OCTOBER 1988
There were no Commission decisions issued in October.
ADMINISTRATIVE LAW JUDGE DECISIONS
10-04-88
10-06-88
10-07-88
10-13-88
10-17-88
10-17-88
10-20-88
10-20-88
10-21-88
10-21-88
10-21-88
10-24-88
10-25-88
10-25--88
10-27-88
10-31-88

Local 8622, Dist. 22, UMWA v. Castle Gate Coal Co.
Joseph BosgaLv. J.Kircher & American Mine Service
Sec.Labor for Brian Bosch & UMWA v. Jim Walter Res.
Westmoreland Coal Company
Cyprus Emerald Resources Corp.
Black Beauty Coal Company
Hallett Construction Company
Helen Mining Company
Sec. Labor for David H. Miller v. Consolidation
Coal Co.
David Johnson v. Jericol Mining Inc.
Green River Coal Company
Sec. Labor for Joseph Gabossi v. Western
Fuels-Utah, Inc.
Green River Coal Company
Local 2333, Dist. 29, UMWA v. Ranger Fuel Corp.
Westrick Coal Company
Southern Ohio Coal Company

WEST 87-212-C
WEST 88-119-M
SE
88-18-D
VA
88-49-R
PENN 88-220
KENT 88-36
CENT 88-17-M
PENN 88-1-R
WEVA 88-165-D

Pg. 1411
Pg. 1412
Pg. 1413
Pg. 1414
Pg. 1417
Pg. 1425
Pg. 1429
Pg. 1448
Pg. 1452

KENT 88-135-D
KENT 87-217-R
WEST 86-24-D

Pg. 1455
Pg. 1456
Pg. 1462

KENT 88-92-A
WEVA 86-439-C
PENN 88-119
WEVA 86-190-R

Pg.
Pg.
Pg.
Pg.

1472
1474
1480
1487

OCTOBER 1988
There were no cases filed in which review was granted in October.
Review was denied in the following cases during the month of October:
Charles H. Sisk v. Charolais Corporation and E.R. Mining, Inc., Docket No.
KENT 87-212-D. (Judge Melick, August 22, 1988)
Sec. of Labor, MSHA v. Rivco Dredging Corporation, Docket No. KENT 87-147,
etc. (Judge Maurer, September 8, 1988)

ADMINISTRATIVE LAW JUDGE DECISIONS

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

OCT 4 198C
LC:X:AL UNION NO. 8622, DISTRICT 22,:
UNITED MINE WORKERS OF
AMERICA (UMWA),
Complainant

COMPENSATION PROCEEDING
Docket No. WEST 87-212-C
Castle Gate Portal No. 5
and Mine No. 3

v.
CASTLE GATE COAL COMPANY,
Respondent

Mine ID No. 42-01202

DECISION DISMISSING PRC:X:EEDINGS
Before:

Judge Cetti

On Sept6nber 23, 1988 the United Mine Workers of America
(UMWA), on behalf of Local Union 8622, moved to withdraw its
Complaint for Compensation filed in the above-captioned-proceeding.
In support of its motion, complainant states that the affected
miners have been compensated.
Accordingly, complainant's motion is granted and this proceeding is dismissed.

'5:&

Aug t F. Ce t ti
Administrative Law Judge
Distribution:

John T. Scott, III, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, Washington, D.C. 20004-2505
(Certified Mail)
Joyce A. Hanula, Esq., United Mine Workers of America, 900 15th
Street, N.W., Washington, D.C. 20005
(Certified Mail)
/ot

1411

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

OCT 6 1988

DISCRIMINATION PROCEEDING

JOSEPH T. BOSGAL,
Complainant

Docket No. WEST 88-119-DM

v.
MD 87-08
JOE KIRCHER,
and
AMERICAN MINE SERVICES, INC.,
Respondents
ORDER OF DISMISSAL
Before:

Judge Morris

A prehearing conference in the above case was held on
August 2, 1988 in Grand Junction, Colorado.
The hearing on the
merits was subsequently set for October 25, 1988.
On September 14, 1988 complainant filed a letter stating he
was dropping all charges against American Mine Services and Joe
Kircher.
The above respondents are the only r~naining parties to the
case and I consider complainant's letter to be a motion to
dismiss his complaint of discrimination.
Accordingly, the following order is appropriate:
1. The hearing scheduled in Grand Junction, Colorado for
October 25, 1988 is cancelled.
2.

The case is dismissed.

Law Judge
Distribution:
Mr. Joseph T. Bosgal, P.O. Box 213, Montrose, CO
(Certified Mail)
Mr. Joe Kircher, P.O. Box 3115, Hawthorne, NV
Mail)

81402

89415

(Certified

Mr. Morris E. Friberg, Safety Director, American Mine Services,
Inc., 14160 East Evans Avenue, Aurora, CO 80014 {Certified Mail)

/ot
1412

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

OCT 7
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
on behalf of ·
BRIAN BOSCH,
Complainant
and

~(

22041

......

'J ,...;.'-~

I·.? •..i<..,

DISCRIMINATION PROCEEDING
Docket No. SE 88-18-D
BARB CD 87-4
No. 4 Mine

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

v.
JIM WALTER RESOURCES, INC.,
Respondent
ORDER OF DISMISSAL
Before:

Judge Melick

The respondent's unopposed Motion to Dismiss is granted.
the parties agree that this case is controlled by the
Commission decision in Secretary on behalf of\Beavers etal. v.
Kitt Energy Corporation WEVA 85-753-D and no ~ppeal has peen
taken from that decision. This ca
is therenore dismis/sed.

.

.

~ • ~~/

Ga/ry Me 1ck
Adminis rative
(703) 7 6-6261

\
·\J~I

Distribution:
Frederick w. Moncrief, Esq., U.S. Depa tment of Labor, Office
of the Solicitor, 4015 Wilson Bouleva~ , Arlington, VA 22203
(Certified Mail)
David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, P.G.,
12th Floor Watts Building, Birmingham, AL 35203 (Certified
Mail)
nt

1413

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

22041

OCT 131988
WESTMORELAND COAL COMPANY,
Contestant

CONTEST PROCEEDING

v.

Docket No. VA 88-49-R
Citation No. 2965807; 5/16/88

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

Bullitt Mine
Mine ID 44-00304

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

CIVIL PENALTY PROCEEDING
Docket No. VA. 8 8-5 8
A.C. No. 44-00304-03598

v.
Bullitt Mine
WESTMORELAND COAL COMPANY,
Respondent
DECISION
Appearances:

Thomas C. Means, Esq., Crowell & Moring,
Washington, D.C. for the Contestant/Respondent;
F. Thomas Rubenstein, Esq., Big Stone Gap,
Virginia, for the Contestant/Respondent;
Sheila K. Cronan, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for the Respondent/Petitioner.

Before:

Judge Maurer

In these proceedings, Westmoreland Coal Company
(Westmoreland) is contesting the validity of a section 104(a)
citation purportedly issued by Inspector Kenneth L. Card on
May 16, 1988. Pursuant to notice, the case was heard on
September 19, 1988 in Abingdon, Virginia.
At the conclusion of the Secretary's presentation of her
case, I granted the Contestant's motion, essentially made
pursuant to FED. R. CIV. P. 4l(b), that the Secretary had not
made out a prirna f acie case because she could not get a copy
of the citation at issue into evidence.

1414

This rather strange turn of events started out routinely
enough. Government Exhibit No. 8 was marked and identified by
Inspector Card as the citation he wrote the operator for
failure to submit an accident report to MSHA.
It was offered
into evidence and received without objection--at least
initially.
During cross-examination of Inspector Card, it became
obvious that the citation marked and received as Government
Exhibit No. 8 was different in a few respects from the citation that Westmoreland had contested, and that I held in my
file appended to the Notice of Contest.
Significantly, oRe of
the gravity marks and the negligence mark were altered.
A brief recess was had while counsel for the Secretary
investigated the apparent discrepancy. When we went back on
the record, she represented that she had spoken to someone at
the Norton office who told her that the original citation on
file there had been whited out in the aforementioned two
places and improperly altered.
In the meantime, Respondent's counsel had now objected to
the relevancy of Government Exhibit No. 8, the altered citation, as not being at issue in this case, as well as never
having been served on the operator.
I sustained that objection and Government Exhibit No. 8 was now excluded from the
record of trial.
Counsel for the Secretary thereupon marked a copy of the
citation that was attached to the Notice of Contest as
Government Exhibit No. 11 and offered it into evidence through
Inspector Card. However, upon voir dire, Inspector Card was
unable to decide which document, Exhibit No. 8 or No. 11 was
actually the one he wrote the operator on May 16, 1988. Upon
objection for lack of foundation for the exhibit, I excluded
it from evidence as well.
The upshot of the ·1.-1hole episode \vas that unable to get
either version of the citation into eviderice with- the witnesses
present and available to lay an acceptable evidentiary foundation, the Secretary rested her case.

1415

Whereupon, on motion, I granted the operator's contest
and vacated Citation No. 2965807 in all its versions, and
closed the hearing.
Pursuant to 29 C.F.R. § 2700.65, this
decision announced orally from the bench is hereby reduced to
a writing and ordered executed this date.
Therefore, MSHA's
petition for assessment of a civil penalty is dismissed.

f /1,(;~~
-r!c:yAfurer
Admitjs1f.rative Law Judge
Distribution:
Thomas c. Means, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, N.W., Washington, DC 20004-2505 (Certified Mail)
F. Thomas Rubenstein, Esq., Westmoreland Coal Company,
Drawer A & B, Big Stone Gap, VA 24292 (Certified Mail)
Sheila K. Cronan, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified M~il)

/f b

1416

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

22041

OCT 1 71988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 88-220
A.C. No. 36-05466-03644

v.
Docket No. PENN 88-221
A.C. No. 36-05466-03645

CYPRUS EMERALD RESOURCES,
CORPORATION,
Respondent

Emerald Mine No. 1
DECISION

Appearances:

Thomas A. Brown, 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 Respondent.

Before: Judge Melick
These cases are before me upon the petitions for civil
penalties 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 Cyprus Emerald
Resources, Corporation (Emerald) with three violations of
regulatory standards. The general issues before me are
whether Emerald violated the cited regulatory standards and,
if so, whether those violations were of such a nature as
could have significantly and substantially contributed to the
cause and effect of a mine safety or health hazard, i.e.
whether the violations were "significant and substantial".
If violations are found, it will also be necessary to
determine the appropriate civil penalty to be assessed in
accordance with section llO(i) of the Act.
Docket No. PENN 88-220
Citation No. 241935 alleges a "significant and
substantial" violation of the regulatory standard at
30 C.F.R. 75.1400-3 and charges as follows:
An adequate daily examination of the elevator
located at No. 1 portal is not and cannot be
performed due to the excessive amounts of dirt and

1417

grease on the ropes. Also the termination of the
governor rope has not been performed properly. The
governor rope has been bent through the termination
socket on the down side and bent above in the arm
above the socket.l/
The cited standard provides in relevant part as follows:
Hoists and ~levators shall be examined daily and
such examinations shall include, but not be limited
to, the following:
(a) elevators. A visual
examination of the rope for wear, broken wires, and
corrosion, especially at excessive strain points
such as near the attachments and near where the
rope rests on the sheaves •••
MSHA Inspector James Bandish, found on January 21, 1988,
that the seven 3/4 inch wire ropes to the elevator at the No. 1
portal of the No. 1 mine were covered with excessive dirt and
grease. He was therefore unable to perform a proper
inspection for possible breaks in the rope valleys. Bandish
opined that about 1/2 to 3/4 of the 600 foot-long ropes were
in that conditibn. He later testified that the rope crowns
were also obscured by grease and dirt therefore also
preventing proper examination for crown wear.
According to
Bandish such conditions would have taken "weeks and weeks" to
develop.
The log books for the daily elevator examinations in
fact had handwritten entries showing that examinations were
being performed but the entries did not reflect any evidence
of grease and dirt on the ropes. While Bandish conceded that
he too was unable to perform a proper examination of the wire
ropes because of the dirt and grease he nevertheless
permitted the elevator to return to service without the ropes
being cleaned. He also acknowledged that the system had an 8
to 1 safety ratio ·thereby indicating that 1 rope would be
sufficient to hold the elevator. He was not however
concerned with cable breakage but of excess slippage of the
ropes around the traction drum that drives the elevator car.
This drum depends on friction for grip and according to
Bandish, excess grease could result in the elevator sliding
back into the pit from a height of 25 to 30 feet.
It could
then hit the buffers and "knock people over" in the elevator
resulting in lost workdays or disabling injuries.

!/ In a bench conference counsel for the Secretary explained
that the last two sentences of the citation did not charge a
sepacate violation and accordingly may be considered as
surplusage for purposes of these proceedings.

1418

Respondent's witnesses, General Maintenance Foreman
Terry Coss and Elevator Examiner, Scott Kramer, both had
inspected the wire ropes at issue--Coss at the same time as
Inspector Bandish and Kramer two days earlier--and both
admitted there was some dirt and grease in the valleys of the
ropes. Coss specifically denied however that the crowns were
dirty or greasy. Coss also felt that an adequate examination
could be performed in any event because broken wires would
"ordinarily" protrude through the grease and dirt. Kramer
thought that grease and dirt in the valleys would not
"ordinarily" cover a defect because a break would protrude
outward and excess wear would .appear on the crowns which,
according to Kramer, were plainly visible.
Within the framework of the undisputed evidence I find
that there was indeed dirt and grease in significant areas of
the valleys of the cited wire ropes.
In addition, I find
that such grease and dirt could very well obscure examination
of defects in the valleys such as small breaks and corrosion.
Inspector Bandish clearly was of this view. Even
Respondent's own elevator inspector could state only that
such grease and dirt would not "ordinarily" obscure rope
defects.
In any event, it may reasonably be inferred that
dirt and grease in the valleys of the wire ropes would
obstruct visual examination of such defects as corrosion.
Since it is also undisputed that the grease and dirt had
taken "weeks and we~ks" to develop it may also reasonably be
inferred that the requisite daily examinations of the ropes
could not properly have been made. The violation is
accordingly proven as charged. However, in light of the
evidence that Inspector Bandish allowed the elevator to
return to service without requiring cleaning or further
inspection of the ropes, I cannot find that the violation was
either "significant and substantial" or serious. See Mathies
Coal Co., 6 FMSHRC 1 (1984). Clearly if the violation
presented a serious and "significant and substantial" hazard
the inspector would not have allowed it to return to service.
In addition, since Emerald itself had ceased operation
of the elevator some two days before the MSHA inspection, and
was prepared to keep the elevator out of service until new
wire ropes arrived, I find Emerald chargeable with but little
negligence. Since it is also apparent that the inspector
himself did not believe there was a serious hazard (because
he allowed the elevator to return to service without cleaning
or further inspection of the ropes) it would be difficult to

1419

conclude that the operator should have been aware of any
serious hazard.
Citation No. 2938166 alleges a "significant and
substantial" violation of the mine operator's ventilation
plan under the regulatory standard at 30 C.F.R. § 75.316, and
charges as follows:
The approved ventilation plan was not being
complied with in the 16 right (007) section in that
a hole measuring 7 inches x 15 inches was present
in a stopping between the No. 1 return entry and
the No. 2 intake entry at the No. 32 crosscut. The
approved plan requires permanent stoppings to be
maintained between the intake and return air
courses.
In particular the Secretary maintains that the following
provisions of the operator's ventilation plan (Government
Exhibit 5) were violated:
Location of all stoppings, overcasts, regulators,
seals, airlock doors and man doors are shown on the
mine map. At this time, man doors in permanent
stopping lines are projected at 450' ~ 650', or
greater intervals at management's discretion.
These permanent ventilation controls shall be
constructed of solid, substantial materials. List
of materials used in constructing the following:
Permanent stopping (between intake and
return): cinder, concrete Omega Block 384
or limestone blocks, mortar, stopping
sealant, micon krush bloc, metal and
steel doors. Airlock doors constructed
either "plywood or l" x 6", lumber, also
several are constructed out of steel.
Overcasts, undercasts: cinder, concrete,
Omega Block 384, limestone block, mortar,
stopping sealant, micon krush bloc,
metal, and complete metal overcast
(galvanized steel sheeting.) Section
intake regulators require approval prior
to their installation. Section return
regulators and temporary section intake
regulators will be constructed the same
as permanent stoppings with metal frame
adjustable doors. Shaft partitions:
concrete steel.

