JUNE 1995

COMMISSION DECISIONS AND ORDERS
06-08-95
06-12-95
06-19-95
06-20 - 95
06-20-95
06-26-95
06-29 - 95

Lakeview Rock Products, Inc.
Madison Branch Management
David Shoulders/Pyre Mining
T.E. Bertagnolli & Associates
Wiser Construction, L . L.C.
Drummond Company, Inc.
North Star Contractors

WEST 94-308 - M
WEVA 93-218-R
KENT 92-17
WEST 94-681-M
WEST 94-720-M
SE
95-316
KENT 94-92

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

853
859
875
877
880
883
886

SE
95-81-M
WEST 93-298
WEST 93-401 - M
CENT 94-181-M
VA
94-64
WEVA 94 - 274
WEST 94-380
KENT 94-944-R

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

889
891
902
909
914
923
937
945

LAKE 95-78-D

LAKE 94-168-R
WEST 93-85-M

Pg. 957
Pg. 966
Pg. 1040

WEVA 94-357-D

Pg. 1044

PENN 95-1-D
PENN 95-16
WEVA 94-216
CENT 95-121-RM
LAKE 95 - 190-M
VA
93 - 108-R
SE
92-122-R

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

KENT 94-574-R
KENT 95 - 210

Pg. 1099
Pg. 1103

APMINISTRAIIVE LAW JUPGE DECISIONS
06-02-95
06-05-95
06-05-95
06-06-95
06-07-95
06-09-95
06 - 13-95
06-15-95
06-15-95
06-19-95
06-19-95
06-20-95
06 - 21-95
06-22-95
06-22-95
06-23-95
06-26-95
06-27-95
06-29-95

Dillingham Construction
Western Fuels-Ut ah, Inc.
Laramie County Road & Bridge
Moberly Stone Company
Michael Griffith, II/Teal Mining
Consol i dation Coal Company
c.w. Mining Company
Topper Coal Company, Inc .
Sec. Labor on behalf of Ri chard E.
Glover et al. v. Consolidat ion Coal
Brushy Creek Coal Company
American Stone, Inc .
Sec . Labor on behalf of Samuel Knotts
v. Tanglewood Energy, etc.
Sec. Labor on behalf of William
Kaczmarczyk v. Readying Anthracite Co.
Dunkard Mining Company
Consolidation Coal Company
D.H. Blattner & Sons, Inc.
Cedar Lake Sand & Gravel
Southmountain Coal , Inc.
Kellys Creek Resources, Inc.

1056
1066
1068
1073
1076
1081
1085

ADMINISTRATIVE LAW JUDGE ORDERS
06-12 - 95
06-22-95

Berwind Natural Resources, etc.
Roberts Brothers Coal Co.

i

JUNE

1995

Review was granted in the following cases dµring the month of Jµne;

Secretary of Labor, MSHA v.Midwest Material Corporation, Docket No.
LAKE 94 - 126-M (Judge Amchan, April 24 , 1995}
Secretary o f Labor , MSHA v. Sunny Ridge Mining Company, Docket No. KENT 93-63,
etc. (Judge Fauver, April 27, 1995 )
Secretary of Labor, on behalf of Kenneth Hannah, et al. v. Consolidation Coal
Company, Docket No. LAKE 94-704-D. (Judge Melick, April 28, 1995)
Secretary of Labor, MSHA v. T.E. Bertagnolli & Associates, Docket No.
WEST 94 - 681 - M.
(Chief Judge Merlin, unpublished Default issued
March 13, 1995)
Secretary of Labor, MSHA v. Wiser Construction, L.L.C., Docket No.
WEST 94-720-M.
(Chief Judge Merlin, unpublished Default issued
March 13, 1995 }
Western Fuels-Utah, Inc., v. Secretary of Labor, MSHA, Docket No.
WEST 94-391-R.
(Judge Manning, May 15 , 1995}
Secretary of Labor, MSHA v. Frick Sand & Gravel, Inc., Docket No.
CENT 95-194 - M.
(Operator's Request for Relief from MSHA's Order}
Secretary of Labor, MSHA v. Drummond Company, Inc., Docket No. SE 95-316, etc.
(Operator's Request for Relief from MSHA's Order}

Review was not granted in the following cases <luring the month of June:
Secretary of Labor , MSHA v. Dixie Fuel Company, Docket No. KENT 94-1210.
(Judge Weisberger , May 4, 1995)
Secretary of Labor, MSHA v. North Star Contractors, Inc., Docket Nos.
KENT 94-92, etc. (Chief Judge Merlin, unpublished Default issued
March 21, 1995 )

ii

COMMISSION DECISIONS AND ORDERS

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

June 8, 1995

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

Docket Nos. WEST 94-308-M
WEST 94-309-M

v.
LAKEVIEW ROCK PRODUCTS, INC.

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners
ORDER
BY THE COMMISSION: 1
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ( 11Mine Act"). On March 2, 1995, the Commission received
from Lakeview Rock Products, Inc. ("Lakeview") a request for a 30-day extension of time to file
a petition for discretionary review contesting a decision issued by Administrative Law Judge
Arthur Amchan on January 30, 1995. 17 FMSHRC 83 (January 1995) (ALJ). Lakeview's
counsel states that he was unable to tum to the decision when he received it on February 6, that
mining law materials were not readily available in local libraries, and that Lakeview's decisionmakers were temporarily out of state. In opposition to Lakeview's motion, the Secretary of
Labor argues that the Commission lacks subject matter jurisdiction. In reply to the Secretary's
opposition, Lakeview states that the notice it received from the Commission indicates that an
operator may seek an extension for good cause shown. It also requests that the Commission
consider its request for an extension as its petition. The Secretary opposes treating Lakeview's
request as its petition.
·
Under the Mine Act and the Commission's Procedural Rules (29 C.F.R. Part 2700), relief
from a judge's decision may be sought by filing a petition for discretionary review within 30 days

1

The Commissioners agree, in result, to deny Lakeview's request for an extension of
time to file its petition for discretionary review, but differ as to the rationale for that
determination. The portion of the decision upon which all Commissioners agree is followed by
the opinions of Chairman Jordan and Commissioner Marks and of Commissioner Doyle and
Commissioner Holen. respectively, setting forth their separate views.

