FEBRUARY 199;i

COf:1MISSION ORDERS
02-06-95
02-17-95

Holst Excavating Inc.,
Asarco, Inc.,

LAKE 94-191-M
WEST 94-445-M

Pg . 101
Pg. 104

SE 95 - 11-RM
KENT 93 - 974
WEVA 94-247

Pg. 107
Pg. 115
Pg. 134

KENT 94-1274-D

Pg. 141

WEST 94-594-D

Pg . 145

PENN 94-532-D

Pg. 152

LAKE 95 - 177-DM
WEVA 93-392
PENN 94-189
WEST 93-343
LAKE 94-648
SE 94-126-R
PENN 94-132 - D
WEVA 94-19
KENT 94-1206
KENT 94-408

Pg . 154
Pg .. 156
Pg. 165
Pg . · 175
Pg. 205
Pg. 209
Pg. 224
Pg. 231
Pg. 240
Pg . 242

KENT 94-957

Pg. 244

ADMINISTRAIIYE LAW JUPGE DECISIONS
02-01-95
02 - 02-95
02-02-95
02-06-95
02-06-95
02-10-95
02-10-95
02-15-95
02-17 - 95
02-22-95
02-23-95
02-23-95
02-24-95
02-27-95
02-28-95
02-28-95

Savage Zinc, Inc., ·
Nats Creek Mining Company
Mingo Logan Coal Company
Sec. Labor for Charles Dixon et al . v.
Pontiki Coal Corporation
Blake Sorensen v. Intermountain
Mine Services
Sec. Labor for William Ploxa v.
Reading Anthracite Company
Sec. Labor for Harold J . Wilson v .
Vulcan Materials Company
Mingo Logan Coal Company
Consol Pennsylvania Coal Co.,
C.W. Mining Company
Brushy Creek Coal Co., Inc.,
Jim Walters Resources, Inc . ,
Randall Patsy v. Big "B" Mining Company
Consolidation Coal Company
Earl Caudill
Harlan Cumberland Coal Company

APMINISTBATIYE LAW JQDGE ORDERS
02-07-95

Jericol Mining Inc.

i

FEBRUARY

1995

Reyiew was granted in the following cases d.uring the month of February;
Secretary of Labor, MSHA v. Bluestone Coal Corporation, Docket No.
WEVA 93-165-R, 94-117.
(Judge Barbour, December 27, 1994)
Secretary of Labor, MSHA v. Holst Excavating, Inc., Docket No. LAKE 94-191-M.
(Chief Judge Merlin, Default Decision of November 14, 1994 - unpublished)
Secretary of Labor, MSHA v . Asarco, Inc., Docket No. WEST 94-445-M, etc.
(Judge Cetti, unpublished Dismissal dated November 21, 1994)
Secretary of Labor, MSHA v. Amax Coal Company, Docket No. LAKE 94-197.
(Judge Amchan, January 17, 1995)

Review was not granted in the following cases during the month of February;
Lion Mining Company v. Secretary of Labor, MSHA, Docket No. PENN 93-420-R.
(Judge Fauver, December 28, 1994)
Secretary of Labor, MSHA v. Buck Creek Coal Company, Docket No. LAKE 94-72,
etc.
(Interlocutory Review of Judge Hodgdon's Stay Order, dated September 8,
1994 - unpublished)

ii

COMMISSION ORDERS

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

February 6, 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 94-191-M

v.

HOLST EXCAVATING, INC.

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

ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988). On November 14, 1994, Chief Administrative Law Judge
Paul Merlin issued an Order of Default to Holst Excavating, Inc. ("Holst") for its failure to
answer the Secretary of Labor's proposal for assessment of civil penalty or the judge's August 16,
1994, Order to Respondent to Show Cause. The judge assessed civil penalties of $995.
In a letter to the judge dated December 12, 1994, Holst's office manager states that, on
September 13, 1994, Holst contacted an attorney in the Office of the Department of Labor's
Regional Solicitor in Chicago, Illinois, and subsequently sent copies of Holst's "bankruptcy
filings" to him as requested. She states that Holst is still awaiting a reply and that she has tried to
contact that attorney by telephone to no avail.
The judge's jurisdiction over this case terminated when his default order was issued on
November 14, 1994. 29 C.F.R. § 2700.69(b). Relief from a j udge's decision may be sought by
filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2);
29 C.F.R. § 2700.70(a). The fi ling of a petition for discretionary review is effective upon receipt.
29 C.F.R. § 2700.S(d). Holst's December 12 letter was received by the Commission on
December 16, more than 30 days after issuance of the default order. Thus, the judge's default
order became a final decision of the Commission 40 days after its issuance. 30 U .S.C.
§ 823(d)(l).

101

The filing of a petition in bankruptcy does not automatically stay the instant proceeding
or foreclose the entry of judgment against Holst. 11 U.S.C. § 362(b)(4); Secretary ofLabor on
behalfof Price v. Jim Walter Resources, Inc. 12 FMSHRC 1521, 1530 (August 1990) (citations
omitted). However, relief from a final Commission judgment or order is available to a party
under Fed. R. Civ. P. 60(b)(l) in circumstances such as mistake, inadvertence, or excusable
neglect. 29 C.F.R. § 2700. l(b) (Federal Rules of Civil Procedure apply "so far as practicable" in
absence of applicable Commission rules). E.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782
(May 1991 ). Holst, proceeding without benefit of counsel, asserts that, within 30 days after
issuance of the show cause order, it infonned the Solicitor's Office of its bankruptcy proceedings.
Holst may have assumed that filing a petition in bankruptcy stayed the instant proceeding and
relieved it of its obligation to file an answer.
On the basis of the present record, we are unable to evaluate the merits of Holst's
position. In the interest of justice, we reopen the proceeding, treat Holst's letter as a late-filed
petition for discretionary review requesting relief from a final Commission decision, and excuse
its late filing. See, e.g., Bentley Coal Co., 12 FMSHRC 1197-98 (June 1990); Westrick Coal
Co., 10 FMSHRC 853 (July 1988). We remand the matter to the judge, who shall determine
whether final relief from default is warranted. See Hickory Coal Co., 12 FMSHRC 1201, 1202
(June 1990).

Arlene Holen, Commissioner

Marc Lincoln Marks, Conunissioner

102

Distribution

Nancy J. Beeler, Office Manager
Holst Excavating, Inc.
P.O. Box 36
Prescott, WI 54021
Rafael Alvarez, Esq.
Office of the Solicitor
U.S. Department of Labor
230 S. Dearborn St., 8th Floor
Chicago; IL 60604
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

103

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

February 1 7, 1995

ASARCO, INC.
Docket No. WEST 94-445-M
94-446-M

v.

SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

ORDER
In this case, the Commission granted a petition filed by the Secretary of Labor requesting
review of Administrative Law Judge August Cetti's November 21, 1994 Order of Dismissal, in
which he dismissed civil penalty proceedings against ASARCO, Inc. ("ASARCO") based on the
Commission's decision in Keystone Coal Mining Corp., 16 FMSHRC 6 (January 1994). The
Secretary has now moved to reverse and remand the judge's decision, based on our decision in
ASARCO, Inc., 17 FMSHRC _, Docket No. SE 94-362-RM (January 19, 1995), in which we
explained that Keystone addressed only the procedural validity of single shift samples in
determining violations of the respirable dust standard for underground coal mines. Slip op. at 5.
He has also moved to stay further proceedings in this case pending the outcome on remand in
ASARCO, 17 FMSHRC _.
ASARCO has concurred in the Secretary's motion to reverse and remand, but opposes his
motion to stay.

104

Upon consideration of the Secretary's motion and the opposition filed by ASARCO, we
vacate the judge's Order ofDismissal and remand this matter to the judge for further appropriate
proceedings. The Secretary's request that the Commission stay proceedings on remand is denied
without prejudice to his renewing such a request before the judge.

J yce A.

oyle, Commissioner

~' J(;L_
ieneHolen, Commissioner

105

··.

Distribution

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

106

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

FEB 0 1 1995
SAVAGE ZINC, INC.,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. SE 95-11-RM
Citation No. 3882702; 10/14/94

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

Docket No. SE 95-57-RM
Order No. 4357221; 11/18/94
Elmwood-Gordonsville Mine
Mine ID 40-00864

UNITED STEELWORKERS OF
AMERICA (USWA},
Intervenor

DECISION

Appearances:

Henry Chajet, Esq., and James G. Zissler, Esq.,
(Maris E. McCambley, Esq., on brief), Jackson &
Kelly, Washington, D.C. for contestant;
Robert A. Cohen, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia for
Respondent;
Henry Tuggle, Safety and Health Specialist, United
Steelworkers of America, Pittsburgh, Pennsylvania
for Intervenor.

Before:

Judge Hodgdon

These cases are before me on notices of contest filed by
Savage Zinc, Inc. against the Secretary of Labor and his Mine
Safety and Health Administration (MSHA} pursuant to Section 105
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 815.
The company contests the issuance of Citation No. 3882702
to it on October 14, 1994, and the issuance of order No. 4357221
to it on November 18, 1994. For the reasons set forth below,
both the citation and the order a~e affirmed.
A hearing in the cases was held .on December 7 - 9, 1994~ in
Nashville, Tennessee. 1 Randy G. Helm, Kenny G. Hensley, David
Park, James B. Daugherty and Randy w. Dennis testified for the
Secretary. In addition, the Secretary called Roy L. Bernard as
1 The transcript incorrectly states that the hearing was
held on "September 7 - 9, 1994."
107

an adverse witness. Charles E. Hays and H. John Head testified
on behalf of Savage Zinc and Allan Cole, Richard E • . Pulse and
Martin Rosta 2 were called as adverse witnesses by the company.
The parties have also f iled briefs which I have considered in my
disposition of these cases. 3
BACKGROUND
The essential facts in this case are undisputed. The
Elmwood-Gordonsville Mine is a random room and pillar zinc mine
operated by Savage Zinc, Inc. near Franklin, Tennessee. The mine
can be entered by a portal onto a roadway which continues from
the portal to the Stonewall production area. The mine can also
be exited through six shafts, the No. 5 Shaft in the OMZ area,
the Nos. 1 and 2 Shafts in the Elmwood area, the No. 4 Shaft in
the South Carthage area, and the Nos. 3 and 7 Shafts in the
Gordonsville area. some of these shafts, e.g. No. 3, are also
used as entrances to the mine.
The roadway is approximately five miles long and, after an
initial decline from the portal which levels off some five
hundred feet below the portal, goes up hills (inclines), down
hills (declines) and is level in places as it traverses through
the mine. The roadway begins in the Gordonsville area of the
mine, goes along the West B Drift and through the Elmwood area of
the mine. From the Elmwood area of the mine, the roadway becomes
known as the stonewall Drive and terminates in the Stonewall
production area. The Stonewall Drive is a decline which is about
a mile long and descends, on a 15 percent grade, in elevation
about 500 feet.
Development of the Stonewall Drive and the Stonewall
production area was begun in 1987, and completed in 1988.
Construction of the No. 6 Shaft, which goes to the stonewall
production area, was initiated in 1987 and completed in 1988.

2 Mr. Rosta, who had been subpoenaed, did not appear at the
hearing. His testimony was taken by deposition in Washington,
D.C., on December 16, 1994. The deposition is admitted into
evidence as contestant's Exhibit K.
3 The Contestant has also filed a Reply Brief. The
Secretary has filed a motion to strike the reply brief and his
motion has been joined in by the Intervenor. Reply briefs were
not contemplated in our discussion of a briefing schedule at the
hearing, (Tr. 820, 834), nor provided for in my December 21,
1994, order scheduling briefs. Consequently, while I deny the
motion to strike, I have given no weight to the Contestant's
Reply Brief in this decision.
108

A hoist was installed in the shaft in November 1988. "Stonewall
is the lowest elevation of the [mine] complex . • • · ·" {Tr.698.)
From 1988 until sometime in the spring of 1993, the
Stonewall Drive and .the No. 6 Shaft were designated in the mine's
evacuation plan as the two escapeways from the Stonewall
production area. In the spring of 1993, the mine operators
concluded that the No. 6 Shaft was no longer safe, due to
deteriorating ground conditions, to use as an escapeway and took
it out of use.
On August 25, 1993, Savage Zinc was issued citation
No. 4092045 for failing to maintain an escape route, the No. 6
Shaft, in a travelable condition in violation of Section 57.11051
of the secretary's Regulations ~ 30 C.F.R . § 57.11051 .
(Resp.
Ex. 10 . ) In September 1993, the company inquired of
Mr. Daugherty, the local MSHA metal and nonmetal mine supervisor,
whether a refuge chamber could be used instead of a second
escapeway. He advised them that he could not authorize it.
In December 1993, Savage Zinc filed a petition for
modification with MSHA seeking modification of the application of
Section 57 . 11050{a), 30 C.F.R. § 57.11050(a), to the mine by
replacing a second escapeway with a refuge chamber. The petition
was denied on June 23, 1994 . The company then requested a
hearing on the petition before an Administrative Law Judge
assigned to the Department of Labor. The hearing was scheduled
for November 1, 1994 . At Savage Zinc ' s request the hearing was
stayed until January 23, 1995. Savage Zinc filed an amended
petition for modification on October 17, 1994.
On October 14, 1994, Inspector Daugherty issued Citation
No. 3882702 to Savage Zinc for a violation of Section
57.11050(a). The citation stated that:
The mining and production area of Stonewall, the
lowest level of the mine, does not have two separate
properly maintained escapeways to the surface as
required by 30 CFR 57.llOSO(a). The No. 6 shaft ~hich
was formerly designated as one of the two separate
escapeways to the surf ace from the lowest level of the
mine, is not travelable in the event of an emergency,
nor is it presently designated on the mine evacuation
plan as an escapeway.
(Resp. Ex. 5.) The company was given until November 14, 1994, to
abate the violation.

109

The Bureau of Mines, U.S. Department of Interior, A
Dictionary of Mining, Mineral, and Related Terms 638 (1968},
defines "level," as pertinent to this case, as:
a. A main underground roadway or passage driven
along the level course to afford access to the stopes
or workings and to provide ventilation and haulageways
for the removal of coal or ore. • • . b. Mines are
customarily worked from shafts through horizontal
passages or drifts called levels. These are commonly
spaced at regular intervals in depth and are either
numbered from the surf ace in regular order or
designated by their actual elevation below the top of
the shaft . • . . c. In pitch mining, such as
anthracite, there may be a number of levels driven from
the same shaft, each being known by its depth from the
surface or by the name of the bed or seam in which it
is driven. . . . d. Mine workings that are
approximately at the same elevation . . . . j. All
openings at each of the different horizons from which
the ore body is opened up and mining started. .
As can be seen, all of these definitions have a common
element that goes back to the basic def init~on, that is that a
"level" is essentially on the "horizontal."
on the other hand,
the contestant's argument that this is a single level mine is
based on a distorted definition of "level" which leaves out all
references to the horizontal.
Thus, Mr. Bernard, an expert testifying for Savage Zinc,
defined "level" as "a main underground passageway that connects
stopes and working places and provides ventilation and haulage
for the removal of ore from the mine." (Tr. 19.) Mr. Hays, the
company's Safety Supervisor, defined "level 11 as "an underground
passage or opening providing access to stopes or workings. It
also provides ventilation and haulage ways for the extraction of
ore . " (Tr. 646-47.) Mr. Head, another expert witness for the
Contestant, said that "level" "is defined as a main underground
road or passageway that leads to production areas, stopes that
may be above or below that level, and the main road is used for
ventilation, for access, and for haulage of ore from working
places." (Tr. 763-64.)
5 The other definition of "level" mentioned in this case,
"[t]he horizon at which an ore body is opened up and from which
mining proceeds. The term is often used in the same sense as a
drift or to cover all horizontal workings on one horizon • • • ·" ·
found in Peele's Mining Engineer's Handbook S 10, 3 (Jd Ed.
1941), also conforms to this central element.
110

Finally, in its brief, the Contestant argues that:
(t)he primary definition for "level" provided in the
BOM Dictionary and discussed by Bernard and Head is
related to function rather than distance or elevation.
According to that definition, a "level" is:
a main underground passageway that connects
stopes and working places and provides
ventilation and haulage for the removal of
the ore from the mine.
(Cont. Br. at 26.)
All of these definitions purport to be a paraphrase of the
first definition in the Dictionary of Mining, Mineral, and
Related Terms. All of them leave out the phrase "driven along a
level course" from the definition. By leavi ng out the·se words,
the most significant characteristic of "level" is removed from
the definition. Followed to its logical conclusion, a mine with
a continuous roadway which declined into the earth at a 15
percent grade for 5 miles and off of which were working areas at
various elevations would still, by this definition, be a one
level mine.
Contrary to Savage Zinc's assertions, I find that it is
Savage Zinc's definition of "level" and what it means in this
regulation that is irrational and inconsistent with MSHA
enforcement actions, not MSHA's definition. Based on any, or
all, of the definitions of level from the Dictionary of Mining,
Mineral, and Related Terms, set out above, I conclgde that the
Elmwood-Gordonsville Mine has more than one level.
I further
conclude that the production leve17 found in the Stonewall area
are the lowest levels of the mine .
The obvious purpose of the regulation is to insure that
miners have two separate ways to get out of the mine in the event
of an emergency. I conclude that a reasonably prudent person
familiar with the mining industry and the purpose of this
standard would find that there is only one escapeway from the
Stonewall area, the Stonewall Drive, that the Stonewall area is
6 Unlike Magma Copper, which turned on whether an area was
a level based on the type of activity performed in the area, 16
FMSHRC at 332-33, there is no dispute that mining is performed in
the stonewall area .
I also conclude that the stonewall -Drive is not part of
the Stonewall area of the mine, although whether it is or not
makes no difference to my conclusion that the. Stonewall area has
the lowest levels of the mine.
7

1 11

See also Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria).
·
In United States Steel Mining Co., Inc., 7 FMSHRC 1125, 1129
(August 1985), the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula •requires tha~ 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).
This evaluation is made in terms of "continued normal mining
operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574
(July 1984). The question of whether a particular violation is
significant and substantial must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April
1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 1007 (December
1987).
By their very nature, escapeways only become important in
the event of an emergency. Therefore, continued normal mining
operations, in evaluating this violation, must assume the
existence of an emergency. The evidence indicates that there are
several types of emergencies that might require the use of an
escapeway which could occur in this mine. Among these are roof
falls, fire, explosions and inundation. Further, it is not the
likelihood of one or more of these disasters occurring which
determines whether this violation is S&S, but the likelihood of
serious injury occurring during an emergency situation when there
is not a second escapeway available.
Viewing the violation in · this light, I have already
concluded that the violation occurred. I also conclude that the
failure to have two escapeways results in a discrete safety
hazard in that blockage of the primary escapeway means that the
miners are trapped in the mine.
I further conclude that there is
a reasonable likelihood that the failure to have a second

112

escapeway in an emergency will result in an injury and that the
injury will be reasonably serious. Accordingly, I conclude that
the violation was "significant and substantial." 1
Reasonableness of the &b•teaent Period
Savage Zinc argues that it is unreasonable to have expected
them to abate the violation in this case in 30 days.
Consequently, the company asserts that the 104(b) order issued to
it for failing to abate the violation should be vacated. Since
it is uncontroverted that it would take any where from nine to 18
months to install a second escapeway, this claim has superficial
appeal. However, the testimony of Inspector Daugherty makes it
clear that MSHA did not expect the company to perform the
impossible and complete construction in 30 days, but only that
savage Zinc begin taking steps to abate the violation. (Tr. 50910 . )
In fact, at the time the 104(b) order was issued, Savage
Zinc had taken no action on the citation other than to contest
it. Nor is there evidence that the company had communicated to
MSHA any intention of abating the citation. Under these
circumstances, I conclude that the 30 day abatement period was
reasonable and that the 104(b) order was appropriate.

OBDEB
I conclude that Savage Zinc, Inc. violated Section
57.llOSO{a) of the regulations by not having two escapeways from
the Stonewall area of its Elmwood-Gordonsville Mine, and that
this violation was "significant and substantial" and the result
of, at least, moderate negligence. I further conclude that the
time given for abatement of this violation was reasonable.
Accordingly, it is ORDERED that Citation No. 3882702 and Order
No . 4357231 are AFFIRMED.

\(~~

Administrative Law Judge

11 In reaching this conclusion, I have considered whether
the presence of the refuge chamber reduces the gravity of the
violation and have concluded that it does not. As everyone
agrees, the best place to be in a mine emergency is on the
surface. I find that it is reasonably likely that a mine
emergency can be so devastating, e.g . an explosion, massive cavein, or wide ranging fire, that a serious injury could occur to
miners in the refuge chamber.
11 3

Distribution:
Henry Chajet, Esq., James Zissler, Esq., Jackson & Kelly,
2401 Pennsylvania Ave., N.W., suite 400, Washington, D.C. 20037
Robert Cohen, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd . , Arlington, VA 22203
Mr. Henry Tuggle, United Steelworkers of America, Five Gateway
Center, Pittsburgh, PA 15222
/lbk

114

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATI VE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22 041

FEB 2 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 93-974
A. C. No. 15- 16492-03540

v.

Docket No. KENT 94-51
A.C . No. 15-16492- 03541

NATS CREEK MINING COMPANY,
Respondent

Docket No . KENT 93-877
A.C. No. 15-16492-03537
DECISI ON

Appearances:

Anne T. Knauff, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
Billy R. Shelton, Esq., Baird, Baird, Baird &
Jones, Pikeville , Kentucky, for the Respondent.

Before:

Judge Fauver

These are consolidated civil penalty cases under§ l l O{a) of
the Federal Mine Safety and Health Act of 1977 , 30 U. S.C.
§ 801 et seq .
Docket No. KENT 93-877 involves five§ 104(a) citations
issued on December 1, 1992 , alleging significant and substantial
violations due to a moderate level of negligence. Four of the
citations allege that certain scoops were not equipped with
operative methane monitors . The fifth alleges that a fire
suppression system on a scoop was rendered inoperative by a
missing hose .
Docket No . KENT 93-974 involves two§ 104{a) citations and a
107(a} imminent danger withdrawal order issued on December 8,
1992. The citations allege significant and substantia l
viola tions due to high negligence. One citation alle ges that an
underground battery charging station was not housed in an
adequate fireproof structure and was in return air. The other
§

115

alleges that non-permissible battery chargers were used while the
battery charging station was ventilated with return .air.
Docket No. KENT 94-51 involves three§ 104(a) citations and
a§ 107 {a) order issued on June 24, 1993. The citations allege
significant and substantial violations due to high negligence.
One citation alleges that an automatic fire sensor warning device
for four conveyer belts was inoperative. The second citation
alleges accumulations of combustible material around the conveyor
belts. The third citation alleges that there were damaged,
broken and stuck rollers on a conveyor belt and the belt came
into contact with accumulations of combustible material.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the Findings of Fact and
further findings in the Discussion below:
FINDINGS OF FACT

1. Nats Creek Mining Co., Inc., operates Sugarloaf No. 2
Mine in Floyd County, Kentucky, as a contract miner for JRC Land
and Equipment Company of Lexington , Kentucky. The mine produces
about 160,000 tons of coal per year from one production section,
operating three shifts, five or six days a week. The coal is
sold in or with substantial effect upon interstate commerce.
Scoops

2. Scoops are used to load and haul coal from the face to a
conveyor belt system.
3 . The mine liberates about 17,600 cubic feet of methane
daily. At that rate of liberation, methane could accumulate to
an explosive concentration (5 to 15 percent) in about a 12-hour
period if the mine fan were off.
4. On Saturday evening, November 28, 1992, there was a fatal
accident when a scoop operator was crushed between the rib and
his vehicle.
S. Inspector Mark Bartley went to the mine on December 1,
1992, to per~orm a spot electrical inspection and to assist in
the investigation of the fatal accident. The investigation was
handled jointly by MSHA and the Kentucky Department of Mines and
Minerals.

116

6. MSHA issued a work-stoppage order to preserve the
accident site and equipment. Under the MSHA order, · the equipment
was to be. kept in the same condition as it was on November 28,
1992 .
7. Because the coal seam was only 34 to 38 inches high, MSHA
ordered a~l the scoops to be brought out of the mine so that
Inspector Bartley could examine them more thoroughly. Nine
scoops were brought out of the mine. All were found in violati on
of at least one safety standard . Inspector Bartley issued 20
citations on the scoops.
8. All of the scoops were subject to being used to load coal
at the face. Nats Creek acknowledged that seven of the nine
scoops routinely were used at the face, but the company could not
tell Inspector Bartley which three or four scoops were in service
at the time of the fatal accident. No records were maintained to
showed whether a scoop was used inby or outby the last open
crosscut on any given date.
9. None of the nine scoops was tagged out of service or
listed as out of service in the company's books as of November 28
through December 1, 1992.
10. All nine scoops were operative and subject to being used
inby the last open crosscut. Inspector Bartley observed all of
the scoops come out of the mine under their own power . Nats
Creek ' s electrician confirmed that the scoops came out of the
mine under their own power .
11. Methane monitors on the scoops are designed to give a
warning when one percent methane appears in the atmosphere. At
two percent, the methane monitors are designed to de- energize the
machine to prevent a methane ignition.
12. Inspector Bartley tested the methane monitor on scoop
No. 105A/R11079-210. When he found that it was inoperative, he
issued§ 104(a) Citation No. 4017965. The methane monitor
display on the scoop was missing and the whole internal component
had been taken out of the monitor. The display was three inches
in diameter, so that it was easy to see that the display was
gone.
13. Inspector Bartley examined the AR-4 Elkhorn scoop and
found that there was no methane -monitor on the scoop . He then
issued Citation No . 4017967. Nats Creek ' s electrician confirmed
that there was no methane monitor on the scoop. This is the
scoop that was involved in the fatal accident .
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14. Inspector Bartley examined scoop No. 486-1193 and found
that the read-out methane monitor display was missing and the
monitor did not work. He then issued Citation No. 4017975.
15. Inspector Bartley determined that all four of the
methane monitor violations were significant and substantial.
There was a known history of methane liberation at the mine.
There· was no other automatic de-energization device on the
equipment. There was no other automatic methane detection device
on the section. The inoperative methane monitors could
significantly and substantially contribute to an explosion or an
ignition.
16. Inspector Bartley determined that a moderate level of
negligence was involved in each of the methane monitor
violations.
17. Inspector Bartley examined the AR-4 Elkhorn scoop, the
one involved in the fatal accident, and found that, in addition
to missing a methane monitor, it had an inoperative firesuppression system. A hose to the activator was missing .
Because of this condition, he issued Citation No. 4017968 .
18. The manual activator is a pressurized cylinder . A
button on the one-time-use cylinder is designed to pop a bladder
cap on the cylinder seal to release pressure out of the cylinder.
The pressure travels through a hose to force a chemical discharge
to put out a fire. The hose is 1/4 to 1/2 inch in diameter and
about eight feet long. The system is manually activated; that
is, the operator has to hit the button on the cyl i nder to cause
the system to work. The button is within arm's reach of the
operator's compartment. The hose is an essential part of the
fire-suppression system. Without it, there is no way to
discharge the chemical to suppress a fire. The fire~suppression
system is an enclosed, self-c·o ntained system. The missing hose
rendered the system inoperative. Nats Creek's superintendent and
electrician told Inspector Bartley that the scoop was subject to
being used in and inby the last open crosscut. There was no
indication on the scoop that it was restricted to use outby the
last open crosscut.
19. Inspector Bartley determined that the violation was
significant and substantial. If there had been a fire on the
vehicle, there would have been no way to extinguish the fire
readily. If the scoop operator bad been trapped, he could have
been burned alive. The scoop came out of the mine under its own
power. It was not tagged out of service and it was subject to
being used anywhere in the mine.
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20. Inspector Bartley dete·rmined that a moderate level of
negligence was involved in this violation. He could . not tell how
long the hose had been missing, but noted that the hose
connections were dirty, indicating that the hose had been missing
for a substantial period.
Battery Charging Station

21. On December 8, 1992, Inspector Donnie R. Johnson found
that the battery charging station was ventilated with return air
and that no intake air was supplied to the station.
22. Inspector Johnson determined that the observed
conditions constituted an inuninent danger. Non-permissible
equipment was in the charging station. There were open energized
circuits in the charging units. Return air was coming into the
battery charging station from the face area. A worked-out coal
panel to the right of the station could produce methane or toxic
fumes. Coal dust coming from the face could cause an ignition or
an explosion. An ignition or explosion could blow out permanent
ventilation controls. Coal dust could propagate an explosion or
fire throughout the mine. The charging station was 20 or 25
crosscuts outby the working section. Based upon the conditions
observed, Inspector Johnson issued inuninent danger withdrawal
Order No. 3516672.
23. Inspector Johnson issued§ 104(a) Citation No. 3516674
on December 8, 1992, charging a violation of 30 C.F.R.
§ 75.340(a) (1). The regulation requires that underground battery
charging stations be located in noncombustible structures or
areas or be equipped with a fire-suppression system. The
equipment must be ventilated by intake air that has not been used
to ventilate working places. The battery charging station was
not housed in a fireproof structure or equipped with a firesuppression system. It was not ventilated with intake air. Two
brattices had been removed to allow the return air from the 001-0
section to pass through and ventilate the battery charging
station, where six energized 480-volt batteries were charging
scoop batteries.
24. The coal ribs that formed the battery charging station
were not insulated or fireproofed. The station was located
between pillar blocks of coal that were left when the entries
were mined and developed with crosscuts connecting the entries.
There was no enclosing structure. The exposed coal ribs and coal
dust on the floor were combustible. The station was littered
with empty cardboard boxes and open cans which contained
hydraulic fluid. Inspector Johnson found about 45 empty
cardboard boxes piled up between batteries and a brattice.
119

