MAY 1996

COMMISSION DECISIONS AND ORDERS
05-03-96
05-03-96
05-22-96
05-23-96
05-28-96

Broken Hill Mining Company, Inc.
Faith Coal Company
Peabody Coal Company
Lion Mining Company
General Chemical Corporation

KENT 94-972
SE 91-97
KENT 91-179-R
PENN 94-71-R
WEST 95-95-M

Pg.
Pg.
Pg.
Pg.
Pg.

679
683
686
695
704

WEST 94-452
WEST 94-560-M
WEST 94-699-M
WEST 95-193
PENN 95-75
WEST 95-27-D
KENT 94-1.1.91.-D
WEST 95-220-M
LAKE 96-17
WEST 95-188-M
CENT 95-203-M
KENT 93-318-R
WEST 95-228-DM
WEST 95-201-M

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

709
712
714
716
718
732
744
756
762
769

PENN 95-1-D
SE
95-339
YORK 95-1.15-M
WEST 93-62-M

Pg.
Pg.
Pg.
Pg.

802
804
821
824

ADMINISTRATIVE LAW JUPGE DECISIQNS
05-02-96
05-02-96
05-02-96
05-02-96
05-07-96
05-07-96
05-1.0-96
05-10-96
05-1.3-96
05-13-96
05-15-96
05-15-96
05~15-96

05-20-96
05-21-96
05-22-96
05-24-96
05-28-96

C.W. Mining Company
FMC Wyoming Corporation
FMC Wyoming Corporation
C.W. Mining Company
Cyprus Cumberland Resources
Ross Stewart v. Twentymile Coal Co.
Major Tony Thompson v. Aero Energy, Inc.
A.M. Welles, Inc.
Amax Coal Company (orig. & amended)
FMC Wyoming Corporation
Beck Materials Company
Peabody Coal Company
Lance A. Paul v. Newmont Gold Co.
Aggregate Products Inc.
Sec.Labor on behalf of William
Kaczmarczyk v. Reading Anthracite
Jim Walter Resources, Inc.
Lehigh Portland Cement Company
Contractors Sand & Gravel Supply

772

784
792
794

ADMINISTRATIVE LAW JUPGE ORDERS
05-15-96
05-24-96
05-31-96

LAKE

Coal Miners Incorporated
S.M. Lorusso & Sons, Inc.
Newmont Gold Company

96-,~9

YORK 95-74-M
WEST 95-434-M

i

Pg. 827
Pg. 829
Pg . 832

MAY

1 99 6

Review was granted in the following case during the month of May;

Secretary of Labor, MSHA v. DCL Construction Inc., Docket No. WEST 95-189-M.
(Chief Judge Merlin, unpublished Default decision issued August 3, 1995).

Review was · d.enied in the following cases during the month of May;

Secretary of Labor, MSHA v. James Yancik, Neal Merrifield & Freeman United
Mining Co., Docket Nos. LAKE 95-262, etc.
(Judge Fauver, March 29, 1996).
Secretary of Labor, MSHA v . Doss Fork Coal Company, Docket No. WEVA 93-129.
(Judge Melick, April 5, 1996).
Secretary of Labor, MSHA v. Wallace Brothers, Inc., Docket No. WEST 94-710-M.
(Judge Amchan, April 12, 1996}.

ii

COMMISSION DECISIONS AND ORDERS

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

May 3 , 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 94-972

V.

BROKEN HILL fytINING COMPANY, INC.

BEFORE: Jord.an, Chairman; Holen, Marks and Riley, 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. (1994) ("Mine Act'} On October 11, 1995, the Commission
granted the petition for discretionary review filed by Broken Hill Mining Company, Inc.
("Broken Hill"). Pursuant to Commission Procedural Rule 75, 29 C.F.R. § 2700.75 (1995), 1
Broken Hill's opening brief was due to be filed by November 13, 1995. Broken Hill has not
filed its brief and has proffered no reason for its failure to do so.

1

Rule 75 provides, in part:
(a) Time to file. (1) Opening and response briefs.
Within 30 days after the Commission grants a petition for
discretionary review, the petitioner shall file his opening brief. If
the petitioner desires, he may notify the Commission and all
other parties within the 30-day period that his petition and any
supporting memorandum are to constitute his brief. . . .

679

On January 26, 1996, the Secretary of Labor filed a Motion to Dismiss for Want of
Prosecution pursuant to Commission Procedural Rule 75(e), 29 C.F.R. § 2700.75(e).2 The
Secretary states that Broken Hill failed to file its opening brief or designate its petition as such.
Mot. at 1. The Secretary notes that he has not been able to reach Broken Hill by telephone or
facsimile. Id. at 2 & n.2. He asserts that no injustice would result from the dismissal of Broken
Hill's petition. Id. at 2. The Secretary requests that the petition be dismissed with prejudice. Id.
at 3.. Broken Hill has not filed an opposition to·the motion.
On March 14, 1996, the Commission issued an order directing Broken Hill to show cause
within 14 days why its appeal should not be dismissed. The file contains the return receipt
showing that Broken Hill received the show cause order on March 22, 1996. Broken Hill has not
responded to the show cause order. The Commission may vacate its direction for review if a
petitioner fails to file an opening brief in accordance with Rule 75. See 29 C.F.R. § 2700.75(e).

2

Rule 75(e) provides:

Consequences ofpetitioner's failure to file brief. If a
petitioner fails to timely file a brief or to designate the petition as

his brief, the direction for review may be vacated.

680

In light of the foregoing considerations, we grant the Secretary's motion. Accordingly,
the direction for review is vacated and this proceeding is dismissed.

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

c.2.:-

681

Distribution:
Hobart W. Anderson, President
Broken Hill Mining Company, Inc.
P.O. Box 356
Sidney, KY 41564
(Certified Mail)
Cheryl C. Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
(Certified Mail)
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

682

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

May 3, 1996

SECRETARY OF LABO~
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos. SE 91-97, etc.

FAITH COAL CO.

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

ORDER
BY THE COMMISSION:
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On August 28, 1995, the Commission
granted the cross-petitions for discretionary review filed by Faith Coal Company ("Faith") and
the Secretary of Labor. Pursuant to Commission Procedural Rule 75, 29 C.F.R. § 2700.75
(1995), 1 Faith's opening brief was due to be filed by September 27. 1995. Faith, however, failed
to file its brief.

1

Rule 75 provides, in part:
(a) Time to file. (1) Opening and response briefs.
Within 30 days after the Commission grants a petition for
discretionary review. the petitioner shall file his opening brief. If
the petitioner desires, he may notify the Commission and all
other parties within the 30-day period that his petition and any
supporting memorandum are to constitute his brief. . . .

683

On January 26, 1996, the Secretary filed a Motion to Dismiss for Want of Prosecution
pursuant to Commission Procedural Rule 75(e), 29 C.F.R. § 2700.75(e). 2 The Secretary states
that Faith failed to file its opening brief or designate its petition as such. Mot. at 1. The
Secretary notes that he has not been able to reach Faith by telephone, facsimile, or mail. Id at 2
& n.2. He asserts that no injustice would result from the dismissal of Faith's petition. Id at 2-3.
The Secretary requests that the petition be dismissed with prejudice. Id at 3. Faith has not filed
an opposition to the motion.
On March 14, 1996, the Commission issued an order directing Faith to show cause
within 14 days why its appeal should not be dismissed. The file contains the return receipt
showing that Faith received the show cause order on April 1, 1996, 18 days after its issuance.
On April 8, 1996, Faith filed a response to the show cause order stating that, as a prose
operator, it was unaware that a written statement was required to designate the petition as its
brief. Faith requests that the Commission accept its late correspondence as its motion to
designate the petition as such. Faith also states that it opposes the Secretary's motion to dismiss
because it "should not be penalized nor denied the privilege of due process of appeal because of
financial poverty and lack of knowledge" of the Commission's rules. The Secretary has not filed
an opposition to Faith's motion to designate the petition as its brief.
Whether the Commission vacates its direction for review due to a petitioner's failure to
file an opening brief in accordance with Rule 75 is a matter within the Commission's discretion.
See 29 C.F.R. § 2700.75(e). Faith has proffered a reason for its failure to file its brief, i.e., as a
prose operator, Faith was unaware of the filing requirement. Under the circumstances, we
excuse Faith' s late-flied resp0nse to the show cause order and grant its motion to designate the
petition as its brief.

2

Rule 75(e) provides:

Consequences of petitioner's failure to file brief. If a
petitioner fails to timely file a brief or to designate the petition as
his brief, the direction for review may be vacated.

684

For the foregoing reasons, we deny the Secretary's motion.

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

Distribution
Lonnie Stockwell
Faith Coal Company
Route I, Box 196
Palmer, TN 37365 (Certified)
Cheryl C. Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite l 000
Falls Church, VA 22041

685

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

May 22, 1996

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

v.

Docket No. KENT 91-179-R

PEABODY COAL COMPANY

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

DECISION
BY THE COMMISSION:
This contest proceeding arises under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). At issue is a citation,2 issued by the
Department of Labor' s Mine Safety and Health Administration ("MSHA"), alleging that
Peabody Coal Company ("Peabody") violated 30 C.F.R. § 75.316 (1991) by operating a mine
without an approved ventilation plan.3 The Commission previously remanded this matter to the

1

Commissioner Doyle participated in the consideration of this matter but resigned from
the Commission before its final disposition. Commissioner Riley assumed office after this case
had been considered and decided at a Commission decisional meeting. A new Commissioner
possesses legal authority to participate in pending cases, but such participation is discretionary.
Mid-Continent Resources, Inc., 16 FMSHRC 1218 n.2 (June 1994). In the interest of efficient
decision making, Commissioner Riley has elected not to participate in this matter.
2

Originally, this proceeding involved a second citation at another of Peabody' s mines,
the Camp No. 2 Mine (15 FMSHRC 381, 382 (March 1993)); however, that mine is no longer
operating and the Secretary has withdrawn the citation against it. S. Br. at 4 n.3.
3

Former 30 C.F.R. § 75.316 implemented section 303(0) of the Mine Act, 30 U.S.C.
§ 363(0), and provided:
A ventilation system and methane and dust control plan and
revisions thereof suitable to the conditions and the mining system
of the coal mine and approved by the Secretary shall be adopted by

686

administrative law judge to determine whether a disputed ventilation plan provision was
''suitable" to the conditions at Peabody's mines. Peabody Coal Co., 15 FMSHRC 381, 388
(March 1993) ("Peabody f'). The Commission stated that the Secretary of Labor bears the
burden of proving the suitability of a disputed plan provision. Id. On remand, Administrative
Law Judge Gary Melick concluded that the Secretary established that the disputed plan provision
was suitable. Peabody Coal Co., 15 FMSHRC 1703 (August 1993) (ALJ). The Commission
granted Peabody's petition for discretionary review ("PDR"). For the reasons that follow, we
affirm the judge.

I.
Procedural and Factual BackfUound

A.

Peabody!

The background facts in this proceeding are fully set forth in Peabody I, 15 FMSHRC at
382-85, and are summarized here. Peabody's Martwick Mine utilizes a method of continuous
mining known as "deep cut" or "extended" mining that involves making cuts deeper than 20 feet
from the last full row of permanent roof supports. Id. at 382 & n.2. In January 1991, as a result
of its regular 6-month review of Peabody's ventilation plan at the mine, MSHA insisted that
Peabody include in the plan a deep cut ventilation provision applicable to the roof bolting stage
of the mining cycle. The new provision required Peabody to extend the line curtain during roof
bolting in deep cut entries to within 10 feet of the last row of bolts being set and to supply 3,000
cubic feet per mi.nute ("cfm") of air at the inby end of the curtain. In Peabody's previously
approved plan, the line curtain was not placed in deep cuts until completion of roof bolting and
there was no prescribed minimum air volume during roof bolting. Id. at 15 FMSHRC at 382-83;
15 FMSHRC at 1703 (ALJ decision on remand).
Peabody objected to inclusion of the new provision. After unsuccessfully negotiating
with Peabody, the Secretary refused to approve a revised ventilation plan that did not contain the

the operator and set out in printed form on or before JWle 28, 1970.
The plan shall show the type and location of mechanical
ventilation equipment installed and operated in the mine, such
additional or improved equipment as the Secretary may require, the
quantity and velocity of air reaching each working face, and such
other infonnation as the Secretary may require. Such plan shall be
reviewed by the operator and the Secretary at least every 6 months.
When MSHA revised and renumbered its ventilation plan standards in 1992, 30 C.F .R. § 75.316
was superseded by 30 C.F.R. § 75.370 (1995), 57 Fed. Reg. 20,868, 20,910-12, 20,924 (May 15,

1992).

687

disput.::d provision and issued a citation to Peabody alleging a violation of section 7 5 .316 for
operating without an approved plan. Peabody submitted, under protest, a plan containing the
provision required by the Secretary. Peabody I, 15 FMSHRC at 382-84.
Peabody filed a notice of contest and a hearing was held. In his first decision, Judge
Melick concluded that the new deep cut ventilation provision was mine-specific and not a
standard of general application that was subject to rulemaking requirements. He determined that
Peabody had failed to negotiate with the Secretary in good faith over the provision and affirmed
the citation. 13 FMSHRC 1332, 1335-37 (August 1991) (ALJ). On review, the Commission
affirmed the judge's finding that the deep cut ventilation provision was mine-specific but,
contrary to the judge, found that Peabody had negotiated in good faith. 15 FMSHRC at 385-88.
The Commission remanded the case to the judge with the following instruction:
We remand to the judge to decide whether the disputed provision
was "suitable" to Peabody's mineO, as contemplated by 30 U.S.C.
§ 863(o ). The Secretary bears the burden of proving that the plan
provision at issue was suitable to the mineO in question.

Id. at 388.
Peabody filed a petition for reconsideration with the Commission requesting clarification
that the Secretary's burden of proof included a showing that Peabody's previously approved
ventilation plan was unsuitable in addition to demonstrating that the disputed plan provision was
suitable. The Secretary responded that, because he sought to have Peabody make changes in a
previously approved plan, he had no objection to bearing the burden of proving both the
uns~itability of the previously approved plan and the suitability of the new plan provision. The
Commission denied the petition and ordered that the issues raised by Peabody be determined in
the first instance by the judge on remand. Peabody Coal Co., 15 FMSHRC 628 (April 1993)
("Peabody II").
B.

Present Proceeding

On remand, the judge took further evidence on the issues of the unsuitability of the
previously approved ventilation plan and the suitability of the new plan provision the Secretary
had proposed. Tr. III. 3-4.4 At the hearing, the Secretary modified the proposed plan provision
because further testing revealed that, with airflow of 3,000 cfm at the inby end of the line curtain,
there was sufficient ventilation to the face areas with a shorter line curtain. Under the modified

4

The judge conducted two hearings in this matter, the first on August 7 and 8, 1991, and
the second, after remand, on June 17, 1993. "Tr. I" refers to the transcript volume of the hearing
on August 7; "Tr. II" to the August 8 hearing transcript; and "Tr. III" to the June 17 hearing
transcript.

688

plan provision, the line curtain was to be extended only to the fourth row of roof bolts outby the
row being installed (about 20 feet from the last row of roof bolts); Wlder the earlier proposed
provision, the line curtain was extended to the second row of roof bolts outby the row being
installed (about 10 feet from the last row of roof bolts). 15 FMSHRC at 1704 n.2; Tr. III 19-21;
Gov't Ex. 6A. The Secretary presented testimony and test results to support his position that the
purpose of the new ventilation provision was to remove methane, respirable dust, and fumes
from the face area during roof bolting and that, without such ventilation, an ignition was possible
because of the presence of the roof bolter. Peabody introduced the results of its own ventilation
studies regarding the sources and quantities of methane released in the mine. 15 FMSHRC at
1703-05.
The judge concluded that the Secretary met his burden of proving that the prior plan was
no longer suitable to the mine and that the proposed plan provision was suitable. 15 FMSHRC at
1705-06. The judge found that the mine liberates large amounts of methane and is subject to 15day spot inspectfons under section 103(i) of the Mine Act, 30 U.S.C. § 813(i), for mines
liberating more than 200,000 cubic feet of methane during a 24-hour period. He also found,
based on Peabody's tests, that methane is liberated from the working faces of the mine. 15
FMSHRC at 1703-05. The judge relied on the Secretary's tracer gas tests', which showed that,
Wlder the previously approved ventilation plan, little or no methane present in unventilated deep
cut areas would be diluted or removed and that methane would accumulate in increasing
concentrations while the roof bolting machine was in operation. 15 FMSHRC at 1704-05. He
noted that the roof bolting machine could at any time become an ignition source. Id. at 1705.
Finding the prior plan unsuitable to address this safety hazard, he determined that the new plan
provision addressed the hazard because "the ventilating air clearly sweeps the face area." Id at
1704. Accordingly, he affirmed the citation and dismissed the contest. id at 1706.

II.

\

Disposition
A.

Position of the Parties

Peabody argues that the judge's formulation of the test for suitability was erroneous.
PDR at 2; P. Br. at 16. Peabody asserts that the judge permitted the Secretary to articulate only a
"possible hazard, without making any showing that the hazard exists or is reasonably likely to
occur at Martwick ...." P. Br. at 16. Peabody also argues that the Martwick Mine has operated
safely for years without the provision in question. P. Br. at 17. Peabody further asserts that: the
showing the judge imposed on the Secretary was inconsistent with the Commission's remand
instructions; the judge's suitability determination was premised on the incorrect assumption of a
requirement that there be adequate ventilation to the face during roof bolting; evidence was
lacking that methane accumulated at the face during roof bolting; and the previous plan provision
required adequate ventilation of face areas during active mining. P. Br. at 18, 20, 27, 29-31.

689

The Secretary argues that substantial evidence supports the judge's determination that
the previously approved plan was unsuitable and the proposed plan provision was suitable. S.
Br. at 9-19. The Secretary further argues that plan provisions should be given the same legal
effect as a mandatory standard adopted through rulemaking and should therefore be reviewed
under an arbitrary and capricious standard of review. S. Br. at 26-34. In response, Peabody
contends that, because the procedural safeguards of notice-and-comment rulemaking are absent
in the plan approval context, the arbitrary and capricious standard of review is inappropriate.
P. Reply Br. at 17-20.

B.

Analysis

Section 303(o) of the Mine Act, the statutory sponsor of the ventilation plan regulation at
issue, provid~s:
A ventilation system and methane and dust control plan and
revisions thereof suitable to the conditions and the mining system
ofthe coal mine and approved by the Secretary shall be adopted by
the operator ....
30 U.S.C. § 863(0) (emphasis added). As the Commission noted in Peabody I, "[M]ine
ventilation or roof control plan provisions must address the specific conditions of a particular
mine." 15 FMSHRC at 386. See UMWA v. Dole, 870 F.2d 662, 669 (D.C. Cir. 1989). While
the contents of a plan are based on consultation between the Secretary and the operator (see, e.g.,
Penn Allegh Coal Co., 3 FMSHRC 2767, 2773 (December 1981)), "the Secretary must
independently exercise his judgment with respect to the content of such plans in connection with
his final approval of the plan." UMWA v. Dole, 870 F.2d at 669 n.10, quoting S. Rep. No. 181,
95th Cong., 1st Sess. 25 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative History ofthe Federal Mine Safety and
Health Act of 1977, at 613 (1978).
We reject Peabody's proposal that the Secretary be required to prove the hazard
addressed by a new plan provision either exists or is reasonably likely to occur. Section 303(0),
in setting forth the requirement that a ventilation plan be suitable to mining conditions, does not
require that plan provisions be based on the existence of specific hazards or the likelihood that
specific hazards may occur. In the absence of a statutory definition or a technical usage of the
term "suitable," we apply the ordinary meaning of the word. See Thompson Brothers Coal Co.,
6 FMSHRC 2091, 2096 (September 1984). "Suitable" is defined as "matching or
correspondent," "adapted to a use or purpose: fit," "appropriate from the viewpoint of ...
convenience, or fitness: proper, right," "having the necessary qualifications: meeting
requirements." Webster's Third New International Dictionqry 2286 (1986). We conclude that
the Secretary carried his burden of proving the unsuitability of the former plan and the suitability
of the new provision once he identified a specific mine condition not addressed in the previously
approved ventilation plan and addressed by the new provision.

690

In order to establish that, under former section 75.316, Peabody improperly refused to
include a provision in its ventilation plan, the Secretary agreed for purposes of this litigation to
assume the burden of proving: (1) the previously approved plan is no longer suitable to the
conditions and the mining system of the coal mine, and (2) the new plan provision is suitable.
Peabody II, 15 FMSHRC 628. The Commission is bound by the substantial evidence test when
reviewing an administrative law judge's factual determination. 30 U.S.C. § 823(d)(2)(A)(ii)(I).
"Substantial evidence" means "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." See, e.g., Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159, 2163 (November 1989), quoting Consolidation Edison Co. v. NLRB, 305 U.S. 197, 229
(1938). We are guided by the settled principle that, in reviewing the whole record, an appellate
tribunal must also consider anything that "fairly detracts" from the weight of the evidence that
may be considered as supporting a challenged finding. Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951).
The Secretary's concern ·with ventilation of deep cuts during roof bolting originated with
a report by MSHA's Pittsburgh Safety and Health Technology Center, "Ventilation
Requirements and Procedures for Extended (Deep) Cuts with Remote Controlled Continuous
Miners." Tr. I 26-31; Gov't Ex. 2. In response to that report, the Secretary began reviewing
plans to determine whether and how deep cuts should be ventilated. Tr. I 48-49. The Secretary
concluded that Martwick's previous plan requiring no ventilation during the roof bolting stage
was inadequate. Tr. II 14-15, 82-84; Tr. III 71.
Further, Peabody's own ventilation study revealed that methane was released at faces
following deep cuts. The Martwick Mine liberates large amounts of methane and is subject to
15-day review under section 103(i) of the Mine Act. 15 FMSHRC 1703-04. The record
confirms the inherently unpredictable nature of methane liberation. Tr. III 28, 41-42, 71, 215-17,
224-25. Additionally, as the judge found, the roof bolter presented an ignition source and posed
an "extreme potential hazard" under the prior plan if methane were to accumplate at dangerous
levels. 15 FMSHRC at 1705. The Secretary's tracer gas tests also demonstrated that, without
the recommended provision, sufficient air to dilute methane concentrations did not reach the
face. Concerning the suitability of the new provision, the Secretary's tracer gas tests showed that
the new provision would adequately ventilate the face and dilute any methane concentrations
present.
Accordingly, we find that substantial record evidence supports the judge's finding that
the previously approved plan was unsuitable and the new provision was suitable to conditions at
the Martwick Mine.
We reject Peabody's assertion that the judge based his decision, in part, on a mistaken
belief that the Secretary's regulations require a certain level of ventilation during roof bolting.
PDR at 8; P. Br. at 21-22. We agree with the Secretary (S. Br. at 19 n.9) that the judge did not
rest his determination on an assumption that ventilation of deep cuts during roof bolting was

691

required by mandatory standards. Rather, the judge concluded that the Secretary had presented
sufficient evidence to prove that such ventilation was suitable to the Martwick Mine. 15
FMSHRC at 1705.5
Peabody also asserts that its prior plan required a deflector curtain in deep cuts. PDR at
13; P. Br. at 27-28. If this is an argument that t~e prior plan contained the same line curtain
requirement as the proposed provision, we reject it. The prior plan did not require installation of
curtain before completion of roof bolting and did not specify minimum airflow or a particular
length of line curtain, the requirements that the Secretary sought to impose in the new provision.
We need not reach the Secretary's argument that, because a plan provision once approved
by the Secretary has the same legal effect as a mandatory standard, he is to be accorded deference
and the plan provision is to be reviewed under an arbitrary and capricious standard of review. S.
Br. 26-28. The Secretary's position on this issue was rejected by the judge (see Order Denying
Motion for Summary Decision, May 22, 1991) and the Secretary did not seek review. The issues
on review were defined by the Commission' s remand order and are narrowly focused--whether
the Secretary carried his burden of proving that the previously approved plan was unsuitable and
that the new plan provision was suitable to the conditions at the Martwick Mine. While we note,
as did the court in UMWA v. Dole, 870 F. 2d at 669 n.10, that the plan approval process involves
an element ofjudgment on the part of the Secretary,6 when that judgment is challenged, the
Secretary must sustain his burden of proof with regard to suitability.

5

Given our conclusion, we need not rule on Peabody's assertion that no minimum level
of ventilation is required during roof bolting. However, we note that section 303(b) of the Mine
Act, 30 U.S.C. § 863(b), requires delivery of a minimum quantity of3,000 cfm of ventilating air
at each "working face."
6

See also Monterey Coal Co., 5 FMSHRC 1010, 1019 (June 1983) (withdrawal of
approval of water impoundment plan was not arbitrary or capricious where MSHA' s conduct
throughout the process was reasonable).

692

III.
Conclusion
For the foregoing reasons, we affirm the judge's decision.

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

693

..:
·,

Distribution

David R. Joest, Esq.
Peabody Coal Company
1951 Barrett Court
P.O. Box 1990
Henderson, KY 42420
Jerold S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

694

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

May 23, 1996

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

·Docket No. PENN 94-71-R

LION MINING COMPANY

BEFORE: Jordan, Chairman; Holen, Marks, and Riley, Commissioners'

DECISION

BY THE COMMISSION:
This contest proceeding arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § ·801 et seq. (1994) ("Mine Act" or "Act"), involves a citation issued to Lion Mining
Company ('~Lion") alleging a violation of 30 C.F.R. § 75.220(a)(l) (1995) for failure to comply
with its approved roof control plan.2 Administrative Law Judge T. Todd Hodgdon concluded
that Lion violated the standard, but that the violation was not significant and sµbstantial ("S&S")
and was not the result of Lion's unwarrantable failure. 16 FMSHRC 641(MMch1994) (ALJ).
The Commission granted the Secretary of Labor's petition for discretionary review, which
challenges the judge's S&S and unwarrantable failure determinations. For the reasons that
follow, we vacate those determinations and remand.

1

Commissioner Doyle participated in the consideration of this matter but resigned from
the Commission before its final disposition.
2

Section 75.220(a)(l) provides in pertinent part:
Each mine operator shall develop and follow a roof control
plan, approved by the District Manager, that is suitable to the
prevailing geological conditions, and the mining system to be used
at the mine....

695

I.
Factual and Procedural Background
On November 17, 1993, Inspector Kenneth Fetsko of the Department of Labor's Mine
Safety and Health Administration ("MSHA") inspected the four and one-half right pillar section
("4Yi section") at Lion's Grove No. I underground coal mine near Jennerstown, Pennsylvania
16 FMSHRC at 641; Gov't Ex. 9. He was accompanied by Lion's safety director, Mike Bittner.
Tr. 32-33. At the 37/44 crosscut, between Pillar Block ("Block") 37 and Block 44, Fetsko
observed a continuous miner loading coal into three or four shuttle cars in the roadway between
Blocks 37 and 38. 16 FMSHRC at 641-42. Fetsko also saw Mine Superintendent Arthur Jones
and Section Foreman Ted Marines across the roadway in the crosscut between Blocks 38 and 39.
Id. The 38/39 crosscut had been roof bolted and breaker posts and radius tum posts had been
installed, but roadway posts had not. Id. at 642, 646. Fetsko then observed the continuous miner
make a notch cut from the right side of Block 37. Id at 642; Joint Ex. 1; Tr. 71. Marines left
for a short time and, upon returning, ordered roadway posts delivered to the crosscut. 16
FMSHRC at 647. Fetsko issued a citation to Lion under section 104(d)(l) of the Act, 30 U.S.C.
§ 814(d)(l), for violating its roof control plan by failing to install roadway posts in the 38/39
crosscut before making the notch cut.3 16 FMSHRC at 642; Gov't Ex. 1. Fetsko designated the
violation S&S and alleged that it was the result of Lion's \J.nwarrantable failure. Id Lion abated
the violation by installing four roadway posts in.the crosscut. 16 FMSHRC at 642; Gov't Exs. 1,
4; Tr. 74, 86-87.
Lion conceded the violation but contested the S&S and unwarrantable failure
designations. 16 FMSHRC at 643. Accordingly, the judge found a violation. Id The judge
concluded, however, that the violation was not S&S. Id. at 645-46. He found that the Secre~
failed to establish that a serious injury was reasonably likely to have resulted from Lion's failure
to install the roadway posts. Id at 645. The judge determined that Lion~"fit the time, had several
other means of preventing a roof fall. Id. at 646. He emphasized that the ill-ea in question had
been completely roof bolted and that breaker posts and radius turn posts had also been installed.
Id. Additionally, the judge stated it was not clear that the sole, or even the primary function, of
roadway posts was roof support. Id. at 645. The judge also concluded Inspector Fetsko was
mistaken in believing Block 37 had been mined previously, before the notch was cut. Id. at 646
&n.4.
The judge additionally concluded the violation did not result from Lion's unwarrantable
failure, but rather resulted from moderate negligence. Id. at 647-48. He concluded record
evidence was insufficient to demonstrate either that the mine superintendent or the section

3 Lion's roof control plan requires that roadway posts be installed in roof bolted entries,

rooms, and crosscuts to limit the roadway width to 18 feet. Gov't Ex. 2, note 7 to Drawing A
(Plan for Installing Roof Supports for Pillar Recovery).

69 6

foreman "deliberately and consciously failed to act or engaged in aggravated conduct." Id. at
647. Furthermore, he found that additional mining of Block 37 would not have taken place until
after the roadway posts were installed. Id

II.
Disposition
A. Sianificant and Substantial
The Secretary argues the judge erroneously determined the violation was not S&S
because he failed to find that the function of roadway posts was roof support and because he
improperly gave weight to Lion's compliance with other parts of the roof control plan. S. Br. at
5, 7-8. The Secretary also argues that the judge failed to consider adequately the history of roof
falls in the 4Yz section and roof conditions at the time of the citation and that he failed to consider
general evidence that roof falls are the leading cause of fatalities in mines. Id. at 5-6.
In response, Lion submits that substantial evidence supports the judge's finding that the
violation was not S&S. L. Br. at 7-16. Lion points to other roof support in the ·area. Id. at 10. It
also argues that, at the time of citation, only a small part of the pillar had been mined and that
further mining would not have taken place until .after roadway posts were installed. Id at 10-11.
The S&S terminology is taken from section 104(d)(l) of the Act and refers to more
serious violations. A violation is S&S if, based on the particular facts surrounding the violation,
there exists a reasonable likelihood that the hazard contributed to will result in an injury or
illness of a reasonably serious nature. Cement Div., Nat 'l Gypsum Co., 3 FMSHRC 822, 825-26
(April 1981). In Mathies Coal Co., 6 FMSHRC l (January 1984), the Commi~sion further
'
explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: ( 1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard--that is, a
measure of danger to safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.

Id. at 3-4~footnote omitted). See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th
Cir. 1995); Austin Power, Inc. v. Secretary of Labor, 861F.2d99, 103 (5th Cir. 1988) (approving
Mathies criteria).

