prior to their becoming oper&tional. A
co::TJn:in <E:le.rnent in all these situations is that t..he rr.ine has
been closed (or has net yet been opened). or that there
.irs a ne•·• in~te.lle.tion not yet cpe:ration!..lo P..SHJ.. e>:perie.nce e.nd
rrtatistics ~how t.het the ·tst.~rt-up period for a :rr.ine 0 new
construction, er ne~ equipment is e particularly high-risk
period. It i6 also a perio5 ~hen practices initially Et~rted
'tend t.o become .a permanent pl!. rt of future ope:ra tions. l f the
ne\\ oper~ticns Are begun correctly, there ~re ineica.tions that
there ~ill be fewer ~ccidents, injuriei, ~nd fetalities during
both th~ initial st~rt-up period end the lete~ oper~tions.

~it.her

134

-

2 -

Therefore, beginning immediately, I am instituting a program
for metal/nonmetal of making inspectors availnble upon the
request of operators to conduct compliance assistance visits
(CAV) in the following ca.tegories:
1.
2.
3.

New mines not yet producing:
Seasonal, closed, or abandoned mines prior to
reopening;
New facilities or new ins~alla~ion of equipment in
an operating mine.

A CAV would be conducted pursuant to a request made by an
operator to the appropriate subdistrict manager. In order that
MSHA may be most responsive, such requests should be made at
least one to two weeks in advance of the date on which the
operator wants the visit •. The CAV would cover one or more of
the fo~lowing areas ~s requested by the operator:

lo
~o

Je
4$
Se
~o

Miscellaneous iron installations (guards,
walkways, stairways, etc.)1
Equipment with movirig parts (conveyor belts,
crushers, screens, etc.);
Mobile equipment (trucks, loaders, etc.);
Proposed plans and desiqns;
Planned training, and
Other areas as appropriatea

~he inspecto~ 0 while conducting ~ CAVv will issue notices of
~io1ation whenever he observes a potential violation or
imminent danger ~ituationo Each notice will be clearly marked

QCAV-NONPENALTY• and will not be included in any fashion in
t.he assessment processe The purpose of the notice is to alert
the operator to ~ potentially hazardous condition or practice
~o tha~ the operator may correct it prior to the beginning of
©perations 0 ©r use of t.he installationo equipment or plan 0
~tco
Operators should be aware 0 however, that regular inspec'l.i.ons will lbe made of the operations once they have begun and
that during the ~egular inspections the inspector will look at
all of the notices issued during the CAV to insure that the
~onditions and practices noted have been corrected.
If the
©orrection has not been made, an appropriate citation or withdrawal order will be issued. No additional penalty, monetary
or other,,:ise, will be proposed solely because of the previous
CAV.,

With regard to the CAVs of new mines or new installations of
equipment in operating mines, the CAV is limited to the future

- 3 -

use of the mine, installation or equipment under construction.
The inspector, in conducting a CAV, is to proceed directly to
the site of the CAV and is not to conduct a regular inspection
of the premises. However, should an imminent danger situation
be observed, .an appropriate order will be issued •

.

This is a new program and like any new program, problems and
questions will arise and adjustments will have to be made. I
want to encourage resolution of the problems and questions at
the field level1 however, I want to be timely advised of the
problems and questions and their resolutions. I also want to
encourage suggestions
for improvement
.
. of the pro9ram.
I firmly believe that this program will increase the cooperation between MSHA and the mine operators, will reduce accidents,
injuries, and fatalities and will, in 9eneral, enhance.the
safety and health of the miners. Therefore, I want each of the
district and subdis~rict managers to give their personal attention to insuring that t~e program achieves these 9oals.

136

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

JAN 18 1991

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 90-122
A.C. No. 46-01438-03830

v.
Ireland Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Page H. Jackson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
Walter J. Scheller, III, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns proposals for assessment of civil
penalties 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 $482, for two alleged violations of certain mandatory safety standards found in Part 77, Title 30, Code of Federal
Regulations.
The respondent filed a timely contest and a hearing
was held in Pittsburgh, Pennsylvania.
Issues
The issues presented in these proceedings are (l} whether
the conditions or practices cited by the inspector constitute
violations of the cited mandatory safety standards, (2) whether
the violations were "significant and substantial," and (3) the
appropriate civil penalties to be assessed for the violations,
taking into account the statutory civil penalty criteria found in
section llO(i} of the Act.

137

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et seg.
2.
3.
77.516.

Commission Rules, 29 C.F.R. § 2700.1, et seg.
Mandatory safety standards 30 C.F.R. §§ 77.505 and

Stipulations
The parties stipulated to the following (Tr. 6-8):
1. The respondent's mine is subject to the Act
and the presiding judge has jurisdiction to hear and
decide this case.
2.
The contested citations were issued to the
respondent by a duly authorized representative of the
Secretary of Labor and _they were properly served on the
respondent.
·
3. The payment of civil penalty assessments for
the violations will not adversely affect the respondent 1 s ability to continue in business.
4. With regard to cited mandatory safety standard
30 C.F.R. § 77.516, the applicable National Electrical
Code referred to therein is the 1968 Code.
5.
Independent contractor R. G. Johnson was
issued a citation identical to the one served on the
respondent for a violation of mandatory safety standard
30 C.F.R. § 77.505.

Discussion
Section 104(a) "S&S" Citation No. 2896648, issued by MSHA
Inspector Spencer A. Shriver on January 22, 1990, cites a violation of mandatory safety standard 30 C.F.R. § 77.505, and the
11
cited condition or practice is described as follows:
0n the
contractor 3 phase 480 volt power at 4 north airshaft, the 600
MCM conductors do not enter the safety switch through proper
fittings.
Mine operator connected to contractor load while this
violation existed.iv
Mandatory safety standard 30 C.F.R. § 77.505, provides as
follows:

138

§

77.505

Cable fittings; suitability.

Cables shall enter metal frames of motors, splice
boxes, and electric compartl)1ents only through proper
fittings. When insulated·wires, other than cables,
pass through metal frames, the holes shall be substantially bushed with insulated bushings.
Section 104(a) "S&S" Citation No. 2896649, initially issued
by Mr. Shriver on January 22, 1990, and subsequently modified on
January 29, 30, and 31, 1990, cites an alleged violation of
30 C.F.R. § 77.516, and the cited condition or practice is
described as follows:
At 4 north substation, operator provided power to
contractor by three 333 "1!0!A 124070-480 volt transformers. Connected primary ungrounded wye/secondary
grounded wye. This transformer connection will not
permit sufficient current to flow to operate protective
devices and clear a grou~d fault.
A phase-to-ground
fault was found on the 480 cable which served the
3-phase space heaters in the hoist house.
Reference article 110-2, 1968 National Electric
Code. A phase-to-ground fault on 480 volt circuit
which is not cleared, would result in phase-to-phase
voltage across the primary transformer winding or 12470
volts on windings rated 7200 volts.
Mandatory safety standard 30 C.F.R. § 77.516, provides as
follows:
§ 770516
Electric wiring and equipment; installation
and maintenance"

In addition to the requirements of §§ 77.503 and
77.506, all wiring and electrical equipment installed
after June 30, 1971, shall meet the requirements of the
National Electric Code in effect at the time of
installation.
MSHA Inspector Spencer A. Shriver, an electrical engineer
who holds a master 1 s degree in electrical engineering, confirmed
that he issued the citations in the course of his inspections at
the mine, and he testified in support of the violations and
explained his negligence and gravity findings, including the
significant and substantial (S&S) nature of the violations (Tr.
19-152; 314-317). Supervisory Inspector Paul M. Hall, chief
electrical engineer, who accompanied Mr. Shriver during his
inspections, and Mr. Elio L. Checca, an electrical engineer from
MSHA's Bruceton Safety Technology Center, also testified on
behalf of the petitioner (Tr. 153-255; 361-363).