25. There was no fire-suppression system or automatic firefighting equipment at the charging station. Two small hand-held
five-pound fire extinguishers were in the area. There were hoses
and jugs of water in the charging station. However, Respondent's
superintendent was aware that firefighting problems would be
compounded by trying to use water to fight an electrical fire.
At least two of the battery chargers and the batteries were
against the coal ribs. Batteries being charged generate heat.
The charging unit also produces heat. Hydrogen is a by-product
of the battery charging process. It is very explosive, with an
explosive range of 4 to 74 percent. As the plates in the
batteries expand, they push up liquid. Any hydrogen on top of
the liquid in the cell is pushed out into the atmosphere.
26. Return air was used to ventilate the battery charging
station. The air passed through the last working place in the
active section before it ventilated the charging station.
Inspector Johnson observed that the battery charging station was
energized. He could hear the chargers humming, the batteries
bubbling, and he could smell the distinctive odor associated with
charging batteries. The cords for the charges and the batteries
were plugged together. Three scoops and four sets of batteries
were being charged.
27. Inspector Johnson determined that this was a significant
and substantial violation. The mine liberates methane . If
return air containing methane and coal dust from the face passed
over the energized electrical components in the charging station,
and a spark was released, the ·spark could have caused a fire or
an explosion. The battery chargers were not permissible
equipment. If there had been an explosion, it could have blown
out the ventilation controls between the return and intake air
courses. If the ventilation controls had been blown out, the
fresh air going to the working face could have been contaminated.
If the single mine fan had been blown out by an explosion, there
would have been no ventilation in the mine.
It was highly likely that if mining had continued, the. conditions
found by the inspector would result in serious injury.
28. Inspector Johnson determined that high negligence was
associated with the violation charged in Citation No. 3516674.
The violation had existed for a substantial period, probably a
month. The mine superintendent concurred in this estimate. He
told Inspector Johnson, before they went underground, that there
was a problem with the charging station. He did not mention then
that it was being ventilated with return air, but confirmed later
that it was ventilated that way. There was no evidence of any
efforts to fireproof the battery charging station, to ventilate
it with intake air, or to keep the return air out of it. The
120

conditions found by the inspector were obvious to anyone with a
reasonable knowledge of mining practices and vent iiation control.
The cited conditions should have been discovered and corrected
during the routine preshift examinations, but they were not
reported in the preshift examination records.
29. The citation was terminated after abatement of the
violative conditions. The coal ribs were insulated with a
noncombustible sealer to form a fire protection barrier bet ween
the coal ribs and the charging units. The mine floor was cleaned
up. Rock dust was applied to all the areas. The cardboard
containers, plastic containers and empty oil cans were removed
from the underground area of the mine. Double airlock doors were
installed. A brattice and regulators were installed. The
changes allowed intake air to ventilate the charging station.'
After ventilating the station, the air coursed out into the
return air course. All the corrective actions were completed in
one day.
30. Inspe~tor Johnson issued§ 104(a) Citation No. 3516675
on December 8, 1992. Originally, the citation cited a violation
of 30 C.F.R. § 75.503. During the hearing an amendment was
allowed to conform to the proof. The cited regulation was
changed to 30 C.F.R. § 507-l(a), which provides that electric
equipment used in return air outby the last open crosscut must be
permissible equipment! Non-permissible 480-volt battery chargers
were found at the charging station in return air.
31. For the same reasons given for his findings as to
Citation No. 3516674, Inspector Johnson determined tha t this was
a significant and substantial violation involving a high level of
negligence, and was highl y likely to result in fatal injuries.
Conveyor Belt System

32. On June 24, 1993, Inspector Johnson began a quarterly
inspection of the mine. Advance mining was underway. When he
arrived at the mine, he met with the superintendent, who told him
that because a rock-picking table was being repaired the conveyor
belts were not moving. Inspector Johnson informed the
superintendent tha~ he would start traveling the conveyor belts
that day, since they would not be operating. Inspector Johnson
entered the No. 2 belt entry portal to crawl the belts. Along
the No. 1 conveyor belt Inspector Johnson observed three
conditions that caused him to issue§ 107(a) Order No. 4027494,
finding an imminent danger: The automatic fire sensor warning
device was inoperative. There were damaged and stuck rollers.
There were extensive accumulations of loose coal, coal dust and
float coal dust. Inspector Johnson saw no evidence of efforts to
121

correct these conditions. Methane was being liberated at the
rate of about 17,600 cubic feet per day. Inspector Johnson
feared that when the conveyor belts started again, the three
conditions would combine to result in a serious mine fire or a
coal dust explosion. He immediately returned to the surface to
issue a§ 107(a) order and to put a red tag on the No. 2 portal
canopy for the belt conveyor to show that it was closed by a §
107(a) order.
33. When Inspector Johnson advised the mine superintendent
that he had issued an imminent danger order, the mine
superintendent called the section by phone to have miners from
the face start to abate the cited hazards. The superintendent
did not express disagreement with the order or assert that miners
already were on their way to address the cited violations. When
the inspector had arrived at the mine and said he was going to
crawl the belts, the superintendent said, " . . . I don't think it
looks too good, probably dirty. .
" Mine Manager Travis
Miller acknowledged the condition of the belts: "We had been
there and like Billy [Martin, the superintendent] said, well,
they're probably dirty." The superintendent testified further,
"I did go straight to the phone right then and I called inside
and I told the boss, the section foreman, to get people down
there on the number one belt. That's the reason . • . I didn't
go up the belt with him. . . . I called to get people to correct
the problem if there was anything wrong with the belt line
because, I knew he was going to check it." Tr. 356-359. It was
not until .the MSHA inspectors came to the mine that the
superintendent called to have miners clean up the belts.
34. The imminent danger order was terminated the following
afternoon after the fire sensor was repaired, the acc~ulations
were cleaned up, and the rollers were repaired or replaced.
Fire Sensor System

35. The first condition that contributed to issuance of the
above imminent ' danger order was cited in§ 104(a) Citation
No. 4027495, dated June. 24, 1993. The regulation cited
{30 C.F.R. § 75.1103-1) requires · that a fire sensor system be
installed on each underground belt conveyor, to give warning
automatically when a fire occurs on or near the belt and to
provide both audible and visual signals that permit rapid
location of the fire. The fire sensor system was not maintained
in an operative condition for the Nos. 1, 2, 3, and 4 conveyor
belts. The fire sensor cable had been severed between the
automatic indicator and the alarm signal box. The cable also had
been severed ~t several locations along the No. 1 conveyor belt.
122

36. At Inspector Johnson ' s request, the company electrician,
George Bush, tried to activate the fire sensor system. It would
not function. As he crawled the belt, Inspector Johnson found
that the fire sensor cable had been cut or worn through in
several locations, where the cable had dropped down beside the
belt conveyor, which rubbed against the cable until it was
severed or badly worn.
37. Fire sensors are contained in the cable, spaced at
intervals of 125 feet . If a fire occurs, when the sensor is
heated to 125 degrees the circuit opens and automatically
indicates which belt conveyor is on fire. There were four belts
underground. The fire sensor would not work for any of them.
One or two miners were assigned to monitor more than a mile of
belts . Each belt was 1,400 to 2,000 feet long. The belt entries
also served as secondary escapeways.
38. The fire sensor system was needed to respond to a fire
quickly, to extinguish it or to try to keep it under control .
Without the system, a fire could be raging out of control before
being detected. In the event of fire, the ventilation system
would pull the smoke to the face where the miners were working.
The only firefighting system in place was the manually activated
water line which extended along the belt conveyors.
39. Although the belts were not running, the section was
engaged in advance mining. Miners could blast and extract coal
at the face to have it ready to load when the belts started to
run again. Inspector Johnson observed that some miners were at
the face and some were repairing the rock- picking table on the
outside.
40. Inspector Johnson determined that the fire sensor
violation was significant and substantial. Without the system,
there was no way to detect a fire on the belt conveyors until
someone encountered smoke or flames . Inspector Johnson expected
that the belts would be turned back on as soon as the repairs
were completed on the picking table . He believed that ·the
observed conditions were likely to result in a mine fire or
explosion if normal mining operat~ons were resumed. There was
friction between the belt and the damaged rollers . There were
areas where the combustible accumulations touched the bottom of
the belt. If the friction resulted in a fire, there was no
system in place to warn of it or to locate it.
41. Inspector Johnson determined that the violation involved
high negligence. The fire sensor system was required to be
checked weekly. The belt line was required to be checked daily,
within three hours after the beginning of a production shift.
123

The miners had been underground 2 hours 50 minutes when Inspector
Johnson issued the citation. The cable had been severed in
several locations. The control box for the fire sensor system
has a warning light to show any short-circuit in the system. The
severed cable should have short-circuited the system, but
Inspector Johnson found that the warning light control box was
not functioning, perhaps because of dead batteries. It did not
appear that the control box had been touched in a long time. All
that had to be done was to push an easily accessible test button
once each week to see if the system was working. There was no
mention of the non-functioning system or of the severed cable in
the preshift examination records or in the weekly examination
records. There was no evidence that the company was about to
begin repairs of the cable and the fire sensor system.
42. Citation No. 4027495 was terminated the next day, after
the automatic fire sensor system was restored.
Accumulations of Combustible Material

43. The second condition that contributed to issuance of the
imminent danger order was cited in§ 104(a) Citation No. 4027496,
on June 24, 1993. The cited regulation (30 C.F.R § 75.400),
prohibits the accumulation of coal dust, float coal dust, loose
coal, and other combustible material in active workings or on
electric equipmen~ in active workings. Inspector Johnson found
accumulations of loose coal, coal dust, and float coal dust
alongside and beneath the No. 1 conveyer belt and in the
connecting crosscuts. The accumulations extended about 1,440
feet, from 1 inch to 30 inches deep. In the areas where
Inspector Johnson saw one inch of float coal dust it was
scattered across the entire entry, from rib to rib. The area was
dry. The accumulations were black. The energized 4,160-volt
cable was buried in the loose coal and float coal dust alongside
the belt conveyor.
44. Inspector Johnson measured the accumulations with a
measuring tape, using his hand to rake the coal back until he
reached the mine floor. His close inspection of the
accumulations verified that it wa~ loose coal, coal dust and
float coal dust. Large quantities of coal dust were raised into
the air as he crawled through the accumulations. Miners had
worked or traveled in the area where the combustible
accumulations were found. The area was required by regulation to
be traveled daily during the preshift examination.
45. For the same reasons given for his findings as - to
Citation No. 4027495, Inspector Johnson determined that this was
a significant and substantial violation and involved high

1i4

··

negligence. It was reasonably likely to result in serious
injuries to 12 miners working on the head drive and at the face.
The 4160-volt cable buried in the accumulations was energized and
was the main power cable. Roof conditions were fair, but some
loose material had fallen out from between the roof bolts. The
power cable went through the area where the roof had sloughed.
If a piece of the roof fell on the cable in the accumulations,
the cable could have been cut, resulting in a hot flash. The hot
flash could have ignited the float coal dust. When the belt was
running again, there would be friction between the belt and the
rollers that were broken or stuck. Also, there would be friction
as the belt rubbed against the metal frame of the belt assembly.
The belt runs 250 to 450 feet per minute. There were shiny and
worn places on the steel frame, indicating that the belt had
rubbed against it. Additionally, there were rollers with shiny,
smooth and worn places, indicating that the belt was rubbing on
them, rather than rolling over them. Inspector Johnson saw no
evidence of efforts to clean up the accumulations. The
accumulations .w ere easily visible alongside the belt, as was the
Z 1/2-inch power cable where it dropped down into the
accumulations from the mine roof. Inspector Johnson estimated
that the accumulations would fill one, or possibly two, coal
trucks. There was no mention of the accumulations in the
preshift examination records.
46. The citation was terminated the next day, after the
accumulations had been cleaned up and rock dust had been applied
to the area.
Conveyor Belt Rollers
47. The third condition that contributed to the issuance of
the imminent danger order was cited in§ 104(a) Citation
No. 4027497, on June 24, 1993. The cited regulation (30 C.F.R.
§ 75.1725) requires . that machinery and equipment be maintained in
safe operating condition and that machinery and equipment in
unsafe condition be removed from service immediately. Inspector
Johnson found damaged, broken, or stuck rollers at several
locations along the No. 1 belt conveyor, beginning at the No. 2
mine portal and extending to the conveyor tail piece, about 1,440
feet. The damaged, broken, or stuck rollers allowed the conveyor
belt to contact the dry· accumulations of loose coal, coal dust,
and float coal dust beneath the belt.
48. There are two layers of 3-inch steel rollers. The top
rollers are five to six feet apart. The bottom rollers are 10 to
12 feet apart. The rubber conveyor belt is designed to reduce
friction by moving on rotating rollers rather than rubbing
against them.
125

49. Inspector Johnson found that 19 rollers were defective.
The conveyor belt had not been taken out of service. Some
rollers were broken. The belt had cut through the tops of some
of the rollers. Some rollers had dropped down in the middle.
Some had broken off the end of the supporting frame. Some would
not roll because there was coal jammed between the frame and a
roller. Inspector Johnson tried to turn some of the rollers with
his hands; he could not move them. In addition to the 19 stuck
and broken rollers, Inspector Johnson saw rollers with shiny,
smooth and worn places, indicating that the belt was rubbing on
them, rather than rolling over them.
50. Some of the rollers were in accumulations of coal dust.
For the same reasons given for his findings as to Citations Nos.
4027495 and 4027496, Inspector Johnson determined that this was a
significant and substantial violation and involved high
negligence.
51. The damaged rollers were obvious and clearly visible to
anyone crawling along the belts to make the belt examinations.
There were two production shifts a day. The belts and rollers
were required to be examined twice every work day. There was no
report of defective rollers in the preshift examination records.
DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS
Scoops

Four citations charge a violation of 30 C.F.R § 342(a) (1}
for having a defective or missing methane monitor on a scoop.
Respondent contends that the four citations should be
vacated because the inspector could not testify that the cited
scoops were used to load coal while having a defective or missing
methane monitor.
Section 75.342(a) (1) provides:
MSHA approved methane monitors shall be installed on
all face cutting machines, continuous miners, longwall face
equipment, loading machines, and other mechanized equipment
used to extract or load coal within the working place.
"Working place" is defined as "the area of a coal mine inby
the last open crosscut." 30 C.F.R. § 75.2.
Respondent states that its evidence shows that all scoops
were checked to be sure the methane monitors were operative
126.

before a scoop was used to haul coal and that if a scoop was not
in permissible condition it was rendered inoperative .by not
hooking the necessary wiring back up to the circuit breaker. It
states that if a methane monitor became inoperative during the
production shift, the scoop was returned to the battery barn
where it was replaced with a new scoop or the methane readout or
display unit was replaced.
The Secretary contends that no records or other
identification was used to restrict any scoops from being used
inby the last open crosscut, and that when the inspector asked
the company which scoops had been used at the face it was unable
to identify them. Scoops with defective methane monitors were
not listed in the examination records, nor were they tagged out
of service or marked in any way to prevent their use inby the
last open crosscut.
The company acknowledged that seven of the nine scoops
routinely were used to load or haul coal at the face, but the
company could not tell the inspector which three or four scoops
were in service at the time of the fatal accident. No records
were maintained to show whether a scoop was used inby or outby
the last open crosscut on any given date.
On balance, I find that the inspector properly found that
the cited scoops were subject to being used to load coal at the
face at any time. The defective or missing methane monitors
therefore constituted violations of 30 C. F.R. § 75.342(a) (1).
The evidence also supports the inspector's finding that the
violations were significant and substantial. There was a known
history of methane ignitions at this mine . There was no other
automatic de-energizing device on the equipment. There was no
other automatic methane detection device on the section. The
defective methane monitors could significantly and substantially
contribute to an explosion or ignition. It was reasonably likely
that the violations would result in serious injury. The
violations were therefore significant and substantial. ·Mathies
Coal Company, 6 FMSHRC 1 (1984 ) ; U.S . Steel Mining Company,
Inc., 6 FMSHRC 1573 (1984).
The evidence supports the inspector's finding of a moderate
degree of negligence. The operator failed to take reasonable
steps to ensure that scoops with defective or missing methane
monitors were not used to load coal inby the last open crosscut.
A fifth citation alleges that the AR-4 Elkhorn scoop, the
one involved in the fatal accident, had an inoperative fire
suppression system (in addition to missing a methane monitor), in
127

violation of 30 C.F.R. § 1100-3. A hose to the activator on the
fire suppression system was missing.
The company contends that the AR-4 scoop was not used to
load coal but was used only to transport persons and supplies,
and therefore was not required to have a fire suppression system.
I find that the inspector properly determined that the scoop
was not "transportation" equipment within the meaning of the
regulations, based upon the representations of company personnel
to the inspector and the fact that a scoop is designed to haul
coal and is not designed to transport people.
Moreover, § 75.1100-3 requires that "All firefighting
equipment shall be maintained in a usable and operative
condition." If a vehicle has a fire suppression device, it
compromises safety and violates this section if the firefighting
device does not work.
By regulation, Nats Creek was required to adopt a program
for the instruction of all miners in the location and use of
firefighting equipment, including operation of fire suppression
equipment available in the mine. Presuming Nats Creek's
compliance with the training regulations, drivers of the cited
scoop would have been trained in the·operation of the fire
suppression system on the equipment. The scoop was not equipped
with any other firefighting equipment . . It is likely that a scoop
driver would have relied on the fire suppression system available
within arm's reach. A scoop driver's reliance on the inoperative
fire suppression system could have significantly and
substantially contributed to a serious fire hazard, resulting in
serious injury. The violation was reasonably likely to result in
serious injury and therefore was significant and substantial.
Battery Charging Station

Two citations were issued in conjunction with a§ 107(a )
imminent danger order on December 8, 1992.
Citation No. 3516674 charges a violation of 30 C.F.R .
75.340(a) (1), which requires that underground battery charging
stations be located in noncombustible structures or areas or be
equipped with a fire suppression system. Additionally, the
regulation requires that battery charging stations be ventilated
by intake air. The citation was issued for several reasons. The
inspector found 45 combustible cardboard boxes piled between
batteries and a brattice in one area of the station. The battery
charging station was littered with empty oil cans. The coal ribs
which formed the battery charging station were not adequately
§

128

insulated or fireproofed. The station was located between pillar
blocks of coal; there was no enclosing structure. The exposed
coal ribs and coal dust on the floor were combustible. At least
two of the battery chargers and the batteries were against the
coal ribs.
No fire suppression system was in place. There was no
automatic firefighting equipment. Two small hand-held 5-pound
fire extinguishers were in the area. There were hoses and jugs
of water in the charging station, but using water on an
electrical fire would only compound the problem. The batteries
and the charging units generate heat. Hydrogen, which can
quickly reach an explosive level, is a by-product of the battery
charging process.
Return air, with potentially high quantities of coal dust,
float coal dust, toxic or explosive fumes, methane, and carbon
monoxide, was ventilating the battery charging station. The air
came from the last working place on the active section.
Citation No. 3516675, as amended, charges a violation of
30 C.F.R. § 75.507-l(a), which requires that electric equipment
used in return air outby the last open crosscut be permissible.
The citation was issued because non-permissible 480-volt battery
chargers were being used in the battery charging station . .
The company contends that the two citations are duplicative
in that they involve only one violation, i.e., ventilating the
battery charging station with return air. It states that both
citations were terminated through one action taken by the
operator, i.e., changing the ventilation of the battery station
to intake air.
However, the battery charging station was not housed in a
fireproof structure, it was ventilated with return air, and nonpermissible equipment was being used in it while it was
ventilated with return air. These are distinct, separate
violations. Despite the fact that the violations arose out of a
single mining activity (battery charging) there were separate
violations of two separate regulations. Separate proof was
offered for each violation. See: Southern Ohio Coal Company,
4 EMSHRC 1459, 1462 (1982). Thus, to abate the violation of
§ 75.340(a) (1), substantial separate actions were required
besides changing the ventilation to intake air. The coal ribs
housing the station were insulated with a noncombustible sealer
to form a fire protection barrier between the coal ribs and the
charging units. The mine floor was cleaned. Rock dust was
applied to all the areas. The cardboard containers, plastic
129

containers and empty oil cans were removed from the underground
area of the mine.
The company also contends that the two violations were not
due to high negligence because there were mitigating
circumstances. It states that the battery charging station was
being ventilated pursuant to directions given by a prior MSHA
inspector and had been ventilated that way for a substantial
period before the citations.
Three or four days before the citation was served, the Mine
Superintendent, Billy Martin, told Inspector Johnson that he had
a ventilation problem concerning the battery charging station,
and showed him a small drawing or map to indicate the problem.
The problem he described did not indicate that station was in
return air. The inspector was leaving and stated that when he
returned (several days later} he "would try to help him on the
ventilation" problem. Tr . 234. When the inspector returned, on
December 8, 1992, he examined the battery charging station and
found that it was in return air . The inspector testified that
Martin had not told him, several days earlier, that the station
was in return air .
In looking back at the situation, the inspector testified
that "when I issued the imminent danger (order] [it] was my
understanding that Mr. Martin didn ' t know that he could use this
neutral air to dump into this charging station ... . "Tr. 232.
Travis Miller, the Mine Manager, testified that the battery
station "was ventilated pursuant to the direction of [Inspector]
Sloan and to his satisfaction. " Tr. 273 . However, Mr. Miller had
no firsthand knowledge of the condition of the battery station
prior to December 8 , 1992. I do not find that the prior
inspector, Marcus Sloan, approved the ventilation pattern for the
battery station that was later found by Inspector Johnson on
December 8, 1992 .
However , I find that Mr. Martin ' s effort to get advice from
Inspector Johnson concerning the ventilation of the battery
station several days before December 8, 1992, is a mitigating
factor that serves to reduce the operator's negligence from high
to moderate as to the violations involving ventilating the
battery station in return air. This factor does not mitigate the
high negligence involved in the failure to maintain the battery
station in a noncombustible structure or area, which is an
important part of the violation of§ 75 . 340(a} (1) .
The evidence sustains the inspector's finding of significant
and substantial violations as to the battery charging station.
130

Belt Conveyors

Three§ 104(a) citations were issued in conjunction with a
§ 107(a) imminent danger order on June 24, 1993.
The imminent danger order was issued based upon the
inspector's finding that a combination of hazards constituted an
imminent danger: the automatic fire sensor system for four
conveyor belts was inoperative; extensive accumulations of loose
coal, coal dust and float coal dust were present; and there were
damaged, broken, and stuck rollers.
The imminent danger order was terminated the following
afternoon, after the fire sensor system was repaired, the
accumulations were cleaned up, and the rollers were repaired or
replaced.
The company contends that the imminent danger order was
improper because the conveyor belts were not running and were in
the process of being cleaned and repaired at the time of the
inspection.
However, when Inspector Johnson arrived at the mine on
June 24, 1993, advance mining was underway in the active
workings. He met the mine superintendent, who told him the belt
conveyors were not running because a rock-picking table was
being repaired. Inspector Johnson crawled the belts. Even
though the shift had begun three hours earlier, he saw no
evidence of any effort to repair the fire sensor system, the
rollers, or to clean up the extensive accumulations of loose
coal, coal dust, and float coal dust .
The evidence sustains the imminent danger order and the
three§ 104(a) citations. The violations were significant and
substantial, as they were reasonably likely to cause serious
injury. The violations were obvious and demonstrated high
negligence.
Claim of Financial Hardship

Travis Miller, the mine manager, testified concerning Nats
Creek's ability to pay the penalties proposed by the Secretary.
In general, he stated that the price of coal was low and the cost
of mining it was high. These are common complaints in the mining
industry. He testified that the Sugarloaf No. 2 Mine was losing
money, but he had no information about assets, liabilities, ·
owners' salaries, business structure, or any other financial
data. To support his testimony, he offered a one-page unaudited
131

and unsigned consolidated income statement for the five months
ending May 31, 1994 (Respondent's Exhibit 2). The preparer of
the statement was not identified. No company records or tax
returns were offered to support the figures ·in the statement.
At the close of the hearing the judge gave Nats Creek
15 days from the date of the hearing to submit an audited
financial statement. No such statement was submitted.
The burden is on a mine operator to establish that payment
of the assessed civil penalties will adversely affect its ability
to continue in business. Absent proof that the imposition of
civil penalties would adversely affect a mine operator's ability
to continue in business, it is presumed that no such adverse
affect would occur. Sellersburg Stone Co., 5 FMSHRC 287 (1987),
aff'd. 736 F.2d 1147 (7th Cir. 1984).
Mr. Miller's testimony and the one-page unaudited income
statement do not meet Nats Creek's burden of proof that payment
of the penalties assessed would affect the operator's ability to
continue in business.
Civil Penalties

Respondent produces about 160,000 tons of coal a year .
From June 30, 1990, to June 30, 1994, Respondent had 135
violations of mine safety and health standards, for which it paid
$17,320 in civil penalties, and was cited with 48 other
violations with proposed ciyil penalties of $86,290 which are in
litigation.
As to each of the violations in the cases at bar, Respondent
made a good faith effort to achieve rapid compliance after being .
notified of the violation. The factors of negligence and gravity
are discussed above.
Considering all of the criteria for assessing civil
penalties in§ llO{i) of the Act, I find that the following civil
penalties are appropriate:
Citation No.

Date

4017965
4017967
4017975
4017980
4017968
3516674

12/1/92
12/1/92
12/1/92
12/1/92
12/1/92
12/8/92
132

Civil Penalty
235
235
$ 235
$ 235
$ 235
$6,500
$
$

3516675
4027495
4027496
4027497

$4,500
$2,000
$5,000
$4,000

12/8/92
6/24/83
6/24/83
6/24/83
CONCLUSIONS OF LAW

1. The judge has jurisdiction.
2. Respondent violated the mine safety standards as alleged
in each of the 10 citations i nvolved in these cases.
3. The evidence sustains the two§ 107(a) orders involved in
these cases.
ORDER

1. The 10 citations and the two§ 107(a) orders involved in
these cases are AFFIRMED.
2. Respondent shall pay civil penalties of $23,175 within 30
days of this Decision.

, ~Fi!MY~
~Fauver
/.}'I I

Administrative Law Judge
Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville,
TN 37215-2862 (Certified Mail)
Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, 415 Second
St., P.O. Box 351, Pikeville, KY · 41502 (Certified Mail)

/lt

133

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
-:-·

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

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

CIVIL PENALTY PROCEEDING
Docket No . WEVA 94- 247
A.C. No. 46-06958- 03578
Mountaineer Mine

MINGO LOGAN COAL COMPANY ,
Respondent
DECISION

Appearances:

Patrick L. DePace, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
Petitioner;
David J. Hardy, Esq . , Jackson & Kelly, Charleston,
West Virginia, for Respondent.

Before:

Judge Fauver

This civil penalty case involves three citations issued
under§ 104(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et s eq .
At the hearing the parties moved for approval of a
settlement of two of .the citations . The motion is granted in the
Order below .
The case was heard on Citation No. 3966956.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable
and probative evidence establishes the Findings of Fact and
further findings in the Discussion below :
F INDINGS OF FACT

1. Mingo Logan is the owner and operator of the Mountaineer
Mine , which produces coal for sales in or substantially affecting
inter state commerce .

134

2. On December 6, 1993, during an inspection of the Mingo
Logan Mountaineer Mine, MSHA Inspector Robert A. Rose was
accompanied by Matt Murray, the safety coordinator for Mingo
Logan. Inspector Rose traveled to the 8 Left section. A
contractor of Mingo Logan, Golden Chance Mining, Inc., was
responsible for the mining activity in the 8 Left section, which
was operated entirely by employees of Golden Chance Mining.
Golden Chance was performing advance mining in the conventional
pillar and retreat mining cycle, and was extracting coal.
Inspector Rose met Kentucky Mine Inspector Eugene White, who was
als0 inspecting the mine. Inspector White was accompanied by
Phil Adkins, a safety representative of Mingo Logan. No employee
of Golden Chance Mining accompanied either Inspector Rose or
Inspector White.
3. Inspector White informed Inspector Rose that he had found
smoking materials on a Fletcher roof bolter in the 8 Left
section . The smoking materials were 13 cigarettes and one butane
lighter. Based on this information, Inspector Rose issued
§ 104(a) Citation No. 3966956 to Mingo Logan Coal Company for a
violation of 30 C.F.R. § 75.1702.
4. Section 75.1702 forbids taking smoking materials into an
underground coal mine. It also requires the operator to
institute a smoking materials search program, approved by the
Secretary, "to insure that any person entering the underground
area of the mine does not carry smoking materials, matches, or
lighters. " Mingo Logan's smoking materials search program,
approved by MSHA, provides in part: "The search program is
systematic and conducted at least weekly on an irregular interval
and as often as necessary to ensure the effectiveness of the
program ." Exhibit G-3.
5. Under its agreement with Mingo Logan, Golden Chance
followed Mingo Logan ' s approved search program to search its own
employees. In doing so, it made random searches by having the
miners empty their pockets and relying on their honesty in
representing that they were not carrying smoking materials into
the mine. The search program did 'not involve patting down the
employees.
6. Golden Chance was not issued an identification number by
MSHA and was not regarded by MSHA as being subject to the
regulation requiring an operator to submit a smoking materials
search program for approval by MSHA. MSHA held Mingo Logan
responsible for any violations committed by Golden Chance or its
employees.
135

7 . Under its contract, Mingo Logan held Golden Chance
accountable for any civil penalties Mingo Logan was assessed for
violations committed by Golden Chance or its employees. It
deducted such civil penalties from its contract payments t o
Golden Chance .
DISCUSSION WITH FURTHER FINDINGS , CONCLUSIONS
Liability

Section 75 . 1702 of the regulations repeats a statutory
mandatory safety standard, which provides:
No person shall smoke, carry smoking materials , matches, or
lighters underground, or smoke in or around oil houses,
explosives magazines, or other surface areas where such
practice may cause a fire or explosion. The operator shall
institute a program, approved by the Secretary, to insure
that any person entering the underground area of the mine
does not carry smoking materials, matches, or lighters.
The inspector issued Citation No. 3966956 alleging a
violation of 30 C. F . R. § 75.1702 as follows :
The company was not following their approved smoking program
in that while writer was on regular inspection he came in
contact with state inspector Eugene White that informed me
that he had found smoking material, cigarettes (13) and a
(1) lighter on the fletcher roof bolting machine on 8 left
section 006-0 MMU . He was acco:mmened [sic] by Phil Adkins
company Safety . This smoking material was not observed by
writer but a citation was issued basic [sic ] on the State
inspect or findings. This is a contractor unit at this mine .
The Secretary contends that , since smoking materials were
found underground, Mingo Logan is strictly liable for a violation
of§ 75.1702. He reasons that the regulation requires the
operator to follow a search program that insures that smoking
materials are not taken underground; therefore, finding smoking
materials underground "reveals the ineffectiveness of the
operator's searches . . . . " Reply Brief, p. 10.
Respondent argues that it is not responsib l e for violations
by its independent contractor, Golden Chance, and that , moreover,
the contractor was in compliance by making searches in accordance
wi th Mingo Logan ' s search program approved by the Secr etary.

i36

The Act imposes strict liability on mine operators for
violations of safety or health standards at the mine regardless
of fault and regardless whether the violation was committed by an
independent contractor engaged by the mine operator. Western
Fuels - Utah , Inc . v. FMSHRC et al , 870 F.2d 711, 716 (D.C. Cir.
1989); Bulk Transportation Services, Inc. , 13 FMSHRC 1354, 1359
(1991); Republic Steel Corp., FMSHRC 5, 8- 10 (1979) .
The first sentence of § 75.1702 is a strict prohibition:
No person shall .
underground . . . .

carry smoking materials . . .