1420

Permanent stoppings shall be erected between the
intake and return air courses and shall be
maintained to and including the third connecting
crosscut outby the faces of entries except for
Exhibit EMMV-15.
Emerald does not deny that the hole, approximately 7
inches by 15 inches in size, did exist in the stopping at the
No. 32 crosscut and admits the violation as charged. Emerald
argues however that the violation did not involve any
"discrete safety hazard" and accordingly_that it was not
"significant and substantial". I agree.
It is ·undisputed
that the hole in the stopping had been used to ventilate a
charging station at that location as recently as the previous
Friday, January 8, 1988, and that the hole was permissiola_at
that time when used in that fashion.
It is also undispute~'-.
that on the Friday before the violation the charging station
had been moved several blocks away but the subject hole had
not yet been patched as of the following Monday when the
condition was cited.
The Secretary admits that it would be permissible to
maintain two such holes in the stoppings to ventilate two
separate charging stations and, in that case, the same amount
of air would leak from the intake into the return air course
as was caused by the instant violation.
It is also
acknowledged that the stopping was structuraliy sound and
there were no sources of ignition in the cited crosscut. No
air readings were taken at the hole so the amount of leakage
could not be determined. Moreover according to the
undisputed testimony of Construction Foreman Albert Giacondi,
the small amount of leakage had no affect upon the face
ventilation.
Accordingly I find that the violation involved little
hazard and was not "significant and substantial". See
Mathies Coal Company, supra.
I agree however with the
inspector's assessment that the operator is chargeable with
moderate negligence. The undisputed testimony of General
Mine Foreman Steve Medve was that at the time of the
violation the practice at the mine was to patch such holes
within a "reasonable" time as the masons made their rounds
for repairs.
Accor~ing to Medve the company now pays "much
closer attention to patching holes".
In assessing civil penalties for the above citations I
have also considered evidence of the history of violations at
Emerald, the size of its business, and it3 abatement
efforts. Under the circumstances penalties of $75 for each
of these citations is appropriate.

1421

Docket No. PENN 88-221
Order No. 3086725, issued pursuant to section 104(d)(2)
of the Act, alleges a "significant and subst~ntial" violation
of the mine operator's roof control plan under the regulatory
standard at 30 C.F.R. § 75.200 and charges as follows:
The approved roof control plan was not being
complied with in that two rows of breaker posts
were not set inby the cut being mined for the
construction of the overcast in the Two East
Section at No. 20 crosscut into the intersection of
the belt entry. Two rows of posts were not set at
20 crosscut at the track entry where the mining had
been in progress at an earlier time. The entrance
inby, and outby the No. 20 cross track entry was
not provided with a physical barrier to keep people
out of the area.
The parties agree that the relevant roof control plan
(Government Exhibit No. 3) permits either one of two methods
for protecting miners during the process of cutting overcasts
or boom holes in a previously supported area. One method,
and the method admittedly not followed here, is set forth in
the roof control plan as follows:
"Cl) two rows of
posts shall be installed at each approach of the roof area to
be removed except the approach where the machine will start
cutting". The alternative method is stated in the plan as
follows:
5) Note: Two roof trusses may be utilized as
additional roof support in place of the two rows of
posts as stated in item No. 1. The first roof
truss installed in the approach shall be located
approximately four feet from the roof strata to be
mined and the second roof truss shall be installed
approximately three feet from the first.
In
addition, the unused approaches to the overcast or
boom hole shall be fenced off with adequate
physical barriers to prevent persons from
inadvertently entering the area before the minedout area has been permanently supported.
In this case Emerald had provided "superbolting" to
comply with the requirement in this part of the plan for two
roof trusses~ At issue is whether it was also necessary for
Emerald to then have in place "adequate physical barriers to
prevent persons from inadvertently entering the area before
the mined out area has been permanently supported." Emerald

1422

argues that it was not necessary because the mined-out area
had already been permanently supported.
At the conclusion of the Secretary's case-in-chief
Emerald filed a Motion for Directed Verdict and Motion for
Summary Decision. The Motion for Directed Verdict (See
FED.R.CIV.P.4l(b) applicable hereto by virtue of Commission
Rule l(b), 29 C.F.R. § 2700.l(b) was granted at hearing and
that decision appears as follows with only non-substantive
corrections:
Judge Melick: I am going to grant the motion.
First of all, we have the allegation of violation
as clarified and amended -- let me refer to that
momentarily. The allegation as it stands before me
now is an alternative pleading, as I understand it,
that in order to comply with this Roof Control Plan
(that's Government Exhibit No. 3) you must comply
either with Provision 1, which states, "Two rows of
posts shall be installed at each approach of the
roof area to be removed except the approach where
the machine will start cutting," or comply with
Provision 5, which requires roof trusses or as it
is acknowledged, in the alternative, superbolting,
plus, in addition to the superbolts, a requirement
which is stated in these words, "In addition, the
unused approaches to the overcast or boom hole
shall be fenced off with adequate physical barriers
to prevent persons from inadvertently entering the
area before the mined-out area has been permanently
supported." It is conceded and acknowledged that
Provision 1 was not met in this case, that is that
the two rows of posts were not installed. However,
it is alleged and maintained by the Operator that
it complied with Provision 5, in essence, that it
did have superbolting but that it was not required
yet to have the physical barriers present because
the mined-out area was, indeed, permanently
supported. I agree with that statement.
The evidence shows, and this is from the mine
inspector himself, that the mined out areas,
specifically those areas shown on Joint Exhibit
No. 1 with shading, were permanently supported.
The evidence also shows that the area in the No. 20
crosscut between the shaded areas still had roof
bolts in it from the regular mining process. Those
roof bolts had not been removed and no cutting or
mining had commenced in that portion of the No. 20
crosscut. Now, I am limiting my decision to the

1423

facts of this case and to the precise wording of
the Roof Control Plan. It appears that there may
have been a very serious hazard here but
unfortunately I don't see where the Roof Control
Plan addresses the hazard that the inspector
testified about. It so often happens when a Roof
Control Pian is drawn up, it is not drawn with the
precision or with the ability to foresee all
possible.hazards and, unfortunately, I think that
is the case here.
I think you are going to have to
do some work on that Roof Control Plan to tighten
it up to include the hazard that the inspector
related -- and I have no doubt that what he has
testified about does constitute a hazard.
The problem is the Mine Safety Act and due process
standards require you to give advance notice to the
mine operator as to precisely what that hazard is
and I don't believe this Roof Control Plan does
that. So, under the circumstances, I am going to
grant the motion for a directed verdict as the
evidence stands and vacate that order.
ORDER
Docket No. PENN 88-220: Citations No. 2938166 and
2941935 are modified to non "significant and substantial"
citations and are affirmed as modified.
Cyprus Emerald
Resources Corporation is directed to pay civil penalties of
$75 for each violation within 30 days of he date of this
decision. Docket No. PENN 88-221: Order o. 3086725 is
vacated.

Law Judge
Distribution:
Thomas A. Brown, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480-Gateway Building, 3535 Market
Street, Philadelphia, P~ 19104 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 600 Grant
Street, 57th Floor, Pittsburgh, PA 15219 (Certified Mail)
nt

1424

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

22041

OCT 1 71988
SECRETARY OF LABOR,
MINE SAFETY AND HEAL'rH !
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 88-36
A.C. No. 15-16037-03501

v.

Docket No. KENT 88-79
A.C. No. 15-16037-03502

BLACK BEAUTY COAL COMPANY,
Respondent

No. 1 Mine
DECISION

Appearances:

Before:

Joseph B. Luckett, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, TN, for the
Petitioner;
Ms. Maxine Patterson, and Mr. OWen Grubb, Black
Beauty, Middlesboro, KY, for the Respondent.

Judge Fauver

These consolidated proceedings were brought by the Secretary
of Labor under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et ~ The Secretary seeks civil penalties for
alleged violations of safety standards.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following:
FINDINGS OF FACT
1. At all times relevant, Respondent, a small operator,
operated a surface coal mine, known as Mine No. 1, in Knox
County, Kentucky. The mine produced coal for regular sales or
use in or substantially affecting interstate commerce.
2. Citation 2794718 was issued on May 20, 1987, by
Inspector Alex Sorke for a violation of 30 C.F.R. § 77.1001.
Loose, hazardous material had not been stripped from the top of
the mine pit and the mine highwall. The mine highwall at the
site was 40 to 50 feet high and 50 to 60 feet long. There were
overhanging trees, as well as loose dirt and rocks throughout the
length of the wall.

1425

3. Citation 2794719 was issued on May 20, 1987, by
Inspector Sorke for a violation of 30 C.F.R. § 77.403. A
front-end loader was in operation beneath the highwall. The cab
on the front-end loader had been removed, and therefore the
equipment had no falling object protection.
4.
Citation 2794721 was issued on May 20, 1987, by
Inspector Sorke for a violation of 30 C.F.R. § 48.25. Miners
were employed on the mine site without having had the training
required for new miners.
5. Order 2794722 was issued on May 20, 1987, by Inspector
Sorke for a violation of 30 C.F.R. § 77.410. A Caterpillar
bulldozer was not equipped with a backup alarm.
6. Order 2794717 was issued by Inspector Sorke on May 20,
1987, under§ 107(a) of the Act, closing the entire pit because
of an i~minent danger. The imminent danger resulted from the
dangerous highwalf in conjunction with the operation of mobile
equipment near the highwall without falling object protection.
This order was not terminated until May 29, 1987.
7.
Citation 2794724 was issued on May 27, 1987, by
Inspector Sorke for operating the mine contrary to the above
closure order (No. 2794717). The mine site was in operation May
27, 1987, while the order was in force.
The front-end loader,
which lacked falling objection protection, had previously been
removed from the pit on May 20, 1987, pursuant to a§ 107(a)
order, but had been returned to the pit. Piles of coal were
present and ready for loading. Coal trucks were lined up to be
loaded.
8. Citation 2794725 was issued on May 27, 1987, by
Inspector Sorke for operating a Caterpillar bulldozer in
violation of a closure order (No. 2794722). The order, written
under i 104(d)(l) of the ~ct on May 20, 1987, had removed the
bulldozer from service for failure to have a backup alarm.
DISCUSSION WITH
FURTHER FINDINGS
with the exception of Citation 2794725, discussed below, I
credit the inspector's testimony and notes as to the conditions
he observed when the above citations and order were issued. The
credible evidence also warrants the conclusions reached by the
the inspector as to gravity, negligence, and violations and his
allegations as to such matters in the citations and order (except
Citation 2794725) are incorporated in this Decision as
conclusions.

1426

aegarding Citation 2794725, the inspector testified that he
heard an engine which he assumed to be the bulldozer that was the
subject of the backup alarm order and listened for a backup alarm
but heard none.
However, he could not see the vehicle at that
time. Later he saw the bulldozer standing still, and walked past
the bulldozer, but did not inspect it to see whether it had a
backup alarm.
I find that the evidence does not meet the
Secretary's burden of proving the violation as charged.
Considering the criteria for civil penalties in§ llO(i) of
the Act, I find that the following civil penalties are
appropriate for the violations found herein:
Citation or Order
Citation
Citation
Citation
Order
Citation

Civil Penalty

2794718
2794719
2794721
2794722
2794724

$700
700
800
500
950
$3,650

CONCLUSIONS OF LAW
1. The undersigned judge has jurisdiction over these
proceedings.
2.
Respondent violated the safety standards as alleged in
the above citations and order, except Citation 2794725.
ORDER
WHEREFORE IT IS ORDERED that:
1. Respondent shall pay the above civil penalties of $3,650
within 30 days of this Decision.
2.