697

Substantial evidence does not support the judge's S&S detennination.4 The judge' s
approach to weighing record evidence was unduly restrictive and reflects a misunderstanding as
to the purpose of roadway posts. In concluding that the Secretary had not satisfied the third
Mathies element, the judge emphasized that the area was completely roof bolted and contained
breaker and radius posts. 16 FMSHRC at 646. Under the roof control plan, however, Lion was
required to install roadway posts before it could commence mining Block 37, which would cause
a reduction in roof support. Id. at 643; L. Posthearing Br. at 6; S. Posthearing Br. at 4-5. The
judge failed to recognize that roof bolting and other posts were adequate support for roof
conditions only before mining of the pillar. Thus, we conclude the judge erred in placing undue
weight on the operator's compliance with the applicable roof bolting, breaker, and radius post
·
requirements.
The judge also failed to understand that the function of required roadway posts was to
provide roof support. The judge stated:
[A]ccording to the Dictionary ofMining, Mineral, and Related
Terms 931 (1968) ["DMMRT'], roadway supports, which include
roadway posts, serve two functions, to: "(I) ensure safety by
preventing falls of ground, and (2) maintain the maximwn possible
roadway size by resisting the tendency of the roadway to contract
and distort." It is not at all clear from Lion Mining's roof control
plan that the sole, or even the primary, function of the roadway
posts in this case was to serve as roof support.
16 FMSHRC at 645 (footnote omitted). The judge erred in failing to find that a principal
function of roadway posts is roof support. He apparently did not realize that "falls of ground,"
cited by the DMMRT as a hazard against which roadway supports protect, refers to "[r]ock
falling from the roof into a mine opening." DMMRT at 410. He also ndted that section
75.207(c), 30 C.F.R. § 75.207(c), does not require installation of roadway posts until mining on

4

The Commission is bound by the substantial evidence test when reviewing an
administrative law judge's factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I). "Substantial
evidence" means "such relevant evidence as a reasonable mind might accept as adequate to
support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163
(November 1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). While
we do not lightly overturn a judge's factual findings and credibility resolutions, neither are we
bound to affirm such determinations if only slight or dubious evidence is present to support
them. See, e.g., Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984);
Midwesf Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980). We are guided by
the settled principle that, in reviewing the whole record, an appellate tribunal must also consider
anything in the record that "fairly detracts" from the weight of the evidence that supports a
challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

698

the final stump commences, which had not occurred here. 16 FMSHRC at 645 n.3. The judge's
reliance upon section 75.207(c) is misplaced. That standard specifies procedures for pillar
recovery that are required "unless otherwise specified in the roof control plan." 5 Lion concedes
that its plan required roadway posts to be installed before pillars are mined in order to provide
additional roof support. See Tr. 26, 38, 129; L. Br. at 4.
We agree with the Secretary that the judge also erred in failing to consider the history of
roof falls in the section. The area experienced roof falls on five occasions within two years prior
to the instant violation. Gov't Exs. 3, 5, 6; Tr. 43; S. Br. at 6-7. Indeed, the previous day a roof
fall occurred only two pillar blocks away from Block 37.6 Tr. 43, 50-51; Gov't Exs. 3, 5, 6. We
reject the Secretary's argument, however, that the judge erred in failing to consider general
evidence on the danger of roof falls. The Commission has held that an S&S determination must
be based on the particular facts surrounding the violation, including the nature of the mine. See
Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988).
For the foregoing reasons, we vacate the judge's S&S determination and remand for
further analysis.
B. Unwarrantable Failure
The Secretary argues that the judge failed to address adequately evidence that Lion had a
history of roof falls and roof control plan citations in the section, including several for failing to
install roadway posts. S. Br. at 9-11 . The Secretary also notes that both the mine superintendent
and the section foreman observed the continuous miner removing coal from the pillar in violation
of the roof control plan without ordering mining to cease. Id. at 9-12.
Lion avers that, as soon as the section foreman became aware of the cited condition, he
immediately ordered cessation of mining and the delivery of posts to the area. L. Br. at 18. Lion

5

Section 75.207 provides in pertinent part:
Pillar recovery shall be conducted in the following manner,
unless otherwise specified in the roof control plan:

(c) Before mining is started on a final stump ....
6

-Inspector Fetsko testified that, between Blocks 38 and 39, he observed that the "rib was
rolling," i.e., that pieces of the rib were breaking off. Tr. 39, 65-66. While the judge generalJy
referred to this testimony in his decision, 16 FMSHRC at 645, he apparently did not consider it
in his S&S analysis. On remand, he should do so.

699

also submits that the mine superintendent was not negligent because he had only recently been
employed at the mine and was not familiar with all details of the roof control plan. Id at 18-19.
Lion further argues that the violation existed for only the last ten seconds of the 20- to 30-minute
period the inspector observed the continuous miner working. Id. at 20.
The unwarrantable failure terminology is taken from section 104(d)(l) of the Act and
refers to more serious conduct by an operator in connection with a violation. In Emery Mining
Corp., 9 FMSHRC 1997 (December 1987), the Commission detennined that unwarrantable
failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001.
Unwarrantable failure is characterized by such conduct as " reek.less disregard," "intentional
misconduct," "indifference" or a "serious lack of reasonable care." Id. at 2003-04; Rochester &
Pittsburgh Co.al Corp., 13 FMSHRC 189, 193-94 (February 1991); see also Buck Creek Coal,
Inc. v. FMSHRC, 52 F.3d at 136 (approving Commission's unwarrantable failure test).

In Mullins and Sons Coal Co., 16 FMSHRC 192, 195 (February 1994), the Commission
set forth factors to be considered in making an unwarrantable failure analysis: "the extensiveness
of the violation, the length of time the violative condition has existed, the operator's efforts to
eliminate the violative condition, and whether an operator has been placed on notice that greater
efforts are necessary for compliance." The Commission has also examined conduct of
supervisory personnel in determining unwarrantable failure. A heightened standard of care is
required of such individuals. See Youghiogheny.& Ohio Coal Co., 9 FMSHRC 2007, 2011
(December 1987); S&H Mining, Inc., 17 FMSHRC 1918, 1923(November1995).
The judge erroneously determined that Lion had never been cited for failing to install
roadway posts. See 16 FMSHRC at 647. Lion received two such citations within two months of
the subject citation for violations on the same section. Gov't Ex. 8. In addition, during the
preceding nine months, MSHA cited Lion for four other roof control violations in the section.
Id There were also five roof failures in the section within two years of the citation, including
one roof fall the day before the citation. Gov't Exs. 3, 5, 6; Tr. 43; S. Br. at 6-7. This history of
roof violations and roof falls should have placed Lion on notice that greater efforts were
necessary for compliance. See Youghiogheny & Ohio, 9 FMSHRC at 2010-11; Peabody Coal
Co., 14 FMSHRC 1258, 1261 (August 1992).
The judge also observed that record evidence was not sufficient to establish that Mine
Superintendent Jones and Section Foreman Marines "deliberately and consciously failed to act or
engaged in aggravated conduct."7 16 FMSHRC at 647. Superintendent Jones saw the notch
being mined and did not order mining to be stopped. Tr. 125, 128. The judge, however, noted

~A "deliberate and conscious failure to act" is not determinative of an unwarrantable

finding. See S&H, 17 FMSHRC at 1923. The judge, however, references and applies the
correct test for determining unwarrantability. 16 FMSHRC at 646-47. See Emery, 9 FMSHRC
at 2003-04; Roche.ster & Pittsburgh, 13 FMSHRC at 193-94.

700

Jones' testimony that he did not know about the roof control plan provisions concerning roadway
posts and was not required to know all provisions of the plan. 16 FMSHRC at 647, citing Tr.
124. Accordingly, the judge found that, even if Jones had a duty to know the roof control plan
and breached that duty, the breach was "not necessarily an 'unwarrantable failure."'
16 FMSHRC at 647. The judge did not consider that Jones had approximately 21 years of
mining industry experience, had been employed by Lion as mine superintendent for eight
months, and was in charge of safety and health at the mine. Tr. 121-22, 125. Jones also
conceded that erecting roadway posts was "a common part of the roof control plan." Tr. 127. In
addition, the judge should consider Jones' testimony that he believed the roof control plan
allowed roadway posts to be erected after pillar extraction began (Tr. 128-29) and whether that
interpretation was reasonable. See Cyprus Plateau Mining Corp., 16 FMSHRC 1610, 1615
(August 1994). Consideration should also be given to the Secretary's admission that the plan did
not expressly require that roadway post installation should occur before commencement of pillar
extraction. S. Br. at 8 n.5.
With respect to Foreman Marines, the judge found that Marines "left [the] area for a short
time ... and that when he returned the last shuttle car was being loaded, including coal from the
notch" and that "he told the shuttle car operator to return with timber to install the roadway
posts .... " 16 FMSHRC at 647. ·Marines testified that he saw the notch being cut and did not
order mining to cease "till [the continuous miner operator] finished that shuttle car." Tr. 134,
135, 137. The judge should have considered in his analysis that Marines observed the violation
in progress and failed to immediately order cessation of mining. The continuous miner operator
also testified that he intended to continue mining at the time in question. Tr. 112. The judge
should reconsider his findings in light of this testimony.
The judge did not determine whether Inspector Fetsko's presence served as the impetus
for ordering the roadway posts. Although he relied on Marines' testimony that tpe inspector did
not explicitly remind him to install the posts, 16 FMSHRC at 647, the judge did not evaluate the
potential influence of the inspector's presence. Moreover, the inspector had conversations with
other management officials in which he pointed out the lack of roadway posts. 8 In reconsidering
his finding that "further mining of Pillar Block 37 would not have taken place until after the
roadway posts were installed/' the judge should take into account the inspector's presence and
the conversations between the inspector and mine officials. Id.
We vacate the judge's determination and remand for further analysis of whether the
violation resulted from Lion's unwarrantable failure. Clarification by the judge of the

8 According to the inspector's notes and testimony, immediately after he pointed out the

problem to one of the management officials, that official looked over to where Jones and Marines
were in the crosscut and then went over and started measuring for posts. Gov't Ex. 5; Tr. 34-36.
During the time Inspector Fetsko observed the area, he could see that Jones was in the crosscut
between Blocks 38 and 39 the entire time, while Marines left the area and returned. Tr. 40.

701

chronology of events will be relevant to his analysis. A judge must analyze and weigh the
relevant testimony of record, make appropriate findings, and explain the reasons for his decision.
Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June 1994).

HI.
Conclusion
For the foregoing reasons, we vacate the judge's determinations that the violation was not
S&S and not the result of unwarrantable failure. We remand for analysis consistent with this
opinion.

Marc Lincoln Marks, Commissioner

runes C. Riley, Commissioner

702

'

Distribution

Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Joseph.A. Yuhas, Esq.
1809 Chestnut A venue
P.O. Box25
Bamesboro, PA 15714
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

70 3

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

May 28, 1996

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

GENERAL CHEMICAL CORPORATION

..
Docket Nos. WEST 95·95-M
WEST 95-112·M
WEST 94-583·RM through
WEST 94-591·RM

BEFORE: Jordan, Chairman; Holen, Marks and Riley, Commissioners
ORDER
BY THE COMMISSION:
These civil penalty and contest proceedings arise under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1994). In June and July 1994, the Secretary of
Labor issued nine citations to General Chemical Corporation ("General Chemical") alleging
insubstantial stoppings in violation of 30 C.F.R. § 57.22218(a) (1995) and .a citation alleging a
failure to report an accident in violation of 30 C.F .R. § 50.10 (Citation No. 4338810). In August
1994, General Chemical filed notices of contest for all the citations except Citation No. 4338810.
The nine citations became the subject of contest and civil penalty proceedings, while Citation
No. 4338810 became the subject of only a civil penalty proceeding. On November 29, 1995, the
Secretary filed a motion to vacate the civil penalty and contest proceedings. On December 12,
1995, Administrative Law Judge August Cetti issued an Order of Dismissal.
On March 18, 1996, the Commission received an Unopposed Motion for Amended Order
of Dismissal from General Chemical. General Chemical states that, although Citation No.
4338810 was part of the civil penalty proceeding that was dismissed, it was not specifically
referenced in the dismissal order. Mot. at 3. It asserts that confusion may exist as to whether the
dismissal order includes Citation No. 4338810. Id at 2. It therefore requests that an amended
dismissal order be issued, specifically referencing Citation No. 4338810. Id at 3.
The judge's jurisdiction over this case terminated when his dismissal order was issued on
December 12, 1995. 29 C.F.R. § 2700.69(b) (1995). Relief from a judge' s decision may be
sought by filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C.

704

§ 823(d)(2); 29 C.F.R. § 2700.70(a). If the Commission does not direct review within 40 days of
a decision's issuance, it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l).
General Chemical's motion was received by the Commission on March 18, after the judge's
dismissal order had become a final decision of the Commission. Under these circumstances, we
shall treat General Chemical's motion as a late-filed petition for discretionary review requesting
amendment of a final Commission decision. See Transit Mixed Concrete Co., 13 FMSHRC 175,
176 (February 1991).
A final Commission judgment or order may be reopened under Fed. R. Civ. P. 60(b)(l)

& (6) in circumstances such as mistake, inadvert~nce, excusable neglect, or other reasons
justifying relief. 29 C.F.R. § 2700.l(b) (Federal Rules of Civil Procedure apply "so far as
practicable" in the absence of applicable Commission rules); e.g., Lloyd Logging, Inc., 13
FMSHRC 781, 782 (May 1991 ). The judge did not directly refer to Citation No. 4338810 in the
caption or the body of the dismissal order. General Chemical asks that the order be amended to
specifically reference Citation No. 4338810. The Secretary does not oppose the motion.
Accordingly, we reopen these proceedings, grant the motion, and issue an Amended Order of
Dismissal. See Martin Marietta Aggregates, 16 FMSHRC 189, 190 (February 1994).

~.Li~

M L~dan, Chai~an

Marc Lincoln Marks, Commissioner

705

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

May 28, 1996

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

GENERAL CHEMICAL CORPORATION,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 95-95-M
MSHA Case No. 48-00155-05644
Citation Nos. 4338810, 4338812, and
4338820
Docket No. WEST 95-112-M
MSHA Case No. 48-00155-05643
Citation Nos. 4338813 through 4338819
General Chemical Mine
Mine I.D. 48-00155

GENERAL CHEMICAL CORPORATION,
Contestant

CONTEST PROCEEDINGS
Docket Nos. WEST 94-583-RM through
WEST 94-591-RM
Citation Nos. 4338812 through 4338820

V.

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

General Chemical Mine
Mine l.D. 48-00155

BEFORE: Jordan, Chainnan; Holen, Marks and Riley, Commissioners
AMENDED ORDER OF DISMISSAL
BY THE COMMISSION:
General Chemical Corporation ("General Chemical") has filed a Motion for Amended
Order of Dismissal and the motion is unopposed by counsel for the Secretary of Labor, Mine
Safety and Health Administration ("MSHA"). The motion having been considered, and good
cause appearing:

706

Wherefore, it is ordered that the Order of Dismissal issued December 12, 1995, be
amended to reflect that Citation No. 4338810 was included therein and is therefore dismissed.

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

707

Distribution:
Matthew F. McNulty, III
General Chemical Corporation
50 South Main Street
Suite 1600
P.O. Box 45340
Salt Lake City, UT 84145
Chris Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Kristi Floyd, Esq.
Office of the Solicitor
U.S. Department of Labor
1999 Broadway, Suite 1600
Denver, Colorado 80202-5716
Administrative Law Judge August F. Cetti
Office of the Administrative Law Judges
Colonnade Center, Room 280
1244 Speer Boulevard
Denver, Colorado 80204

708

ADMINISTRATIVE LAW JUDGE DECISIONS

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

MAY 2 1996 ·
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

..
.

v.

Docket No. WEST 94-452
A.C. No. 42-01697-03669
Bear Canyon No. 1

C.W. MINING COMPANY,
Respondent

..
DECISION

Appearances:

Robert Cohen, Esq., Office of the Solicitor,
U.S . Department of Labor, Arlington, Virginia,
for Petitioner;
Carl E. Kingston, Esq., Salt Lake City, Utah,
for Respondent.

Before:

Judge Cetti

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, 30 U.S.C. § 801 et seq. the "Act." The
Secretary of Labor on behalf of the Mine Safety and\ Health Administration, (MSHA), charges the Respondent, c.w. Mining Company,
the operator of the Bear Canyon No. 1 Mine with four regulatory
safety violations found in Part 57 Title 30 Code of Federal
Regulations.
Respondent filed a timely answer denying each of the alleged
violations. Pursuant to notice to the parties, this matter came
up for hearing in Salt Lake City on April 2, 1996.
At the hearing, counsel for the Secretary stated that Citation No. 3588363 is a 104(d)(l) citation for an alleged inadequate preshift examination for the second east pillar section of
the mine. As part and reason for the inadequate preshift examination this citation mentions two other citations, Nos. 35883 61
and 3588362, not in this docket which describe the actual conditions that were cited but allegedly were not observed in the
preshift examination. These two underlying citations were in
another docket heard by a different judge, i.e. Docket No. WEST
94-380. With respect to the instant Citation No. 3588363, counsel for the Secretary stated:
709

That based on the decision in WEST 94-380 we
reviewed again the instant citation for inadequate preshift examination and "because
the two underlying citations have been
changed now, and the (other) Judge held that
the loose coal dust violation was a Non s and
s violation, we felt that we should reduce
this particular (d) (1) citation to a 104(a)
citation and remove the S and S findings and
reduce the penalty from $2,800.00 to $200.00,
and that's what the parties have agreed to."
The remaining three violations issued for a violation of
sections 75.400, 75 . 1725(a} and 75.512 were discussed and reevaluated. After speaking to the inspector, a more accurate
picture of the conditions stated in the citations was obtained.
The parties agreed to modify Citation No. 3588365 from a
104(d) (1) order to a 104(d) (1) citation and reduced the penalty
to $1,000.00 pointing out that the underlying 104(d} (1) citation
for the order no longer existed.
The parties agreed on a penalty of $500.00 for Citation No.
3588367 and $500.00 for Citation No. 3588367.
Upon review of the record, including the information given
at the hearing, I conclude the settlement agreed upon on the
record at the hearing is consistent with the criteria in section
llO(i} of the Act.
ORDER
In view of the foregoing it is ORDERED:
1. Citation No . 3588363 is modified to a 104(a) citation
with the S&S finding deleted and as so modified is AFFIRMED and a
penalty of $200.00 is assessed for this violation.
2. Order No. 3588365 is modified to a 104(d) (1) citation
and as so modified is AFFIRMED and a penalty of $1,000.00 is
assessed for the violation.
3. Citation No. 3588366 is AFFIRMED as written and a penalty of $500.00 is assessed for this violation.
4. Citation No. 3588367 is AFFIRMED as written and a penalty of $500.00 is assessed for this violation.

710

It is further ordered that c.w. Mining Company is shall PAY
the Secretary of Labor civil penalties in the sum of $2,200.00
within 30 days of this decision.

Aug t F . Cetti
Administrative Law Judge

Distribution:
Robert Cohen, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(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)

/sh

711

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

MAY 2 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
FMC WYOMING CORPORATION,
Respondent

CIVIL PENALTY PROCEEDING

...

Docket No. WEST 94-560-M
A.C. No. 48-00152-05636

:

FMC Trona Mine

..

..

DECISION
Appearances:

Robert Cohen, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Matthew F. McNulty, III, Esq., Van Cott, Bagley,
Cornwall & McCarthy, P.C., Salt Lake City, Utah,
for Respondent.

Before:

Judqe Cetti

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, 30 u.s.c. § 801 et seq. the "Act." The
Secretary of Labor on behalf of the Mine Safety and Health
Administration, (MSHA}, charges the Respondent, \ FMC Wyoming
Corporation (FMC), the operator of the Trona Mirte with two
violations of 30 C.F.R. ·s 57.14213 which require use of arc
shields when arc welding is performed where persons could be
exposed to the arc flash. 1
Respondent filed a timely answer contending there was no
violation. Pursuant to notice to the parties, the matter was set
for hearing on April 2, 1996, at Salt Lake city.
During the hearing, the parties on the record entered into a
settlement agreement. It is undisputed that the inspector came
by and saw a momentary arc flash that was promptly abated in each
case. The operator, explaining why the matter had not been set-

originally this docket included 2 other citations charging
violations involving methane monitoring and methane levels. Those
citations were bifurcated into Docket No. WEST 94-560-M-A and previously resolved by my Decision Approving Settlement.
712

tled prior to hearing; stated that representatives of the local
union felt the pnion welders involved were not violating the
standard and were urging the operator not to settle the case.
The operator requested the record to reflect that it is not admitting a violation but for "litigation purposes" is agreeing to
a settlement of the issues involved in this case. Under the
proffered agreement, FMC will pay a $50.00 civil penalty for each
of the alleged violations.
Upon review of the record, including the information given
at the hearing, I conclude the settlement agreed upon on the
record at the hearing is consistent with the criteria in section
llO{i} of the Act.
ORDER

Accordingly, Citation No. 3906527 is AFFIRMED as written and
a penalty of $50.00 is assessed.
Citation No. 4405824 is AFFIRMED as written and a penalty of
$50.00 is assessed.
It is further ORDERED that FMC Wyoming Corporation PAY the
approved civil penalties in the sum of $100.00 to the Secretary
of Labor within 30 days of this decision. Upon receipt of paypayment, this case is dismissed.

Aug t F; Cetti
Administrative Law Judge

Distribution:
Robert Cohen, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Matthew F. McNulty, III, Esq., VAN COTT, BAGLEY, CORNWALL &
McCARTHY, P.C . , 50 South Main Street, Suite 1600, P.O . Box 45340,
Salt Lake City, UT 84145 {Certified Mail)

/sh

713

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

MAY 2 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 94-699-M
A.C. No. 48-00152-05639

v.
FMC Trona Mine
FMC WYOMING CORPORATION,
Respondent
DECISION

Appearances:

Robert Cohen, Esq., Office of the Solicitor
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Matthew F. McNulty, P.C., Salt Lake City, Utah,
for Respondent.

Before:

Judqe cetti

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, 30 u.s.c. § 801 et seq. the "Act." The
Secretary of Labor on behalf of the Mine Safety · and Health Administration, (MSHA), charged the Respondent, FMC Wyoming Corporation (FMC}, the operator of the Trona Mine with the violation
of two regulatory safety standards set forth in Part 57 Title 30
Code of Federal Regulations.
The operator filed a timely answer contending there were no
violations of the cited safety standards. Pursuant to notice to
the parties, the matter came up for hearing at Salt Lake City on
April 2, 1996.
Citation No. 4405834 alleges a violation of 30 C.F.R.
§ 57.14107(a) which requires the guarding of moving machine

parts. At the hearing, counsel for the Secretary, after viewing
pictures of the affected area, stated for the record that Citation No. 4405834 was being vacated. He explained on the record
the reason why it was determined that the citation should be
vacated.
The coupling and drive shaft between the motor and the hoist
was indeed guarded but there was a close question whether it was
adequately guarded. At the hearing, after viewing the picture of

714

the guard and its related drive shaft and the coupling, the parties agreed the citation should be vacated.
Originally this docket included Citation No. 4125239 which
charged the operator with the violation of 30 C.F.R. § 57.5050
involving exposure limits for noise·. This citation was vacated
by MSHA.
ORDER

Both Citation Nos. 4405834 and 4125239 are VACATED and this
case is DISMISSED.

Au st F. Cetti
Administrative Law Judge

Distribution:
Robert Cohen, Esq., Office of the Solicitor, U.S. D~partment of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Matthew F. McNulty, III, Esq., VAN COTT, BAGLEY, CORNWALL &
McCARTHY, P.C., 50 South Main Street, Suite 1600, P.O. Box 45340,
Salt Lake City, UT 84145 (Certified Mail)
/sh

715

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMI'.SSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

MAY 2 l996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 95-193
A.C. No. 42-01697-03675

v.
C.W. MINING COMPANY,
Respondent

..

Bear Canyon #1

DECISION
Appearances:

Robert Cohen, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Carl E. Kingston, Esq., Salt Lake City, Utah,
for Respondent.

Before:

Judge cetti

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, 30 u.s.c. § 801 et seq. the "Act." The
Secretary of Labor on behalf of the Mine Safety. and Health Administration, (MSHA), charges the Respondent, c~w. Mining Company, the operator of Bear Canyon #1 Mine, with the violation of
a respirable dust violation of the regulatory safety standard 30
C.F.R . § 70.lOO{a).
The single citation at issue describes the violation as
follows:
Based on the results of five valid dust samples collected by the operator, the average
concentration of respirable dust in the working environment of the designated occupation
code 036 in mechanized mining united 003-0
was 1.9 milligrams which exceeded the applicable limit of 1.2 milligrams. Management
shall take corrective actions to lower the
respirable dust and then sample each production shift until five valid samples are taken
and submitted to the Pittsburgh Respirable
Dust Processing Laboratory. Approved respiratory equipment shall be made available to
all persons working the area.
716

At the hearing, counsel for the Secretary stated that an
older continuous miner, MMU 003-0, was operating under a reduced
respirable dust level of 1.2 milligrams of respirable dust per
cubic meters of air. The operator placed this older machine in a
non-producing status and it was later scrapped. A new continuous
miner was purchased and the new machine was also designated as
MMU 003-3.
MSHA inadvertently assigned the reduced standard of
the old machine, MMU 003-0, to the new machine. The new machine
should have been operating on a 2.0 milligrams or respirable
level per cubic meters of air and not on the old reduced standard
of 1.2 milligrams applicable to the old machine. When the
operator sent in his samples on th~ new mechanized unit 003-3,
the average concentration of respirable dust was 1.9 milligrams
which was above the 1.2 milligrams standard which had erroneously
been assigned . to the new machine but within the correct 2.0
milligrams standard.
Thus, i t was clear that the citation was issued in error.
Consequently Citation No. 9997061 is vacated.
ORDER

Citation No. 9997061 is VACATED and this case, Docket No.
WEST 95-193 is DISMISSED.

Aug st F. Cetti
Administrative Law Judge
Distribution:
Robert Cohen, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(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)
/sh

717

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

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

7 1996'
CIVIL PENALTY PROCEEDING
Docket No. PENN 95-75
A.C. No. 36-05018-04044

v.

Cumberland Mine
CYPRUS CUMBERLAND RESOURCES
CORPORATION,
Respondent
DECISXQN

Appearances:

Joseph T. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll, P.C.,
Pittsburgh, Pennsylvania, for the Respondent.

Before:

Judge Feldman

This matter is before me as a result of a petition for civil
penalty filed by the Secretary of Labor pursuant to section
105 (d) of the Federal Mine Safety and Health Ac.t of 1977,
(the Act), ·30 u.s.c. § 601 et seq. The petition seeks a civil
penalty of $2800.00 for an alleged violation of a notice to
provide safeguard that had been issued pursuant to section
75.1403, 30 C.F.R. § 75.1403. The subject safeguard violation
was designated as significant and substantial (S&S), and
allegedly was attributable to the unwarrantable failure of Cyprus
Cumberland Resources Corporation (Cumberland) .
\

This case was heard on the merits on February 28, 1996, in
Washington, Pennsylvania. The parties' posthearing briefs are of
record. For the reasons discussed below, the safeguard violation
shall be affirmed. However, the Secretary has failed to carry
his burden of establishing that the violation was properly
characterized as S&S, or, attributable to the respondent's
unwarrantable failure. Consequently, a nominal civil penalty of
$100.00 shall be imposed.

718

Background
Section 75.1403 authorizes a Mine Safety and Health
Administration (MSHA)Inspector to issue safeguards that, in the
inspector's judgement, are necessary to "minimize hazards with
respect to transportation of men and materials .... " In 1980,
CUmberland voluntarily installed ~ signal block light system to
control traffic on its track haulage at the Cumberland Mine.
Under this system, a track section, of varying length, is
designated as a "block" by installation of a red light at each
end. The red light at both ends of the block can be turned on or
off from either end. The operator of a transport vehicle turns
on the block lights upon entering the block, and turns off the
block lights upon leaving the block. The block lights signal
would-be operators seeking to enter a block whether the track in
the block is in use.
Over the last 15 years, since the installation of
CUmberland's signal block system, MSHA has issued numerous
safeguards at the Cumberland Mine. These safeguards include a
safeguard requiring Cumberland to maintain its signal blocks, and
a safeguard requiring a distance of 300 feet between vehicles
traveling in the same block.
Cumberland communicates information to personnel about its
haulage system by various methods, including safety messages . On
September 27, 1993, Cumberland issued the following safety
message concerning use of its signal block system: ·
1.

Stop before pulling onto the main line from any
switch. Make sure nothing is coming before
pulling out. Remember there may be more than one
piece of equipment in a block light. Just because
a block light isn't on, doesn't give you the
right-of-way . Don't just pull onto the haulage.
It's possible the power is off, the block light
doesn't work or the operator of the on-coming
vehicle missed the block light. If a block light
is on, wait for a reasonable length of time, then
proceed with caution.

719

2.

Block lights must be used by everyone as they
trav.el the haulage. If a light doesn't work, you
should proceed with caution. Report any lights
that don't work.
(Ex. R-4).

MSHA Supervisor Robert Newhouse and M~HA Inspector
Robert Santee testified the safety procedures outlined above were
acceptable to MSHA. Cumberland disciplines employees who fail to
follow proper haulage procedures.
Preliminary Findings
On October 25, 1993, MSHA Inspectors Frank Terrett and
Robert Santee were inspecting the CUmberland facility. On that
day, as Terrett was waiting to enter the mine in a mantrip, a
crew exiting the mine in their mantrip was traveling too fast and
bumped the vehicle in which Terrett was sitting. As a result of
this incident, Terrett issued a safeguard, not in issue in this
proceeding, requiring vehicles to be operated at speeds
consistent with the conditions and the equipment used.
Later that day, on October 25, 1993, Santee encountered a
signal block light that had apparently been left on after the
vehicle had left the block. Given this condition, and the
previous incident involving Terrett, Santee issued Safeguard
No. 3655478. This safeguard provided:
The operator has installed signal block lights
along the track haulage at several different locations
to be used by track haulage equipment operators to assure
such operators that a clear road exists. The signal
block lights installed for the 60 Mains to "0" Butt
switch were left on.
This is a notice to provide safeguard requiring track
haulage equip. operators to use the block lights installed
along supply track haulage at the mine, to clear such
lights (turn off after use} in order to assure approaching
haulage equipment a clear road exists and also only l piece
of haulage equipment shall be operated in the same block
light except trailing locomotives that are an integral part
of a trip may be operated the same block light. (Joint
Stip. 2)

720

On November ·1, 1993, after discussions between Cumberland
and MSHA, Santee, under the direction of his supervisor, modified
the safeguard as follows:
Safeguard No . 3655478 is hereby modified to delete
the wording on the last 4 lines in the body of this
notice to provide safeguard beginning after the word
"and" which is the 8th word on line 9, and to be
replaced with the following wording to read as: haulage
equipment operating in the same block light, shall
maintain a safe distance which will allow them to
stop within the limits of visibility, but at no time
shall they be closer than 300 feet. Haulage equipment
operating in the same block light shall communicate, by
some means, to be assured the signal block light will
be turned off after the last haulage equipment exits
the last block. (l.d...J
Thus, the modified safeguard removed the prohibition of more
than one vehicle in the same block, and, substituted the
requirement that vehicles in the same block must maintain a
minimum distance of 300 feet. The modified safeguard also
required operators of equipment in the same block to communicate
(by hand signals) to ensure that the operator of the last vehicle ·
turns off the block light as he exits the block. 1
Cumberland transports material and miners in t~o different
varieties of battery powered mantrips called duckbil\J.s and
crickets. Generally speaking, mantrips are personnel carriers
with covered compartments on either end for passengers. Mantrips
are operated from a position between the two passenger
compartments. Duckbills are similar to mantrips except the cover
for one of the compartments is removed to enable supplies to be
transported in the open end. Crickets are small, slow-moving
personnel carriers that hold four persons. Duckbills are faster
than crickets, but travel only 5 to 8 miles per hour.

Inspector Santee and MSHA Supervisory Inspector
Robert Newhouse testified that Cumberland's haulage car operators
relied on verbal communication or hand signals. MSHA does not
require the haulage vehicles to be equipped with two-way radios.
(Tr. 74-75, 86, 112, 158-59).
1

721

On July 14, 1994, maintenance foreman Doug Conklin and
hourly mechanic Mark Zuspan were entering the mine in a duckbill
operated by Zuspan. Zuspan was an experienced operator. He
frequently used the haulage track, and he was familiar with the
signal block system. Zuspan and Conklin traveled in the duckbill
down the 57 Mains ·Haulage to where the 55 North haulage turns to
the left . The lA block (first block} on the 55 North haulage off
the 57 Mains is 1,200 feet long. There is a curvature in the
track entering the 55 North haulage that obscures visibility down
the full length of the track. Conklin and Zuspan testified that,
as they. approached the signal switch for the lA block in the
SS North haulage, they observed the lA block lights were
illuminated.
A motor attached to two rockdust tanks and a trailing . motor
were coming out of the SS North haulage and about to enter the
57 Mains. Conklin exited the duckbill to throw the track switch
so Zuspan could pull the duckbill past the SS North haulage.
This permitted the rockdust cars to turn right on the 57 Mains to
continue out of the mine. As the dustcars passed the duckbill,
Zuspan and the operator of the first motor signaled to each other
that they could "have" the others' block light. However, due to
a curvature in the track, the operator of the second motor could
not see Zuspan's signal to the first motor operator. As Zuspan
was moving his duckbill inby on the 57 Mains to clear the way for
the outby route of the dustcars, the second motor operator
apparently turned off the lA block light. Both Zuspan and
Conklin lost sight of the lA block because of Zuspan's
maneuvering of the duckbill and Conklin's switching of the track
to allow the duckbill to turn onto the 55 North haulage .
During the interim period when the second motor operator
turned off the signal lights and Conklin had switched the
57 Mains track back to the direction of the 55 North haulage, a?
inspection party in a cricket turned on the signal lights as it
entered the lA block in the North haulage 1200 feet from the
intersection with the 57 Mains. The inspection party consisted
of Inspector Santee, CUmberland's representative Mike Konosky,
and UMW representative David Chipps. After Conklin reentered the
duckbill, Zuspan entered the 55 North haulage under the mistaken
belief that the lights activated by the inspection party were
left on by the dustcar motorman.