139

In defense of the violations, the respondent presented the
testimony of Mr. Gary S. Harvey, an electrical engineer responsible for electrical construction activities, and Mr. John M. Burr,
electrical engineering manager (Tr. 256-318).
on November 19, 1990, I issued an order affording the
parties an opportunity to file posthearing arguments and briefs.
Thereafter, by letter dated November 27, 1990, the petitioner's
counsel advised me that the parties reached a proposed settlement
for both of the alleged violations. The parties then submitted a
joint motion pursuant to Commission Rule 30, 29 C.F.R. § 2700.30,
seeking approval of a proposed settlement of the case. Pursuant
to the terms of the settlement, the petitioner has agreed to
vacate Citation No. 2896649, and to modify Citation No. 2896648,
to allege a non-significant and substantial violation. The
respondent has agreed to pay the full amount of the proposed
civil penalty assessment of $241, for this violation, and has
represented to the petitioner that there are presently no transformers on mine property with an ungrounded wye, grounded wye
configuration and that, in the future, no transformers with such
a configuration will _be allo~ed on any mine property subject to
the Act.
In support of the proposed settlement, the petitioner has
submitted information pertaining to the six statutory civil
penalty criteria found in section llO(i) of the Act. The petitioner has also submitted a reasonable justification for the
approval of the settlement. With regard to the vacated citation,
the petitioner points out that it is concerned that the contested
citation, as modified, failed to adequately inform the respondent
of the specific provisions of the National Electrical Code of
1968 which the issuing inspector believed the transformer installation
ated.
In view of this possible defect in the citaand the respondent 1 s expressed representations regarding
and future transformer installations, the petitioner has
determined that,
this instance, vacating Citation No. 2896649
furthers the purposes of the Act.
Conclusion
After careful review and consideration of the entire record
in th
case, including the arguments advanced by the parties in
support of the settlement disposition of this case, I conclude
and find that the proposed settlement
reasonable and in the
publ
interest. Accordingly, the motion to approve the settlement IS GRANTED, and the settlement IS APPROVED.
ORDER

1. Section 104(a) "S&S" Citation No. 2896649,
initially issued on January 22, 1990, and subsequently

140

modified on January 29, 30, and 31, 1990, citing an
alleged violation of 30 C.F.R. § 77.516, IS VACATED.
2. Section 104(a) "S&S" citation No. 2896648,
issued on January 22, 1990-, citing a violation of
30 C.F.R. § 77.505, IS MODIFIED to delete the significant and substantial ("S&S") finding, and as modified,
the citation IS AFFIRMED.
3. The respondent IS ORDERED to pay a civil
penalty assessment of $241, in satisfaction of Citation
No. 2896648, and payment is to be made to MSHA within
thirty (30) days of the date of this decision and
order. Upon receipt of payment by MSHA, this matter is
dismissed.

k:Ktt~

_ A.dministrati ve Law Judge
Distribution:

Page H. Jackson, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Walter J. Scheller, III, Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241-1421
(Certified Mail}
/fb

141

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

JAN 22 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
CLYDE C. COLE,
Complainant,

DISCRIMINATION PROCEEDING

.
.
..
.
..
.

v.
CANYON COUNTRY ENTERPRISES,
d/b/a CURTIS SAND & GRAVEL,
CORPORATION,
Respondent

Docket No. WEST 90-165-DM
MD 89-24
Soledad Canyon Mine

..

DECISION
Before:

Judge Lasher

On December 14, 1990, the Complainant (Secretary of Labor on
behalf of Clyde c. Cole), and Respondent filed a "Stipulation for
Dismissal" indicating that, discovery having been completed, both
parties agree that this matter should be dismissed with prejudice
as far as the Secretary of Labor is concerned. These two parties
also agree, among other things, that the dismissal of this proceeding shall not be construed to create or abrogate any rights
beyond those available to Clyde c. Cole under the Act at the time
of the
ling of this actiono
Individual Complainant, Mro Coleu has substituted David Po
Koppelmanu Esq.u International Union of Operating Engineers,
Local 12, AFL-CIO, as his attorney by a pleading filed on January 17, 19910 This Union had previously "intervened" for this
purpose
this proceeding by a pleading received June 9, 19900
Through Attorney Koppelmanu Complainant opposes the Secretary of
Laborus request for dismissal of this proceeding. It appears
that Complainant Cole wishes to continue this proceeding originally brought by the Secretary of Labor by substituting himself
as Complainant" Howeverq Section 105(c) of the Act apparently
contemplates two situations: (a) where the Secretary brings the
action under Section 105(c)(2)? and (b) where, if the Secretary
Mupon investigation~ declines to prosecute, the action is brought
under Cc)(3) by the individual complainant in his own behalf.
Here, after proceeding to prosecute under 105(c)(2), the Secretary, upon further investigation, has determined a violation did
not occur and seeks dismissal of this (c)(2) action. Such rights
as Mr. Cole has would appear to be provided in Section 105(c)(3)
of the Act.

142

I do not rule on or delineate such at this point. The request of
the Secretary of Labor is found·authorized and dismissal of this
proceeding is found warranted, since the party charged with the
responsibility bringing the prosecution (MSHA) no longer feels a
violation was committed by Respondent.
ORDER DISMISSING PROCEEDING
The motion of the Secretary of Labor to withdraw her complaint is GRANTED and, pursuant to the provision of Commission
Procedural Rule 11 (29 C.F.R. § 2700.11), this proceeding is
DISMISSED with prejudice to the Secretary of Labor to renew any
further prosecution as provided in Paragraph III of the aforesaid
Stipulation for Dismissal between the Secretary of Labor and
Respondent.