The charge alleged in Citation 2794725 is DISMISSED.

~~~
William Fauver
Administrative Law Judge
Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certif ie~ Mail)

1427

Ms. Maxine Patterson, Black Beauty Coal Company, 103 Hebrew
Cementary Road, Middlesboro, KY 40965 (Certified Mail)
kg

1428

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

22041

OCT 2O1988

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 88-17-M
A.C. No. 41-03197-05506

v.
Porter Plant & Pit
HALLETT CONSTRUCTION COMPANY,
Respondent
DECISION
Appearances:

Mary Witherow, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
the Petitioner;
Frank Johnson, Division Manager, Hallett
Materials, Porter, Texas, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820(a).
Petitioner seeks civil penalty assessments in the
amount of $595 for six alleged violations of certain mandatory
safety standards found in Part 56, Title 30, Code of Federal
Regulations. The respondent filed a timely answer contesting
the alleged violations, and a hearing was convened in Houston,
Texas. The parties waived the filing of posthearing briefs,
but I have considered their oral arguments made on the record
in the course of the hearing.
Issues
The issues presented in this case are Cl) whether the
conditions or practices cited by the inspector 1constitute violations of the cited mandatory safety standards, (2) the appropriate civil penalty to be assessed for the violations, taking
into account ~he statutory civil penalty criteria found in
section llO(i) of the Act, and (3)· whether the violations were

1429

"significant and substantial." Additional issues raised by
the parties are identified and disposed of in the course of
this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977;
Pub. L. 95-164, 30 U.S.C. § 801 et seq.
2.

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

3.

Commission Rules, 29 C.F.R. § 2700.l et seq.
Discussion

All of the contested citations in this case were issued by
MSHA Inspector Melvin R. Jacobson during the course of an
inspection of the respondent's sand and gravel dredge operation
on August 19, 1987 (Tr. 8). The inspector was accompanied by
respondent's mine foreman, Steve Iverson (Tr. 11).
Section 104(a) "S&S" Citation No. 3061118, cites a violation of mandatory safety standard 30 C.F.R. § 56.12025, and
the coridition or practice is described as follows:
"The
ground lug on the electrical cord for the fan used on the left
walkway of the dredge was broke off exposing personnel to a
probable shock hazard should a fault occur on the fan motor or
controls."
Inspector Jacobson testified that he issued the cit~tion
after finding the ground lug of an electrical plug-in cord of
a 110-volt, 1/2 horsepower, metal encased cooling fan broken
off. The fan was one of two fans located on either side of
the dredge, and he believed they were used for cooling the
cabin. He observed an electrical outlet nearby, and the cord
was long enough to reach it. The fan was portable, had no
handles, and the fan blade was 18 to 24 inches in diameter.
The cited fan was not plugged in, and neither fan was operating. The dredge was down for maintenance, and no one was at
the controls. Mr. Jacobson stated that he pointed out the
condition to Mr. Iverson, and he agreed that it was a hazard
and stated that he would take care of it "right away" (Tr.
12-14).
Mr. Jacobson believed that the lack of a ground lug constituted a hazard because under a fault condition, the fan
could be energized and someone could be severely shocked. If
this occurred, the individual could suffer fatal injuries or
burns. Since the dredge operator is sometimes alone on the
dredge, if he were to receive a shock, no one would be there

1430

to help him. No one can predict when a fault will occur, and
any deterioration of the insulation on the wiring could result
in a fault if it were to contact the metallic fan parts. The
lack of a sufficient grounding device would not blow the
fuses, and if anyone were to touch the fan with the current
still on, they could become part of the circuit and this could
result in a fatal shock. Mr. Jacobson believed that it was
reasonably likely that ~n injury would occur "based on the
fact that these type accidents have been and are continuing to
occur" (Tr. 16). He stated that one of his friends was
fatally injured after using an electrical cord without a
ground lug on it (Tr. 20).
Mr. Jacobson confirmed that he made a finding of "low
negligence" because the dredge operator probably was not
cognizant of the potential shock hazard, and the fact that the
foreman was new and probably did not recognize the potential
for an accident. The violation was abated by installing a
proper plug with a connecting ground to provide the proper
protection to prevent a fault in the current on the fan frame
(Tr. 17).
Mr. Jacobson believed that the fan was not new and had
been used for a long period of time, and exposure to the
sunlight would contribute to the deterioration of the wiring.
He confirmed that he observed no deterioration, but did
observe that it had been exposed to a certain amount of grease
and oil which would also add to the deterioration of the cord
(Tr. 19). He confirmed that he inspected the cord receptacle
and found that it would accommodate a three-conductor plug
(Tr. 20).
Section 104(a) "S&S" Citation No. 3061120, cites a violation of 30 C.F.R. § 56.12025, and the condition or practice is
described as follows:
The ground lug on the cord plug-in for the
battery charger in the shop was broke off.
Additionally, 3 Light extension cords in the
gravel plant and 1 in the sand plant had the
ground lugs broke off. The foreman cut the
plugs off these cords. This citation will only
be abated when all of the cords are removed
from service or new 3 conductor plug-ins
installed.
Inspector Jacobson conf ir~ed that this citation was similar to the previous one in that he found electrical extension
cords with the ground lugs cut off in the locations noted.

1431

The battery charger in question was often used with extension
cords to reach the batteries being charged on equipment
located at the mine.
He ooserved the battery charger at the
shop area near a trailer used as a maintenance area.
A grounding lug is necessary because a battery charger is an electrical device that changes AC current to DC current through a
rectifier, and a fault on the charger could energize the metal
charger case, as well as the vehicle to which it is attached.
Anyone coming in contact with the current, or between the two
potentials, could be killed. The remaining plugs were not
being used and were rolled up and stored in the trailers, but
they were available for use by the employees. The battery
charger was not being used, and if it were, he would have
taken it out of service. Mr. Iverson agreed that the conditions posed a severe hazard and indicated that he "was going
to keep better track of his equipment from now on," and was
concerned about it (Tr. 23).
Mr. Jacobson stated that a failure of the insulation or
any of the component parts of the metal battery charger under
a fault condition would cause the metal surface of the battery
charger to become charged, and without a ground to blow the
fuse, anyone could put their hand on it and become part of the
circuit.
The same would be true if the frame of a vehicle
being charged were touched, and "it don't take much current to
take you out" (Tr. 24).
Mr. Jacobson believed that the cited conditions posed a
serious hazard, and that an electrical accident would likely
result in fatal injuries or burns. He stated that "the
battery charger, in particular, is notorious for causing
accidents" (Tr. 25).
If the battery charger had been plugged
in, Mr. Jacobson would have removed it from service by issuing
an imminent danger order because fault conditions can occur at
any time (Tr. 26). The cords which were stored "weren't in
bad shape, except that the plug ends were broke off," and
Mr. Jacobson believed that they were rel~tively new cords (Tr.
27). Mr. Jacobson observed no visible signs of deterioration
in any of the cords, including the one used on the battery
charger, and if the ground lug were in place, he would have
had no other reason for citing it (Tr. 28).
Mr. Jacobson confirmed that he based his "moderate negligence" finding on the fact that the individuals using the equipment are maintenance personnel, and that the supervisor was new
and not aware of his responsibility to see to it that the equipment is maintained properly (Tr. 29). Mr. Jacobson stated that
during a previous inspection in February, 1987, he found some
ext2nsion cords with the ground plugs broken off ·in storage and

1432

discussed the matter with Mr. Johnson. Mr. Jacobson believed
that these cords were either destroyed or replaced by new ones.
Be did not cite the prior cords because "I would probably have
had a problem proving they were being used,& and he did not
cite the battery charger previously because it had a ground
plug on it (Tr. 32). The cited fan had never been a problem in
the past, and Mr. Jacobson confirmed that his inspection of
August 19, 1987, was the first time he ever noticed any problem
with electrical~equipment on the dredge (Tr. 32);.
Section 104(a)"S&S" Citation No. 3061127, cites a violation of 30 C.F.R. § 56.14001, and the condition or practice is
described as follows:
"The drive coupling on the fresh water
pump on t~e pond supplying water to the plant was not
guarded."
Mr. Jacobson confirmed that he issued the citation after
finding an unguarded water pump drive coupling on the pump
being used to pump water to the plant area. The coupling was
a moving metallic machine part, and he identified exhibit P-3
as a photograph taken of the pump, coupling, and motor, and
confirmed that the coupling is used to connect the pump to the
motor (Tr. 34-36).
Mr. Jacobson believed that anyone coming in contact with
the coupler could be injured, and he investigated one case in
which an individual's coattail was caught in a similar
coupling, and it resulted in fatal injuries. He believed that
anyone contacting the coupler could suffer severe lacerations,
bruises or burns, "something that would cause him to lose
time." He described the motor as a 100 to 150 horsepower
motor, and estimated that the coupler would turn at least at
120 rpm (Tr. 37). He believed that anyone greasing the pump
while it was operating, or observing a mechanical problem,
could contact the coupler inadvertently or brush against it.
If it were cold weather, a jacket tail could wrap around the
shaft and access to the pump was by means of a walkway or ramp
from the shore to the pump location (Tr. 38).
Mr. Jacobson stated that the coupler has two parts which
are coupled together by bolts which leave seams, and that it
probably has rough edges. He confirmed that the pump could be
turned on and off from shore, and that no one needs to board
the barge where the pump was located to start and stop it.
The only reason one would have to go on to the barge would be
for maintenance of the coupling or to grease the pump.
Mr. Jacobson had no knowledge of the respondent's maintenance
procedures, but he believed that the pump should be greased
once a day and that the ideal method for greasing the pump

1433

bearings would be while it was running. However, he did not
know whether the pump in question was greased while it was
running or while it was turned off (Tr. 41).
Mr. Jacobson believed that it was reasonably likely that
an accident would occur if someone on the barge came in
contact with the drive coupling in question, and that he could
brush against it with his leg and tear the tissue. He stated
that one cannot predict when someone will walk out to the
barge, but the opportunity i's there, and the hazard exposure
has "accident probability," and the coupler needed to be
protected (Tr. 44).
Mr. Jacobson confirmed that he made a finding of "low
negligence" because the respondent did not believe the
coupling had to be guarded because the pump could be started
and stopped without anyone going on the barge. Abatement was
achieved by guarding the coupler (Tr. 45).
Section 104(a) "S&S" Citation No. 3061128, cites a violation of 30 C.F.R. § 56.14006, and the condition or practice is
described as follows:
"The sides of the guard on the pea
gravel conveyor had been removed, exposing the pinch point."
Inspector Jacobson stated that he had previously observed
the conveyor in question during a prior inspection in
February, 1987, and it was guarded. He identified exhibit P-4
as a photograph of the tail pulley area of the conveyor, and
he confirmed that during his inspection of August 19, 1987,
the guards had been removed frrno the side, exposing the pinch
points and moving parts of the pulley. The guard on the back
side of the self-cleaning tail pulley was intact and not
removed, and he described it as the wire mesh guarding shown
in the photograph. He also described the location of the
unguarded pinch point (Tr. 44-48).
Mr. Jacobson confirmed that the conveyor was not in use
at the time of his inspection, but that Mr. Iverson admitted
that it had been used without the guard in place, and the
presence of small particles of material on the frame of the
conveyor, as shown in the photograph, would indicate that the
conveyor was operated without the guard in place (Tr. 49).
Mr. Jacobson believed that anyone working around the open
pinch point while greasing the tail pulley or cleaning up
around it would be exposed to the moving parts. He was aware
of ihjuries occurring under other similar conditions, and
injuries have happened through inadvertence or thoughtless
acts while working in such areas. The conveyor was out in the
open, and anyone walking by could stick his hand into the

1434

pinch point if he were to fall or slip. Anyone walking on the
outside of the conveyor, however, would have to stick his arm
into the pinch point. The conveyor operates at high speed,
and the pulley is turning at a rapid rate.
If one were to
contact the pinch point he could not react fast enough to get
away from it, and many individuals have been known to get
caught in similar situations (Tr. 51-53).
Mr. Jacobson stated that Mr. Iverson offered no explanation as to why the guard was off, and Mr. Jacobson saw no
guard in the area. A new guard was made and installed to
abate the violation, and the respondent did a good job in
designing and installing a guard which was much better than
those on the other conveyors in the area. Mr~ Jacobson stated
that he had no information that the guard had been removed for
changing bearings, and was replaced before the plant was
started up.
Had he been told that the conveyor was out of
service and locked out, which he doubted was the case, he
would not have issued the citation (Tr. 53-55).
Mr. Jacobson believed that it was reasonably likely that
an accident would occur as the result of the unguarded conveyor in question because unguarded equipment of this type has
caused numerous serious and fatal accidents over the years,
and he confirmed that within the past 6 months he investigated
an accident where an individual lost an arm in an unguarded
pulley pinch point (Tr. 58). Mr. Jacobson believed that all
guarding citations are "S&S" because "at some point in time,
around a piece of unguarded equipment that is accessible, somebody is going to have to go there," and no one can predict
when this will occur (Tr. 59-60). Inadvertent accidents and
mistakes have caused many injuries of this type in the past
(Tr. 61). He made a finding of "moderate negligence" because
the supervisor was new, and Mr. Johnson was not able to be
present at the mine site for some time (Tr. 61-62).
Section 104(a) "S&S" Citation No. 3061129, cites a violation of 30 C.F.R. § 56.12032, and the condition or practice is
described as follows:
"A motor starter box in the gravel
plant electrical panel had the cover off exposing the electrical 480-volt conductors."
On September 2, 1987, the inspector terminated the citation, modified it to a non-"S&S" citation, and also modified
the gravity finding to "unlikely." The reasons for these
modifications are stated as follows:
"It was determined the
box was disconnected lowering the degree of hazard to
unlikely, no lost work days, non-S&S. The cover should have

1435

been on the box to protect the magnetic starter from mechanical damage. The cover was placed on the box."
Mr. Jacobson explained the circwnstances which prompted
him to issue the citation. He stated that he observed a cover
off of a motor starter box, and the motor starter was attached
by conduit to a fuse box directly above it. He assumed the
unit was either used, or could be used, and if someone "threw
the right switch, they could turn the power on," exposing the
uncovered electrical parts inside the box and thereby presenting a hazard if someone contacted the parts. Since the area
was muddy, a person walking through the area could slip or
fall and easily come in contact with the exposed electrical
parts. He believed the box needed to be protected or removed
if it were not to be used (Tr. 63-64).
Mr. Jacobson stated that during his follow-up abat~~ent
inspection it was brought to his attention that the wiring
inside the cited starter box had been removed, and at the time
of his spot inspection "there was evidence that this was the
case." However, since the starter motor.was still there,
Mr. Jacobson believed that it was going to be used again, and
that it needed to be protected and maintained in an operable
condition. He conceded that the starter could only be used
only if the box were re-wired, and that under the prevailing
conditions, the motor could not have been started. Under the
circumstances, the only hazard presented "would be in the
abuse of the equipment." He assumed that if the starter box
were to be used again, there was an opportunity to use the old
box which had been exposed to mud and water. He could not
recall observing any wires going into the box during his
initial inspection, and during his follow-up, there were no
wires in the box, and it was deenergized.
He also stated that
during his initial inspection, he assumed the box "was dead,"
but that it could be energized. At that time, the plant was
down, and the power to the starters was off (Tr. 66-68). He
assumed that the conduit connecting the fuse box to the
starter box would allow current to flow, but that the upper
portion of the box had apparently been disconnected (Tr. 69).
Mr. Jacobson cohfirmed that he made a gravity finding of
"reasonable likely" based on the information he had during his
initial inspection, but that he would now rate it "unlikely."
He believed that the respondent's negligence was "low," and
assuming the box had been wired, he would have required the
cover to be replaced with a screw to hold it on. Assuming the
box were not wired or "live" he would require the box to be
covered to protect the components, and in this case abatement
was achieved by installing a cover over the box. The box was

1436

subsequently removed, and he believed this was a good idea
(Tr. 69-70).
On cross-examination, Inspector Jacobson confirmed that
he was unaware that the cited fan was burned out, and that
Mr. Iverson informed him that it was in operable condition.
Mr. Jacobson stated further that both he and Mr. Iverson
believed that the fan would have worked if it were plugged in,
and that the fact that it may have been burned out made no
difference.
He believed that a burned out fan presented every
opportunity for a shock hazard because a fan motor malfunction
could energize the frame of the fan if it were plugged in (Tr.
80-81).
With regard to the cited electrical extension cords,
Mr. Jacobson confirmed that d~ring his pcior inspection he
discussed with Mr. Johnson the fact that ground lugs were missing from extension cords which were not in use and stored in a
parts trailer. Although Mr. Jacobson did not cite them at
that time, he included them in the cit:i.tion which he issued
during the August 18, inspection because they were available
for use on the battery charger. The batter charger cord was