853

of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700. 70(a) ("Rule 70(a)"). Lakeview did not
file a timely petition, nor did the Commission direct review on its own motion within the 30-day
period. 30 U.S.C. § 823(d)(2)(B). Thus, the judge's decision became a final decision of the
Commission 40 days after its issuance. 30 U.S.C. § 823(d)(l).
The Commission denies Lakeview's motion for an extension of time and rejects
Lakeview's request to treat the motion as its petition for discretionary review. Under the Mine
Act and the Commission's Procedural Rules, a party must set forth the grounds for appeal in its
petition. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(c). Lakeview's request did not set forth
those grounds. Indeed, Lakeview stated in its request that it needed additional time to evaluate
the merits of an appeal, suggesting that a petition might not be forthcoming. Accordingly, upon
consideration of Lakeview's motion, it is denied.

Separate opinions of Commissioners follow:

Chairman Jordan and Commissioner Marks:
The Commission has strictly enforced the 30-day time limit for filing petitions for
discretionary review, accepting petitions filed late only where the accompanying motion to
excuse the late filing has shown good cause for the delay. McCoy v. Crescent Coal Co., 2
FMSHRC 1202, 1203-04 (June 1980); see also Duval Corp. v. Donovan, 650 F .2d 1051, 1054
(9th Cir. 1981 ). In McCoy, the Commission explained that adherence to the 30-day time limit is
essential because the Commission has only 10 days, between the last day for filing a petition and
the date the judge's decision becomes final, during which to evaluate the merits of a petition. 2
FMSHRC at 1204. Here, we deny Lakeview's request because Lakeview has failed to show
good cause for delay in filing a petition for discretionary review.
We need not decide whether the Commission's procedural rule pertaining to extensions of
time, 29 C.F.R. § 2700.9 ("Rule 9"), applies to requests for extensions for filing petitions for
discretionary review. Assuming, however, that Rule 9 applies, we conclude that Lakeview's
request was untimely. A request for an extension must "be filed before the expiration of the time
allowed for the filing or serving of the document." Rule 9 (emphasis added). The Commission
has applied unique filing requirements to petitions, establishing that filing is effective only upon

854

receipt. 29 C.F.R. § 2700.5(d) ("Rule 5(d)") & Rule 70(a). 2 Lakeview's petition, to be timely,
should have been received by the Commission within 30 days after the judge's decision, by
March l, 1995. Consequently, pursuant to Rule 9, Lakeview's request for an extension should
have been filed within that 30-day period as well.
Our general filing rule, Rule 5(d), provides that pleadings other than petitions for
discretionary review are considered filed on the date of mailing, while petitions are considered
filed only upon receipt. We view the filing requirement for a motion to extend time for filing a
petition in the light of Rule 5(d)'s provision that a petition itself is effectively filed only upon
receipt. Interpreting Rule S(d) to permit Lakeview's request to be filed on the date of mailing,
rather than upon its receipt, would undermine the unique filing requirements for review petitions.
Construing Rules 5, 9, and 70(a) together, we would disallow as untimely any request for an
extension to file a review petition received by the Commission after expiration of the 30-day
period for filing that petition. See generally, e.g. , Weinberger v. Hynson, Westcott and Dunning,
Inc., 412 U.S. 609, 631-32 (1973) (in interpreting single enactment, courts should give "the most
harmonious, comprehensive meaning possible") (citations omitted). Although Lakeview has
certified that it mailed its request for an extension on March 1, the request was filed out ohime
because it was received by the Commission on March 2, one day after the expiration of the 30day period. 3

2 Lakeview received, as an attachment to Judge Amchan's decision, a notice that

provided: "PETITION FOR DISCRETIONARY REVIEW MUST BE RECEIVED BY THE
COMMISSION WITHIN THIRTY (30) CALENDAR DAYS AFTER THE ISSUANCE DATE
OF THE DECISION TO BE CONSIDERED [29 C.F.R. § 2700.5(d) and .70(a)]." (Emphasis in
original).
3

Given our disposition, we need not reach the Secretary's argument that the Commission
lacks subject matter jurisdiction to entertain Lakeview's motion.

855

Commissioner Doyle and Commissioner Holen:
There is no provision in the Mine Act for extension of the time to file a petition for
discretionary review ("PDR"). Nor do the Commission's Procedural Rules, 29 C.F.R. Part 2700,
provide for such an extension. Therefore, we conclude that the Commission is without authority
to entertain such a motion and, accordingly, we deny the operator's motion for an extension of
time to file its PDR.
Lakeview's reliance on 29 C.F.R. § 2700.9 ("Rule 9") is misplaced. The Commission's
Procedural Rules, including those under which parties may seek Commission review, are set
forth in Subpart H--Review by the Commission. Rule 70, entitled "Petitions for discretionary
review," provides in part:
Any person adversely affected or aggrieved by a Judge's decision or order may
file with the Commission a petition for discretionary review within 30 days after
issuance of the decision or order.
29 C.F.R. § 2700.70(a). Subpart H makes no provision for extensions ohime to file PDRs.
Further, the notice attached to the judge's decision (the "Notice") gave Lakeview actual notice of
the 30-day requirement. It states:
PETITION FOR DISCRETIONARY REVIEW MUST BE RECEIVED
BY THE COMMISSION WITHIN THIRTY (30) CALENDAR DAYS AFTER THE
ISSUANCE DATE OF THE DECISION TO BE CONSIDERED (29 C.F.R.
§ 2700.5(d) and .70(a)].
Notice at 1 (emphasis in original). Reference in the Notice to other procedural rules relevant to
the review process does not overcome either Rule 70 or the clear statement in the Notice of the
filing requirements for PDRs. See Turner v. New World Mining, Inc., 14 FMSHRC 76, 77
(January 1992).

856

We note that the Commission has, in appropriate circumstances, accepted late-filed
petitions for review. Such relief has been granted pursuant to Fed. R. Civ. P. 60(b)(l) & (6), on
the basis of mistake, inadvertence, surprise, excusable neglect or other reasons justifying relief. 4
E.g. , Turner, 14 FMSHRC at 77-78; Boone v. Rebel Coal Co., 4 FMSHRC 1232, 1233 (July
1982). Motions to excuse late filing have been granted only where good cause for the delay has
been shown. McCoy v. Crescent Coal Co., 2 FMSHRC 1202, 1203-04 (June 1980); Duval
Corp. v. Donovan, 650 F.2d 1051, 1054 (9th Cir. 1981). We conclude that, even if the
Commission had, as Lakeview asked, treated its request for an extension of time as a late-filed
PDR, good cause for such late filing has not been shown.