722

As Zuspan came out of. the curve at the beginning of the
lA Block, he observed the lights from the inspection party's
cricket at the other end. The track was straight, visibility was
good, and the cricket was slow moving. Zuspan had plenty of time
and pulled into the 55 North switch and waited for the cricket to
pass. While Zuspan and Conklin were waiting, Conklin exited the
duckbill to check on a nearby belt drive.
The inspection party had also observed the duckbill from the
other end of the block. As they · traveled down the 1A Block,
Santee informed Konosky that he was issuing a citation for
violation ot the signal block safeguard. Santee testified that
the first conversation he had with Zuspan upon arriving at the
lA switch was about Zuspan's assumption that the block lights had
been left on by the motor crew.
(Tr. 99, 226). When Conklin
returned from the belt drive, Santee learned that Conklin was a
foreman who had accompanied Zuspan in the duckbill.
Consequently, Santee informed Konosky that the citation "just
became an unwarrantable failure.µ
(Tr. 238, Gov. Ex. 5, p.1718). Santee testified Conklin "confirmed" Zuspan's statement
concerning the block lights and the motor crew.
(Tr. 99).
As a result of Santee's observations and discussions with
Zuspan and Conklin, Santee issued 104(d) (2) Order No. 3672055
alleging the following safeguard violation:
The ML204 motor being operated by Mark Zuspan\ under the
supervision of Doug Conklin (Maint. Foreman) entered the
signal block lights off 57 Main East Supply truck haulage
onto 55 Face North signal track haulage between 1A junction
as such lights had been turned on by the operator of the
ML408 crickett which was traveling outby towards 57 Face
North area 57 Main East junction. The ML 204 motor entered
such signal block light without assuring that a clear road
exists and the Maint. [F]oreman is an acting agent of the
operator. There were 16 violations issued during the last
inspection period from 04-01-94 to 06-30-94 of 30 CFR
75.1403.
(G-1).

7 23

Further Findings and Conclusions
a. The Validity of the Safeguard
The threshold issue in this proceeding is whether Safeguard
No . 3655478, issued by Santee on October 25, 1993, as amended, is
valid. The Commission has noted that section 314(b) of the Act,
30 U.S.C. § 874(b), commits to the Secretary, through his MSHA
inspectors, broad discretion to issue safeguards, without
operator consultation, in orde'r "to guard against all hazards
attendant upon haulage and transport[ation] in coal mining . "
Southern Ohio Coal Company, 14 FMSHRC l, 8 (January 1992);
Jim Walter Resources. Inc., 7 FMSHRC 493, 496 (April 1985) .
In order to issue a notice to provide safeguards, an
inspector must: (l) determine that there exists at the mine an
actual transportation hazard not covered by a mandatory standard;
(2) determine that a safeguard is necessary to correct the
hazardous condition; and (3) specify the corrective measures that
the safeguard should require. 14 FMSHRC at 8 .
In considering Cumberland's obligations to maintain and use
its block light system, it is axiomatic that one who chooses to
act although there is no duty to act, must act prudently to avoid
exposing others to harm. Thus, although CUmberland was not
required to install its signal block system, having elected to do
so, CUmberland is resposible for maintaining th~ system and
ensuring that its personnel comply with its block light safety
procedures. Cumberland recognized this responsibility in its
September 27, 1993, safety message which reminded its personnel
that "[b]lock lights must be used by everyone as they travel the
haulage." (Ex. R-4) .
Santee's testimony that he observed a block light on when he
issued the subject safeguard on October 23, 1993, is
uncontradicted . Although the circumstances surrounding this
condition are unknown, this condition manifested a failure to
adhere to Cumberland's block light procedures . Thus, it was
within Santee's discretion to conclude that the failure to follow
cumberland's block light safety policy posed a transportation
hazard at the Cumberland Mine, and that a safeguard notice was
necessary to ensure compliance. As noted below, the safeguard,
as amended, . adequately set forth the corrective measures

724

required. Consequently, I conclude that Safeguard No. 3655478
was validly issued .
b. Fact of violation
The subject safeguard, as amended, established four things
that operators of haulage equipment must do. They are:
1.

Equipment operators are to use the signal block lights
installed along supply •track haulage at the mine.

2.

Equipment operators are to clear such lights (turn off
after use) in order to assure approaching haulage
equipment a clear road exists.

3.

Haulage equipment operating in the same block light,
shall maintain a safe distance which will allow them to
stop within the limits of visibility, but at no time
shall they be closer than 300 feet .

4.

Haulage equipment operating in the same block light
shall commu~icate, by some means, to be assured the
signal block light will be turned off after the last
haulage equipment leaves the light block.
(J-3)

In applying the safeguard requirements to the facts in this
case, it is necessary to rule on the credibility of Zuspan and
Conklin concerning their testimony that they mistakenly assumed
the dustcar motor operators had left the block lights on for
them. While self-serving exculpatory statements must be viewed
cautiously, such statements are entitled to greater weight if
they were made spontaneously to the on-site inspector, rather
than if the explanation was first presented at trial.
In this case, Santee's testimony is entirely consistent with
the testimony of Zuspan and Conklin concerning the exculpatory
statements they made to Santee when the 104(d) (2) Order was
issued on July 14, 1994. Moreover, although given the
opportunity at trial, Santee did not discredit the story related
to him by Zuspan and Conklin . In fact, Santee testified that,
although he did not recall seeing any motors in the lA block, he
had no reason to doubt Zuspan's story. (Tr. 135-36).
Accordingly, I conclude that Zuspan maneuvered the duckbill into

725

the 55 North haulage under the mistaken belief that the block
lights had be~n left on by the dustcar motorman.
Under this scenario, the first three requirements of the
safeguard were not violated in .that the block lights were used,
they were turned off by the rear motorman, and, there was no
operation of vehicles in the same block within 300 feet of each
other (in the same direction). However, the Secretary has
prevailed in establishing a violation of the safeguard's fourth
requirement. By Zuspan and Conklin's own admissions, there was a
failure of communication between them and the dustcar motormen to
assure t~at there was no misunderstanding concerning the status
of the block lights as Zuspan's duckbill entered the lA block of
the 55 North haulage. Consequently, the record supports the fact
of the violation of the safeguard in question.
c. Significant and Substantial

A violation is properly designated as S&S in nature if,
based on the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to [by
the violation] will result in an injury or an illness of a
reasonably serious nature. Cement Division. National Gypsum,
3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1
(January 1984) the Commission explained:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to [by the violation] will result in an
injury; and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious nature.
6 FMSHRC at 3-4.

See also Austin pqwer Co. y. Secretax:y, 861 F.2d 99, 104-05
(5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria) .

726

noted above, it is crucial that resolution of whether a
particular viol~tion is S&S must be based "on the particular
facts surrounding the violation .... " Texasgulf. Inc., 10 FMSHRC
498, 501 (April 1988). With the exception of respirable dust
violations that are presumed to be S&S because of the cumulative
effects of respirable dust inhalation, issues concerning S&S and
unwarrantable failure must be decided on a case-by-case basis.
S.e.e Consolidation Coal Co., 8 FMS~C 890, 898 (June 1986), aff'd
824 F.2d 1071 (D.C. Cir. 1987). In fact, the Commission has
recently rejected the concept of relying on rebuttable
presumptions ·to resolve questions of unwarrantable failure.
Peabody Coal Company, 18 FMSHRC ~i slip op . at 5 (April 19,
As

1996).

Thus, although violations may appear to be S&S and/or
unwarrantable, an examination of the particular facts surrounding
the violation may preclude such characterizations. For example,
although mining a pillar in violation of a roof control plan
would ordinarily manifest an unwarrantable failure, the violation
is not unwarrantable where the facts of the particular violation
support the operator's contention that contact with the pillar by
the continuous miner operator was inadvertent . s & H Mining.
ln.c....., 18 FMSHRC SO (January 1996) (ALJ).
In the instant matter, this violation of the ~afeguard
did not occur because of a conscious, reckless, or ~ven careless,
disregard of the operational block lights. Such conduct
surrounding a violation would justify an S&S designation,
particularly when viewed in the context of continued normal
mining operations. Halfway Incox:porated, 4 FMSHRC 8, 12-13
(January 1986).
Here, this violation occurred because of Zuspan's mistaken
belief that the block light was left on intentionally by the
motorman who had just exited the block. Under such
circumstances, it was highly unlikely that a haulage vehicle
would be trailing closely behind the dustcars, and pose a hazard
to occupants in Zuspan's duckbill. In other words, Zuspan was
provided with cover by entering the SS North haulage track
immediately after the dustcars exited the track.

In the final analysis, the Secretary has the burden of
proving that a violation is S&S. Union Oil of Cal., 11 FMSHRC
289, 298-99 (March 1989). Give·n the 1200 foot length of straight
track in the lA block immediat~ly after the initial curve off the
55 Mains, the good visibility, the slow speed of haulage
vehicles, and the protection from other vehicles provided by the
exiting dustcars, the Secretary has failed to satisfy the third
element of Mathies that there was a reasonable liklihood that the
hazard contributed to by this, violation would result in an
accident causing injury. Accordingly, the S&S designation shall
be deleted.
d. Unwarrantable Failure
Unwarrantable failure is 11 aggravated conduct, constituting
more than ordinary negligence, by a mine operator in relation to
a violation of the Act." Emery Mining Cm:;poration, 9 FMSHRC 1997
(December 1987); Xoughiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987); Secretary of Labor y. Rushton Mining Company,
10 FMSHRC 249 (March 1988). In distinguishing aggravated conduct
from ordinary negligence, in Youghiogheny & Ohio the Commission
stated:
We stated that whereas [ordinary] negligence is conduct
that is 'inadvertent,' 'thoughtless,' or 'inattentive,'
unwarrantable conduct is conduct that is described as
'not justifiable' or 'inexcusable.' Only 'by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more than ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the Act's enforcement scheme.
9 FMSHRC at 2010.
Under the Act, an operator is liable for its employees'
violations of the Act and the mandatory standards. Western
Fuels-Utah. Inc., 10 FMSHRC 256, 260-61 (March 1988), aff'd on
other grounds, 870 F.2d 711 (D.C. Cir. 1989); Asarco. Inc.,
8 FMSHRC 1632, 1634-36 (November 1986), aff'd, 868 F.2d 1195
(10th Cir. 1989}; Southern Ohio Coal Co. ("SOCCO"}, 4 FMSHRC
1459, 1462 (August 1982). Once liability is determined, the

728

negligent actions of an operator's "agent" 3 are imputable to the
operator for the purpose of · assessing civil penalties. Mettiki,
13 FMSHRC at 772; E..&.£, 13 FMSHRC at 194-98; socco, 4 FMSHRC at
1463-64. However, "[t]he conduct of a rank-and-file miner is not
imputable to the operator in determining negligence for penalty
purposes." Fort Scott Fertilizer-Culler. Inc., 17 FMSHRC 1112,
1116 (July 1995} (citing SOCCO, 4 FMSHRC at 1464). "Rather, the
operator's supervision, training, and disciplining of [rank-andfile] miners is relevant." .I.d.... {citing socco, 4 FMSHRC at 1464;
Western Fuels, 10 FMSHRC at 261) . .
The evidence reflects Santee initially was inclined to issue
a 104(a) citation that did not charge CUmberland with an
unwarrantable failure. Significantly, Santee did not view
Zuspan's conduct as aggravated conduct.
(Tr. 134-35). It was
only after Santee learned that Foreman Conklin accompanied Zuspan
in the duckbill that Santee charged the violation was
unwarrantable.
(Tr. 138-40). As noted above, Zuspan's
negligence, as a rank-and-file employee, normally cannot not be
imputed to Cumberland even if Zuspan's conduct was aggravated
conduct. Only if Conklin engaged in aggravated conduct, or, if
Conklin failed to adequately supervise Zuspan, can the
unwarrantable failure charge be affirmed.
In the first instance, the Secretary has failed to persuade
me that either Zuspan or Conklin's conduct manifested more than
ordinary negligence. As I noted at trial, it is difficult to
imagine what would motivate ~ Zuspan and Conklin \o recklessly
or consciously turn on to a single track with block lights
reflecting that a vehicle was proceeding down the track in the
opposite direction.
(B.e..e. Tr. 206-09) . 4 The futility of two
vehicles heading in opposite directions on a single haulage track

Section 3(e} of the Mine Act defines "agent" as "any
person charged with responsibility for the operation of all or a
part of a ... mine or the supervision of the miners in a ... mine
" 30 u.s.c. § 802(e).
3

• The Secretary conceded the only reason Zuspan and Conklin
would enter the block with the light on was if they believed the
light was left on for them and no other traffic was coming in the
opposite direction.
(Tr. 208-09).

729

supports Cumberland's assertion that this incident occurred
because of a misunderstanding between Zuspan and Conklin, and the
dustcar motormen . This misunderstanding, while unfortunate,
cannot be characterized as aggravated conduct. In addition,
Zuspan's failure to wait a reasonable period of time before
entering the block is not indicative of high negligence given his
mistaken belief that the block lights had been left on for him.
Having concluded that there was a simple miscommunication,
the record does not reflect a +ack of supervision or training by
Conklin with respect to his oversight of Zuspan. Santee also
agreed that Zuspan's conduct was not attributable to a lack of
training. · (Tr. 138). Although it is true that a foreman is held
to a higher standard of care given his management role, a
violation is not unwarrantable per se simply because it occurred
in the presence of supervisory personnel. ~ S&H Mining. Inc.,
17 FMSHRC 1918, 1923 (November 1995), citing Youghiogheny & Ohio,
9 FMSHRC at 2011. Accordingly, Order No. 3672055 shall be
modified to a 104(a} citation to reflect the cited violation of
the safeguard was not attributable to Cumberland's unwarrantable
failure.
e. Ciyil Penalty
Section llO(i) of the Mine Act requires the consideration of
six penalty criteria in assessing the appropriate civil penalty.
30 U.S.C. § 820(i}; see generally Sellersburg Stone Co .. y.
FMSHRC, 736 F.2d 1147, 1150-51 (7th Cir. 1984). · Significant
considerations among these statutory penalty criteria are the
gravity of the violation and the degree of the operator's
negligence .
Having determined that it was unlikely, given the
circumstances of this case, that the hazard contributed to by the
instant safeguard violation would result in an injury related
accident, the gravity of the violation is most appropriately
characterized as non- serious. Although Order No. 3672055
specified the degree of Cumberland's negligence as "high," as
discussed above neither Zuspan nor Conklin's conduct was
indicative of more than ordinary, moderate negligence, and there
is no basis for imputation of zuspan's negligence to cumberland.

730

The remaining criteria in section llO(i) are not
particularly meaningful in assessing the appropriate civil
penalty in this matter. The prior notice provided by MSHA's
issuance of 16 citations citing alleged safeguard violations in
the two year period preceding the issuance of the subject
citation is not material because this violation resulted from a
misunderstanding rather than a disregard of the block light
procedures.
Given the reduction in gravity from serious to non-serious,
and the reduction in the degree of negligence from high to no
more than moderate, consistent with the llO{i) penalty criteria,
I am assessing a civil penalty of $100.00 for modified 104(a)
Citation No. 3672055.
ORDER
Accordingly, 104(d) (2) Order No. 3672055 IS MODIFIED to a
l04(a) citation to reflect that the cited violation was not
attributable to Cypress Cumberland Resources Corporation's
unwarrantable failure. In addition, l04(a) Citation No. 3672055
IS FURTHER MODIFIED to delete the significant and substantial
designation.
IT IS ORDERED that Cypress Cumberland Resources Corporation
pay a civil penalty of $100.00 in satisfaction of Citation
No. 3672055. Upon timely receipt of payment, this do.,c ket
.
proceeding IS DISMISSED.
•
\

Administrative Law Judge
Distribution:
Joseph T. Crawford, Esq . , Office of the Solicitor,
U.S. Department of Labor, 3535 Market Street, Room 14480,
Philadelphia, PA 19104 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre,
301 Grant Street, 20th Floor, Pittsburgh, PA 15219-1410
(Certified Mail)
/mca
731

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

MAY 7 1996.
ROSS S. STEWART,
Complainant

DISCRIMINATION PROCEEDING

...

v.

Docket No. WEST 95-27-D
Foidel creek Mine

TWENTYMILE COAL COMPANY,
Respondent

DECISION

Appearances:

Brian L. Lewis, Esq., Denver, Colorado, for
Complainant;
R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania for Respondent.

.Before:

Judge Manning .

This case is before me on a complaint of discrimination
brought by Ross s. Stewart against 1'wentymile Coal Company
("Twentymile") under section 105(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. Stewart did not
establish that his discharge by Twentymile was motivated by his
protected activity. Accordingly, I find ~hat Mr. Stewart was not
discriminated against by Twentymile in violation of the Mine Act.
Mr. Stewart 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 105(c).
Mr. Stewart then instituted this proceeding before the Commission
pursuant to section lOS(c) (3), 30 u.s.c. § 815(c) (3). A hearing
was held in Steamboat Springs, Colorado. The parties presented
testimony and documentary evidence, and filed post-hearing
briefs.
FINDINGS OF FACT

Mr. Stewart was employed by Twentymile at the Foidel Creek
Mine for about ten years. During that period, he held a number
of positions with Twentymile and was a shuttle car operator at
the time of h~s discharge. The Foidel creek Mine is an underground coal mine in Routt County, Colorado, and employs about 280
people.
732

on the day shift of May 16, 1994, Mr. Stewart was operating
a shuttle car in a continuous miner section. The section was
developing entries in preparation for longwall mining. Two
shuttle cars were transporting coal from the continuous mining
machine to the belt. The shuttle cars dumped the coal at the
feeder breaker for the belt. In a typical shift, Mr. Stewart
would make about 50 trips from the continuous miner to the feeder
breaker. A shuttle car is a large piece of mobile mining equipment. The operator sits in a small compartment and faces the
opposite side of the shuttle car . . He can see to the front and
back of the shuttle car through openings in the operator's
compartment.
Allen Meckley was Mr. Stewart's supervisor from late September 1993 through May 16, 1994. on May 16 Mr. Meckley was in the
vicinity of the feeder breaker when he observed Mr . Stewart dump
several loads of coal. On one trip Mr. Meckley noticed that the
conveyor on the shuttle car continued to operate after all of the
coal was dumped.
(Tr. 41~-) . Because Mr. ·Stewart did not back
away from the feeder breaker after the coal was dumped, Mr. Meckley was concerned that Mr. Stewart was asleep.
(Tr. 431, 499}.
Meckley approached the shuttle car and stood to the side of the
operator's compartment. Mr. Stewart did not react to his presence.
(Tr. 500). Mr. Stewart's head was down, his hands were
in his lap, and Mr. Meckley believed that his eyes were closed.
(Tr. 30, 154-55, 430, 500-01). The conveyor of the shuttle car
was still running.
(Tr. 27, 154). Meckley tapped Stewart on the
shoulder. When Stewart looked up, Meckley said, "Ross, are you
sick? 11
(Tr. 28, 419,· 501). Mr. Stewart replied, 11 No." Id.
Meckley told Stewart to park his shuttle car and get his lunch.
They then proceeded out of the mine. On the way out Meckley
said, "I think you know why we are going outside, I told you the
next time I caught you sleeping we were going out."
(Tr. 32-33,
157, 435, 501-02). Mr. Stewart replied, "Yeh, I know" or "If
that's what you want to call it." {Tr. 33, 435).
At the surface, Mr. Stewart was advised that he was suspended pending an investigation as to the appropriate discipline.
Mine management conducted an investigation into the matter, met
with Mr. Stewart to obtain his views, and reached the conclusion
that he should be terminated for sleeping .on the job.
In reaching this conclusion, management took into consideration Mr. Meckley's belief that he caught Mr. Stewart sleeping underground in
October 1993 and in December 1993. Mr. Stewart admits that he
was drowsy when Mr. Meckley observed him in December 1993, but
denies that he was asleep on May 16, 1994.
{Tr. 143-44).
Mr. Stewart maintains that he was terminated for engaging in
activities that are protected under section 105(c) (1) of the Mine
Act. 30 U.S.C. § 815(c) (1).
First, he contends that he complained to management that Mr. Meckl"ey and other members of the
crew reported to work with the smell of alcohol on their breath.
733

Second, he argues that he complained about the safety of the
wheel rims on his shuttle car. Third, he maintains that he
testified at a hearing before former Administrative Law Judge
John A. Morris in a discrimination proceeding brought by Fred
Peters against Twentymile. Mr •. Stewart contends that these
activities were protected under the Mine Act and that he was
terminated, at least in part, because of these activities.

SUMMARY OF THE LAW
Section lOS(c)(l) 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, tb 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 case 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 by 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 diicriminatory 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).
Examples of circumstantial evidence that tend to show discriminatory intent on the part of the mine operator include:
(1) knowledge of the protected activityi (2) hostility or animus towards
the protected activity; (3) coincidence in time between the protected acti~ity and the adverse action; and (4) disparate treatment of the complainant. Chacon, 3 FMSHRC at 2510.
734

DISCUSSION WITH FURTHER FINDINGS OF FACT
AND

CONCLUSIONS OF LAW

There is no doubt that Mr. Stewart had a statutory right to
voice his concerns about the safety of his workplace without fear
of retribution by management. I find that Mr. Stewart's complaints about alcohol use and the safety of the wheel rims of the
shuttle car, and his testimony at the Peters hearing were protected under the Mine Act. The issue.is whether his discharge was
motivated in any part by this protected activity.
1.

Testimony at the Peters Hearing

Mr. Stewart was subpoenaed to testify at a hearing before
former Administrative Law Judge John A. Morris in Fred L. Peters
v. Twentymile Coal Company. Mr. Stewart contends that Twentymile's decision to terminate him was motivated, at least in part,
by the fact that he testified in this proceeding. The hearing
was held on December 8, 1992. The adverse action in that case
was a letter of discipline that was placed in Mr. Peters' file.
In his decision, Judge Morris dismissed the discrimination complaint because he determined that the adverse action was not
motivated in any part by Mr. Peters' protected activity.
15
FMSHRC 704, 734 (April 1993). Stewart believes that his participation in the hearing angered mine management. He points to the
fact that other employees were allowed to carry over vacation
time from one year to the next and that he lost vacation days
because he did not use them by a certain date.
(Tr. 60-63).
He
attributes this disparate treatment to the fact that he testified
at the Peters hearing.
{Tr. 61).
I find that Mr. Stewart's termination was not motivated in
any part by the fact that he testified at the Peters hearing.
First, it is worth noting that Mr. Peters, the complainant in
that case, is still employed by Twentymile. It is highly unlikely that Twentymile would be motivated, in whole or in part, to
terminate an employee because he testified under subpoena in a
Commission proceeding while retaining the employee who brought
the case in the first place. Other miners were subpoenaed to
testify in that case and did not suffer any adverse consequences.
(Tr. 105-07). It does not appear from the judge's decision that
Mr. Stewart's testimony was particularly important in that case.
Mr. Stewart lost his vacation days well before the Peters
hearing. The record demonstrates that a number of employees
including Mr. Stewart were allowed to carry over 1991 vacation
leave into early 1992. He lost the vacation days that he carried

735

over because he did not use them by March 31, 1992. 1 The Peters
hearing was held on December s, 1992. Thus, he did not lose
vacation days in retaliation for his testimony.
Finally, I credit the testimony of the applicable management
witnesses that they did not consider the fact that he testified
in the Peters case when they determined that Stewart should be
terminated. Mr. Meckley was not involved in the Peters case and
was an hourly employee at the time of the hearing. Ronald K.
Spangler, Twentymile's manager ·of human resources, was a key
player in the decision to terminate Mr. Stewart. · He was not
employed by Twentymile at the time of the Peters hearing.
Mr. Spangler testified that, during his investigation of the
Stewart matter, the Peters hearing was only mentioned once. He
was told by Daryl Firestone that Mr. Stewart was under the mistaken belief that Twentymile management was mad at him for testifying at the Peters hearing.
(Tr. 298, 350-51). Mr. Firestone
was Peters' supervisor who issued the disciplinary letter that
was the subject of that case. Mr. Spangler further testifi~d
that Firestone told him that Stewart's testimony was "more in
favor of the Company." Id. Mr. Firestone testified that he was
present when Stewart testified at the Peters hearing and believed
that his testimony supported the company.
(Tr. 634, 636). I
conclude that Mr. Spangler did not consider Stewart's participation at the Peters hearing when he recommended to the . general
manager that Stewart be terminated. William Ivy, general manager
at Twentymile, made the ultimate decision to terminate
Mr. Stewart and he testified that Stewart's participation in the
Peters hearing was not a factor in his decision to terminate
Mr . Stewart.
(Tr. 595).
2.

Split Rim Complaint

In May 1991, Mr. Stewart refused to operate his shuttle car
because he believed it to be unsafe.
(Tr. 97-98; Ex. R-4) . Specifically, he complained about the split rim wheel assembly on
the shuttle car. He contends that the rim exploded and a nearby
miner could have been injured.
(Tr. 54-55). Each wheel rim on
his shuttle car consisted of two pieces that were designed to be
held together by the air pressure in the tire. Mr. Stewart believed that the rims were faulty and created a safety hazard.
There is no question that this complaint was protected under the
Mine Act .
Other employees who were allowed to carry over vacation
days from 1991 to 1992 d i d not lose any of this leave because
they used it before the deadline of March 31, 1992. Mr . Stewart
lost 10 days of vacation because he failed to use them in time,
rather than in retaliation for protected activity under the Mine
Act .
736

I find, however, that Mr. Stewart's termination was not
motivated in any part by his complaint. The split rim incident
was remote in time from the events in May 1994 that resulted in
his termination. Mr. Meckley was not his supervisor in May 1991,
but was an hourly employee on his crew. He has no recollection
of the complaint.
(Tr. 468-69). Mr. Spangler did not work for
Twentymile at the time of the split rim complaint and did not
learn about it until after Mr. Stewart was terminated.
(Tr.
323). Mr. Stewart did not raise this issue with Mr. Spangler
during their meeting of June 2, 1994, when he was given the
opportunity to present his views.
(Ex. R-18). Mr. Ivy, the
general manager, testified that he remembers hearing that about
problems with· the rims but he does not recall any of the details.
(Tr. 602).
When Mr. Stewart complained about the safety of the wheel
rims, his supervisor, Mr. Firestone, looked into the matter.
(Tr. 637-38). Mr. Stewart's complaint was that the locking ring
tab was not connected on the wheel rim.
(Tr. 88, 539, 637-38,
656). Mr. Firestone discussed the matter with the shift foreman.
ML_
Joseph F. Hampton, a maintenance supervisor, and William G.
Kendall, the manager of maintenance for Twentymile, called the
company that supplied tires and rims for the mine.
(Tr. 540,
656-57). The supplier replied that the locking tabs are necessary only when the tire is being inf lated and that they were not
necessary after that.
(Tr. 540, 659-62). Mr. Kendall met with a
representative of the rim supplier to discuss the split rim issue. He circulated a memorandum on May 24, 1991, explaining why
the locking tabs are not necessary after the tire is inflated.
(Tr. 658-59; Ex. R-4). Mr. Hampton also discussed the matter
with Stewart.
(Tr. 541-42).
'
Mr. Stewart relies heavily on the fact that Twentymile had
to scrap the wheel rims on his shuttle car as a result of his
complaint, at a cost of up to $24,000.00, 2 and that the shuttle
car was shut down for several hours. The record reveals that the
rims had to be replaced because Frank Pavlisick, a maintenance
foreman, welded the two parts of the wheel rims together without
consulting his supervisors.
(Tr. 662-63). The welding was unsafe and damaged the wheel rims. Id.
It is apparent that mine
management was concerned about the welding rather than Mr. Stewart's safety complaint.
(Tr. 663). There is no credible evidence that the company held Mr. Stewart accountable for this
matter.
In addition, I cannot draw a reasonable inference of
discriminatory intent. Management handled his complaint with the
same degree of concern that it does all safety complaints. The
record makes it clear that employees frequently shut down equip2

It is not clear from the record how many of the rims had
to be replaced. For the purposes of Mr. Stewart's argument, I
assume that all four were replaced.
737

ment for safety reasons and that employees are not disciplined
for such conduct. Mr. Stewart did not have a history of shutting
down equipment for safety reasons. (Tr. 98). He was not disciplined at the time of these events and I find that his termination
was not motivated, directly or indirectly, by this safety
complaint.
3.

Alcohol Use Complaints

Mr. Stewart complained to management that miners were coming
to work with the smell of alcohol on their breath. His concern
was that the miners' judgment could be impaired and that mine
safety was affected. Mr. Stewart testified that about four or
five miners would come to work with the smell of alcohol on their
breath; (Tr. 42-43). One of these miners was Allen Meckley, who
was a bolter on his crew at the time. Stewart contends that when
Meckley became his supervisor in September 1993, Meckley set out
to get him fired in retaliation for his protected activity. He
believes that Meckley harbored a grudge against him because of
these complaints.
All of the evidence relied upon by Mr. Stewart is circumstantial. Mr. Stewart maintains that Mr. Meckley was overtly
hostile from the moment he became his supervisor. He argues that
the issue of whether Twentyrnile had cause to discharge him "boils
down to a 'swearing contest' between Mr. Stewart and Mr. Meckley." (Br. at 5). Stewart contends that because Meckley had an
ulterior motive for alleging that he was sleeping, Meckley's
testimony should not be credited. Mr. Stewart points to the fact
that Meckley admitted that Stewart did not get along well with
his fellow crew members.
(Br. 7; Tr. 475). Stewart contends
that the crew had a grudge against him because he was a "snitch".
He points to the testimony of Charles L. Moss to support his
position. Moss testified that when he was the crew's foreman,
one of the crew members complained to him that Stewart was a
snitch.
(Tr. 180). In addition, Stewart testified that Hansel
Burum, a former member of the crew, told him that he was a
snitch.
(Tr. 66). Finally, Stewart heard rumors in Craig,
Colorado, where he lived, that "Allen [Meckley] finally got me."
(Tr. 7 3) .
Mr. Stewart discussed his concern about alcohol use with
several of the mine's supervisors. When Mr. Moss was his supervisor, he complained that members of the crew had alcohol on
their breath . (Tr. 182-83). On at least one occasion, Mr. Moss
checked it out and could not detect any alcohol on the individual's breath.
(Tr. 190-91). Around February 1993, Stewart complained to Mr. Ivy about alcohol abuse at the mine.
(Tr. 47-49,
112, 389, 595-99).
He did not name any particular individuals.
Mr. Ivy discussed the issue in a general manner at a crew meetting. Apparently several members of the crew made snide comments
to Stewart about this. Mr. Meckley, who was a bolter at the

738

time, did not make any comments.
(Tr. 118). Stewart also
testified that he complained to Meckley, when Meckley was his
supervisor.
{Tr. 42-47). Stewart said that Meckley did not
have any particular response. Meckley could not recall any
such discussion.
(Tr. 469).
There is no direct evidence linking Mr. Stewart's termination with his complaints about alcohol use. Mr. Stewart maintains that there is "ample circumstantial indicia of discriminatory intent ••• . "
(Reply Br. at 4). I used a two-step process
to analyze this issue. First, I considered the guidelines set
forth by the Commission in Chacon, 3 FMSHRC at 2510, to determine
whether I could draw a reasonable inference of discriminatory
intent.
Second, I examined the facts surrounding Mr. Stewart's
termination to determine whether his termination appeared to be
internally consistent with Twentyrnile's position.
The first factor set forth in Chacon is whether the company
had knowledge of the protected activity. I find that there is
sufficient circumstantial evidence to establish that Meckley had
knowledge of Mr. Stewart's complaints about alcohol use, despite
the fact that he could not recall such complaints at the hearing.
Mr. Spangler testified that he did not know that Mr. Stewart had
complained about alcohol use at the time he recommended that
Mr. Stewart be terminated for sleeping on the job.
(Tr. 323).
He was not employed at Twentyrnile at the time of the complaints.
Mr. Hampton could not recall that Mr. Stewart complained about
alcohol use.
(Tr. 554). Mr. Ivy remembers meeting with Stewart
at the end of a shift in February 1993, but could not recall the
contents of the discussion.
(Tr. 595-96). Mr. Ivy stated that
they may have discussed alcohol and he may have raised it at a
crew meeting.
(Tr . 596-97). Accordingly, I find that mine management had knowledge of the protected activity.
The next factor is whether there was hostility or animus
towards the protected activity.
I find that circumstantial evidence does not establish such hostility or animus. Management
witnesses testified that they would not tolerate miners coming to
work under the influence of alcohol or drugs.
(Tr. 182, 595-96).
I credit this testimony.
There is no evidence, other than the
testimony of Mr. Stewart, that anyone came to work with alcohol
on his breath or was under the influence of alcohol at the mine. 3
Mr. Meckley denied that he ever came to work with alcohol on his
breath and does not remember the issue being raised.
(Tr . 46970).
Mr. Moss testified that when he was the crew's supervisor,

3

Mr. Peters, however, had been in alcohol abuse counseling
and Mr. Fires~one smelled alcohol on his breath on one occasion.
(Tr. 639-40; 15 FMSHRC at 721).