If smoking materials are found underground, there is a
violation of§ 75 . 1702 and the operptor is liable without regard
to fault. Thus, it is not relevant in determining an operator ' s
liability whether an independent contractor committed the
violation and could also be found liable. A mine operator may
not shield itself from liability by contracting with another to
carry out part of the mining activity at its mine .
The second sentence of the safety standard is a separate
requirement:
The operator shall institute a program, approved by the
Secretary, to insure that any person entering the mine does
not carry smoking materials, matches , or lighters .
Citation No. 3966956 alleges a violation of § 75.1702 in a
somewhat round-about way:
The company was not following their approved smoking program
in that [smoking materials were found underground]. * * *
This amounts to a charge of strict liability for the act of
allowing smoking materials to be carried underground. That is,
the Secretary is saying that finding smoking materials underground means , per se, that the operator was not following its
search program because under§ 75.1702 the program must "insure
that any person entering the underground area of the mine does
not carry smoking materials • . . . " I find this reasoning to be
round-about and unnecessary. The violation proved in this case
is simply the act of allowing smoking materials to be carried
underground . Questions of the adequacy of the search program,
how it was carried out, and the reasonableness of the operator ' s
r eliance on an independent contractor to make the searches ,
relate to the factor of negligence in assessing a civil penalty .
They are not relevant to the question of the operator ' s liability
for allowing smoking materials to be carried underground.
137

The strict liability of § 75 . 1702 imposes an obligation on
the operator to keep smoking materials out of its mine . It has a
duty to submit a search program to the Secretary for approval.
However, it may enhance this program in any way it sees fit ,
e.g., by searching miners every shift, patting them down, using a
dog to sniff for tobacco, paying a reward for reporting
violations, etc. Such decisions are left up to the operator.
I conclude that the citation, while somewhat awkwardly
written, sufficiently charges a ·violation of the first sentence
of§ 75.1702. That issue was adequately and fairly tried at the
hearing . Mingo Logan is therefore liable for the violation of
§ 75.1702.
Ci v il Penal ty

Section llO(i ) of the Act provides six criteria for
assessing a civil penalty:
The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil monetary
penalties, the Commission shall consider the operator ' s
history of previous violations, the appropriateness of such
penalty to the size of the business of the operator charges,
whether the operator was negligent, the effect on the
operator's ability to continue in business , the gravity of
the violation, and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after
notification of a violation. In proposing civil penalties
under this Act, the Secretary may rely upon a summary review
of the information available to him and shall not be
required to make findings of fact concerning the above
factors .
Mingo Logan is a large operator. In the two- year period
before the instant violation, it had 393 violations of mine
safety and health standards of which 167 were significant and
substantial within the meaning of the Act .
The operator demonstrated goo'd faith in an effort to achieve
rapid compliance after the instant citation was issued. Whether
it succeeds in maintaining compliance will depend on future
events.
The violation was very serious, since the presence of
smoking materials in an underground coal mine is highly
dangerous .

138

•·.

I find that the violation was due to ordinary negligence.
Mingo Logan had at least one prior occurrence of finding smoking
materials underground. Its method of executing its approved
search program was not thorough. For example, it did not pat
down the miners and it relied upon their honesty in representing1
that they were not carrying smoking materials underground. Since
a prior infraction was known by Mingo Logan, there was a duty to
increase the effectiveness of its search program {which was used
by Golden Chance as an agent ) .
Considering the criteria for civil penalties in§ llO(i), I
find that a civil penalty of $1 ,80 0 is appropriate for this
violation.
CONCLUSIONS OF LAW

1. The judge has jurisdiction.
2. Respondent, Mingo Logan Coal Company, violated 30 C.F.R.
75.1702 by allowing smoking materials to be carried into the
underground area of its Mountaineer Mine.

§

ORDER

1. Citation No. 3966956 is AFFIRMED.
2. The motion to approve settlement of Citation Nos. 3973786
and 3973787 for $100 in penalties is GRANTED.
3. Respondent, Mingo Logan Coal Company, shall pay total
civil penalties of $1,900 within 30 days of this Decision.

~~v'V)
William Fauver
Administrative Law Judge

1

A miner's representation could be verbal or by gesture
(emptying pockets to represent that no smoking materials are on
the miner's person).
139

Distribution:
Patrick L. De Pace, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203
(Certified Mail)
David J. Hardy, Esq. , Jackson & Kelly, P.O . Box 553, Charleston ,
WV 25322 (Certified Mail)

/lt

l4o

..
"

FEDERAL lllNE SAFETY AND HEALTH REVJ:BW COllKISSI:ON

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

FEB 6 · 1996.

.. DISCRIMINATION PROCEEDING
No. KENT 94-1274-0
... Docket
PIKE CD 94-16
...
.
.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
•
ADMINISTRATION (MSHA),
ON BEHALF OF CHARLES H.
.
DIXON, BERNARD EVANS,
RICHARD GLOVER, EDGAR OLDHAM, :
MARK MARCH, AND ELEVEN (11)
UNNAMED EMPLOYEES OF PONTIKI .
COAL CORPORATION,
Complainant
v.
:
:
PONTIKI COAL CQRPORATION,
Respondent

..

QBDER GBANTIHG

Before:

Pontiki No. 2 Mine
Mine IO 15-09571

PARTIAL DISMISSAL

Judge Melick

This case is before me upon the Respondent's Motions to
Dismiss raising the following issues: (1) the Commission lacks
jurisdiction in this case over those persons who have not filed
complaints under Section 105(c)(2) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et. seg., the "Act" and in
cases where the secretary has not made a written determination
whether such complaints have merit (under Sections 105(c)(2) and
(3) of the Act); (2) that the complaint of Charles H. Dixon
must also be dismissed for lack of jurisdiction because he was
not a member of a class of persons protected under Section lOS(c)
when the alleged discrimination occurred; (3) that the complaint
is defective under Commission Rule 44(a), 29 C.F.R. § 2700.44(a);
and (4) that the complaint herein is untimely. 1

'l'he Secretary's Motion f~r Summary Decision on the merits
filed January 13, 1995, is premature as the Motions to Dismiss
may be dispositive on preliminary issues. The Secretary's Motion
also appears to be based upon f~cts still at issue. See
Commission Rule 67, 29 C.F.R. § 2700.67.
1

141

The undisputed record shows that Charles H. Dixon, alone, .
filed a complaint of discrimination pursuant to section 105(c)(2)
of the Act on April 26, 1994, alleging the following
discriminatory actions·:
Pontiki Coal Corporation, through and by management
personnel, advised miners that they could not choose a
representative of miners who was a representative of the
United Mine workers of America. The miners were further
advised that if they chose a UMWA representative that
Pontiki would be forced to spend thousands of dollars to
defend their position and that only employees of Pontiki
will be recognized as a representative of miners.
Management for Pontiki, on or about March 11, 1994, further
implied that the miners' jobs would be less secure as a
result of the company having to spend thousands of dollars
to defend their position and that if the company was not
forced to spend this money on lawyers that it would mean
more money for them.
Management for Pontiki on April 15, 1994, properly received
by certified mail pursuant to 30 C.F.C. (sic] part 40 a
certificate of representation of which they have failed to
properly recognize.

2

Section 105(c)(2) provides, in part, as follows:

Any miner or applicant for employment or representative
of miners who believes that be bas been discharged, interfered
with, or otherwise discriminated against by any person in
violation of this subsection may, within 60 . days after such
violation occurs, file a complaint with the Secretary alleging
such discrimination. Upon receipt of such complaint, the
Secretary shall forward a copy of the complaint to the respondent
and shall cause such investigation to be made as he deems
appropriate. such investigation shall commence within .15 days of
the Secretary's receipt of the complaint, and if the Secretary
finds that such complaint was not frivolously brought, the
Commission, on an expedited basis 'upon application of the
Secretary, shall order the immediate reinstatement of the miner
pending final order on the complaint. If upon such
investigation, the secretary determines that the provisions of
the subsection have been violated, he shall immediately file a
complaint with the Commission, with service upon the alleged
violator and the miner, applicant for employment, or
representative of miners alleging such discrimination or
interference and propose an order granting appropriate relief.
14 2

In a letter to Mr. Dixon dated September 15, 1994, the
Secretary advised Dixon in relevant part as follows:
Your complaint of discrimination, under section 105(c) of
the Federal Mine Safety and Health Act, has been
investiqated and the results carefully considered.
Based on the results of this investiqation, the Mine Safety
and Health Administration (MSHA) has determined that, in its
opinion, a violation of section 105(c) of the Act has
occurred and that you have been discriminated against.
MSHA, through the Office of the Solicitor, has prepared and
filed a complaint on your behalf, requesting that Federal
Mine Safety and Health Review Commission order relief which
would remedy the discrimination.
Thereafter on September 6, 1994, presumably under
section 105(c)(2) of the Act, the Secretary filed a complaint of
discrimination with this Commission alleging in part as follows:
5. The following non-employees of Pontiki Coal Corporation
have been appointed as duly authorized representatives of
miners for the Pontiki No . 2 mine all within the meaning of
section 105(c) of the Act (30 u.s.c. 815{c)): Charles
Dixon, Bernard Evans, Don Riley, Charles Johnson,
Richard Glover, Edgar Oldham, and Mark March. Said
representatives of miners were appointed by eleven employees
of Pontiki Coal Corporation working at the Pontiki No. 2
mine .

6.
From March 1994 to present, Pontiki coal Corporation
has discriminated against the non-employee representatives
of miners and the eleven Pontiki coal Corporation employees
who appointed said non-employee miners' representatives.
The acts of discrimination are in violation of section
105(c) of the Act 30 u.s.c. 815(c). The acts of
discrimination engaged in by Pontiki Coal Corporation
include but are not limited to the following:
(a) refusal to recognize the non-employees as
representatives of miners: (b) posting the appointment
notice with the names of the non-employees representatives
of miners on the mine bulletin board with the admonishment
that Pontiki coal corporation· would not recognize or honor
the appointment of non-employees as miners' representatives;
and (c) holding meetings with hourly paid employees, to
include the eleven employees described above, and
threatening said hourly paid employees with job

14 3

.·
dispute on the issue of compliance with the certification
requirements and that issue cannot be resolved without
evidentiary hearings.
The Respondent further maintains that the Complaint should
It is undisputed that Dixon's initial
Complaint was received by the Secretary on April 26, 1994. The
Complaint was not filed with this Commission until September 2,
1994, some 129 days later. The Secretary's written determination
that Dixon had been discriminated against, which also states that
a complaint had already been filed at the Commission on his
behalf, was dated September 15, 1995. This filing delay exceeded
the time limits set forth in section 105(c)(3) of the Act.
However, as this time limit is not jurisdictional, a hearing will
als.o be needed for the parties to present evidence on the issues
of whether such delay was justified and whether the operator has
been prejudiced by such delay. Oral argument will also be held at
such hearings on the issue of whether the Secretary has complied
with Commission Rule 44(a) and, if not, what sanctions should be
imposed.
be dismissed as untimely.

ORDER

The Complaint herein, insofar as it purports to name as
individual Complainants persons other than Charles H. Dixon, is
dismissed. The Complaint of Charles H. Dixon is further limited
as provided in this Order.
Hearings will be scheduled in the near fu
presented in the motions to 'smiss which have
herein.

ary Meli
dministr

on the issues
been decided

ge

Distribution:
Brian w. Dougherty, Esq., Office of
e Solicitor,
U.S. Department of I..clbor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215-2862
Timothy M. Biddle, Esq., Thomas c. Means, Esq., Crowell & Moring,
1001 Pennsylvania Ave., N.W., Washinqton, D.c. 20004-2595
/jf

144

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

FEB 6 1995
DISCRIMINATION PROCEEDING

BLAKE SORENSEN,
Complainant

Docket No. WEST 94-594-D
DENV CD 94-10

v.
INTERMOUNTAIN MINE SERVICES,
Respondent

Apex Mine

DECISION
Appearances:

Blake Sorensen, Ferron, Utah, pro se;
Thomas J. Erbin, Esq., Prince, Yeates &
Geldzahler, Salt Lake City, Utah,
·f or Respondent.

Before:

Judge Manning

This case is before me on a complaint of discrimination
brought by Blake Sorensen against Interrnountain Mine Services
under section lOS(c) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 815(c) (1988) ("Mine Act").
For the reasons set
forth below, I find that Mr. Sorensen did not establish that his
discharge by Interrnountain Mine Services ("Intermountain") was
motivated by his protected activity. Accordingly, I find that
Mr. Sorensen was not discriminated against by Intermountain in
violation of the Mine Act.
Mr. Sorensen filed a discrimination complaint with the
Department of Labor's Mine Safety and Health Administration
("MSHA") pursuant to section 105(c) (2) of the Mine Act, 30 u.s.c.
§ 815(c) (2).
MSHA concluded that the facts disclosed during its
investigation did not constitute a violation of section lOS(c).
Mr . Sorensen then instituted this proceeding before the Commission pursuant to section 105(c) (3), 30 u.s.c. § 815(c) (3). A
hearing was held on January 11, 1995, in Salt Lake City, Utah .
The parties elected not to file post-hearing briefs .
FINDINGS OF FACT
Mr. Sorensen was employed by Intermountain from June 21,
1993 through March 15, 1994. During most of this period he was a
roof bolter at the Apex Mine, an underground coal mine. The mine
is owned by Andalex Resources and operated by Intermountain. On
the day shift on March 15, 1994, Mr. Sorensen and · scott Olsen,
another miner, installed roof bolts in an entry that had been
145

mined with a continuous mining machine earlier that shift. After
they finished roof bolting, they applied rock dust to the r ecently mined area using the rock duster on the roof bolting machine.
During the rock dusting operation, Mr. Sorensen slowly trammed
the roof bolting machine back out of the entry and Mr. Olsen
applied rock dust to the roof and ribs by holding the end of the
hose attached to the duster. They were the only miners in the
entry.
An MSHA inspector was at the mine on March 15, and Mr. Olsen
was wearing a dust pump supplied by MSHA to sample for respirable
dust.
The shift began at 7:00 a . rn. and was scheduled to end at
3 :0 0 p.m . At about 10:00 a.m., Matt Brenemen, the miner s ' foreman, arr i ved in the entry along with the MSHA inspector . Olsen
a nd Sorensen had bo l ted the area and were about finished rock
dusting. They turned off the rock duster when Mr. Brenemen
signaled with his cap light. Mr. Brenemen asked the crew, "What
the fuck are you doing?" Mr. Sorensen replied that he was just
doing his job, rock dusting like he always does. Mr. Brenemen
told them that they could not rock dust while a respirable dust
pump was on. Mr. Sorensen replied by saying "fuck you" to Mr.
Brenemen. Mr. Brenernen then said, "if you say that to me again,
you are out of here . " Mr . Sorensen replied by saying "fuck you "
again.
Mr. Brenemen said '' let's go" and told Mr. Sorensen to get
his stuff. Mr. Olsen and the MSHA inspector were present during
this conversation , which lasted no more than 20 seconds. (Tr. 23 ,
51) .
A moment later, as they were preparing to leave the mine,
Mr . Brenernen told Mr. Sorensen that he could not say that to him.
Mr. Sorensen replied by saying that if Brenemen could swear at
him, then he could swear ·back at Brenemen. Mr. Brenemen escorted
Mr . Sorensen out of the mine. While Mr . Sorensen was preparing
to take a shower, Mr . Brenernen asked him what was bothering him.
Mr. Sorensen did not reply. After he showered and dressed, Mr .
Sorensen filled out his time card and left the mine .
It was Mr.
Sorensen's understanding that he had been fired. He was not
issued a discharge slip by Interrnountain. These events are not
disputed by the parties and are supported by the testimony of
Sorensen and Olsen, and by Mr. Sorensen's statement to MSHA's
special investigator, Ex. R- 1 . Mr. Brenernen is no longer employed by Interrnountain and he did not testify at the hearing.
As a general matter, there is a lot of cursing at the Apex
Mine. Mr. David Drips, president of Interrnountain, testified
that it is "a very crude society that takes place down there ."
(Tr. 58). He stated that the responsive " fuck you" is not
"totally improper " and h e has been responded to that way .
Id.
He went on to state, however, that when a supervisor tells an
employee to stop cursing at him, he must do so or face disciplinary action .
(Tr. 55, 58). He testified that a miner cannot
continue to curse his supervisor in front of other miners, after
146

having been told to stop, because it will "erode his supervising
capabilities."
(Tr 55). He also testified that if a miner is
told to leave the mine for continuing to curse at his supervisor
after being warned not to do so, the miner would generally be
given the opportunity to explain his behavior, to see "if we can
understand what his problem was."
(Tr. 55, 57, 59).
In such a
situation, the discipline, if any, is usually less than a discharge.
Id. Mr. Olsen testified that he does not know of an
instance in which a miner has continued to say "fuck you" to a
supervisor after being warned not to do so.
(Tr. 47). I credit
the testimony of Drips and Olsen in this regard. There is no
specific evidence as to whether any other miner has been discharged or otherwise disciplined by Intermountain for using
similar language.
SUMMARY OF THE LAW

Section 105(c) (1) of the Mine Act protects miners from
retaliation for exercising rights protected under the Mine Act.
The purpose of the protection is to encourage miners "to play an
active part in the enforcement of the Act" recognizing that, ''if
miners are to be encouraged to be active in matters of safety and
health, they must be protected against any possible discrimination which they might suffer as a result of their participation."
S. Rep. No. 181, 95th Cong., 1st Sess. 35 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 623 (1978).
A miner alleging discrimination under the Mine Act establishes a prima facie cas~ by proving that he engaged in protected
activity and that the adverse action complained of was motivated
in any part by that activity.
Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (October 1980),
rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). The mine operator may rebut
the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no way motivated by
the protected activity. Secretary on Behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). If an
operator cannot rebut the prima facie case in this manner, it may
nevertheless affirmatively defend ~y proving that it was also
motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected activity alone.
Haro v. Magma Copper Co., 1935, 1937 (November 1982).
Because direct evidence of actual discriminatory motive is
rare, illegal motive may be established through circumstantial
evidence or a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2510-11 (November 1981}, rev'd on other grounds sub nom .
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).

147

Examples of circumstantial evidence that tend to show discriminatory intent on the part of the mine operator include:
(1) knowledge of the protected activity; (2) hostility or animus towards
the protected activity; (3) coincidence in time between the protected activity and the adverse action; and (4) disparate treatment of the complainant. Chacon, 3 FMSHRC at 2510.
DISCUSSION WITH FURTHER FINDINGS OF FACT
AND

CONCLUSIONS OF LAW
There is no doubt that Mr. Sorensen had a statutory right to
voice his concerns about the safety of his workplace without fear
of retribution by management .
It is evident that he believed
that MSHA regulations required that the dust pump on Mr. Olsen be
operating during the entire 8-hour shift, including when the crew
was rock dusting.
(Tr. 13, 30; Exs . R-1, R-2) .
It appears that
he may have been concerned that if the crew obeyed Mr. Brenemen's
order not to rock dust with the dust pump running, the health and
safety of his work environment would have been adversely affected. His response to Mr. Brenemen's order could be construed as a
safety complaint or a work refusal and, thus, protected activity.
Mr. Sorensen also presented evidence that Mr. Brenemen had
asked him and other miners to work in an unsafe manner in the
past.
(Tr. 38, 61; Exs. R-1, C-2, C-3) .
He testified that he
had confronted Brenemen when he was asked to do anything that was
unsafe or illegal. Tr. 61. Such statements are protected activity.
Based on the foregoing, and evaluating all of the evidence
in a light most favorable to Complainant, I conclude that Mr.
Sorensen engaged in protected activity.
I find, however, that the adverse action complained of was
not motivated by Complainant's protected activity.
I base this
finding primarily on the evidence presented by Mr. Sorensen, but
I also rely on credible evidence presented by Intermountain .
First, Mr. Sorensen testified that he doubts that Mr . Brenemen
terminated him because of his past safety complaints.
(Tr. 3940, 61-62).
In addition, there is no other evidence in the
record, including circumstantial evidence, linking Mr. Sorensen's
past safety complaints with his termination. Although· Mr.
Sorensen stated, in documents submitted in this case, that Mr.
Brenemen "did a lot of things that were against the law," he
testified that he and Brenemen "g6t along all right."
(Ex. R-2;
Tr. 32-22).
I cannot draw an inference from the evidence that
Brenemen or Intermountain discharged Mr. Sorensen for his past
safety complaints.
Second, I find that Mr. Sorensen has not established that he
was terminated from his employment with Intermountain as a result
of his protected activity on March 15. Mr. Sorensen contends
that he was discharged because he questioned Mr. Brenemen's order
148

to stop rock dusting while the dust pump was running. Mr.
Sorensen testified, however, that he does not really ~now why he
was terminated.
(Tr. 14-15). He stated that he was just doing
his job when Mr. Brenemen fired him "apparently" for rock dusting
while Scott Olsen's dust pump was operating.
Id.
He testified
that the crew always rock dusts an entry after bolting the roof
and that he had followed that procedure while under Brenemen's
supervision, including when a dust pump was operating.
{Tr. 10,
12, 30). Mr. Olsen testified that he has rocked dusted while
wearing a dust pump and that, on at least one previous occasion,
Brenemen has asked him to turn off the dust pump.
(Tr. 47).
Brenemen did not ask him to turn it off on March 15.
Id.
It does not appear that any miner, including Mr. Sorensen,
has ever been disciplined in the past for rocking dusting an
entry while a dust pump was operating. Because Brenemen did not
testify at the hearing, it is not clear why he did not want the
crew to continue rock dusting.
I find, however, that the record
does not contain evidence of past hostility towards or discipline
to a miner who rock dusted while a dust pump was operating.
Mr. Sorensen -testified that "more than likely" he would have
kept on working without complaint if Brenemen had asked the crew,
in a civil manner, to stop rock dusting the entry, or if Brenernen
had similarly asked Mr. Olsen to turn off his dust pump.
(Tr.
35).
I find that Sorensen's rather aggressive and contemptuous
response to Mr. Brenemen's statements was the direct result of
the manner in which Brenemen addressed him. He believed that he
had been cussed out by his supervisor and assumed that he had the
right to curse him back.
(Tr. 14, 23, 27; Ex. R-1).
As he
stated at the hearing, if "he cursed me, why can't I curse him."
(Tr. 2 3) .
I conclude that Mr. Sorensen continued to say "fuck you" to
Mr. Brenemen because of Brenemen's language, rather than because
Brenemen was telling him to turn off the rock duster.
In turn, I
find that Brenemen's response and subsequent actions were caused
by Mr. Sorensen's contemptuous "fuck you" reply and his refusal
to talk about the matter further before he left the mine. The
evidence reveals that he might not have been discharged if he had
talked about the matter with his supervisor before leaving the
mine.
I also find that the evidence does not support an inference
that Brenemen terminated Mr. Sorensen because he engaged in protected activity.
In reaching this conclusion, I have considered
whether Intermountain used Mr. Sorensen's contemptuous response
to Brenemen as a pretext for terminating him in order to mask the
real reason for his termination: his protected activity. A mine
operator cannot hide behind a miner's abusive language to shield
an otherwise unlawful discharge.
In this case, however, I find
149

that Mr. Sorensen would have been discharged for his contemptuous
response to Mr. Brenemen alone.
In support of his contention that he was fired for making a
safety complaint, Mr. Sorensen introduced a copy of an unemployment . compensation form entitled "Employer Notice of Claim Filed".
(Ex. C-1). The form, which is addressed to Intermountain, advised Intermountain that Mr. Sorensen had applied for unemployment compensation and that he reported the reason for his termination as "[f]ired for obscene language." Id.
In the part of
the form to be filled out by the employer, Intermountain's Office
Manager, John Drips, wrote that Mr. Sorensen was discharged for
"insubordination in front of crew and inspector" and "failure to
follow directions." Id. The Office Manager also stated:
"I do
not believe Blake was fired for obscene language ..• " Id. Mr.
Sorensen relies on this language to support his claim that he was
actually fired for raising a safety issue, rather than for cussing at his supervisor.
I do not believe that the form supports Mr. Sorensen's
position.
It is clear from the record that he was not discharged for using profanity, cursing is common at the mine. Rather,
a preponderance· of the evidence establishes that he was discharged for continuing to say "fuck you" to his supervisor in
front of Mr. Olsen and an MSHA inspector, after being warned to
stop.
As David Drips testified, contemptuous responses like
those of Mr. Sorensen will tend to "erode" the ability of a
supervisor to manage his crew.
(Tr. 55; Ex. C-1}.
I do not have the authority to determine whether Mr. Sorensen's discharge was fair or reasonable. The "Commission does not
sit as a sup~r grievance .board to judge the industrial merits,
fairness, reasonableness, or wisdom of an operator's employment
policies except insofar as those policies may conflict with
rights granted under section 105(c) of the Mine Act." Delisio v.
Mathies Coal Co., 12 FMSHRC 2535, 2544 (December 1990) (citations
omitted).
I conclude that Mr. Sorensen's discharge did not
violate section 105(c) of the Mine Act.
ORDER

It is ORDERED that the complaint filed by Blake Sorensen
against Intermountain Mining Serv'ices for violation of section
lOS(c} of the Mine Act is DISMISSED.

Richard w. Manning
Administrative Law Judge

150

Distribution:
Mr. Blake Sorensen, P.
(Certified Mail)

o. Box 54, Ferron, UT

84523

Thomas J. Erbin, Esq., Prince, Yeates & Geldzahler, City Center
I, Suite 900, 175 East Fourth South, Salt Lake City, UT 84111
(Certified Mail}

rwm

151

PBDBllL KI1IB SU'BTY DD JIBALTJI RBVJ:BW COIDllSSIOB
OFFICE OF ADMINISTRATIVE LAW JLOGES
2 SKYLINE, 10th FL~
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB 1 0 1995
SECRETARY OF LABOR, '
MINE AND SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
WILLIAM PLOXA,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. PENN 94-532-D
MSHA Case No. WILK CD 94-02
Knickerbocker M-112

READING ANTHRACITE COMPANY,
Respondent
ORDER OF DISMISSAL

Before:

Judge Feldman

The Secretary has filed a settlement motion that seeks my
approval of his request to withdraw the discrimination complaint
filed in this matter on behalf of William Ploxa ~pursuant to
Section 105(c) (2) of the 'Mine Safety and Health Act of 1977, 30
u.s.c. § 815(c)(2). The settlement terms include Mr. Ploxa's
withdrawal of his subject complaint filed with the Mine Safety
and Health Administration as well as the recision of the $5,000
civil penalty proposed by the Secretary against the respondent in
this case. In return, the respondent has agreed to expunge Mr.
Ploxa's personnel file of any and all evidence of disciplinary
action taken against him as a result of his conduct on or about
March 25, 1994, and any related subsequent conduct.
Under the circumstances herein, permission for the Secretary
to rescind the proposed civil penalty and withdraw the complaint
filed on behalf of William Ploxa IS HEREBY GRANTED. Upon
satisfaction of the terms of the settlement agreement, the above
captioned discrimination complaint IS DISMISSED with prejudice.

152

Distribution:
Anthony G. O'Malley Jr., Esq . , Office of the Solicitor, U.S.
Department of Labor, Room 14480, Gateway Building, 3535 Market
Street, Philadelphia, PA 19104
Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich, P . C.,
Second Street & Laurel Blvd., P.O. Box 450, Pottsville, PA 17901
/rb

1 53

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

FEB 1 0 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF Harold J .
Wilson,

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. LAKE 95-177-DM
MSHA Case No. NC-MD-95-05

Complainant

:

Mine:

Monon Quarry

v.
Mine I.D. No. 12-00194
VULCAN MATERIALS COMPANY,
MIDWEST DIVISION,
Respondent

ORDER OF DISMlSSAL
Before:

Judge Melick

The Secretary of Labor, in essence, requests to withdraw its
Application for Temporary Reinstatement on behalf of Harold J.
Wilson on the basis of an agreement accepted by Mr. Wilson,
providing an economic settlement . Under the circumstances
herein, permission to withdraw is granted.
29
.F.R. § 2700.11.
This Temporary Reinstatement roce ding is ther fore dismissed.

Gary M
Adm.ini
Distribution:
Miguel J . Carmona, Esq., Office f the Sol citor, U.S. Department
of Labor, 230 s. Dearborn Street · 8th Floor, Chicago, IL 60604
William K. Doran, Esq., Smith, Heenan & Althen, 1119 Vermont
Ave., N.W . , Washington, D.C.
20005
/jf

154

Distribution:

I Donna E. Sonner, Esq., Office of the Solicitor, u.s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862
David R. Joest, Esq., Division Counsel, Peabody Coal Company,
1951 Barrett Court, P.O . Box 1990, Henderson, KY 42420-1990
Carl B. Boyd, Esq., Meyer, Hutchinson, Haynes and Boyd, 120 North
Ingram Street , Henderson, KY 42420
/ jf

155

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22 041

FEB 1 5 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No . WEVA 93-392
A. C. No. 46-06958-03561 ·

v.

Mountaineer Mine
MINGO LOGAN COAL COMPANY,
Respondent
DECISION

Appearances :

Before:

Patrick L. DePace, Esq., Office of the Solicitor,
U. S. Department of Labor, Arlington, Virginia,
for the Secretary;
David J. Hardy, Esq., Linden R. Evans, Esq.,
Jackson & Kelly, Charleston, West Virginia, for
Respondent.