Arlene Holen, Commissioner

4

The Commission's Procedural Rules incorporate, as appropriate, the Federal Rules of
Civil Procedure. 29 C.F.R. § 2700.1 (b) (Federal Rules of Civil Procedure apply in absence of
applicable Commission rule).

85 7

Distribution

Gregory M. Simonsen, Esq.
Kirton & McConkie
60 E. South Temple, Suite 1800
Salt Lake City, UT 84111
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

85 8

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

June 12, 1995

MADISON BRANCH MANAGEMENT

Contest Proceedings
Docket Nos.

v.

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

WEVA 93-218-R
WEVA 93-219-R
WEV A 93-220-R

Civil Penalty Proceedings

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

Docket Nos.

WEVA 93-373
WEVA 93-412

v.
MADISON BRANCH MANAGEMENT

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

Civil Penalty Proceeding
Docket No.

WEV A 93-415

v.

PROTECTIVE SECURITY SERVICES AND
INVESTIGATIONS, INC.

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

DECISION
BY: Jordan, Chairman and Marks, Commissioner
These consolidated contest and civil penalty proceedings arise under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"). On
September 16, 1994, Madison Branch Management ("Madison") petitioned the Commission for

859

interlocutory review of interlocutory orders issued by Administrative Law Judge Jerold Feldman.

See Commission Procedural Rule 76(a)(l)(ii), 29 C.F.R. § 2700.76(a)(l)(ii). Madison also
requested suspension of the hearing scheduled before the judge. The Secretary of Labor
("Secretary") filed a statement in support of Madison's petition. By order dated September 20,
1994, the Commission granted the petition, suspended briefing, and stayed the hearing.
In his orders, Judge Feldman, in effect, denied motions by the Secretary to dispose of
these cases pursuant to a settlement agreement reached by the parties. The judge based his
determinations on his concern that additional abatement measures beyond those required by the
Secretary might be necessary to remove the safety risk posed by the violations. We view the
instant petition as one seeking review of these interlocutory orders taken as a whole. For the
reasons that follow, the Commission vacates the orders and remands the issue of whether the
settlement agreement should be approved. 1

I.

Factual Background
These consolidated proceedings arose from two citations and an imminent danger order
issued by the Department of Labor's Mine Safety and Health Administration ("MSHA") to
Madison and from a citation and an imminent danger order issued by MSHA to Protective
Security Service and Investigations, Inc. ("PSS!"), an independent contractor that provided
security services at Madison's Job No. 3 mine. MSHA issued the citations following the death
on March 1, 1993, of Allen Garrett, a security guard employed by PSSI, who was asphyxiated in
his vehicle on mine property. An MSHA investigation determined that the vehicle's damaged

1

All Commissioners vote to overturn the judge's determination that the settlement
motion should be denied because, in his view, there exists a genuine factual issue, i.e. the
efficacy of the vehicle inspection program, concerning whether respondents abated the
violations. Order dated August 29, 1994, at 2. The Commissioners agree that this issue is not
relevant to whether the respondents demonstrated good faith in attempting to achieve rapid
compliance, the sixth penalty criterion. Chairman Jordan and Commissioner Marks vote to
vacate the interlocutory orders, remand the question of approving the settlement, and permit the
judge to consider non-monetary factors in ruling on the motion to approve the settlement.
Commissioners Doyle and Holen disagree that non-monetary factors are appropriate
considerations and conclude that a remand is unnecessary. They would approve the proposed
settlement. In Wyoming Fuel Co., 16 FMSHRC 1618, 1619-20 n. 3 (August 1994), the
Commission determined that, in the event of a tie vote, the vote of Commissioners closest in
effect to the judge's decision is the Commission's disposition. The vote of Chairman Jordan and
Commissioner Marks to remand this matter to the judge is closest in effect to the judge's decision
and is therefore the Commission's disposition.

860

exhaust system, which pennitted excessive amounts of carbon monoxide to enter the cab, was the
proximate cause of the fatality.
Citation Nos. 3976644 and 3976646 issued to Madison and PSSI, respectively, pursuant
to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleged that PSST operated the vehicle in
an unsafe condition on mine property in violation of 30 C.F.R. § 77.404(a). 2 The inspector
designated the violation significant and substantial. 3 The Secretary proposed civil penalties of
$2,000 against Madison and $3,000 against PSSI. The inspector further detennined that the
vehicle posed an imminent danger to employees working at Job No. 3 and, accordingly, pursuant
to section 107(a) of the Act, 30 U.S.C. § 817(a), issued Order Nos. 3976643 and 3976645
requiring its removal from mine property.
The citations are basically identical and state:
The Ford Bronco II Serial# IFMBU14T7GUA67264 being oper~
ated on the surface mine property was not being maintained in a
safe operating condition in that the exhaust system was damaged
and leaking carbon monoxide at (3) locations.
This was a contributing factor which resulted in a fatal injury.
This citation is issued in conjunction with 107A Order No.
3976643 therefore no abatement time is set.

2

Section 77.404(a) provides:
Mobile and stationary equipment and machinery shall be
maintained in safe operating conditi'on and machinery ... in unsafe
condition shall be removed from service immediately.

3

The significant and substantial terminology is taken from section 104(d)( 1) of the Act,
30 U.S.C. § 814(d)(l), which distinguishes as more serious in nature any violation that "could
significantly and substantially contribute to the cause and effect of a ... mine safety or health
hazard .... "

861

In Citation No. 3976647 issued to Madison, MSHA also alleged a violation of 30 C.F.R.
§ 48.31 (a) 4 for failure to provide hazard training to Garrett before he began working at the mine.
The Secretary proposed a civil penalty of $88 for this violation.