739

Meckley never came to work with alcohol on his breath.
(Tr .
182).
Some of Stewart's fellow crew members mocked him about his
complaints in 1993 but I cannot draw an inference that this was a
factor in his termination. Mr •. Stewart relies on the fact that
he did not get along with the other members of the crew to establish that there was hostility towards his protected activity. · I
find that the animus directed towards Mr. Stewart by the crew and
his immediate supervisors was the result of the fact that they
believed that he did not pull his weight on the crew.
(Tr. 179181, 183-84, 187-89, 193, 195~6, 207-08, 211-12, 322-23, 465,
475-76, 488-89, 544-46, 554, 641, 647).
I cannot ascertain
whether or not Mr. Stewart was a hard worker, but the evidence
shows that he was perceived as someone who was reluctant to help
others on the crew and the crew sometimes gave him a hard time as
a result.
Id.
The third Chacon factor is the coincidence in time between
the protected activity and the adverse action.
Mr. Stewart's
complaints about alcohol use occurred well before his termination.
He was very vague about when he made these complaints, but
i t is clear that the complaint to the general manager was made
around February 1993, about 15 months before his discharge.
Mr. Meckley was his supervisor for about eight of these months.
While i t is certainly possible for a supervisor to hold a grudge
for 15 months and take action in retaliation in the manner described by Mr. Stewart, I cannot make such an inference in this
case.
The linkage is simply too tenuous to reach such a
conclusion.
The final factor is whether there was disparate treatment of
the complainant. This factor is difficult to analyze because
there is no evidence that other employees complained that miners
were coming to work with the smell of alcohol on their breath.
As stated above, however, I credit the testimony of management
witnesses that the company would not tolerate employees coming to
work under the influence of alcohol.
In addition, other employees who were caught sleeping at work were terminated unless management determined that there were mitigating circumstances.
One
employee was discharged for sleeping underground.
(Tr. 395-96).
Two other employees were caught sleeping in a truck on the surface and were given a two-week suspension, lost all bonus pay,
and were placed on probation for a year . . (Tr. 224, 393).
Mr. Spangler determined that they should not be terminated because it was a first offense, they were not operating equipment
at the time, their supervisor was against termination, and they
cooperated during Twentymile's investigation of the incident.
(Tr. 391-94).
I credit Mr. Spangler's testimony describing the
reasons . why Mr. Stewart was terminated and these other two miners
were not.
I find that Mr. Stewart failed to establish disparate
treatment . . I cannot draw a reasonable inference that he was

740

treated differently because of his safety complaints.•
Twentymile's stated reason for terminating Mr. Stewart is
consistent with the evidence. The testimony about the events of
May 16, 1994, differ in some of the details. Stewart testified
that Meckley approached him from the left and tapped him on his
left shoulder, while Meckley testified that he observed Stewart
from the right side and tapped his right shoulder. {Tr. 423-26,
693). Stewart testified that Meckley could not have determined
that his eyes were closed or that he was sleeping because of the
design of the cab on the shuttle car'. {Tr. 22) He further
stated that Meckley's testimony that he tapped Stewart on the
right shoulder is not credible because the right side of the
shuttle car was against the coal feeder. {Tr. 693-94). Meckley
testified that there was enough space for him to stand to the
right of the cab. {Tr. 422-24; Ex. R-39). Stewart testified
that his eyes were open and that he kept the conveyor on his
shuttle car running to make sure that all of the coal was discharged onto the feeder breaker. {Tr. 29-31). He testified that
he had on his ear plugs and did not see or hear Meckley until he
tapped him on his shoulder. Id. He stated that he immediately
turned to Meckley and asked him what he wanted. Id.
These discrepancies are not as significant as Mr. Stewart
believes and do not provide a basis for discrediting Meckley's
testimony. I find that Mr. Meckl~y had an honest, good faith
belief that Mr. Stewart was asleep on May 16, 1996. I also find
that Meckley believed that Stewart was asleep in his shuttle car
at the feeder in October 1993. (Tr. 445-47). Meckley verbally
warned him not to sleep underground. Id. Meckley also believed
that Stewart was asleep on December 21, 1993. In that incident,
the operator of the continuous miner and Meckley signaled Stewart
to tram his shuttle car forward to be loaded with coal. (Tr. 44849). Stewart did not respond to the signal. Meckley approached
Stewart and said, "Ross, Ross, you need to. get a load." (Tr.
449).

Mr. Spangler had worked at Twentymile for about six weeks
when Stewart was suspended on May 16. As the human resources
manager, he was responsible for investigating the incident. He
performed a thorough, independent and professional investigation
4

Mr. Stewart also contends that there were other instances
where he was mistreated because of his safety complaints. He
states that he was temporarily transferred to another crew, temporarily removed from his position as shuttle car operator, and
lost some vacation leave because of his protected activity. He
did not lose any pay or benefits because of these transfers.
Based on the record, I find that the temporary reassignments and
loss of vacation time were unrelated to any of his protected
activities.
741

into the matter. I find his testimony to be particularly persuasive and credible. He made several attempts to get Stewart's
position on the incident. Mr. Spangler believes that Stewart was
uncooperative and evasive during the investigation. As discussed
above, Spangler knew very little about any of Stewart's protected
activities and knew nothing about his complaints concerning the
smell of alcohol.
I credit his testimony that Stewart's protected activities were not a factor he considered in recommending
that he be terminated. I believe that if Meckley had set Stewart
up in retaliation for his safety complaints, it is likely that
Spangler would have uncovered it.
Mr . Stewart contends that Twentymile's hostility toward him
can be inferred because of its "irregular handling of [his] termination."
(Br. at 9). He bases this argument on the fact that
Mr. Meckley's notes regarding the sleeping incidents were not
kept in Stewart's personnel file and the company failed to follow
its own internal disciplinary procedures. Twentymile's disciplinary system is rather informal and subjective. It has a set of
procedures known as the Green Answer Book, that it follows when
dealing with personnel issues.
(Ex. R-28).
I find that Twentymile generally followed its procedures and Mr. Spangler gave
Mr . Stewart an opportunity to present any mitigating factors.
The Mine Act does not mandate any particular type of disciplinary
system. I do not have the authority to determine whether
Mr. Stewart's discharge was fair or reasonable. The "Commission
does not sit as a super 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. Stewart's discharge did not violate
section 105(c) of the Mine Act .
I find that Mr. Stewart engaged
in protected activity but that his termination was not motivated
in any part by his protected activity.
I also find that, even if
his protected activity were a factor, he would have been terminated in any event for his unprotected activity alone.
ORDER

Accordingly, the complaint filed
Twentymile Coal Company under se
·
DISMISSED.

Richard w. Manning
Administrative Law Judge
742

Distribution:
Brian L. Lewis, Esq., 10200 E. Girard Avenue, No. B-233, Denver,
Colorado 80231-5508 (Certified Mail)
R. Henry Moore, Esq., BUCHANAN INGERSOLL, One Oxford Tower, 20th
Floor, 301 Grant Street, Pittsburgh, PA 15219-1410 (Certified
Mail)

RWM

\

743

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

.MAY 1 0 1996.
MAJOR TONY THOMPSON,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. KENT 94-1191-D
PIKE CD 94-13

AERO ENERGY, INCORPORATED,
Respondent

Mine No. 1
DECISION

Appearances:

Herbert Deskins , Jr., Greg Bentley, and Robert
Wright, Esqs., Pikeville, Kentucky, for the
Complainant;
Michael Heenan, Esq.; William I . Althen, Esq . ,
Smith, Heenan, and Althen, Washington, D.C.,
for the Respondent.

Before:

Judge Weisberger
Statement of the Case

This case is before me based upon a Complaint filed by Major
Tony Thompson alleging that he was discriminated against by Aero
Energy Incorporated (Aero) in violation of Section 105 of the
Federal Mine Safety and Health Act of 1977 (The Act) . Pursuant
to notice, the case was heard in Louisa, Kentucky on January 29
and 30, 1996. 1

Initially the case was scheduled for hearing on
December 20, 1994. Based upon the parties' agreement, an
order was issued on January 3, 1995, continuing the hearing due
to a pending parallel proceeding in the Pike Circuit Court in
Kentucky. On May 4, 1995, an order was issued granting
Complainant's Motion to Continue and Staying Proceedings for
60 Days. On October 6, 1995, an order was issued lifting the
1

744

Findings of Fact and Discussion
I.

Complainant's Case
A.

Complainant's Work History at Aero

Aero operates the Aero Energy Mine No. 1, an underground
coal mine, which it had acquired . in March 1989. In March 1989,
Major Tony Thompson was hired as mine superintendent by Rex
Fought, Aero's President, for whom he had previously worked.
Fought made -Thompson responsible for the overall operation of the
mine. Once the mine became operational, production increased,
production per man hour increased, and miners were given bonuses
based on increased production usually three to four times a week.
Thompson also received production bonuses through the end of
1993, and received a Christmas bonus in 1993. He received
increases in salary during the term of his employment with Aero.
B.

Complainant's Activities and Aero's Responses

According to Thompson, in August 1989, he reported to Fought
a methane reading of between four and six percent. Fought told
him to "be sure that I don't put it in the book because it was
over two percentu (Tr. 30). Thompson indicated that in September
1995, Fought was very upset at a withdrawal order ~ssued by an
MSHA inspector who had found methane.
On November 3, 1993, Thompson indicated that he learned that
a methane reading of seven to nine percent had been found in the
old works of the mine, which was not an active section. Thompson
said that he notified Fought who told him to be sure not to
report it. According to Thompson, on November 4 : he was inf~rmed
by a belt attendant, Harold Baisden, that he had overheard the .

Footnot~

1 cont'd.

stay, and scheduling the case for hearing on November 13, 1995.
On October 23, 1995, an order of continuance was issued based
upon Respondent's request that was not opposed by Complainant,
and the case was rescheduled for hearing on January 29.

745

fireboss, Bob Boyd, report a methane reading of between seven to
nine percent in the old works. Thompson then went underground,
and testing by him indicated a methane reading of one and a half
percent. Thompson then reported to Fought and told him that the
methane reading should be reported in the preshift book, and
Fought told him not to report it .
On November 5, Thompson talked to MSHA inspector Arlie Webb.
On November 8, 1993, the site was inspected by MSHA inspectors
but no citations were issued for any methane accumulations.
On November 9, 1993, five MSHA inspectors inspected the site
to check for methane. The inspectors reported that they had
received a complaint about methane in the old works. Thompson
testified that at approximately 12:30 p.m., he had a conversation
with Fought, and told him that he thought that the inspectors
were present because of a complaint . At about 3:30 in the
afternoon, in Thompson's office, Fought informed him that there
was reason to believe that he (Thompson} had called the
inspectors. According to Thompson, Fought informed him that he
talked to the foremen, and they did not trust him "for calling
the inspectors" (Tr. 75}. Thompson stated that he informed
Fought that he had not called the inspectors. According to
Thompson, Fought told him that the foremen could not trust him
anymore, and that he was going to have to let him go "for calling
the inspectors" (Tr. 76). Thompson maintained that the methane
problems that had been observed on November 3 and 4, were taken
care of shortly after the methane had been discovered by shifting
the ventilation in the area, and accordingly, there was no need
to call the inspectors on November 8 and November 9. Thompson
indicated that Fought told him that he was going to send him home
until he had time to investigate . According to Thompson, Fought
told him to take the rest of the week off. Thompson stated that
he thought that Fought was sending him home because he had called
the inspectors.
On Tuesday November 16, at 6:00 p.m., Thompson returned to
the mine, and Fought informed him that he was still investigating, and trying to find out if he (Thompson) had called the
inspectors, and that he (Fought) would get back to him . Between
November 16, 1993, and January 7, 1994, Thompson tried to call
Fought eight or nine times, and talked to him three four times .

746

On January 7, 1994, Thompson received a letter from Fought.
In the · letter, Fought indicated that he had discussions with
Thompson concerning Thompson's job performance, lack of interest,
and lack of commitment to the job. The letter further accused
Thompson of having "a major problem of substance abuse . "
On January 10, 1994, Thompson confronted Mr . Fought about
the letter, and Fought insisted on him undergoing drug
rehabilitation. Thompson refused because he maintained
that he had no drug problem.
It was Thompson's testimony that prior to November 9, he had
never been reprimanded or suspended by Fought. Nor did Fought
indicate that he was dissatisfied with his· work . Thompson
maintained that he had not been insubordinate to Fought .
Thompson indicated that prior to receipt of Fought's letter on
January 7, Fought had never discussed with him his lack of
commitment. According to Thompson, Fought had never told him
that his job was suffering because of drug abuse, and that Fought
had never suggested that he take any drug test . Thompson
indicated that prior to November 9, 1993, he underwent drug
testing on one occasion, and it was negative. According to
Thompson, he was never arrested for drugs or alcohol, and has
never had a substance abuse problem. He also maintained that
there were no problems with morale at the site.
According to Thompson, he had a good relationship with
Fought through November 1993. He was not reprimanded by him
during that time and followed whatever Fought told h\m to do.
According to Thompson, he saw his foremen daily, and had safety
talks with them weekly. Thompson stated that he never refused to
go underground at the request of Fought, or at a foreman's
request.
Walter Thomas Kirk, a miner employed by Double Construction
Company, (Double C), to work at the subject mine as a general
laborer, testified for Complainant . Kirk, who is a personal
friend of Thompson, indicated that on November 9, 1993, at
approximately 3:45 in the afternoon, he was walking toward
Thompson's office and the door was open. 2 Kirk indicated that
Records kept in the ordinary course of business by Double C
indicate that Kirk did not work on November 9 .
2

74 7

no one else was in the area. According to Kirk, he was six to
eight feet away from the door, and overheard a conversation
between Thompson and Fought that was "pretty loud" (Tr. 104).
Kirk testified that he heard F~ught say as follows: •Tony you
know we had eight and nine percent methane, and you had no right
to call the federal men or inspectors in at no time" (Tr. 105).
According to Kirk, Thompson said that he did not call the
inspectors, and Fought said "I have reason to believe you called
them Tony and I'm going to ha~e to let you go" (Tr. 105) .
to Kirk, about a week and a half or two weeks
later, Fought met with all first and second shift employees in
the shower house. Kirk indicated that Fought was "in an
outrage," and stated that ·"[t]hese rumors going around is going
to stop. Now, I don't know who is spreading them but they're
going to stop· and whoever spread this rumor about methane, they
ain't no methane up there. And another thing . . . it's none of
your god dam business . . . If this don't stop, I will fire every
one of you . . . " (Tr. 107) .
Acc~rding

II.

Respondent's Case

Fought indicated that sometime toward the end of the winter
of 1993, he began to get concerned about Thompson, as he did not
feel that Thompson was communicating as much as he had done in
the past. Fought indicated that John Ratliff, . a shift foreman,
and Steven Cordial, the maintenance chief, com~ented to him that
Thompson was not helping them as much as he used to. According
to Fought, there was general talk in the mine that Thompson was
not going underground to help out. Fought indicated that in the
last two or three months prior to November 1993, he felt that
Thompson was "ignoring some things I would tell him or finding
excuses not to do them" (Tr. 140).
Fought stated that Thompson was authorized to order
materials. He was responsible for checking invoices in the
bookkeeping off ice in order to see if Aero was being properly
charged. Fought stated that Thompson had stopped checking the
invoices, and had to be reminded to do this task. He also
indicated that Thompson was no longer getting to work prior to
the commencement of the shift, as he had been doing for the last
couple of years.

748

Fought stated that some:t ime in the late summer or early fall
1993, Cordial informed him that occasionally it appeared as if
Thompson was under the influence of some substance. According to
Fought, on three occasions between the early summer of 1993 and
November 9, 1993, Thompson was listless, and exhibited slurred
speech, and uncoordinated movements. In the summer of 1993, on
one occasion, Fought sent Thompson home because he had placed his
head on the desk, and his speech was slurred.
According to Fought, in August 1993, he spoke to Thompson
and told him that he did not seem to be going underground as much
as he should, . that supplies were disappearing, and that it
appeared that, in general, he had lost interest. According to
Fought, he asked Thompson whether he realized that mine personnel
were of the opinion that he was taking drugs. According to
Fought, sometime around October 1993, he had the same converversation with Thompson who responded that he did not see what
the problem was, and that he was doing a good job. Fought
testified that on the first Wednesday in November, he told
Thompson as follows: "[i]f you don't do another thing tomorrow,
go to the office and okay your invoices" (sic) (Tr. 155).
According to Fought, Thompson did not work the next day. Fought
indicated that two days later he told Thompson that he "wasn't
going to put up with it anymore," and that Thompson should take
off the next week and think about it, "and then when he came
back, see if we could figure out someway that we both could stay
there and work together" (Tr. 156). The following M~nday when
Fought called the mine, Thompson answered the telephone. Fought
concluded that Thompson had ignored him by coming to work.
According to Fought, on November 9, at approximately 4:30 in
the afternoon, he and Thompson had the same conversation they had
on the previous Friday. According to Fought, Thompson told him
that the inspectors had come to the mine because there was a
complaint about methane. Thompson said that he thought he was
doing a good job. Fought indicated that he told Thompson that he
was not satisfied, and that Thompson must satisfy him before he
could come. back. Fought indicated that he did not think that
Thompson could work at the mine anymore. Fought indicated that
he told Thompson to go home and to think about what they had
talked about, a.n d to see if he could conclude that there was a
problem. Fought did not make a notation in Thompson's personnel
file concerning the conversation he had with him about his "bad

749

performance" (Tr. 180). He could not remember any specific
problem that Thompson "didn't help them or look at" (Tr. 197).
Fought said that he did not discuss methane at a meeting
with all personnel subsequent to November 9 . Instead, he told
the assembled personnel that he wanted to stop the·rumors as to
why Thompson was no longer at the mine. According to Fought, he
told them that Thompson was off on personal leave.
Fought indicated that on 'or about January 7, 1994, he sent
Thompson a disciplinary letter, (Defendant's Ex . 5) because he
needed to bring the matter to an end.
Fought maintained that it is not true that he told Thompson
not to report methane. Fought said that on November 3, and
November 4, 1993, Thompson had not complained to him about
methane. He also indicated that he did not receive any report
that the fireboss, Boyd, had found methane in the explosive range
or at three, four, or five percent. Fought stated that it is not
true that he told Thompson not to put methane readings more than
two percent in the preshift book. He indicated that there was no
problem controlling methane in the mine.
On cross-examination it was elicited that Fought never saw
Thompson take drugs, and did not ask whether anyone else saw him
take drugs. Fought also indicated that he had never smelled
alcohol on Thompson's breath.
John Ratliff, who was the day shift mine foreman for the
period in question, stated that in 1992, Thompson went
underground every two to three weeks. Ratliff indicated that
in the last six months prior to November 1993, Thompson went
underground only one time. Ratliff indicated that he would have
benefited from more underground visits by Thompson, as there were
matters that could have been resolved more efficiently had the
latter gone underground and observed the situation. He noted
that in 1993, Thompson stopped asking about what was going on in
the mine. According to Ratliff, Thompson's speech was slurred,
he stayed in the office by himself a lot, and took no interest in
the mine. Ratliff said that five or six miners told him that
they thought that Thompson was on dope or drugs. Ratliff also
noted that morale was down, and that in general his relations
with Thompson had deteriorated.

750

According to Ratliff, on November 8, a~ approximately
8:00 a . m., Thompson told him as follows: "John, there's all kind
of talk on the bottom about a high methane build up in the old
works . . . You know they'd be all · kinds of inspectors here
before the day's out" (sic) (Tr. 230-231). He indicated that
Thompson kicked the wall and a chair, and slapped the wall.
Ratliff corroborated Fought's version of the meeting that
was held in the shower house some~ime after November 9.
According to Boyd, testing at the old works on November 4,
indicated a methane reading of nine-tenths of one percent which
he entered in the preshift examination book. He said that
methane had not been found at that site before. Boyd indicated
that no one told him not to report methane, and no one told him
not to enter any methane readings . He corroborated Fought's
version of the meeting held with the miners after Thompson had
left the mine.
Cordial indicated that he told Fought that Thompson showed
favoritism, and that some men were resentful and thinking of
quitting. He indicated that when he started to work at the mine
in 1991, Thompson was going underground four to five times a
week, ''[a]nd it would be probably ninety percent of the time he
was underground." (Tr. 347) Cordial indicated that starting
around March 1993, Thompson "wasn't going undergroU:x:.id as much"
(Tr. 347). According to Cordial, miners made comments to him as
follows: "Tony's on his stuff today." {Tr.348) According to
Cordial, on several occasions, Thompson evidenced slurred speech,
and "would seem either completely down or really hyper" {Tr.348).
Cordial indicated that he discussed these problems with Fought in
October or September 1993, and the latter was "really concerned
about it" (Tr . 3 4 9 ) .
Cordial also corroborated Fought's version of the meeting in
the shower room.
III.

Analyeais

The principles governing analysis of a discrimination case
under the Mine Act are well established. A miner establishes a

751

prima facie case of prohibited discrimination by proving that he
engaged in protected activity and that the adverse action
complained of was motivated in any part by that activity.
Secretax:y on behalf of Pasula y. Consolidation Coal Co., 2 FMSHRC
2786, 2797-2800 (October 1980),. rev'd on other grounds. sub nom.
Consolidation Coal Co. y. Marshall, 663 F.2d 1211 (3d Cir. 1981);
Secretary on behalf of Robinette y. United Castle Coal Co.,
3 FMSHRC 803, 817-18 (April 1981). The operator may rebut the
prima facie case by showing either that no protected activity
occurred, or that the adverse•action was in no part motivated by
protected activity. Pasula, 2 FMSHRC at 2799-2800. If the
operator . cannot rebut the prima facie case in this manner, it
nevertheless may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected
activity alone. Pasula, 2 FMSHRC at 2800; Robinette, 3 FMSHRC at
817-18; see also Eastern Assoc. Coal Cox:poration. y. United
Castle Coal Co., 813 F.2d 639, 642 (4th Cir. 1987).
A.

Protected Actiyities

At a minimum, Thompson engaged in protected activities when
he spoke to an inspector on the evening of November 5, 1993. The
actions that he took in response to reports of various methane
readings, and his comments to Fought that excessive methane
readings should be recorded in the preshif t reports are all
protected.
B.

Motivation

According to Thompson, he was sent home by Fought on
November 9, because Fought thought he had complained to MSHA
inspectors about methane at the mine, and had requested an
inspection which resulted in the inspection on December 8 and 9.
In Thompson's version of relevant events, Fought (1) never
expressed any dissatisfaction with his work prior to March 9; (2)
manifested an animus toward his activities in reporting methane
findings, and (3) told him expressly on November 9, that he was
being let go "for calling the inspectors" (Tr. 76). I find
Thompson's version to be ~ithout merit for the reasons that
follow.

752

1.

.Thompson' s Performance Prior to November 9

Fought was generally satisfie~ with Thompson's work until
about six months prior to November 1993. He increased his
salary, and had given him bonuses based upon production.
According to Thompson, he had never been reprimanded by Fought
prior to November 9, and Fought had never expressed any
dissatisfaction with his work.
On the other hand, Fought referred to four specific
instances prior to November 9, 1993, wherein he expressed
dissatisfaction with various aspects of Thompson's work. 3 It is
significant that Thompson did not testify on rebuttal to rebut or
contradict this specific testimony. Therefore, I accept Fought's
testimony in these regards.
In general, Fought's version that he had been dissatisfied
with Thompson prior to November 9, as the latter had exhibited
various behavioral problems, is corroborated by Ratliff, and
Cordial, who noted that Thompson exhibited slurred speech, and
in his last six months at the mine, did not go underground as
frequently as he had in the past. In this connection, Thompson
did not rebut Fought's testimony that in the summer of 1983 he
had suggested to Thompson to go home because he was exhibiting
slurred speech, and had placed his head on the desk, and the
former complied. For these reasons, I accept Fought's version.
2.

Fought's Animus Regarding Reports of Methane

According to Thompson, in September 1989, after an MSHA
inspector issued a withdrawal order based upon finding the
presence of methane, Fought was "very upset" and "very irate"
(Tr. 34). Fought did not rebut or impeach this testimony.
According to Thompson, when he reported to Fought methane
readings in excess of two percent in August 1989, November 3,

Some corroboration for Fought's testimony in this regard is
found in the testimony of Cordial, whom I found to be a very
credible witness, that in October and September 1993, he
discussed Thompson's problems with Fought, and the latter was
"really concerned about it" (Tr. 349).
3

753

and November 4, Fought told him not to enter the findings in the
preshift examination books. On the other hand, Fought denied
that he had told Thompson not to report methane, and not to put
methane readings more than two percent in the examination book.
Fought also indicated that Thompson did not report to him that
Boyd had found methane in an explosive range, or more than three
percent. I observed the witnesses' demeanor, and found Fought to
be more credible in these regards.
I also find that Fought's v~rsion finds corroboration in the
testimony of Boyd that no one told him not to report methane
findings, . and not to enter methane readings. Indeed the
examination book indicates that methane readings were noted by
Boyd (Defendant's Ex. 4).
3.

The November 9 Conyersation Between Fought and
Thompson

According to Thompson, on November 9, the date of the MSHA
inspection of the mine, Fought told him he was going to let him
go "for calling the inspectors" (Tr. 76). In support of his
version, Thompson offered the testimony of Kirk. Kirk testified
that at 3:45 p.m., on November 9, he overheard Fought telling
Thompson that he was going to let him go because he had called
the inspectors.
I discount Kirk's testimony. Based upon my observations of
his demeanor, I find Fought the more credible witness. I ·a lso
note that records kept by Kirk's employer in the ordinary course
of business indicate that Kirk did not work in the mine on
November 9.
Further, since I find more credible Fought's version of
Thompson's work history prior to November 9, (.s.w;,, (I) (C) (2) (b)
infra,), it follows that Fought's version of the November 9
conversation is more credible. I therefore accept Fought's
testimony that on November 9, he expressed his dissatisfaction
with Thompson, and told him to go home to think about their
conversation, and to acknowledge there were problems.
For all the above reasons, I conclude that Fought's actions
in sending Thompson home on November 9, and sending him a
disciplinary letter (Defendant's Ex. 5) were motivated solely by

754

Thompson's unprotected activities which Fought was dissatisfied
with. I thus find that Thompson has failed to establish that he
was discriminated against in violation of Section l05(c) of the
Act.
ORDER

It is ORDERED that this case be DISMISSED.

~~
Avram Weisberger
Administrative Law Judge

Distribution:
Herbert Deskins ; Jr., Esq., P.O . Box 1199, 105 ~Division Street,
Pikeville, KY 41501 (Certified Mail)
Michael T. Heenan, Esq., and William I. Althen, Esq., Smith,
Heenan & Althen, 1110 Vermont Avenue, N. W., Suite 400,
Washington, DC 20005-3593 (Certified Mail)
/ml

755

FEDERAL MINE S~ETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

MAY 1 0 \996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 95-220-M
A.C. No. 24-01951-05508
Red Pioneer Portable Crusher

A.M. WELLES, INC.,
Respondent

DECISION
Appearances:

Kris~i Floyd, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado,
for Petitioner;
Alfred Hokanson, President, A.M. Welles, Inc.,
Norris, Montana, for Respondent.

Before:

Judge Manning

This case is before me on a petition for assessment of a
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against A.M.
Welles, Inc. ("A.M. Welles"), pursuant to sections 105 and 110 of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. §§ 815
and 820. The petition alleges two violations of the Secretary's
safety regulations. Orders of withdrawal were issued under section 104(b) of the Mine Act alleging that A.M. Welles failed to
timely abate the cited conditions. For the reasons set forth
below, I affirm the citations and orders, and assess penalties
in the amount of $330.00.
A hearing was held in Butte, Montana. The parties presented
testimony and documentary evidence, but waived post-hearing
briefs.

I.

DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

It
A.M. Welles operates the Red Pioneer Portable crusher.
is a very small operation that recorded about 4,360 hours worked
in 1993. It has a history of four citations in the two years
preceding the inspection in this case.
756

A.

Citation No. 4405454

On May 12, 1994, MSHA Inspector Ronald Goldade inspected the
Red Pioneer Portable Crusher. At the time of his inspection the
crusher was at the Belgrade Pit near Bozeman, Montana. He issued
citation No. 4405454 alleging that ·the guard on the fin type tail
pulley on the product discharge conveyor system needed to be
extended on the sides of the conveyor frame. The citation states
that the existing guard needed to be extended about ten inches to
provide sufficient coverage of the moving machine parts. The citation alleges a violation of 30 C.F.R. § 56.14107(a).
Inspector
Goldade determined that it was unlikely that anyone would be
injured and that the violation was not of a significant and substantial nature ("S&S"). A guard was present at the time of the
inspection, but the inspector did not beli~ve that it provided
sufficient protection against the moving parts. The safety
standard states that "moving machine parts shall be guarded to
protect persons from contacting .•. head, tail, and takeup pulleys, ... and similar moving parts that can cause injury."
The tail pulley was about two feet above the ground.
(Tr.
12; Ex. G-2). Inspector Goldade testified that he was concerned
that someone could inadvertently come in contact with the moving
pulley when cleaning around the area.
(Tr. 13) . He determined
that the negligence was moderate because the violation was obvious.
(Tr. 14). The conveyor had been recently purchased and the
existing guard was installed by the manufacturer.
(Tr. 14;
Ex. G-2).
Inspector Go l dade discussed the condition with William Haugland, the crusher superintendent, and told him that it should be
abated
. by 8:00 a.m. on May 16, a period of four days\ . . (Tr. . 15).
The inspector also wrote that abatement date on the 'citation.
The. condition could have been abated by welding or wiring old
screening material over the open area.
(Tr. 16). He estimated
that it would take an hour to abate the condition . Neither
Mr. Haugland nor anyone else from A. M. Wel.les told the inspector
that the time set for abatement was too short.
on August 1, 1994, MSHA Inspector Seibert Smith inspected
the crusher, which had been moved to a pit near Big Sky, Montana.
He issued Order No. 4410028 under section l04{b) of the Mine Act
because he believed that the condition described in Citation No.
4405454 had not been abated. The order states that no apparent
effort was made by the operator to extend the guard to cover the
moving parts of the fin type tail pulley on the product discharge
conveyor unde r the pioneer crusher by the termination due date of
May 16, 1994. He issued the order to Mike Nunn, who did not know
anything about the citation.
(Tr. 32). Inspector Smith left the
mine shortly thereafter. When he returned on August 5 a guard
made of solid m~tal and screening was in place, so he terminated
the order.
(Tr. 33}.
757

A.M. Welles contends that the conveyor pulley observed by
Inspector Smith on August 1, was not the same pulley that Inspector Goldade cited on May 12. (Tr. 46-50, 60). It states that it
abated the citation issued by Inspector Goldade and that the
withdrawal order issued by Inspector smith was for a different
conveyor at the crusher. Id. Mr. Haugland and Alfred Hokanson,
President of A.M. Welles, believe that they abated the condition
cited by Inspector Goldade before August 1, 1994.
I credit the testimony of .Inspectors Goldade and Smith, and
find that the condition cited on May 12 had not been abated on
August 1. Inspector Smith testified that the tail pulley he
observed was the same pulley that was cited by Inspector Goldade
and that no abatement effort had been made.
(Tr. 63).
An MSHA inspector is authorized to issue an order under
section 104(b) of the Mine Act if he determines on a subsequent
inspection that:
(1) the violation described in the citation has
not been totally abated within the period of time originally
fixed in the citation; and (2) the period of time for abatement
should not be further extended. Upon discovering a failure to
abate, an inspector must apply a rule of reason in determining
whether to issue a section 104(b) order or to extend the abatement time. Martinka Coal Co., 15 FMSHRC 2452 (December 1993).
I find that Inspector smith did not abuse his discretion in
issuing the order. Accordingly, I affirm the citation and the
order.
Ordinarily, an operator's failure to timely abate a citation
warrants a substantially greater penalty than the citation . An
unabated violation presents a potential threat to the safety and
health of miners. When an inspector does not require that the
condition be abated on the day of the inspection, it is important
for the mine operator to abate it within the reasonable period of
time set forth in the citation. If the operator fails to do so a
significantly higher penalty is warranted.
With respect to this violation, however, I believe that
there are several mitigating circumstances that compel a reduction in the penalty. I find that A.M. Welles genuinely believed
that it corrected the condition cited by Inspector Goldade within
the time set for abatement. A number of other guarding citations
were issued during the same inspection and A.M. Welles believed
that it abated all of them. I credit the .testimony of Mr. Haugland that it is the practice of A.M. Welles to immediately correct conditions found by MSHA inspectors .
(Tr. 50, 70). I
believe that this citation inadvertently fell between the cracks,
in part because of the fact that different names are often used
for the same conveyor. Apparently, A.M. Welles often refers to
the conveyor cited by Inspector Goldade as the "stacking conveyor" rather than the product discharge conveyor.
(Tr. 46).
758

MSHA proposed a penalty of $1,500.00.
The commission is not
bound by the MSHA's penalty assessment regulations or practices.
The commission assesses penalties de novo by applying the statutory criteria set forth in section llO(i) of the Mine Act to the
evidence of record. Sellersburg Stone Co., 5 FMSHRC 287, 292
(March 1983), aff'd 736 F.2d 1147, 1151-52 (7th Cir. 1994).
I
agree with Inspector Goldade that the vioiation was not S&S.
There is no dispute that A.M. Welles is a small operator and that
i t has a history of only four prior violations.
I find that the
gravity was low. With respect to·the citation, I find that the
negligence of A.M. Welles was not as great as the inspector believed.
The cited equipment was new, had been recently purchased, and was extensively guarded by the manufacturer.
It was
not unreasonable .for A.M. Welles to have relied on this guarding.
Based on the criteria in section llO(i), I find that a penalty of
$130.00 is appropriate.
B.