Judge Maurer
STATEMENT OF THE CASE

In this civil penalty proceeding, brought by the Secretary
of Labor (Secretary) against the Mingo Logan Coal company
(Mingo Logan) pursuant to Section lOS(d) of the Federal Mine
Safety and Health Act of 1977 (the Act), the Secretary charges
Mingo Logan with a violation of the training requirements found
in Part 48, Title 30, Code of Federal Regulations.
Pursuant to notice, the case was heard in Beckley,
West Virginia, on October 20, 1994. At the hearing, Inspector
Robert A. Rose testified for the Secretary. Messrs . Matthew
Murray and James Mullins testified for Mingo Logan. The parties
simultaneously filed briefs on January 17, 1995, which I have
duly considered in making the following decision .
STIPULATIONS

At the hearing, the parties entered the following
stipulations into the record (Tr. 40-43):

1. Mingo Logan is the operator of the Mountaineer Mine and
operations of the Mountaineer Mine are subject to the Mine Safety
and Health Act.
156

2. Robert A. Rose is an authorized representative of the
Secretary of Labor.
3. The Administrative Law Judge has jurisdiction to hear
this case.
4. True copies of Citation No. 3999455, and the January 8,
1993 modification changing the violation to a section 104(g) (1)
order, were served on the respondent.
5. The imposition of the proposed civil penalty will not
affect the ability of Mingo Logan to continue in business.
6 . The proposed assessment data form (MSHA Form No. 1000179) contained in Exhibit A attached to the Secretary's Petition,
accurately sets forth the size of Mingo Logan in production tons
per year, the size of the Mountaineer Mine in production tons per
year, the total number of assessed violations for a 24-month
period preceding the citation at issue and the total number of
inspection days for a 24-month period preceding the date the
citation was issued.
7. Timothy Sargent received newly employed experienced
miner training when he should have received newly employed
inexperienced miner training [new miner training].
FINDINGS. CONCLUSIONS.

AND DISCUSSION

Mingo Logan operates a large underground coal mine known as
the Mountaineer Mine, located in Mingo County, West Virginia.
Beginning in the late summer of 1991, Mingo Logan contracted with
Mahon Enterprises (Mahon), an independent contractor registered
with MSHA, for the performance of various mining-rated services
at the mine. One such contract, dated March 2, 1992, was for the
performance of construction work at the mine; more specifically,
the installation of an underground 72-inch belt conveyor system .
Mahon started the job in late May or early June of 1992, and
completed the work in September of 1992.
On August 3, 1992, MSHA Inspector Robert A. Rose·, during a
regular quarterly inspection of the Mountaineer Mine, issued
Section 104(a) Citation No . 3999455 to Mingo Logan for a
violation of 30 C.F.R. S 48.5, after an audit of the training
records for Mahon revealed that four employees of Mahon had
received newly employed experienced miner training when in fact,
according to the records provided· at the time, the four employees
did not qualify as experienced miners, and therefore, should have
received newly employed inexpe~ienced miner training [new miner
training]. On January 8, 1993, Inspector Rose modified the
citation to a section 104{g){l) order, and it was assessed a
civil penalty of $5500 for the violation. However, on April 28,
1993, Inspector Rose modified the then (g){l) order back to the
1 57

....
original section 104(a) citation, apparently without effective
notice to Mingo Logan, and in any event, the civil penalty was
never reassessed after the last modification. Furthermore, at
hearing, the Secretary requested that the citation at bar be
further modified to delete the names of three of the four
employees identified by Inspector Rose as not having received the
proper training. This proposed modification was not objected to
and is appropriate because, although the records were not
available to Inspector Rose at the time of the original issuance
of the citation, documentation has been subsequently provided
which indicates that the three miners had in fact been properly
classified and trained as newly employed experienced miners.
Accordingly, the citation was modified to reflect that the only
individual who did not receive the proper training was Mahon
employee Timothy Sargent.
It is undisputed that Timothy Sargent did not meet the
regulatory definition of an experienced miner, and therefore, was
improperly trained to the wrong standard. Mahon itself was also
cited and has already paid a civil penalty of $1300 for the
uncontested (by Mahon) violation.
The Secretary alleges in this case that Mingo Logan, the
production-operator, also violated 30 C.F.R. § 48.5 by failing to
ensure that an employee of Mahon, its independent contractor,
working at its Mountaineer Mine was properly trained. This in
accordance with his "overlapping" compliance theory which is
contained in the MSHA Program Policy Manual. 1
Timothy Sargent was hired by Mahon and given the newly
employed experienced miner training required by 30 C. F.R. § 48.6
on May 27, 1992, based on the now known to be erroneous belief
that he was an experienced miner who had just been laid off at a
coal mine in Kentucky. Mr. Lenville Mahon had relied on verbal
representations made by Sargent and others rather than upon the
written application Sargent submitted. For some reason he failed
1

Volume III, Part 45 of MSHA's Program Policy Manual 6
(07/01/88 Release III-1) states in pertinent part that :
This "overlapping" compliance responsibility means that
there may· be circumstances in which it is appropriate to
issue citations or orders to both the independent contractor
and to the production-operator for a violation. Enforcement
action against a production-operator for a violation(s)
involving an .independent contractor is normally appropriate
in any of the following situations: • • • (3) when the
production-operator's miners are exposed to the hazard;
• • • • In :1ddition, the production-operator may be required
to assure continued compliance with standards and
regulations applicable to an independent contractor at the
mine.
158

to review the written application Sargent submitted. It was this
same document, that when reviewed by MSHA provided the basis for
the instant citation, i.e., that Sargent did not meet the
regulatory definition of an experienced miner.
Mingo Logan's major complaint about being cited in this
instance is that Mahon was contractually responsible for hiring,
training, and supervising its own employees, and it did so.
Mingo Logan had no authority to dictate to Mahon who to hire or
fire, nor did Mingo Logan have any control over Mahon employees
once on the job. In short, Mingo Logan objects to being held
liable for a training regulation violation committed entirely by
Mahon .
Unfortunately for Mingo Logan, as the operator of the
Mountaineer Mine, it is within the wide discretion of MSHA to
hold them strictly liable for all violations of the Act which
occur on the mine site, whether committed by one of their own
employees or an employee of one of their contractors, in the
performance of its contractual obligations to the production
operator. This includes the discretion to cite l2Q.th the
production-operator and the independent contractor for a
violation committed by a contractor's employee . .s.e..e_, e.g.,
cathedral Bluffs Shale Oil Co., 6 FMSHRC 1871 (August 1984),
rey'd on other grounds, Brock v . cathedral Bluffs Shale Oil Co.,
796 F.2d 533 (D.C. Cir 1986); Consolidation Coal Co.,
11 FMSHRC 1439 (August 1989); Bulk Transportation Services,
I.n.Q..._ 1 13 FMSHRC 1354 (September 1991); and W-P Coal Co.,
16 FMSHRC 1407 (July 1994).
In fact, my reading of the Commission's latest pronouncement
on this point, the W-P Coal Co. case, cited supra, indicates to
me that the Secretary has virtually unbridled discretion to cite
whomever he pleases in a multiple operator scenario, including,
as here, .b.Qth operators. The Commission has reserved only a
review of the Secretary's enforcement decision for an abuse of
discretion, i.e., is it unconscionable, arbitrary or capricious.
If not, it is permissible.
The facts of this case demonstrate at least an arguable
basis for believing that because of the failure to prov.i de the
required training to Sargent, Mingo Logan employees were
potentially exposed to the hazards resulting from the violation .
This is one of the grounds specifically stated in the Program
Policy Manual as justification for enforcement action against a
production-operator for a violation actually committed by an
independent contractor. And this is in fact the basis upon which
Inspector Rose cited Mingo Logan. Mahon employees worked in an
adjoining entry no more than 80 feet from the belt line Sargent
was working on and in the same split of air as Mingo Logan

159

employees. Additionally, they utilized the same buses and
haulageways and they traveled in and out of the mine through the
same entry. At times, Mingo Logan employees were required to
cross under the belt line being constructed by Mahon and their
employees were intermingled on this and other occasions
underground in the mine. Thusly, in the opinion of the
inspector, the inadequately trained Mahon employee potentially
exposed Mingo Logan employees to those hazards created by the
inadequate training. I cannot find that he abused his discretion
in citing Mingo Logan, as well as Mahon for the violation at bar
even through the inspector did not have any positive proof that
Mr. Sargent actually interacted with any Mingo Logan employees.
The assumption was that he did and I do not think it can be
absolutely ruled out in the record. At any event, the issue
before me is not whether or not Sargent mingled with Mingo Logan
employees, but rather, whether Inspector Rose abused his
discretion in citing Mingo Logan for the violation. As I have
stated before, I cannot find that he did.
Accordingly, I find that Mingo Logan violated 30 C.F.R.

S 48 . 5, as alleged.
A "significant and substantial" violation is described in
section 104(d)(l) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. S 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 Diyision,
National Gypsum co., 3 FMSHRC 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.

160

In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129 (August 1985), the commission stated further as follows:

We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U. S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d) (1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U. s. Steel
Mining Company, InQ., 6 FMSHRC 1866, 1868 (August
1984); u. s. Steel Mining company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
A violation of 30 C.F.R. § 48.5 is found to have occurred.
The discrete safety hazard contributed to by the violation is
that of a miner being unprepared for the hazards he might
encounter underground, as well as the hazard, that he, the
untrained miner, might present to others he comes into contact
with in the course of his work underground.
What is at issue in this case are the third and fourth
elements of the Mathies test.
The Secretary's argument is that because of the difference
in the nature and length of the training which should be given to
a newly employed inexperienced miner vice a newly employed
experienced miner, Mr. Sargent was dangerously short-changed in
the training department. The regulations require a minimum of
40 hours of training for inexperienced miners, whereas there is
no minimum time requirement for training of experienced miners.
Furthermore, the training required for newly employed experienced
miners does not include instruction in the subjects of health,
cleanup, rockdusting, electrical hazards, first aid or mine
gases. And even in the subjects which are covered in both
experienced and inexperienced miner training, the training given
to an inexperienced miner is generally much more in depth than
the training provided to an experienced miner.
In this particular case, the training which Mr. Sargent ·
received did, in fact, cover some of the subjects which are
specifically required for in~xperienced miner training even
though not required for the experienced miner training he was
given. However, the Secretary points out that his training only
took approximately 4 to 5 hours versus the 40 hours training
that he properly should have received. He later received
20 additional hours of training from Mahon to abate the
section 104(g) (1) order that was issued to Mahon for this
violation.

161

-·. ···

The Secretary also points out that Mr. Sargent was involved
in an accident during his employment with Mahon as further
justification for making this citation "S&S". Sargent attempted
to lift a moving conveyor belt with his back in order to release
a co-worker whose arm had been caught between the belt and a
bottom roller. The Secretary argues that had Mr. Sargent
received the proper training, he would have been more aware of
the hazards associated with underground coal mines, including
moving belts and therefore more capable of dealing with an
emergency situation rather than reacting as he did, which
resulted in multiple lacerations and bruises to himself.
Mingo Logan, on the other hand, argues that a fair reading
of the evidence would demonstrate that Sargent's accident
resulted from a lack of common sense, rather than any lack of
appropriate training. I agree. And so does Inspector Rose for
that matter. He testified that he could not "foresee why an
individual would do that for any reason . . . . I do not think I
would ever try anything like that . I am sure I would not."
(Tr. 68-71). Matt Murray, the Safety Technician for Mingo Logan,
characterized Sargent's action in putting his body against a
running belt as "stupid" (Tr . 144) and stated that additional
training would not have prevented this accident.
As to the Secretary's more general theory for making this an
"S&S" violation , it is too general. There are no specific facts
in the record to show the chance of an injury resulting from this
training violation is more than remote or speculative . For
example, Inspector Rose, the Secretary's only witness, testified
that he did not know anything about what kind of work Sargent
performed in the mine, what equipment he used, if any, or even
where he was assigned to work. I find therefore, that the
inspector's opinion that an injury to someone was "reasonably
likely" is purely conclusory and does not satisfy the· Secretary's
burden of establishing that there was a reasonable likelihood of
an injury producing event as a result of this training violation.
I thus conclude that the violation herein was not significant and
substantial .
The remaining critical issue in this case concerns the
negligence of Mingo Logan. The Secretary seeks a finding of
"low" negligence with regard to Mingo Logan's failure to monitor
more closely the training provid~d to Mahon•s employees.
Mingo Logan's Matt Murray (Safety Technician) acknowledges
that Mingo Logan does have a responsibility to ensure that Mahon
has complied with the training regulations vis-a-vis Mahon's
employees. In fact, Mingo Logan regularly reviewed Mahon•s
training records for compliance. The disagreement between the
parties arises as to whether those reviews were sufficient to
ensure compliance . The crux of the matter is that Mingo Logan
relied on the training certificate itself to determine
16 2

.....

compliance. In this case, the training certificate stated on its
face that Tim Sargent had received newly employed experienced
miner training. Mingo Logan relied on that fact and did not
investigate further. Apparently, the violation was set in motion
when Mahon took Sargent's word that he was an experienced miner.
Mahon therefore trained him as an experienced miner. Mingo
Logan's check of the training records thusly only established
that he had been trained and had a proper certificate on file.
The Secretary seems to be saying that you cannot rely on a
training certificate, that you must look behind that certificate.
Perhaps conduct background investigations on the contractor's
employees. It occurs to me that a production-operator, as a
separate corporate entity, could very quickly involve itself in
privacy-related liability while conducting investigations into
the past lives of employees of another corporation.
Both Mahon and its employees retain privacy interests in the
medical and other records contained in Mahon's personnel files,
since the files contain records not required to be kept under the
Act. Murray testified that he refrains from delving into Mahon•s
personnel files .and looks only at the training certificates
during his periodic audits, because he has been instructed by his
superiors not to invade Mahon's personnel files, because of
privacy considerations.
Accordingly, I find that a reasonably prudent production
operator could not have anticipated that MSHA would require a
production-operator to ensure compliance with the training
regulations in this instance by violating the privacy rights of
persons employed by its independent contractor.
Moreover, I decline to impute the negligence of Mahon to
Mingo Logan under some sort of agency theory because Mahon was
. separately cited for the identical violation and was assessed a
penalty and has paid a substantial civil penalty based on,
amongst other criteria, its own negligence, which was in fact
causative of this violation. Rather, I have evaluated the
negligence factor applicable to Mingo Logan in this case in its
own right, and I find, for the above reasons that respondent's
negligence herein was nil. Any reasonably prudent operator in
Mingo Logan's position would hav~ reasonably believed that its
duty of due care in monitoring Mahon's training program was
fulfilled by the periodic audits of the contractor's training
certificates and training classes.
Abatement was accomplished entirely by Mahon.
was not involved in abatement.

16 3

Mingo Logan

Taking into account the remaining factors contained in
section llO(i) of the Act, as stipulated to by the parties, I
conclude that a penalty of $100 is appropriate for the violation
cited in Citation No. 3999455.
QRDER

It is ORDERED that, within 30 days of this decision,
respondent shall pay $100 as a civil penalty for the violation
found herein.

Maurer
n'strative Law Judge
Distribution:
Patrick L. DePace, Esq., Office of the Solicitor,
U. s. Department of Labor, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203 (Certified Mail)
David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower,
P. o. Box 553, Charleston, WV 25322 (Certified Mail)
dcp

164

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

·FEB 17 1995

.. CIVIL PENALTY PROCEEDING

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

. Docket No. PENN 94-189
. A.C. No. 36-07230-03742

v.

Docket No. PENN 94-383
A.C. No. 36-07230-03752

CONSOL PENNSYLVANIA COAL CO.,
Respondent

DECISION
Appearances:

Before:

Susan Jordan, Esq., Office of the Solicitor, U.S.
Oepartment of Labor, Philadelphia, Pennsylvania for
the Secretary of Labor;
Elizabeth s. Chamberlin, Esq., Consol Plaza,
Pittsburgh, Pennsylvania for Consol Pennsylvania
Coal Company.

Judge Melick

These cases are before me upon petitions for civil penalty
filed by the Secretary of Labor pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801, et.
seq., the "Act", charging Consol Pennsylvania Coal Company
(Consol) with five violations of mandatory standards and seeking
civil penalties of $19,241 for those violations. The general
issue is whether Consol violated the cited standards and, if so,
what is the appropriate civil penalty to be assessed. Additional
specific issues are addressed as noted.
At hearing, the parties agreed to a settlement of Order No.
3659993 and citation Nos. 3659994 and 3659995 and, as
supplemented post hearing, proposed a reduction in penalties from
$8,241 to $1,870. I have considered the representations and
documentation submitted in suppo~t of the proposed settlement and
conclude that it is acceptable under the criteria set forth in
section llO(i) of the Act. This settlement will be incorporated
in the order accompanying this decision.

165

Order No. 3559982
Order No. 3659982, issued pursuant to section 104(d)(l) of
the Act, 1 alleges a "significant and substantial" violation of
the mandatory standard at 30 c.F.R. § 75.400 and charges as
follows:
The cleanup program established at this mine was not being
complied with in the 12B section longwell belt entry, for a
distance of 3,440 feet, between the stageloader and transfer
point, and this entire area was preshifted on the previous
shift by a certified person who should have observed the
following conditions: 1. Float dust (black in color, float
coal dust up to 5 inches deep, and loose coal were observed
accumulated on the mine floor, right side of stageloader
and tailpiece, and on the flat surface areas on the right
side over a 40 foot long area; 2. Accumulations of float
dust (black in color) on top of the rock dusted surfaces of
the mine floor under the entire belt, including on the right
untraveled side, on all belt structures, in numerous

1

Section 104(d)(l) of the Act provides in part as follows:

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 and health
hazard, 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 operator 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.

1 66

crosscuts; 3. Belt air dump crosscut, very heavy
concentrations on the 300 foot long area on the right side
of the belt storage area; 4. and float coal dust up to 2
inches deep on the belt transfer area structure: 5. dry
loose coal under numerous areas of the entire belt entry and
excessive rib sloughage on the right untraveled side
within 24 inches of belt and around four (4) bottom belt
rollers at the belt storage unit.
The accumulations have existed for more than one shift and
the preshift examiners on all three (3) shifts did not
observe any hazardous conditions during their examinations,
as no entries were made in the preshift book on the mine
surface. The belt in this area was very dry except at the
belt spray area.
The belt can only be used to transport coal which is being
cleaned up, and shall not be used until the loose coal
around the four (4) bottom belt rollers is cleaned up, and
then only to transport the coal cleaned up. During the
previous quarter "6" citations for 75.400 were issued at
this mine.
The cited standard requires that "coal dust, including float
coal dust deposited on rock-dusted surfaces, loose coal, and
other combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings, or on electrical
equipment therein."
Inspector Joseph Reed of the Mine Safety and Health
Administration (MSHA) testified that around 7:40 a.m. on
October 20, 1993, before conducting a regular underground
inspection of Consol's Bailey Mine, he reviewed the 12B Section
preshift report for the· examination conducted between 5:20 and
7:20 that morning. The report, based upon the preshift
examination of Section Foreman Todd Shumaker, indicated that no
"violations, dangers or hazardous conditions" were observed
(Government Exhibit No. 6).
Reed thereafter continued his inspection underground
accompanied by Consol Safety Inspector, Lou. Sleeva. Approaching
the 12B section loading point, Reed was told by midnight shift
section foreman, Todd Shumaker, that no coal had been mined on
the previous (midnight) shift. At the 12B belt entry under the
stage loader and on the right (untravelled) side of the entry
Reed found loose coal, float coal dust and coal dust
accumulations. According to Reed, the accumulations under the
stage loader were 40 feet long, up to 5 feet wide and 6 to 8
inches deep and were also dry to the touch.
Reed left the stage loader and walked the belt entry toward
the belt drive and transfer point to take an air reading and
167

methane measurement. He walked down the belt entry about 75 to
100 feet where he took the air readings. According to Reid, a
short distance beyond this point, he observed that .the travelway
had less than 24 inches of clearance. A fire hose outlet was
projecting waist high into the 33 inch wide travelway about 18
inches making it necessary to turn sideways to get around it.
The fire hose outlet was a pipe perpendicular to the belt and
extending from the main sprinkler pipe. Normally these outlets
are in a vertical position aimed down toward the floor.
According to Reed, between the stage loader and this fire
hose outlet, there was additional float dust, black in color,
along the belt structure and beneath the belt . Reed maintains
that he then observed extraneous material in several locations in
the travelway along the belt. There were discarded supplies,
including pipes, pieces of belt structure and roof materials
lying in the travelway. Reed had to step over the materials as
he walked along the belt. According to Reed, there w~re
additional accwnulations of float dust on the mine floor and on
the belt structure as he proceeded down the belt entry . He
maintains that he also observed coal dust accwnulations on the
floor in several crosscuts.
At the drive area, he purportedly found heavy float dust
accwnulations, dark black in color, on the mine floor and on the
right side of the belt structure~ According to Reed, there was
no rock dust on the float dust and the float dust covered the
entire drive area. Reed also observed that a guard was missing
at the belt drive on the right side. The guard had purportedly
been removed to perform maintenance and was propped against the
rib. Moving parts were thereby exposed on the right side of the
belt drive.
Inspector Reed walked the entire 3,400 foot length of the
belt to the transfer point where the 12B belt dwnped onto the
main belt. At the belt transfer, he observed additional
accwnulations of float coal dust . They were two inches deep and
covered the top surfaces of the belt structure. Reed testified
that on his return he observed several areas where coal from the
right rib had sloughed and fallen into the tight side along the
belt. In several locations this sloughage was several feet deep
and had fallen into the walkway on the left side of the belt
reducing the clearance to less than 24 inches.
I find the disinterested testimony of Reed to be credible
and, therefore, conclude that, indeed, on October 20, 1993, there
were accwnulations of coal and float coal dust as alleged, that
these accwnulations were combustible and that the violation is
proven as charged. Moreover, in essential respects, that
testimony is corroborated by that of Mine Foreman Kostelnick.
Kostelnick acknowledged, for example, that Reed showed him some
float coal dust on the tight side of the stage loader but claimed

1 68

..-.

only that it "wasn't an excessive amount". He further
acknowledged the accumulations cited by Reed in and around the
stageloader area which he characterized as "a problem or if you
want to call it, [but] it's just a part .of mining with a longwall
mine". Kostelnick also recognized "drippings" under the beltline
as including coal but maintained this was not hazardous because
it was damp and not yet in contact with any belt rollers. In
addition, he admitted there was rib sloughage along the belt
including coal and, approaching the storage unit, there was some
float dust 24 inches wide and 180 feet long which was "more than
I was happy to see at that area."
Reed also concluded that the violation was "significant and
substantial". A violation is properly designated as "significant
and substantial" if, based on the parti cular facts surrounding
that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a
reasonably serious nature. Cement Division, national Gypsum. Co.,
3 FMSHRC 822, 825 (1981). In Mathies Coal Co., 6 FMSHRC 1,3-4
(1984), the Commission explained:
In order to establish that a violation of a mandatory
standard is significant and substantial under National
Gypsum the Secretary must prove: (1) the underlying
violation of a mandatory safety standard, (2) a discrete
safety hazard -- that is, a measure of danger to safety -contributed to by the violation, (3) a reasonable likelihood
that the . hazard contributed to will result in an injury, and
(4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (1987)
(approving Mathies criteria).
The third element of the Mathies formula requires that the
Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an
injury, U. S. Steel Mining Co., 6 FMSHRC 1834, 1836 (1984), and
also that the likelihood of injury be evaluated in terms of
continued normal mining operations. U. S. Steel Mining. Co., Inc.,
6 FMSHRC 1473, 1574 (1984); see also Halfway, Inc., 8 FMSHRC s,
12 (1986) and Southern Oil Coal co., 13 FMSHRC 912, 916-17
(1991).
The Secretary maintains that the safety hazard contributed
to in this case was a mine fire or explosion and that loose coal
in an active working where possible ignition sources exist
presents a "measure of danger" to the safety of miners. The
Secretary further argues there was a reasonable likelihood that
fire or smoke would result from the accumulations had the
conditions been left to exist, noting that the accumulations were
1 69

extensive and affected the entire belt. He notes that although
the belt was not then in operation, the section wa.s scheduled to
produce that day and the crew was on the section.
Finally, the Secretary points to several potential ignition
sources and related concerns. The Bailey Mine is a gaseous mine
producing over one million cubic feet of methane per 24 hours.
MSHA records show that for 1993 the average daily methane
liberation was 3 .9 to 4.7 million cubic feet of methane per 24
hour period. The belt itself also presented ignition sources.
Four rollers W1der the belt drive appeared to have been turning
in coal. According to the credible testimony of Inspector Reed,
there was an "indentation where the coal was piled around the
rollers and the rollers had been rW1ning in it". Reed further
noted the belt was rubbing on the metal support legs and this was
also an ignition source. I agree with the Secretary on this
issue. The credible evidence, indeed, supports the significant
and substantial findings.
The Secretary further argues that the violation was the
result of W1Warrantable failure and high negligence on the basis
that the violative conditions were "extensive and obvious" .
According to the Secretary the conditions had existed for more
than one shift, no effort had been made to clean up the
conditions and the Respondent had been previously cited for
similar violations. Unwarrantable failure is conduct that is
"not justifiable" or is "inexcusable." It is aggravated conduct
by a mine operator constituting more than ordinary negligence.
See, Emery Mining Corp., 9 FMSHRC 1997, 2203-2204 (1987);
Rochester & Pittsburgh Coal co. 13 FMSHRC 189, 193-194 (1991).
In support of hi~ position, the Secretary argues that the
violative conditions were extensive and obvious, involving nearly
the entire length of the 3,400 foot belt and with most of the
accumulations visible from the travelway. The Secretary further
argues that the conditions had existed for at least one and onehalf shifts . He notes that this belt entry was required to be
examined during preshift and on-shift examinations by a certified
mine examiner, that the preshift examination book showed that no
coal had been run during the previous shift (the midnight shift
on October 20th), that coal had last been run during the
afternoon shift of October 19th, and that, accordingly, the
accumulations had "existed for at least one and a half or more
.shifts". The Secretary maintains that the violative conditions
should have been observed during any one of the examinations of
the area.
As another independent basis for unwarrantability, the
Secretary maintains that accumulations of combustible materials
were a continuing problem on belt lines at this mine. He notes
that Inspector Reed had personally issued several citations for

170

violations of 30 C.F.R. § 75.400 on belt lines at this mine
two in this same longwall belt entry within the last 8· months and
one on another beltline in October 1993. In this regard, the
Secretary further notes that the Bailey Mine was cited 42 times
for violations of this standard in the two year period preceding
the issuance of the subject order and maintains that such a
significant history of problems with accumulations . places an
operator on notice that greater clean-up efforts are necessary,
citing Mid-Continent Resources, 16 FMSHRC 126 (1994).
Consol suggests in an unauthorized "supplemental" brief, but
without factual record support, that these 42 citations for
accumulations may have been for such things as "trash in a
dinner hole" and that it was "inherently unfair" for the
Secretary to rely on such evidence because it was provided only
two days before hearing . Consol overlooks that it not only
failed to object at hearing to the admissibility of this evidence
but that it stipulated to its admissibility. It is also
reasonable to infer that Consol was aware of the 42 citations it
had received. Moreover, if they were for viol ations of "trash in
a dinner hole", such evidence must be presented at hearing on
the record and not by off-the-record suggestion in an
unauthorized post-hearing "supplemental" brief. In any event,
regardless of the specific nature of the 42 prior violations of
the standard at issue this evidence shows a serious problem of
disregard for cleanup of combustible accumulations. The
secretary notes, finally, that Inspector Reed did not see anyone
working or preparing to work along the belt in any clean-up
efforts and, after the conditions were cited, Respondent used the
remainder of the shift and part of the next to clean up the cited
accumulations, using a total of 19 miners .
I agree with the Secretary that this violation resulted from
aggravated conduct and omissions constituting more than ordinary
negligence and, accordingly was the result of "unwarrantable
failure". This conclusion is clearly supported by the credible
and disinterested testimony of Inspector Reed corroborated, in
part, by the testimony of Mine Foreman Kostelnick. I can give
but little weight to the self-se.r ving testimony of a "good faith
belief" that violations of the cited standard did not exist as
charged.
Citation No. 3659981
Citation No. 3659981 alleges a "significant and substantial"
violation of the standard at JO C.F . R. § 75,360(a) and charges as
follows:
An improper preshift examination was being made in 12B
longwell section belt entry, from the stageloader to the
transfer point, by a certified person on all (3) shifts, as

1 71

the following conditions which constitute serious hazards
along the 3,440 foot long area were not recognized by such
persons: 1.) Float dust (black in color), on top of the
rock dusted surfaces of the mine floor under the belt, on
belt structures, tailpiece area, on untravelled right side,
heavy accumulations near storage area for 300 feet on right
side, loose coal on right side, in numerous locations along
the entire area and four (4) bottom belt rollers at storage
unit which had coal around them: 2.) Less than 24 inches
of clearance on both sides of the belt due to either
firehose outlets, old belt rollers, belt and roof or rib
material, or excessive coal rib sloughage obstructing the
walkway; and 3.) Inadequate guarding at the belt storage
roller area due to guards previously installed being down
and not re-installed to prevent persons from accidentally
contacti ng moving large roller.
Due to this citation covering all three shifts,
(24 hours} will be given so that the preshift examiners on

all three shifts can be made aware of the requirements of
75.360.
No coal was mined on the previous shift and these
conditions have apparently existed for several shifts, and
the preshift book on the mine surface did not indicate any
hazards were observed by the examiners.
During the previous quarter, "1" citation for 75.360
was issued at this mine.
The cited standard provides in ess·e ntial part that "(w] ithin
3 hours preceding the beginning of any shift and before anyone on
the oncoming shift, other than certified persons conducting
examinations required by this subpart, enters any underground
area of the mine, a certified person designated by the operator
shall make a preshift examination."
The Secretary argues that several hazardous conditions
existed on the morning of October 20th that had not been reported
in the examination record books, namely the conditions cited by
Inspector Reid in Order No. 3659982, Citation No •. 3659983 and
Citation No. 3659984. (Government Exhibits 2, 3 and 4,
respectively). As charged therein, there were hazardous
accumulations of coal, coal dust and float dust, there was less
than the required 24 inches of clearance in the travelway along
the belt due to the protruding sprinkler pipe and extraneous roof
materials and rib sloughage, and there was a missing guard for
the drive roller at the belt drive. As found previously in this
decision, the coal and coal dust accumulations cited in Order
No.3659982 existed as charged and, based on the credible
testimony of Inspector Reed, were of an obvious nature.
1 72

The latter two conditions cited herein were the subject of
citations that have become final and their existence is not
therefore subject to dispute (nor the related "significant and
substantial" findings). I again accept the disinterested
credible testimony of Inspector Reed that these conditions were
also obvious. I agree with Consol, however, that the Secretary
has not sustained her burden of proving that the guard for the
drive roller had been removed prior to the required pre-shift
examination. It may reasonably be inferred that the other cited
conditions existed during the time of the pre-shift examination
and accordingly should have been detected and reported in the
preshift examination of the belt entry.
It is undisputed that the entry is required to be examined
during preshift and onshift examinations by a certified mine
examiner. It is further undisputed that the preshift examination
book showed entries for preshift exam'inations for the midnight
shift on October 20th and the afternoon shift on October 19th
when checked by the MSHA inspector and that no hazards were
reported on either examination. The violation is accordingly
proven as charged. Again, Mine Foreman Kostelnick corroborates
Inspector Reed in. essential respects. In addition to his
admissions regarding the presence of accumulations, Kostelnick
acknowledged that the 24 inch clearance was not maintained along
the belt in that rib sloughage had, indeed, restricted passage at
four or five locations, a fire hydrant obstructed the walkway and
several belt rollers were in the walkway.
I further find that the violation was "significant and
substantial". A violation of 30 C.F.R. § 75.360(a) has been
established with a number of related safety hazards. The safety
hazard related to the coal accumulations is that of mine fires
and explosions previously discussed in this decision and the
likelihood of a fire and injury was reasonable. The hazard
associated with the inadequate clearanc~ would be tripping . The
record shows that persons do travel along this belt entry
performing maintenance and clean-up work and conducting
examinations . I find that persons traveling along the belt
therefore reasonably likely to slip or trip over the cited
materials and would have fallen in close proximity to a moving
belt. They could twist or sprain an ankle or come into contact
with moving parts of the belt. These events, I conclude, were
reasonably likely to result in an injury of a reasonably serious
nature .
The violation was also the result of "unwarrantable
failure". Again, the credible testimony of Reed shows that
these conditions were obvious and had existed at least since the
afternoon shift of October 19th without corrective action. The
failure to have reported any of these violative conditions,
therefore, constitutes aggravated negligence.
1 73

Under all the circumstances .and considering the criteria
under Section llO(i) of the Act, I find that the proposed civil
penalties of $7,500 for Order No. 3659982 and $3,500 for Citation
No . 3659981 are appropriate .
QRDER

Order Nos. 3659982 and 3659993 and Citation Nos. 3659981,
Consol Pennsylvania Coal
Company is hereby directed to pay civil penalties of $12,870 for
the violations therein within 30 days of this decision.
3659994 and 3659995 are affirmed.