•

. _?-7

~,,dd.L ~- ~~-I;$.Michael A. Lasher, Jr.
Law Judge

Administra~ive

Distribution:
David P. Koppelman, Esq., International Union of Operating Engineers, Local 12, 150 East Corson Street, Pasadena, CA 91103
(Certified Mail)
Susanne Lewaldu Esqov Office of the Solicitoru U.S. Department of
Laboru 71 Stevenson Streetu Suite lllOu San Franciscou CA 94105
(Certified Mail)
Michael G. McGuinness, Esq., O'MELVENY & MYERS, Canyon Country
Enterprises, d/b/a Curtis Sand and Gravel Corporation, 400 South
Hope Streetu Los Angeles, CA 90071-2899 (Certified Mail)
Dana R. Corey, Esq.u GILL & BALDWIN, 1444 North Brand Boulevard,
Glendale, CA 91203 (Certified Mail)
Mro Clyde Co Cole 0 8237 Soledad Canyon Road, Acton, CA 93510
(Certified Mail)
/ek

143

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

JAN 23 1991
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 90-302
A.C. No. 46-01318-03959

v.
Robinson Run No. 95 Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Before:

Wanda,Johnson, Esq., U.S. Department of Labor,
Office of the Solicitor, Arlington, VA, for the
Petitioner;
Walter J. Scheller, III, Esq., Consolidation Coal
Co., Pittsburgh, PA 15241, for the 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 (the Act). At the hearing, the parties filed
a motion to approve a settlement agreement and to dismiss the
case. Respondent has agreed to pay the proposed penalty of $l504
fullo
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.

I

WHEREFORE, the motion for approval of settlernenti is GRANTED,
and it
ORDERED that respondent pay a penalty of $1504 within
3 o days of this order.
'I .

~

1

t!~t~.\\ 1_/L'-\
.

.

. Jdminisfrative L~w Judge
,

•\
; I

I

'.

I

144

\I

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

JAN 2 3 1991
USS, A DIVISION OF USX CORP.,
Contestant

CONTEST PROCEEDINGS

v.

Docket No. LAKE 90-28-RM
Citation No. 3469434; 1/3/90

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
LOCAL UNION NO. 1938,
UNITED STEELWORKERS_OF
AMERICA, DISTRICT·NO. 33,·
Representative of Miners

Docket No. LAKE 90-29-RM
Order No. 3469:435; 1/3/90

...

Docket No. LAKE 90-30-RM
Order No. 3469437; 1/3/90
Docket No. LAKE 90-31-RM
Order No. 3469438; 1/8/90
Docket No. LAKE 90-32-RM
Order No. 3469439; 1/8/90
Docket No. LAKE 90-33-RM
Order 3469440; 1/8/90
Docket No. LAKE 90-36-RM
Order No. 3469471; 1/24/90

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

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 90-35-M
A.C. No. 21-00820-05588
Docket No. LAKE 90-65-M
A.C. No. 21-00820-05594

USX CORPORATION,
Respondent

Docket No. LAKE 90-66-M
A.C. No. 21-00820-05595

LOCAL UNION NO. 1938,
UNITED STEELWORKERS OF
AMERICA, DISTRICT NO. 33,
Representative of Miners

Docket No. LAKE 90-92-M
A.C. No. 21-00820-05599

Minntac Plant

145

DECISION

Appearances:

Before:

Billy M. Tenant, Esq., Pittsburgh, Pennsylvania,
for USS, a Division of usx Corp. (USS); Miguel J.
Carmona, Esq., Office of the Solicitor, U.S.
Department of Labor, Chicago, Illinois for the
Secretary of Labor (Secretary) ;
James Ranta, Staff Representative, United,
Steelworkers of America, Virginia, Minnesota, for
for the Representative of Miners (USWA).

Judge Broderick

The above proceedings involve one citation and six
withdrawal orders concerning which USS has filed notices of
contest, and 16 alleged safety violations charged in 10 citations
and 6 withdrawal orders (including the contested citation and
orders) for which the Secretary seeks civil penalties. The
citations and orders were issued between November 28, 1989, and
January 24, 1990, during an inspection at the Minntac Plant.
Therefore, they were consoliqgted for purposes of hearing and
decision. Local Union 1938, USWA requested and, without
objection, was granted party status in the proceeding. Pursuant
to notice the case was called for hearing in Duluth, Minnesota,
on October 17 and 18, 1990. James King and John Keating
testified on behalf of the Secretary; John Keating also testified
on behalf of USWA; Ronald Rantala, Bruce Long, Tom Hakala, and
Randall Pond testified on behalf of USS. All parties have filed
post hearing briefs. I have considered the entire record and the
contentions of the parties and make the following decision.
FINDINGS OF FACT

USS is the owner and operator of the Minntac Plant located
in Sto Louis County, Minnesota. It produces taconite pellets
from low-grade iron ore. The plant includes a mine, a crusher, a
concentrator and an agglomerator. During the year prior to the
citations and orders involved herein, approximately 1,159,284
hours of work were performed at the Minntac Plant, and over 3
million hours were performed by the controlling entity. USS is a
large operator. Between January 24p 1988 and January 23, 1990,
there were 414 paid violations of mandatory health and safety
standards at the subject facility, including 178 assessed
violations of 30 C.F.R. § 56.11001, and 28 assessed violations of
30 C.F.R. § 56.20003. In view of the size of the facility, this
history is not such that penalties otherwise appropriate should
be increased because of it. Payment of the proposed penalties in
these cases will not affect the ability of USS to continue in
business. All of the citations and orders involved in these
proceedings were abated promptly and in good faith.
The inspection which resulted in the citations and orders
was of the milling facility of the plant and particularly, the
agglomerator.
The agglomerator is the last step in the taconite

146

producing process, and the pellets are formed there.
It is
located in two separate buildings, each with six floors. One
building has about 800,000 square feet of floor space, the other
about 400,000. There are 169 conveyor belts in one building and
125 in the other. They carry approximately 52,000 tons of
material each day in order to produce about 41,000 tons of
pellets. About 240 miners are employed in the agglomerator.
CITATION 3444248

on November 28, 1989, a citation was issued for an alleged
violation of 30 C.F.R. § 56.11001 because an area of the washdown
floor in the agglomerator was covered with wet slurry across the
entire walkway. There were also washdown hoses lying on the
floor. The slurry was about 1 or 2 inches deep and covered an
area of about 20 feet by 30 feet.
No one was cleaning the area
when the citation was issued, and no employees were present in
the area. The area was frequently used as a travelway to other
areas of the plant. It was not the sole route to these areas
however. The violation was abated the following day when the
cited area was cleaned.
CITATION 3469424

On January 2, 1990, a citation was issued for an alleged
violation of 30 C.F.R. § 56.20003 because of an accumulation of
dust and other extraneous materials including tools on a walkway
adjacent to a conveyor belt. There was also dust on machinery in
the area of the walkway. The dust on the walkway was about 1 to
2 inches deep. The walkway was about 10 feet wide and 60 to 70
feet long. Dust on the machinery was 4 to 5 inches deep.
Employees did not regularly work in the area, and no one was in
the area at the time the citation was issued. Footprints were
seen in the dust. The violation was abated on or before the
termination datep January 8v when the walkway was cleaned.
CITATION 3469425