II.
Procedural Backiround
On March 31, 1994, the Secretary filed motions with the judge to approve settlements in
these cases. The settlements would have required payment of $550 of the $2,088 in proposed
penalties against Madison, and $1,000 of the $3,000 in proposed penalties against PSSI. By
order dated April 7, 1994, Judge Feldman denied the Secretary's motions on the grounds that the
Secretary had not shown "adequate mitigating circumstances to justify the significant reductions
in the proposed penalties."
On April 8, 1994, the Secretary filed "Amended Motions to Approve Settlement," which
provided that Madison and PSSI would pay in full the penalties proposed by the Secretary. 5 The
proposed settlement i:\Jso required that PSSI inspect the exhaust systems of security employees'
vehicles at least once every 90 days and that PSSJ maintain and, upon request, produce to MSHA
documentation of such inspections.
The judge thereafter issued an order requiring Madison and PSSJ to provide additional
information. He ordered the Secretary to explain, inter alia, why the proposed inspection
program would be adequate to abate "the hazard associated with exposure to carbon monoxide
poisoning." Order Requesting Clarification at 3. The judge reserved ruling on the motions
pending review of the requested information. On May 16, 1994, the parties filed a Joint
Response to Order Requesting Clarification.
On June 8, 1994, the judge denied the motions to approve the settlement on the grounds
that, in order to determine the appropriate civil penalties, disputed facts concerning the adequacy
of the proposed vehicle inspection program had to be resolved. Order Denying Motions for
Approval of Settlements, Prehearing Order and Notice of Hearing ("June 8th Order").

4

Section 48.31 (a) provides in part:
Operators shall provide to ... miners ... a training
program before such miners commence their work duties.

5

On May 16, 1994, the Secretary filed a "Second Amended Motion to Approve
Settlements" (''S. Mot. to Approve Set."), which consolidated the two earlier amended motions.

862

The judge scheduled the matter for hearing and ordered the Secretary to call as a witness
the Chief Medical Examiner of the West Virginia Department of Health and Human Services to
testify to:
the circumstances surrounding the decedent's death and his expert
opinions concerning the health hazards associated with the shortterm and continued long-term exposure to exhaust fumes and/or
carbon monoxide poisoning.
June 8th Order at 6. The Secretary was also directed to call:
a minimum of two qualified safety and health experts employed by
the Occupational Safety and Health Administration (OSHA) ... to
testify whether remaining in a stationary vehicle for prolonged
periods with the engine and heater running is a "recognized
hazard" that is prohibited by Section S(a)(l) or Section 5(a)(2) of
the Occupational Safety and Health Act of 1970, 29 U.S.C. §
654(a)(l) and (a)(2).

Id. The judge further ordered the Secretary to call "[a] licensed qualified automobile mechanic"
to testify about "the procedures and requisite qualifications for performing an adequate
inspection of a motor vehicle's exhaust system . . .. 11 Id.
On July 19, 1994, the Secretary submitted a witness list. He stated that he did not intend
to call as witnesses the individuals identified in the June 8th Order and that the parties intended
to submit a joint motion for summary decision. The judge construed the latter statement to be a
joint motion for summary decision, which he denied on July 22, 1994. Order Denying Joint
Motion for Summary Decision (''July 22nd Order"). In his order, the judge identified what he
described as disputed material facts relating to the adequacy of the proposed inspection program
to remove hazards to security guards posed by carbon monoxide poisoning. Id. at 4. The judge
advised the parties of his intention to call the Chief Medical Examiner as a "court" witness. Id.
at 4-5.
The Secretary filed a "Motion for Sununary Judgment" on August 25, 1994. He
contended that the undisputed facts established the violations alleged in the citations as well as
the statutory criteria to determine an appropriate penalty. S. Mot. for Summ. J. at 7-11. He
noted respondents' good faith attempts to achieve tapid compliance. Id at 12. The Secretary
argued that the five issues identified by the judge in the July 22nd Order were not properly
before him. Id. at 15-18. The Secretary requested by letter that, in the event his motion was
denied, the judge certify the denial to the Commission pursuant to Commission Rule 76(a)(I )(i).
Madison supported by letter the Secretary's motion.

863

The judge denied the Secretary's motion on August 29, 1994. Order Denying the
Secretary's Motion for Summary Judgment ("August 29th Order"). The judge ruled that, in order
to determine the appropriateness of the proposed civil penalties, it was necessary to determine
whether the hazard training and the vehicle inspection program were adequate to eliminate the
danger of carbon monoxide poisoning to security guards who remain in their vehicles for long
periods seeking heat and shelter. August 29th Order at 2. The judge also refused to certify to the
Commission for interlocutory ruling either his July 22nd or August 29th order as requested by
Madison and the Secretary, respectively. The instant petition for interlocutory review fo1lowed.

III.
Disposition
The issue before us is whether the judge properly denied the parties' motions to approve
settlement. 6 In the judge's view, unresolved factual issues concerning the adequacy of abatement
precluded his approval of the settlement.
Settlements are committed to the "sound discretion" of the Commission and its judges.

See, e.g., Medusa Cement Co., 12 FMSHRC 1913, 1914(October1990). Although Commission
judges are not "bound to endorse all proposed settlements," their rejections of settlements, as
well as approvals, must "be based on principled reasons." Knox County Stone Co. , 3 FMSHRC
2478, 2480 (November 1981). On review, the Commission will not disturb ajudge's approval or
rejection of a settlement if it is supported by the record, is consistent with the six statutory
criteria specified in section 11 O(i) of the Act for the assessment of civil penalties, and is not
otherwise improper. Id. In reviewing such cases, "abuses of discretion or plain errors are not
immune from reversal." Id.
In rejecting the parties' settlement, the judge focused on Section 11 O(i) of the Mine Act,
30 U.S.C. § 820(i), which sets forth six criteria for determining the appropriateness of a civil
penalty. The judge stated that "demonstrated good faith ... in attempting to achieve rapid
compliance," the sixth criterion, involved "a factual question that must be resolved through the
testimony of expert witnesses in the hearing process." August 29th Order at 2. He identified as
the central issue:
[W]hether the respondents have adequately removed the risk of
carbon monoxide poisoning through hazard training and vehicle

6

In his Motion for Summary Judgment, the Secretary requested the judge to "memorialize" in an order the provisions of the settlement proposal, in particular the vehicle inspection
program. S. Mot. for Summ. J. at 14. Accordingly, we construe the Secretary's Motion for
Summary Judgment as a motion to approve the settlement agreement.

864

maintenance, to security personnel who continue to use stationary
vehicles for prolonged periods of time with no alternative means of
warmth and shelter. 7

Id.
The scope of abatement is determined by the underlying citation and by the requirements
of the statutory provision, standard or regulation alleged to have been violated. See MidContinent Resources, Inc., 11 FMSHRC 505, 509-11 (April 1989). In determining whether the
factual issues set forth by the judge were material to his consideration of whether the operator
had demonstrated good faith in attempting to achieve rapid compliance, we examine the scope of
the citations and the actions required for abatement.