Citation No. 4405457

On May 12, 1994, Inspector Goldade issued citation No.
4405457 to A.M. Welles at the Red Pioneer Portable Crusher alleging that a guard was not provided around the alternator and Vbelt drive for the cooling drive motor on the Caterpillar generator.
The citation was issued at the Belgrade Pit and charged a
violation of 30 C.F.R. S 56.14107(a)
The citation states that
the height of the contact area is between two and five feet above
the ground, and the pinch point was within four inches of the
motor frame and two feet of the throttle control.
The citation
further alleges that employees are exposed to the hazard on a
daily basis.
Inspector Goldade testified that he measured the distances
set forth in the citation with a tape measure.
(Tr. 20).
He
testified that an employee would have to start and stop the generator at least once a day and would be exposed to the hazard
created by the pinch points of the V-belt drives if he were to
trip or stumble.
(Tr. 21-22). The only guard present on the
generator was around the fan blades.
(Tr. 23; Ex. G-4).
The
inspector determined that the violation was S&S because, based on
his experience, it was reasonably likely that someone wou l d eventually be injured by the unguarded V-belt drives.
(Tr. 23).
He
determined that the violation was caused by A.M. Welles' moderate
negligence because the condition was clearly visible.
Inspector Goldade discussed the citation with Mr. Haugland
and required abatement by May 16.
(Tr. 24).
The inspector believed that the condition could be abated with a fabricated guard
in a couple of hours.
Id. Mr. Haugland did not tell the inspector that the time for abatement was too short.
Id.

759

On August 1, 1994, Inspector Smith inspected the crusher after it had been moved to another pit near Big Sky, Montana. He
issued Order No. 4410029 under section 104(b) of the Mine Act because he believed that the condition described in Citation No.
4405454 had not been abated. The order states that a guard was
not installed on the alternator and V-belt drive system by the
termination due date of May 16. The generator was running and
Mike Nunn did not know anything about the citation.
(Tr. 36) .
When Inspector Smith returned on August 5 a guard made of solid
metal and screening was in place, so he terminated the order.
(Tr. 36-38: G-5).
.
A.M . . Welles contends that it abated the citation before the
generator was moved from Belgrade to Big Sky by installing a
solid metal guard .in front of the cited ar.ea.
(Tr. 41, 45, 5152, 70-72). It contends that it merely added some screening
material after Inspector Smith issued the order on August 1.
(Tr. 45, 51-54).
I credit the testimony of Inspectors Goldade and Smith, and
I find that the condition cited on May 12 had not been totally
abated on August 1. Inspector Smith testified that he did not
observe any guard on August 1.
(Tr. 63, 65-66). Messrs. Haugland and Hokanson testified that part of the guard was installed
prior to the time the generator was moved to Big Sky. In any
event, there is no question that additional guarding material was
installed after August 1 and the order was terminated on August 5. I find that Inspector Smith did not abuse his discretion
in issuing the order. Accordingly, I affirm the citation and the
order.

I also affirm that the violation was seriou ~ and S&S. The
evidence establishes that there was a reasonable likelihood that
the hazard contributed to would result in an injury of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (January
1984).
MSHA proposed a penalty of $2,200.00. As stated above, an
operator's failure to abate a citation generally mandates a high
penalty. In this instance, however, I believe that there are
mitigating circumstances. With respect to the citation, I find
that the negligence of A.M. Welles was not as great as the inspector believed. The record as a whole makes clear that A. M.
Welles tries in good faith to quickly abate all citations. I ts
managers genuinely believed that they had abated the cited c ondition.
I have also taken into consideration that the violation
created a serious safety hazard and A.M. Welles is a small operator with a history of four previous violations.
Based on the
civil penalty criteria, I assess a penalty of $200.00 for this
violation.

760

II.

ORDER

Accordingly, the citations and section 104{b) orders of
withdrawal are AFFIRMED and A.M. Welles, Inc. is ORDERED TO PAY
the Secretary of Labor the sum of $330~00 within 40 days of the
date of this decision.

Judge

'
\

Distribution:
Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Alfred Hokanson, President, A.M. WELLES, P.O. Box 8, Norris, MT
59745 (Certified Mail)
RWM

761

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

May 13, 1996

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 96-17
A.C. No. 11-00877-04131
:

:

..

AMAX COAL COMPANY,
Respondent

Wabash Mine

AM,ENJ)ID DECISION

Appearances:

Ruben R. Chapa, Esq., Office of the Solicitor,
u.s. Dept. of Labor, Chicago, Illinois for
Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll P.C.,
Pittsburgh, Pennsylvania for Respondent.

Before:

Judge Melick

Pursuant to Commission Rule 79, the attached corrected page
in the decision made May 2, 1996, is hereby substituted.

i

I· Gary
Admin s

w Judge

Distribution:
Ruben R. Chapa, Esq., Christine M. Kassak, Esq., Office of the
Solicitor, U.S. Dept. of Labor, 230 s. Dearborn street, 8th
Floor, Chicago, IL 60604 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, 301 Grant Street, 20th
Floor, Pittsburgh, PA 15219-1410 (Certified Mail)
\jf

76 2

FEDERAL MINE SAJ'BTY AND BEALTB REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAY JUDGES
2 SKYLINE , 10th FLOOR
~203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

May 13, 1996

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

v.

AMAX COAL COMPANY,
Respondent

. CIVIL PENALTY PROCEEDING
Docket No. LAKE 96-17
:

A. C. No. 11-00877-04131

.•.

Wabash Mine

DECISION
Appearances:

Ruben R. Chapa, Esq., Office of the Solicitor,
U.S. Dept. of Labor, Chicago, Illinois for
Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll P.c . ,
Pittsburgh, Pennsylvania for Respondent.

Before:

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801, et
seq., the "Act," charging the Amax Coal Company (Amax) with two
violations under the Act and proposing civil penalties of $2,809
for those violations.

\

Order No. 4263998

At hearing petitioner filed a motion to approve a settlement
agreement as to this order. A reduction in penalty from $2,500
to $2,000 was proposed. Based on the representations and
documentation submitted I concluded that the proffered settlement
was acceptable under the criteria set forth in Section llO(i) of
the Act. That determination is here reconfirmed and an order
directing payment of the penalty is incorporated herein.
Citation No. 4264052
This citation charges as follows:
wThe 25/3W haulageway was not kept free of wet and
muddy conditions. At No. 29 and from 10 to 12 crosscuts
mud and water up to 24 inches in depth affected the
control of equipment."
This citation was issued by MSHA Inspector Robert Stamm on
September 5, 1995, based upon Safeguard No. 3536015 issued

76 3

PEDER.AL MINE. SAFETY AND JIEAL'l'B REVXEW COMMISSION
OFFICE Of ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG Pit(£
FALLS CHURCH, VIRGINIA 22041

MAY .2 1996

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

.: CIVIL PENALTY PROCEEDING
: Docket No. LAKE 96-17

AMAX COAL COMPANY,
Respondent

..: Wabash Mine
.

v.

.: A.C. No. 11-00877-04131

DECISION

Appearances:

Ruben R. Chapa, Esq., Office of the Solicitor,
U.S. Dept. of Labor, Chicago, Illinois for
Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll P.c.,
Pittsburgh, Pennsylvania for Respondent.

Before:

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. S 801, et
seq., the •Act," charging the Amax coal Company. (Amax) with two
violations under the Act and proposing civil penalties of $2,809
for those violations.
Order No. 4263998

\

At hearing petitioner filed a motion to approve a settlement
agreement as to this order. A reduction in penalty from $2,500
to $2,000 was proposed. Based on the representations and
documentation submitted I concluded that the proffered settlement
was acceptable under the criteria set forth in Section 110(i) of
the Act. That determination is here reconfirmed and an order
directing payment of the penalty is incorporated herein.
Citation No. 4263995
This citation charges as follows:
•The 25/3W haulageway was not kept free of wet and
muddy conditions. At No. 29 and from 10 to 12 crosscuts
mud and water up to 24 inches in depth affected the
control of equipment."
This citation was issued by MSHA Inspector Robert Stamm on
September 5, 1995, based upon Safeguard No. 3536015 issued
764

April 27, 1992. The safeguard had been issued pursuant to the
criteria set forth in the standard at 30 C.F . R. S 75.1403-10(i) .
That standard provides that *[o]ff-track haulage roadways should
be maintained as free as practicable from bottom irregularities,
debris, and wet or muddy conditions that affect the control of
equipment. "
·
The underlying safeguard prov ided as follows :
*The haulage road in the Number 3 entry on the 1st S/1st W/
MWS entries was not being ~aintained free of wet
and muddy conditions that affected the control of the
Gettman tractor(oil car) from spad number 35170 to 200
feet ~utby. This is a notice to provide s~feguards
requiring this roadway and other roadways at this mine to be
maintained free as practical from wet or muddy conditions
that affect the control of equipment."
The Secretary's general authority to . issue safeguards is
derived from Section 314(b) of the Act. This Commission has held
that the language of that section is broad and •manifests a
legislative purpose to guard against all hazards attendant upon
haulage and transport [ation] in coal mining." Jim Walter
Resources, Inc., 7 FMSHRC 493, 496 {April 1985). The Commission
has also observed that while other mandatory safety and health
standards are adopted through the notice-and-comment rulemaking
procedures of Section 101 of the Act, Section 314(b) extends
authority to the Secretary to create on a mine-by-mine basis what
are, in effect, mandatory standards, without the formalities of
rulemaking. Southern Ohio Coal Company, 7 FMSHRC 509, 512
(April 1985). The Commission bas recognized that •this unusually
broad grant of regulatory authority must be boun~ed by a rule of
interpretation more restrained than that accorded ,promulgated
standards.~ Id.
The Commission also held in BethEnergy Mines, Inc., 14
FMSHRC 17 (January 1992) that a safeguard must be based upon the
specific conditions at a mine. Further , in Southern Ohio c oal
Company, 14 FMSHRC l (January 1992), the Commission held that the
Secretary has the burden of proving that the inspector evaluated
the specific conditions at the particular mine at issue and
determined that a safeguard was warranted in order to address a
transportation hazard. The safeguard notice must also ide ntify
with specificity the nature of the hazard at which it was
directed and the conduct of the operator necessary to remedy such
hazard.
The initial question presented in this case, theref ore, is
whether the instant safeguard was validly issued. I find, upon
the credible testimony of the issuing inspector, that it was.

765

According to the undisputed testimony of the issuing inspector,
Wilbur Deuel, he observed on April 27, 1992, a Gettman diesel
tractor which was unable to climb a hill in the mine because of
•slick" conditions, described in his safeguard as wet and muddy.
Deuel was concerned that the Gettman could lose control on the
slick incline, which he noted was one of the steepest in the
mine . This evidence adequately establishes that the inspector
evaluated specific conditions at the mine in determining that
this safeguard was warranted.
The identification of th~ nature of the cited hazard was
also made in the notice to provide safeguard with the requisite
specificity. It is not material to this issue that the wet and
slippery . conditions may have been found in a different location
in the mine or on an incline. Although the wet and slippery
conditions may have been aggravated by the incline, the
underlying hazard was wet and slippery conditions on a
haulageway. The criteria for a valid issuance of the safeguard
have, therefore, been met.
The issue then, is whether Amax violated the safeguard in
this case. The evidence is overwhelming that it did. According
to MSHA Inspector Robert Stamm, on September 5, 1995, during the
course of his inspection, he discovered standing water and mud at
two locations. At crosscut No. 29 there was 30 feet of water
along the 15-foot-wide entry and at the No. 15 to 20 crosscuts
the body of water was 150 feet long, 15 feet wide and up to 24
inches deep. At the time he issued the citation a Gettman
tractor was also stuck· in the mud. Stamm noted that the hazard
was from the mud itself and he observed that the Gettman tractor
had been sliding toward the rib. This was evident from its tire
tracks. According to Stamm, the condition should have been known
to the operator as the section foreman must travel this area each
day. He also observed that pumps had been installed in the area
but they were not then operating. Amax representative Ray Evans
told Stamm that in any event it would be difficult to pump mud
with these pumps.
Stamm believed that the violation was "significant and
substantial" and of high gravity because of the possibility of
running into a rib and passengers being thrown around. He also
observed that material falling into the water, such as cement
blocks and roof bolts, could be hit by vehicles, thereby causing
accidents .
·
Mine examiner and United Mine Workers of America (UMWA)
safety committee chairman, Joe Hoover, testified that he saw
these conditions on September s, 1995, and noted that the water
extended from rib to rib. The Gettman tractor was also •hung up"
with the oil and fuel cars it was pulling. Hoover noted that
pickup trucks also traveled through the cited area and that he

76 6

had seen such trucks drive up to 30 miles per hour. He noted
that it was not uncommon for wet conditions to exist at the face
areas and in the returns_ and primary intakes. He further
observed that the cited area was a secondary escapeway and that
employees passed through this area to get to the working section.
Within this framework of evidence, it is clear that the
violation has been proven as charged, that the violation was
•significant and substantial• and the violation was the result of
negligence. A violation is properly designated as •significant
and substantial• if, based on the particular facts surrounding
that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a
reasonably ·serious nature . Cement Division, National Gypsum Co.,
3 FMSHRC 822, 825 (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 8,
12 (1986) and southern Oil coal Co., 13 FMSHRC 912, 916-17
(1991). It may reasonably be inferred from the record herein
that large vehicles such as diesel tractors and pickup trucks
driving through muddy, wet and slick conditions would likely skid
into other equipment or vehicles, a miner or a rib thereby
causing serious injuries. The operator's negligence may also be
inferred from the evidence that the cited area was traveled by
foremen each shift who would thereby necessarily have observed
the cited violative conditions.

76 7

Under the circumstances and considering the criteria under
Section llO(i) of the Act, I find that the penalty proposed by
the Secretary is reasonable.
OBDEB

Order No . 4263998 and Citation No. 4264052 are affirmed.
Amax Coal Company is directed to pay a civil penalty of $2,309 . 00
within 30 days of the date of this decision.

Distribution:
Ruben R. Chapa, Esq., Christine M. Kassak, Esq., Office of the
Solicitor, U.S. Dept. of Labor, 230 s. Dearborn Street, 8th
Floor, Chicago, IL 60604 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, 301 Grant Street, 20th
Floor, Pittsburgh, PA 15219-1410 (Certified Mail)

\jf

76 8

PEDERAL MINE SAPETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

MAY 1 3 1996
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 95-188-M
A.C. No. 48-00152-05644

v.

·FMC - Trona Mine

FMC WYOMING CORPORATION,
Respondent
DECISION
Appearances:

Robert Cohen, Esq., Office of the Solicitor,
u.s. Department of Labor, Arlington, Virginia,
for Petitioner;
Matthew F. McNulty, III, Esq.,
Salt Lake City, Utah,
for Respondent.

Before:

Judge Cetti

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, 30 u.s.c. § 801 et~ the ., "Act." The
Secretary of Labor on behalf of the Mine Safety and \ttealth Administration, {MSHA), charged the Respondent, the operator of
Trona Mine, with a permissibility violation of mine safety
standards set forth in 30 C.F.R. § 57.22305.
The operator filed a timely answer cqntesting the alleged
violation and the amount of the proposed penalty. This matter,
originally noticed for hearing to be held on April 3, 1996, but
was by oral stipulation of the parties and consent of the Judge,
it was heard on April 2, 1996, in Salt Lake City where other
cases involving the same parties were heard.
The Trona mine is a large underground mine. The mine has a
level horizontal body of ore with approximately 1,500 to 1,600
feet of cover. MSHA charged that the proximity switches for the
number 4 hoist located at the top of the number 4 shaft were not
maintained in permissible condition as required by 30 C.F.R.
§ 57.22305.

769

At the hearing, counsel for the Secretary stated the issues
with respect to the permissibility violation alleged in Citation
No. 4338843, were (1) whether or not there was a violation of the
safety standard and (2) if there was a violation, whether or not
the violation was significant and substantial and (3) the appropriate penalty.
The Secretary presented the testimony of the MSHA mine inspector, Danny Frey, who issued the citation in question. He
testified the Trona mine was a large underground mine. The mine
releases some methane gas during the mining process. Frey stated
if the methane is not properly controlled, there can be an explosion hazard. To have an explosion, there must be 5 to 15 percent
methane in the mine atmosphere and the oxygen content can be as
low as 12 percent and of course, there must be an ignition
source. The mine is a gassy mine that liberates more than one
million cubic feet of methane in 24 hours and is subject to spot
inspection on a five day interval under § 103(i) of the Act. The
mine has a forced air ventilation system. The shaft, in question, is used for hoisting muck from the mine. It's not a man
hoist and is not used to transport miners. It is used to expel
the return (exhaust) air from the mine. This shaft extended from
the surface of the mine to the mine workings some 1,500 to 1,600
feet below. The return air enters the No. 4 shaft at the bottom
of the shaft and goes straight up through ~he vertical shaft, in
question, into the atmosphere at the surface. The switches, in
question, are located above ground level. The switches, nevertheless, are required to be permissible because the exhaust air
as it comes out of the shaft has the potential of containing
methane. Since the switches were not permissible, there was a
violation of 30 C.F.R. § 57.22305. The primary question remaining was whether the violation was properly designated S&S.
The inspector took readings of the methane. content of the
exhaust air as it entered the bottom of the No. \ 4 shaft approximately 1,500 to 1,600 feet below the location of the proximity
switches. The inspector on cross-examination testified that
using the methane readings obtained, there was not enough methane
content in the return air at the proximity switches to have an
ignition or explosion. There would have to be a minimum of 5
percent methane content to have an explosion and the methane
readings obtained shows the methane content of the exhaust air to
be less than 1 percent.
(Govt. Ex. 1 & 2). Consequently, the
likelihood of an explosion was remote rather than reasonably
likely.
After all the evidence was presented, there was an off the
record discussion of the evidence and it was agreed and stated
for the record that based upon the evidence presented at the
hearing that Citation No. 4339843 should be classified as non
S&S. This conclusion was based on the lack of evidence of

770

sufficient methane in the -area of the proximity switches to
create a reasonable likelihood that the hazard contributed would
result in an injury of a reasonable serious nature. Mathies Coal
co . , 6 FMSHRC 1, 3-4 (January 1984).
Upon consideration of the statutory criteria in section
110(i) of the Mine Act, the appropriate penalty of this violation
of the cited safety standard is $100.
Order 4338895 issued September 9, 1994, is vacated at the
request of Petitioner as it is now believed an extension of the
abatement period should have been issued rather than a 104(b)
order since the operator was moving towards compliance.
ORDER

In view of the foregoing, Order No . 4338893 is VACATED;
Citation No. 4338834 is modified to delete the S&S finding and as
so modified the citation is AFFIRMED. FMC . shall pay a civil
penalty of $100 to the Secretary of Labor within 30 days of the
date of this order. Upon receipt of payment, this case is
dismissed.

st F. Cetti
nistrative Law Judge

Distribution :
Robert Cohen, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
{Certified Mail)
Matthew F. McNulty, III, Esq., Eric E. Vernon, Esq . , 50 south
Main Street, Suite 1600, P.O. Box 45340, Salt Lake City, UT 84145
{Certified Mail)

/sh

771

FEDERAL MINE .SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
6203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY l 5.1996.

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 95-203-M
A. C. No. 23-02086-05503

v.
HWY 54 South Quarry
BECK MATERIALS COMPANY,
Respondent
DECISION

Appearances:.

Margaret A. Miller, Esq., Office of the Solicitor,
U. S. Department of Labor, Denver, Colorado, for
the Secretary;
Keith A. Wenzel, Esq., Inglish & Monaco, P.C.,
Jefferson City, Missouri, for Respondent.

Before:

Judge Maurer
\

STATEMENT OF THE CASE

This case is before me upon the petition for assessment of
civil penalty filed by the Secretary of Labor (Secretary) against
the Beck Materials Company {Beck Materials) pursuant to
section 105 of the Federal Mine Safety and Health Act of 1977, .
30 U.S.C. § 815. The petition charges Beck Materials with three
violations of the mandatory standards found in 30 C.F.R. Part 56
and seeks civil penalties of $3500, as a result of a serious
injury accident which occurred on December 7, 1994, at Beck
Materials' Highway 54 South Quarry.
Pursuant to notice, this case was heard at Columbia,
Missouri, on December 5, 1995. Both parties have subsequently
filed written proposed findings of fact and conclusions of law,
which I have considered along with the entire record in this case
in arriving at the following decision.

772

STIPtlLATIONS

At the commencement of the hearing, the parties proffered a
set of stipulations, dated December 5, 1995, which I
accepted into the record (Tr. 5-6) as follows:
si~ned

1. Beck Materials Company is engaged in mining and selling
of limestone in the United States~ and its mining operations
affect interstate commerce.
2. Beck Materials Company is the owner and operator of
Highway 54 South Quarry Mine, MSHA ID No. 23-02086. The
Highway 54 South Quarry Mine is a limestone mine using
conventional mining methods to drill and blast limestone.
3. Beck Materials Company is subject to the jurisdiction
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 .e..t. ~· ("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 place stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
6. Doug Laird, Plant Foreman, was seriously injured at
approximately 4:30 p.m., on December 7, 1994, when he slipped or
tri~ped and fell onto a moving conveyor belt.
His right arm was
pulled between the drive pulley and the moving conveyor belt.
7. Mr. Laird had 1 year and 1 month total mining
experience, all at the Beck Materials Mine.
8. 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.

773

9 . The proposed penalties will not affect respondent's
ability to continue in business.
10. The operator demonstrated good faith in abating the
violations.
ll. Beck Materials Company is a limestone mine operator
with 98,214 production hours worked in 1994. The mine employs
about 10 miners who work 9 ~ hour shifts each day, 5 days per
week.
12. The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine for the
2 years prior to the date of the citations.
PlNPIHGS. CQNCLUSlQNS AND DISCUSSlQN

On January 31, 1995, MSHA Inspector Robert D. Seelke,
subsequent to an accident investigation, issued section 104(d) (1)
Citation No. 4329266 to Beck Materials for a violation of
30 C.F.R. § 56.12016 1 alleging that:
At approx {sic) 4:30 pm on Dec. 7, 1994, plant foreman,
Doug Laird, who was filling in as the plant operator,
was seriously injured when ·his right arm was pulled
between the drive pulley and the moving conveyor belt
of the under scalping screen conveyor . Th~. injured

30 C.F.R. § 56.12016 provides: "Electrically powered
/
equipment shall be deenergized before mechanical work is done on
such equipment. Power switches shall be locked out or other
measures taken which shall prevent the equipment from being
energized without the knowledge of the individuals working on it.
Suitable warning notices shall be posted at the power switch and
signed by the individuals who are to do the work. Such locks or
preventive devices shall be removed only by the persons who
installed them or by authorized personnel."
1

774

employee elected to make adjustments to the tracking of
the belt without deenergizing the conveyor system.
While checking the adjustments the employee slipped or
tripped while walking on the framework of the screen,
bin, conveyor system and fell over the top of the side
guard on the drive pulley. His right hand & arm
contacted the moving conveyor which pulled his right
arm into the pinch point of the drive pulley & conveyor
belt. This is an unwarrant&ble failure.
On that same date, Inspector Seelke also issued
section 104(d) (1) Order No. 4329267 to Beck Materials for a
violation of 30 C.F.R. § 56.11001 2 alleging that:
At approx (sic) 4:30 pm on Dec. 7, 1994, plant foreman,
Doug Laird , who was filling in as the plant operator,
was seriously injured when his right arm was pulled
between the drive pulley & the moving conveyor belt of
the under scalping screen conveyor. The employee was
not using a safe means of access to check the
adjustments he had made on the belt. The injured
elected to walk the 9" I-beam, that is part of the
scalping screen and conveyor frame, to check the belt
movement after making adjustments. While attempting to
step from the 9 11 I-beam to the tail pulley guard of the
#1 product belt he slipped or tripped and fell causing
his right arm to contact the moving under scalping
screen conveyor, which pulled his arm into the pinch
point between the drive pulley and the belt. This is
an unwarrantable failure.

30 C.F.R . § 56.11001 provides: "Safe means of access
shall be provided and maintained to all working places."
2/

775

Additionally, the inspector issued section l04(a) Citation
No. 4329268 to· Beck Materials for a violation of 30 C.F.R.
§ 56.14107(a) 3 alleging that:
At approx (sic) 4:30 pm o~ Dec. 7, 1994, plant foreman,
Doug Laird, who was filling in as the plant operator,
was seriously injured when his right arm was pulled
between the drive pulley and the moving conveyor belt
of the under scalping screen conveyor. Upon
investigation of the accident site it was concluded
that the drive & the tail pullies (sic) of the conveyor
wer~ not sufficiently guarded to prevent contact with
the pinch point.
On December 7, 1994, the date of the accident, the plant had
crushed rock until early afternoon when due to rain, they ran out
of dry material in the pit and had to shut the plant down. Danny
Foster, the plant superintendent, sent some of the men home at
that time, but kept Doug Laird, a plant foreman and the accident
victim, there to do some work on the plant. More specifically,
Laird was adjusting the under scalping screen conveyor belt 4 when
he was injured.
Earlier that day, Laird and Andrew Mitchem, a loader
operator, had attempted to make tracking adjustments to the belt,
but were unable to get it to track properly. After the plant
'\

30 C.F.R. § 56.14107(a) provides in pertinent part that:
"Moving machine parts shall be guarded to protect persons from
contacting gears, sprockets, chains, drive, head, tail, and
take up pulleys . . . that can cause injury."
3/

The under scalping screen conveyor is a horizontal in house manufactured conveyor · that Beck Materials Company
manufactured in approximately 1989. The conveyor belt is
30-inches wide and the conveyor measures approximately 20-feet
from the head pulley to the tail pulley. It is electrically
powered and travels at approximately 250 feet per minute. The
top of the conveyor belt is approximately 6 ~ feet above ground
level.
4/

776

.,

shut down, Laird testified that he went back to this task. He
started just that one belt back up, went to the south side of the
plant and got up on the framework where he could reach the
adjustment screws and bolts. In order to climb up there, he
utilized the wheels and axles that run underneath the plant and
climbed from there to a 9-inch wide I-beam rail from where he
could reach the adjustment screws and bolts. He testified that
there was no ladder available to climb up there to make these
adjustments .
He adjusted the belt several times, but he stated that the
belt was not responding so he went back around to the other side
of the plant to see if the belt was hanging up on anything but
could not locate any problem. At this point, he climbed up onto
the I-beam framework again and looked to see what might be
holding the belt up. Not seeing anything blocking the conveyor
belt, he was moving back along the I-beam framework of the bin
and conveyor on the north side, getting ready to go back around
to the other side and make further adjustments when he fell. His
right hand was pulled up into the head pulley of the still
running belt. As a result of the accident, his right shoulder
and arm were amputated and he sustained a severe injury to his
spinal cord which causes him chronic and severe pain. He is
disabled from further employment.
Inspector Seelke issued Citation No. 4329266 because Laird
had been making mechanical adjustments to the electrically
powered equipment without deenergizing and locking out that
equipment, all in violation of 30 C.F.R. § 56.12016.
It is beyond dispute that the cited conveyor belt was in
fact running and therefore llQt. deenersized and locked out at the
time of the accident, and it is also undisputed that Laird was
performing mechanical work on it. Accordingly, that, without
more, is. sufficient to find that a violation of 30 C.F.R.
§ 56.12016 occurred and I do so find.
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."

777

30 U.S.C. § 814 (d) (1). A violation is properly designated
significant and substantial 11 if based upon the particular facts
surrounding the viola t ion there exists a reasonable likelihood
that the hazard contributed to will result in an injury ~r
illness of a reasonably serious nature. 11 Cement Division.
National Gypsum Co., 3 FMSHRC 825 (April 1981 } .
In Mathies Coal Co., 6 FMSHRC l, 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
injµry in question will be of a reasonably serious
nature.
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 e.lement of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U. S . Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984}. We have emphasized that, in accordance with the
language of section 104(d) (1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial . U. S . Steel
Mining Company. Inc., 6 FMSHRC 1866, 1868 (August
1984 ) ; U. S . Steel Mining Company . Inc., 6 FMSHRC 1573,
1574-75 (July 1984 )
I

In this case we do not have to deal with likelihoods,
possibilities or probabilities . A serious injury accident did in
fact occur, as a direct result of this violation and as a result

778

of that accident, Laird was permanently disabled from gainful
employment. I therefore find this cited violation to be
significant and substantial ("S&S" ) and· serious.
The Secretary also alleges the violation was the result of
the respondent's "unwarrantable failure" to comply with the cited
standard.
In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987),
the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. This
determination was derived, in part, from the plain meaning of
"unwarrantable" ( 11 not justifiable" or "inexcusable" ) , "failure"
("neglect of an assigned, expected or appropriate action"), and
"negligence" (the failure to use such care as a reasonably
prudent and careful person would use, and is characterized by
"inadvertence," "thoughtlessness," and "inattention" ). 9 FMSHRC
at 2001. Unwarrantable failure is characterized by such conduct
as "reckless disregard, 11 11 intentional misconduct," "indifference"
or a "serious lack of reasonable care . 11 9 FMSHRC at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94
(February 1991 ) . The Commission has also stated that use of a
"knew or should have known" test by its.e lf would make unwarrant able failure indistinguishable from ordinary negligence, and
accordingly, the Commission rejected such an interpretation. A
breach of a duty to know is not necessarily an unwa+rantable
failure. The thrust of Emery was that unwarrantabl ~, failure
results from aggravated conduct, constituting more than ordinary
negligence. Secretary v . .Virginia Crews Coal Co., 15 FMSHRC
2103, 2107 (October 1993}.
Respondent's defense to the "unwarrantable failure" charge
contained in this citation is basically that Laird did not follow
established company procedures in attempting to adjust the
conveyor belt tracking. Several witnesses testified to the
effect that respondent has a lock-out procedure in place and it
has been addressed repeatedly over the years at safety meetings.
However, that testimony aside, I find that that "official" policy
was not actually being observed in practice. Mr. Laird very
credibly testified that he was performing the tracking

77 9

adjustments in the manner that he had been taught personally by
Mr. Foster, the superintendent, that is, with the belt running.
I therefore find and conclude that this violation ·occurred as a
result of the aggravated negligence of the operator.
Ac~ordingly, Citation No. 4329266 will be affirmed herein, as
issued, in its entirely.
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section llO(i) of the Act, I conclude and find that a civil
penalty of $1500, as proposed by the Secretary for this citation,
is a reasonable and appropriate civil penalty that will serve to
satisfy the public interest in this matter.
Inspector Seelke issued section 104(d) (1) Order No. 4329267
on January 31, 1995. He testified that Laird did not use a safe
means of access to make or check the adjustments he had made on
the belt . Several times Laird climbed up on or walked along the
I-beam of the framework of the machinery to make adjustments to
the belt or check those adjustments. In Seelke's opinion, which
I accept, a secured ladder should have been used to make and
check the adjustments on both sides of the equipment. This
becomes even more obvious when you consider that the belt was
running at the time Laird was attempting to adjust the tracking
on it. If Laird had used a safe means of access, such as a
secured ladder, he· would not have fallen onto the running belt.
There was testimony to the effect that ladders were
available on the premises, but they were inside a trailer rather
than in place on the equipment. Mr. Laird testified that no
ladder was available to him, and he saw no other way to access
the belt to make the needed adjustments other than to climb up
onto the I-beam.
I find that there was a violation of the cited standard
since no safe means of access was readily available and in any
case, no safe means of access was used by Laird in this instance,
even if one could argue that he should have gone wherever he had
to to locate a suitable ladder.