not long enough to reach a piece of machinery in the shop
area, and Mr. Jacobson believed that the cords woula have been
used to reach the equipment being charged with the battery
charger (Tr. 85).
In response to further questions, Mr. Jacobson stated
that an extension cord carries current to the circuit, and it
is an extension and integral part of the circuit. Without a
grounding lug or conductor, there is no grounding continuity.
As soon as an extension cord is plugged in, it becomes part of
the circuit (Tr. 86-87) .. Mr. Jacobson confirmed that he has
observed battery chargers used with more than one extension
cord at other mining operations, but not at the respondent's
mine. He cited the cords because he believed they would be
used in series with the battery charger, and to bring to the
attention of the respondent the fact that the cords had a
problem that needed to be corrected (Tr. 89).
Mr. Jacobson stated that there is no MSHA standard specifically requiring an extension cord to have a ground lug, and
if he were to cite only an extension cord he would cite section 56.12030 which requires the correction of a potentially
dangerous condition before equipment or wiring is energized.
He confirmed that the cords were not in use, but in storage,
and that he had previously discussed the lack of ground lugs
·with Mr. Johnson and that "it is quite apparent that conversation wasn't doing the job" (Tr. 92).

1437

Mr. Jacobson stated that the battery charger was portable
and mounted on small wheels, and that it was used to charge
batteries on mobile equipment, including trucks and pick-ups.
The battery charger cord was not long enough to reach out to
the trucks without the use of an extension cord, and the
battery charger was on the ground in the shop area.
If the
charger were taken to the vehicle, an extension cord would be
required because the charger would have to be plugged into an
electrical source. Although a battery could be removed from a
piece of equipment and taken to the charger, he found this
highly unlikely because the batteries are large and heavy (Tr.
9 3-9 6) •

Respondent's Testimony and Evidence
Division Manager Frank Johnson asserted that the cited
fan was burned out and was not in use at the time of the
inspection. He explained that the fan was not removed from
the dredge because it weighed 40 pounds and would require two
men to carry it and place it in ~ boat to take it to shore.
He conceded that the fan was not tagged out, and had no
knowledge as to whether Inspector Jacobson was aware of the
fact that the fan was inoperable (Tr. 82-83; 96-97).
With regard to the cited electrical extension cords,
Mr. Johnson stated that they were not in use and that "we
threw them in the parts trailer to get them out of service"
(Tr. 97). He confirmed that as a result of Mr. Jacobson's
prior inspection in February, "we had gotten rid of all the
old, ungrounded cords, and bought new ones." Mr. Johnson
conceded that the battery charger ground lug was broken off,
and he explained that some of his employees who live nearby
probably used the charger to charge their personal batteries
and broke the lug off because their house had no grounding
plug-in device, and "they probably snapped it off" (Tr. 98).
With regard to the cited unguarded coupler, Mr. Johnson
stated that i.t is perfectly round with no protrusions on it,
and that it is powered by a 75 horsepower motor, and turned at
175 0 rpms.
Mr. Johnson explained that the purnp is 3reased in
the morning before it is started, and the water valves are
opened to bleed off any air. As soon a·s the flow of water
begins, the valve is closed, and the pump is started from
shore with a start button, and "we never touch it again until
the next morning." No one is on the barge during the cours~
of the day, unless something brejks down.
Any breakdown would
only involve the pump or motor because they are the only

1438

moving parts on the barge, and in the event maintenance is
required this equipment is shut off (Tr. 99).
Mr. Johnson stated that if anyone contacted the coupler
while it was in operation and spinning, he could suffer
bruised or broken ribs, but not fatal injuries, and this would
also be true if anyone fell against the guard which was
installed to abate the violation. He believed that the
likelihood of anyone coming in contact with the coupler while
it was in operation was remote (Tr. 99-101).
With regard to the unguarded conveyor, Mr~ Johnson stated
that the rock plant was down at the time of the inspection,
and that the conveyor belt speed was approximately 70 feet per
minute (Tr. 102). Mr. Johnson could not confirm that
Mr. Iverson told Mr. Jacobson that the belt had operated with
the guard off, and he stated that Mr. Iverson "was a very
shook up man because he got nailed with 19 citations that
day," and he has since quit (Tr. 102-103). Mr. Johnson agreed
that if Mr. Iverson told the inspector the conveyor was operated without a guard, "he should give him a citation" (Tr.
109).
With respect to the cited starter box with the missing
cover, Mr. Johnson stated that the box was not in use and that
all of the wires had been torn out of it when several conveyors were dismantled and removed, and the disconnected box
simply remained in the panel (Tr. 109). The box in question
had been used for a magnetic starter, and the stop-start
switch was located on a separate panel and had a cover on it
(Tr. 110). Mr. Johnson agreed that in the event the box in
question had been hooked up, it would have been dangerous (Tr.
111). Mr. Iverson may not have been aware of the fact that
the wires had been removed from the box because he was not
working there when the prior dismantling work was done, and
Mr. Jacobson may not have known it because he was not the
inspector when this work was done CTr. 112).
Findings and Conclusions
Fact of Violations
Citation No. 306118 - 30 C.F.R. § 56.12025
The credible evidence of record reflects that the cited
electrical fan cord used to supply power to the fan had its
grounding lug broken off, thereby rendering it incapable of
providing any ground continuity in the event the fan were
plugged into a receptacle which was within ready access of the

1439

fan.
The cited standard section 56.12025, requires that all
metal enclosing or encasing electrical circuits be grounded or
provided with equivalent protection. While it is true that
the fan was not plugged into the receptacle when the inspector
observed it, thus completing the circuit between the fan and
the electrical source provided by the receptacle, the fact is
that the electrical circuitry inside the fan motor, which was
enclosed with a metallic frame or covering, was not provided
with any workable grounding device since the ground lug to the
power cord had been broken off. Under the circumstances, I
conclude and find that the cited fan was not provided with any
grounding protection, nor was it provided with any equivalent·
ground protection. Accordingly, I conclude and find that the
petitioner has established a violation of the cited standard,
and the citation IS AFFIRMED.
Citation No. 3061120 - 30 C.F.R. § 56.12025
The respondent has conceded that the ground lug on the
·electrical plug-in cord which supplied power to the cited
battery charger was broken off, and the credible testimony of
Inspector Jacobson establishes this fact.
Given the fact that
the broken grounding lug would not provide a means of maintaining any grounding continuity or protection for the metallic
battery charger circuitry, and the fact that no equivalent
grounding protection was provided, I conclude and find that
the petitioner has established a violation of the cited
standard, and the citation concerning the battery charger IS
AFFIRMED.
With regard to the extension cords which were found in
the equipment trailer and which were not in use or connected
to the battery charger, I cannot conclude that the missing
ground lugs, standing alone, constituted a violation of
section 56.12025. The cords were not an integral part of the
battery charger electrical circuitry, and Inspector Jacobson's
speculative opinion that they were available and could be use
in conjunction with the battery charger's power cord is
insufficient to establish a violation. Further, Mr. Jacobson
admitted that part of his reason for citing the cords was to
alert the respondent to the fact that the broken ground lugs
may present a problem, and he conceded that although MSHA has
no specific mandatory standard for citing extension cords
per se, he could have cited section 56.12030, which requires
that potentially dangerous conditions be corrected before
equipment or wiring is energized. Under all of these circwnstances, that portion of the citation which alleges a violative condition in connection with the extension cords which
were in the trailer IS VACATED.

1440

Citation No. 3061127 - 30 C.F.R. § 56.14001
The respondent does not dispute the fact that the drive
coupling for the water pump located on the barge was unguarded,
and Inspector Jacobson's credible testimony establishes that
this was the case. The cited section 56.14001 requires that
all exposed moving machine parts, such as a coupler, which may
be contacted by persons and which may cause injury to persons,
be guarded. Mr. Johnson conceded that the coupler in question
was a moving machine part, and although he believed that the
chances of someone contacting the unguarded and exposed coupler
were remote, he nonetheless confirmed that someone could have
have come in contact with it while it was spinning, and if they
did, they could possibly suffer bruised or broken ribs.
Under
all of these circumstances, I conclude and find that the petitioner has established a violation of the cited standard, and
the citation IS AFFIRMED.
Citation No. 3061138 - 30 C.F.R. § 56.14006
The respondent has not rebutted the credible testimony of
Inspector Jacobson which establishes that the conveyor side
guard in question had been removed and not replaced. Since
Mr. Iverson is no longer e1nployed by the respondent, and was
not called to testify. Mr. Jacobson's testimony that
Mr. Iverson a&nitted that the conveyor had been in operation
without the guard in place, and that the presence of materials
on and around the frame of the conveyor led him to believe
that the conveyor had been operated without the guard in
place, is unrebutted. Further, Mr. Johnson conceded that if
Mr. Iverson told the inspector that the conveyor was operated
without the guard in place, the citation was justified (Tr.
10 9) .
The cited section 56.14006 requires that guards be
securely in place while machinery is being operated. While it
is true that the conveyor was not in operation during the
inspection, I conclude and find that the evidence presented by
the petitioner establishes with some degree of reasonable
certainty that the conveyor had in fact been operated with the
guard off, and the inspector found no evidence of any guard
nearby the cited equipment.
Although the standard provides for an exception for a
guard while the equipment is being tested, and the respondent's
answer states that bearings were being changed, and that the
guard was assembled before the plant was started, the respondent advanced no such credible evidence at the hearing.

1441

Further, the fact that the conveyor was guarded to the rear of
the exposed and moving pulley area, suggests that the respondent was aware of the fact that the area was hazardous and
needed guarding.
In view of the foregoing, and on the basis of all of the
credible evidence adduced by the petitioner in support of the
violation, I conclude and find that a violation of section
56.14006, has been established, and the citation IS AFFI&~ED.
Citation No. 3061129, 30 C.F.R. § 56.12032
The record reflects that the cited motor starter box
which lacked a cover was inoperable and that all of the wiring
inside the box had been removed. There was no power to the
box, and Inspector Jacobson conceded that the box could only
be rendered operable if it were re-wired and again placed in
service. Mr. Johns6n's unrebutted testimony, which I find
credible, establishes that the box had been disconnected and
the inside wires removed for a lonq time prior to the inspection of August 19, 1987, when several conveyors used in conjunction with the box in question were dismantled and removed.
Mr. Johnson testified that although the box was in use in
1985, the conveyors were torn out and the box was disconnected
and the wires were removed (Tr. 109).
The cited standard, section 56.12032, requires that cover
plates on electrical equipment and junction boxes be kept in
place at all times except during testing or repairs.
I conclude and find that the dismantling and removal of the conveyors and the removal of the wires from inside the box which
w·as used in conjunction with the conveyors when they were
operable, constituted repair work. Under the circumstances, I
conclude that the removal of the box cover falls within the
exception found in the standard, and there is no evidence that
the box was ever used or rendered serviceable subsequent to
the time this repair work was done.
I conclude and find that
the petitioner has failed to establish a violation, and the
citation IS VACATED.
The respondent has withdrawn its contest of section 104(a)
"S&S" Citation No. 3061132, August 19, 1987, citing a violation
of mandatory safety standard 30 C.F.R. § 56.12032 (Tr. 70-71).
Inspector Jacobson issued the citation after finding that a
lighting panel at the plant was not provided with an inner
cover, thereby exposing a person to a 220-volt single phase
hazard when the outer cover was raised to turn on the lights.
Under the circumstances, the citation IS AFFIR.~ED AS ISSUED.

1442

Significant and Substantial Violation
A "significant and substantial" violation is described in
section 104Cd)(l) of the Mine Act as a violation "of such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard." 30 C.F.R. § 814(d)(l). A violation is properly
designated signijicant 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 "signif icant and substantial" as follows:
In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of
danger to safety-contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129, the Commission stated further as follows:
We have explained further that the third
element of the Mathies formula "requires that
the Secretary establish a reasonable likelihood
that the hazard contributed to will result in
an event in which there is an injury." U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). we have e~phasized that, in accordance
with the language of section 104(d)(l), it is
the contribution of a violation to the cause
and effect of a hazard that must be signiEicant
and substantial. U.S. Steel Mining Company,
Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
S"t'eel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).

1443

The question of whether any particular violation is significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
{April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
{December 1987).
Based on the credible testimony of the inspector, I conclude and find that the violation concerning the missing
ground l.ug on the fan electrical cord (3061118), and the violation concerning the missing ground lug on the battery charger
electrical cord {3061120), posed a discrete shock hazard
within the Commission's interpretation of "significant and
substantial." Even though the fan may have been inoperable,
it was not removed or tagged out, and in the event someone
inadvertently plugged it in and a fault occurred, the metallic
fan frame could have been energized.
Had this occurred, the
individual plugging it in would likely suffer a shock or burn
injury of· a reasonable serious nature. This same result would
occur in the event a fault occurred while someone using the
battery charger plugged in the.cord supplying power to the
charger.
The evidence establishes that employees often used
the battery charger to service their personal vehicles, and
this would increase the likelihood of an injury by the use of
the charger without a proper grounding device.
Under these
circumstances, I conclude and find that these violations were
significant and substantial, and the inspector's findings in
this regard are af~irmed.
With regard to the unguarded motor drive coupler on the
fresh water pump (3061127), I agree with the inspector's
significant and substantial finding.
While it is true that
the motor could be turned on and off from shore, the unguarded
coupler was readily accessible to anyone on the barge greasing
or performing maintenance work.
Although respondent's witness
Johnson stated that no one had a need to be on the barge while
the pump was in operation, he conceded that someone would
necessarily be present in the event of an equipment breakdown,
and he confirmed that if anyone inadvertently came in contact
with the exposed and unguarded coupler, he would likely suffer
broken or bruised ribs.
Under the circumstances, I conclude
and find that the violation was significant and substantial,
and the inspector's finding is affirmed.
With regard to the unguarded pea gravel conveyor violation
{3061128), the credible testimony of the inspector supports his
significant and substantial finding.
Although the conveyor was
not in operation at the time of the inspection, the evidence
presented by the inspector supports a reasonable unrebutted

1444

inference that material had been processed with the conveyor
running with an exposed unguarded pinch-point which was readily
accessible to anyone greasing or cleaning up in the vicinity of
the unguarded conveyor pulley. Since the conveyor operates at
a relatively high speed, anyone inadvertently contacting the
unguarded pinch-point would likely suffer injuries of a reasonably serious nature. I conclude and find that this violation
was significant and substantial, and the inspector's finding is
affirmed.
Size of Business and Effect of Civil Penalty Assessments on
the Respondent's Ability to Continue in Business
The parties agreed that the respondent is a medium-sized
sand and gravel operator (Tr. 121-122), and absent any evidence
to the contrary, I conclude and find that the civil penalty
assessments which I have made for the violations in question
will not adversely affect the respondent's ability to continue
in business.
History of Prior Violations
Petitioner's counsel did not have a computer print~out of
prior assessed violations available at the hearing. However,
based on the information available from MSHA's proposed assessment .form, petitioner's counsel stated that the respondent was
issued 10 prior citations durin~ the 24-month period prior to
the issuance of the contested citation~ in this case. Counsel
had no knowledge as to whether or not any of the prior citations were similar to those issued in this case (Tr. 119-120).
Given the available evidence, I cannot conclude that the
respondent's history of compliance is such as to warrant any
additional increases in the civil penalties which have been
made for the contested violations in issue in this case.
Good Faith Compliance
The record establishes, and the parties agreed, that all
of the violations were timely abated by the respondent in good
faith (Tr. 17, 30, 45, 54-62, 122). I have taken this into
account with respect to the civil penalty assessments made in
this case.
Negligence
The inspector's negligence findings as to each of the
citations in question, ranging from low to medium, are
affirmed.
I conclude and find that the violations resulted
from the respondent's failure to exercise reasonable care.

1445

Gravity
For the reasons stated in my significant and substantial
violations findings, I conclude and £ind·that the violations
concerning the missing ground lugs on the fan and battery
extension cords, the unguarded motor drive coupler on the
barge water pump, and the unguarded pinch point on the pea
gravel conveyor were all serious violations.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llO(i) of
the Act, I conclude and find that the following civil penalty