7

The August 29th Order incorporates by reference the July 22nd Order, which listed the
following five factual inquiries that the judge stated were "unresolved issues of material fact":

1: The nature of carbon monoxide intoxication and the
correlation between the level of toxicity and the period of exposure;
2. Given the characteristics of carbon monoxide, whether
the risk of carbon monoxide intoxication to individuals who seek
warmth and shelter in stationary vehicles for extended periods of
time can be effectively alleviated by the methods proposed by the
respondents;
3. Whether remaining in a stationary vehicle for prolonged
periods with the engine and heater running is a "recognized hazard" that is prohibited by ... the Occupational Safety and Health
Act of 1970 ... ;
4. The qualifications of the individual assigned by [PSS!]
to inspect employee vehicle exhaust systems and the methods of
such inspection; and
'
5. The requisite qualifications, equipment and procedures
necessary for performing an adequate vehicle exhaust system
inspection.
July 22nd Order at 4.

865

The citations are narrowly drawn. They do not allege a pattern or practice of shoddy
vehicle maintenance or a general failure by Madison to provide hazard training to its miners.
Rather, they address a particular defective vehicle that contributed to the fatality and the failure
to train security guard Garrett. The regulations at issue also impose specific requirements. The
Commission has held that section 77.404(a):
imposes two duties upon an operator: (1) to maintain machinery
and equipment in safe operating condition, and (2) to remove
unsafe equipment from service. Derogation of either duty violates
the regulation.

Peabody Coal Co., 1 FMSHRC 1494, 1495 (October 1979). This standard does not require
unsafe equipment to be repaired so long as it is immediately removed from service. See
Alabama By-Products Corp. , 4 FMSHRC 2128, 2130 (December 1982) ("[O]nce unsafe
equipment is removed from service abatement is completed.") (construing identical language in
section 75. l 725(a)). Section 48.3 l(a) is also specific, requiring operators to provide training to
individuals before they begin working at a mine. Abatement is completed when the affected
miners are trained. See Secretary ofLabor v. Western Fuels-Utah, Inc., 900 F.2d 318, 319-20
(D.C. Cir. 1990) (oper.ator abated violation of section 48.7 by task training affected employee).
In the instant case, the Secretary determined that respondents abated the unsafe
equipment violation when they removed the defective vehicle from service. See Alabama ByProducts, 4 FMSHRC at 2130. Likewise, by citing only the failure to train a particular
employee, the Secretary did not trigger a broad duty of abatement with respect to that violation.
Thus, the issue identified by the judge in the August 29th Order, "whether the respondents have
adequately removed the risk of carbon monoxide poisoning through hazard training and vehicle
maintenance," is immaterial to the issue of whether the respondents demonstrated good faith in
attempting to abate the narrow violations charged in this particular instance. 8 Accordingly, we

8

We do not suggest that the duty to abate is necessarily always narrow in scope. The
nature of a given violation or the regulatory or statutory provision violated may lead the
Secretary to impose broad abatement duties. In the present case, for example, the Secretary
issued imminent danger orders in connection with the unsafe equipment citations. In discussing
the Mine Act's imminent danger provision, the Senate drafters stressed the importance of
adequately abating such hazards:
If miners are to receive the continuing protection that Congress
intends inspectors and operators must look to the underlying
conditions and practices causing an imminent danger. Section
10[7](a) thus requires the operator to correct the root causes as well
as the symptoms of mine health and safety problems which gave
rise to the order.

866

conclude that the judge erred to the extent that he denied the settlement motions because of a
determination that the parties had failed to provide facts demonstrating the good faith of the
person charged in attempting to achieve rapid compliance after notification of a violation. We
therefore vacate the judge's orders that effectively disapproved the proposed settlement.

IV.
Remand
We remand for the judge to reconsider the settlement motions without recourse to the
erroneous abatement analysis discussed above. The general principles governing a judge's
disposition of a proposed settlement are well established. Section 11 O(k) of the Act provides
that no contested proposed penalty "shall be compromised, mitigated, or settled except with the
approval of the Commission." 30 U.S.C. § 820(k). See also Commission Procedural Rule 31, 29
C.F.R. § 2700.31. Section 11 O(k) charges the Commission and its judges with the duty "to
protect the public interest by ensuring that all settlements of contested penalties are consistent
with the ... Act's objectives." Knox County, 3 FMSHRC at 2479. The judge shall review the
adequacy of the penalties proposed to settle this matter in light of the other five statutory penalty
criteria, which he did not discuss in his prior orders. In that regard, of course, he is not bound by
the parties' assertions concerning these criteria. Knox County, 3 FMSHRC at 2479-81. Cf
Sellersburg Stone Co., 5 FMSHRC 287, 293-94 (March 1983), afj'd, 736 F.2d 1147 (7th Cir.
1984).
Although the vehicle inspection program that the operator proposes to adopt as part of
the settlement is not relevant to a determination of whether this operator "exercised good faith in
achieving compliance after notification of a violation," we do not imply that the program's
efficacy cannot be a factor in the judge's determination of whether to approve or reject the
proposed settlement. In determining whether to approve a proposed settlement a judge must
consider, inter alia, whether the amount proposed will accomplish the underlying purpose of a
civil penalty -- to encourage and induce compliance with the Mine Act and its standards. Co-op
Mining Co., 2 FMSHRC 3475, 3475-76 (December 1980), citing S. Rep. 41, reprinted in Legis.
Hist. 629. See also Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (August 1982); S. Rep. 4245, reprinted in Legis. Hist. 630-33. The "affirmative duty" that section 11 O(k) places on the
Commission and its judges to "oversee settlements," Co-op Mining, 2 FMSHRC ·at 3475-76,

S. Rep. No. 181, 95th Cong., 1st Sess. 37 (1977) (''S. Rep."), reprinted in Senate Subcommittee
on Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative History ofthe
Federal Mine Safety and Health Act of 1977, at 625 (1978) (''Legis. Hist."). Thus, in the
circumstances presented here, the Secretary had the authority to include broader abatement duties
than he actually required.