780

Applying the Mathies test, I find that the violation is a
significant arid substantial one given that the lack of a safe
means of access contributed to the serious injury sustained by
Mr. Laird.
I also find that the negligence involved in this violation
demonstrates aggravated conduct on the part of the operator and
it is properly designated as an "unwarrantable failure" order.
Mr ~ Foster, the mine superintendent, who did not appear to
testify in this case, was on the premises at the time, knew that
Laird was working alone and in fact, had personally instructed
Laird at an earlier date regarding the procedure for adjusting
the tracking· on these belts, including making the adjustments
without a ladder or other safe means of access to do so.
Furthermore, on many previous occasions, Laird had observed
Foster, and others, adjust the belts without deenergizing the
equipment and without using a safe means of access to reach the
adjustments on the equipment. Accordingly, Order No. 4329267
will be affirmed herein, as issued, in its entirety .
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section llO(i) of the Act, I conclude and find that a civil
penalty of $1000, as proposed by the Secretary for this order,
will serve to satisfy the public interest in this matter.
Inspector Seelke also issued a section 104(a) citation on
January 31, 1995, to Beck Materials (Citation No. 4\~29268). This
was basically a guarding violation. Allegedly, the \drive pulley
on the under scalper conveyor was not sufficiently guarded .
The equipment was in fact guarded sufficiently for anyone
approaching the pinch point from the ground, the more foreseeable
hazard. The problem in this case and the reason that the
inspector issued the citation was that an employee, Laird, found
a way, by using the I-beam as a walkway, to get into the pinch
point between the conveyor belt and the drive pulley of the under
scalping screen conveyor despite the existing guarding.
The finding of violation follows from the fact that Laird
did in fact make contact with the unguarded moving parts from
above, no matter how difficult it might have been to foretell

781

that occurrence beforehand. Likewise, the violation is
significant and substantial ("S&S") simply because of the gravity
of the occurrence and the resultant very serious injury to
Mr. Laird.
The only issue I take with . the inspector who wrote the
instant citation is that of the negligence factor contained in
Block No. 11 of the citation . I am going to modify that
negligence factor from "moderate" to "low," based on what I
perceive to be the relative unforseeability of contact with the
pinch point from above the pu£ley as opposed to from the
direction of the ground, from whence it was adequately guarded.
With that modification, Citation No. 4329268 will be affirmed
herein .
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria
contained in section llO(i) of the Act , I conclude ·and find that
a civil penalty of $300 is a reasonable and appropriate civil
penalty that will serve to satisfy the public interest in this
matter .
ORDER
1.

Citation No. 4329266 and Order No. 4329267 ARE AFFIRMED .

2.

Citation No. 4329268, as modified herein, IS AFFIRMED .

3. The Beck Materials Company IS ORDERED TO PAY the
Secretary of Labor a civi l penalty of $28 00 wi thin 30 days of the
date of this decision.

hthA/l~-l

·J
·' J
Roy 1J, .j Maurer

Adm.\jifstrative Law Judge

78 2

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor,
u. S. Department of Labor, 1999 Broadway, Suite 1600, Denver, CO
80~02-5716 (Certified Mail)
Keith A. Wenzel, Esq., Inglish & Monaco, P.C., 237 East High
Street, Jefferson City, MO 65101 (Certified Mail}
dcp

783

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFJCE OF ADKIN1STRATJVE LA~ JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2Z041

MAY 1 5 1996'
PEABODY COAL COMPANY,
Contestant

v.

CONTEST PROCEEDINGS
Docket No. KENT 93-318-R
Citation No. 3551261; 1/6/93

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

Docket No. KENT 93-319-R
Order No. 3551262; 1/6/93
Docket No. KENT 93-320-R
Order No. 3551263; 1/20/93

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 93-437
A.C. No. 15-02709-03840
Camp No. l Mine
Mine ID No. 15-02709

DECISION ON REMAND
Before:

Judge Arnchan
The Commission Decision and Remand Order

On April 19, 1996, the Commission reversed and remanded my
January 5, 1994 decision in these matters. I had found Peabody:s
violations of the respirable dust limit in 30 C.F.R . §70.lOO(a)
with regard to three of its six mechanized mining units to be due
to an "unwarrantable failure" to comply the standard and due to
high negligence. This Commission concluded:
. . . Peabody's remedial measures clearly demonstrate a
good faith, reasonable belief that it was taking steps
necessary to solve its dust problems and this record
cannot support a finding of high negligence or
unwarrantable failure.
(Slip opinion at page 6.}

784

This matter is now before me to reassess the civil penalties
with regard to. these violations.
Findings of Fact
Violative conditions and prior- respirable dust violations
in the two years before the instant citation and orders
On January 6, 1993, MSHA inspector Arthur Ridley reviewed
the results of Respondent's bimonthly sampling for respirable
dust for the period of November-December 1992 (Tr. 16-18). These
records indicated that for the five samples taken in the sampling
period, the .average exposure of the continuous miner operator on
mechanized mining unit (MMU) 044 was 2.4 mg/m3 (Jt. Exh. 4).
Ridley therefore issued Citation No. 3551261, alleging a
violation of 30 C.F.R. § 70.lOO(a), which requires that:
Each operator shall continuously maintain the average
concentration of respirable dust in the mine atmosphere
during each shift to which each miner in the active
workings of each mine is exposed at or below 2.0 milligrams of respirable dust per cubic meter of air . . . .
The citation was issued pursuant to section 104(d} (1) of the
Act in that it alleged that the violation was "significant and
substantial" (S&S) and due to the "unwarrantable failure" of
Peabody to comply with the standard. A $4,000 civi~ penalty was
proposed for this alleged violation.
·
On January 6, 1993, the inspector also reviewed the results
of the November-December 1992 sampling of the continuous miner
operator on MMU 056. The five samples also averaged 2 . 4 mg/m3
(Tr. 58-59, 63). Ridley issued section 104(d) (1) Order
No. 3551262. The Secretary subsequently proposed a $6,000 civil
penalty.
Ridley returned to Camp 1 on January 20, 1993 and reviewed
samples taken between January 4 and 6, 1993, on MMU 047 for the
January-February 1993 bimonthly sampling period. These averaged
2 . 2 mg/m3. The inspector issued section 104(d) (2) Order
No. 3551263. The proposed penalty for this order was $6,000.

785

While Peabody conceded that the violations were "S&S," it
challenged the allegations of unwarrantable failure and high
negligence. These allegations were predicated on the number of
citations issued within the prior two years for violations of the
respirable dust standard on each on the mechanized mining ·units
-cited in January~ 1993 (Tr. 34-39, 65, 74-75, 83-85, 100-102) . 1
These violations were considered only on a MMU-by-MMU basis; the
Secretary did not consider Respondent's compliance record as a
whole {Tr. 74-75, 100-102).
In the two years prior to January 1993, Unit 044 had been
sampled in 10 of the 12 bimonthly sampling periods. Respondent
had been .out of compliance with the respirable dust standard on
four of these occasions. On February 8, 1991, Respondent
received a citation because the samples on Unit 044 averaged
3.3 mg/m3 for the January-February 1991 bimonthly sampling period
(Exhibit G-1). On March 28, 1991, a section 104{b) order was
issued because the samples for the March-April 1991 bimonthly
period averaged 2.2 mg/m3. On December 2, 1991, a section 104(a)
citation was issued because the samples for the November-December
1991 bimonthly period averaged 2.7 mg/m3 (Exhibit G-2, page 2).
On February 11, 1992, another citation was issued because the
samples for the January-February 1992 bimonthly period averaged
2.8 mg/m3 (Exhibit G-2, page 3).
In the 12 bimonthly sampling periods during calendar year
1991 and 1992, mechanized mining Unit 056 was out of compliance
with the respirable dust standard five of the 1"~ times it was
sampled. In February 1991, Respondent was cited because the
January-February samples averaged 2.2 mg/m3 (Exhibit G-2). In
July 1991, Peabody was cited again because the May-June samples
averaged 2.7 mg/m3. In February 1992, another citation was
issued because the January-February samples averaged 2.9 mg/m3
(Exhibit G-2, page 3). In April 1992, MSHA cited Peabody again.
because the samples for the March-April period averaged
2 . 6 mg/m3. The fifth violation during 1991-1992 occurred in the
November-December 1992 sampling period and is addressed by Order
No. 3551262.
\

At the time of the January 1993 citation and orders,
Peabody had six mechanized mining units in operation at the
Camp No. 1 mine.

786

Mechanized mining Unit 047 was available for sampling in
only four of the 12 bimonthly sampling periods of 1991-1992. In
May 1991, a citation was issued because the March-April samples
averaged 3.0 mg/m3. The next time Unit 047 was sampled was for
the July-August 1992 sampling perio~ when it was barely in
compliance at 1.9 mg/m3 (Exhibit G-3, page 4}. For the
September-October sampling period the average concentration was
2.4 mg/m3, precipitating another citation (Exhibit G-3, page 4).
MMU 047 was in compliance for the November-December 1992 sampling
period, then out of compliance again for the January-February
1993 period, which is covered by Order No. 3551263.
Measures Taken Prior to January 1993 to improye
dust control
Beginning in January 1992, Peabody implemented a number of
measures to increase the water supply to its MMUs and thereby
improve dust control. In January 1992, it began a 6-month
project to install water flow gauges on its continuous miners.
This allows the operator of the machine to monitor the amount of
water. coming through his machine (Tr. 179).
In February, Respondent began a six to seven month project
to increase the size of the fittings on the water lines leading
to the continuous miners from ~ inch to 2 inches (Tr. 181 - 82}.
In March 1992, Peabody increased the water volume on its
four continuous miners that are shuttle car units by 25 percent.
The water volume of its two continuous miners that a~e continuous
haulage units was increased by SO percent (Tr. 182-83}.
Beginning in February 1992, Respondent replaced the 2-inch
plastic pipe in its water lines with 2-inch metal pipe, thus
allowing it to use greater water pressure (Tr. 183). In March
1992, Peabody increased the size of the water lines going to the
miners from 1 inch to 1 ~ inche.s (Tr. 184) .
In July 1992, the company replaced its water pumps with
pumps that allowed for increased water pressure {Tr. 188).
Finally, over a six-week period in November and December, 1992,
Peabody installed water sprays inside the ductwork of the
scrubbers on the continuous miners to improve scrubber efficiency

78 7

(Tr. 185). Peabody also began working with the manufacturer of
its continuous miners to reduce restrictions in the water line of
these machines (Tr. 187).
Assessment of Civil Penalties
In my prior decision I assessed a $5,000 civil penalty for
each of the three respirable dust violations cited by Inspector
Ridley in January, 1993. Given the fact that the Commission
has concluded that the record.does not support a finding of
"unwarrantable failure" or high negligence upon which these
assessments were predicated, penalties of substantially less than
$5,000 are clearly indicated by the remand order.
The Six Statutox:y Criteria for Assessins Civil Penalties
The effect on the operator's ability to stay in business:
The parties stipulated that penalties of the magnitude of those
proposed would not effect Peabody's ability to stay in business.
Size of the operator: Peabody produces in excess of
10,000,000 tons of coal a year and is thus a relatively large
operator. Other things being equal, this would indicate that
a somewhat larger penalty is more appropriate than for a smaller
operator.
Good faith in attemptins to achieve rapid compliance after
notification of the violation: Peabody immedia~ely acted upon
Inspector Ridley's suggested method to terminate (or abate)
the violations. It assigned additional supervisory personnel
to monitor its employees while they were being sampled for
respirable dust exposure (Tr. 72-73, 96, 190). These supervisors
insured that miners positioned themselves where they would minimize dust . exposure and checked on ventilation and water pressur~
(Tr. 191). Respondent should be given credit for exercising good
faith in terminating the citations even though implementation of
the inspector's suggestions may violate 30 C.F.R. § 70.207, which
requires that sampling be taken during a normal production shift.
Sampling results obtained under conditions that are abnormal are
likely to be unrepresentative of the miners' regular, daily
exposure to respirable dust.

788

Gravity of the violations: The gravity of the violations is
quite high. The parties have stipulated that the violations are
~s&S."
The record also suggests that Respondent's miners have
been regularly exposed to respirable dust levels above those
allowed by the standard for a 2-year period.
Prior History and Negligence: These factors must be
considered in unison when assessing a civil penalty in these
matters. Citation No. 3551261 was the fifth respirable dust
violation on MMU 044 in a 2-year period. Order No. 3551262 was
the fifth on MMU 056. Order No. 3.551263 was the third violation
out of five sampling periods on MMU 047. Although MSHA appears
to have considered each MMU in isolation, I believe one must
consider that in January 1993, after numerous prior respirable
dust violations, three of Respondent's six mechanized mining
units were in violation of the respirable dust standard.
Although it is true that two of these violations were for one
bimonthly sampling period and one was for another, I deem it
significant that in the same month MSHA cited Respondent for
respirable dust violations on half of its production units.
The Commission has found that this record does not support a
finding of high negligence. Thus, the question becomes whether
the violations were the result of negligence at all, or simply
bad luck2 • Since January 1993, Respondent's management has
watched its continuous miner operators while their dust exposure
is being sampled (Tr. 214-15). Miner operators have been
observed on several occasions improperly positioning the curtain
or line brattice to direct air towards the working f~ce, and
positioning themselves in the exhaust current, rather than the
intake current (Tr. 215-16).
The Commission noted that employee work practices wer~ also
addressed before the issuance of the instant citations (slip

2

The Commission concluded that "Peabody's remedial
measures clearly demonstrate a good faith, reasonable belief
that it was taking the steps necessary to solve its dust problems
and this record cannot support a finding of high negligence or
unwarrantable failure . " Slip opinion at page 6. I infer that
the record may support a finding of ordinary negligence; otherwise the Commission would have concluded that it did not do so.

789

opinion at page 6). The contents of the approved dust control
plan were covered in annual refresher training and at least at
some unspecified number of recurring safety meetings (Tr. 213).
Additionally, in May, 1992, the Superintendent and chief mine
manager of Camp No. 1 Mine went to employees in each working
.section and explained in detail Respondent's dust control program
(Tr. 213).
I conclude that the instant violations were the result of
Respondent's "ordinary" negligence . Sampling by MSHA in 1991
and 1992 indicated that compliance with the standard was
achievable with the equipment already on site, thus putting
Peabody ~n notice that something else, such as improper work
practices, was partially the cause of its excessive respirable
dust readings (Tr. 48, 89). Moreover, the results of the
company's sampling in the latter part of 1992 was not such that
it should have led Respondent to believe that it had solved the
problem. For the three bimonthly sampling periods May-October
1992, the results of Peabody's sampling on the three cited
machines was as follows:
Sampling
Period

MMU 044

MMU 056

MMU 047

May-June '92

l.Smg/m3

1..3mg/m3

Non Producing

July-Aug '92

Non Producing

l.2mg/m3

l.9mg/m3

Sept. -Oct. '92

Non Producing

1. 6mg/rn3

\

\

"

2.4mg/rn3(viola
ti on)

I conclude that these results were insufficient to give a
reasonably prudent operator assurance that it had solved its
respirable dust problem, and should have put it on notice that
greater attention to employee work practices was necessary.
Thus, I conclude that the violations found in the NovemberDecember 1992 sampling period on MMU 044 and 056, and the
violation found on MMU 047 in the January-February 1.993 sampling
period, were the result of some degree of negligence.
Considering all six criteria in section llO(i) of the Act in
unison, I conclude that a penalty of $1,500 is appropriate for
each section 104(a) citation in this case.

790

ORDER

1. Citation Nos . 3551261, 3551262 and 3551263 are affirmed
as section 104(a) viol ations.
Peabody Coal Company shall, withing 30 days of the dat e
of this decision, pay to the Secretary $4,500 for the violations
found herein.
2.

Qaq...~
Administrative Law Judge
Distribution:
Anne T. Knauff, Office of the Solicitor, U.S . Department of
Labor, 2002 Richard Jones Rd., Suite B-201, Nashville,
TN 37215 (Certified Mail)
David R. Joest, Esq . , 1951 Barrett Court, P.O. Box 1990,
Henderson, KY 42420 - 1990 (Certified Mail)

/lh

79 1

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OPFICB OF AJ»UNISTRATIVJ: LAW JUDOBS
2 SJCYLINB, 10th PLOOR
5203 LKBSBtJRG l'IltB
PALLS CBORCB, VIRGINIA 22041

MAY 1 5 1996
LANCE A. PAUL,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. WEST 95-228-DM
MSHA Case No. WE MD 95-04

NEWMONT GOLD COMPANY,
Respondent

Gold Quarry
Mine ID 26-00500

DECISION APPROVING PROPOSED CIVIL PENALTY

Before:

Judge Feldman

This matter is before me based upon a discrimination
complaint filed on March 1, 1995, pursuant to section 105(c) (3)
of the Federal Mine Safety and Health Act of 1977 (the Mine Act),
30 U.S.C. § 815(c) (3) by the complainant, Lance A. Paul, against
the respondent, Newmont Gold Company (Newmont). On February 22,
1996, a decision on liability was released wherein it was
determined that Newmont's November 10, 1994 discharge of
Lance Paul was discriminatorily motivated and in violation of
section lOS(c) of the Mine Act. 18 FMSHRC 181. A Supplemental
Decision approving the parties' Joint Stipulation for Settlement
awarding Lance Paul economic reinstatement in li°~u of
reemployment was issued on April 11, 1996. 18 FMSHRC
The February 22, 1996 decision on liability, citing
Commission Rule 44(b), 29 C.F.R. § 2700.44(b), requested the
Secretary to consider filing with this Commission an appropriate
petition for the purpose of ~reposing a civil penalty for
Newmont Gold Company's violation of section lOS(c) of the
Mine Act.
On March 18, 1996, the Secretary filed a Petition for
Assessment of Civil Penalty proposing imposition of a civil
penalty of $9,000.00 in this matter. On May 7, 1996, Newmont,
through counsel, filed a response to the Secretary's Petition
stating that, uin the interests of completing this matter without
further cost and expense of litigation, [it] does not contest the
proposed pen~lty assessment." I construe the respondent's
decision to pay the proposed civil penalty as a motion to approve
settlement.
792

ORDER
I have considered the record 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, IT IS ORDERED
that Newmont Gold Company tender payment of a civil penalty of
$9,000.00 to the Mine Safety and He~lth Administration in
satisfaction of the subject violation of section lOS(c) of the
Mine Act. Payment shall be made within 30 days of this decision.
Upon timely receipt of this civil penalty, and Newmont's timely
payment to Paul of the stipulated relief as specified in the
April 11, 1996, decision on damages, this case XS DISMISSED .

...
Law Judge
Distribution:
Lance A. Paul, P.O. Box 21115, Crescent Valley, NV 89821
(Certified Mail)
Lance A. Paul, c/o Operating Engineers Local 3, 1094 Lamoille
Highway, Elko, NV 89801 (Certified Mail)
Charles W. Newcom, Esq., Sherman & Howard L.L.C., First
Interstate Tower North, 633 Seventeenth Street, Suite 3000,
Denver, CO 80202 (Certified Mail)
Don R. Hullinger, Director, Human Resources, Newmont Gold
Company, P.O . Box 669, Carlin, Nevada (Certified Mail)
Mark R. Malecki, Esq., U.S . Department of Labor,
Office of the Solicitor, 4015 Wilson Boulevard, Arlington,
VA 22203 (Certified Mail)
/mca

793

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

MAY 2 0 1996SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner

v.

CIVIL PENALTY PROCEEDINGS

.
...
.

AGGREGATE PRODUCTS INC.,
Respondent

Docket No. WEST 95-201-M
A.C. No. 04-04678-05522
Docket No. WEST 95-496-M
A.C. No. 04-04678-05523
API Pit & Plant

DECISION
Before:

Judge Manning

These cases are before me on petitions for assessment of
civil penalties filed by the Secretary of Labor, acting through
the Mine Safety and Heal th Administration · ( "MSHA") , against
Aggregate Products, Inc. ("API''), pursuant to sections 105 and
110 of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seq. (1988) ("Mine Act").
The petitions allege seven
violations of the Secretary's safety regulations.
The parties filed a joint stipulation of fa,cts in lieu of
presenting evidence at a hearing. The only issue in the case is
whether MSHA has jurisdiction over API's screening plant. This
issue was fully briefed by the parties.
For the reasons set
forth below, I find that MSHA does have jurisdiction over the
screening plant. Accordingly, I assess penalties in the amount
of $380.00.

I.

STIPULATED FACTS

The parties presented the following stipulated facts:
1. The citations in this proceeding are true and accurate
in their statement of conditions existing at Aggregate Products
Inc., screening plant.
2. The said proposals were duly filed against Respondent in
accordance with the Rules of the Federal Mine Safety and Health
Review Commi$sion published in Title 29, Code of Federal Regulations, Section (2700.25) and duly contested.
794

3. Respondent has contested the instant violations on the
basis of MSHA's alleged lack of jurisdiction over the Screening
Plant operated by API, and in the context of said contest has
sought a formal legal opinion to that effect.
4. OSHA is not asserting jur~sdiction over the subject
screening plant, and has not issued citations or inspected API's
screening plant.
5. The Civil Penalties as proposed will not adversely
affect the operator's ability to remain in business.
6. The citations in this proceeding were timely abated by
the respondent in good faith.
7. John Corcoran, President of Aggregate Products, Inc.,
owns the property on which the extraction, milling, and asphalt
operations are situated.
8. The contractor, DCL hired and paid by API, is responsible for the initial extraction process of the material. DCL
operates its own equipment including front-end loaders, crusher,
and conveyors.
9. DCL produces crushed sand and gravel for API according
(to) size specifications mandated by API. DCL employs approximately three to four employees in this operation. The material
produced by DCL is stockpiled for use by API.
10. API employs approximately 15 to 20 employees in its
operation which consists of a screening plant and asphalt plant.
11. API, using API employees and equipment, tr~nsports the
crushed material by use of a front-end loader from the stockpile
provided by DCL to the Screening Plant feed bin operated by API.
The screening plant is located approximately 300 feet from the
DCL stockpile. The material is then conveyed approximately 80
feet to the top of the Screening Plant where it is processed into
the size necessary for the production of Asphalt.
12. The screening plant owned and operated by API screens
the crushed sand and gravel into specific sizes required for the
Asphalt operation. The Screening Plant is. a 6' X 16' "Simplicity" Screening Plant consisting of three screening decks for the
required size and several conveyors which transport the sized
rock to their respective stockpile. Normally, there are four
separate stockpiles consisting of 3/8, 1/2, 3/4 inch size rock
for use in the Asphalt Plant (for) the production of asphalt.
13. API collects the appropriate sized rock and deposits the
rock in the required cold feed bin for mixing with the Asphalt
Operation.

795

14. Approximately 1% to 4% of the material from these specific stockpiles is sold to the consuming public. The remainder
is sold to other contractors or used within the asphalt
operation.

rr.
A.

SUMMARY OF THE PARTIES' ARGUMENTS

Secretary of Labor

The Secretary argues that the definition of the term "coal
or other mine" in section 3 (h).(l) of the Mine Act should be
broadly construed to include Respondent's screening plant. He
argues that Respondent's screening plant is a mill that sizes the
material mined by DCL. He contends that a screening plant need
not be owned by the same firm that extracts the minerals for Mine
Act jurisdiction to attach. In making its arguments, the Secretary relies upon the Interagency Agreement between the Occupational Safety and Health Administration ("OSHA") and MSHA.
44
Fed. Reg. 22827 (April 17, 1979) and several court decisions that
discuss Mine Act jurisdiction.

B.

API

API contends that the mining and milling cycle consists of
the extraction of the material, the crushing and screening of the
material by DCL, and the storage of the crushed and screened
product by DCL in a stockpile. It believes that the hot-mix
asphalt cycle begins when the previously milled material arrives
at API's hot-mix screening facility for refining to the grade
necessary for asphalt. Thus, it contends that Mine Act jurisdiction ends at DCL's stockpile of crushed aggregate. API argues
that its screening plant is incident to and par~, of its manufacture of hot-mix asphalt and is not subject to MSHA jurisdiction.

III.

DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

The starting point for any analysis of Mine Act jurisdiction
is the definition of coal or other mine. A coal or other mine is
defined, in pertinent part, as: "(A) an area of land from which
minerals are extracted ... , (B) private ways and roads appurtenant to such area, and (C) lands, excavations .. . structures,
facilities, equipment, machines, tools, or other property ...
used in, or to be used in the work of milling of such minerals,
or the work of preparing ... minerals." 30 u.s.c. § 802(h) (1).
The Senate Committee that drafted this definition stated its
intention that "what is considered to be a mine and to be regulated under this Act be given the broadest possible interpretation, and ... that doubts be resolved in favor of inclusion of a
facility within the coverage of the Act." s. Rep. No. 181, 95th

796

Cong., 1st Sess. 14 (1977), reprinted in Senate Subcommittee on
Labor, Committee
Human Resources, 95th .Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977,
at 602 (1978) (Legis. Hist.).

on

The issue is whether API is milling minerals at its screening plant in Imperial county, California. The term "milling" is
not defined in the Mine Act and the parties base their arguments,
in part, on the MSHA-OSHA Interagency Agreement ("Interagency
Agreement").
It is important to understand that in some respects
the Interagency Agreement is not applicable to API's facility.
API's screening plant is not subject to inspection by OSHA because the State of California has assumed responsibility for
occupational safety and health inspections under its own program
("Cal/OSHA"). In California, mines are subject to periodic inspection by Cal/OSHA despite the fact that MSHA also inspects
these facilities. See generally, Cal. Lab. Code § 6303.5; 30
u.s.c. § 955(a). Thus, there is overlapping safety and health
jurisdiction at mines in California. The Interagency Agreement
is relevant in this case only as it describes the Secretary's
interpretation of the boundaries of MSHA jurisdiction, not the
limits of OSHA jurisdiction.
The Inter agency Agreement provides, i .n pertinent part, that
"milling consists of one or more of the following processes:
crushing, grinding, pulverizing, sizing, concentrating, washing,
drying ••.. " 44 Fed. Reg. at 22829 (emphasis added). Sizing is
defined as "the process of separating particles of mixed sizes
into groups of particles of all the same size, or into groups in
which particles range between maximum and minimum sizes." Id.
The Interagency Agreement further states that "OSHA jurisdiction
includes .•. , whether or not located on mine property: ...
asphalt batch, and hot-mix plants." Id. at 22827. Finally, the
Interagency Agreement provides that OSHA authority commences at
an asphalt-mixing plant "after arrival of sand and gravel or
aggregate at the plant stockpile." Id. at 22829-30. These
prov_isions of the Interagency Agreement provide an appropriate
guideline for analyzing this case. The Commission is required to
give "weight" to the "Secretary's interpretations of the law."
Leqis. Hist. at 637.
All of the citations were issued at API's screening plant.
If the screening plant is part of the milling process then MSHA
has jurisdiction over it. If, on the other hand, the screening
plant is part of API's hot-mix plant, MSHA does not have jurisdiction over it. API contends that it takes finished product
from DCL and uses this product in connecti'on with its production
of hot-mix asphalt. It maintains that it "uses its screening
facility solely for the purpose of separating gravel into various
sizes which in turn is used by API itself to manufacture hot-mix
asphalt."
(Br. at 5). According to API, its screening of gravel
is part of the manufacturing process.

797

I conclude that the screening plant is subject to MSHA jurisdiction.
I have analyzed this case without regard to ownership or control. The facts show that DCL owns equipment at this
facility and controls part of the operation, API owns equipment
and controls other parts of the operation, and Mr. Corcoran,
President of API, owns the real _property on which the extraction,
milling, and hot-mix production takes place. The issue of jurisdiction in this case does not hinge on questions of ownership and
control. See, e.g. United Engineering Services, Inc. v. FHSHRC,
35 F.3d 971, 975 {4th cir. 1994). The result would be the same
if one individual or corporation owned and controlled the entire
facility. The key to this case is what happens at each stage of
the operation as the material flows through the facility.
The first stage is the extraction of material from the
ground. This function is clearly subject to MSHA jurisdiction.
Next, the material is crushed. This stage is part of the milling
process and all agree that it is under MSHA's jurisdiction. The
third stage is the initial screening. TWo piles are produced by
this screening, a product stockpile and a waste stockpile. The
parties do not dispute that this initial screening is under MSHA
jurisdiction. Next, a front-end loader takes the material from
the product stockpile and transport it about 300 feet to a hopper. The material is then transported on a conveyor belt to the
top of the screening plant that is the subject of this case. As
described in the stipulation, this screening plant separates the
material by size. Three or more stockpiles are generally created, each with its own distinct mix of material. It is this
material that is deposited in the cold feed bin of the hot-mix
asphalt plant for use in the production of asphalt. 1
API's screening plant sizes the material fqr use in the
asphalt plant. Sizing is included in the defini~ion of milling
in the Interagency Agreement. This plant takes particles of
mixed sizes that are present in DCL's product stockpile and separates the particles into groups of particles of the same size or
range of sizes. This screening process fits precisely into the
Secretary's definition of sizing in the Interagency Agreement.
As stated above, the fact that API performs this function rather
than DCL is irrelevant in this case. DCL's initial screening to
remove waste material occurs about 300 feet from the screening
that sizes the material.
I find that both screening facilities
are part of the milling operation despite the fact that two different companies accomplish these tasks.
In addition, under the Interagency Agreement, OSHA's authority at asphalt mixing plants "commences after arrival of sand and
gravel or aggregate at the plant stockpile." 44 Fed. Reg. at
The parties agree that th~ hot-mix plant is not subject
to MSHA jurisdiction.