assessments are reasonable and appropriate for the violations
which have been affirmed in this proceeding:
Citation No.

Date

3061118
3061120
3061127
3061128
3061132

08/19/87
08/19/87
08/19/87
08/19/87
08/19/87

Assessment

30 C.F.R. Section
56.12025
56.12025
56.14001
56.14006
56.12032

$ 112
$ 100
$ 68
$ 126
$ 112

In view of my findings and conclusions concerning the
cited electrical motor box, Citation No. 3061129, 30 C.F.R.
§ 56.12032, the citation IS VACA'rED, and the petitioner's
proposal for assessment of a civil penalty for this violation
is REJECTED AND DISMISSED.
ORDER
The respondent IS ORDERED to pay the civil penalties
assessed in this proceeding within thirty (30) days of this
decision and order. Upon receipt of payment by the petitioner,
this case is dismissed.

~/

d

//

-L--

//-~-''/.cf/: 1t::i~C--~~
~~ rge
Koutrasf
Adrninis rative Law Judge

1446

Distribution:
Mary Witherow, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 752-02
(Certified Mail)
Frank Johnson, Division Manager, Hallett Materials, P.O •.
Box 329, Porter, TX 77365 (Certified Mail)
T. E. Doyle, Director Personnel, Risk Management & Compliance,
Hallett Materials, 1109 Division Street, P.O. Box 13, Boone,
IA 50036 (Certi!ied Mail)

/f b

1447

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

22041

OCT 201988
THE HELEN MINING COMPANY,
C9ntestant

CONTEST PROCEEDING

v• .

Docket No. PENN 88-1-R
Order No. 28Sl028; 8/31/87

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

Homer City Mine

CIVIL PENALTY PROCEEDING

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

Docket No. PENN 88-112
A.C. No. 36-00926-03705

v.
Homer City Mine
THE HELEN MINING COMPANY,
Respondent
DECISION
Appearances:

Before:

Joseph Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary of Labor
(Secretary>; Ronald B. Johnson, Esq., Volk,
Frankovitch, Anetakis, Recht, Robertson &
Hellestedt, Wheeling, West Virginia, for The Helen
Mining Company (Helen).

Judge Broderick

STATEMENT OF THE CASE
Helen contests a withdrawal order issued under section
104Cd)(2) of the Act on August 31, 1987, alleging a violation of
30 C.F.R. § 75.503. The Secretary seeks a civil penalty for the
violation alleged in the contested order. The two proceedings
were ordered consolidated for the purposes of hearing and
decision.
Pursuant to notice, the consolidated cases were heard
in Pittsburgh, Pennsylvania on August 16, 1988. Thomas
Whitehair, Ronald Lee Rhodes and William D. Sparvieri testified
on behalf of the Secretary. Joseph Lewis Dunn and Wayne Fink
testified on behalf of Helen.
Both parties were given the
opportunity to file posthearing briefs. Counsel for Helen filed
a brief; counsel for the Secretary did not.
I have considered

1448

the entire record and the contentions of the parties, and make
the following decision.
ISSUES
1. The basic issue in this proceeding is a factual one:
was the pump switchbox cited on August 31, 1987 - a&nittedly
nonpermissible - in return or intake air? If it was in return
air, a violation is established; if in intake air, a violation is
not established.
2. If a violation is established, was it significant and
substantial?
3. If a violation is established, what is the appropriate
penalty?
FINDINGS OF FACT
At all times pertinent to this proceeding, The Helen Mining
Company was the owner and operator of an underground coal mine in
Indiana County, Pennsylvania, known as the Homer City Mine.
Helen produced over three million tons of coal annually, of which
800,000 tons were produced at the subject mine. The record does
tiot contain any evidence respecting Helen's history of previous
violations. Th~refore, I assume that it had a favorable histo~y.
The subject mine is a gassy mine and liberates more than two
million cubic feet of methane in a 24 hour period.
On August 31, 1987, Federal mine inspector Wayne Burkey and
inspector trainee Thomas Whitehair conducted a regular ("AAA")
inspection at the subject mine. They entered the mine with
Dale Montgomery, a company safety representative and Ron Rhodes,
a union safety committeeman. At one point during the inspection,
the inspection party split up, with Whitehair and Rhodes
proceeding to what they believed was a return aircourse off the
Burrell Mains track. They observed company f ireboss Wayne Fink
apparently monitoring a pump for methane. Fink testified that in
fact he was taking a methane reading at the intake evaluation
point at the water's edge. Whitehair saw that the switchbox was
not enclosed and asked Fink if he knew that this was a
nonpermissible switchbox in return air. Fink admitted it, and
said that was why he was there, monitoring the methane.
Inspector-trainee Whitehair went to find Inspector Burkey, and
returned with Burkey and Montgomery to the switch. Burkey issued
the§ 104(d)(2) order contested herein, and said he wanted power
removed from the pump. Neither Montgomery nor Fink at that time,
or afterwards when the order was discussed outside, claimed that
the pump was not in return air. None of the members of the
inspection party conducted any test to determine the direction of

1449

the airflow.
It was apparently assumed by all that the area was
in return air.
The map filed by Helen with MSHA as part of its ventilation
plan on January 16, 1987, and approved on January 29, 1987,
showed the area in question to be in return air. There is a
dispute in the testimony as to the location of pump with
reference to this map. Although it is not decisive, I accept the
testimony of Joseph Dunn, Helen's General Mine foreman, as to the
location of the pump.
(Inspector Whitehair located the pump and
switchbox at areas marked in red "Y" and "P" on page 3 of
Government's Exhibit l; Mr. Dunn stated that they ~ere located at
the point marked in blue "X" on the same document.
Both these
areas were, according to the map, in return air. Both were, in
fact, according to Dunn, in intake air}.
On the <lay following the issuance of the order, Mr. Dunn
went to the area involved and performed a smoke tube test which
showed that the split was intake and not mixed with return air.
Mr. Dunn stated that this area had always been in intake air. He
testified that the map submitted with the ventilation update
omitted a wall, and mistakenly showed an area to the left of the
Burrell Mains area as being in return air (double arrows on the
map}.
In fact, Dunn testified, it was in intake air from the
split in the old face area. The air does not pass any working
faces or ventilate any gob area; it does not mix with any return
air. Dunn stated that this was a mistake on the part of the
engineers who prepared th~ map, and of Dunn who reviewed it.
Mr. Dunn's testimony on the basic factual issue was .consistent
and convincing. Largely on the basis of his testimony, I find as
a fact that the cited pump switchbox was on August 31, 1987,
located in intake air.
REGULATION
30 C.F.R. § 75.507-l(a} provides in part:
All electrical equipment, other than power-connection
points, used in return air outby the last open crosscut
in any coal mine shall be permissible .
CONCLUSIONS OF LAW
Helen Mining Company is subject to the provisions of the
Mine Act in the operation of the subject mine, and I have
jurisdiction over the parties and subject matter of this
proceeding. The nonpermissible pump switchbox cited in order
2881028 on August 31, 1987, was located in an intake aircourse.
Therefore, a violation of 30 C.F.R. § 75.507-l(a) has not been
established.

1450

ORDER
Based upon the above findings of fact and conclusions of
law, IT IS ORDERED:
1. Order No. 2881028 issued on August 31, 1987, under
section § 104 Cd) (2) of the Act is VACA·rED. ·rhe contest is
GRANTED.
2. The Secretary has failed to establish a violation of the
mandatory standard alleged and her petition for civil penalty is
DISMISSED.

Distribution:
Joseph Crawford, Esq., U.S. Department of Labor, Office of the
Solicitor, Room 14480, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Ronald B. Johnson, Esq., Volk, Frankovitch, Anetakis, Recht,
Robertson & Hellerstedt, 3000 Boury Center, Wheeling, WV 26003
(Certified Mail)
slk

1451

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

22041

OCT 21,988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
DAVID H. MILLER,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. WEVA 88-165-D
MSHA Case No. MORG CD 87-27
Ireland Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Koutras
Statement of the Case

This proceeding concerns a complaint of alleged discrimination filed by the Secretary of Labor on behalf of-David H.
Miller against the respondent pursuant to section 105(c) (1) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815(c) (1).
The complaint alleges that on or about September 11,
1987, Mr. Miller was discriminated against because the respondent interfered with his right as a representative of miners to
accompany a Federal mine inspector during his inspection of the
mine.
Th€ complaint was subsequently amended by the Secretary to
include a proposal for an assessment of ·a civil penalty against
the respondent for the alleged act of discrimination.
The respondent filed a timely answer denying that it discriminated against Mr. Miller, and the matter was scheduled for
a hearing in Wheeling, West Virginia, on Tuesday, June 14, 1988.
However, the hearing was cancelled after the parties advised me
that they had reached a proposed settlement of the case. The
parties have now filed a joint motion for approval of the
proposed settlement.
Discussion
In support of the proposed settlement disposition of this
case, the Secretary has submitted information pertaining to the

1452

six statutory civil penalty criteria found in section llO(i) of
the Act.
In addition, the conplainant David H. Miller states
that he has voluntarilv consented to the agreement reached on
his behalf by the Secretary, and that he will withdraw his complaint upon the respondent's posting of a notice to employees
that it will comply with the provisions of sections 103(£) and
lOS(c) of the Act, and payment of a civil penalty assessment in
the amount of $2,000 to MSHA's Office of Assessments. The
respondent has agreed to post the requisite notice at the mine
and to pay a civil penalty assessment of $2,000.
In further support of the settlement, the parties state
that Mr. Miller received no disciplinary action from the respondent as a result of his attempts to exercise his rights as the
walkaround representative of miners and that the respondent did
not document the occurrence in question for purposes of placing
a record of the incident in his personnel file.
Under these
circumstances, the parties are in agreement that the gravity of
the violation should be minimally reduced from the initial proposed range of $2,500 to $3,000 to $2,000.
Conclusion
After careful review and consideration of the settlement
terms and conditions executed by the parties in this proceeding,
including Mr. Miller, I conclude and find that the proposed
settlement reflects a reasonable resolution of the complaint
filed by the Secretary on Mr. Miller's behalf, and th~t it is in
the public interest. Since it ~eem~ Clear to me that the parties
are in agreement with the proposed settlement disposition of the
complaint, I see no reason why it should not be approved.
I also
find no reason for not approving the reduction of the initial
proposed civil penalty assessment.
ORDER
The joint settlement motion filed by the parties IS GRANTED
and the settlement IS APPROVED. The respondent IS ORDERED to
fully comply with the terms of the settlement and to immediately
post the aforementioned notice at a c9nspicuous place at the
mine.
The respondent IS ·FURTHER ORDERED to pay to MSHA a civil
penalty assessment of $2,000, for the violation in question, and
payment is to be made within thirty (30) days of the date of this
decision and order. Upon receipt of payment by MSHA, and full
compliance with the terms of the settlement, this matter is
dismissed.

/c:J/
,~
~~.4:tras
Administrative Law Judge
14 53

Distribution:
Anita D. Eve, Esq., Office of the Solicitor, U.S. Department of
Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
/fb

1454

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

22041

OCT 21 \988
DAVID JOHNSON,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 88-135-D
BARB CD 88-20

v.
JERICOL MINING INC.,
Respondent

Darby's Mine
ORDER OF DISMISSAL

Before:

Judge Maurer

The Complainant, David Johnson, requests approval to
withdraw his Complaint in the captioned case on the grounds
that he has reconsidered his decision to proceed with the
Complaint and no longer desires a hearing concerning this
matter. Under the circumstances herein, permission to
withdraw is granted.
29 C.F.R. § 2700.11.
The case is
therefore dismissed.

;~~ ~11~llvl-'-'~/

Roy . aurer
Admi 's rative Law Judge
Distribution:
Mr. David Johnson, P.O. Box 265, Baxter, KY 40806 (Certified Mail)
Christopher M. Hill, Esq., McBrayer, McGinnis, Leslie, and
Kirkland, 300 State National Bank Bldg., P.O. Box 1100,
Frankfort, KY 40602 (Certified Mail)
kg

1455

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

22041

October 21, 1988

GREEN RIVER COAL CO.,
Contestant

..

CONTEST PROCEEDINGS
Docket No. KENT 87-217-R
Citation No. 2828322;
7/15/87
Docket No. KENT 87-218-R
Citation No. 9897267;
7/9/87
Docket No. KENT 87-82-R
Citation No. 2216195;
12/10/86
Docket No. KENT 88-2-R
Order No. 2836094;
9/21/87
Docket No. KENT 87-202-R
Citation No. 2215847;
5/27/87
Docket No. KENT 87-203-R
Citation No. 2215849;
5/27/87

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

No. 9 Mine
Mine I.D. 15-13469
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 88-5
A.C. No. 15-13469-03620

v.
Docket No. KENT 88-19
A.C. No. 15-13469-03624

GREEN RIVER COAL CO.,
Respondent

No. 9 Mine
DECISION
Appearances:

Before:

Flem Gordon, Esq., Gordon & Gordon, O.Vensboro, KY,
for Green River Coal Co.;
Mary Sue Ray, Esq., Office of the Solicitor, U.S.
Department of Labor, Nashville, TN, for the
Secretary of Labor.

Judge Fauver

1456

The above cases, arising under the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq., were called for
hearing at Evansville, Indiana.
Motions to approve settlement and to withdraw some of the
cases were considered and granted at the hearing. Accordingly,
KENT 87-82-R, KENT 88-2-R, and KENT 87-218-R will be disillissed
and the operator will be ordered to pay the following approved
civil penalties: $700 each for Order 2215845 and Order 2215846
in KENT 88-5; $700 for Order 2836094 in KENT 88-2-R; and $20 for
Citation 9897267 in KENT 87-218-R.
The following matters are pending decision following the
hearing and briefs: KENT 87-217-R and KENT 88-19 concerning
Citation 2828322 and KENT 87-202-R, KENT 87-203-R and KENT 88-5
concerning Order 2215847 and Order 2215849.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the subgtantial, reliable
and probative evidence establishes the following:
FINDINGS OF FACT
1. Green River Coal Company is a large coal operator
producing coal for sales in or substantially affecting interstate
commerce.
Order 2215847
2. On May 27, 1987, MSHA Ventilation Specialist Louis
Stanley inspected working section 4 of Green River ~o. 9 mine.
There were six active entries in the section.
3. In No. 3 entry, Specialist Stanley observed an air
curtain that appeared to him to be improperly hung in that it did
not cover enough of the crosscut to direct sufficient air to the
working face. The curtain extended only five to eight feet
across the crosscut. Specialist Stanley believed the curtain
would have to be extended to nearly the full width of the
crosscut to direct adequate air to the working face.
He believed
the condition was obvious and should have put the foreman on
notice to check the ventilation and correct the curtain.
4.
Ba~ed upon his suspicion about the curtain, Specialist
Stanley took an air reading in the entry. He used a smoke tube
to determine the speed of air in the entry and calculated the
volume of air after measuring the air opening behind the air
curtain. The air opening was 5 x 4 feet.
His calculations
showed 1,500 cfm of air.
Because the regulations (30 C.F.R.
§ 75.301-1) require a minimum of 3,000 cfm at each working face,
Speciatist Stanley issued Order 2215847.

1457

5. Specialist Stanley measured the
same entry and found .9 percent methane.

~ir

for methane in the

6. Specialist Stanley asked the section foreman, Kelvin
Smelly, whether he had checked the ventilation. The foreman told
him that he had. Specialist Stanley asked to see Mr. Smelly's
calculations. Mr. Smelly said, "I don't have any." Specialist
Stanley then asked him, "How could you calculate this?" and he
replied, "I calculated it in my head." Specialist Stanley then
asked what figures he had used for the air opening, and Mr.
Smelly replied, "two foot by five foot."
Order 2215849
7. On May 27, 1987, Specialist Stanley observed
accumulations of loose coal along the ribs of entries No. 2
through No. 7 in working section 4, extending from the working
faces outby 60 to 70 feet. The loose coal ranged from 12 to 30
inches deep and one to four feet wide.
8. Based upon the conditions he observed, Specialist
Stanley's expert opinion was that the loose coal had accumulated
over three work shifts.
9. Methane was detected in each of the six entries, ranging
from • 7 to 1.15 percent.
Citation 283822
10. On May 15, 1987, MSHA Inspector George Newlin took
methane readings in the return air course off the ~o. 1 unit in
the old headings of the No. 1 return. He detected methane of
2.13 percent in one room at spad 2100 and 1.95 percent in another
room at spad 2100.
11. The Green River No. 9 mine liberates over one million
cubic feet of methane in 24 hours.
DISCUSSION WITH OTHER FINDINGS
Order 2215847
The company does not deny a violation of the ventilation
standard (30 C.F.R. § 75.301-1), which requires 3,000 cfm, but
challenges Specialist Stanley's finding that the violation was
"unwarrantable."
Speciali~t Stanley found 1,500 cfm in the entry.
Mr. Smelly
contended he had measured over 3,000 cfm shortly before the
inspector's test.

1458

I credit ~pecialist Stanley's testimony and notes concerning
this matter. The foreman was present on the section but had not
ensured proper ventilation of the face, the curtain was obviously
improperly hung, and an accurate air reading showed that the air
was 1,500 cfm below the safety standard of 3,000 cfm. In
addition, there was .9 percent methane in the entry.
I find that
the foreman demonstrated high negligence in operating this
section without ensuring adequate ventilation. The improper
hanging of the air curtain was the sole rea~on for the 50% loss
of the required ventilation. Given the obvious condition of the
curtain, the history of methane buildups in this mine, and the
sources of ignition in the working section, the foreman's conduct
exceeded ordinary negligence when he proceeded to work the
section without adequately measuring the air and correcting any
deficiency.
I find that the foreman either did not take an air
reading or, if he took one, he used a patently inadequate figure
for the air opening, i.e., 10 sq. ft. instead of the accurate
figure of 20 sq. ft. measured by the inspector. The inspector
was justified in finding an "unwarrantable" violation of the
ventilation standard.
Considering the criteria for a civil penalty in§ llO(i) of
the Act, I find that a penalty of ~700 is appropriate for this
violation.
Order 2215849
The violation charged is not contested, but the company
contends that it was not an "unwarrantable" violation.
I credit the inspector's testimony and notes concerning this
matter.
Considering the obvious condition of the accumulations of
loose coal, the fact that it took several shifts to accumulate
the amount of loose coal observed, and the failure of the company
to comply with its own cleanup policy, I find that the inspector
was justified in finding a high degree of negligence. This
satisfies the Commission's criteria for an "unwarrantable"
violation.
The company relies on the inspector's acceptance of the word
"inattentive" during cross examination, in contending that the