867

necessarily requires the judge to accord due consideration to the entirety of the proposed
settlement package, including both its monetary and non-monetary aspects.
The requirement that a judge consider all elements of a settlement presented to him for
approval is consistent with the settled principle that, in considering whether to approve a
proposed settlement, a judge must determine whether it is "fair, adequate and reasonable."
Young v. Katz, 447 F.2d 431, 433 (5th Cir. 1971). Accord, United States v. Seymour Recycling
Corp., 554 F. Supp. 1334, 1337 (S.D. Ind. 1982); see also, United States v. Akzo Coatings of
America, Inc., 949 F.2d 1409, 1426 (6th Cir. 1991) (settlement should be reviewed for "fairness,
reasonableness and consistency with the statute"); United States v. City ofJackson, Mississippi,
519 F.2d 1147, 1151 (5th Cir. 1975) Gudge must assure himself that the settlement's terms "are
not unlawful, unreasonable or inequitable"); Neuwirth v. Allen, 338 F.2d 2, 3 (2d Cir. 1964)
Gudge correctly determined that "the settlement was fair"). These inquiries are bottomed on a
concern that the settlement "adequately protects the public interest." United States v. Seymour
Recycling, 554 F. Supp. at 1337; see also United States v. Ketchikan Pulp Co., 430 F. Supp. 83,
86 (D. Alaska 1977) (judge should determine that settlement "adequately protects the public
interest and is in accord with the dictates of Congress"). In assessing the fairness of the
settlement and whether it is consistent with the public interest, a judge must examine "all
relief . . . , not just the..[monetary] provisions of the settlement . . . . " Luevano v. Campbell, 93
F.R.D. 68, 86 (D.D.C. 1981) (emphasis supplied); see also, United States v. Allegheny-Ludlum
Industries, Inc., 517 F.2d 826, 864 (5th Cir. 1975) (monetary relief must be viewed in light of
other relief provided in settlement), cert. denied sub nom. Harris v. Allegheny-Ludlum Industries,
Inc., 425 U.S. 944 (1976).
Our dissenting colleagues err in concluding that the Mine Act "clearly" proscribes
Commission judges from considering non-monetary settlement provisions presented to them by
the parties for approval. Slip op. at 13. In construing the Mine Act, we are guided by the
principle that "the primary dispositive source of statutory construction is the wording of the
statute itself." Association ofBituminous Contractors v. Andrus, 581 F.2d 853, 861 (D.C. Cir.
1978). Section 11 O(k) of the Act, which governs settlements, does not contain language
restricting in any way the scope of the Commission's inquiry in reviewing them. Had Congress
desired to depart from the law governing the scope of review of settlements, it could easily have
inserted in section 11 O(k) terms limiting the scope of the Commission's review of settlements. It
did not do so, and the Commission is without authority to insert such terms itself.
The parties have made the vehicle inspection program part of the settlement package and
they relied on its inclusion in arguing to the judge' that the penalties proposed were consistent
with the statutory criteria and should be approved. S. Mot. to Approve Set. at 3-4. It is appropriate for the judge to consider the weight to be given to each of the statutory penalty criteria in
light of the planned inspection program's contribution to compliance. To the extent the parties
are unsuccessful in persuading the judge of the efficacy of the inspection program as currently
agreed to, the judge need not accord the program significance in his evaluation of the penalty
proposed in the settlement. If the judge disagrees with the proposed penalties, he is free to reject

86 8

the settlement and direct the matter for hearing. Knox County, 3 FMSHRC at 2481-82.
Alternatively, since the parties couched their renewed settlement approval motion in terms of a
motion for summary judgment (see n.5, supra), the judge may examine the record and, if there
are no factual disputes relating to liability and penalty assessment, issue a decision based on the
record. See Knox County, 3 FMSHRC at 2481-82 & n.5. Rejection of the current settlement
proposal would be without prejudice to the parties' resubmission of a settlement package tailored
to meet the judge's objections.

v.
Conclusion
For the foregoing reasons, we vacate the judge's orders denying the motions for summary
decision and the amended motions for approval of settlement, and remand for further proceedings consistent with this decision.

869

Commissioner Doyle and Commissioner Holen, concurring in part and dissenting in part:
A. Judge's Ruling

We concur in our colleagues' opinion that Judge Feldman erred in denying the settlement
motion filed by the Secretary of Labor ("Secretary") because he believed factual questions
relevant to abatement, i.e., "whether the respondents have adequately removed the risk of carbon
monoxide poisoning through hazard training and vehicle maintenance," remained unresolved. 1
Order Denying Sec. Mot. for Surnrn. J. ("August 29 Order") at 2. We agree that those facts are
irnrnaterial to a determination of whether the operators, Madison Branch Management
("Madison") and Protective Security Services and Investigations, Inc. ("PSSI"), demonstrated
good faith in attempting to achieve compliance, the sixth penalty criterion set forth in section
1 lO(i) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) ("Mine
Act"). 2 30 U.S.C. § 820(i). Thus, the issue identified by the judge in his August 29 Order was
not a proper consideration in his evaluation of the settlement agreements.
B. Review of Non-pecuniary Settlement Provisions Is Not Authorized
We must, however, respectfully dissent from that portion of the opinion in which our
colleagues remand this matter to the judge and from the theory they set forth in their remand
instructions to him: "The 'affirmative duty' that section 11 O(k) places on the Commission and its
judges to 'oversee settlements' necessarily requires the judge to accord due consideration to the
entirety of the proposed settlement package, including both its monetary and non-monetary
aspects." Slip op. at 9 (citation omitted). We disagree that the Mine Act authorizes the judge to
consider the non-pecuniary provisions of a settlement agreement as well as the penalty amount.3

1

Respondents abated the unsafe equipment violation by removing the defective vehicle
from service. The training violation pertained only to the particular employee who had been
using the defective vehicle. Citation No. 3976647.
2 "Subsequent violative conditions, not described in the original citation, may be subject

to separate enforcement actions by the Secretary, but are not properly grandfathered into the
abatement duties imposed upon the operator as a result of the original citation." Mid-Continent
Resources, Inc. , 11 FMSHRC 505, 510 (April 1989).
3

Neither the Secretary nor the operators have argued that the Cornrnission has authority
under the Mine Act to consider non-pecuniary factors in evaluating settlement agreements.