This citation was issued January 2; 1990, alleging a
violation of 30 CoFoRo § 56020003 because of an accumulation of
dust I' hoses and tools on an eleva.ted walkway adj a cent to the head
end of the conveyoro No employees were working in the area and
it was travelled only infrequently. The accumulation varied from
1 to 2 inches deep and covered an area of about 20 feet by 20
feet"
On the day in question the wash pumps were inoperative,
and it was not possible to hose down the area. The pumps had
been down for about 3 days. The violation was abated on or
before the termination date of the citation when the walkway was
cleaned.
CITATION 3469426

This citation was issued January 2, 1990, charging a
violation of 30 C.F.R. § 56.11001 because of an accumulation of

147

ore up to 8 inches deep along a walkway. The area covered was
approximately 10 feet by 3 feet. The material was dry . This
area also could not be washed down because the pump was
inoperative. The conveyor was seldom used and employees worked
infrequently in the area. .However, there were footprints and a
heater in the cited area. The violation was abated on or before
the termination date when the walkway was cleaned.
CITATION 3469427

A violation of 30 C.F.R. § 56.20003 was charged because of
an accumulation of ore, hoses and other materials along a walkway
adjacent to a conveyor. The walkway was used by attendants who
were supposed to clean the areas where they worked. As in the
previously cited areas, this area could not be washed down
because the pump was inoperative. The violation was abated on or
before the termination date when the walkway was cleaned.
CITATION 3469428

A violation of 30 C.F.R .. § 56.20003 was cited because slurry
and ore as well as hoses were permitted to accumulate in a
walkway of a washdown floor. The slurry and ore accumulation
varied from 1 to 3 inches deep.
It was slippery. Employees were
not working in the area at the time the condition was cited. The
area had been partially washed down before the pumps became
inoperative. The violation was abated on or before the
termination date when the walkway area was cleaned.
CITATION 3469429

A violation of 30 C.F.R. § 56.11001 was alleged because of
an accumulation of slurry in a walkway of a washdown floor. The
accumulation was 3 to 4 inches deep and covered an area 5 feet
wide and approximately 500 feet longo Hoses were lying on the
walkwayv some of them buried in the slurryo The area was not
normally travelledo The slurry resulted from an overspill from
the filtero The violation was abated on or before the
termination date when the walkway was cleaned.
CITATION 3469431

A violation of 30 C.F.R. § 56.11001 was alleged on January
3 1990r because of an accumulation of slurry and dry ore in the
center walkway of a washdown floor.
Part of the accumulation was
wet and part was dryo The area was not frequently travelled, but
it was necessary to travel it for maintenance purposes. The
violation was abated on or before the termination date when the
area was cleaned.
CITATION 3469433

A violation of 30 C.F.R. § 56.11001 was charged because of
an accumulation of slurry on a walkway between two conveyors.

148

The slurry was 4 to 6 inches deep and covered the entire walkway,
150 feet long and 5 feet wide. It was very wet and very
slippery. The walkway was used relatively infrequently for
maintenance of the conveyors. No employees were in the area at
the time the citation was issued. The violation was abated on or
before the termination date when the walkway was cleaned.
CITATION 3469434

This citation was issued on January 3, 1990, and charges an
unwarrantable failure violation of 30 C.F.R. § 56.11001. It was
issued under section 104(d) (1) of the Act. The inspector
originally told USS that he was going to issue a 104(a) citation.
However, he informed USS by telephone on January 4 that the
citation would be issued under section 104(d) (1). The written
citation was actually delivered on January 8. The citation
charges a violation because of an accumulation of slurry 1-1/2
inches in depth, 10 feet wide and 90 to 100 feet long. There
were footprints in the slurry and hoses lying across the walkway.
Several employees used the walkway. The washdown hoses were
inoperative at the time. The condition was abated prior to the
termination date when the area was barricaded and the walkway
cleaned up.
ORDER NO. 3469435

on January 3, 1990, Inspector King issued a 104(d) (1)
withdrawal order alleging an unwarrantable failure violation of
30 C.F.R. § 56.11001 because of an accumulation of fine dry ore
along both sides of an elevated walkway adjacent to a conveyor.
The accumulation was conically shaped and covered the entire
walkway and was up to 10 inches in depth. The walkway was used
for maintenance purposes and was the only access to the conveyor.
There were no employees in the area at the time of the citation.
The condition was abated on January 8v 1990 1 when the area was
barricaded and cleaned up.
ORDER NO. 3469437

The inspector issued a l04(d) (1) order for a condition
observed on January 3u 1990u alleging a violation of 30 C.F.R.
§ 56.llDlo
Initially Inspector King informed USS that he would
issue a 104(a) citation for the condition. On January 4, 1990,
he informed USS by telephone that he was going to issue a
104(d) (1) order" The written order was served on USS on
January 8. Ore was present on a walkway around a tail pulley of
a conveyor. The accumulation was approximately 2 to 3 feet deep
on both sides of the tail pulley and covered about two-thirds of
the walkway.
The area was not frequently travelled, but was
used by maintenance workers and supervisors. A sign was present
restricting access to the area. The condition was abated by
barricading and cleaning the area.

149

ORDER NO. 3469438

on January 8, 1990, Inspector King received written
complaints from miners given him by the union safety
representative all having to do-with cleanup problems at the
plant. the inspector found piles of fine dry ore and a buildup .
of slurry across the entire floor of the washdown floor. There
were footprints in the material indicating that it had been
present for some time. The Union safety committeeman had pointed
out the problem to USS some days previously. At the time of the
inspection, two employees were cleaning the area with a water
hose. The area was used by maintenance workers and operational
personnel. None were in the area at the time the order was
issued. The area was not barricaded, nor were any warning signs
posted. In early January 1990, USS was attempting to reclaim the
frozen chunks of concentrate, and it overloaded its reslurrying
system, causing a major spill on the washdown floor. This
occurred on and prior to January 7. USS has a cleanup program
for the agglomerator plant, and additional men were assigned to
clean up after the spill. The order was terminated February 13,
1990, after the area was barricaded and cleaned up. It had been
cleaned up by the end_of January.
ORDER NO. 3469439

On January 8, 1990, Inspector King, again acting on a
miner's complaint, issued a 104(d) (2) order alleging a violation
of 30 C.F.R. § 56.11001 because the floor of classifier pit,
approximately 30 feet by 30 feet, was covered with slurry and
water up to 1 foot in depth. The pumps had overflowed causing
the accumulation. The area was travelled by miners once or twice
each shift to check the pumps. No one was in the area when the
order was issued. The area had been cited many times previously
for accumulation problems. the order was terminated January 31,
1990v after the area was barricaded and cleaned up.
ORDER NO. 3469440

This order was issued on January 8, 1990, following a
miner's complainto It alleges a violation of 30 C.F.R.
§ 56.11001 for an accumulation of water and slurry on ~he floor
of another classifier pit. The accumulation was about 1 foot
deep and covered an area of about 25 feet by 30 feet. The area
was used by maintenance personnel to service the pumps. The
condition was similar to that cited in order No. 3469439 and
resulted from the same problem. The area was not barricaded or
posted. The order was terminated on January 22, 1990u after the
area was barricaded and cleaned up.
ORDER NO. 3469471