violation was not "unwarrantable." However, the inspector's
personal interpretation of the word "inattentive" is that it
means "no attention at all" and "basically the same" as
"aggravated conduct or high negligence" (Tr. 37-38). This is
consistent with his finding of an "unwarrantable" violation based
on the facts he observed.
Considering the criteria for a civil penalty in§ llO(i) of
the Act, I find that a penalty of $800 is appropriate for this
violation.

1459

Citation 283822
This citation was issued by Inspector George Newlin on May
15, 1987, for a violation of 30 C.F.R. § 309(b) on the ground
that 2.3 percent and 1.95 percent methane readings were found in
the return air course off the ~o. l unit in the old headings of
the No. 1 return.
Inspector Newlin took methane readings with an
approved methane monitor in numerous areas throughout the old
headings. He took bottle samples in two rooms and found 2.13
percent methane in one and 1.95 percent methane in the other.
The buildup of methane was caused by a rock fall in the return
air course. It had been two or three days since the headings
were last inspected by the company. The headings are required to
be walked and inspected once a week. The area was due to be
sealed within a week.
If left uncorrected, the condition probably would have
caused a back up of methane to the active unit.
Green River Coal Company No. 9 mine liberates in excess of
one million cubic feet of methane in a 24 hour period. .Further
build up of methane could have resulted in an explosive mixture
of methane. The mine has a history of prior violations
concerning methane.
Section 75.309(b) of 30 C.F.R. provides that if, when
tested, a split of air returning from a working section contains
1.5 percent of methane or more, the area of the mine endangered
by methane shall be safeguarded "until the air in such split
shall contain less than 1.0 volume per centum of methane."
A "split of air" means a separate air circuit, e.g., when
mine workings are subdivided to form a number of separate
ventilating districts; "the main intake air is split into the
different districts of the mine" and later "the return air from
the districts reunite to restore the single main return air
current" (A Dictionary of Mining, Mineral, and Related Terms
(Bureau of Mines, U.S. Department of Interior 1968) p. 1201).
The locations where the inspector found methane readings of 2.13
and 1.95 percent were in a "split of air returning from a working
section."
The methane buildup was caused by a roof fall, and not
negligent conduct by the company.
The safety~tandard requires the operator to take certain
corrective action "If, when tested, a split of air retut'ning from
any working section contains 1.5 volume per centum or more of
methane." Since the company's last methane test of the cited
area did not show this amount of methane, the Secretary has not
shown a violation of§ 309(b) as charged in the citation.
In
other words, a duty to safeguard the area by the steps outlined

1460

in§ 309(b)·was not triggered by a prior test showing methane of
1.5 percent or higher.
CONCLUSIONS OF LAW
1.

The judge has jurisdiction over these proceedings.

2. Green River Coal Company violated the safety standards
as alleged in Order 2215847 and Order 2215849.
3. The Secretary failed to prove a violation as charged in
Citation 2828322.
ORDER
WHEREFORE IT IS ORDERED that:
1.
Docket Nos. KENT 87-82-R, KENT 88-2-R, and KENT 87-218-R
are DISMISSED.
2.

Order 2215847 is AFFIRMED.

3.

Order 2215849 is AFFIRMED.

4.

Citation 2828322 is VACATED.

5. Green River Coal Company shall pay the above civil
penalties of $3,620 within 30 days of this Decision.

UJ~t:~

Administrative Law Judge

Distribution:
Flem Gordon, Esq., Gordon & Gordon, P.S.C. 1500 Frederica Street,
P.O. Box 390, OWensboro, KY 42302-0390 (Certified Mail)
Mary Sue Ray, Esq., U.S. Departillent of Labor, Office of the
S6licitor, 2002 Richard Jones Road, B-201, Nashville, TN 37215
(Certified Mail)
kg

1461

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
OFFICE OF- ADMINIS1RA1 IVE LAW JUDGES
COLONNADE CFNTER
ROOM 28(: 1?4·1 SPlER 80ULEVARO
DENVER CO 8(l2(l4

OCT 2 41988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
JOSEPH GABOSSI,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 86-24-D
Deserado Mine

v.
WESTERN FUELS-UTAH, INC.,
Respondent
DECISION AFTER REMAND
Before:

Judge Morris

On August 15, 1988 the Commission ruled that Joseph
Gabossi's complaints to mine management concerning the company's
reporting structure constituted an activity protected under the
Act and, accordingly, the Secretary may have established a case
of unlawful discrimination. Further, the Commission noted that
"(i)t remains to be determined whether, on the basis of this
record, Western Fuels successfully rebutted the Secretary's case
or affirmatively defended against it." Slip~· at 6, 7.
The Commission order of remand basically restates its
established precedent.
Specifically, an operator may rebut the
prima facie case by showing that the adverse action was in no
part motivated by protected activity.
If the operator cannot
rebut the prima facie case in this manner, it nevertheless may
defend affirmatively 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.
Secretary on behalf of Fasula v. Consolidation Coal Co., 2 FMSHRC
2786, 2797 - 2800, rev'd on other grounds sub.nom. Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 81), Secretary on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817818 (April 1981). See also Eastern Assoc. Coal Corp. v. FMSHRC
813 F.2d 639, 642 (4th Cir. 1987), Donovan v. Stafford Constr.
Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC,
719 F.2d 194, 195-96 (6th Cir. 1983) (Specifically approving
Commission's Fasula-Robinette test). Cf. NLRB v. Transportation
Management Corp., 462 U.S. 393, 397-413 (1983) (approving nearly
identical test under National Labor Relations Act).

1462

In its order of remand the Commission directed the Judge
to make additional findings of fact and to analyze such findings
in accordance with applicable case law.
In particular, the
Commission directed the Judge to consider the incident of
November 9, 1985 involving Gabossi and Mine Manager Upadhyay
as well as the events surrounding Gabossi's discharge on
January 30, 1985. •
The Judge took the issues as submitted on the basis of the
present record and briefs (Order, August 18, 1988).
Based on the evidence and the record as a whole, I find
that a preponderance of the substantial, reliable and probative
evidence establishes the following and I make these:
Findings of Fact
Incident of November 9, 1984
1. On November 9, 1984, a Friday, Upadhyay and Gabossi were
discussing an increase in Gabossi's duties.
This increase
involved a computer technician and all of the belts from the mine
to the silos (Tr. 30).
2. Gabossi felt the time was opportune so he brought up the
issue of the separation of the company's departments as well as
their [lack of] coordination. Gabossi showed Upadhyay Emmons'
letter (relating to Gabossi's mine foreman duties under Colorado
1 aw ) ( Tr • 31 , Ex . C 5 ) .
3. As soon as he read the letter Upadhyay got "instantly"
mad and he told Gabossi that if he didn't like it he should quit;
that when Western Fuel makes a decision they're going to run it
the way they want no matter who else doesn't like it. It was a
heated discussion (Tr. 30, 31).
4.
On November 11th 1/ Gabossi was called to Upadhyay's
office. Upadhyay was very-mad that he (Gabossi> had called the
State of Colorado. Upadhyay put Gabossi on probation for not
getting along with senior staff members. A heated discussion
followed (Tr. 32,33).
Upadhyay stated the probation would be for an indefinite
length of time (Tr. 35).

1/ The testimony reflects this conversation also took place on
November 12 (Tr. 34).

1463

5. The Upadhyay written reprimand to Gabossi was given to
him. on November 16th (Tr. 35, Ex C3).
6. The first paragraph of the reprimand discusses Gabossi's
lack of willingness to work harmoniously (Tr. 36, Ex. C3).
Respondent's evidence casts the "big blowup" in a different
· l'ight. Specifically, Upadhyay had gone to Gabossi' s off ice in
the change house to discuss a monitoring system, an on-site
research student and duties concerning all of the silos.
These
were to be Gabossi's new responsibilities (Tr. 198, 199, 472,
473).
As he started to discuss it Gabossi brought up a question
concerning his house and the company's failure to purchase it.
Upadhyay said the company wasn't going to buy Gabossi's house.
Gabossi then "blew up" and the meeting became a name calling
contest wi€h Gabossi referring to Upadhyay as a "worst mine
manager" and also to "caste systems" (Tr. 198, 199, 473, 474).
Immediately after the "blowup" Gabossi gave Upadhyay the State of
Colorado letter (Tr. 474, Ex. C5). Upadhyay said the letter
didn't mean anything. While Upadhyay said he didn't think much
of Gabossi he didn't raise his voice. Upadhyay left the room and
took the letter with him (Tr. 474).
Over the weekend Upadhyay contacted his supervisor seeking
his authority to terminate Gabossi. But the counter suggestion
was that Gabossi be put on probation. The probation ensued.
Discussion and Evaluation
I credit Gabossi's version of the incident of November 9th.
The two men were discussing a computer technician and the silos,
both involving additional duties for Gabossi.
These subjects
would, by then, be an almost automatic entry to Gabossi's
arguments with management over the company's failure to coordinate underground mining activities. Such safety-related
complaints with management were continuing, extensive and frequent. Further, they involved Gabossi's concern for the possible
revocation of his mine foreman's papers.
In addition, I reject Upadhyay's evidence. His version is
less than unequivocal (Transcript at 475). Further, the house
repurchase agreement in the total record was relatively insignificant when compared with the safety related complaints
focusing on the company reporting structure.
Respondent argues ~/ that Gabossi was not motivated by

~/

Brief filed before Commission at 3, 4.

1464 .

safety concerns but by the house re~urchase hassle.
I am not
persuaded.
As stated above, the house repurchase agreement and
its apparent breach was relatively insignificant in the overall
facts.
I agree that certain facts are clearly confirmed by
Gabossi.
Specifically, Emmons did advise him that he must file
a complaint in writing before Emmons would act and, further,
Gabossi had originally applied for the position of mine manager.
However, these factors do not cause me to conclude that Gabossi's
complaints as to the reporting structure were other than safety
related.
Incident involving Gabossi's probation and discharge
Based on the credible record I make the following:
Findings of Fact
1. G~bossi was placed on probation on November 12. A
formal letter dated November 16, 1984, recites that Gabossi's
performance had not been satisfactory.
In detail, it recites
as follows:
Your willingness to work harmoniously under
the organization structure put into effect
by Western Fuels has been negative.
You
have repeatedly objected to the idea of
Maintenance Superintendent being responsible
for underground maintenance.
You have demonstrated your inability to work
harmoniously with other division heads and
employees at the Deserado Mine.
Your attitude towards other division heads,
work ability and habits have always been
negative.
I have noticed this personally and
also have heard from other people from other
companies.
Your attitude towards Western Fuels, its management and policies has been less than desirable.
You getting into arguments with me over matters
in which you should not be even involved with.
I also would like to make it clear to you that
once the decision is made by me on any matter
that becomes a policy at the Deserado Mine, you
are expected to abide by them irrespective of
what your opinion was on that matter.
(Exhibit C3)

1465

2. After November 12, 1985 Upadhyay was cool but civil to
Gabossi (Tr. 42).
3. On January 21, 1985 Gabossi brought to Upadhyay's
attention the fact that a mechanic was falsifying MSHA electrical
inspection books. Gabossi wanted the electrician fired (Tr. 42).
4. After January 21, 1985 Upadhyay wouldn't talk to Gabossi
(Tr. 42, 43).
5. There were no further heated discussions, except for the
underground safety problem (Tr. 43).
6.
There were no further heated discussions between Gabossi
and any other supervisors or department heads (Tr. 43).

7. After he was put on probation Gabossi became more quiet
at staff meetings (Tr. 44).
8. On Jan~ary 30th Gabossi went to Upadhyay's office.
Upadhyay requested his resignation. When the company refused
to repurchase his home, Gabossi refused to resign.
At that point
Upadhyay fired Gabossi. This meeting generated a heated discussion (Tr. 45).
At the same time Gabossi received a termination letter.
read as follows:

It

Western Fuels-Utah, Inc. at the Deserado Mine
needs to have employees who can act together as
a team, especially now in view of our small workforce.
Your efforts have not been directed
towards that end.
For this reason, your e~ploy
ment shall be terminated at Western Fuels-Utah,
Inc. effective immediately.
In an effort to be fair and equitable, you
shall receive your normal compensation through
February 15, 1985. Your current health insurance shall be terminated March 1, 1985 and if
you desire to convert to a private policy it
will be incumbent on you to investigate this
privilege.
( Tr • 4 5 , Ex • C 2 )
9. Gabossi told Upadhyay it was pretty bad that he "got
run off" for showing him a letter from the State of Colorado and
for his concern for the safety and health in the coordination
between departments (Tr. 46).

1466

Respondent's evidence casts the events of Gabossi's termination along different lines.
It indicates that on January 29,
1985, A.B. Beasley gave his letter of resignation to Upadhyay
(Tr. 484, 485).
Beasley stated to Upadhyay that he was resigning
because he couldn't work with Gabossi (Tr. 485).
When Beasley left (after the conference), Upadhyay concluded people were leaving because of Gabossi's inability to work
with them.
So Upadhyay talked to the company's top officer.
Permission was then granted to terminate Gabossi (Tr. 486, 487).
Upadhyay called Gabossi to his office and gave him the
option of resigning.
When Gabossi refused to resign Upadhyay
fired him (Tr. 488).
Gabossi said "Bullshit, you cannot get away with it, you are
the worst mine manager I've ever worked for."
Upadhyay said he
didn't want to hear anything further so he opened the door and
Gabossi left (Tr. 488).
Discussion and Evaluation
A conflict exists in the two versions of the evidence
concerning the events at the time Gabossi was fired.
Basically, Gabossi contends he was fired because he was not
a "team player."
That is, his long and continuing conflict with
management over its inadequate reporting structure finally
removed him from "the team."
On the other hand, respondent's position is that the company
fired Gabossi because of Beasley's conflict with Gabossi which
caused Beasley to resign.
In sum, Upadhyay did not look forward
to obtainin~ a new maintenance supervisor and later losing his
services due to Gabossi's conflicts with management and whoever
might be the maintenance supervisor.
On these credibility issues I credit Gabossi's version.
The
termination letter recites the company needs employees "who can
work together as a team." Further, Gabossi's efforts have not
been directed "towards that end." Gabossi was not a "team
member" because he refused to go along with the company's
organizational plan. This issue, a safety related complaint,
predominates in the evidence.
The complaint was made ten to
fifteen times.
As Gabossi indicated, it got to be a "headache."
But Upadhyay did not seem to be willing to work on the problem
(Tr. 26, 126).

1467

I reject respondent's claim that Gabossi was fired because
Beasley resigned due to his conflicts with Gabossi.
It is true
there were conflicts between Beasley and Gabossi, but such
conflicts did not cause Beasley's resignation CTr. 430, 435).
Beasley's resignation occurred for the reasons stated in his
letter of resignation; namely, higher salary, larger community
and more resources with which to meet the challenges of a maintenance superintendent {Ex. R4).
If the Gabossi conflicts with
Beasley were the "primary reason" ~/ for Beasley's resignation
there should have been in the very least a vague reference to it
in Beasley's resignation letter. In sum, I find Beasley's letter
of resignation to be much more persuasive than Beasley's and
Upadhyay's contrary oral testimony at the hearing.
The Commission has ruled that Gabossi's safety related
complaints concerning the company's reporting structure may
have been an activity protected under the Act. Slip 22· at 2.
For the reasons stated herein I conclude such complaints were,
in fact, safety related.
Respondent asserts~/ that the Judge in his initial decision
specifically found that respondent would have discharged Gabossi
in any event for his unprotected activity.
Respondent sets forth
a portion of the Judge's decision. Slip 22· at 25.
{August 21,
1988).
Respondent has misconstrued the Judge's initial decision.
In that decision I ruled that Gabossi's unprotected activity
"was his continued clash with management over the reporting
structure." The trial Judge's narrow view of the Act's protective umbrella of the anti-discrimination provisions of section
105{c){l) was held to be erroneous in the order of remand.
Slip
2£· at 1, 2 {August 15, 1988).
On the facts stated above, I conclude that Gabossi was
discharged because of his protected activity.
Further, the operator's defense had not prevailed. The
operator was not motivated by an unprotected activity when it
fired Gabossi.

ii

Respondent's brief before Commission at 4.

!/

Brief filed before Commission at 8.

1468

Even if I were to credit respondent's version that Beasley
triggered Gabossi's firing (which I do not), I would nevertheless
hold that the operator's discharge of Gabossi was motivated in
part by his protected activity; namely, his prolonged complaints
over the company's reporting structure.
The complaint of discrimination should be affirmed.
Damages
The Senate Report, with respect to relief in section 105
cases, states as follows:
It is the Committee's intention that the
Secretary propose, and the Commission require,
all relief that is necessary to make the complaining party whole and to remove the deleterious effects of the discriminatory conduct
including, but not limited to reinstatement with
full seniority rights, back-pay with interest,
and recompense for any special damages sustained
as a result of the discrimination.
The specified
r~lief is only illustrative.
S.REP.NO. 95-181, 95th Cong., 1st Sess. 37 (1977),
reprinted in LEGISLATIVE HISTORY OF THE FEDERAL
MINE SAFETYAND HEALTH ACT OF 1977, 95th Cong.,
2dSess., at625 (1978).
Gabossi does not seek reinstatement.
The claim for damages
here focuses on salary, medical and dental expenses, the failure
of the respondent to repurchase Gabossi's home and incidental
costs related to refinancing and selling the house.
Salary
When Gabossi.was fired his annual salary was $52,000. His
termination notice indicates his normal compensation was paid
through February 15, 1985. (Ex. C2).
The uncontroverted evidence
further shows the employees on the payroll received a 5.8 % pay
raise on January 21, 1985 (Tr. 50, 167-169, Ex. Cll). Gabossi
did not receive the increase because he was on probation.
On the
uncontroverted evidence I conclude Gabossi's lost wages are:
Six months without employment (February 15 to August 15)
@ $4,584.66 per month, or $27,507.96.
The monthly salary includes the 5.8 % increase given other
employees on January 21, 1985.

1469

Other Appropriate Relief
It must be determined whether the additional special damages which Complainant seeks
may be awarded as ltother appropriate relief"
under section 105 (c)(2).
In the words of the
Senate Report quoted, supra; such damages are