870

1. Plain Language of Section 11 O(i)
Section 110 of the Mine Act is expressly entitled "PENALTIES" and ~ach subsection
thereunder clearly addresses matters related to penalties. Subsection 11 O(i) provides, in part:
In assessing civil monetary penalties, the Commission shall
consider[:] (1] the operator's history of previous violations,
[2] the appropriateness of such penalty to the size of the
business of the operator charged, [3] whether the operator
was negligent, (4] the effect on the operator's ability to
continue in business, [5] the gravity of the violation, and
[6] the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of
a violation.
30 u.s.c. § 820(i).
We believe that the Mine Act clearly provides that the Commission, in determining
penalties and the appropriateness of a settlement, must rely on the six criteria set forth in section
11 O(i).4 In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), the court held that the initial question is "whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear, that is the end of the matter .... " 467
U.S. at 842. When Congress has directly spoken to an issue, an argument that an alternative
construction better effectuates Congressional intent is without merit. Sec. of Labor v. Shire!, No.
94-1030, slip op. at 1, (March 29, 1995) (per curiam). Thus, because the Mine Act has clearly
set forth the criteria upon which the assessment of penalties is to be based, the Commission is
without authority to consider factors other than the criteria. 5

4

Our colleagues do not say whether, in their view, the language of the Mine Act is clear
or whether they have found it ambiguous and are setting forth an interpretation they believe is
reasonable and entitled to deference.
5 The decisions referenced by our colleagues to support their contention that Congress

intended no departure from the general law regarding settlements, slip op. at 10, do not overcome
the explicit provisions of the Mine Act.

871

2. Legislative History of Section l lO(i)
Moreover, there is no indication in the legislative history that Congress contemplated
such considerations. The Conference Report states:
The conference substitute conforms to the Senate bill, with
an amendment incorporating the six criteria contained in
the House amendment in lieu of the four in the Senate bill;
which criteria shaII be those upon which the Secretary shall
propose a civil penalty and the Commission shall assess
such penalty.
Conf. Rep. No. 461, 95th Cong., 1st Sess. 58 (1977), reprinted in Senate Subcommittee on
Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal
Mine Safety and Health Act of 1977, at 1336 (1978) ("Legis. Hist.").
3. Supreme Court Decision
The Supreme Court has also noted: "[T]he Commission reviews all proposed civil
penalties de novo according to six criteria." Thunder Basin Coal Co. v. Reich, 127 L. Ed. 2d 29,
38 (1994).
4. Plain Language and Legislative History of Section 1 lO(k)
Our colleagues also err in relying on section l lO(k) of the Mine Act to support their
position. Slip op. at 9. Section 1 lO(k) provides that no contested penalty "shall be
compromised, mitigated, or settled except with the approval of the Commission." 30 U.S.C.
§ 820(k). The language of section 11 O(k) does not require the Commission to consider both the
monetary and non-monetary aspects of a proposed settlement package, nor does it grant the
Commission authority to consider non-monetary aspects. Moreover, the legislative history
contains no suggestion that Congress contemplated such an extension of the Commission's
authority. The legislative history of section 11 O(k) shows congressional concern with
compromising penalties off the record. See S. Rep. No. 181, 95th Cong., 1st Sess. 44-45 (1977)
(''S. Rep."), reprinted in Legis. Hist. at 632-33. The legislative solution to "the ~nwarranted
lowering of penalties" was to allow compromise of a contested penalty amount only on the
"public record" with Commission approval. S. Rep. 45, reprinted in Legis. Hist. at 633.

C. Effect of Remand Instructions
Under our colleagues' remand instructions, the judge, in reviewing the proposed
settlement, is to consider the efficacy of the vehicle inspection program as part of his
determination. Slip op. at 10. Thus, he apparently is free to delve into, and require the
presentation of evidence on, factual issues well outside the statutory criteria.

872

D. Settlement Amounts Are Consistent with Statutory Criteria
Based on our determination that the Com.mission's oversight of this settlement does not
extend to the non-monetary aspects of the settlement, we also disagree that there is a need to
remand this matter to Judge Feldman for further proceedings. Although the judge did not make
factual findings relating to the penalty criteria set forth in section 11 O(i), the record contains the
facts necessary for consideration of those criteria. In the interest of judicial economy, we would
make the required findings. See Sellersburg Stone Co., 5 FMSHRC 287, 293-94 (March 1983).
As to the first penalty criterion, history of previous violations, the record reveals that
Madison and PSSI have strong records of compliance with the Secretary's regulations. In the 24
months prior to the accident, Madison received no citations and PSSI received one. Concerning
the second criterion, the operator's size, it is undisputed that both Madison and PSSI are small
operators. The production at the mine at the time of the violations was approximately 80,000
tons per year, Madison's overall production was about 890,000 tons per year, and PSSI's
employees worked approximately 27,000 hours per year. As to the third criterion, negligence,
the Secretary asserts that Madison and PSSI were moderately negligent. Although respondents
do not concede that level of negligence, they do not object to the penalty being based on that
assertion. See Sec. Me,t. for Summ. J., August 25, 1994, at 2, 4-6. Concerning the fourth
criterion, respondents do not claim that the penalties will affect their ability to continue in
business. As to the fifth criterion, the gravity of the violation is very serious in view of the
fatality. Concerning the sixth criterion, abatement satisfactory to the Secretary was rapidly
achieved.
We find that the penalties proposed by the Secretary for the violations in issue and
accepted by respondents, $2,088 against Madison and $3,000 against PSS!, are consistent with
the statutory penalty criteria and effectuate the purposes of the Mine Act. Accordingly, we
would approve the settlement agreements, which incorporate those penalties.

Arlene Holen, Commissioner

873

Distribution

Christopher B. Power, Esq.
Robinson & McElwee
P.O. Box 1791
Charleston, WV 25326
Patrick L. DePace, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James Walker, Esq.
White & Browning Building
Suite 201
P.O. Box 358
Logan, \VY 25601
Administrative Law Jugde Jerold Feldman
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

874

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

June 19 , 1995

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

v
Docket No. KENT 92- 17
DAVIS SHOULDERS, employed by
PYRO MINING COMPANY

BEFORE: Jordan, Chairman; Doyle, Holen, and Marks, Commissioners
ORDER
BY THE COMMISSION:
In this civil penalty proceeding pending on review, arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act"), the Secretary of Labor has
filed a Motion to Lift Stay and Dismiss Petition for Review. Respondent has not opposed the
motion. In the proceeding below, Administrative Law Judge David F. Barbour concluded that
section 110(c) of the Mine Act provides for individual liability only against agents .of operators
that are corporations. 14 FMSHRC 2099 (December 1992) (ALJ). In his petition for
discretionary review, the Secretary asserted that conclusion is erroneous.