798

228830. In this case, I find that API's stockpiles containing
the screened material is t~e "plant stockpile" for purposes of
the Secretary's interpretation. Although Cal/OSHA has jurisdiction over the entire operation, this portion of the Interagency
Agreement still provides guidance as to the boundaries of MSHA's
jurisdiction. MSHA's jurisdiction ends upon arrival of the sized
material at API's stockpiles.
API asserts that neither the courts nor the commission has
"asserted jurisdiction over a facility that handles and/or processes minerals in connection with its manufacturing operations."
(Br. at 2}. API distinguishes the facts of a number of Commission and court cases and states that these cases held that an
employer is subject to MSHA jurisdiction ".where the employer is
only engaged .in the transportation and processing of raw materials."
(Br. at 8) (emphasis in original). It states that the
decision in Donovan v. Carolina Stalite Co., 734 F.2d 1547 (D.C.
Cir. 1984), is not applicable because the Stalite facility processed slate and sold its raw slate product to other companies
that manufactured masonry blocks. API believes that it is significant that the employer in that case did not manufacture
masonry blocks. API also believes that the decision in United
Engineering, 35 F.3d 971, does not apply because the employer
handled and processed raw coal as an end product. API believes
that Mine Act jurisdiction attached to the employer's facilities
because the coal it transported and processed was not used in any
manufacturing process or incorporated into some other product.
Rather, the coal was consumed in its raw state at the employer's
power plant.
API contends that its activities are analogous to the situation that existed in Oliver M. Elam, 4 FMSHRC 5 (January 1982}.
The Commission determined that MSHA did not have jurisdiction
over the employer in that case because it crushed and conveyed
coal solely to load it for shipment and not to meet customer
specifications or to render the coal fit for any particular use.
API maintains that it does not operate its· screening plant to
meet customer specifications or to render the product fit for any
particular use, but rather it operates the plant as part of its
hot-mix asphalt plant. 2

2

The parties dispute the meaning of paragraph 14 of their
stipulated facts.
Apparently, some of the material in API's
stockpiles is sold to the public, but the parties disagree as to
the amount that is sold. API contends that the amount sold is
insignificant while the Secretary maintains that API is in the
business of selling screened sand and gravel.
Because of this
dispute, I have assumed that all of the material screened by API
is used in its hot-mix asphalt plant.

799

I disagree with API's arguments. First, contrary to API's
position, API does not take "finished" product from the DCL
product stockpile. API screens this material to produce stockpiles of different-sized rock. The material in DCL's stockpile
is not a finished product but is raw material. Second, API
screens the material to render it fit for a particular use, the
production of asphalt. The material is not sized to make it
easier to handle or to ship, as in Elam, it is sized so that it
can be used to make asphalt. Thus, it is sized to meet customer
specifications. The fact that API is also the customer is not
important. The material is sized to meet the specifications of
API's asphalt plant.
Final~y, the fact that the sized rock is ultimately used in
a manufacturing process does not change the result. The material
produced by the employer in Carolina Stalite was used to manufacture masonry blocks. The employer did not own the manufacturing
plant and such a plant was not located at the site, but those
facts do not change the result. There is no indication in
Carolina Stalite that the court would have reached a different
conclusion if the employer also operated a masonry block plant on
the same site. In addition, United Engineering cannot be distinguished on the basis that the coal was burned "in its raw
state" at a power plant rather than incorporated into a product.
In the case of coal, it is crushed, sized, and prepared for use
in a particular power plant. The crushed material that API obtained from DCL was sized for use in a particular asphalt plant.
In United Energy, the fact that the prepared coal was a fossil
fuel that was consumed as it was used is not determinative.

IV. CIVIL PENALTY ASSESSMENT

API did not contest the specific allegations, set forth in
the seven citations. Accordingly, I affirm the citations. MSHA
proposed a penalty of $380.00 for the citations.
I have considered the representations and documentation submitted in these
cases, and I conclude that the proposed penalty is appropriate
under the criteria set forth in section l l O(i) of the Mine Act .

V.

ORDER

Accordingly, the citations in these
AFFIRMED, and Aggregate Products Inc.
Sec retary of Labor the sum of $380.00
of this decision.
~·

Richard w. Manning
Administrative Law

800

date

Distribution:
Paul A. Belanger, Conference and Litigation Representative, Mine
Safety and Health Administration, 3333 Vacavalley Parkway, #600,
Vacaville, CA 95688 (Certified Mail)
Gregory D. Wolflick, Esq., WOLFLICK & SIMPSON, 130 N. Brand
Boulevard, Suite 410, Glendale, CA 91203 (Certified Mail)
Armida Castro, Safety Director, AGGREGATE PRODUCTS INC., P.O . Box
5215, Salton City, CA 92275-5215 (Certified Mail)
RWM

801

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

MAY 2-1 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
WILLIAM KACZMARCZYK,
Complainant

DISCRIMINATION PROCEEDING
Docket No. PENN 95-1-D
MSHA Case WILK CD 94-01
Ellangowan Refuse Bank
No. 45

v.
READING ANTHRACITE COMPANY,
Respondent

DECISION ON REMAND APPROVING SETTLEMENT

Before:

Judge Amchan

On March 15, 1996, t.he Commission remanded this case to me
to apportion the stipulated damages between lost overtime wages,
which are subject to Federal Income Tax withholding and past-due
workers compensation benefits, which are not subject to
withholding.
Pursuant to my order after the ~emand, the parties
have entered into a joint stipulation that accomplishes this
apportionment. The parties have agreed as follows:
1. Complainant sustained damages in the amount of $4,225.92
for bQ.t.h lost overtime and additional worker's compensation
payments.
2. A reasonable approximation of the amount of money
Mr. Kaczmarczyk would have earned in over-time compensation had
he been actively employed by Respondent between October 15, 1993
and September 18, 1994, is $1,630 1 •

On. May 24, 1995, I concluded that Complainant's transfer
from light duty to workers compensation status during this period
violated section 105(c) of the Act, 17 FMSHRC 784 (ALJ May 1995).
1

802

3. Complainant would have received $2,595.92 in worker's
compensation.payments between October 15, 1993 and September 18,
1994, had he earned $1, 63.0 in overtime.
While Complainant may attempt to recover monies withheld
by Respondent from the Internal ~evenue Service, or other taxing
authority, Reading Anthracite Company is not liable to
Complainant for any payment that may be associated with overwithholding on monies paid as damages in this matter.
4.

ORDER

have considered the parties' stipulations in this matter
and conclude that they are consistent with the Federal Mine
Safety and Health Act. Therefore, I approve the stipulation as a
settlement of this matter and DISMISS this case.
I

(1,.A (L_ J_ ~~-.
A~hM J. Amchan
Administrative Law Judge
Distribution:
Stephen D. Turow, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd . , Suite 400,
Arlington, VA 22203 (Certified Mail}
\

Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich,
P.C., Second Street & Laurel Blvd., P.O. Box 450, Pottsville,
PA 17901 (Certified Mail)

/lh

80 3

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

MAY 2 2 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRAT ION (MSHA),
Petitioner
v.
JIM WALTER RESOURCES,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. SE 95-339
A.C. No. 01-01401-04078
Docket No. SE 95-344
A . C . No. 01-01401-04080
Docket No. SE 95-367
A.C. No. 01-01401-04086
Do cket No. SE 95 - 369
A . C . No . 01-01401-04089
Dock et No. SE 95-476
A.C. No. 01-01401-04 1 03
No. 7 Mine
\

Docket No. SE 95-358
A.C. No . 01 -01322-04013
No. 5 Mine
DECISION
Appearances :

William Lawson, Esq., U . S. Department of Labor ,
Office of the Solicit or, Birmin gham, Alabama, for
the Petitioner;
R . Stanley Morrow, Esq., Jim Walters Resources,
Inc., Brookwood, Alabama, for the Respondent.

Before: Judge Weisberger

804

Statement of the Case
These cases are before me based upon several Petitions for
Assessment of Civil Penalty filed by the Secretary (Petitioner)
alleging violations by Jim Walter Resources (Respondent) of
various mandatory safety standards_ set forth in Title 30 of
the Code of Federal Regulations . Pursuant to Notice, Docket
No. SE 95-369 was heard in Hoover, Alabama on January 17 and 18,
1996, and February 27, 1996. The parties settled four of the six
orders at issue , 1 and the two remaining orders were litigated.
The parties each waived the opportunity to file a post
hearing brief, and in lieu thereof, presented a closing oral
argument.
Findings of Fact and Discussion
I.

Order No. 3192511
A.

Petitioner's Case

On April 10, 1995, at approximately 11:00 p.m., Keith
Plylar, Chairman of the UMWA safety committee, performed a
bimonthly examination of the East A and B belts. At approxi mately 12:30 a.m. , he observed float coal dust in the air,
several "bad" top and bottom rollers (Tr. 24), and several bottom
rollers turning in coal on the floor 2 • He indicated that the
belt was not aligned, the tail roller was running .in an
accumulation of coal that was twenty four to thirty six inches
deep, and coal dust was being blown in the air.
Plylar also

1

0n February 27, 1996, Respondent , with the concurrence of.
Petitioner, presented motions to approve settlements regarding
these four orders, and the remaining docket numbers (infra, .I.I.I
and .no.
2The

rollers are metal and are approximately four feet long.
Sets of three top rollers were located about five feet apart
along the length of the belt. A single bottom roller was located
about every ten feet .

805

noted that the belt was cutting into the belt frames 3 which were
hot to the touch . He also noted accumulations under the rollers,
and on the roof and ribs of the entry.
Plylar indicated that the conditions that he observed
presented a hazard in that friction could be created, and
additional coal dust could be thrown into the air.
Plylar opined, based upon fifteen years experience working
underground in coal mines, that the amount of the accumulations
of coal that he observed, and its black color indicated a
"continuing buildup" over a "[m]atter of days" (Tr . 33). In
this connection, he noted that the coal accumulations varied
between three inches and twenty-four inches deep, and extended
for the entire length of the belt from the header inby to the
tailpiece. He opined that due to the extensive amount of float
dust on the roof, ribs, and floor, the material had not
accumulated "within a matter of hours" of his examination
(Tr. 79).
At 1:45 a.m., Plylar pointed out the above conditions to
Bobby Taylor, Jim Walter's ·Safetyman, and asked him to shut down
the belt in order to clean it , as there was a "severe hazard'; to
miners working near the belt line (Tr. 24) . According to Plylar,
Taylor told him that he agreed that the condition was bad enough
to shut down the belt, but that he did not have any authority to
do so. Plylar suggested that Taylor get i n touch with someone
who did have this authority. Taylor called Trert~ Thrasher the
shift foreman. Plylar indicated that after Taylor talked to
Thrasher, he (Taylor) informed him (Plylar) that " . . . they
didn't have anyone to put on this belt line at this time"
(Tr. 26) .
Plylar indicated that on "several occasions," {Tr. 45) he
had observed "smoldering" or "glowing spots" {Tr. 43, 44), and
smoke on the belt line . He opined that these conditions were
caused by the belt not being aligned properly, and the belt

3The

terms "belt frames," "belt stands," and "belt
structures," are all synonymous.

806

"cutting into the belt stands" (Tr. 45). Also he indicated that,
"pretty frequently
(Tr. 45) miners had reported fires to him
that they had seen in the mine.
11

,

Plylar came out of the mine at approximately 4:30 a.m. At
that time, no one was cleaning the· belt line. Plylar called the
MSHA office at approximately 7:00 a.m., to report the conditions
that he had observed, and to request a section 103(g) inspection.
John Thomas Terbo, an MSHA inspector, testified for
Petitioner. On April 11, 1995, at approximately 9:45 a.m.,
Terbo inspected the East B-belt in the presence of Larry
Morgan, the ·day shift mine foreman and Larry Spencer, the union
representative. He indicated that he commenced his examination
of the outby and of the B-belt, and continued inby down to the
tail roller, a distance of approximately 5 , 000 feet. Terbo
indicated that to the best of his recollection the belt was
running when he arrived at the site.• According to Terbo, he
observed coal dust in the atmosphere. Also, he noted that the
floor, ribs, and roof, including the cross cuts, were black for
the entire length of the belt. He indicated that since normally
these areas are white due to the presence of rock dust, the black
color was "very obvious" (Tr. 94). He also observed an
accumulation of coal dust on the starter box. Terbo testified
that there was float dust, black in color, on top of all
components inside the starter box. 5 He noted that opening and
closing of electrical contacts in the box, which occurs when
power to the belt is turned on and off, can cause arcing. He
opined that the coal dust "[a]bsolutely" did not result from
spillage (Tr. 100).

4

Keith Wayne Ely, an MSHA supervisory ventilation
specialist, indicated that at 10:07 a.m., the A-belt was not
running. He indicated that, in general, if the A-belt is not in
operation, then the B-belt is not in operation. It is not
necessary to make a finding as to whether the belt was operating,
when the order at bar was issued. The issues presented by the
order will be resolved based on a consideration of continued
normal operations which includes activation of the belt line.
son cross examination, it was elicited that dust in the
starter box can only be seen when the cover is removed.

807

According to Terbo, the tail roller and "numerous" (Tr. 101)
metal belt rollers were turning in coal dust on the floor . He
indicated that the eventual grinding of the coal dust caused by
these conditions can result in the production of fine dust which
could become airborne, and provide fuel for a fire. Terbo noted
that some rollers were hot, and the belt stands were ~extremely
hot" (Tr. 106). Also, the belt was cutting into the stands, and
there were accumulations on the stands. Terbo indicated that
with continued normal operations, it was "highly likely" that
these conditions would contribute to a fire hazard (Tr. 105).
Terbo opined that, in the event of a fire, injuries to miners
at the face as a result of smoke inhalation would have occurred,
inasmuch· as the belt entry was ventilated by intake air which
flowed inby to the face.
Access to the face was by way of vehicles that traveled on
a track located next to, and parallel to the belt. According to
Terbo, "[i)t was very obvious if you traveled this track entry,
and supervisors travel this track entry on a shift by shift
basis, that you could see these conditions were there" (Tr. 111).
He also noted that the accumulations extended 5,000 feet, and
that "these conditions" (Tr. 111), were noted in the fire boss
book "dating back to April 4th of '95 (Tr. 109). He opined that
the accumulations he observed did not occur in one day, and that
they had existed "[f]or days" (Tr. 115). He based this opinion
upon the extent of the totally black accumulations that extended
for 5,000 feet, and covered the roof, ribs, and floor.
11

Terbo issued an order alleging a violation of 30 C.F.R.
75.400 which provides that "coal dust, . . . shall be cleaned
up and not be permitted to accumulate in active workings, . . . "
§

B.

Respondent's Case

David Gable, the assistant mine foreman at the No. 7 Mine,
has sixteen years experience as a miner. He did not observe the
belt in question on April 11, prior to its inspection by Terbo.
Gable first observed the belt on April 11, around noon. He
indicated that there was not an "inordinate amount of spillage"
on the belt line (Tr. 156) .
Gable testified that Morgan, who was present when the area
was inspected by Terbo, told him that he (Morgan) did not feel

808

that the spillage was enough to warrant an order, and "[t]hat we
had people working in the area trying to take care of this
problem . . . " (Tr. 198).
Gable indicated that, in general, coal normally slips off
from the ribs, and that spillage from belts is an everyday
occurrence. According to Gable, when he observed the entry at
issue it was "[b]lack to gray" (Tr. 188). He also indicated that
he did not see the tail roller, or other rollers turning in coal
dust.
C.

Analysis
1.

violation of 30 C.F.R.

§

75.400

Respondent did not prof fer the testimony of Morgan or other
eyewitness to the conditions observed by Terbo on April 11.
Hence, there is no eyewitne·ss testimony to contradict Terbo' s
testimony regarding his observations on April 11. In this
regard, I note that Gable testified that the entry was black to
gray when he observed it a few hours after Terbo's inspection,
and that he did not see the tail roller or other rollers turning
in coal dust. I find this testimony insufficient to rebut
Terbo's testimony as to what he observed during his inspection.
I thus accept Terbo's testimony. I find that there was an
accumulation of coal dust in the B-belt entry to the extent and
degree testified to by Terbo.
(See, Old Ben Coal Company,
1 FMSHRC 1954 (December 1979 )) .
Plylar testified that, as observed by him at approximately
12:30 a.m., on April 11, there was an accumulation of coal, black
in color, between three inches and twenty-four inches deep, for
the entire length of the belt at question . There is no evidence
that the material observed by Plylar had been cleaned prior to
Terbo's inspection, and that the coal dust observed by Terbo had
just accumulated. There is no evidence to establish specifically
when the coal dust observed by Terbo had been deposited in the
areas noted by him. I discount entirely Morgan's hearsay opinion
that the spillage was an everyday occurrence, and was not enough
to warrant a section 104(d} order. I find that hearsay opinion
is inherently unreliable, and hence this testimony is
disregarded.

809

Gable indicated that spillage from belts is a "common
occurrence" (Tr. 154), and that what he observed midday on
April 11, was not "an inordinate amount of spillage" (Tr. 156 ) .
However, taking into account the black color, depth, and extent
of the coal dust accummulations, 6 I find that the coal dust had
been "permitted to accumulate" in the entry at issue, and in the
starter box. I thus find that it has been established that
Respondent did violate section 75.400 supra.
2.

Significant and pubstantial

A "significant and substantial 11 violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard. 11
30 C.F.R . § 814(d) (1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division.
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of
Labor must prove:
(1) the underlying violation of a
mandatory s~fety standard; (2) a discrete safety
hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.

6

I find that the accumulations covered the roof, floor and
ribs of the entry at issue for the entire length of the entry .

810

In United States Steel Mining Company. Inc., 7 FMSHRC 1125,
1129, the Commission stated further as . follows:
We have explained further that the third element
of the Mathies formula "requi!es that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect · of a hazard that must be significant and
substantial. U.S. Steel Mining Company. Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company .
.In.Q., 6 FMSHRC 1573, 1574-75 (July 1984).
As set forth above, (I) (C) (1) infra, the evidence clearly
establishes a violation of section 75.400 supra. Based upon the
testimony of Terbo, as corroborated by Plylar, I find that due to
the extensive presence of coal dust, fine coal dust in the air,
and rollers turning in dust, the violation contributed to the
hazard of a fire or explosion. The belt may not have been
running when initially observed by Terbo. However, taking
cognizance of the extent of the violative conditions herein,
I find that the hazard of a fire or explosion woul~ have
been contributed to given the continuation of normal mining
operations, i.e., the mining of coal and the runni~g of the belt.
\

In analyzing the third element set forth in Mathies, supra,
i.e., the likelihood of an injury producing event, I note that
carbon monoxide sensors were placed at intervals along the entry,
the belt was flame retardant and resistant, and no injuries had
been reported at Respondent's mines due to the type of conditions
observed by Terbo. However, I place more weight on the existence
of the following: the extent and depth of the coal dust
accumulations, the presence of float coal dust in suspension, the
presence of coal in a starter box where arcing is possible, the
presence of hot rollers and stands, the fact that the belt was
cutting into some stands, the accumulation of coal on and around
the stands, and the presence of rollers turning in dust.
I conclude, based on all these circumstances, that given
continued mining operations, the hazard of a fire or explosion
was reasonably likely to have occurred. Further, based upon the

811

uncontradicted testimony of Terbo, I conclude that should this
event have occurred, it was reasonably likely to have resulted in
an injury of a reasonably serious nature. For these reasons, I
conclude that the violation was significant and substantial .
3.

Unwarrantable Faiiure

In essence, it appears to be Respondent's position, as
articulated by Gable, that spillages are common, and that the
conditions observed by Terbo ~ere not out of the ordinary and did
not have to be cleaned up. Also, it appears to be Respondent's
position that, in general, extensive accumulations can occur in a
short time. 7 However, the record clearly establishes that
accumulations had existed as early as midnight April 11, and had
been reported to management at approximately 1:45 a.m . , on
April 11 . Terbo indicated that two persons were observed
cleaning at the tail of the B-belt. However, there is no
evidence of any other efforts made to clean the extensive
accumulations that extended for 5,000 feet. I thus find that the
record fails to establish that significant efforts were made to
clean the accumulations until Terbo's inspection. In addition,
taking into account the depth of the accumulations, their extent,
and their obvious black color, I conclude that the violation
herein was the result of more than ordinary negligence and
constituted aggravated conduct. I thus find that the violation
resulted from Respondent's unwarrantable failure (see, Emery
Mining Corp., 9 FMSHRC 1997 (1987)).
\

4.

Penalty

I find, consistent with the discussion above, (I) (C} (3)
infra,) that Respondent's negligence was more than ordinary. I
also find that the violation herein was reasonably likely to have
resulted in a fire or explosion causing a serious injury. I thus
find that the level of gravity was high. Further, taking into

7

In this connection, I note the testimony of Plylar, on
cross examination, wherein he indicated that if a belt is out of
alignment, large accumulations, black in color, can result in a
"short amount of time" (Tr. 63) . He also indica.t ed that this can
occur if the header becomes "jammed up with rocks" (Tr. 62) .

812

account the history of section 75.400 violations at this mine, I
find that a penalty of $6,500 is appropriate.
II.

Order No. 3194841.
A.

violation of 30 C.F.R.

§

75.1725

1. Petitioner's Case

Plylar inspected the A-belt on April 10, at approximately
11:30 p . m. At that time, he observed that the belt was out of
alignment, and was cutting into the belt stands. He testified,
in essence, ~hat the belt was running on top of some rollers that
were partially lying on the floor, as l.2Qth ends of these rollers
were no longer attached to the stand. Plylar noted that several
rollers were missing, and several top rollers were "jammed up
together" (Tr. 238). He indicated that the belt frame was hot to
the touch. According to Plylar, there was an accumulation of
coal under the belt drive and the take-up rollers, which extended
the entire length of the belt line.
Plylar indicated that the accumulations had been covered by
rock dust, and extended for the entire belt length which was more
than 4,000 feet . According to Plylar, he had seen the conditions
that he had testified to in the past, and that "several of these
conditions" had been written up in the fire boss book "for the
last several days." {Exh . G-1, Par. 10). Plylar noted that he
had never seen a belt line " . . . with this extent of damage to
it or this extent of belt cutting into the frames . . . "
(Tr. 246) .
At approximately 12:35 a.m., Plylar recommended to Taylor to
turn off the be:-1.t. Taylor responded that he did not have the
authority to shut it down. According to Plylar, he requested of
Taylor to shut the belt down because of the hazard resulting from
the belt cutting into the frames which could cause the belt to
smolder.
On April 11, Keith Wayne Ely, an MSHA supervisory
ventilation specialist, inspected the East A-belt, and walked
the entire length of the belt inby to the B-belt. According to
Ely's contemporaneous notes, (Exh. G-6), at the first · crosscut
inby the take-up roller, a roller was lying on the floor, but was

813

not rubbing against any material on the floor, as the belt was
not in operation. At a half crosscut outby brattice No. 13 8 ,
one end of a roller had come loose from where it was suspended by
a hanger, and was lying on the floor . At brattice No. 14, a
bottom roller was missing which allowed the belt to rub against
the belt stand. At brattice Np. 16, two stands were being rubbed
by the belt. At brattices Nos. 21 and 22, there were rollers on
the bottom . At brattice No. 24, there was a roller with one end
on the floor. At brattices Nos. 29, 31, 32, and 38, the belt was
rubbing against the belt stand. A roller was missing at brattice
No. 38. At brattice No. 42, · there was an accumulation of coal
that was eight inches deep, ten inches wide, and extended for
twenty-four inches. At brattice No. 44, the stands were too hot
to touch.
Ely noted that the belt was rubbing against the belt stand
causing grooves up to one inch deep . 9 According to Ely, at one
location the belt structure had worn to the point where it was no
longer solid, but had been cut into two pieces. Ely indicated
that he had touched the belt structure with the back of his hand,
and it was so hot that he had to remove his hand.
Ely indicated that if one end of a roller had become
detached, and was lying on the floor, the end that was still
attached and not rotating could become heated by the belt rubbing
against it. Also, the movement of the belt could cause the
roller end that was on the floor to rub against the floor, and
create friction and heat. According to Ely, i f the belt is not
aligned properly, and travels from side to sid~ , it can rub
against the metal belt stands, and cause the belt to become
frayed. Should this occur, the frayed ends can get wrapped up
around the bearings resulting in an "embers" type condition
(Tr. 34 7) .

1

Ely had identified the various brattices as brattice 13,
etc. In the test of this decision, the brattices are identified
as brattice HQ. 1.3_, etc.
90n

cross examination it was elicited that only nine stands
were damaged.

814

Ely indicated, in general, that the conditions that he
observed would lead directly to a fire. He explained that this
conclusion was based upon the presence of coal which was a fuel
for the fire, along with an ignition source i.e., friction along
the belt caused by the rubbing of the belt against the stands,
and some rollers rolling in coal dµst. According to Ely, since
the cited entry was in intake air, and the working section was
located inby, it was highly likely that the resulting fire would
cause injuries due to smoke inhalation.
Ely opined that the violation resulted from Respondent's
unwarrantable failure. In this connection, he indicated that the
belt was examined each shift, and that the cited conditions
could be seen from the track which ran alongside ninety percent
of the belt line . He noted that the black discoloration of the
stands was "very evident" (Tr. 310). He termed the condition of
the rollers as "obvious" (Tr. 310). He stated that the ignition
sources, i.e., the coal accumulations, were "obvious" (Tr. 310).
Further, because the belt traveled from one side to another and
was not aligned properly, he concluded that it had not been well
maintained. 10 Ely concluded that the cited conditions had not
been created within one shift, and that it took several days for
the conditions to have developed. His conclusion was based on
the large number of missing rollers, the existence of grooves in
the metal stands, and the observation that a number of rollers
were connected to the stand on only one end, leaving the other
end lying on the floor.
Ely issued a section 104(d) (2) order alleging a violation of
30 C.F.R. § 75.1725(a) which provides as follows: "Mobile and
stationary ma~hinery and equipment shall be maintained in safe
operating condition and machinery or equipment in unsafe
condition shall be removed from service immediately."

10

Ely also indicated that entries in the fire boss book
confirmed that the cited conditions existed for some time. I do
not place any weight on this testimony. The fire boss book is
the best evidence of its contents. However, the fire boss book
was not offered in evidence.

815

2.

Respondent's Eyidence

On April 11, Gable accompanied Ely was during the entire
inspection of the East A-belt, which was approximately one mi le
long, and contained 4,000 to S,000 rollers . Gable indicated, in
response to a leading question, · that it is "not uncommon" for
eleven rollers to be missing (Tr. 387-388). Gable opined, i n
essence, that the conditions cited by Ely did not present any
safety hazard to miners.
Gable indicated that the belt, and cords contained in it,
are rubber, and fire resistant. Gable indicated that, in normal
operations, spillages are cleaned by twenty-five miners whose
sole task is to clean the belt line.
Bill Woodward, a self employed consultant, who has designed
and helped install belt lines in underground mines, testified for
Respondent. Woodward indicated that as a consultant, he visits
an underground mine five or six times a month, and inspects belt
lines. Woodward opined that if bottom rollers are making contact
with the belt stands, the belt would not be unsafe to people. He
opined that the main problem with missing rollers is damage to
the belt. He indicated that if eleven rollers were bad or
missing along a one mile long belt line, the belt would become
unsafe if the problems with the rollers existed for "[p]robably
four or five days a week" (Tr. 40) (February 27, 1996) . 11 He
opined that should this occur, " . . . that would be more damage
to the belt than anything else" (Tr. 40) (February
27, 1996).
\
According to Woodward, if a belt is rubbing against a stand,
it can take two to three days, or "weeks," "months," or "a few
days," for the belt to cut into the stand {Tr. 42) (February 27,
1936). He explained that it depends upon how hard the belt is
rubbing against the stand, and the type of belt involved.
Woodward stated that, in essence, stuck rollers, and belts not
being aligned properly are "very common" conditions {Tr. 47)
(February 27, 1996). He said that it is "[v]ery, very common"
for belts to be frayed at their edges, and it is "common" for

11

The transcript of the continued hearing on Februray 27,
1996, is cited by reference to the page of the transcript and the
date i.e., February 27, 1996.

816

belts to come in contact with the stands {Tr. 47) {February 27,
1996). Woodward opined that the conditions listed in the order
at issue were not unsafe for miners.
3.

Analysis

In essence, it appears to be Respondent's position that the
belt was not unsafe to miners, since less than two tenths of a
percent of the rollers on the belt were bad, and only nine
stands, i.e., less than nine tenths of a percent of the stands,
were damaged. I reject this argument for reasons that follow.
I accept Ely's opinion that the belt in question was not
maintained in a safe condition. Respondent did not rebut or
impeach Ely's testimony regarding the following conditions: the
belt was not in alignment and was contacting some belt stands,
ten rollers were missing, and at three locations one end of a
roller was lying on the floor. These condition~ cause heat
and friction which ~ lead to smoke or a fire. 12 I reject
Gable's opinion that the belt was safe, as the record does not
set forth in sufficient detail the facts that he took into
account which formed the basis for this opinion. I also reject
Woodward's _opinion that the cited conditions were not unsafe to
miners. On cross-examination, Woodward was asked to explain why
the following conditions do not p~esent any hazards to miners:
the belt being out of alignment, the belt running into the
stands, and the presence of stuck rollers. His response is as
follows: "[i] t just don't" {Tr. 67) {February 27, 1996) . The
only other expressed basis for his opinion was his reliance on
the assumption that the belt in question satisfied MSHA
requirements, and would not burn. There is insufficient evidence
in the record 'to predicate a finding regarding the composition of
the belt, and the degree to which it was flamable . Further, as
set forth in Ely's credible testimony, other conditions were
present which could have caused a fire. I thus find that there
is an insufficient basis to put any reliance upon Woodard's
opinion.

12

See, Exs. G-13, G-14 {Par 2.13), and G-15 .

817

For the above reasons, I find that the belt was in "unsafe
condition", and no unsafe components had been removed when cited.
I thus find that it has been established that Respondent did
violate section 75.1725(a) supra.
4.

Significant and SUbstantial

There is no evidence in the record that there have ever been
any injuries to miners at the subject mine, resulting form the
cited conditions. Also, carb~n monoxide monitors were in place
along the belt line . Further, there is no evidence that there
was any violative coal accumulation along the belt line. Nor is
there any evidence that the belt material did not meet MSHA
specifications.
However, I note the following: The combination of the
violative conditions, the presence of coal, the presence of
friction as testified to by Ely and not contradicted or
impeached, the uncontradicted testimony of Ely that the stands
were hot to the touch, and the fact that the entry was ventilated
by intake air which would have carried any smoke generated by the
friction resulting from the violative conditions down to the
working section. Based on these factors, I conclude that the
violation was significant and substantial {~, Mathies, supra).
5.

Unwarrantable Failure

Respondent did not impeach or contradict El\}'' S testimony
that the violative conditions observed by him were obvious, and
would have been noted by a person traveling alongside the beltway
performing an inspection . There is no evidence as to how long in
~ the violative conditions noted by Ely had existed .
However,
I take cogr1izance of the following: the extent of the conditions
observed by Ely, the fact that grooves had been cut into a stand
to a depth of one inch, the fact that the belt was out of
alignment and not corrected, the fact that conditions had been
observed by Plylar the shift before, the lack of evidence that
these conditions were corrected between the time observed by
Plylar and reported by him to Taylor, and subsequently observed
by Ely the following shift, and the lack of evidence that
Respondent made any significant attempt to correct these

81 8

conditions. Based on all .these factors, I conclude that the
violation herein resulted . from more than ordinary negligence, and
reached the level of aggravated conduct. I thus find that the
violations resulted from Respondent's unwarrantable failure (~,
Emery, supra) .
6.

Penalty

Considering the factors set forth in section llO(i) of the
Act, I find that a penalty of $6•, 500 is appropriate.
III.

Orde~

Nos. 3016179. 3192505. 3021493. and 3192465

At the hearing, Respondent, with the concurrence of
Petitioner, made a motion to approve the settlement the parties
arrived at regarding these orders. It is proposed to reduce the
total penalty from $13,000 to $8,600. I have considered the
representations and documentation submitted, and I conclude that
the proffered settlement is appropriate under the criteria set
forth in section llO(i) of the Act.
IV.

Docket Nos. SE 95-358. SE 95-339. SE 95-367. SE 95-344
and SE 95-476

At the hearing, Respondent, with the concurrence of
Petitioner, made a motion to approve the settlement the parties
arrived at regarding these cases. It is proposed· to reduce the
total penalty from $41,289 to $14,621. I have considered the
representations and documentation submitted, and I conclude that
the proffered settlement is appropriate under the criteria set
forth in section llO{i) of the Act.
ORDER
It is ORDERED that, within 30 days of this decision,
Respondent shall pay a total penalty of $36,221.

be~

Administrative Law Judge

819

Distribution:
William Lawson, Esq., Office of the Solicitor, U.S. Department
of Labor, Suite 150, Chambers Bldg., Highpoint Office Center,
100 Centerview Drive, Birmingham, AL 35216 (Certified Mail)
R. Stanley Morrow, Esq., Jim Walter Resources, Inc.,
P.O. Box 133, Brookwood, AL 35444 (Certified Mail)
/ml

820

FEDERAL MINE SAFETY /4ND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR

WASHINGTON, D.C.