awarded when they are sustained "as a result of"
the discrimination.
It has been held that in
order to be recoverable, damages must be proved
to be the proximate result of the complained
wrong. Classic Bowl, Inc. v. AMF Pinspotter, Inc.
403 F.2d 463 (7th Cir. 1968). The legal concept
of proximity is applicable to ascertain and
measure damages~ The necessary and appropriate
limits of judicial inquiry are served by disregarding remote effects. Commonwealth Edison
Company v. Allis-Chalmers Manufacturing Company,
225 F.Supp. 332 (N.D. Ill. 1963). UMWA on behalf
of Moore, et al v. Peabody Coal Company, 6 FMSHRC
1920 (1984).
Medical and Dental Expenses
The medical and dental expenses claimed here are in the
amount of $1,313. The evidence shows Gabossi apparently did
not present any claims to the insurance carrier within 30 days
after his discharge (during the period when his policy renained
in effect).
However, if Gabossi had not been terminated his
insurance coverage would have been in effect.
Accordingly,
I believe it is appropriate that these additional special
damages of $1,313 be awarded as "other appropriate relief"
under section 105(c)(2) of the Act.
Repurchase of Gabossi's House
The evidence shows that respondent agreed to repurchase
Gabossi's house in Rangely (Colorado) if he left the company
within three years. The repurchase price was to be for the
amount Gabossi had paid for it (Tr. 55, 56, 169-171).
The original house loan had been guaranteed by respondent.
The loan was immediately due when he was terminated.
In order to
prevent foreclosure Gabossi secured a new loan. I calculate
Gabossi's damages as follows:
Purchase Price 2-17-83
Actual Resale Price
Loss due to respondent's
failure to repurchase house

1470

$119,000
114,000
$ 5,000

Inasmuch as respondent agreed to repurchase the house
at Gabossi's "purchase price" (Tr. 56), this award does not
encompass improvements of $1,273.09 made by Gabossi.
Respondent
should not be held liable for a loss it did not agree to pay.
In other words, I believe the loss incurred by Gabossi from the
house improvements are remote damages.
Additional house expenses include:
Fees for abstract company
Real estate agent fee
Interest paid to secure loan
to prevent foreclosure

$

223.25
2,500.00

Total incidental house expenses

$5,739.10

3,015.85

In sum, the total damages are $39,560.06.
For the foregoing reasons I enter the following:
ORDER
1. The complaint of discrimination filed herein is
sustained.
2.
Respondent is ordered to pay to complainant within
40 days of the date of this decision the sum of $39,560.06
with interest. Said interest should be calculated by using the
formula set forth in the case of Secretary ex rel Bailey v.
Arkansas-Carbona, 5 FMSHRC 2042 (1983).

.

.....-~~
rris
ative Law Judge

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294
(Certified Mail)
Richard s. Mandelson, Esq., Baker & Hostetler, 303 East 17th
Avenue, Suite 1100, Denver, CO 80203
(Certified Mail)
/ot

1471

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

22041

OCT 2 51988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

v.

Green River No. 9 Mine

Docket No. KENT 88-92-A
A.C. No. 15-13469-03643

GREEN RIVER COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Flem Gordon, Esq., Gordon & Gordon, Owensboro, KY,
for Green River Coal Co.;
Mary Sue Ray, Esq., Office of the Solicitor, U.S.
Department of Labor, Nashville, TN, for the
Secretary of Labor.

Judge Fauver

This is a civil penalty case under § 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et~ At a
hearing of a companion contest case, Docket No. KENT 88-2-R, in
Evansville, Indiana, the parties proposed a settlement agreement
to include payment of the penalty proposed herein and dismissal
of the contest case. The matter was considered under the
criteria for civil penalties in§ llO(i) of the Act and approved.
This Decision confirms the bench decision at the hearing,
approving the settlement.
ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay the
approved civil penalty of $800 within 30 days of this Decision
and upon such payment this proceeding is DISMISSED.

Ud~u?:-W,

Administrative Law Judge

Distribution:

1472

Flem Gordon, Esq., Gordon & Gordon, P.s.c·. 1500 Frederica Street,
P.O. Box 390, OWensboro, KY 42302-0390 (Certified Mail)
May Sue Ray, Esq., U.S. Department of Labor, Office of the
Solicitor, 2002 Richard Jones Road, B-201, Nashville, TN 37215
(Certified Mail)

kg

14 73

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

22041

OCT 2 51988
LOCAL UNION 2333, DISTRICT 29,:
UNITED MINE WORKERS OF
AMERICA CUMWA) ,
Petitioner

COMPENSATION PROCEEDING
Docket No. WEVA 86-439-C

v.
Beckley No. 2 Mine
RANGER FUEL CORPORATION,
Respondent
DECISION
Appearances:

Before:

Webster J. Arceneaux, III, Esq., Mcintyre,
Haviland· & Jordan, Charleston, West Virginia
and Joyce Hanula, United Mine Workers of
America, Washington, D.C. on behalf of the
Petitioner;
John T. Scott, III, Esq., Crowell & Moring,
Washington, D.C. on behalf of the Respondent.

Judge Melick

This case is before me upon remand by the Commission for
further proceedings consistent with its decision issued
May 13, 1988. The case was initiated by the United Mine
Workers of America CUMWA) under section 111 of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq.,
the "Act," to obtain compensation from the Ranger Fuel
Corporation CRanger).l/ The UMWA seeks compensation pursuant
to the third sentence-of section 111 for an idling of miners
on May 30 and 31, 1986, following the issuance by the
Secretary of Labor of "imminent danger" Withdrawal Order No.
2577281, issued pursuant to section 107(a) of the Act. The
issues now before me are whether the underlying withdrawal
.order is "final" within the meaning of section 111 and, if
so, whether that order was issued for a violation of a
mandatory health or safety standard, i.e. whether there was a
causal nexus between the fact of violation and the withdrawal
order.

!7 Section 111 provides in part as follows:
[l] If a coal or other mine or area of such mine is
closed by an order issued under section 103,
section 104, or section 107 all miners working
during the shift when such order was issued who are
idled by such order shall be entitled, regardless

1474

The UMWA maintains that the Section 107(a} withdrawal
order that idled the miners had become final upon Ranger's
failure to contest it within the 30 day time period set forth
in section 107(e}(l} of the Act.2/ Ranger admits that it did
not apply for review of the order under those statutory
provisions and acknowledges that the order was therefor
"final" between the Secretary of Labor and itself. It argues
however that the order is not "final" as between itself and
the UMWA and that issue can now be lititgated in this
proceeding unaer section 111 of the Act.
cont'd fn 1/
of the result of any review of such order, to full
compensation by the operator at their regular rates of pay
for the period they are idled but for not more than the
balance of their shift.
[2] If such order is not terminated
prior to the next working shift, all miners on that shift who
are idled by such order shall be entitled to full
compensation by the operator at their regular rates of pay
for the period they are idled, but for not more than four
hours of such shift.
[3] If a coal or other mine or area of
such mine is closed by an order issued under section 104 or
section 107 of this title for a failure of the operator to
comply with any mandatory health or safety standards, all
miners who are idled due to such order shall be fully
compensated after all interested parties are given an
opportunity for a public hearing, which shall be expedited in
such cases, and after subh order is final, by the operator
for lost time at their regular rates of pay for such time as
the miners are idled by such closing, or for one week,
whichever is the lesser •..•
~/Section 107(e}(l} provides as follows:

Any operator notified of an order under this section or any
representative of miners notified of the issuance,
medication, or termination of such an order may apply to the
Commission within 30 days of such notification for
reinstatement, modification or vacation of such order. The
Commission shall forth with afford an opportunity for a
hearing (in accordance with section 554 of title 5, United
States Code, but without regard to subsection (a}(3} of such
section} and thereafter shall issue an order, based upon
findings of fact, vacating, affirming, modifying, or
terminating the Secretary's order. The Commission and the
courts may not grant temporary relief from the issuance of
any order under subsection (a}.

1475

Section 111 of the Act does not in itself however
provide any specific right of action or proceeding to
challenge the section 107Ca) withdrawal order~ To determine
whether such an order is "final" within the meaning of
section 111, reference must therefore be made to the specific
provisions of the Act authorizing the form of action over
which the Commission may judicially preside. See Kaiser Coal
Corporation v. Secretary and UMWA, Docket WEST 88-131-R,
decided September 27, 1988. In this case, since it involves
an order issued under Section 107Ca) of the Act, the relevant
provisions are found in Section 107(e) of the Act. Since no
application for review of the order herein was filed in any
such proceeding that order is now "final" within the meaning
of Section 111.
Moreover the Commission, by its earlier ruling in this
case ClO FMSHRC 612) would appear to preclude litigation of
the underlying order. In dealing with the issue of whether
Ranger's payment of the civil penalty proposed for the
underlying violation of 30 C.F.R. § 75.329 and its failure to
have contested the citation charging that violation precluded
it from contesting the violation in this compensation'
proceeding, the Commission stated as follows:
In addition, we agree with the Secretary that
allowing an operator to challenge in a compensation
proceeding the fact of violation despite having
paid the relevant civil penalty would improperly
place miners and their representatives in a
prosecutorial role. The Secretary, as enforcer and
prosecutor of the Mine Act, is a party to a section
105 enfoccement proceeding but not to a section 111
compensation proceeding.
[citations omitted] If
an operator were permitted to make the kind of
challenge advocated by Ranger, miners and their
representatives would be required to perform
functions properly resting within the Secretary's
domain in order to prove the underlying violation
or the validity of the citation or order in which
the allegation of violation was contained. Given
the unified scheme of the Mine Act, we find
unconvincing Ranger's assertion that it would not
be inconsistent to allow it to challenge the fact
of violation in a compensation proceeding even
though it chose not to contest the allegation of
violation in an enforcement proceeding.

1476

The situation herein is closely analagous and the
underlying principle the same. Clearly the Commission would
find it inappropriate to "place miners and their
representatives in a prosecutorial role" to litigate in a
section 111 compensation proceeding what, in essence, is the
validity of the "imminent danger" withdrawal order. I am
therefore constrained to find that Withdrawal Order
No. 2577281 became final upon Ranger's failure to apply for
review or contest that order within the time set forth in
section 107(e)(l} of the Act and that the order and the
underlying issue of whether that order was based upon an
"imminent danger" cannot now be contested in this
compensation proceeding under section 111 of the Act.
The assertion of "imminent danger" contained in the order
must accordingly be regarded as true. See Old Ben Coal Co.,
7 FMSHaC 205 (1985).
The second issue before me is whether a causal nexus
existed between the violation of a mandatory standard and the
"imminent danger" order. In its earlier decision in this
case the Commission held that section 104(a) Citation
No. 2577283, which charged a violation of a mandatory
standard, was final and that it could not now be relitigated.
10 FMSHRC at 619. Accordingly in the context of this case
the assertions of violation in that citation must be accepted
as true. Old Ben Coal Co., supra. Thus it is established
and proven that on May 29, 1986, at the Ranger Beckley No. 2
Mine "the bleeder system failed to function adequately to
carry away an explosive mixture of methane in the tail
entries of the 7 East Longwall Section (013-0) starting at
survey station 3824 in the No. 3 entry and extending inby for
at least 500 feet". (See Petitioner's Exhibit No. 2)
The specific issue remaining is whether these conditions
establishing a violation of the mandatory standard were
sufficiently related to the existence of the "explosive
mixture of methane gas in excess of five percent ••• present
in the Seven East 0-13-0 Section in the No. 3 entry side of
the longwall beginning at Spad No. 3824 and extending inby"
[as charged in the section 107(a) withdrawal order] so as to
constitute the required causal nexus. As previously noted,
in evaluating the evidence in this regard the allegations in
the withdrawal order must also be accepted as true. Old Ben
Coal Co., supra. I therefore disregard any evidence
conflicting with the relevant allegations of fact set forth
in Citation No. 2577283 and Order No. 2577281.

1477

Given these established facts and considering the
credible testimony of the issuing inspector, William Uhl, it
is clear that the required causal nexus did in fact exist.~/
Inspector Uhl testified that while conducting his inspection
on May 29, 1986, he heard what he considered to be a major
roof fall in the gob area and opined that this was the·
underlying cause for the excess methane cited in the
withdrawal order •• Uhl also testified however that these
methane levels which led to the issuance of the withdrawal
order would not have been present had the cited bleeder
system been working properly. According to the expert
testimony of Inspector Uhl then, the inadequate bleeder
system was-also a factor in causing the excess methane
charged in the withdrawal order.
Ranger Senior Safety Supervisor, Ken Purdue, disagreed
with Uhl.
He testified that the amount of air in the bleeder
system was adequate under MSHA standards and that the
inundation of methane in this case was so exceptional and
abnormal as to be beyond the capabilities of even an adequate
bleeder system.
I find however that the testimony of Inspector Uhl is
the more credible. According to Uhl if the bleeder system
was adequate it would have diluted the excess methane and
rendered it harmless.
Indeed it may reasonably be inferred
that if the bleeder system does not perform the very function
it is designed for, then it is not an adequate system.
Accordingly I find that the cited violative condition i.e. an
inadequate bleeder system, was a causal factor for the
existence of the explosive mixture of methane found and cited
by Inspector Uhl in the withdrawal order at bar. Under the
circumstances the requisite causal nexus has been
established.
Accordingly the miners listed in the Joint Stipulation
(incorporated by reference hereto) are entitled to
compensation equal co the wages which would have been paid to
them (set forth in the Joint Stipulation) for work they were
scheduled to perform on May 30-31, 1986, but were unable to
because they were idled by Withdrawal Order 2577281.
3/ Although the subject citation was issued on June 3, 1986,
It is clear that it was based upon conditions existing as
early as May 29, 1986. The issuance was delayed by the
analysis of an air sample which had been collected on
May 29, 1986.

1478

ORDER
Ranger Fuel Corporacion is hereby directed to pay
compensation in accordance with the Joint Stipulation
submitted in this case and incorporated by reference hereto
in the stated amounts and to the designated miners, plus
interest calculated in accordance with the formula set forth
in Secretary v. Arkansas Carbona Co., and Walker,
5 FMSHRC 2042 (1986), within 30 days of th date of his
decision.

Law Judge
Distribution:
Webster J. Arceneaux, III, Esq., Mcintyre, Haviland & Jordan,
Charleston, WV CCertif ied Mail)
Joyce A. Hanula, Legal Assistant, UMWA, 900 15th Street,
N.W., Washington, D.C. 20005 (Certified Mail)
John T. Scot~, III, Crowell & Moring, 1001 Penn~ylvania
Avenue, N.W., Washington, DC 20004-2505 (Certified Mail)
nt

1479

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

22041

OCT 2 71988
SECRETARY OF LABOR,
. MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 88-119
A.C. No. 36-07571-03516

v.
JPLMJ Strip Mine
WESTRICK COAL COMPANY,
Respondent
DECISION
Appearances:

Therese I. Salus, Esq., Office of the Solicitor,
u. S. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary;
Raymond Westrick, Owner, Westrick Coal Company,
Patton, Pennsylvania, for the Respondent

Before:

Judge Weisberger

Statement of the Case
In this case, the Secretary (Petitioner) has filed a Petition
for Assessment of the Civil Penalty alleging that the Respondent,
on July 1, 1987, violated 30 C.F.R. § 77.1710(d). After the
Operator (Respondent) filed an Answer, a Prehearing Order was
issued on March 11, 1988, to which the Respondent did not comply.
Subsequently on April 11, 1988, Petitioner filed a Motion to
Dismiss Respondent's Notice of Contest on the ground that
Respondent did not comply with the terms of the Prehearing Order.
Respondent did not file any response to Petitioner's motion, and
on April 21, 1988, a Show Cause Order was issued, directing
Respondent to comply with the terms of the Prehearing Order, or
show cause why it should not be held in default for failure to
comply with the Prehearing Order. The Show cause Order further
provided that if Respondent shall not file any response by May 2,
1988, a default judgment shall be entered in favor of Petitioner.
No response was filed by Respondent, and on May 25, 1988, a
Default Decision was entered. On June 24, 1988, Respondent filed
a Petition for a Discretionary Review. The Commission, by Order
dated July 8, 1988, vacated the Default Decision to allow
Respondent to present reasons for failures to respond to the
previous Orders, and allow the Petitioner to interpose any objections to relief from the Default DecisJon. The Order further

1480

provided that, should it be determined that relief from default is
"appropriate," the civil penalty issues in this matter should be
resolved. Pursuant to the Order and pursuant to Notice, a hearing
was held in Indiana, Pennsylvania, on August 18, 1988.
At the hearing, Raymond Westrick, Respondent's owner, testified with regard to the reasons for his failure to respond to the
previous Orders. I found persuasive the testimony of Westrick, a
non-attorney, who was appearing pro se, that he did not have any
off ice help, was personally involved with many matters dealing
with his mine, and had health problems at the time the Orders
were received. According to Westrick, his wife signed the registered postal receipt for the Orders concerned, and he described
his wife as forgetful, and tending not to give messages. Westrick
also testified that he was confused by the various correspondence
he had received concerning this and other alleged violations.
Taking all these factors into account, as well as Westrick's age,
I concluded that it was in the interests of justice, and appropriate, for the case to be heard on the merits. The case was heard
on the merits on August 18, 1988. Gerry Boring testified for
Petitioner, and Raymond Westrick testified for Respondent.
Citation
Citation 2697967 issued on July 1, 1987, states as follows:
"Observed two men working in the active _QQl pit~
repairing a caterpillar bulldozer, and were not wearing
hard hats to protect them from falling hazards (debris
from the highwall)."
On August 25, 1987, the Citation was modified to a 104(d)(l)
Citation.
Regulation
30 C.F.R. § 77.1710 provides as pertinent that each employee
working in a surface coal mine shall be required to wear protective clothing and devices including "***(d) a suitable hard hat