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Gary Melick

Administ~~tive

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Distribution:
Susan Jordan, Esq., Office of the Solicitor, U.S. Department of
Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia,
PA 19104
Elizabeth s. Chamberlin, Esq., Consol, Inc., Consol Plaza, 1800
Washington Road, Pittsburgh, PA 15241-1421
/jf

1 74

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-3912/FAX (303) 844-5268

FEB 2 2 1995
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 93-343
A.C. No. 42-01697-03648
Docket No. WEST 93-344
A.C. No. 42-01697-03649

v.

Docket No. WEST 93-399
A.C. No. 42-01697-03654
C.W. MINING COMPANY,
Respondent

Docket No. WEST 93-491
A.C. No. 42-01697-03655
Docket No. WEST 93-517
A.C. No. 42-01697-03656
Bear Canyon No. 1
DECISION

Appearances:

Tambra Leonard, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Carl E. Kingston, Esq., Salt Lake City, Utah,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration ("MSHA"), charges Respondent c . w. Mining
Company {"CWM") with violating safety regulations promulgated
under the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801, et seq. (the "Act").
After a hearing on the merits was held in Salt Lake City,
Utah, the parties submitted post-trial briefs.
SETTLEMENTS IN WEST 93-343

The parties reached an amicable settlement as to certain
citations and a motion to approve a partial settlement and order
payment was filed.
175

The settlement motion is formalized in this decision.
The agreement provides, in part, as follows:
Citation Nos. 3582877, 3582905, and 3582919: There is
insufficient evidence to support these citations, and the
Secretary moved for their dismissal.
Citation No. 3582910: The operator stipulates to this
violation and agrees to pay the proposed penalty of $50.00.
Citation No. 3582904: The operator stipulates that this
violation o,ccurred and that it was "significant and substantial";
the Secretary further determined that the negligence of the operator was less than originally assessed. The amended penalty is
$345 . 00.

I have reviewed the proposed settlement and I find it is
reasonable and in the public interest.
It should be approved and
such approval is formalized in the Order of this decision.
Stipulation

In connection with the issues, the parties further stipulated as follows:
1.
CWM is engaged in mining and selling bituminous coal in
the United States and its mining operations affect interstate
commerce.
2.
CWM is the owner and operator of Bear Canyon No. 1
Mine, MSHA I.D. No. 42-01697.
3.
CWM 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 a duly
authorized representative of the Secretary upon an agent of
Respondent on the date and places stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevance of any
statements asserted therein.
6.
The exhibits to be offered by Respondent and the Secretary are stipulated to be authentic but no stipulation is made·
as to their relevance or the truth of the matters asserted
therein.
176

· 7.
The proposed penalties will not affect CWM's ability to
continue in business.
8.
The operator demonstrated good faith in abating the
violations.
9.
CWM is a small mine operator with 353,377 tons of
production in 1992.
FURTHER CITATIONS IN WEST 93-343
citation No. 3582908

The above citation, issued under Section 104{a) of the Act,
alleges a violation of 30 C.F.R. § 75.316. 1
The citation reads as follows:
The current approved (Oct. 18, 1990) ventilation system for methane and dust ~ontrol
plan was not being complied with on the north
mains (MMU 002] working section.
The water spray system on the continuous
miner was not maintained. When tested, 10 of
the 28 water sprays did not function, exceeding the approved 90 percent that must be operative.
[Page 9, Item 5.]
The machine was not in use but available for
use.
Discussion

CWM asserts as a preliminary matter that Citation No.
3582908 should be vacated because the cited code (§ 75.316) was
not in effect at the time of the inspection.
CWM states that Citation No. 3582908 alleges the company
violated 30 C.F.R. § 75.316. The pitation was issued on October 29, 1992. However, the July 1, 1992, edition of 30 c.F.R.
parts 1 to 199, skips from§ 75 . 313 to§ 75.321 (pages 517-518).
There was no§ 75.316. The next edition, which was ·revised as of
July 1, 1993, skips from§ 75.315 to§ 75.320 (pp. 541-542).
There still was no § 75.316.

The requirements for ventilation, methane, and dust control plans in contest are now recodified at§ 75.370(a) (1).

177

CWM correctly states the changes in the Code of Federal Regulations in 1992. Section 75.316 no longer appeared as such.
However, it was still a requirement as it had been recodified in
Section 75.370 (pp. 531, 1992 c.F.R.). Ventilation plans were
required.
·
CWM had a ventilation plan and was fairly apprised of the
ventilation requirements imposed by § 75.370.
In sum, citing an
incorrect regulation does not vitiate otherwise valid citations.
Accordingly, the preliminary motion to vacate citation No.
3582908 is again DENIED.
Additional Evidence as to citation No. 3582908
.~ .

Inspector Gibson testified the methane and dust control plan
for the continuous miner was not maintained. Upon being tested,
it was found that 10 of the 28 water sprays failed to functibn.
This failure rate exceeded the permitted ratio. After testing
the equipment, Inspector Gibson circled the plugged sprays in red
on Exhibit P-7. He further explained the importance of the spray
system.
It serves to control respirable dust, to cool the cutting bits on the rotating drum, and to aid in preventing a coal
dust or methane ignition.
(Tr. 40, 41).
On the merits, CWM states there was no violation of the plan
because the machine was out of service and not available for use.
On this credibility issue I credit Inspector Gibson's testimony
that the equipment was available for use.
It is uncontroverted
that the miner was parked in a crosscut on the working section
and it was not tagged out.
A dispute between the witnesses exists as to whether the
continuous miner's power and lights were on and whether the panel
covers were off (i.e., was the machine energized?). On this issue I credit Inspector Gibson's conclusion because it was supported by his inspection notes recorded that day.
Further, the evidence is also confirmed by the statements
made to the Inspector by Mine Foreman Defa. Mr. Defa asked the
Inspector to check permissibility on the miner while the roof
drill was being repaired. Once the roof drill was repaired and
supports installed, · they . could cut through the crosscuts. Obviously, the continuous miner was to be used for this effort.
(Tr • 3 5 , 3 6) .
The Secretary's evidence establishes a violation. CWM's
evidence is insufficient to support a contrary view.

178

Citation No. 3582908 should be affirmed and a civil penalty
assessed.
civil Penalties
Section llO(i) of the Act authorizes the Commission to assess civil penalties. The evidence relating to certain of the
criteria are common to all the citations here. These include the
appropriateness of the penalties to the size of the business of
the operator charged. The assessed penalties in these cases are
also appropriate in relation to CWM's coal production in 1991.
Further, the assessed penalties will not affect CWM's
ability to continue in business.
Finally, CWM is entitled to statutory good faith for attempting to achieve rapid compliance after notification of a
violation.
The remaining criteria of prior history, negligence, and
gravity will be considered as they relate to the individual
citations.
Concerning Citation No. 3582908, the operator's history
indicates there were 14 prior violations under former Section
75.316 in the previous two years.
The operator's negligence is considered "moderate" because
the operator did not know that certain sprays were not functioning.
(Tr. 47). However, a routine check would have disclosed
the defective sprays.
The gravity should be rated "moderate . " However, the
Inspector did not find this violation was "significant and
substantial."
Considering all the statutory criteria, I conclude that the
proposed penalty of $50.00 is appropriate.
citation No. 35a2909
The above citation, issued under Section 104(a) of the Act,
alleged a violation of§ 75.1107-16(b). The Secretary moved to

179

amend the citation to allege a violation of § 75.1100-3. 2
motion to amend was granted over CWM's objection.

The

The citation reads as follows:
The water-type fire suppression system
being used on the Lee Norse continuous miner
in the north mains working section was not
being maintained. When tested, three of the
fire nozzles did not function.
The continuous miner was not being used but
was available for use. The section was very
wet.
Threshold Issues
CWM renews its objection to the Secretary's amendment to his
citation .
Cyprus Empire, 12 FMSHRC 911, 916 (May 1990), was cited as
authority for permitting such an amendment. However, CWM asserts
Cyprus is not controlling because Cyprus admitted it was not
prejudiced by the amendment.
In arguing its position, CWM asserts it was prejudiced
because the evidence to establish a violation of § 75.ll00-16{B)
was substantially different from that required under § 75.1100-3.
CWM's arguments are without meri~. The underlying facts did
not change; the change was ·in the Secretary's legal theory of the
case.
No prejudice has been demonstrated by the operator.
It is well established that leave to amend "shall be freely
given when justice so requires." Foman v. Davis, 371 U.S. 178,
182, 82 s.ct. 227, 9 L.Ed. 222 (1962); Rule 15(a), FRCP.

2

The regulation reads as follows:

S

75 .1100-3
Condition
f iref ightinq equipment.

and

examination of

All firefighting equipment shall be maintained in a usable and operative condition.
Chemical extinguishers shall be examined every
6 months and the date of the examination tag
attached to the extinguisher.

180

On the merits involving Citation 3582909, CWM further argues
the continuous miner had been removed from service . However,
this is a renewal of the argument made in connection with citation No. 3582908. The same continuous miner was involved and the
same ruling is appropriate.
The evidence shows that when Inspector Gibson inspected the
continuous miner, he also inspected the fire suppression system
and observed that three fire nozzles were "either partly working
or not working at all."
(Tr. 53).
At the hearing, Inspector Gibson explained that the fire
suppression system on the continuous miner is used "to sequester
the fire or put the fire out and/or hopefully prevent it from
spreading beyond the machine to the coal ribs, coal floor . "
(Tr.
53). Further, " (t]he nozzles are located at locations (on the
miner] that would produce heat, such as the electrical control
boxes, main controller . " If three of the fire nozzles are
plugged up , a fire hazard may result and a fire could occur on
the machine.
(Tr. 54)
Inspector Gibson observed accumulations on the machine
around the tram motor, the cutter control box and in the front
compartment. The accumulations were six inches deep in places .
In addition, the inoperative nozzles were near the equipment with
the accumulations covering it . Further, the tram motor and cutter control motors would also have been running hotter with accumulations of coal dust covering them. In addition, water from
dust suppression system was not flowing due to the plugged
nozzles.
(Tr . 54-59) .
on the credible evidence, Citation No. 3582909 should be
affirmed and a civil penalty assessed.
Civil Penaltie s

The assessed violation history report indicates no prior
violations of Section 75.1100-3 occurred during the two years
prior to this citation.
(Ex. P-1).
The operator's negligence was moderate because the miner was
available for use, but it was not in use .
(Tr. 61) .
Concerning gravity, the MSHA Inspector did not find this
violation to be of a "significant and substantial" nature . The
gravity appears to be low.
Considering all of the statutory penalty criteria, a civil
penalty of $50 is appropriate for Citation 3582909 .

181

Docket No WEST 93-344
citation No. 3852372

The above citation, issued under Section 104(a) of the Act,
alleges a violation of § 75.1702. 3
The citation reads as follows :
The weekly examination for smoker articles
was made in the bleeder section kitchen on
1/03/93. The check was not made before
miners entered the mine .
There were no violations indicated on the
report conducted in the kitchen.
Paragraph 2 of the operator's smoking prohibition program
(Ex. P-14) provides:
All persons entering the mine shall be subject to a systematic search for smoking articles. The searches shall be conducted at
least weekly, at irregular intervals not to
exceed seven (7) days.
Discussion

According to MSHA Inspector Marietti, the check for the
smoking materials must be made at the portal or in the proximity
3

The regulation reads as follows:
S 75.1702

smoking; prohibition.
[STATUTORY PROVISIONS]

No person shall smoke, carry smoking materials, matches, or lighters underground, or
smoke in or around oil houses, explosives
magazines, or other surface areas where such
practice may cause a fire or explosion. The
operator shall institute a program, approved
by the Secretary, to insure that any person
entering the underground area of the
mine
does not carry smoking materials, matches, or
lighters.

182

to where the miners are "entering" the mine.
(Tr. 112). This
analysis is based on the Inspector's experience with smoker's
checks at the mines he has worked in, his knowledge of how the
checks are conducted at other mines, and MSHA's policy.
(Tr. 99,
102 I 110} •
Mr. Defa, CWM's foreman, explained why the check- is occasionally made in the kitchen area. This is the first place workers go when they enter the underground area.
If a miner wanted
to hide or conceal his smoker's articles and he knew that the
.c hecks were always made on the surface, he could hide them on the
mantrip before the check, remove them when he exited the mantrip
at the kitchen area, and have them underground without detection.
By changing the time and location of the checks, the operator
discourages such attempts and more fully conforms to the requirement of the law, which is to make certain that no one carries
such articles underground. By conducting the checks at the first
point the miners reach underground, in the event a miner did take
sue~ articles underground either by mistake or design, the articles could be removed before an opportunity to use them would
arise.
Mr. Defa's testimony that other MSHA inspectors agreed
with CWM's interpretation of the regulation and . of its own plan,
is supported by CWM's lack of violations . Further, no citation
has ever been issued to CWM for conducting the searches at the
kitchen area.
(Tr. 108, 518).
CWM's reasons for conducting searches in the kitchen are
commendable. However, this case requires a ruling on the issues
as presented. CWM's program, as noted above, simply states that
all persons entering the mine shall be subject to the search.
The regulations do not define the term "enter." However,
the common meaning of "enter" is 1. "to go or come in; 2 . to come
or gain admission into a group; join. Webster's New Collegiate
Dictionary, 1979 at 377.
This ordinary meaning of "enter" causes the Judge to conclude that examination for smoker articles should be made where
the workers "enter" the mine.
Examinations for such a·rticles at
such places as the kitchen are laudable but they do not comply
with the smoking prohibition program.
citation No. 3852372 should be affirmed and a penalty
assessed.

civil Penalty
The assessed violation history report indicates there were
no prior violations of the cited section in the two-year period
prior to the issuance of this citation.
183

The operator's negligence was "low" because most of the
smoker's checks were made on the surface and none of the underground checks produced any smoker's articles.
(Tr. 106).
The Inspector did not consider this violation to be of a
"significant and substantial" nature. The operator's gravity
should be considered "low."
A civil penalty of $10.00 is appropriate.
Docket No. WEST 93-399
citation Nos. 3852375, 3852376, 3852377

These citations, issued under Section 104(a) of the Act,
allege violations of three separate but related regulations.
All of the citations relate to a bathhouse trailer fire on
December 26, 1992.
The violations are for a failure to report, failure to
preserve evidence, and failure to file an MSHA form.
Citation No. 3852375

This citation alleges CWM violated 30 C.F.R. § 50 .10.
The citation reads:
The mine experienced a reportable mine fire
on 12/26/92 between 1 a.m. and 2 a.m.
A
bathhouse trailer on the surface burnt ( sic)
to the ground and partially burnt (sic) an
adjacent wall and electrical system in the
shop.
4

The regulation reads as follows:

S so.10

Immediate notification.

If an accident occu:rs, an operator shall
immediately contact the MSHA District or
Subdistrict Office having jurisdiction over
its mine.
If an operator cannot contact the
appropriate MSHA District or Subdistrict
Office, it shall immediately contact the MSHA
Headquarters Off ice in Washington, DC, by
telephone, toll-free at 202-783-5582.

184

4

The mine operator did not immediately or did
they ever notify MSHA until they applied f9r
bathhouse waiver received in District 9 on
January 4, 1993.
Citation No. 3852376

This citation alleges a violation of 30 c.F.R.

§

50 . 12 . 5

The citation reads:
The mine experienced a mine fire on December
·26, between 12:01 and 1 a.m. The fire completely destroyed a bathhouse trailer and did
extensive damage to an adjacent shop wall and
electrical equipment mounted on it. The
trailer was scooped into a pile about 50 feet
from accident site and the damaged electrical
equipment was taken down and discarded.
Citation No. 3852377

This citation alleges a violation of 30 C.F.R . § 50.20-1 . 6

The regulation reads as follows:
§

so.12

Preservation of evidence.

Unless granted permission by an MSHA District Manager or Subdistrict Manager, no
operator may alter an accident site or an
accident related area until completion of all
investigations pertaining to the accident
except to the extent necessary to rescue or
recover an individual, p~event or eliminate an
imminent danger, or prevent destruction of
mining equipment.

6

Regulation 30 C.F.R. § 50.20-1 contains general instructions for completing and filing MSHA Form 7000-1.

185

The citation reads:
There was no MSHA Accident Form 7000-1 submitted within 10 days for a trailer bathhouse.
fire that occurred on December 26, 1992, between 12 : 01 a . m. and 1 a.m.
Discu ssion of the Evid ence

The central issue is whether a reportable fire occurred.
If
the fire was reportable, then the operator must immediately notify MSHA, preserve the evidence, and submit a Form 7000-1 report
to MSHA.
In order to resolve the issues, it is necessary to consider
the uncontroverted evidence and the definition of an " accident"
as defined in 30 C.F.R. § 50.2.
The uncontroverted evidence shows that a fire occurred on
December 26, 1992. CWM did not immediately notify MSHA of the
fire, did not preserve the evidence, nor did it submit a Form
7000-1 to MSHA.
(Tr. 116, 117, 126).
MSHA has no policy other than the text of Section 50.10
(supra, concerning notification}.
(Tr. 117).
MSHA Inspector Marietti estimated the fire burned for more
than 30 minutes considering the appearance and extent of the
remains. He also volunteered it had bee?) " quite a blaze."
(Tr.
126) .
Further Discussion

CWM contends that this was not a "mine" fire, in view of the
definition of a mine as contained in 30 C.F.R. § 50.2. Specifically, CWM states the showerhouse was used by employees to shower
and change clothes. Since it was not used to extract coal from
its natural deposit or used in the milling of coal, or in preparing the coal therefore the showerhouse was not a "mine. "
CWM's position lacks merit; it has long been held that a
"coal or oth er mine" is not limited to an area· of land from which
minerals are extracted but, as is noted, it also includes facilities, equ ipment, machines, tools, and other property used in the
extraction of minerals from their natural deposits and in the
milling or preparation of the minerals. See, ~' Donovan v.
Carolina stalite Co., 734 F.2d 1547 (D.C. Cir. 1984); Oliver M.
Elam, Jr. , Co., 4 FMSHRC 5 (January 1982) .
In determi n ing coverage , it is necessary to give effect to Congress's clear intention
186

:··

in the Mine Act, discerned from "text, structure, and legislative
history." Coal Employment Project v. Dole, 889 F.2d 1127, 1131
(D.C. cir. 1989). congress determined to regulate all mining
activity. The Senate Committee stated that "what is considered
to be a mine and to be regulated under this Act (shall] be given
the broadest possible interpretation, and ... doubts (shall] be
resolved in favor of inclusion of a facility within the coverage
of the Act. 11 s. Rep. No. 181, 95th Cong., 1st Sess. 14 (1977),
reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong. 2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 602 (1978).
This broad interpretation has been adopted by the courts.
See, ~, Carolina Stalite Co., supra at 1554. The definition
of "coal or other mine" has been applied to a broad variety of
facilities that are not "an area of land from which minerals are
extracted." See, ~, Harman Mining Corp. v. FMSHRC, 671 F.2d
794 (4th Cir. 1981) (operator loaded previously extracted and
prepared coal onto railroad cars for transportation); Stoudt's
Ferry, 602 F.2d 589 (3d Cir. 1979) (operator separated sand and
gravel from material that has been dredged from a river by the
Commonwealth of Pennsylvania); Carolina Stalite, supra at 1547
(D.C. Cir. 1984) (operator heated previously mined slate in a
rotary kiln to create a lightweight material used in making
concrete blocks.
CWM also asserts the three citations should be vacated because they are all premised on the requirement of an "accident"
as defined in Section 50.2. This section reads, in part, that
an (h) accident means (6) an unplanned mine fire not extinguished
within 30 minutes of discovery.
(Tr. 118). CWM contends this
fire occurred on a holiday; it was not observed until it was
cold. Therefore, it fails to meet the definition contained in
(h)(6).
On this issue, I credit the testimony of Inspector Marietti.
He testified the bathhouse, one wall of the shop on the outside
and the inside, all of the wiring on the wall, and the· electrical
components had burned.
(Tr. 118, 119).
(Exhibit P-8 contains
the investigation concerning the fire.)
The electrical panel conduit and wire on the inside wall
were "wiped out. 11
(Tr. 122-124):
That portion of the definition in (h)(6) reciting the element of "not extinguished within 30 minutes" is merely a measure
of the intensity of the fire.
That intensity is established by
the Inspector's opinion that the fire was "quite a blaze" and his
opinion that it would have burned for longer than 30 minutes.
(Tr. 126).
Further, the fire would have taken longer than 30
minutes to extinguish due to the operator's primitive fire-fighting equipment.
In addition, the closest volunteer fire depart-

187

ment was in Huntington, Utah, nine miles away.
161).

•
(Tr. 128-130,

A fire that burns longer than 30 minutes is a large fire and
serious enough to call for an MSHA investigation. To say that
such a fire is not reportable because it was not discovered until
after it had extinguished itself, is not warranted.
Such an interpretation would encourage operators not to "discover" a fire
at all in some circumstances if the operator does not want MSHA
to investigate the causes of the fire.
This fire was also unplanned within the meaning of the regulation.
The verb 11 plan" 7 is defined as:
1. to arrange the parts
of: DESIGN; 2. to devise or project the realization or an
achievement of <- a program; 3. to have in mind: intent. There
is no evidence or inference that the fire was anything but
unplanned.
Inspector Marietti could not determine the cause of the fire
because the remains of the 12-foot by 60-foot aluminum type
mobile home structure had been pushed into a 12-foot by JO-foot
pile.
(Tr. 120-122, 125, 126).
In connection with these three citations, the evidence establishes that CWM failed to immediately notify MSHA of the fire,
altered the accident site, and failed to submit a Form 7000-1.
Citation Nos. 3852375, 3852376, and 3852377 should be
affirmed and civil penalties assessed.
civil Penalties
Considering the remaining statutory penalty criteria, the
record establishes the operator had no violations of the regulations during the two years before these citations were issued.
CWM was moderately negligent since it knew or should have
known it was required to report the fire and preserve the scene .
CWM's actions prevented MSHA from investigating the accident to
determine what preventive measures should be taken to avoid a
fire in the future.
Gravity should be considered "low" in connection with the
citations involving a failure to report. Gravity is otherwise
"moderate."

7

Webster's New Collegiate Dictionary, 1979 at 870.

188

.

Considering the statutory criteria, I believe the following
penalties are appropriate:
Citation No. 3852375:
$200.00.

reportable fire; MSHA not notified -

citation No. 3852376; evidence from fire not preserved $300.00.
Citation No. 3852377; Form 7000-1 not filed - $100.00.
Docket No. WEST 93-491
citation No. 3583053
This citation, originally issued under Section 104(a) of the
Act, was later modified to a Section 104(g) citation.
The citation alleges a violation of 30 C.F.R.

§

48.ll(e) . 8

The citation reads:
The operator was not complying with the approved training plan for Hazard Training.
Two vendors were observed driving their
diesel truck .into the mine and they were not
accompanied by an experienced miner. There
was no one accompanying them. The two did
have the required training prior to going underground. The truck met the requirement of
30 C.F.R.
Evidence
John B. Plant of Duchesne, Utah, one of CWM's vendors is a
welder and machinist for Uinta Machi~ and Manufacturing. The
majority of Uinta's work is for coal mines.
(Tr. 388, 389).

g

The regulation reads as follows:

S 48.11

Hazard training.

(e) Miners subject to hazard training shall
be accompanied at all times while underground
by an experienced miner, as defined in § 48.2
(b) (Definition of miner) of this subpart A.

189

on February 3, 1993, they arrived at CWM to do some welding
machine work on one of their miners.
(Tr. 391).
They talked to Inspector Marietti who inquired about their
mine certification, service training, and respirator training.
The Inspector doubted if he (Plant) and his partner (now deceased) were properly certified to go into the mine. This
resulted in some debate; some time was then spent in respirator
training and surface training. Also, the Uinta vehicle was
checked and cleaned several times.
(Tr. 394, 395).
Subsequently, the two vendors proceeded i nto the por tal in
the i r vehicle . Company representative Robert Brown said they
were go i ng to the shop 500 feet underground. The Inspector ind i cated the company's training plan required vendors to have
hazard tra i ning and they must be accompanied by an experienced
miner.
(Tr . 165, Ex. P-15). The Inspector then withdrew the
vendors from the mine.
(Tr. 165, 167; Ex. P-15). The Inspector
modified the 104(a) citation to a 104(g) (1) order.
(Tr. 170).
CWM contends it complied with the prov i s i ons of its plan in
two respects.
Specifically, when the vendors entered the mine in
their vehicle, they followed the vehicle of CWM's Robert Brown .
(The entryway was 20 feet wide, curved, and there were blind corners . Tr. 574, 578). Another vehicle could have pulled out between the two trucks as the lead vehic l e was 5 0 to 100 feet in
front to the vendors' vehicle . The shop itself was 500 to 800
feet underground.
(Tr . 570-578).
In addition, there was no way
for Mr. Brown to verbally communicate from his truck to the vendors' truck following him.
(Tr. 600).
In this situation, the facts establish that Mr. Brown was
not "accompanying'' the vendors.
"Accompany " means to go with or
attend as an associate or companion. Webster's New Colleaiate
Dictionary {1979) at 7. The vendors could hardly be said to
accompany an experienced miner when they were in a different
vehicle and 50 to 100 feet away.
The second argument by CWM focuses on the testimony of vendor Robert Plant. He testified that they were accompanied by an
experienced miner, namely, CWM employee Israel Peterson.
(Tr.
395, 396). Mr. Peterson was allegedly sitting between the two
men on some hard hats and coveralls.
(Tr, 414).
Inspector Marietti denies such a scenario; he testified he
would certainly have seen a third person sitting in the truck.
(Tr. 743). Mr . Robert Brown testified he did not recall that
Mr . Peterson was in the truck.
(Tr. 577).
It appears Mr. Plant was mistaken about the facts:
If
Mr . Peterson had been in the truck , Inspector Marietti would not
have issued his order . If Mr. Marietti . were mistaken, Mr. Defa
190

would have likely raised the issue at the scene that Mr. Peterson
was in the truck. However, Mr. Defa did not raise that point.
Further undermining Mr. Plant's version of this incident is
the fact that if it were true, Mr. Brown would have no reason to
drive his vehicle into the mine in front of the vendors to go
underground.
(Tr. 578) .
In sum, the credible evidence establishes that the vendors
were not accompanied underground by an experienced miner.
Accordingly, Citation No. 3583053 should be affirmed and a
penalty assessed.
Civil Penalty Criteria

The assessed violation history report indicates no violations occurred during the two years before this citation was
issued.
The operator's negligence should be considered "moderate"
because CWM gave the vendors some training for underground
activities.
Inspector Marietti did not find this violation to be of a
''significant and substantial" nature but he considered it serious
enough to immediately withdraw the vendors from the mine.
A civil penalty of $200.00 is appropriate for the violation
of Citation No. 3583053.
Docket No. WEST 93-517
Citation Nos. 3583044 and 3583050

The above citations issued under § 104(a) of the Act are
factually similar and allege violations of 30 C.F.R.
§ 370(a) (1) . 9
Citation No. 3583044 reads:
The approved ventilation plan was not being
complied with in the Mai~ North Return on the
inby side of No. 27 crosscut overcast. There
were three 4' x 8' x 1/2" plywood panels over
9

This regulation deals with ventilation, methane, and dust
control plans.
See Ci ta ti on No. 3 582908, supra, p. 3, this
decision.