On January 24, 1990, Inspector King issued a 104(d) (1) order
alleging a violation of 30 C.F.R. § 56.11001, for an accumulation
of wet slurry on a travelway around a conveyor tail pulley. The

150

accumulation was from one to eight inches deep and covered an
area of 20 feet wide and 60 feet long. The wet slurry was very
slippery. Footprints were seen in the walkway. The walkway was
not heavily travelled. No one was cleaning in the area when the
order was issued. The order was terminated on January 25, 1990,
after the area was barricaded and the slurry was hosed away.
STATUTORY PROVISION

Section 104(d) (1) of the Mine Act provides as follows:
(d) (1) If, upon any inspection of a coal or
other mine, an authorized representative of
the Secretary finds that there has been a
violation of any mandatory health or safety
standard, and if he also finds that, while
the conditions created by such violation do
not cause imminent danger, such violation is
of such nature as could significantly and
substantially contribute to the cause and
effect of a coal or other mine safety or
health hazards, and if he finds such
violation to be caused by an unwarrantable
failure of such operator to comply with such
mandatory health or safety standards, he
shall include such finding in any citation
given to the ope~ator under this Act. If,
during the same inspection or any subsequent
inspection of such mine within 90 days after
the issuance of such citation, an authorized
representative of the Secretary finds another
violation of any mandatory health or safety
standard and finds such violation to be also
caused by an unwarrantable failure of such
operator to so comply, he shall forthwith
issue an order requiring the operator to
cause all persons in the area affected by
such violation, except those persons referred
to in subsection (c) to be withdrawn from,
and to be prohibited from entering, such area
until an authorized representative of the
Secretary determines that such violation has
been abated.
(2) If a withdrawal order with respect to
any area in a coal or other mine has been
issued pursuant to paragraph (1), a
withdrawal order shall promptly be issued by
an authorized representative of the Secretary
who finds upon any subsequent inspection the
existence in such mine of violations similar
to those that resulted in the issuance of the
withdrawal order under paragraph (1) until
such time as an inspection of such mine
discloses no similar violations. Following

151

an inspection of _such mine which discloses no
similar violations, the provisions of
paragraph (1) shall again be applicable to
that mine.
REGULATIONS

30 c.F.R.

§

57.11001 provides as follows:

Safe means of access shall be provided and
maintained to all working places.
30 C.F.R.

§

56.20003 provides as follows:

At all mining operations-( a) Workplaces, passageways, storerooms,
and service rooms shall be kept clean and
orderly;
(b) The floor of every workplace shall be
maintained in a clean and, so far as
possible, dry condition. Where wet processes
are used, drainage shall be maintained, and
false floors, platf'orms, mats, or other dry
standing places Shall be provided where
practicable; and
(c) Every floor, working place, and
passageway shall be kept free from protruding
nails, splinters, holes or loose boards, as
practicable.
ISSUES
lo Whether the violations charged in the citations and
orders were established by the evidenceo

lao Whether to establish the violations chargedp
it is necessary to show that employees were actually working
in the cited areas when the citations and orders were
issued.
2o
Whether the violations charged in citations 3444248 and
3469434 and in order 3469438 were properly designated significant
and substantialo
3o
Whether the violations charged in citation 3469434 and
Orders 3469435, 3469437, 3469438, 3469439, 3469440 and 3469471
were the result of USS's unwarrantable failure to comply with the
cited standards and whether the citation and orders were properly
issued.

4. If the violations are established, what are the
appropriate penalties.

152

CONCLUSIONS OF LAW
I

USS is subject to the provisions of the Mine Act in the
operation of the Minntac Plant and I have jurisdiction over the
parties and subject matter of these proceedings.
II

The safety standard contained in 30 C.F.R. § 56.11001
requires mine operators to provide and maintain safe means of
access to all working places. I interpret this to require that
all ordinarily used travelways be kept clear of slipping and
tripping hazards. I do not accept the argument that only
designated travelways are covered by this standard. I conclude
that all walkways or passageways used by miners, whether they are
engaged in maintenance, cleaning or production are covered by the
standard. I interpret working places to include all areas where
work is ordinarily performed. I do not accept USS's argument
that the standard only appli~s to areas where work is being
performed at the time the violation is cited. such an
interpretation is unrealistic, and not in keeping with the
promotion of health and safety envisioned by the Mine Act.
III

The safety standard contained in 30 C.F.R. § 56.20003
requires mine operators to keep workplaces and passageways clean
and orderly; it requires them to keep workplace floors clean and,
so far as possible, dry, and to maintain drainage and dry
standing places where wet processes are used. As in my
interpretation of § 56.11001, I conclude the standard applies to
all workplaces and passageways, even though no work was being
performed at the time of the cited violationsu and even though
the passageways were not designated or regularly used as such.
The standard recognizes that some operations will result in wet
conditions: the issue in each of the cited violations is whether
there were excessive amounts of dust, dirt, slurry, etc., in the
cited areaso
It is not clear in the citations and orders involved herein,
why some were issued under § 56.11001 (safe means of access to
working places) 1 and some under§ 56.20003 (housekeeping
requirements)
Most of th~ violations charged under either
standard involve walkwayso There is an overlap in the
requirements of the two standards, however, and I do not find
that any of the citations or orders improperly cited one standard
or the other.
o

153

IV

The evidence concerning citation 3444248 shows that portions
of a walkway 20 feet by 30 feet were covered with 2 inches of
slippery slurry. There were also hoses buried in the slurry.
The area was a washdown floor, and employees had been assigned to
clean it. However, no one was cleaning it at the time it was
cited. The condition rendered the walkway unsafe. A violation
of 30 C.F.R. § 56.11001 is established. It was moderately
serious and the result of ordinary negligence.
citations 3469424 and 2469425 were issued because of dust
and other materials on walkway. In both cases, the accumulation
had existed for some time. The walkways were not frequently
used. Violations of 30 C.F.R. § 56.20003 are established. They
were not serious but resulted from USS's negligence.
citation 3469426 charged a violation of § 56.11001 because
of an accumulation of ore on a walkway up to 8 inches deep
covering an area of 10 feet by 3 feet. Employees seldom entered
the area. The condition had existed for some time. It was
moderately serious and resulted from more than ordinary
negligence.
citations 3469427 and 3469248 both charge violations of
56.20003 because of ore, hoses and other materials (427), and
slurry and ore (428). Both cases involve walkways and extensive
areas. Both were low traffic areas. I conclude that the
violations were established; that they are not serious and were
the result of negligence.
§

Citations 3469429, 3469431, and 3469433 charge safe access
violations: § 56.11001. Each involves a substantial
accumulation of wet slurry on walkways. The areas were not
frequently travelled. The extent of the accumulations make the
violations moderately serious. They resulted from USS negligence
which was mitigated to some extent by the fact that the pumps
needed for cleanup were inoperative.
Citation 3469434 was issued under section 104(d} (1) charging
a violation of § 56.11001 because of an accumulation of slurry
along a walkway with hoses ·lying across the walkway. The walkway
was used by a large number of employees. It posed a hazard to
such employees and a violation was established. It was serious
and resulted from the negligence of USS.
Orders 3469435, 3469437, 3469438, 3469439, and 3469440 were
issued under section 104(d) (1) and charge violations of §
56.11001 because of accumulations of ore along walkways, slurry
along walkways, slurry and water covering the entire floor. In
each instance, I conclude that a violation was established. In
each case it was moderately serious and the result of the
negligence of USS. The negligence concerning the violation