or hard cap when in or around a mine or plant where falling
objects may create a hazard.
"
Stipulations
1. The J.P.L.M.J. Strip Mine is owned and operated by
Respondent, Westrick Coal Company.

1481

2. The mine is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977.
3. The Administrative Law Judge has jurisdiction over this
proceeding pursuant to Section 105 of the Act.
4. The subject citation, the modification order, and terminations were properly served by a duly authorized representative
of the Secretary of Labor upon an agent of the Respondent on the
dates, times and places stated therein. They may be admitted
into evidence for the purpose of establishing their issuance, but
not for the truthfulness or the relevancy of any statement
asserted therein.
5. The Parties stipulate to the authenticity of the exhibits, but not to the relevance nor to the truth of the matters
asserted therein.
6.

The alleged violation was promptly abated.

7. The J.P.L.M.J. Strip Mine, the only mine operated by
Westrick Coal Company, was producing 37,279 annual production
tons in 1987.
Finding of Facts and Discussion
Gerry Boring, a MSHA Inspector, testified that on July 1,
1987, when he inspected Respondent's JPLMJ Strip Mine, he observed
two men in the pit doing repair work on a dozer. These men were
not wearing hard hats.
He indicated that there was no hazard of
falling rocks to these men from either the highwall, where clearing was performed 100 to 150 feet away, nor was there a hazard of
falling objects from the loading of trucks which were hauling dirt
from the highwall. However, according to Boring, trucks transporting stones and rocks had, on their way to the haul road, which
was at an elevated grade, passed within 15 to 20 feet from and on
the same level of the men repairing the dozer.
It was Boring's
testimony that the trucks, transporting items that varied from
pulverized material to rocks weighing a couple hundred pounds,
were open at the rear end, had a slight pitch, and were not
covered. As such, he opined that as these trucks travel approximately 5 miles an hour over a "rough" road, they could bounce and
sway, causing rocks to fly out of the trucks, (Tr. 62), and hit
the men on the head, causing a possible fracture to the skull,
depending upon the size of the material thrown out of the trucks.
With regard to the condition of the road, he testified that
Respondent had four or five ·trucks going back and forth, loading
and unloading, and this truck traffic "creates" ruts in the road
which is made out of dirt and stone (Tr. 89). He also indicated
that there was a hazard to the men in being hit in the head when
performing the repair work with wrenches.

1482

According to Boring, one of the men performing the repair
work without a hard hat was Alfred Lieb, Respondent's pit foreman. In the opinion of Boring, the latter should be familiar
with the requirement with regard to wearing hard hats. Boring
opined that Lieb did not show reasonable care in not wearing a
hat, and did not set a proper example for the men he had to
supervise. However, Boring indicated that he does not know of
any such cases where one has been injured due to the lack of
wearing a hard hat. He also indicated that he never observed
such an incident~ Also, on cross-examination, he was asked
whether he saw anything that could fall off the side of the
trucks, and indicated that he did not recall.
Also, on crossexamination, he was asked whether he observed how high the
material was piled in the trucks and he indicated that he could
not recall.
Raymond Westrick, Respondent's owner, testified that the
trucks in question had a bed which sloped down to the cab which
had a protector to prevent the stones from hitting the cab. He
also indicated that the materials that the trucks were transporting from the overburden contain stones which weighed up to
40 pounds. According to his testimony, the trucks were loaded
with buckets, each one containing 6 to 8 tons. He said that the
35-ton trucks were loaded with three buckets, and the 50-ton
trucks were loaded with four buckets. He said that he observed
the trucks loaded on July 1, 1987, and the biggest piece of rock
in the trucks was about 50 to 60 pounds, and the trucks were
loaded only about 60 percent. He said that in his opinion, there
was no danger of rocks falling out of the trucks, and that he had
never observed rocks falling out of the trucks. According to his
testimony, loaded trucks traveled from the overburden to the haul
road .and passed the men in question, who were approximately
175 feet away. He described the surface that the trucks traveled
on from the overburden to the haul road as being "smooth as
glass" and comprised of solid slate (Tr. 130). He described the
surface as being real hard and up to 3 inches thick. He said
that the last time it was scraped by a loader was probably the
previous day, but that he did not recall. Also, his testimony
indicated, in essence, that there was no physical barrier preventing the trucks traveling closer to the men in question while
going from the overburden to the haul road and back again.
Based upon the testimony of both witnesses, it appears uncontroverted that uncovered trucks, open in the bacK, containing
materials with rocks up to 60 pounds, were traveling in the pit
area at approximately 5 miles an hour.
Should these trucks sway
or bounce, it is not entirely inconceivable that some rocks might

1483

fall out and hit the men in question, depending upon their
distance from the truck. Accordingly, since there is some possibility of this hazard occurring, and that it is not totally
impossible, I must conclude that section 77.1710Cd), supra, has
been violated, in that the men, not wearing hard hats, would be
exposed to this hazard.
Petitioner herein has alleged the violation to be significant and substantial.
In essence, according to Boring there was
a likelihood of a rock being thrown from the uncovered, openended trucks based upon their uncovered condition, speed of
5 miles an hour, the rough condition of the road with ruts, and
the proximity of 15 to 20 feet from the men in question. However,
I found Westrick's testimony more persuasive with regard to the
condition of the surface the trucks traveled and the path they
took in relation to the men.
It does not appear that Boring
observed Respondent's operation on more than the one occasion
when he made his inspection on July 1, 1987. Neither the contemporaneous notes of Boring (Government Exhibit 4), nor the
narrative of the Citation issued on July 1, 1987, contains any
description of the road condition, the level of the material in
the trucks, or the distance that the men in question were from
the path taken by the trucks which were loaded.
It would thus
appear that Boring's testimony was based upon his current
recollection of one visit more than 2 years ago.
In contrast, I
find Westrick's description of the path taken by the loaded
trucks to be more accurate, as he related the path taken to ~th
the haul road and the overhang where the trucks actually did
their loading. Also, inasmuch as Westrick was in the pit on a
frequent and regular basis, I find his description of the surface
more credible. This conclusion is also based upon my observations
of his demeanor. Also, although Boring could not recall how high
the material was piled in the truck, I find westrick's testimony
that the trucks were filled to only 60 percent of their space more
credible, as it was based upon his recollection of the tonnage
capacity of the trucks and the n~~ber of buckets each truck was
loaded.
Hence, I find that it has not been established that the
road was rough, and that the material in the truck was piled more
than 60 percent of the vol~~e capacity. Nor has it been
established that the trucks were traveling within 15 to 20 feet of
the men, nor has it been established that the trucks traveled in
an upgrade from the men in close proximity.
I therefore find that
it has not been established that there is any likelihood of the
hazard of falling rock occurring.
In addition, I note that even
Boring indicated that, in essence, he does not have any knowledge
of men without hats being injured from rocks falling out of trucks
in similar circumstances. Also Boring indicated that there was no
hazard from material falling on the men from the highwall work or
from the loading of the trucks. He indicated that the men might
have been injured from the wrenches they were working with.

1484

However, it is clear that this hazard is not within the purview of
section 77.1710(d), supra, which refers to a hazard from "falling
objects." Further, there is no evidence upon which to conclude
that there was a likelihood to any degree of this injury occurring
from a wrench. Therefore, for these reasons, I must conclude that
it has not been established that the violation herein was signif icant and substantial (See, Mathies Coal Company, 6 FMSHRC 1
(January 1984)).
Petitioner relies upon Secretary v. Turner Brothers, Inc.,
6 FMSHRC 2125 (January 1984). However, I do not find Turner
Brothers, supra, to be relevant to the disposition of this case
at bar.
In Turner Brothers, supra, Judge Koutras affirmed a
finding of significant and substantial with regard to a violation
of section 1710, supra, as the testimony indicated that the
miners therein, not wearing hard hats, were exposed to the hazard
from falling rocks from the highwall.
In contrast, in the case
at bar, according to Boring, there was no evidence of any hazard
of rocks falling from the highwall.
The citation herein was modified on August 25, 1988, and
upgraded to a 104(d)(l) Citation, because, according to Boring,
one of the men not wearing a hard hat was Respondent's foreman,
who "should be familiar with the requirements with reference to
wearing hard hats" (Tr. 80). There was no further evidence
adduced with regard to the issue of unwarrantable failure.
The
Commission has recently held that unwarrantable failure is more
than ordinary negligence and requires aggravated conduct.
(Emery
Mining Corporation 9 FMSHRC 1997 (December 1987) ). Inasmuch as
the evidence herein has failed to establish a likelihood of a
hazard created by falling objects, I conclude that there was no
aggravated conduct in Respondent's foreman not having worn a hard
hat. Accordingly, I conclude that the violation herein was not
caused by Respondent's unwarrantable failure.
As analyzed above, infra, because it has not been established
that an injury herein was likely to occur, I conclude that the
gravity herein was low.
I conclude that Respondent's foreman,
Lieb, who did not wear a hard hat, should have been aware of the
regulation in question and should have set a better example for
the men that he had to supervise. Accordingly, I rate the negligence herein as moderately high. Westrick indicated, in essence,
that imposition of a penalty herein would affect Respondent's
ability to continue in business as it is ready to go out of business, and that this Citation, along with other Citations that it
had received, is forcing it into bankruptcy. However, although he
indicated that it was hard to answer whether Respondent had a
prof it in 1987 and 1986, he indicated that it did pay taxes and
that Respondent was always able to pay its employees on time.
Accordingly, I conclude that the imposition of a penalty herein

1485

would not affect the Respondent's ability to continue in business.
I also have taken into account all the remaining statutory factors
as stipulated to by the Parties. Based upon all the above, and
especially the low level of gravity herein, I conclude that a
penalty of $50 is appropriate.
ORDER
It is ORDERED that the Citation 2697967 is hereby amended to
reflect the fact that the violation is not significant and
substantial, nor is it a result of Respondent's unwarrantable
failure, and accordingly it is amended to a 104(d) Citation.
It
is further ORDERED that the Respondent shall pay a civil penalty
herein of $50 within 30 days of the date of this Decision.

Avram Weisberger
Administrative Law Judge
Distribution:
Therese I. Salus, Esq., Office of the Solicitor, U. S. Depart~ent
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Mr. Raymond Westrick, Owner, Westrick Coal Company, R. D. 1,
Box 457, Patton, PA 16668 (Certified Mail)
dcp

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

22041

OCT 3l1988
SOUTHERN OHIO COAL COMPANY,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. WEVA 86-190-R
Order No. 2705915; 2/19/86

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

Docket No. WEVA 86-194-R
Order No. 2705881; 2/20/86
Martinka No. 1

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 86-254
A.C. No. 46-03805-03723
Martinka No. 1

SOUTHERN OHIO COAL COMPANY,
Respondent
DECISION UPON REMAND
Before:

Judge Maurer

These cases are before me upon remand by the Commission on
August 19, 1988, to consider Southern Ohio Coal Company's
(SOCCO's) contest of the Secretary's findings that the violation
charged in Order No. 2705915 was significant and substantial and
resulted from the operator's unwarrantable failure to comply with
the notice of safeguard and to assess an appropriate civil
penalty. Southern Ohio Coal Co. v. Secretary, 10 FMSHRC 963
(August 19, 1988), reconsideration denied, 10 FMSHRC
(September 19, 1988).
After these matters were remanded to me, SOCCO filed a
motion with the Commission, essentially for reconsideration, but
more specifically to enter a new decision in SOCCO's favor or in
the alternative to expand the remand order to me to allow for the
taking of further evidence on the general applicability of the
subject safeguard. That motion was denied.
I now have before me SOCCO's motion to reopen the
proceedings for the introduction of further evidence on the issue
of whether Safeguard No. 2034480 sets forth requirements that are
generally applicable to coal mine~, rather than mine-specific.

1487

The Secretary opposes the motion to reopen.
I believe I am bound
by the Commission's remand order which was reiterated by the
Commissioners in their order of Sept~nber 19, 1988, denying
SOCCO, in the alternative, the more expansive remand order it
sou.ght. Therefore, the instant motion to reopen is denied.
As a further housekeeping matter, Docket No. WEVA 86-194-R
was disposed of by my decision reported at 9 FMSHRC 273 (February
1987) (ALJ) and was not at issue on review and therefore also
pursuant to the Commission's order of September 19, 1988, "need
not be subject to further proceedings on remand."
The Significant and Substantial Violation Issue
A "significant and substantial" violation is described in
section 104(d)(l) of the 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." 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
(1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (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 signif_icant 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.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
we have explained further that the third element
of the Mathies formula 'requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury.'
U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in

1488

accordance with the language of section 104Cd)(l), it
is the contribution of a violation to fhe cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1573, 1574-75 (July 1984).
Starting from the proposition that I have been handed down,
i.e., that the safeguard at ba.c is val id, then it is really
,
uncontested that it and 30 C.F.R. § 75.1403 were violated on the
occasion in question.
The safeguard itself is remarkably simple.
It flatly states
that in this mine (Martinka No. 1), there shall be 24 in6hes of
clearance on both sides of the coal feeders.
On February 19,
1986, when Inspector Delovich saw it, there were only 12 inches
of clearance between the left coal line rib and the coal feeder.
for a distance of some six feet. This much is admitted .by SQCCO.
·rhe hazard presented by the violation is tha.t there is a
reasonable likelihood that an individual walking between the coal
feeder and the left rib line while coal was being dumped into the
feeder could be crushed between the coal feeder and coal rib if
the car dumping coal into the feeder hit the feeder and moved it
towards the left rib line. This is precisely th~ Situation the
operator contends accounts for the coal feeder being within
twelve inches of the rib line in the first instance.
I find it
to be a reasonably likely occurrence and the most probable cause
of the violation itself.
I also find that the likely injury to
an individual, if the incident occurred, would oe of a reasonably
serious nature.
Accordingly, I find that the violation is a
"significant and substantial" one.
The unwarrantable Failure Issue
In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987),
appeal dism'd per stip., No. 88-1019 (D.C. Cir. March 18, 1988),
and Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (Decenber
1987), the Commission held that "unwarrantable failure means
aggravated conduct, constituting more than ordinary negligence,
by a mine operator in relation to a violation of the Act."
In this case, the Secretary argues that SOCCO demonstrated a
high degree of negligence.
I disagree.
The most likely scenerio that led to this violation and the
one that I find credible is that the coal feeder was initially
set on cribs in the middle of the entry with approximately 24
inches of clearance on each side, in compliance with the
safeguard. At some point between the afternoon of February 18,
1986 and the morning of February 19, 1986, when the inspector

1489

observed the violation, the feeder was inadvertantly knocked or
pushed towards the left rib line. There were fresh marks on top
of the crib blocks which indicated that the back end of the
feeder had been moved approximately 12 inches from its original
location on the crib blocks. A reasonable assumption is that a
shuttle car dwn~ing coal into the feeder, accidently bQmped the
feeder, moving it approximately twelve inches.
Assuming that this is in fact what happened, there is no
evidence of how long before the order was issued that the
incident occurred. It might well have been only shortly before
the order was issued at 10:00 a.m. on the morning of February 19.
Therefore, I find that the record will not support a finding
of aggravated conduct or "high negligence" on the part of SOCCO
with respect to this violation. Accordingly, I will modify the
§ 104(d)(2) order at bar to a cit~tion issued under§ 104(a) of
the Act, and affirm the significant and substantial violation of
30 C.F.R. § 75.1403 as such.
Civil Penalty Assessment
I conclude and find that the violation was serious, and that
the operator's failure to exercise reasonable care to insure
compliance with the safeguard constitutes a moderate degree of
negligence.
I further find that SOCCO exhibited good faith in
timely abating the violations.
On the basis of the foregoing findings and conclusions, and
taking into account all of the civil penalty assessment crit2ria
found in section llO(i) of the Act, I conclude that an
appropriate penalty for the violation found herein is $400.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Order No. 2705915 properly charged a violation of 30
C.F.R. § 75.1403 and properly found that the violation was
significant and substantial. However, the order improperly
concluded that the violation resulted from SOCCO's unwarrantable
failure to comply with the mandatory safety standard i.n.volved.
Therefore, the violation was not proparly cited in a§ 104(d)(2)
order. Accordingly, Order No. 2705915 IS HEREBY MODIFIED to a
§ 104(a) Citation and AFFIRMED.

1490

2. The Southern Ohio Coal Company IS HEREBY ORDERED TO
a civil penalty of $400 within 30 days of the date of this
decision.

P~Y

urer
ative Law Judge
Distribution:
David )1. Cohen, Esq., A...rnerican Electric Power Service
Corporation, P.O. Box 700, Lancaster, OH 43130 (Certified Mail)
James E. Culp, Esq., U.S. Oeartment of Labor, Office of the
Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
slk

1491

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