191

the opening regulating the air from the idle
Main North Entries. The Plywood was not.
treated to make them incombustible . The area
has been idle for about one month. The area
was clean and well-rock dusted. There were
no ignition sources .
Citation No. 3583050 reads:
The approved ventilation plan was not being
complied with. The lower seam regulator
doors were 5/8" x 4' x 7' plywood. They were
not constructed or coated with incombustible
material. The area was well rock-dusted and .
there were no ignition sources in the area .
The relevant portion of the ventilation -plan adopted by CMW
reads:
All exposed wood in the construction of any
ventilation control shall be coated with an
MSH.A-accepted fire retardant sealant.
(Ex.
P-9, p. 6, ~ 5) .
Inspector Marietti observed two wooden panels. One was in
the main north return and another was in t~e return from the
lower seam mine to the upper seam return. The wooden panels were
partly covered with a silver-looking paint.
(Tr. 203, 220).
CWM's evidence shows the doors had been coated with accepted
MSH.A coating in 1985 and 1986. Mr. Defa was the one who coated
the doors when they were originally installed.
(Tr. 646). Although Mr. Defa no longer had the container or specifications
from the material used seven or eight years previously at the
mine so that he could "prove" to Mr. Marietti that the material
was MSHA-accepted, he was able to subsequently obtain that information from his supplier. The specifications were introduced
at the hearing .
(Ex. R-4). The doors were " coated with an MSHAaccepted fire retardant sealant. "
As Mr. Defa further explain~d, the sealant soaks into the
wood and if subjected to heat, it would expand to fill any chips
or small areas not covered.
(Tr. 654).
I find Mr. Defa's testimony on this point to be credible .
His testimony is essentially uncontroverted .
The Judge is aware of the uncontroverted observation by
Inspector Marietti that " the boards were water-soaked for some
reason or another; they weren't completely covered with this
192

silve~ looking paint."
(Tr. 203).
Further, "there was exposed
wood where the coating had worn away."
(Tr. 225).

In weighing the total evidence, I conclude that Inspector
Marietti's observation establishes more of a situation where CWM
failed to fully maintain its ventilation control. This citation
does not deal with maintenance.
In sum, the Secretary failed to prove that CWM violated its
ventilation plan.
Accordingly, Citation Nos. 3583044 and 3583050 should be
vacated.

Citation No. 385192 1
The above citation alleges a violation of 30 C.F . R.
§

7 5 • 14 0 3 -10 ( 1) • IO

The citation reads:
The audible alarm did not operate on the John
Deere No. 1 tractor that is used in the east
bleeder section, MMU006 .
On February 10, 1993, Inspector Marietti inspected the John
Deere No. 12 tractor in the east bleeder section . He and Mr.
Defa found the horn did not work . Mr . Defa told the Inspector
that the tractor was out of commission because its tie rods were
broken ; the rods were lying on the ground. The Inspector did not
issue a citation that day.
The following day, February 11, 1993,
Inspector Marietti
returned to the area and determined the vehicle's tie rods had
been repaired.
He determined the rods had been repaired by
climbing on the tractor and testing the steering wheel.
(Tr.
235).
When Mr . Defa could not get the horn to operate (Tr. 227),
Inspector Marietti issued Citation No. 3851921 on February 11,
1993.
The citation was abated on February 24, 1993, when the horn
button was pushed ; at that time the horn did sound.
(Tr. 229).
10

The cited regulation reads:
(1) All self-propelled rubber - tired haulage
equipment should be equipped with well-maintained brakes, lights, and a warning device.

193

Inspector Marietti explained that the instant citation was
issued pursuant to a safeguard dated April 23, 1982. The safeguard was written under section 75.1403-10(1) which provides
that, "all self-propelled rubber-tired haulage equipment should
be equipped with well-maintained brakes, lights, and a warning
device." The safeguard states in pertinent part,
This is a notice to provide safeguard requiring all self-propelled rubber-tired haulage
equipment to be equipped with well-maintained
brakes, lights, on one or both ends if equipment is capable of being operated in either
direction, and a warning device (audible) . 11
(Emphasis added).
(Ex. P-10).
As Inspector Marietti further explained, once a safeguard is
issued, it is recorded on a list wh ich the inspectors review
prior to every inspection .
It constitutes the law until the mine
closes or is abandoned.
{Tr. 239).
As a threshold matter, it is apparent that a horn is a warning device within the meaning of the safeguard and the citation.
CWM contends its John Dee.re hau lage equipment was out of
service and did not work. Therefore, the operator did not
violate the regulation.
I am not persuaded by CWM's views. Mr. Marietti stated he
would not have issued the citation if he believed the vehicle was
out of service. On February 10, 1993, the vehicle was out of
service because its tie rods were broken and lying on the ground.
No citation was issued at this time. The following day the Inspector tested the steering wheel and found the tie rods had been
repaired.
However, at this time the horn did not function and he
properly issued his citation. The equipment was not tagged nor
marked as being out of service.
·
Citation 3851921 should be aff irrned and a penalty assessed.
Civil Penalty

CWM has no adverse prior history for violations of the
cited section during the two years prior to the issuance of
the citation.
(Ex. P-5B).
The operator's negligence is "moderate."
repaired the tie rods but not the horn.

The operator

Gravity should be considered "low." Further, Inspector
Marietti did riot conclude that the violation was "S&S."
The proposed penalty of $50 is appropriate.
194

...

Citation No. 3851922
§

The above citation alleges a violation of 30 C.f.R.
75.400. 11
The citation reads:
The air compressor in the east bleeder section, MMU006, was observed with accumulati.ons
of combustible material. The accumulations
were on the lower part of the cylinders and
the crank case. They were heavy on the crank
case and the base and on the ' tank under the
compressor. The accumulations were oil mixed
with coal dust.
It appeared that they had
been there for a considerable period of time.
The compressor was mounted in a trailer with
the welder.

Inspector Marietti described an air compressor as a device
that pressurizes air. The air in turn is used to operate air
tools and drill$. The compressor was located on a trailer with a
welding machine parked in a crosscut.
(Tr. 319, 320).
The compressor was a piece of electrical equipment in active
workings.
It measured approximately 18 inches wide by 2 feet
high.
{Tr. 315, 316, 322). Attached to it was an electric motor
with a power cable and a receptacle.
(Tr. 316, 320).
The lower part of the cylinders, the crank case, and the
section underneath the compressor on the air tank were covered
with a heavy coating of oil and coal dust. Inspector Marietti
concluded that, due to their thickness, the accumulations had
been there for quite some time.
(Tr. 316).

11

The regulation reads:

S 75.400

Accumulation of combustible
materials.

[Statutory Provision]
Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and
other combustible materials, shall be cleaned
up and not be permitted to accumulate in active workings, or on .electric equipment
therein.

195

CWM contends the issue here is whether or not the electrical
air compressor was in use or available for use.
It is apparent the compressor was not in use at the time of
the inspection but was it available for use? I conclude that the
total record establishes that the compressor could not be used.
Inspector Marietti agreed that Mr. Defa told him that the
compressor had not been used for some time and was not being used
in the mine.
(Tr. 321). He also admitted that he did not test
it to see if it worked. Moreover, he did not remember if he
checked the electrical book to see if it was in service.
(Tr.
330, 338).
Further, he did not see any air hose that could be
used to make the compressor operable.
(Tr. 344).
Mr. Nathan Atwood, who installed the compressor and welder
on the trailer, testified that the compressor ha·d not been used
for at least two years and the cable inside the electrical box
for the compressor had been removed so it could not be energized.
(Tr. 636-639). Both Messrs. Atwood and Defa testified that the
compressor was among the abandoned equipment that was being
pulled back as they retreated from the pillar section, and that
it could not be operated. It was effectively taken out of service by making it impossible to energize it in its present
condition.
I am persuaded by the testimony of Messrs. Atwood and Defa
that the abandoned equipment was not operable.
The Secretary attacks CWM's evidence because there was fresh
oil around the motor and the compressor.
(Tr. 322).
I am not persuaded. The fresh oil around the motor could
have come from the motor itself or sources other than the air
compressor.
citation No. 3851922 should be vacated.
Citation No. 3851927
This citation alleges a violation of 30 C.F.R.
§ 75.1100-3 . 12

12

The cited regulation reads:

S 75.1100-3

Condition and examination of
firefighting equipment.

All firefighting equipment shall be maintained in a usable and operative condition.
Chemical extinguishers shall be examined
196

The citation reads as follows:
The fire hose at the No . 46 crosscut Main
North No. 4 Belt Entry was not being maintained fully usable and operative . There was
no nozzle with the hose. The hydrant was 30
feet outby. The belt has been idle since
Nov. '92. The belt serves the Main North
idle section and the 3d West idle entries.
The Secretary's evidence shows that on February 24, 1993,
Inspector Marietti observed a fire hose. The hose was missing
its nozzle.
(Tr . 348, 350).
Inspector Marietti explained that a nozzle is essential if a
miner is going to use the hose to fight a fire because it allows
the miner to direct a steady stream towards the fire from a safe
distance of approximately 60 feet.
(Tr. 348-349). Without the
nozzle, the miner would be forced to come much closer to the fire ·
and it would place the miner in a greater danger of being injured .
(Tr. 349, 353}. It also allows the miner to more effectively combat the fire since the concentrated stream from the
nozzle can be us~d to break up the materials of the £ire, such as
coal or wood, which will remove heat from the fire and put the
fire out.
(Tr. 348).
CWM argues no violation occurred since its equipment was in
a non-working section, the power was locked out, and there was no
water in the hose line.
I disagree. This equipment was obviously for firefighting.
It may be called into use in a nonworking section .
Power and
water are only required when there is a need for the firefighting capabilities.
Citation No. 3851927 should be affirmed.
Civil Penalty

The assessed violation history (P-5) indicates 12 violations
of § 75.1100-3 during the two-year period prior to this citation .
The operator's negligence was.moderate because Mr. Defa did
not know the nozzle was missing.
(Tr. 356).
Inspector Marietti did not find this violation "significant
and substantial".
6 months and the date of the examination shall
be written on a permanent tag attached to the
extinguisher.
197

The ·proposed civil penalty of $50.00 is appropriate for Citation No. 3851927.
citation Nos. 3851928 and 3851939
These related citations allege a violation of 30 C.F.R.
(cited in a previous citation).

§ 75.1100-2

The conditions cited in Citation No. 3851928 are as follows:
The fire extinguisher hanging in [the] 46
crosscut in the Main North No. 4 belt entry
had not been examined since February 1992.
The belt is idle and there was no electrical
equipment in the vicinity. The operator did
not check it.
The conditions cited in Citation No. 3851939 are as follows:
The fire extinguisher provided for the pump
in the Main North Return No. 72 crosscut did
not have an examination since June of '92
indicated by the tag attached. The pump was
connected to an energi z ed transformer in the
idle Main North Section.
The evidence is uncontroverted. There were two fire extinguishers without tags to show they had been examined every six
months.
CWM agrees the extinguishers had not been checked and dated
(as required by the regulation). However, they believed there
was no violation because they were fully charged and operational
and not even required at that location .
CWM's views are without merit. The only way to insure that
the fire extinguisher is operative is to check it.
The operator
failed to follow this procedure and it is not the function of the
Commission to rewrite the regulation .
civil Penalty
History:

The assessed violation history (P-5) shows 12 violations of§ 75.1100-3 in the two-year period
prior to these citations.

Negligence:

The operator's negligence was designated "moderate."
(Tr. 365, 444-445).

Gravity:

The Inspector did not designate these violations
as "significant and substantial."

19 8

The proposed civil penalty of $50.00 is appropriate for each
citation.
Citation No . 385 1 938

This citation alleges a violation of 30 C.F.R. § 75.11002 ( e) ( 2) • 13

The citation reads:
There was not 240 pounds of rock dust provided at the temporary electrical installation in the idle Main North Section's transformer . The transformer was energized and
supplying power to pump circuits.
There was
a fire extinguisher provided and rock dust
about 300 feet outby.
On February 24, 1993, Inspector Marietti observed an energized transformer supplying power to two pumps.
(Tr. 375). The
transformer itself advanced (and retreated) with the working
section.
(Tr. 375-376).
The Inspector issued MSHA's citation because there was no
rock dust provided at the transformer.
CWM contends it has always interpreted§ 75.1100-2(e) asapplying to electrical installations that are not part of a working
section.
Other inspectors who have inspected CMW's mine have interpreted the regulation in that manner.
(Tr. 680-685).

S 7 5 .1100- 2 (a) provides
(1)
Each working section of coal mines
producing 300 tons or more per shift shall be
provided with two portable fire extinguishers
and 240 pounds of rock dust in bags . . • .
Mr. Defa testified that all of the equipment required by
75.ll00-2(a) was provided in the working section , therefore CMW
argues there was no violation.
(Tr. 680-681),

§

13

The cited section reads:
One portable fire extinguisher and 240 pounds
of rock dust shall be provided at each temporary electrical installation.

199

I am not persuaded by CWM's argument. A critical difference exists between the two regulations. Section 75.1100-2(e) (2)
requires a fire extinguisher and rock dust at each temporary14
electrical installation. Since this installation advanced and
retreated with the working section, it was necessarily of a temporary nature.
On the other hand, the term "temporary" does not appear in
§ 75.1100-2(a).
If the construction of the regulation as urged by CWM is
followed, the protection afforded miners at temporary electrical
installations would be essentially negated.
MSHA's policy manual (Ex. P-25) further supports Inspector
Marietti's views.
Citation No. 3851938 should be affirmed.
CIVIL PENALTIES
CWM was assessed a single penalty of $50.00 for the violation of§ 75.1100-2(e) (2).

Prior history:

There have been no violations of § 75.11002(e) (2) during the two years prior to this
citation.
(Ex. P-5).

Negligence:

The operator's negligence was moderate because the weekly examiner should have been
checking for rock dust at these temporary
locations.
(Tr. 380).

Gravity:

The Inspector did not find this violation
"significant and substantial."

The penalty of $50.00 is appropriate for the violation of
Citation No. 3851938.
Citation Nos. 3851935 and 3851936
On February 25, 1993, Inspector Marietti issued the above
citations alleging violations of 30 C.F.R. § 75.1101-23(a).

14

If this had been a permanent electrical installation, the
operator would have been required to install it in a fireproof enclosure, isolated from the designated escapeway.
(Tr. 376).

200

The cited section requires each operator of an underground
mine to adopt a program to instruct all miners in the proper
evacuation procedures in the event of an emergency. _ The evacuation plan in effect at the Bear Canyon #1 Mine was admitted in
evidence as Exhibit P-12. It states in pertinent part as
follows:
Location of SCSR units
Mantrips Each mantrip carries enough units
for number of men on trip. Units are stored
in a metal container on "Mantrips to protect
SCSR's. Units are checked at least every 24
hours by operator, trained to inspect units,
before entering mine.

Inspector Marietti observed a Duetz-Allis tractor getting
ready to go underground with two miners on board. He asked them
about their SCSR units and they indicated that they did not have
any.
He observed that the SCSR unit storage box had a broken lid
and was being used to store tools. He then issued Citation No.
3851935 in which he described the condition as follows:
The approved self-contained self-rescue storage plan was not being complied with. The
Duetz-Allis mantrip tractor was observed getting ready to go underground. Th~re were two
miners on the tractor. There were no SCSR's
on the tractor. The tractor operator indicated that they never had any SCSR's. I
tried to question, but the miners spoke no or
very little English, and could not determine
the knowledge of the SCSR storage plan.
Shortly thereafter, Inspector Marietti went underground and
observed an Allis-Chalmers tractor with one person driving, going
from underground in the mine to the outside.
(Tr. 492). Again
he questioned the driver about whether he had an SCSR unit.
The
driver indicated that he did not have an SCSR unit and Inspector
Marietti observed that there was no SCSR storage box. · (Tr. 494).
Inspector Marietti then issued Citation No. 3851936 in which he
described the condition as follows:
The approved self-contained self-rescue storage plan was not being complied with. The
Allis-Chalmers mantrip was observed operating
in the main west designated intake escapeway.
When the machine was checked outside, there
was no SCSR for the miner operating it. He
said or indicated he could speak no English
so I could not determine his knowledge of the

201

SCSR storage plan. I tried to tell him he
needed one and he appeared to understand I am
not sure. Refer to Citation Nos. 3851935 and
3851936.
The Code of Federal Regulations does not define "rnantrip,"
however, Inspector Marietti's understanding of the meaning of
"mantrip" is supported by the definition of "Mantrip" contained
in A Dictionary of Mining, Mineral, and Related Terms, at 679.
It defines "mantrip" as:
a. A trip made by mine cars ·and locomotives
to take men rather than coal, to and from the
working places. B.C.I. b. Trip made by a
man cage in a shaft to take men rather than
ore, to and from a working place in a mine.
Although this definition does not refer to what types of
vehicles are considered mantrips, it specifies trips containing
men, instead of mineral, going in and out of the mine.
Mr. Defa, on behalf of CWM, testified that the vehicles
cited by Mr. Marietti were not rnantrips but were non-face mobile
equipment used to transport supplies, not men.
(Tr. 700-702).
I am not inclined to follow CWM's views.
The common issue
is whether miners were being transported. For example, in connection with Citation No. 3851935, two miners were observed in a
Duetz-Allis tractor ready to go underground. This constituted a
mantrip.
In connection with Citation No. 3851936 the Inspector observed two miners on an Allis-Chalmers tractor getting ready to
go underground. This was also a rnantrip.
It matters not at all that some vehicles were non-face
mobile equipment because when cited they were being used to
transport men, thus they were "mantrips."
Citation Nos. 3851935 and 3851936 should be affirmed.
civil Penalties
CWM was assessed a total penalty of $697.00 for the violations alleged in Citation Nos. 3851935 and 3851936.
Prior History:

There have been no prior violations of
§ 75.1100-2(e) (2) during the two years
prior to this citation.
(Ex. P-5).
202

Neqliqence:

The operator's negligence was moderate
because CWM's equipment lacked SCSR
units.

Gravity:

The Inspector did not find the violation
to be "significant and "substantial."

A penalty of $100.00 is appropriate for each
violation.

For the foregoing reasons, I enter the following:
ORDER
1.
The following citations are VACATED:
3582905, 3582919, 3583044, 3583050, 3851922 .

Nos. 3582877,

2.
The following citations are AFFIRMED and penalties as
indicated are ASSESSED:

Citation No.

Penalty

3583053.
3852372
3852375
3852376
3852377
3582904
3582908
3582909
3582910
3851921
3851925
3851927
3851928
3851935
3851936
3851938
3851939

$200.00
$ 10.00
$200.00
$300.00
$100.00
$345.00
$ 50.00
$ 50.00
$ 50 . 00
$ 50.00
$ 50.00
$ 50.00
$ 50.00
$100.00
$100.00
$ 50.00
$ 50.00

Law Judge
203

~.

Distribution:

J. Tambra Leonard, Esq., Office of the Solicitor, U ..s. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294
(Certified Mail)
Carl E . Kingston, Esq., C.W. MINING COMPANY, 3212 South State
Street, P.O. Box 15809, Salt Lake City, UT 84115
(Certified
Mail)
/ek

204

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

FEB 2 31995

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

CIVIL PENALTY PROCEEDINGS
Docket No . LAKE 94-648
A. C. No . 11-02636-038 71
Docket No. LAKE 9 4-680
A.C. No. 11-02636-038 72

BRUSHY CREEK COAL CO . , INC.,
Respondent

Brushy creek Mi ne
DECISIONS
Appearances:

Christine M. Kassak, Esq., Office of the
Solicitor, U. S . Department of Labor, Chicago,
Illinois , for the Petitioner;
Karl F. Anuta, Esq., Boulder, Colorado, for the
Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These cases concern civil penalty proceedings filed by the
petitioner against the respondent pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§820(a), seeking civil penalty assessments for two (2) alleged
violations of certain mandatory safety standar ds found in
Parts 70 and 75, Title 30, Code of Federal Regulations.
The respondent filed timely answers contesting and
denying the alleged violations and the cases were part of
a group of cases involving these same parties heard in ·
Evansville, Indiana, during the hearing term January 18-19,
1995.
Issues
The issues presented in these proceedings include the fact
of violation, whether one of the violations was "significant
and substantial," whether one of the violations constituted an
"unwarrantaJ:?le failure," and the appropriate civil penalty
assessments to be made for the violations.

20 5

·:

Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977,
30 u.s.c. s 301, ~.&.e.g.

2.

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

3.

commission Rules, 29 C.F.R. S 2100.1, e.t. .a.e.g;.

The parties stipulated to jurisdiction, the admissibility
of copies of the citations and exhibits, and the fact that the
citations were properly served on the respondent by duly
authorized representatives of the Secretary of Labor. They also
agreed to the annual company and mine coal production tonnage for
the 1993 calendar year, the respondent's good faith abatement,
the assessed violations' history for the two-year period prior to
March 29, 1994, and that the proposed penalties will not affect
respondent's ability to continue in business (Joi'n t Exhibit 1).
Discussion
Docket No. LAKE 94-648
This proceeding concerns a proposed civil penalty assessment
of $6,500 for an alleged violation of mandatory health standard
30 C. F.R. 70 . lOO(a), as stated in section 104(d) (2) "S & S" Order
No. 9941891, issued on April 11, 1994, and subsequently modified
to a section 104(d) (1) "S & S" citation on May 11, 1994 . The
cited condition or practice states as follows:
The results of ·five (5) respirable dust samples
collected by the operator as shown by computer
message No. 001 , dated April 5, 1994, indicates
the average concentration of respirable dust in
the working environment of the designated occupation
in mechanized mining unit No . 001-0 (036) was
2.3 mg/m3 which exceeded the applicable limit of
2.0 mg/m3 • Management shall take corrective actions
to lower the respirable dust and then sample each
production shift until five (5) valid samples are taken.
Docket No. LAK.E 94-680
This proceeding concerns a proposed civil penalty assessment
of $2,072, for an alleged violation of mandatory safety standard
30 C.F.R. 75.1101-l(b), as stated in section 104(a) non-"S & S"
Citation No. 4267432, issued on July 6, 1994. The cited condition or practice states as follows:

206

The nozzles in the branch line on delu·g e type
fire suppression system were not directed at
the upper surface of the top belt.
The inspector fixed the abatement time as 5:00 p.m., July 6,
1994. At the hearing, the petitioner's counsel produced a copy
of section 104(b) Order No. 4267436, issued at 10:15 a.m.,
July 7, 1994, for the failure of the respondent to totally abate
the citation. The order reflects that four of the eight cited
nozzles were directed at the upper surface of the top belt, and
the inspector concluded that "no effort was being made to direct
the remaining nozzles at the upper surface of the top belt."
This order was n.Qt included with the initial pleadings and
proposed penalty assessment filed by the petitioner in this case,
and counsel filed it with me in the course of the hearings.
Further, the section 104(b) order is not in issue in this case
and the proposed penalty assessment relates only to the sect i on
104(a) citation.
Prior to the taking of any testimony or evidence in these
matters, the parties informed me that they reached a proposed
settlement of both cases , and pursuant to Commission Rule 31,
29 C.F.R. 2700.31, they were afforded an opportunity to present
arguments on the record in support of the settlement disposition
of the cases (Tr. 18-31).
With regard to section 104(a) non-"S & S" citation
No. 4267432, the petitioner's counsel stated that taking
into consideration the respondent's attempts to comply with
the requirements of the cited regulation, and only one prior
violation in 1993, the parties have agreed that a civil penalty
assessment of $1,036, in settlement of the violation is
reasonable, and that the citation will stand as issued (Tr. 21).
In addition to the arguments advanced by the petitioner
in support of the settlement, I take note of the low gravity
level associated with the violation. (non-"S & S"}. The
·proposed settlement was approved by me from the bench (Tr. 23),
and my decision in this regard IS REAFFIRMED.
With regard to section 104(d)(l) "S & S" Citation
No. 9941891, the petitioner's counsel asserted that the parties
agreed to settle the matter by a civil penalty assessment of
$3,250, and that the citation would stand as issued (Tr. 23).
The respondent's counsel ·agreed with the settlement, and
presented mitigating arguments in support of the agreement
(Tr. 28, 31). The proposed settlement was approved by me from
the bench (Tr. 30}, and my decision in this regard IS RBAP'FIRMED.

207

Conclusion
Upon further review of the arguments advanced in support of
the settlements, and taking into account the six statutory civil
penalty criteria found in section llO(i) of the Act, I conclude
and find that the proposed settlements are reasonable and in the
public interest. Accordingly, as previously indicated, they are
APPROVED.
ORDER
In view of the foregoing, IT IS ORDERED as follows:
1.
The respondent shall pay a civil penalty
assessment of $1,036, in satisfaction of section
104(a) non-"S & S" Citation No. 4267432, July 6,
1994, 30 C. F.R . 75 . 1101-l(b).
·2.
The respondent shall pay a civil penalty
assessment of $3,250, in satisfaction of section
104(d) (1) "S & S" Citation No. 9941891, April 11,
1994, 30 C.F.R. 70.lOO{a) .

3.
Payment of the aforesaid civil penalty
assessments shall be made to MSHA within
thirty (3) days of the date of these decisions
and order, and upon receipt of payment, these
matters are dismissed.

~-~~
Administrative Law Judge

Distribution:
Christine M. Kassak, Esq., Office of the Solicitor,

u.s. Department of Labor, 230 South Dearborn, 8th Floor,
Chicago, IL 60604 (Certified Mail)
Karl F. Anuta, Esq., 1720 Fourteenth Street, P.O. Box 1001,
Boulder, co 80306 (Certified Mail)

\lh

208

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

.FEB 2 3 1995
JIM WALTER RESOURCES, INC . ,
Contestant

CONTEST PROCEEDING

v.

Docket No. SE 94-126-R
Order No. 3197626; 12/29/ 93

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

No . 4 Mine
Mine ID 01-01247

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

CIVIL PENALTY PROCEEDINGS
Docket No. SE 94-306
A.C. No . 01-01247-04106

v.
Docket No. SE 94-407
A.C. No. 01-01247-04118

JIM WALTER RESOURCES, INC.,
Respondent

No. 4 Mine
Docket No . SE 94-384
A. C. No. 01-01322-03949
No. 5 Mine
Docket No. SE 94-383
A.C. No. 01-01401-04000
Docket No . SE 94-389
A.C. No. 01-01401-03998
Docket No. SE 94-390
A.C . No . 01-01401-03999
No. 7 Mine
SECRETARY OF LABOR, HEALTH
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 94-446
A.C . No. 01-01247-04126-A

CARL W. HARLESS, employed by
JIM WALTER RESOURCES, INC.,
Respondent

No. 4 Mine

209

CIVIL PENALTY PROCEEDING

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

:

v.

Docket No. SE 94-453
A.C. No. 01-01247-04125-A
No. 4 Mine

WILLIAM E. WILSON, employed by
JIM WALTER RESOURCES, INC.,
Respondent

.
CIVIL PENALTY PROCEEDING

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

:

Docket No. SE 94-454
A.C. No. 01-01247-04127-A
No. 4 Mine

HILBURN HULSEY, employed by
JIM WALTER RESOURCES, INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. SE 94-511
A.C. No. 01-01247-04124-A
No. 4 Mine

C. DON SIMS, employed by
JIM WALTER RESOURCES, INC.,
Respondent
DECISION

Appearances:

William Lawson, Esq., Office of the Solicitor,
U.S. Dept. of Labor, Birmingham, Alabama,
for Petitioner;
J. Alan Truitt, Esq., Maynard, Cooper & Gale,
Birmingham, Alabama, for Individual Respondents;
R. Stanley Morrow, Esq., Jim Walter Resources,
Inc.; Brookwood, Alabama, for Contestant and
Respondent.

Before:

Judge Barbour

These cases are brought pursuant to Sections 105 and 110 of
the Federal Mine Safety and Health Act of 1977 (Mine Act or Act),
30 u.s.c. § 815, 820. In the contest proceeding, Jim Walter
Resources Inc. {Jim Walter) challenges the validity of an order
of withdrawal issued at its No. 4 Mine. In the civil penalty
proceedings, the Secretary of Labor (Secretary), on behalf of the
Mine Safety and Health Administration (MSHA), seeks the
assessment of penalties against Jim Walter and three individuals
for alleged violations that occurred at the No. 4 Mine,
No. 5 Mine and No. 7 Mine.
210

Pursuant to various orders of consolidation and notices of
hearing, the matters were heard in Hoover, Alabama.
At the commencement of the hearing, counsel for the
Secretary stated that the parties had settled all of the
proceedings, with the exception of Docket No. SE 94-126-R and its
associated civil penalty prpceeding, Docket No. SE 94-407
(Tr. 11-12). Counsels explained the details of the settlements
and I indicated that I would approve the settlements when I
decided the contested cases (Tr . 18) .
DOCKET NOS. SE 94-126-R and SE 94-407
In Docket No. SE 94-126-R, Jim Walter challenges the
validity of Order No. 3197626. The order was issued pursuant to
Section 103(k) of the Act (30 u.s.c. § 813(k)). Section 103(k)
provides that if an accident occurs, an inspector, when present,
may issue such orders as he or she .deems appropriate to insure
the safety of any person in the mine.
The order was issued by MSHA Inspector Gerald Tuggle on
December 29, 1993. It states:
An accident to the hoisting equipment located in the
production shaft has happened and interfered with the use
of the equipment for more than thirty minutes. This
order is issued until an investigation can be completed
to assure the safety of the miners or persons in the
production shaft (Gov. Exh. 1).
Tuggle also issued Citation No. 3197627, pursuant to Section
104(a) of the Act (30 u.s.c. § 814(a)). The citation charges
Jim Walter with a violation of 30 C.F.R. § 50.10. This mandatory
standard requires an operator to "immediately contact" the MSHA
district or subdistrict office having jurisdiction over its mine,
"[i]f an accident occurs."
The citation states:
A reportable accident [occurred] to the hoisting
equipment in the production shaft in which the hoisting
equipment was out of service for more than thirty minutes
and MSHA was not notified immediately. The accident
happened at 11:08 p.m. on December 28, 1993 and MSHA was
notified on December 29, 1993 at approximately 8 a.m.
(Gov. Exh • 2 ) •
The Secretary proposed a civil penalty of $500 for the alleged

violation.