154

charged in order 3469437 is mitigated by the fact that a sign
restricting access was present.
Order 3469471 charges a violation of § 56.11001 because of
an accumulation of wet slurry along an infrequently used walkway.
A violation was established. It was not serious but was the
result of negligence.

v
Citations 3444248 and 3469434 and Order 3469438 charge·
violations of a significant and substantial nature. The
Commission has held that a violation is significant and
substantial if there is a reasonable likelihood that the hazard
contributed to by the violation will result in an injury of a
reasonably serious nature. Mathies Coal Company, 6 FMSHRC 1
(1984); U.S. Steel Mining, Incorporated, 6 FMSHRC 1834 (1984).
In each of the violations involved here, substantial areas of
accumulation were involved. The walkways were frequently
travelled. Both slipping and tripping hazards were present. I
conclude that in each instance, serious injuries were likely to
result. The violatiq_ns were'significant and substantial.
VI

citation 3469434 and Orders 3469435, 3469437, 3469438,
3469439, 3469440, and 34694471 were issued under section
104(d) (1) and charge that the violations were the result of the
unwarrantable failure of USS to comply with the standard in
question. In Emery Mining Corp., 9 FMSHRC 1997 (1987), the
Commission stated that unwarrantable failure means aggravated
conduct, constituting more than ordinary negligence. I conclude
that the Secretary has failed to establish such aggravated
conduct in relation to any of the cited instances. There were a
large number of violations of the standards involved herein.
Miners had complained of cleanup problems on many occasions. On
the other hand, mitigating circumstances were present in that the
water pumps were inoperative for a period of time. USS had
devoted substantial overtime work to attempt to alleviate the
problems. Negligence was established; unwarrantable failure was
not
The violations were not properly written under section
0

104 (d)

0

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

1. Citations 3444248, 3469426, 3469429, 3469431, 3469433,
3469424, 3469425, 3469427 and 3469428 are AFFIRMED, Citation
3444248 including its special finding of a significant and
substantial violation.

155

2.
Citation 3469434 and Orders 3469435, 3469437, 3469438,
3460439, 3469440 and 3469471 are MODIFIED to 104(a) citations; the
unwarrantable failure finding is removed.
3. The contest proceedings are thus GRANTED IN PART, in that
the unwarrantable failure finding is removed, and DENIED IN PART in
that the violations are AFFIRMED.
4.
Guided by the criteria in section llO(i) of the Act, I
conclude that the following civil penalties are appropriate for the
violations and USS shall, within 30 days of the date of this
decision pay civil penalties as follows:
CITATION

PENALTY

3444248
3469426
3469429
3469431
3469433
3469434
3469435
3569437
3569438
3469439
3469440
3469471
3469424
3469425
3469427
3469428

$ 250
350
400
400
400
750
750
600
750
750
750
200
200
200
200
200

TOTAL

$7150

/
A/:..-//;/;
fl/t -nc _s __ -'1' -,_, J" 1::Yk'!,_, ?:~/t:_,

J

James A. Broderick
Administrative Law Judge

Distribution~

Billy Mo Tennant, Esq., USS, A Division of USX Corporation, 600
Grant Street, Room 1580, Pittsburgh, PA 15219-4776 (Certified Mail)
Miguel Carmona, Esq., U.S. Department of Labor, Office of the
Solicitor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)
James Ranta, United Steelworkers of America, Loca11938, 307 First
street North, Virginia, MN 55792 (Certified Mail)
slk

156

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

JAN 2.4 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 89-201
A.C. No. 15-16040-03411

v.

Docket No. KENT 89-241
A.C. No. 15-16040-03512

KEITH LEWALLEN AND
CHARLES PATTERSON, d/b/a
TIPPY COAL COMPANY,
Respondents

Docket No. KENT 89-263
A.C. No. 15-16040-03515
Docket No. KENT 90-1
A.C. No. 15-16404-03516
Docket No. KENT 90-55
A.C. No. 15-16040-03517
No. 1 Mine
DECISION

Appearances~

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
D. Randall Jewell, Esq., Millward and Jewell,
Barbourville, Kentucky, for Respondent Keith
Lewallen;
Michael Caperton, Esq., London, Kentucky, for
Respondent Charles Patterson.

Before:

Judge Fauver

These consolidated cases for civil penalties under § llO(i)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801
seg., came on for hearing in London, Kentucky, on
November 27, 1990. On the second day of the hearing, the parties
moved for approval of a settlement agreement.
For the reasons
stated on the record, the motion was granted.
This decision
confirms the bench decision granting the motion to approve
settlement.

157

ORDER
WHEREFORE IT IS ORDERED that:
1.
The parties' motion to approve settlement, presented at
the hearing, is GRANTED.

2. Respondents Charles Patterson and Keith Lewallen, doing
business as Tippy Coal Company, are both found to be operators
within the meaning of the Act.
3. Each of the citations and orders for which civil
penalties are sought in these proceedings is AFFIRMED.
4.
Respondents shall pay civil penalties of $11,338.00 in
the monthly payments set forth below, provided: Respondent Keith
Lewallen's liability (which is joint and several with the
liability of Respondent Charles Patterson) is limited to $400.00:

January 27, 1991 - $500.00
February 27, 1991 - $500.00
March 27, 19-91 - $560.00
April 27, 1991 - $500.00
May 27, 1991 - $500.00
June 27, 1991 - $500.00
July 27, 1991 - $500.00
August 27, 1991 - $500.00
September 27, 1991 - $500.00
October 27, 1991 - $500.00
November 27, 1991 - $500.00
December 27, 1991 - $500.00
January 27, 1992 - $500.00
February 27, 1992 - $500.00
March 27, 1992 - $500.00
April 27, 1992 - $500.00
May 27, 1992 - $500.00
June 27, 1992 - $500.00
July 27, 1992 - $500.00
August 27, 1992 - $500.00
September 27, 1992 - $500.00
October 27, 1992 - $838.00
5. The failure of the Respondent Charles Patterson to make
any one of the monthly payments ordered herein without the prior
consent of the District Manager, District 7, of the Mine Safety
and Health Administration, Unites states Department of Labor,

158

shall cause the entire amount of remaining payments to be
immediately due and payable.

C;);d~ ~Vfrl-

William Fauver
Administrative Law Judge

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
D. Randall Jewell, Esq., Millward and Jewell, P.O. Box 650,
Barbourville, KY 40906 (Certified Mail)

Michael Caperton, Esq., P.O. Box 5130, London, KY 40745
(Certified Mail)
/fb

159

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

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

JAN 2 4 1991

DISCRIMINATION PROCEEDING

RONALD L. SHRIVER,
Complainant
v.