20006

May 24, 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. YORK 95-115-M
A. C. No. 18-00017-05551
Union Bridge Maryland

LEHIGH PORTLAND CEMENT
COMPANY,
Respondent
QECISION APPRQVING SETTLEMENT
ORDER TO

Before:

PAY

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 Solicitor has filed a motion to
approve settlements for the two violations in this case. A
reduction in the penalties from $7,000 to $3,500 is proposed.
Citation No. 3591774 was issued for a violation of 30 C.F.R.
§ 56.5002 which requires that dust, gas; mist, and fume surveys
be conducted as frequently as necessary to .determine the adequacy
of control measures. The inspector issued the citation because
two miners became ill in the area around the mill feed control
center and kiln stack where he believed toxic gases · had accumulated. It appeared to the inspector that the gases came from the
stack of the kiln, which was in the process of being preheated by
three oil torches. According to the inspector's description on
the citation, statements obtained from company personnel at the
scene indicate that the torches may not have been burning properly . Shortly after the first miner became ill, a company
foreman measured greater than 2 ppm of sulfur dioxide and ·19%
oxygen between the 4th and 5th pier on the south side of the
kiln . The citation was designated significant and substantial
and negligence was rated as high. The originally assessed
penalty was $5,000 and the proposed settlement is $2,500.
Tne Solicitor represents that the reduction is warranted
because negligence and gravity are less than originally thought.
According to the Solicitor, the allegation in the citation that
the two employees suffered headaches due to exposure to sulphur
dioxide is not fully supported by available evidence. The
Solicitor states that six gas readings were taken by the foreman

921

immediately prior to the display of symptoms. Only one of these
readings revealed a measurable quantity of sulphur dioxide but
that reading was unreliable because radio frequency interference
from the foreman's portable radio may have triggered a false
reading. According to the Solicitor, although the symptoms
displayed indicated exposure to . some gas accumulation, identification and quantity cannot factually be established.
It appears from his motion that the Solicitor will be unable
to prove the degree of gravity or even the correctness of evidence regarding the gas readings • However, since readings were
taken, the degree of negligence is lessened . Accordingly, I
accept the Solicitor's representations, and approve the proffered
settlement which remains a substantial amount.
Citation No. 3591775 was issued for a violation of 30 C.F.R.
56.4330(a) which requires operators to establish emergency
firefighting, evacuation, and rescue procedures and directs that
these procedures be coordinated in advance with available
firefighting organizations. This citation was issued at the same
time as the one d i scussed above . A Lehigh Cement Management
employee entered a taped off area despite a request from a fire
department officer to wait for properly equipped and trained
personnel. The inspector stated on the citation that the management employee wanted to remove an employee of an independent
contractor from the area.
§

The violation was designated significant and substantial and
negligence was rated as moderate. The originally assessed
penalty was $2,000 and the proposed settlement ~s $1,000. The
Solicitor represents that the reduction is warra'nted because
negligence is not as high as originally thought. According to
the Solicitor, the management official who had just monitored the
area, found no problem with excess gas levels and did not experience any physical symptoms. The Solicitor states that the
official only entered the area in order to evacuate the employee
of a contractor . In addition, my review of the file shows that
on the day after the citation was issued, the inspector modified
it by reducing the likelihood of injury from occurred to highly
likely and the · number of miners affected from two to one .
Finally, I note that no mention was made in the narrative findings tq the effect that this violation caused an injury. In
light of the foregoing, I approve the proffered settlement which
remains a substantial amount and find it is appropriate under
section llO(k) of the Act, 30 U.S.C. § 820(k) .

82 2

I note that these violations do not represent t he first time
the operator has encountered problems like those described in the
subject citations . The operator should consider itself on notice
that if violations like these occur in the future, I will not
approve penalty reductions of this magnitude .
WHEREFORE, the motion for approval of settlements is
GRANTED, and it is ORDERED that the operator PAY a penalty of
$3,500 within 30 days of this decision.

•
Paul Merlin
Chief Administrative Law Judge
Distribution:
Joseph T. Crawford, Esq . , Office of the Solicitor, U.S. Department of Labor, Gateway Bldg., Rm . 14480, 3535 Market St. , Philadelphia, PA
19104
Dennis J. Morikawa, Esq., Morgan, Lewis & Bockius, LLP, 2 000 One
Logan Square, Philadelphia, PA 19103-6993
Mr . Walter E. Smith, Mine Representative , 601 S. Springdale Road,
New Windsor, MO 21776

/gl

823

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

MAY 2 8 1996
CIVIL PENALTY PROCEEDINGS

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

v.

Docket No. WEST 93-62-M
A.C. No. 04-03404-05509

...

Docket No. WEST 93-406-M
A.C. No. 04-03404-05510

CONTRACTORS SAND & GRAVEL
SUPPLY, · INCORPORATED,
Respondent

Docket No. WEST 93-407-M
A.C. No. 04-03404-05511
Docket No. WEST 93-463-M
A.C. No. 04-03404-05512
Scott River Plant
Docket No. WEST 93-117-M
A.C. No. 04-04679-05506
Docket No. WEST 93-141-M
A.C. No. 04-04679-05507
Docket No. WEST 93-408-M
A.C. No. 04-04679-05508
Docket No. WE-ST 93-409-M
A.C. No. 04-0~p79-05509
Docket No. WEST 93-462-M
A.C. No . 04-04679-05510
Montague Plant

DECISION AFTER REMAND APPROVING SETTLEMENT

Before:

Judqe cetti

These consolidated civil penalty proceedings are before me
upon petitions for assessment of civil penalty under section
lOS(d) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq., (Mine Act}. The Secretary of Labor on behalf of the Mine Safety and Health Administration, charged the
operator of the Scott River Plant and Montague Plant with
numerous violations of safety standards set forth in Part 56,
Title 30, Code of Federal Regulations.

824

A Default Decision was issued July 21, 1994, when there was
no response to my Show Cause order. Thereafter, the commission
reopened the matter and vacated the Default Decision and remanded
the matter to this Judge.
Respondent then obtained counsel who filed a timely answer
contesting the alleged violations. · The matter was set for hearing which had to be canceled because of the medical condition of
the principal witness. The parties then filed cross motions for
summary decision. On March 25, 1996, I issued a Summary Decision
vacating Citation No. 3911909 in Docket Nos . WEST 93-462-M and
WEST 94-409-M and dismissing WEST , 94-409-M.
At this time, the remaining consolidated cases are before me
on petitions· for assessment of civil penalties under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. S 815(d). The parties, by counsel, filed an amended
motion to approve a settlement agreement of all the remaining
citations.
Under the proffered settlement there is a reduction
in the amount of the proposed penalties for 12 of the citations
and no changes in the original proposed penalties for 15 of the
citations as follows:

Citation No.
3911911
3636680
3911916
3911919
3636674
3636675
3636676
3914031
3911912
3911914
3911917
3913895
3913890
3913891
3913892
3913893
3913894
3913897
3913883
3911799
3911903
3911907
3911901
3911904
3911905

Health and Safety
standard Cited
CCFR Title 30)

Original
Proposed
Penalty

56.14107(a)
56 . 12013
56.12013
56.14132(b) (1)
56.14109(b)
56.14107(a)
56.14109
56 . 5050(b)
56 . 4200
56.4402
56.12013
56.12028
56 . 14112
56.14112{a)
56.15001
56.18002
56.14100
56.14107
56.15001
56.12041
56.12032
56 . 14107(a)
56.4200
56.14107(a)
56.14109{b)

$3,000.00
267.00
1,457.00
987.00
168.00
220.00
168.00
50.00
50.00
50 . 00
50.00
382.00
147.00
147.00
50.00
50.00
50.00
50 . 00
50 . 00
50.00
50.00
119.00
50.00
50.00
50.00

825

Proposed
Amended
Penalty
$

100.00
100.00
100.00
100.00
100.00
100.00
100.00
50.00
50.00
50.00
50.00
100.00
100.00
100.00
50.00
50.00
50.00
50.00
50.00
50.00
50.00
100.00
50.00
50.00
50.00

3911902
3911906

56.12013
56.12020

50.00
337.00

TOTAL

50.00
100.00
$1,950.00

Under the proffered settlement agreement it is also agreed
that, with the exception of those claims for fees and expenses
set forth in Docket No. EAJ 96-3 filed with the Commission on
April 24, 1996, each side shall bear its own costs and legal
fees.
I have considered the representations and documentation including the pleadings, the detailed responses to the prehearing
orders, the affidavits and various transcripts of the depositions
submitted in this case, and I conclude that the proffered settlement is appropriate under the criteria set forth in section
llO(i) of the Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that Respondent, Contractors Sand and Gravel
Supply, Inc., PAY a penalty of $1,950.00 to the Secretary of
Labor within 30 days of this decision.

Payment shall be made to the Office of Assessments, Mine
Safety and Health Administration, P.O. Box 160250-M, Pittsburgh,
Pennsylvania 15251. Upon receipt of payment, the above-captioned
proceedings are dismissed.

Augu t F. Cetti
°'
Administrative Law 'Judge
Distribution:
Steven R. Desmith, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA
94105

C. Gregory Ruffennach, Esq., RUFFENNACH LAW OFFICES, 1675 Broadway, Suite 1800, Denver, CO 80202

\sh

826

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL M INE SAFETY A ND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

May 15, 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 96-69
A. C . No. 11-02846-03710
Eagle Valley Mine

COAL MINERS INCORPORATED,
Respondent
ORPER DISAPPROVING SETTLEMENT AGREEMENT

This case is before me on a Petition for Assessment of Civil
Penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S . C. § 815(d). The Secretary, by
counsel, has filed a motion to approve a settlement agreement. A
reduction in penalty from $1,298.00 to $649.00 is proposed.
The citati on alleges a violation of section 75.517 of the
Regulations, 30 C . F.R . § 75 . 517, because a shuttle car cable had
damaged splices and was not insulated in two place~. The
violation is alleged to be "significant and substantial" and of
"moderate" negligence. As justification for the settlement, the
agreement provides that: " The penalty is reduced in recognition
of Respondent's efforts in abating the cited condition within the
time granted by the MSHA inspector. Further, the Respondent is
strongly committed to enforcing compliance more strenuously in
the future . "
The Mine Act was passed with the intention that the
Commissi on 11 assure that the public interest is adequately
protected before approval of any reduction in penalties. 11
S. Rep. No. 95-181, 95th Cong., 1st Sess . 45 (1977), reprinted in
Legislative History of the Federal Mine Safety and Health Act of
1977, at 633 {1978).
In this connection, it is the judge's
independent responsibility to determine the appropriate amount of
penalty, in accordance with the six criteria set out in Section
llO(i) of the Act, 30 U. S.C. § 820(i) . Sellersburg Stone Company

827

v. Federal Mine Safety and Health Review Commission, 736 F.2d
1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481
(April 1996) .
For this reason, Commission Rule 31(b) (3), 29 C.F.R.
_§ 2700.31(b) (3), requires that a motion to approve a settlement
include "[f]acts in support of the penalty agreed to by the
parties" so that the judge can confirm that the reduced penalty
is appropriate. No such facts are provided with this agreement.
The Respondent's abatement efforts were presumably considered, as
required by section 100.3(f) of the Regulations, 30 C.F.R.
§ 100.3(f), when the penalty was originally assessed.
Likewise,
a commitm~nt to comply with the law in the future is one of the
desired results of assessing a penalty.
Neither reason provides a basis for reducing the penalty.
Consequently, having considered the representations and
documentation submitted, I am unable to approve the proffered
settlement.
ORDER

Accordingly, it is ORDERED that the motion for approval of
settlement is DENIED. The parties have 15 days from the date of
this order to submit additional information to support the motion
for settlement. Failure to submit additional information, or to
resubmit a new agreement, within the time provided will result in
the case being scheduled for hearing.

t1.~k~

T. Todd H=~"
- Administrative Law Judge
Distribution:
Gay F. Chase, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)
Mr. James A. Tabor, Coal Miners, Inc., 999 Barrett Cemetery Rd.,
Equality, IL 62934 (Certified Mail)

828

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

May 24, 1996
CIVIL PENALTY PROCEEDING

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

Docket No. YORK 95-74-M
A. C. No. 19-00371-05505

v.
West Sand and Gravel
S. M. LORUSSO & SONS,
INCORPORATED,
Respondent
DECISION DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION
Before:

Judge Merlin

This case is a petition for assessment of civil penalties
filed under section 105(d) of the Federal Mine Safety and Health
Act of 1977 . 30 U.S . C. § 815(d) . On June 13, 1995, I issued an
order directing the parties to confer and advise with respect to
possible settlement or hearing. On July 27, 1995, upon a motion
of the Solicitor, the matter was stayed pending completion of a
special investigation under Section 110(c) of the -.~ct. On
October 26, 1995, an order was issued continuing the stay.
On April 25, 1996 ·, the Solicitor filed a motion to approve
settlements in this case. A reduction in the penalties from
$17 , 000 to $5,500 is proposed. The ·motion is wholly inadequate
and must be denied.
This case contains two violations which were issued in
connection with an accident at the operator's mine. The accident
resulted in an injury to the operator of a haul truck. Citation
No. 4424827 was issued pursuant to 104(d) (1) of the Act, 30
U.S.C. § 814(d) (1), for a violation 30 C . F . R. § 56 . 9301 because a
berm or other restraint was not provided at the dump site.
According to the citation, the haul truck traveled onto unstable
ground and overturned, causing serious injury to the driver. The
originally assessed penalty was $9,000 and the proposed settlement is $2,912 . Order No. 4424828 was issued pursuant to
104(d) (1) of the Act for a violation of 30 C.F.R. § 56 . 9304(a)
because an adequate visual inspection of the dumping location was
not conducted prior to the commencement of work at this location .

829

The citation recites that ground conditions are constantly
changing when the plant is in operation and blasting operations
are taking place. The originally assessed penalty was $8,000 and
the proposed settlement is $2,588.
In her motion the Solicitor states that she is submitting
the proposed assessment of penalty prepared by MSHA which she
asserts contains findings concerning the six criteria specified
in section llO(i) of the Act, 30 U.S.C. § 820(i), as the basis
for determining an appropriate penalty amount . However, the
proposed assessment contains no such data except for two unexplained numbers regarding prior history. Information regarding
the criteria are provided on the sheet for regular assessments.
This case however is a special assessment and the Solicitor has
even faiied to provide the narrative findings MSHA prepares for
special assessments. The only other materials furnished by the
Solicitor are the citation and order which contain findings of
very high gravity, significant and substantial, unwarrantable
failure, and high negligence.
As a further basis for the proposed settlement, the Solicitor alleges the employee in the accident was not following work
procedures which the operator had instructed its employees to
follow. But the Solicitor offers no facts or analysis to support
her statements. What were the procedures? How were they communicated to the employee and others? Who was the injured employee
and what was his position? In what ways did he fail to follow
prescribed procedures? Most importantly, how does the employee's
conduct relate to the violations described in the citation and
order? None of these questions have been answ~red.
Therefore, I
have no information · that would permit assessmen~ of appropriate
penalties and reductions from the original amounts.

The Solicitor's representations that the operator has a good
prior history and that i t abated the violations promptly are
insufficient to justify the % reduction she seeks in the penalty
assessments. What the Solicitor must bear in mind is that an
injury occurred and that the alleged violations are contained in
a citation and order issued under section 104(d). Although the
Solicitor suggests extremely large reductions, she fails to
recommend any modifications to the high negligence, high gravity,
significant and substantial, and unwarrantable failure findings.
Such modifications would be necessary to support the proposed
penalty reductions and provide a basis for penalty assessments at
the Commission level.

830

The Solicitor is reminded that pursuant to section 110(k) of
the Act Commission judges bear a heavy responsibility in settlement cases. 30 U.S.C. § 820(k); See, s. Rep. No. 95-181, 95th
C~ng., 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); Sellersburg Stone Company v. Federal
Safety and Health Review Commission, 736 F.2d 1147 (7th Cir.
1984).

Mme

previously granted the Solicitor's request for a stay in
this case. The stay lasted almost a year. After this long delay
I find submission of this motion particularly egregious.
I

Wherefore, i t is ORDERED that the motion for approval of
settlements be DENIED.
It is further ORDERED that within 30 days of the date of
this order the Solicitor submit appropriate information to
support her settlement motion. Otherwise, the case will be set
for hearing.
It is further ORDERED that within 30 days the Solicitor
submit the narrative findings for special assessment.

\

\
Paul Merlin
Chief Administrative Law Judge

Distribution:

(Certified Mail)

Gail E. Glick, Esq., Office of the Solicitor, U.S. Department of
Labor, One Congress Street, 11th Floor, P.O. Box 8396, Boston, MA
02114
Douglas White, Esq . , Counsel, Trial Litigation, Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Suite
414, Arlington, VA 22203
Thomas E. Nannicelli, Esq., Nannicelli & Woods, P. 0 . Box 68, 470
Washington Street, Suite 30, Norwood, MA 02602
/gl

831

----

FBDBRAL JUBB SAFBTY DID BBALTJI REVIEW COJOo:SSl:Olf
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-~268
May 31, 1996

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

v.

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 95-434-M
A. C. No. 26-00500-05542
Docket No. WEST 95-467-M
A.C. No. 26-00500-55443

NEWMONT GOLD COMPANY,
Respondent

South Area Gold Quarry

ORDER DENYING MOTION FOR SUMMARY DECISION

PREHEARING ORDER

Newmont Gold Company ("Newmont") filed a motion for summary
decision in these cases pursuant to Commis·sion Rule 67, 29 c.F.R.
§ 2700.67.
The Secretary of Labor opposes Newmont's motion.
For
the reasons set forth below , I deny Newmont's motion.
Commission Rule 67(b) sets forth the grounds for granting
summary decision, as follows:
A motion for summary decision shall be
granted only if the entire record, including
the pleadings, depositions, answers to
interrogatories, admissions, and affidavits ,
shows:
( 1 ) That there is no genuine issue
as to any material fact; and .
(2) That the moving party is enti~
tled to summary decis i on as a
matter of law.
On March 13 and 14, 1995, MSHA Inspector Michael Drussell
issued two citations and two orders at Newmont's South Area Gold
Quarry in Eureka County, Nevada. One citation and one order
allege violations of 30 C.F.R. § 56.20011 and the other citation
and order allege violations of section 56 . 20014. All four
enforcement actions relate to alleged mercury contamination at
the mine.

832

I.
A.

BACKGROUND INFORMATION

Alleged Violations of Section 56.20011

Section 56.20011 provides:
Areas where health or safety hazards
exist that are not immediately obvious to
employees shall be barricaded, or warning
signs shall be posted at all approaches.
Warning signs shall be readily visible,
legible, and display the nature .o f the hazard
and any protective action required .
Citation No. 4140248, issued under section 104{a) of the
Mine Act, alleges that:
The old screen removed from the ZADRA
was placed near the containment area at the
AARL Building, visible mercury was on the
screen. No warning signs were posted warning
of the hazard.
Order No. 4140247, issued under section 104{d) {l) of the Mine
Act, alleges that:
The old scrubber removed from the AARL
was cleaned then tested for mercury
contamination. This scrubber was stored at
the boneyard. Mercury contamination test
results received in Nov. 1994 showed mercury
contamination. The scrubber was not removed
from the boneyard or marked of the hazard.
When the scrubber was inspected .to show
visible mercury, Jerome reading showed
mercury vapors present.
It is undisputed that (1) the old screen referenced in the
citation was outdoors in a "containment area;" (2) visible
mercury was on the •screen; and (3) there is no proof that the
threshold limit value ("TLV") for mercury adopted by MSHA was
exceeded in the area around the old screen. The Secretary
alleges that the "containment area" was not completely enclosed.
or barricaded. The citation alleges that warning signs were not
posted to advise miners of the hazard.
It is also undisputed that when the old scrubber referenced
in the order was removed from the AARL, it was cleaned by a
contractor, wipe samples were obtained which showed that mercury
was present, and the scrubber was placed in the outdoor "boneyard." Newmont contends that the boneyard is a "fenced and

833

signed restricted area used for storage of old equipment, old
spare parts, and waste."
(Motion at 6). It also alleges that it
is "an isolated and barricaded area, where there is no routine
personnel exposure." (Id. at 7). The Secretary alleges that the
boneyard was "fenced on three sides with a sign prohibiting
unauthorized entry, not a sign that displayed the nature of the
hazard and required protective action."
(Opposition at 6). The
wipe samples were taken by Newmont to help it determine how it
should dispose of the old scrubber. There is no proof that the
TLV for mercury was exceeded in the area around the old scrubber.
B.

Alleged Violations of ' Section 56.200014

Section 56.20014 provides:
No person shall be allowed to consume or
store food or beverages in a toilet room or
in any area exposed to a toxic material.
Citation No. 4140245, issued under section 104(d) (1) of the
Mine Act, alleges that:
The off ice in the AARL building
contained mercury vapor as measured with a
Jerome mercury vapor analyzer. The average
reading was 23 . 2 ug/m3 • The company routinely takes 6 Jerome readings a day in this
office as part of their mercury monitoring
program. These readings show mercury has
been present in this office. Visible mercury
was found on the desk top on Feb. 28, 1995.
The AARL operator was required to use ~his
off ice for eating lunch . No person sh~ll be
allowed to consume food or beverages in any
area exposed to a toxic· material.
Order No. 4140246, issued under section 104(d) (1) of the Mine
Act, alleges that:
The lunchroom for the ZADRA employees
contained mercury vapors as measured with a
Jerome mercury vapor analyzer. The average
reading was 23.2 ug/m3 • The company routinely takes 6 Jerome readings a day in this
lunchroom as part of their mercury monitoring
program. These readings showed mercury
vapors have been present in this lunchroom.
The ZADRA employees were required to use this
lunchroom for eating their lunch .
No person
shall be allowed to consume food or beverages
in any area exposed to a toxic material.

834

It is undisputed that :the Jerome readings obtained by the
inspector indicate that the mercury levels were less than 50
percent of that allowed under the MSHA's TLV. MSHA has adopted
the TLV established by the American Conference of Governmental
Industrial Hygienists ("ACGIH"), as set forth in 30 C.F.R.
§ 56.5001.
II.

A.

SUMMARY OF THE PARTIES' ARGUMENTS

Newmont Gold Company

Newmont argues that, as a matter of law, 30 C.F.R.
56.20011 -and 56.20014 must be read in conjunction with 30
C.F.R. § 56.5001, which establishes MSHA's TLV for mercury and
other substances . It contends that section 56.5001 is the only
regulation applicable to surface metal and nonmetal mines that
provides guidance for safe mercury exposure levels. It states
that the Secretary has not defined the terms "health or safety
·hazard" or "toxic," as those terms are used in the cited
standards. It contends that those terms must be defined in
connection with the TLV standard, section 56.5001. It argues
that unless sections 56.20011 and 56.20014 are interpreted with
section 56.5001, they are too vague to be enforceable.
§§

There is no dispute that in order to establish that a TLV
has been exceeded, air quality measurements satisfying the timeweighted average requirements must be taken. It is also undisputed that such time-weighted air quality readings were not taken
by Inspector Drussell when he issued the citations and orders in
these cases. · For that reason, Newmont contends that the citations and orders must be vacated.
Newmont uses silica as an example of a substance that is
"toxic" if the TLV is exceeded. It contends that, under the
Secretary's interpretation, a mine operator could be in violation
of section 56.20014 if there is silica dust in a lunchroom even
though the TLV has not been exceeded. Under such circumstances,
·the operator would be forced to prohibit miners from eating at
the mine because silica is .found virtually everywhere on earth.
It argues that without reference to the TLV, the standards do not
have a concrete meaning and there is no objective standard
against which to measure compliance. Newmont labels the secretary's enforcement stance in these cases as a "zero tolerance
. policy" because it would prohibit "any mercury everywhere in the
mine site." (Motion at 9).
B.

Secretary of Labor

The Secretary argues that summary decision is not
appropriate because there are genuine issues of material fact in
dispute. For example, it disputes Newmont's claim that the bone-

835

yard was barricaded. Second, the Secretary maintains that the
cited standards are separate and independent from section
56.5001. He contends that the cited standards provide for a
"different independent measure of protection for workers."
{Opposition at 11). He argues that there is no dispute that
mercury was present at the cited locations. The Secretary
contends that whether or not the TLV was exceeded is irrelevant
in these cases. He maintains that mercury is toxic in all forms
and that the cited standards are "performance oriented standards
[that) regulate mercury whether it is visible or not, and whether
it is above the TLV or not." (Id. at 5). He states that, while
section 56.5001 is aimed at airborne contaminants, the cited
standards also protect against mercury being ingested or absorbed
into the skin through direct contact.
The Secretary also contends that the cited standards are not
overly vague and Newmont was not denied due process or fair
notice of their meaning. He argues that the Commission's
reasonably prudent person test, used when interpreting performance standards, protects mine operators against unconstitutionally broad interpretations of these standards. He maintains
that the Secretary's application of cited standards in these
cases does not vi0late the Commission's reasonably prudent person
test.
III.

ANALYSIS

I deny Newmont's motion because I find that it is not
entitled to summary decision as a matter of law under Commission
Rule 67{b) (2). 1 Newmont contends that there cannot be a violation of the cited standards unless the Secretary proves that the
TLV for mercury was exceeded. Thus, the Secretary would be
required to prove a violation of 56.5001 in this\ case before it
could establish that either 56.20011 or 56.20014 were violated.
I do not agree with Newmont's interpretation of these standards.
As a general . matter, the Secretary is not required to prove
a violation of one safety or health standard as a prerequisite to
establishing a violation of another standard. Each standard
generally stands on its own and is not dependent on other standards for its interpretation. Moreover, in this instance, the
cited standards address different hazards than section 56.5001.
That health standard is concerned solely with air quality in the
working environment. The cited standards cover a much broader
range of hazards.

I also find that there are genuine issues of material
fact. For example, it is not clear whether the boneyard was
barricaded in compliance with section 56.20011.
836

In the present cases, 1t appears that the TLV for mercury
was not exceeded. Thus, there was no violation of section
56 . 5001. The citations and orders state that mercury was present
at the cited locations and allege that this condition violated
the cited standards . Under Newmont'·s interpretation there could
be no violations of the cited standards . Yet, health hazards
could still be present. For example, a worker could get mercury
on his fingers, wipe his eye, and suffer ill effects as a consequence.
If mercury is present in an eating area, a worker could
get mercury in his food and ingest mercury with his meal. Section 56.5001 does not address these hazards. 2 Thus, I conc l ude
that, as a matter of law, the Secretary is not required to establish a violat~on of section 56 . 5001 in order to prove violations
of sections 56.20011 and 56 . 20014.
This issue was previously litigated before former Commission
Administrative Law Judge Michael A. Lasher in FMC Wyoming Corp.,
8 FMSHRC 264 (February 1986) . In that case, the mine operator
was cited for violating section 56.20-11, the predecessor of
56.20011, because of an alleged asbestos hazard. The mine operator argued that the Secretary could not establish a violation of
section 56.20-11 absent a showing of exposure to airborne contaminants at levels that violated section 56.5- 1, the predecessor of
56 . 5001. Judge Lasher rejected the operator's argument. He held
that neither the Mine Act nor MSHA's regulations indicated that
the two standards should be read together. Id. at 273. He held
that section 56.20011 "provides a different, separate, and independent measure of protection for miners . .. that is not dependent on ..• sampling ... the air in the working environment" Id.
I agree with Judge Lasher's conclusion in this regard .
Newmont cites the commission's decision in Aluminum Companv
of America, 15 FMSHRC 1821 (September 1993) in support of its
position.
In that case, however, the issue was whether an
accident control order was properly issued to Alcoa under section
103(k) of the Mine . Act when an MSHA inspector observed mercury at
2

The TLVs adopted by the ACGIH recognize that maximum
ceiling standards are required for certain fast - acting
substances . The TLVs also recognize that certain substances
require a "skin" notation because of the " potential contribution
to the overall exposure by the cutaneous route including mucuous
membranes and eye, either by airborne, or more particularly, by
direct contact with the substance." (TLVs for Chemical
Substances in Wo rkroom Air Adopted by ACGIH for 1973, at 4).
Newmont contends that because mercury is not subject to a ceiling
standard or a skin notation, MSHA has recognized that mercury
does not constitute a "health hazard" and .is not "toxic" unless
it is found to violate the time-weighted average set forth in the
TLV . The position advanced by Newmont lacks merit for the
reasons discussed herein.
837

Alcoa's plant. That case is not applicable to the facts in these
cases. The Secretary is not alleging that the presence of mercury at the south Area Gold Quarry constituted an "accident," as
that term is defined at seqtion 3(k) of the Mine Act.
I also
find that Newmont's reliance on ·the Commission's decision in
Tammsco, Inc., 7 FMSHRC 2006 (December 1985) is misplaced because
in that case the Secretary tried to establish a violation of
section 56.5001 without sampling for airborne contaminants.
Newmont's principal concern appears to be that without the
guidance of section 56.5001, the cited standards become so vague
that compliance would become impossible. It uses the silica
example t~ support its position. It rais~s the specter of MSHA
issuing citations because miners are eating lunch in a room that
contains silica bearing dust. I agree with Newmont that the
cited standards are broadly written and are capable of absurd
interpretations, but Commission case law provides a means of
curbing overly vague interpretations.
The standards at issue in these cases are not detailed but
are of a type made "simple and brief in order to be broadly
adaptable to myriad circumstances." Kerr-McGee corp., 3 FMSHRC
2496, 2497 (November 1981); Alabama By-Products Corp., 4 FMSHRC
2128, 2130 (December 1982). Nevertheless, such broad standards
must afford reasonable notice of what is required or proscribed.
U.S. Steel Corp., 5 FMSHRC 3, 4 (January 1983). "In order to
afford adequate notice and pass constitutional muster, a mandatory standard cannot be 'so incomplete, vague, indefinite or
uncertain that (persons) of common intelligence must necessarily
guess at its meaning and differ as to its application.'" Ideal
Cement Co., 12 FMSHRC 2409, 2416 (November 1990) (citation omitted). The Commission has consistently recognized that a safety
standard must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act
accordingly." Lanham Coal Co., Inc., 13 FMSHRC 1341, 1343
(September 1991). In this context, the Commission further
explained:
When faced with a challenge that a
safety standard failed to provide adequate
notice of prohibited or required conduct, the
Commission has applied an objective standard,
i.e., the reasonably prudent person test.
The Commission recently summarized this test
as 'whether a reasonably prudent person
familiar with the mining industry and the
protective purpose of the standard would have
recognized the specific prohibition or
requirement of the standard.'

Id. (citations omitted).

838

Accordingly, the application of sections 56.20011 and
56.20014 to the facts of these cases must ·be subjected to the
Commission's reasonable prudent person test. This objective test
will ensure that the application of these standards to the facts
of these cases do not violate the due process requirements of the
constitution.
I agree with Newmont that it has not been shown that mercury
is "toxic in all its forms . "
(Opposition at 5, Reply at 5}. It
may be toxic under certain circumstances. I must first determine
if the mercury detected by the inspector created a "health or
safety hazard" and whether persons consumed food in an "area
exposed to a toxic material." The Secretary has the burden of
proof with respect to these issues. If the Secretary establishes
a prima facie case, Newmont may attempt to establish that it did
not have fair notice of the prohibitions or requirements of
sections 56 . 20011 and 56.20014, as those standards were applied
by the Secretary in these cases . The record does not contain a
sufficient factual foundation to apply the reasonable prudent
person test at this time.
Finally, Newmont contends that the unwarrantable failure
allegations alleged in one of the citations and both orders
cannot be upheld as a matter of law since Newmont was never
informed of MSHA's new "zero tolerance policy." I cannot reach
the unwarrantable failure issue until after I determine whether
Newmont violated the cited standards. Accordingly, the motion is
also denied with respect to the unwarrantable failure issue.
For the reasons set forth above, Newmont's motion for
summary decision is DENIED. 3
PREHEARING ORDER
The parties shall again confer to discuss settlement of
these cases. If a settlement is not agreed upon, the parties, by
August 2, 1996, shall send to each other and to me lists of witnesses who may testify (unless privileged), exhibits which may be
introduced, matters to which they can stipulate at the h~
and an estimate of the time required fo
aring~/
///
/,·'/

.

Richard w. Manning
Administrative Law Judge
3

The Secretary's motion that Newmont pay the costs incurred by the Secretary in opposing this motion is also denied.
8 39

Distribution:

Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 941052999
Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington,
DC 20037-1350

RWM

84 0
•U.S. GOVERNMENT PUNTING OFFICE: 1996-405-710/53381