211

STIPUI.ATIONS
The parties stipulated that:
1.

The Commission has jurisdiction over the proceeding.

2. The hoisting equipment referenced in the order and the
citation went out of service at 11:08 p.m. on December 23, 1993.
3. MSHA was not notified by Jim Walter that the hoisting
equipment had gone out of service until 7:00 a.m. on
December 29, 1993.
4. The hoisting equipment was put back into service at
9:30 a.m. on December 29, 1993 (Tr. 20-21).
THE SECRETARY'S WITNESS
GERALD TUGGLE

Inspector Tuggle was the Secretary's only witness. Tuggle has
been a MSHA inspector for more than 13 years. During this time he
has inspected both underground and surface coal mines, including
the underground mines operated by Jim Walter.
Tuggle testified that coal at the No. 4 Mine is transported by
conveyor belts from the production sections to a location at the
bottom of a shaft where a hoisting system is used to raise the coal
to the surface (Tr. 23). The hoisting system includes two skips.
Tuggle described the skips as large containers. The skips are
attached to wire ropes and a hoisting mechanism on the surf ace
raises the skips from the production shaft to the surface. Tuggle
explained that the skips operate alternatively. While one skip is
being loaded at the bottom of the shaft, the other skip is being
. emptied on the surface (Tr. 25). When a loaded skip has ascended
the shaft and is ·at the top of the shaft head frame, the skip trips
a switch and a door on the bottom of the skip slides open. The
coal falls onto a chute. The chute leads to a conveyor, which
carries away the coal (Tr. 28).
Skips are the sole means by which coal is removed from the
No. 4 Mine. Tuggle estimated that a loaded skip holds
approximately 22 tons of coal (Tr. 26). The skips move up and
down the production shaft at the rate of approximately 900 feet per
minute. The shaft is approximately 2,000 feet deep (Tr. 27). The
skips are used during every production shift (Tr. 29).
The production shaft is used also as an emergency exit, in
that it contains a hoist used for emergencies only. The emergency
hoist can carry approximately 10 miners to the surface (Tr. 27).
Tuggle testified that on December 29, he was sent to the mine
by his supervisor (Tr. 30, 111). Tuggle ·was instructed to
investigate an accident that involved the skip hoisting equipment.
212

Upon arriving at the mine, Tuggle discussed the situation with
Frankie Lee, a member of Jim Walter's mine management team. Lee
told Tuggle the hoist had ceased operation around 11:00 p.m. the
previous evening, that repairs had been made, and that the hoist
was back in use (Tr. 104, 112). Following the discussion, Tuggle
issued the contested Section 103(k) order (Tr. 114).
As Tuggle remembered, Lee told him that on December 28, toward
the end of the 4:00 p.m. to 11:00 p.m. shift, the skips were shut
down for lack of coal. The shift changed at 11:00 p.m., and at
about that time coal was delivered to the bottom of the production
shaft. Shortly after 11:00 p.m., the control man at the bottom of
the shaft called the telephone operator and reported that power to
the hoist had gone off. An alarm also sounded on the surface to
indicate that the hoist had stopped.
Management personnel went to the surf ace hoist house to
determine what was wrong. The hoist house, which contains the
hoist motor and the hoist drum, was full of smoke. The personnel
opened all of the windows and doors.
The hoist system uses four
metal hoist ropes. There are four grooves on the hoist drum into
which the ropes wind and unwind. Each groove has a neoprene
wearing strip. The strips, which are changed periodically, help to
maintain proper tension on the ropes . When the smoke cleared, the
personnel could see that the metal hoist ropes had been slipping on
the wearing strips. Friction caused by the slipping ropes had
heated the strips to the point where they had begun to melt and to
smoke (Tr. 31-32).
The strips have to wear equally in order for the skips to run
smoothly (Tr. 38). Because of the uneven wear caused by the
slipping ropes, the neoprene strips had to be regrooved (Tr. 35,
38, 40, 44}.
In addition to the problems on the surface, management
personnel found that the loaded skip had become · stuck at the bottom
of the shaft. The skip was wedged into the wooden frame that
cradles the skip. Using a torch, mine personnel severed several
bolts and cut away part of the skip (Tr. 34, 35). This freed the
skip so that it could be raised to the surface (Tr. 37).
Once the skip was raised out of the wooden frame, ·personnel
found that the skip control line (a wire cable that stretches
across the bottom of the shaft) had been broken (Tr. 34, 39}.
When the control line breaks, the 'hoisting system shuts down
(Tr. 34). The control line had to be replaced before the system
could be put back into service (Tr. 39-40}.
Tuggle also was informed that before the hoisting system
ceased to function, Jim Walter had removed from the system a device
that shut the system down if the RPMs of the drum were "out of
sync" with the speed of the ropes. The device was removed because
lubrication on the ropes caused the device to function erratically
and to shut the system down in the middle of a skip's ascent or
213

descent (Tr. 41). Tuggle believed Jim Walter concluded it was
hazardous to have a skip traveling at 900 feet per minute come to a
sudden and totally unexpected stop (.i.si....). In Tuggle's opinion, if
the device had been in place, it would have "picked up the hoist
drum turning and the cables ... not ·moving and it would [have] shut
the system down, which would have prevented the melting of the
wearing strips" (Tr.42).
Tuggle was asked about previous incidents involving skips at
the No. 3 Mine.
(The No. 3 Mine, which is not the site of any of
the citations and orders at issue in these cases, is owned and
operated by Jim Walter.) He stated that in one instance the
failure of a control switch had caused a skip to hit the head
frame, the ropes had broken, and the skip had fallen down the
shaft . As a result, Tuggle believed the No. 3 Mine was unable to
operate for three to four weeks {Tr. 45).
Tuggle stated that he issued the Section 103(k) order in part
to make certain the skips and ropes had not been damaged to the
extent that they might fall down the shaft and injure miners at the
bottom (Tr. 45). Tuggle stated that he was concerned about the
safety of miners who traveled near the shaft and miners who might
have had to use the emergency hoist (Tr. 46, 116-117). Tuggle
explained that if the skips and cables had fallen down the shaft,
the damage caused could have extended beyond the shaft bottom and
endangered miners who might be in adjacent areas (Tr. 117). Tuggle
stated he wanted "[t]o preserve the site •.• (so that MSHA] could
investigate it to see if it was safe or not" (Tr. 53, See also Tr.
105).
When asked why he issued the order after everything apparently
was back to normal, Tuggle replied, "[to] shut it down to where I
could investigate and make sure that it was safe for miners that
were in the area and underground" (Tr. 68). Tuggle acknowledged
that when he issued the order at 11:05 a.m., Jim Walter had already
advised him that the defects in the hoisting system had been
corrected and that the hoist had been back in service for
approximately one hour and a half (Tr. 68). As a result of his
investigation, Tuggle found that all necessary repairs in fact had
been made and he concluded that the hoisting system was safe to
operate (Tr. 69).
Tuggle testified that MSHA Inspector William Zimmerman had
gone to the mine around 7:00 a.m. on December 29, 1993.
Zimmerman
was told that the hoist had been inoperative all night. This was
the first time MSHA was informed about the hoist being inoperative.
Zimmerman then reported the incident to MSHA and Tuggle was sent to
the mine to investigate. Tuggle did not know why Zimmerman had not
issued a Section 103(k) order (Tr. 66).
Tuggle also issued Citation . No. 3197627. He did so because he
believed that Section 50.10 requires an operator to "immediately
notify" MSHA when an "accident" occurs. In Tuggle's opinion, what
had happened to the hoisting system was an "accident."
(Tr. 48-49).
214

Tuggle stated that the regulations require the reporting of ·
all hoisting accidents which result in a hoist being out of service
for over thirty minutes, unless the hoist is out of service for
routine maintenance (Tr. 70-71) . He stated, "[i]f it's mechanical
failure, which damages the hoisting system for more than 30 minutes
••• it needs to be investigated . • •• [I]f the mechanical damage is
due to an accidental breakdown of the components •.. it needs to be
investigated. But if it's due to normal wear then, no, I don't
think it needs to be investigated" (Tr . 93).
According to Tuggle:
The accident that happened to the hoisting system
was, first, the skip was either overloaded or rain on the
lubrication on the hoist ropes caused the drum to slip
which, in turn, created friction between the liners and
the ropes which, in turn, damaged the liners that it had
to be relined which, in turn, something fell i n the
bottom and broke the control wires.
All of these things right here were different
results of the accident which created the hoist being
down more than 30 minutes (Tr. 96).
Although Tuggle cited Jim Walter for a violation of
Section 50.10, he was unaware of anything in the MSHA Program
Policy Manual interpreting the standard {Tr. 81).
Originally, Tuggle cited the violation in an order of
withdrawal issued pursuant to Section 104{d) (2) of the Act
(30 u.s.c. S 814(d) (2)). Subsequently, he modified the order
to a Section 104(a) citation because inspectors "can only issue
unwarrantable violations on health and safety standards [and]
Part 50 is not a health and safety standard. It's more of a
record type thing." (Tr. 47).
Tuggle found the company's negligence to be "high" (Tr. 77 ) .
He explained that Jim Walter had knowledgeable people in
management positions. They had experience working with hoists and
should have known to report the accident immediately (Tr . 56).
Tuggle did not find the violation to be a significant and
substantial contribution to a mine safety hazard. He did not
believe the violation presented a likelihood of injury
or illness (Tr. 57; Gov. Exh. 2). He acknowledged that no miners
were injured by the accident (Tr. 6i).
With respect to the number of miners endangered, Tuggle
stated that normally one person is in the control room at the
bottom of the shaft (Tr. 61, 107) . However, he believed that the
persons most subject to danger were miners, such as firebosses,
supervisors and pumpers, who traveled occasionally along the outer
edge of the shaft to reach other areas of the mine (Tr. 61, 108).
Tuggle estimated that at least one miner would travel daily
through the area (Tr. 108). Tuggle did not know if any miners
215

t

actually were placed in jeopardy by the accident on
.
December 28, 1993. He emphasized that he was not on hand when the
damage to the equipment occurred (Tr. 62). He also acknowledged
that there were guardrails around the shaft opening to keep miners
from walking into the bottom of the shaft (Tr. 115).
JIM WALTER'S WITNESSES
The company called no witnesses, but relied upon its cross
examination of Tuggle (Tr . 119).
VALIDITY OF ORDER NO. 3197626
section 103(k) authorizes a mine inspector, in the event of
an accident occurring at a coal or other mines, to "issue such
orders as he deems appropriate, to insure the safety of any
persons" in the mine (30 U.S.C. § 813(k) (emphasis added)). MSHA's
regulations at 30 C.F.R. Part 50 provide several definitions of an
"accident." The relevant definition for purposes of this case is
the definition found in section 50.2(h) (11). It defines an
accident as "[d]amage to hoisting equipment in a shaft or slope
which endangers an individual or which interferes with the use of
the equipment for more than thirty minutes."
Commission Administrative Law Judge George Koutras has
summarized the nature of Section 103(k) orders and the wide
discretion the section affords inspectors:
Section 103(k) orders are typically issued by MSHA
inspectors to secure the scenes of accidents, to insure the
continued safety of mine personnel, to preserve evidence, and
to facilitate the investigation of accidents ....
Section 103(k) authorizes an inspector to issue
such orders as he deems appropriate to insure the safety
of miners. Thus, the issuance of such an order by an
inspector is discreti~nary. If an inspector believes
that an operator has the situation well in hand, and
that the ·safety of miners is insured, he need not issue
any orders at all. on the other hand, if the inspector
is in doubt, or has insufficient ipformation to enable
him to make a judgement as to the severity of the .
situation, or the hazard exposure to miners, .. • he must
be afforded the latitude to act according to the wisdom
of his discretion and experiepce .•• ('I]n order to
successfully respond to such situations, an inspector
must be able to do what he believes is appropriate
according to the facts as they are known to him, or as
they appear to exist, at the time he makes the decision
to act . .•.• If the order was routinely issued, without
regard to the safety or health of miners, then ••• it
should be vacated. If, on the other hand, it was issued
in order to insure the safety or health of the miners,
it should be affirmed (Southern Ohio Coal Co., 13 FMSHRC
216

1783, 1798-99 (November 1991)
(emphasis in original).

(citations omitted}

In analyzing Tuggle's use of his discretionary authority to
invoke section 103(k), it is important to keep in mind what Tuggle
already knew when he arrived at the mine on December 29. He had
inspected Jim Walter's underground coal mines for a number of
years and he was aware that an accident at the No. 3 Mine had
resulted in a skip and hoist ropes falling down the production
shaft (Tr. 45). He knew that miners at the No. 4 mine
occasionally were required to travel adjacent to the bottom of the
production shaft (Tr. 116-117). He also knew that at the
No. 4 mine, a hoist used to carry mine personnel in the event of
an emergency, shared the production shaft with the skip hoist.
Tuggle testified repeatedly that he issued the Section 103(k)
order so that he could "investigate and make sure that it was safe
for miners" (Tr. 68; See also Tr. 53, 97-98, 116-117). Given what
he knew about the prior accident and the possible exposure of
miners to the inherent dangers and what he learned from Lee
regarding the events that occurred when the skip became stuck at
the bottom of the shaft, especially the slipping hoist rope, the
melting of the neoprene wearing strips and the broken control
line, I conclude that it was entirely reasonable for Tuggle to
halt operations. Tuggle could then investigate and make certain
repairs had been. adequate to insure safety of the miners. The
fact that Tuggle's investigation resulted in a finding that
everything was safe does not invalidate his decision to issue the
order. The question is the reasonableness of his decision at the
time· he made it (~ Homesteak Mining Co., 4 FMSHRC 1829, 1840
(October 8, 1982) (ALJ Vail)). Tuggle was responsible for
determining whether the hoist had been properly repaired and, if
not, for protecting miners from resulting safety hazards. This
was a considerable responsibility. Therefore, i t is natural that
any question in his mind would have been resolved on the side of
safety (~ M.A.E. West, Incorporated, 10 FMSRHC 813, 842 (June
1988) n. 5 (ALJ Koutras)).
I conclude that Zimmerman's failure to issue a Section 103(k)
order does not invalidate Tuggle's enforcement effort. In some
circumstances, the lack of enforcement action by one inspector
might reflect upon the reasonableness of action initiated· by
another inspector. This is not such a situation. As I have
already found, the evidence overwhelmingly supports the
proposition that given what he knew when the order was issued,
Tuggle's desire "to make sure that it was safe for miners" was
eminently reasonable {Tr. 68). Therefore, the order must be
affirmed.
THE VIOLATION OF SECTION 50.10
In deciding whether a violation occurred, I must look to the
words of the pertinent standards. If the words are straight
forward and apply to specifically described situations as in this
instance, I need not go beyond the regulations themselves.
217

Section 50.10 requires that "[i]f an accident occurs, an
operator shall immediately contact ..• MSHA." As previously
noted, an "accident" is defined as "[d]amage to hoisting equipment
in a shaft ••• which endangers an individual or which interferes
with use of the .equipment for more than thirty minutes" (30 C.F.R.
§ 50.2(11)).
The regulation does not distinguish between hoisting
equipment used to transport miners and hoisting equipment used to
transport coal and/or materials. Moreover, the applicable
definition of "accident" is disjunctive -- "which endangers an
individual .Q..t: which interferes with use of the equipment" {30
C.F.R. § 50.lO(h) (11)).
(I note that although Tuggle was unaware
of an official interpretation of Section 50.10 (Tr. 81), Program
Policy Letter No. 94-III-2 indicates that MSHA regards damage to
hoisting equipment used solely to transport equipment or material,
and which interferes with use of the equipment for more than
thirty minutes, to be reportable . "Reporting of Damaged Hoisting
Equipment" (10/7/94).)
Tuggle's undisputed testimony confirms that there was damage
to the hoisting equipment, in particular, damage to the neoprene
wearing strips and to the control line that caused the hoisting
equipment to be out of service for more than thirty minutes. This
was an "accident" within the meaning of Section 50.2(h) (11).
Moreover, even if, as Jim Walter argues, the regulations only
pertain to situations where miners are exposed to hazards, I would
still find there was an accident within the meaning of the
definition. I credit fully Tuggle's opinion that the defective
production hoist could have exposed those who traveled
occasionally at the bottom of the shaft to danger. This being the
case, the incident was ~eportable as an "accident."
Having found there was an "accident," the question is, did
Jim Walter "immediately contact" MSHA? It is clear that the
condition of the hoist was not reported until many hours after the
damage occurred. Jim Walter offers no excuse for the delay. The
fact that management personnel incorrectly believed the regulation
did not apply cannot excuse their failure to take the "prompt,
vigorous" action required by the standard. Consolidation Coal
Company, 11 FMSHRC at 1938. I therefore find the violation
existed as charged.
CIVIL PENALTY CRITERIA

GRAVITY
Tuggle did not believe that injuries to miners were
reasonably likely because of the violation (Tr. 52). There was
no evidence that miners were placed in danger by the accident
(Tr. 62). While I suspect an argument could be made that a
violation of the "immediate contact" requirement of section 50.10
is serious in and of itself, it was not made here. I conclude,
therefore, that the violation was not serious.

218

··..:

NEGLIGENCE
Tuggle found mine management to have been highly negligent in
failing to report the accident. In his view, management personnel
were experienced and should have known of their obligation to
contact MSHA (Tr . 77). At the hearing, counsel for the Secretary
pointed to the fact that Jim Walter obviously knew of the
reporting requirement because it had contacted MSHA when the skip
fell down the shaft at the No. 3 Mine (Tr. 124).
Negligence is the failure to exercise the care required under
the circumstances. The relevant circumstances here included the
fact that not only did Jim Walter failed to act immediately, but
that eight or nine hours passed before MSHA was contacted.
Moreover, I agree with counsel that the accident at the No. 3 Mine
, should have heightened Jim Walter's awareness of the requirements
of the standard. I conclude therefore that Tuggle's negligence
finding was warranted.
HISTORY OF PREVIOUS VIOLATIONS
The print-out of the mine's prior assessed violations
lists a large number of such violations. However, the overall
number of applicable previous violations is counter balanced by
the fact that there were no prior violations of section 50 . 10
{Gov . Exh . 4) . I conclude that the applicable history of previous
violations is such that could either increase or decrease the
penalty assessed.
SIZE OF BUSINESS
Jim Walter is a large operator and the No. 4 Mine is a large
mine (Proposed Assessment, Docket No. WEVA 94-407).
ABILITY TO CONTINUE IN BUSINESS
No evidenpe was offered that any penalty assessed will affect
Jim Walter's ability to continue in business and I conclude it
will not.
GOOD FAITH ABATEMENT
Tuggle indicated that at the time the citation was issued,
the company had already abated the violations by notifying MSHA
(Gov. Exh . 2) .
CIVIL PENALTY
When I inquired why the violation was subject to a special
assessment under the provisions of 30 C.F . R. Part 100, counsel for
the Secretary stated that the violation was assessed when it was
a Section 104(d)(2) order, prior to the order's modification to a
Section 104(a) citation (Tr. 57-58).

21 9

Section 100.5(b) provides that the Secretary may elect to
specially assess a violation when it is due to the unwarrantable
failure of the operator to comply. The unwarrantable finding was
eliminated when the order was modified to a section 104(a)
citation. counsel stated, however, that the Secretary continued
to believe the proposed penalty of $500 was justified by Tuggle's
"high" negligence finding (Tr. 57-58).
Section 100.S(h) provides the Secretary may invoke the
special assessment provisions in cases of "an extraordinarily high
degree of negligence" (emphasis added). I can not conclude that
the lack of care exhibited by Jim Walter in this instance was
extraordinarily high.
In view of this and the other civil penalty criteria
findings, I find the proposed penalty to be excessive. Therefore,
I will assess a civil penalty of $300.
SETTLEMENTS

SE 94-407
Citation/
Order No.
3182293

10/28/93

30 C.F.R. §

Assessment

Settlement

75.370{a) (1)

$5,200

$3,500

(Tr. 139-140)
SE 94-306
~i:ta.:tiQDL

Order No.

~

30 C.F.R. §

Assessment

Settlement

2807227
3182263
3182266*
3182267
3183390*
3183399*
3183400
3183512*
3183515*
2807244*
2807499*
2807245*

08/18/93
10/28/93
11/15/93
11/15/93
11/15/93
11/16/93
11/17/93
11/18/93
11/18/93
11/30/93
11/30/93
12/06/93

75.220
75.400
75.370(a) (1)
75.400
75.503
77.410
77.202
75.400
75.400
75.370(a) (1)
75.1403
'
75.370(a) (1)

$8,500
$1,610
$1,298
$1,298
$1,610
$ 506
$ 595
$ 506
$ 793
$1,298
$1,610
$1,610

$5,500
$ 793
$ 300
$ 793
$ 200
$ 150
$ 595
$ 150
$ 200
$ 300
$ 300
$ 300

(Tr. 140-147)

(*The Secretary agrees to delete the S&S findings.)
DOCKET NO. SE 94-383

Order[
Ci:ta:tion
3182598

30 C.F.R. §
12/08/93

75.203(e)
220

Assessment

$

595

Settlement
$

200

12/09/93
12/10/93

3182235*
3182605
(Tr.147-149)

75.1106-3(a)(3)
75.370{a) (1)

$ · 288
$ 431

$
$

100
150

{*The Secretary agrees to delete S&S finding.)
DOCKET NO. SE 94-384

Q:t:de:t: l
citation

D..a.:t.e

30 C.F.R. §

Assessment

3184808
3195772*

06/24/93
11/09/93

50.20
75.380(g)

50
$
$1,155

(Tr. 149-150)

Settlement
$
$

50
400

(*The Secretary agrees to delete the S&S finding.)
OQCKET NQ SE 2~-J62

Qx:derl
citation

D.ai&

30 C.F.R. §

Assessment

Settlement

318273
3182533
3182534
3183388*
3182537

05/05/93
11/04/93
11/04/93
11/04/93
11/08/93

75.202(b)
75.340
75.400
75.503
75.203(e)

$2,300
$ 793
$ 793
$1,019
$ 309

$1,000
$ 309
$ 309
$ 200
$ 309

(Tr . 150-152)

(*The Secretary ag~ees to delete the S&S finding.)

DQCKf;:I liQ. s;i:; 2~-J2Q
Qrsie:t:L
Citation
3182539
3182543
2182545
3182549*
3102551*
2182553*
3182227
3182554
3182555*
3182556

.Qali

. 11/09/93
11/09/93
11/09/93
11/10/93
11/12/93
11/12/93
11/15/93
11/16/93
11/16/93
11/16/93

(Tr. 152-156)

30 C.F.R.§
75.220
75.220
75.400
75.333(b) (3)
75.370(a) (1)
75.1713-7(a) (3)
75.400
75.400
75.400
75.1719-l"(a)

Assessment
$ 288
$ 288
$1,019
$1,019
$ 431
$ 288
$ 309
$ 595
$ 595
$ 288

Settlement
$
$
$
$
$
$
$
$
$
$

288
288
309
250
125
50
100
595
150
288

(The Secretary agrees to delete the S&S finding.)
DOCKET NQ. SE 94-446

Citation/
orae:t: No.
2807227

30 C.F.R. §
02/18/93

Assessment

$

75.220

(Tr. 13-18)

221

300

Settlement

$

200

DOCKET NO. SE 94-453
citation/
Order No.

30 C.F.R. §

2807227

02/18/93

75.220

Assessment

Settlement

$3,500

$

200

(Tr. 13-18)
APPROVAL OF THE SETTLEMENTS
After consideration of the information in support of the
settlements provided on the record by counsels, I find that the
proposals are reasonable and in the public interest. Pursuant to
29 C.F.R. § 2700.31, the settlements are APPROVED .

WITHDRAWAL OF PENALTY PETITIONS
DOCKET NO .

SE 94-454 and DOCKET NO. SE 94-511

Counsel for the Secretary moved to withdraw the Secretary's
petitions for assessment of civil penalty in two of the individua~
civil penalty cases on the grounds that the Secretary could not
establish that the Respondents knowingly violated the standards
alleged {Tr. 12-13). The Commission's rules provide that a party
may withdraw a pleading at any stage of a proceeding with the
approval of the judge (29 C.F.R. § 2700.11). The motion is
GRANTED.
ORDER
In Docket No. SE 94-126-R, Order No. 3197626 is AFFIRMED and
the proceeding is DISMISSED.
In Docket No. SE 94-407, Citation No. 3197627 is AFFIRMED and
Respondent, Jim Walter, is ORDERED to pay a civil penalty of $300
for the violation of section 50.10.

In Docket Nos . SE 94-407, SE 94-306, SE 94-383, SE 94-384,
SE 94-389 and SE 94-390, Respondent, Jim Walter, is ORDERED to pay
civil penalties as agreed to in the settlements. The Secretary is
ORDERED to modify the referenced citations and orders by deleting
the s&s. findings.
In Docket No. SE 94-446, Respondent, earl W. Harless, is
ORDERED to pay a civil penalty of $200 for the violation of
section 75 . 220.
In Docket No . SE 94-453, Respondent, William E. Wilson, is
ORDERED to pay a civil penalty of $200 for the violation of
section 75.220.
2 22

.. ·
.·.',

Payment shall be made to MSHA within 30 days of the date of
this decision, and upon payment, the referenced proceedings are
DISMISSED.
Finally, civil penalty proceedings Docket Nos. SE 94-454 and
SE 94-511 are DISMISSED.

__L)vV, (/ ,(~----

David F. Barbour
Administrative Law Judge

Distribution:
R. Stanley Morrow, Esq., Jim Walter Resources, Inc., P . O. Box 133,
Brookwood, AL 35444 (Certified Mail)

J. Alan Truitt, Esq., Maynard, Cooper & Gale, P.C.,
1901 Sixth Avenue, North, 2400 AmSouth-Harbert Plaza,
Birmingham, AL 35203-2602 (Certified Mail)
William Lawson, Esq., Office of the Solicitor, U.S. Dept. of
Labor, Chambers Building, Suite 150, Highpoint Office Center,
100 Centerview Drive, Birmingham, AL 35216 (Certified Mail)
\mca

223

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

..

FEB 2 4 1995
RANDALL PATSY,

DISCRIMINATION PROCEEDING
Complainant
Docket No. PENN 94-132-D
MSHA Case No. PITT CD 93.-27

v.

BIG "B" MINING COMPANY,
Respondent
DECISION
Appearances:

Daniel Hilliard and Susan Mackalica, West Sunbury,
Pennsylvania, for the Respondent .