Docket No. WEVA 90-286-D
MORG CD 90-09

CONSOLIDATION COAL COMPANY,
Respondent

Osage No. 3 Mine

ORDER OF DISMISSAL

Before:

Judge Melic~ ,

Complainant requests approval to withdraw his Complaint in
the captioned case on the grounds that the parti~s have reached a
mutually agreeable settlement. Under the circumstances herein,
permission to withdraw is granted. 29 C.F.R. § 2700.11. This
case is therefore dismissed and the h. a. rings sche'ldul.ed

r;~~f

January 30, 1991, are accordingµ

\

o~~~

!Gary e~J.Ck \
: \µ ·
Admin·stration\r.aw Judge
( 703) ;756-6261 \J

I

Distribution~

1

f!
I

Allen Karlin, Esq., 174 Chancery Row, Morgantown, WV
(Certified Mail)

26505

Walter Scheller III, Esq.~ Consolidation Coal Companyu Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified
Mail)
nb

160

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

JAN 2 4 1991
CIVIL PENALTY PROCEEDING

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

Docket No. 'cENT 90-95-M
A.C. No. 34-01285-05502 AFS

v.
Meridian Aggregates Co.
EXPLOSIVES TECHNOLOGIES
INTERNATIONAL, INC.,
Respondent
DECISION

Appearances:

Before:

Janice L. Holmes, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for the
Secretary of Labor (Secretary);
Volker E. Schmidt, President, Explosives
Technologies International, Inc., for Respondent.

Judge Broderick

STATEMENT OF THE CASE

The Secretary seeks civil penalties for two alleged
violations of mandatory health and safety standards. Pursuant to
noticeu the case was called for hearing in Kansas City, Missouri,
on December 13, 1990c Norman Lavalle, Richard Goff, and Steve
Viles testified on behalf of the Secretary" Volker Schmidt
testified on behalf of Respondent. At the completion of the
hearing, both parties argued their positions on the record and
waived the right to file post hearing briefs.
I have considered
the entire record and the contentions of the parties in making
the following decision.
FINDINGS OF FACT

1.
In November 1989 and January 1990, Respondent was a
contractor at the site of a mine owned and operated by Meridian
Aggregates. Meridian produced crushed granite. Respondent did
drilling under contract with Meridian.
2. Respondent's operation is small.
Between May 17, 1989
and the date of the citations involved herein, three violations
were issued to Respondent at the Meridian facility. This history
is not such that penalties otherwise appropriate should be
increased because of it.

161

3. on November 21, 1989, Federal Mine Inspector Norman
Lavalle conducted a noise survey at the Meridian Aggregates Mine.
He attached a dosimeter to the operator of an Atlas Copco 712
drill employed by Respondent.
It disclosed noise exposure of
2.94 times the exposure limit, equivalent to 98 dba for an 8 hour
shift. A citation was issued for a violation of 30 C.F.R. §
56.5050(b).
4. On January 10, 1990, a compliance assistance inspection
was conducted by Inspector Lavalle and MSHA District health
specialist Steve Viles. Viles was of the opinion that a noise
barrier shield could be used on the Atlas Copco 712 drill to
reduce the noise exposure for the drill operator.
5. Respondent leased the Atlas Copco Drill from the Mining
Supply and Equipment Company, paying $5500 per month.
6. The operator of the drill was wearing personal hearing
protection at the time the citation was issued.
7. The citation was terminated on January 10, 1990. The
Atlas Copco was replaced by another drill and Respondent informed
MSHA that the Atlas Copco would be removed from the property.
8. On January 10, 1990, the boom support structure of
Respondent's Robbins Drill had cracks in the metal. The drill
was not being operated at the time.
Its clutch was being
repaired. A citation was issued for a violation of 30 C.F.R. §
56.7002.
9. The cracks in the structure had been present for some
time, as there was oil and grease found in the crack.
lOo The citation was terminated February 26, 1990 after the
boom support structure was repaired by welding it.

REGULATIONS

30 C.F.R. § 56.5050 provides that when an employee's noise
exposure exceeds the equivalent of 90 dBA per 8 hours of
exposure, Vifeasible administrative or engineering controls shall
be utilized.
If such controls fail to reduce exposure to within
permissible levels, personal protection equipment shall be
provided and used . . . . 11
30 C.F.R. § 56.7002 provides as follows:
Equipment defects affecting safety shall be
corrected before the equipment is used.
CONCLUSIONS OF LAW

162

1. Meridian Aggregates is a mine and Respondent is an
independent contractor performing services at the mine.
Therefore it is an operator. I have jurisdiction over the
parties and subject matter of this proceeding •.
2. on November 21, 1989, a drill operator employed by
Respondent was exposed to a noise level in excess of that
specified in the table contained in 30 C.F.R. § 56.5050.
3. There were feasible administrative and engineering
controls which could have been utilized to reduce the noise level
to which the employee was exposed.
4. The fact that the drill was not owned but was leased by
Respondent is not a defense to a charge of violation of the noise
standard. The evidence establishes a violation of 30 C.F.R.
§ 56.5050(b).
'
5. The violation was not serious. It resulted from
Respondent's ordinary negligence. It was abated within the time
set for termination as extended. I conclude that an appropriate
penalty for the vio~ation is '$so.
6. on January 10, 1990, there were cracks in the metal of a
drill boom support structure. The drill was not being operated
at the time the condition was discovered because its clutch was
being repaired. The cracks had existed for some time. The
evidence establishes a violation of 30 C.F.R. § 56.7002.
7. The violation was not serious. It resulted from
Respondent's ordinary negligence. It was abated within the time
set for termination. I conclude that an appropriate penalty for
the violation is $50.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
i.

citations 3283281 and 3271867 are AFFIRMED.

2. Respondent shall within 30 days of the date of this
decision pay the Secretary the sum of $100 for the violations
found herein.

j;~~~: ~4!;~:~:::!

Administrative Law Judge

163

Distribution:
Janice L. Holmes, Esq., U.S. Department of Labor, Office of the
Solicitor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Mr. Volker E. Schmidt, Explosives Technologies International,
P.O. Box J, Greenwood, MO 64034 (Certified Mail)
slk

164

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

JAN 29 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 90-186
A.C. No. 46-06647-03555

v.
No. 1 Deep Mine
BETHEL FUELS INCORPORATED,
Respondent
DECISION APPROVING SETTLEMENT
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). Petitioner has filed a motion to
approve a settlement agreement and to dismiss the case.
Respondent has agreed to pay the proposed penalty of $600 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 G
TED,
and it
ORDERED that Respondent pay a penalty of $600 wi. hin
30 days of this ordero The hearings previously scheduled 'n this
case are accordingly cancelledo

ary Mel ·

/f.fiv~l

Distribution~

Pamela S, Silverman, Esq., U.S. Depart
the Solicitor, 4015 Wilson Blvd., Rm.
(Certified Mail)

of Labo ,,, Off ice of
Arlington, VA 22203

Mr. Junior Golden, Vice President, Bethel Fuels, Inc., Route 7,
Box 510, Morgantown, WV 26505
(Certified Mail)

ml

165

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

JAN 311991
DISCRIMINATION PROCEEDING

CHARLES T. SMITH,
complainant

v.