Before:

Judge Feldman

The threshold issue in this discrimination proceeding
brought under color of authority of section 105(c) (3) of the
Federal Mine Safety and Health Act of 1977 (the Act) , 30 U. S.C .
§ 815(c) (3), is whether Randall Patsy was a "miner" at the time
of his alleged October 26 , 1992 , discriminatory discharge . It is
undisputed that on the day of h is discharge, Patsy was working at
the Peter Rabbit Campground preparing mobile home sites. Patsy ' s
discrimination complaint was investigated by the Mine Safety and
Health Admi ni stration (MSHA). On December 1, 1993 , MSHA advised
Patsy that it had concluded that a violation of section 105(c) of
the Act had not occurred because Patsy was not " ... a 'miner ' at
t he time of the a lleged discharge and MSHA does not have
jurisdiction over the campground job site . "
This ma t ter was origin al l y s cheduled for hear ing on June 7,
1994, and subsequently rescheduled for September 20, 1994.
However, Patsy ' s complaint was dismissed on May 13 and August 16,
1994, a fter a s e ri e s of statements evidencing tha t he was no
l onger interested in pursuing his discrimination compl aint. For
exampl e , Patsy state d : " .. . there [may be] no sense in pursuing
t h i s any f ar the r (sic) " (Ap ril 7 , 1994 , let ter) ; "I f eel I woul d
b e better of f to purs ue thi s as ·a civil suit locally " (Apri l 18 ,
1994, l e tte r ) ; " I can not (sic) prove I was a miner a t t he time I
was f ired" (Jul y 20, 1994 , l etter) ; and, " I don ' t have a l eg to
stand on " (J uly 25 , 1994, statement to secretary Linda Hudecz) .
224

Each dismissal was vacated by the Commission and remanded
for further consideration after Patsy, contrary to the above
statements, expressed a desire to proceed . See Commission Orders
at 16 FMSHRC 1237 {June 1994) and 16 FMSHRC 1937 {September
1994). Consequently, on November 25, 1994, a Notice of Hearing
Site was sent by certified mail once again scheduling this matter
for hearing on December 13, 1994, in Pittsburgh, Pennsylvania.
On November 25, 1994, contemporaneous with the mailing of
the hearing notice, Raymondria Ballard, my office secretary,
telephoned Patsy at his telephone number of record to advise him
of the time, date and location of the upcoming hearing. On
December 8, 1994, Ms. Ballard left a message on a telephone
answering machine at his telephone number reminding Patsy of t he
hearing. On December 9, 1994, Ms. Ballard again called Patsy's
telephone number and left a message about the hearing with an
unidentified female who stated she did not know where Patsy was.
These messages were attempts to prevent hearing expenditures in
the event Patsy was no longer interested in prosecuting his
complaint.
The hearing convened as scheduled at 9:00 a.m. on
December 13, 1994, in Pittsburgh. Daniel Hilliard and his
daughter, Susan Mackalica, appeared on behalf of the respondent .
Hilliard is the sole proprietor of Hilliard Miriing which owns and
operates -the Big "B" Mining Company . Patsy failed to appear. At
9:20 a.m. I left a message on Patsy ' s answering machine
requesting that he immediately call my office to explain his
absence at the hearing. Patsy failed to respond. The trial
record was opened at 10:25 a.m . , at which time Hilliard and
Mackalica testified.
Hilliard testified that he operates several business
ventures associated with acti vi tie·s involving the ownership and
management of rental properties, road construction, sewer plant
construction and mining. Hilliard stated that Patsy was a
general handyman at Hilliard ' s rental properties. Patsy also
operated small construction equipment and the fuel truck which
serviced the equipment at Big "B" Mining's Isacco mine site as
well as the equipment at several of Hilliard ' s other non-mining
construction sites.
H~lliard testified that on the morning of Patsy ' s discharge
on Monday, October 26, 1992, Patsy reported for work at the Peter
Rabbit Campground . The Peter Rabbit Campground is a subsidiary
company owned by Hilliard Mining. The campground property was
being converted . int o a mobile home park. Patsy was operating a
small dozer for the purpose of clearing brush and t r ees and

225

leveling site locations in preparation for the installation of
water, sewer and electric lines. The dozer broke down and was
taken out of service . Patsy was discharged on the afternoon of
October 26, 1992, after he refused to tow a low- boy trailer with
a replacement dozer from Hilliard ' s equipment shop located at
551 Mahood Road in Butler, Pennsylvania to the campground, a
distance of approximately four miles. Patsy refused to tow the
low-boy because its state inspection had expired. Consistent
with Hilliard ' s testimony, Patsy has stated, " I was eating lunch
at a mobile home park when I was fired. " (Undated letter filed
October 19, 1994).
Hi l liard testified that the campground is approximately
eight miles from the Isacco mine site . The equipment shop is a
fenced area with a 3,000 square foot building with tin siding, a
flat roof and a cement floor. The equipment shop is used to
store mining and excavating equipment for Hilliard's business
activities. It is located equidistant between the carr:tpground and
the mine site and is not on mine property.
The hearing concluded at 11:45 a.m. At approximately
3:00 p.m. that afternoon, Patsy telephoned my office and spoke to
Raymondria Ballard. Patsy stated that he had just received my
recorded message about his failure to attend the hearing. He
stated that he was out of town, that he never received the
" certified mail" hearing notice, and, that he had just returned
from California. When reminded that he had been advised of the
hearing date and location by Ms . Ballard on November 25 , 1994,
Patsy did not respond. Although Patsy claims he did not receive
the certified hearing notice, 1 the hearing notice has not been
returned by the post office as unclaimed. 2 Therefore, I find the
certified mailing of the hearing notice, the November 25, 1994,
telephone conversation with Patsy, and the two subsequent

1

This is not the first time that Patsy has alleged improper
service in this proceeding .
In a letter dated May 16, 1994,
Patsy stated that he was not served with the respondent ' s answer
to the February 24, 1994 , Prehearing Order. However, the record
reflects the respondent ' s response was sent to Patsy by certified
mail (No. P 240 182 672) and returned to the r espondent as
unclaimed.
2

The return receipt card was not returned. The Brady,
Pennsylvania Post Office has been unable to trace th i s mailing.
Brady, Pennsylvania Postmaster Tony Ruiz has advised me that,
unfortunately, certified mailings are occasiona.1ly --J.t:li vered to
the addressee without removing the return receipt post card.

messages left at Patsy ' s telephone number of record conveying the
information in the hearing notice, as adequate notice of the
hearing date and location.
In an unsolicited letter dated January 30, 1995, following
Patsy's December 13 conversation with Ms. Ballard, Patsy stated:
We were out of town for two weeks prior to December
13th . The only notice we received were messages on our
answering machine. We returned the afternoon of
Dec. 13th, to find out there was hearing (sic)
scheduled that morning.
(Emphasis added).
On February 7, 1994, Patsy was ordered t o show cause why his
complaint should not b e dismissed as a resul t of his fa i lure t o
appear at the hearing. Patsy was ordered to specifically admi t
or deny that he had received the messages concerning the hearing
date and location provided by Ms. Ballard on November 25,
December 8 and December 9, 1994. In addition, Patsy was ordered
to provide evidence demonstrating the dates and location of his
reported out of town trip such as airline, hotel or credit card
receipts.
The February 7 Order also noted that the testimony of
Hilliard, who is not an attorney, was construed as a request for
summary decision. Consequently, Patsy was also ordered to show
cause, by filing an opposition, why summary decision for lack of
jurisdiction should not be granted in favor of the respondent.
Patsy r esponded to the Order to Show Cause on February 10,
1995. Patsy stated he was out of town from November 20 through
December 13, 19.94. With respect to travel receipts, Patsy stated
he traveled in a recreational vehicle and that he did not use
motels, airlines or credit cards. Patsy did not identify where
he purportedly traveled. Thus, Patsy provided no objective
probative evidence of his trip.
Notwithstanding Patsy ' s inability to provide doctimentation
of his trip, it is noteworthy that Patsy has been unable to
remember the trip ' s duration. In a letter dated January 10 ,
1995, Patsy stated he was out of town for eight days. In a
letter dated January 30 , 1995, Patsy stated he was out of town
for two weeks . Finally, in his response to the Order to Show
Cause dated February 10, 1995, Patsy stated he was out of town
f or 23 .d ays (November 20 through December 13, 1994 . )
In addition , Patsy has failed to furnish t he r equisite
documentation to support his denial of t he November 25, 1994,
227

telephone conversation with Ms . Ballard and his denial of timely
knowledge of the subsequent hearing messages of December 8 and
December 9, 1994 . Accordingly, Patsy has failed ·to demonstrate
just cause for his failure to attend the hearing. Patsy's lack
of credibility with regard to his alleged trip and his on again
off again interest in his discrimination complaint evidences a
contempt for this hearing process. Consequently, Patsy is in
default and his complaint shall be dismissed with prejudice .
Alternatively, Patsy's February 10, 1995, response to the
Order to Show Cause failed to demonstrate why summary decision
should not be granted for the respondent . Commission Rule 67(b),
29 C. F.R. § 2700.67(b), provides that sununary decision shall be
granted if (1) there is no genuine issue as to any material fact
and (2) the respondent is entitled to sununary decision as a
matter of law .
Whether the low-boy trailer was located at the shop as the
respondent claims, or, at the mine site as Patsy alleges, is not
dispositive or otherwise material. For it is undisputed that
Patsy was requested to tow the low-boy trailer in furtherance of
his job duties at the mobile home site. Thus, the alleged
location of the low- boy on mine property was incidental to its
non-mining use and does not provide an adequate nexus to afford
Patsy 105(c) statutory protection as a miner. 3 Rather, the only
material and dispositive issue of fact as it relates to the
jurisdictional question in this case, i.e . , that Patsy was not
working in a mine at the time of his alleged discriminatory
discharge, is not in dispute. In this regard, in correspondence
dated July 20, 1994, Patsy stated:
can not (sic) prove I was a miner at the time I was
fired. I was employed by a mine operator , though I was
working at a mobile home park he was developing .
(Emphasis added) .
I

Section 3(g) of the Mine Act defines a miner as "any
individual working in a coal or other mine (emphasis added)."
30 U.S . C. § 802(g). In analyzing this definition of "miner" the
court has stated "the [mine] statute looks to whether one works
in a mine, not whether one is an employee or nonemployee or
whether one is involved in extraction or nonextraction
activities . National Industrial Sand Ass'n v. Marshall, 601 F .
2d 689, 704 (3rd Cir. 1979). Similarly, the Commission has
concluded that an individual's status as a "miner" under the Act
at a given point in time is determined by whether the individual
3

See f .n. 4, infra . .

228

..
=-:.

works in a mine and not by whether one is employed by a mine
operator. Cyprus Empire Corporation, 15 FMSHRC 10, 14 (January
1993) . Simply put , a mobile home park is not a "coal or other
mine" under section 3(h) (1) of the Act, 30 C.F.R. § 802(h} (1) • 4
Likewise, an individual working at a mobile home park is not a
section 3(g) "miner . " Accordingly, the respondent is entitled to
- summary decision in this proceeding as a matter of law.
ORDER

The complainant has failed to show cause why his complaint
should not be dismissed as a result of his failure to appear at
the December 13, 1994, hearing. Accordingly, Randall Patsy's
discrimina t ion complaint against the Big "B" Mining .Company
IS DISMISSED with prejudice .
Alternatively, there are no outstanding material issues of
fact that warrant denial of summary decision in favor of the
respondent on the jurisdictional question. Accordingly, summary
decision IS GRANTED for the respondent and the discrimination
complaint filed by Randall Patsy against the Big "B" Mining
Company IS DJ.SMISSED with prejudice for lack of jurisdiction
under the Mine Act. Nothing herein shall be construed as a
finding on the merits of Patsy's complaint or whether his
complaint was timely filed.

~~---- ..

~v
· Administrative
Jerold Feldman
Law Judge

'

•section 3(h) (1) of the Act defines , in p~rtinent part,
"coal or other mine" as" . .. an area of land from which minerals
are e x tracted [including equipment] .. . used in, or to be used in,
... the work of extracting such minerals . . .. "

229

Distribu t i on :
Mr. Randall Patsy, R.D. #1, Box 290 , E. Brady, PA 16028
{Certified and Regular Mail)
Mr . Daniel Hilliard, Ms. Susan Mackalica, Big "B" Mining Company,
R.D. 1, West Sunbury, PA 16061 (Certified and Regular Mail)
/rb

.....

...

230

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

FEB 2 7 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No . WEVA 94-19
A.C. No. 46-01452-03957
Arkwright No. 1

v.

CONSOLIDATION COAL COMPANY,
Respondent
DECISION

Appearances:

Robert Wilson, Esq. , Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the
Petitioner;
Elizabeth S. Chamberlin, Esq., Consol Inc.,
Pittsburgh, Pennsylvania, for the Respondent.

Before:

Judge Fauver

This is an action for civil penalties for three alleged
violations of safety standards, under § 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq .
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative,
and reliable evidence establishes the following Findings of Fact
and further findings in the Discussion below:
FINDINGS OF FACT
Order No. 3118662

1. Inspector Richard McDorman issued§ 104(d) (2) Order
No. 3118662 on April 7 , 1993, charging a violation of 30 C.F.R.
§ 75.340(a).
The inspector found that water pump No. 68 was in a
crosscut in an intake escapeway on the 2 South section and was
not in a noncombustible enclosure or equipped with a fire
suppression system, and the air ventilating the water pump was
231

not coursed into the return air entry but was used to ventilate
the working section.
2 . The pump was placed there to pump water out of an
abandoned section of the mine aqjacent to the 2 South section.
The pump was 14 to 16 inches high, 18 to 20 inches wide, and
6 feet long. It weighed 300 to 350 pounds. The pump was
energized and ready to be operated. It was located about 20
crosscuts from the working face and 1800 feet from the loading
point. It was not moved as the working sect i on advanced or
retreated.
Ord er No. 3 1 18671

3. Inspector McDorman issued§ 104(d} (2) Order No. 3118671
on April 21, 1993, charging a violation of 30 C.F.R. § 75 . 400.
4. Accumulations of fine coal, coal dust and float dust were
found on and around the 3 Right section belt line pony drive . A
pony drive is an auxiliary drive that helps to drive a long belt
line. As the conveyor belt comes to the pony drive, it dumps the
coal onto a lower part of the belt, wraps around the pony drive,
and comes back out where the coal is dumped back onto the upper
belt. The belt goes to the mouth of the section where it dumps
onto a main belt and then returns to the working section .

5. A scraper on the pony drive was installed to prevent
coal from spilling off the belt. However, there was substantial
spil l age. The inspector found accumulations from 1/4 to 2 inches
deep. They were packed under the belt, which was rubbing against
the accumulations . He found other accumulations where coal had
fallen off a pan under the belt. These accumulations were 6 to
12 inches deep. Other accumulations were near the end of the
pan, measuring 8 inches deep.
6. To abate the cited condition, seven or eight men worked

about two hours to remove the combustible accumulations from the
area. About three tons of combustible materials were .cleaned up
to abate the condition.
Order No . . 3122509
7 . Section 104(d) (2} Order No . 3122509 was issued by
Inspector ·Jerry Vance on April 20, 1993, for a violation of
30 C.F.R. § 75.370(a} (1).

8. Inspector Vance wa~ travel i ng outby in the ta i l gate entry
on the 3 Right longwal l section, moving toward the mouth of the

232

.....·

.:..:

section, when he observed that the operator had erected a
stopping across the tailgate entry. When he went through the
door in the stopping, he took a smoke tube reading and found
there was no air movement. His methane detector sounded an alarm
and showed over one percent methane. There was no air movement
for about 600 feet in this entry.
DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS
Order No. 3118662

This order was issued because a pump in an intake escapewa y
was not enc losed in a noncombustible enclosure and the air
ventilating the pump was not coursed into a return entry. The
inspector cited a v i olation of 30 C.F.R. § 75.340(a), which
provides:
Underground transforme r stations, battery charging
stations, substations, rectifiers, and water pumps
shall be located in noncombustible structures or areas
equipped with a fire suppression system meeting the
requirements of § 75.1107-3 through§ 75.1107-16. This
equipment also shall be ---(1) ventilated by intake air that is coursed into a
return air course or to the surface and that is not
used to ventilate working places ***.
Section 75.340(a) is a part of new ventilation regulations
that took effect in November 1992. Its predecessor, § 75.1105,
required that certain electrical equipment, including "permanent
pumps," be housed in fireproof structures or areas, and that air
ventilating them be coursed into the return air entry. The new
regulations delete the reference to "permanent" pumps and apply
to all pumps unless they come under an exemption in§ 75.34 0 (b).
§

Respondent contends that its pump was exempt from
75.340(a) under either§ 75.340(b) (4) or (6), which provide:
This section does not apply to *** (4) pumps located on
or near the section anQ that are moved as the working
section advances or retreats; *** [or) (6) small
portable pumps.

The preamble to§ 75.340(b) states that "[s]mall portable pumps
are easily relocated without the aid of mechanized equipment;
capable of being moved frequently; and installed in such a manner
to facilitate such movement."

233

... :·

I find that the pump, which weighed 300 to 350 pounds, was
not a "small portable pump" within the meaning of§ 75.340(b) (6).
I also find that the pump was not "moved as the working
section advances or retreats " within the meaning of
§ 7 5. 340 (b) ( 6) •
The term "working section" is defined as "All
areas of the coal mine from the loading point of the section to
and including the working faces." 30 C.F.R. § 75.2 . The pump
was about 1800 feet outby the loading point and did not advance
with the working section.

§

The pump was nonexempt and therefore in violation of
75.340(a).

The inspector found that the pump was in good condition at
the time the order was issued and was not likely to catch on
fire . For those reasons, he cited the violation as not
" significant and substantial" within the meaning of§ 104(d) of
the Act. However, this was still a serious violation. In the
event of a fire reaching the pump ' s fuel tank , the resulting
smoke would have contaminated the intake entry and escapeway with
a reasonable likelihood of serious injuries.
The inspector found that the violation was due to high
negligence and therefore was an "unwarrantable" violation within
the meaning of§ 104(d) of the Act . The Commission has defined
an unwarrantable violation as one due to "aggravated conduct,
constituting more than ordinary negligence" (Emery Mining Corp.,
9 FMSHRC 1997 (1987)) .
Respondent contends that the violation was not unwarrantable
because Respondent held a good faith belief that the pump was in
compliance with the regulations. To be a mitigating factor, the
operator's belief must be reasonable . Wyoming Fuel, 16 FMSHRC
1618, 1628 (1994). I do not find that the exemptions claimed by
Respondent were reasonable grounds for assuming, without first
inquiring into MSHA's enforcement position, that the pump
qualified for an exemption . The pump was too heavy to ·lift to be
considered a "small portable pump," and since it was not moved as
the working section advanced or retreated, it could not
reasonably be considered exempt under§ 75.340(b) (6) .
Moreover, the operator's claims of exemption under
75.340(b) (4) and (6) appear to be after- the- fact litigation
positions, not the actual reason for the operator ' s contention
that the pump was not covered by§ 75 . 340{a) . The a ctual reason
appears to be the contention that the pump was not a "permanent "
pump within the meaning of the old regulation . Thus ,
Respondent ' s safety compliance representative , Micha el Jackson,
§

234

··.".

testified that at the time of the order he believed the pump "met
the criterion of law of . . . not being a permanent pump."
·Tr. 84. This .indicates that Respondent did not keep up with the
change in the law.
Respondent is responsible for knowing the change in the
safety standard after its publication in the Federal Register·,
which occurred about five months before the violation. The
importance of safety standards places a high duty on an operator
to keep abreast of the law and to be sure that it complies with
all changes in safety standards that are duly published.
"Ignorance of the law" does not lower the operator's negligence
from high to ordinary in this case. The evidence sustains the
inspector's allegation of an "unwarrantable" violation.
Order No. 3118671

This order was issued for a violation of 30 C.F.R. § 75.400.
Respondent concedes that this was a "significant and substantial"
violation, but challenges the inspector's findings of high
negligence and an unwarrantable violation.
Section 75.400 provides that "Coal dust, including float
coal dust deposited on rock-dusted surfaces, loose coal, and
other combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings, or on electric
equipment therein." Order No. 3118671 was issued because fine
coal, coal dust and float dust had been allowed to accumulate on
and around the 3 Right section belt line pony drive. A pony
drive is an auxiliary drive that helps to drive a long belt lihe.
As the belt comes to the pony drive, it dumps the coal onto a
lower part of the belt, wraps around the drive, and comes back
out where the coal is dumped back onto the upper belt. The belt
goes to the mouth of the section where it dumps onto a main belt.
A scraper was installed on the pony drive to scrape coal off
the bottom belt. However, there was substantial spillage. Some
of the accumulations measured 1/4 to 2 inches deep. The
accumulations were packed between the pan and the belt and the
belt was rubbing against the accumulations. Other accumulations
were on the mine floor, where combustible material had fallen off
the pan. Th~ accumulations under ' the pan were 6 to 12 inches
deep. Other accumulations were found near the end of the pan,
measuring 8 inches deep.
To abate the violation, it took seven or eight men up to two
hours to remove the combustible accumulations from the area.
Inspector McDorman testified that he and the company

235

representative, Clifford Cutlib , agreed that about three tons of
coal were cleaned up to abate the violation . This figure is
reflected in Inspector McDorman ' s notes. Company witnesses
disputed this figure. However, in addition to Inspector
McDorman's notes, it is reflected in the order itself, and Mr .
Cutlib said nothing about that to Inspector McDorman when the
order was issued. On balance, I credit the Inspector ' s testimony
and his notes as the locations and quantities of the
accumulations.
After some abateraent efforts were made, the mine
superintendent asked the inspector to terminate the order. The
i nspec tor refused to termi nate the order until all the
accumu lations ha d been removed. The mine superintendent stated
that the order had shut down a million dollar piece of equipment
which the company needed to get running. This is consistent with
the inspec tor's opinion that the compan y practice was to clean up
accumulations only partially, just so that the belt would not rub
against combusti ble accumulations .
The company's preshift and onshift reports for March 21 to
April 21, 1993, show 43 reports of coal spillage at the location
where Order No . 3118671 was issued. Also, the mine history shows
seven citations for violative accumulations along belt lines from
April 1992 through April 1993. Two of those citations were
issued for accumulations at the pony drive on the 2 Right
section.
Section 75.400 is "directed at preventing accumulations in
the first instance, not at cleaning up the materials within a
reasonable period of time after they have accumulated" (Old Ben
Coal Company, 1 FMSHRC 1954 (1979)}. The primary Congressional
intent in passing the Mine Act was to prevent mine explosions and
fires and § 75.400 is central to that purpose. Black Diamond
Coal Company, 7 FMSHRC 1117 (1985).
The inspector ' s findings of high negligence and an
unwarrantable violation are amply supported by the evidence.
Respondent knew that it had major spillage problems but did not
correct them. The preshift and onshift reports showed repeated
entries of spillage at the cited .location . Also, Respondent had
a number of prior citations for violative accumulations ,
including two at the cited pony drive. Despite this notice that
there was a persistent problem of combustible accumulations,
Respondent did not assign anyone to this area to prevent
violative accumulations. The operator's primary concern appears
to have been production rather than preventing combu stible
accumulations. The evidence shows aggravated conduct beyond
ordinary negligence.
236

Order No. 3122509
This order was issued for a violation of 30 C.F.R.
§ 75.370(a) (1), which requires the operator to develop and comply
with a ventilation plan approved by the Secretary. Once the
operator's ventilation plan is approved, its provisions and
revisions are enforceable as mandatory standards. See, UMWA v.
Dole, 870 F.2d 662, 671 (D.C. Cir. 1989); and Jim Walter
Resources, 9 FMSHRC 903, 907 (1987} .
Respondent's ventilation plan provides that the "mine is
constantly patrolled by fire bosses to insure that no dead areas
or areas of no air movement occur." Exhibit G-16, p.2. Order
No. 3122509 was issued because there was no air movement for
about 600 feet in the tailgate entry of a longwall section.
Inspector Vance was traveling the tailgate entry on the 3
Right longwall section from the face toward the mouth of the
section when he encountered the violation. He was traveling with
a company representative, Bobby Gross, and a miner's
representative, Alex Petrosky. The operator had erected a
stopping across the tailgate entry. Outby that point, there was
no air movement for about 600 feet. When the inspector went
through the door in the stopping, he took a smoke tube reading .
There was no air movement. His methane alarm went off,
indicating over one percent methane. He took smoke tube readings
at various locations in the entry. All readings showed no air
movement.
The dead air space was caused by the stopping across the
tailgate entry. With the stopping there, the air in the tailgate
entry had nowhere to go.
Respondent contends that the dead air space was caused by
"certain changes ·that occur in mine conditions and that they
occurred between the time of the last examination and the time
that the Inspector wrote the Order." Tr. 234. However, there is
no evidence of any specific changes that would have accounted for
the dead air after the stopping had been erected. The reliable
evidence indicates that the dead air space was caused by the
stopping across the tailgate entry, which had been erected about
four weeks before the order was issued.
Since this entry is required to be walked by a f ireboss
weekly, this condition should have been detected and corrected by
the operator prior to Inspector Vance's inspection. Also, when
the stopping was installed, the operator should have made sure
that there was posit~ve air movement in the entry. It was
237

obvious to Inspector Vance when he reviewed the mine map that the
stopping presented a problem. It ·should have been just as
obvious to the operator.
Finally, the violation was the direct result of actions
taken by management. The stopping across the tailgate entry was
installed at the direction of management, which has a duty to
evaluate the consequences of its actions. The company's failure
to prevent, detect, and correct the violation of its ventilation
plan constitutes more than ordinary. negligence. I find that the
evidence supports the inspector's findings of high negligence and
an unwarrantable violation .
Although the violation was not designated "significant and
substantial," it was a serious violation. As a direct result of
the violation, there was a build up of more than one percent
methane in the tailgate entry.
Civil Penalties

Section llO~i) of the Act provides six criteria for
assessing civil penalties:
The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil
monetary penalties, the Commission shall consider the
operator's history of previous violations, the
appropriateness of such penalty to the size of the
business of the operator charged, whether the operator
was negligent, the effect on the operator's ability to
c.o ntinu·e in business, the gravity of the violation, and
the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after
notification of a violation . In proposing civil
penalties under this Act, the Secretary may rely upon a
summary review of the information available to him and
shall not be required to make findings of fact
concerning the above factors.
Respondent is a large operator . After notification of the
violations involved, Respondent made a good faith effort to
achieve rapid compliance. The t 'a ctors of gravity and negligence
have been discussed as to eacp violation.
Considering all of the criteria in§ 110(i), I find that the
following civil penalties are appropriate:

238

·.·:

Order

Civ il Penalty

No. 3118662

$ 2, 4 00

No. 3122509

$ 2,400

No. 3118671

$ 4,800
$ 9,600

CONCLUSIONS OF LAW
1. The judge had jurisdiction.
2 . Respondent violated the safety standards as alleged in
Orders Nos. 3118662 , 3122509 and 3118671.
ORDER

WHEREFORE IT IS ORDERED that:
1. Order Nos . 3118662, 3122509 and 3118671 are AFFIRMED .
2. Respondent shall pay civil penalties of $9,600 within
30 days of this Decision.

/Jj / / _ ' :)_~l/l/t._
~ la~ver
Administrative Law Judge
Distribution:
Roberts. Wilson, Esq., Office of the Solicitor, U.S. Department
of Labor , 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Elizabeth s . Chamberlin, Esq. , Consol Inc., Consol Plaza ,
1 800 Washington Road, Pittsburgh, PA 15241 - 1421 (Certified Mail)

/lt

239

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

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

.

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-1206

. A.C . No. 15-16910-03533 M
Mine:

EARL CAUDILL,

Polly #3
Perry County, KY

Respondent
DECISION APPROVING SETJ.'I,EMBNT

Appearances:

Before:

Thomas A. Grooms, Esq., Office of the Solicitor ,
U. S . Department of Labor, Nashville, Tennessee,
for the Secretary of Labor;
Appearance waived by Earl Caudill~

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 hearing on
January 24, 1995, Petitioner filed a motion to approve a
settlement agreement and to dismiss the case. Respondent has
agreed to pay the proposed penalty of $1,250 in full. I have
considered the representations and documentation submitted
in this case, and I conclude that the proffered settlement
is acceptable under the criteria set forth in Section 110(i)
of the Act.
WHEREFORE, the motion for approval of settlement ·
and it is ORDERED that Respondent pay a penalty of $1,2
30 days of this order.

240

Distribution:
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Blvd., Arlington, VA 22203
Thomas A. Grooms, Esq . , Office of the Solicitor, U.S. Dept . of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862
Susan E. Foster, Esq . , Office of the Solicitor, U.S. Dept. of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862
Marcus P . McGraw, Esq., Bryan R. Reynolds, Esq .• , Greenebaum,
Doll & McDonald, 1400 Vine Center Tower, Lexington, KY 40507
Mr. Leslie Sturgill, President, Switch Energy Corp., Rt.1, Box
185, Pound, VA 24279

I

/jf

241

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

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-408
A. C. No. 15-07201-03631

v.
C-2 Mine
HARLAN CUMBERLAND COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Maurer

This case is before me upon a petition for assessment of
civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). The parties have filed a joint
motion to approve a settlement agreement and to dismiss the case.
A reduction in penalty from $534 to $426 is proposed . The
citations, initial assessments, and the proposed settlement
amounts are as follows:
INITIAL
ASSESSMENT

PROPOSED
SETTLEMENT

4040311
4040312

$

$

213
2.ll

TOTAL

$

$

426

CITATION NO,

267

2..6.1.
534

I have considered the representations and documentation submitted
in this case, and I conclude that the proffered settlement is
appropriate under the criteria set forth in section llO(i) of the
Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and i t is ORDERED that respondent pay a penalty of $426 within
30 days of this order.

242

Distribution:
MaryBeth Bernui, Esq., Office of the Solicitor, u. s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215

H. Kent Hendrickson, Esq., Rice & Hendrickson, P.
Harlan, KY 40831
dcp

243

o. Box 980,

ADMINISTRATIVE LAW JUDGE ORDERS

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

February 7, 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

JERICOL MINING INCORPORATED,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-957
A. C. No. 15-07986-03665

.

Darby Mine

DECISION DISAPPROVING SETTLEMENT

ORPER TO SUBMIT INFORMATION
Before:

Judge Merlin

This case is before me upon a petition for assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977. The parties have filed a joint motion to
approve settlements for the two violations in this case. A
reduction in the penalties from $5,700 to $2,298 is proposed.
Citation No. 4249131 was issued as a 104(d) (1) citation . for
a violation of 30 C.F.R. § 75.342(a) (4) because the methane
monitor on a continuous mining machine was not maintained. The
methane monitor would not deenergize the control circuit on the
continuous miner because the monitor module was disconnected from
the control circuit. The continuous miner had been operating for
four hours. The inspector had also detected methane at seals
deeper in the mine from where the miner was cutting coal.
According to the joint motion filed by the parties, the operator's witnesses would challenge the inspector's assessment of the
presence of methane. The operator would present testimony that a
repairman was working on the monitor at the time the citation was
issued and that parts for the repair were delivered while the
inspector was on the section. In addition, the foreman was
taking regular methane readings with a hand-held methane detector
during the time the monitor was being repaired. Based on the
operator's representations, the parties agree to reduce the
penalty from $4,200 to $1,298 but the citation would remain as
written.
Order No. 4249190 was issued as a 104(d) (2) order for a
violation of 30 C.F.R. § 75.202(a) because there were loose ribs
along the haulage roadway. According to the parties, the operator would present evidence that the ribs were more stable
because they could not be pulled down single-handedly but required the use of a four foot bar used to pry down slate. Based
on the operator's representations, the parties agree to reduce
the penalty from $1,500 to $1,000 but the citation would remain
as written.
244

The motion as presented cannot be approved . The parties are
reminded that the Commission and its judges bear ' a heavy responsibility in settlement cases pursuant to section llO(k) of the
Act. 30 u.s.c. § 820(k); ~' s. Rep. No. 95-181, 95th Cong.,
1st Sess. 44-45, reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at
632-633 (1978). It is the judge's responsibility to determine
the appropriate amount of penalty, in accordance with the six
criteria set forth in section llO(i) of the Act. 30 U.s.c.
§ 820(i);
Sellersburg Stone Company v. · Federal Mine Safety
and Health Review Commission, 736 F.2d 1147 (7th Cir. 1984).
A proposed reduction must be based upon consideration of
these criteria.
The parties in the instant motion have merely stated their
positions with respect to the violations. The motion sets forth
unresolved conflicts between the parties on the evidence. Under
the provisions of the Act, as set forth above, I cannot approve a
settlement based upon the representation of such conflicts. I
may only approve ·a settlement justifiable under the six criteria
of section llO(i), supra. Accordingly, the parties must explain
why the proposed penalties should be reduced in light of the six
criteria. For instance, if the facts indicate a lesser degree of
gravity or negligence than first thought, the parties, and most
especially, the Solicitor must say so. This is especially true
where as here the penalty reductions are large but the special
findings remain unchanged.
In light of the foregoing, it is ORDERED that the motion for
approval of settlement be DENIED.
It is further ORDERED that within 30 days of the date of
this order the parties submit appropriate information to support
their motion for settlement. Otherwise, this case will be set
for further proceedings.

_:--=_~\~
Paul Merlin
Chief Administrative
Distribution: (Certified Mail)
Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215
Mr. Jim Baker, General Superintendent, Jericol Mining Inc.,
General Delivery, Holmes Mill, KY 40843

245

Douglas White, Esq., Counsel, Trial Litigation, Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
/gl

•u.s. COVEIUIM?Nt PRlNtlNG OFFICE:

2 46

1995-387 - 720/33377