Docket No. KENT 90-30-D
BARB CD 89-27

KEM COAL COMPANY,
Respondent

DECISION
Appearances:

Michaels. Endicott, Esq., Ed Spencer's Law
Offices, Paintsville, Kentucky, for the
Complainant;
Timothy Joe Walker, Esq., Reese, Lang & Breeding,
P.s.c., London, Kentucky, for the Respondent.

Before:

Judge Fauver

By decision of October 31, 1990, Respondent was found to
have discharged Complainant in violation of § lOS(c) (1) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq. Based upon that decision, the parties stipulated damages
and costs (except an attorney's fee) in the amount of $21,864.18,
including interestu through October 31, 1990.
Complainant also seeks an attorney fee of $7,500.00, and an
order establishing an attorney fee of $150.00 an hour for any
future legal work on appe~l of this case.
Respondent opposes the proposed attorney fee and seeks a
reduced award" The record indicates that counsel for Complainant
has expended 30.15 hours in legal work in this case thus far. It
further indicates that a reasonable and customary fee for
comparable cases in the Eastern Kentucky area is $150.00 an hour.
In determining a reasonable attorney fee, the recognized
starting point is the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate. A reasonable
hourly rate is defined as that prevailing in the community for
similar work.
once established, this computation may be
adjusted upward or downward for unusual or special circumstances.
I find that this case does not present unusual or special
circumstances warranting an adjustment of a computation based on
an hourly rate of $150.00.

166

FINAL ORDER
Respondent, Kem coal Company, shall immediately pay
Complainant (1) $21,864.18, reflecting back pay and other
stipulated damages with interest through October 31, 1990, and
(2) damages, with interest, incurred since October 31, 1990,
until Complainant is reinstated or rejects a bona fide offer of
reinstatement.
Respondent, Kem Coal Company, is FURTHERED ORDERED to pay
Complainant's attorney an attorney fee of $4,522.50, based on a
hourly rate of $150.00 for 30.15 hours expended on this
litigation, and a future fee based on an hourly rate of $150.00
for any legal work reasonably expended on this matter after the
date of this decision.
This Decision and the Decision of October 31, 1990,
constitute a final disposition of this matter.

4i~al;aMj/eA.-

Administrative Law Judge

Distribution:
Michaels. Endicott, Esq., L.E., "Ed" Spencer and Associates,
83 Main Street, P.O. Box 1176, Paintsville, KY 42140
(Certified
Mail)
Timothy Joe Walkeru Esqov Reece, Lang & Breeding, P.S.C., London
Bank & Trust Building, 400 South Main Street, P.O. Drawer 5087,
London, KY 40745-5087 (Certified Mail)
/ml

167

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

January 31, 1991

CIVIL PENALTY PROCEEDING

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

Docket No. SE 90-124
A. C. No. 01-00323-03638

v.

Chetopa Mine

DRUMMOND COMPANY, INC.,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY

Before:

Judge Merlin

The parties have filed a joint motion to approve settlement
of the two violations involved in this case.
The originally
assessed penalty was $790 and the proposed settlement is $690.
The parties discuss the violations in light of the six statutory
criteria set forth in section llO(i) of the Federal Mine Safety
and Health Act of 1977.
Citation No. 3016679 was issued for a violation of 30
C.F.R. § 75.400 because coal and coal dust were allowed to
accumulate on the slope belt. The originally assessed penalty
was $395 and the proposed settlement
$345.
citation
No.3016542 was issued for a violation of 30 C.F.R. § 75.400
because coal and coal dust were allowed to accumulate on the 10
east belt. The originally assessed penalty was $395 and the
proposed settlement
$345. The parties represent that the
reductions are warranted because gravity was not as severe as had
been first estimated. According to the parties~ gravity
less
because of the operator 1 s fire monitoring system along the belt
lines. The parties further advise that the operator has a
monitoring system which detects the presence of carbon monoxide
along the belt lines.
In the event of a fire, the monitoring
system sounds a warning alarm alerting the responsible person and
identifying the belt line with the problem.
I accept the foregoing representations and based upon them find that gravity was
somewhat less than originally thought.
Accordingly, I approve
the recommended settlement.

168

Accordingly, it is ORDERED that the proposed settlement be
APPROVED and the operator PAY $690 within 30 days of the date of
this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
William Lawson, Esq., Office of the Solicitor, u. s. Department
of Labor, suite 201, 2015 second Avenue North, Birmingham, AL
35203
(Certified Mail)
J. Fred McDuff, Esq., Drummond Company, Inc., P.
Birmingham, AL 35202 (CertifiedMail)

o. Box 10246,

Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, NW.,
Washington, DC 20005 (Certified Mail)

/gl

169

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

January 31, 1991

CIVIL PENALTY PROCEEDING

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

Docket No. SE 90-143
A. C. No. 01-00515-03764

v.

Mary Lee No. 1 Mine

DRUMMOND COMPANY, INC.,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

The parties have filed a joint motion to approve settlement
of the seven violations involved in this case.
The originally
assessed penalty was $2,289 and the proposed settlement is
$1,544. The parties discuss the violations in light of the six
statutory criteria set forth in section 110(i) of the Federal
Mine Safety and Health Act of 1977.
Citation No. 3016649 was issued a 104(d) (1) citation for a
violation of 30 C.F.R. § 75.1105 because there were five batteries and three chargers located in the battery charging station
that were not housed in a fire proof area.
The originally
assessed penalty was $1,000 and the proposed settlement is $255.
The parties represent that the reduction is warranted because
negligence was not at all as severe as had been first estimated.
According to the parties, there were over twenty batteries
located in the area and only five were not protected in a fire
proof manner, all of which were located to close to the coal
ribs.
In light of these circumstances, MSHA has modified the
citation from a 104(d) (1) citation to a 104(a) citation and
reduced negligence from high to moderate.
I accept the foregoing
representations and based upon them find that negligence was less
than originally thought.
Accordingly, I approve the recommended
settlement.
With respect to the six remaining citations, the parties
advise that the operator has agreed to pay those proposed
penalties in full.

170

Accordingly, it is ORDERED that the proposed settlements be
APPROVED and the operator PAY $1,544 within 30 days of the date
of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
William Lawson, Esq., Office of the Solicitor, U. s. Department
of Labor, 2015 Second Avenue, Suite 201, Birmingham, AL 35203
(Certified Mail)
J. Fred McDuff, Esq., Drummond Company, Inc., P.O. Box 10246,
Birmingham, AL 35202
(Certified Mail)
Joyce Hanula, Legal Assistant, UMWA, 900 15th St., N.W., Washington, D.C. 20005
(Certified Mail)
/gl

171

172