In support of his motion, the Secretary states that this issue is controlled by the recent
decision of the U. S. Court of Appeals for the District of Columbia Circuit in Sec. of Labor v.
Shire!, No. 94-1030 (March 29, 1995) (per curiam). The court held that section l lO(c) applies
only to corporations, not to operators organized as corporate partnerships.
Upon consideration of the Secretary's motion, we grant it. See generally Golden Oak
Mining Co., 12 FMSHRC 1758 (September 1990).

875

Accordingly, we dissolve the stay, vacate the direction for review and dismiss this
proceeding.

ri~Co~ssio~
Arlene Holen, Commissioner

Distribution:
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Ronald E. Meis burg, Esq.
Smith, Heenan & Althen
1110 Vermont A venue
Washington, D.C. 20005
Flem Gordon, Esq.
Gordon and Gordon
P.O. Box 1305
Madisonville, KY 42431

876

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

June 20, 1995

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 94-681-M

V.

T.E. BERTAGNOLLI & ASSOCIATES

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

ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988). On March 13, 1995, Chief Administrative Law Judge Paul
Merlin issued an Order of Default to T.E. Bertagnolli & Associates ("Bertagnolli") for its failure
to answer the Secretary of Labor's proposal for assessment of civil penalties or the judge's
December 22, 1994, Order to Respondent to Show Cause. The judge assessed civil penalties of
$9800.
In a letter to the judge dated March 27, 1995, Bertagnolli states that, on October 21, 1994,
it had responded to the Secretary's penalty proposal but had inadvertently mailed its response to
an attorney in the Office of the Department of Labor's Solicitor in San Francisco, California. It
enclosed a copy of that letter, which it states is a "duplicate" in all respects except that it is
addressed to Judge Merlin.
The judge's jurisdiction over this case terminated when his default order was issued on
March 13, 1995. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be sought by filing
a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29
C.F.R. § 2700.70(a). Due to clerical oversight, the Commission did not act on the March 27
letter within the statutory period for considering petitions for discretionary review. The judge's
default order became a final decision of the Commission 40 days after its issuance. 30 U.S.C.
§ 823(d)(l).

877

Relief from a final Commission judgment or order is available to a party under Fed. R.
Civ. P. 60(b)(l) in circumstances such as mistake, inadvertence, or excusable neglect. 29 C.F.R.
§ 2700. l (b) (Federal Rules of Civil Procedure apply "so far as practicable" in the absence of
applicable Commission rules); see, e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991).
In the interest of justice, we reopen this proceeding and treat Bertagnolli's March 27 letter
as a timely filed petition for discretionary review, which we grant. See Cedar Lake Sand &
Gravel Co., 15 FMSHRC 2253, 2254 (November 1993). On the basis of the present record, we
are unable to evaluate the merits of Bertagnolli's position. We remand the matter to the judge,
who shall determine whether final relief from default is warranted. See Hickory Coal Co., 12
FMSHRC 1201, 1202 (June 1990).

Ar!ene Holen, Commissioner

Marc Lincoln Marks, Commissioner

878

Distribution
Steve Kreck
T.E. Bertagnolli & Associates
P.O. Box 2577
Carson City, NV 89702
Susan Gillett, Esq.
Office of the Solicitor
U.S. Department of Labor
71 Stevenson Street, Suite 11 I 0
San Francisco, CA 94105-2999
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
I 730 K Street, N. W., Suite 600
Washington, D.C. 20006

879

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

June 20,

1995

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 94-720-M

v.

WISER CONSTRUCTION, L.L.C.

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

ORDER
BY THE COMMISSION :
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988). On March 13, 1995, Chief Administrative Law Judge Paul
Merlin issued an Order of Default to Wiser Construction, L.L.C. ("Wiser") for its failure to
answer the Secretary of Labor's proposal for assessment of civil penalties or the judge's January
4, 1995, Order to Respondent to Show Cause. The judge assessed civil penalties of $4300.
In a letter to the judge dated March 16, 1995, Wiser's managing member states that, on
January 1, 1995, Wiser had responded to the Secretary's penalty proposal but that it had
inadvertently mailed its response to an attorney in the Office of the Department of Labor's
Regional Solicitor in Denver, Colorado. He enclosed a copy of that letter, which is dated
January 9, 1995.
The judge's jurisdiction over this case tenpinated when his default order was issued on
March 13, 1995. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be sought by filing
a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29
C.F.R. § 2700.70(a). Due to clerical oversight, the Commission did not act on the March 16
letter within the statutory period for considering petitions for discretionary review. The j udge's
default order became a final decision of the Commission 40 days after its issuance. 30 U.S.C.
§ 823(d)(l ).

880

Relief from a final Commission judgment or order is available to a party under Fed. R.
Civ. P. 60(b)(l) in circumstances such as mistake, inadvertence, or excusable neglect. 29 C.F.R.
§ 2700.1 (b) (Federal Rules of Civil Procedure apply "so far as practicable" in the absence of
applicable Commission rules); see, e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991).

In the interest ofjustice, we reopen this proceeding and treat Wiser's March 16 letter as a
timely filed petition for discretionary review, which we grant. See Cedar Lake Sand & Gravel
Co. , 15 FMSHRC 2253, 2254 (November 1993). On the basis of the present record, we are
unable to evaluate the merits of Wiser's position. We remand the matter to the judge, who shall
determine whether final relief from default is warranted. See Hickory Coal Co., 12 FMSHRC
1201, 1202 (June 1990).

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

881

Distribution
Paul Ronald Lewis
Wiser Construction
P.O. Box 106
Moapa, NV 89025
Susan J. Eckert, Esq.
Office of the Solicitor
U.S. Department of Labor
1999 Broadway, Suite 1600
Denver, CO 80202-5716
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

882

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

June

26, 1995

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

Docket No. SE 95-316
A.C. No. 01-00323-03747

v.

Docket No. SE 95-317
A.C. No. 01-00323-03748

DRUMMOND COMPANY, INC.

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

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1988) ("Mine Act"). On June 2, 1995, the Commission received from Drummond
Company, Inc. ("Drummond11 ) a Motion for Relief from Final Order. Drummond states that, on
April 18, 1995, it mailed a "Green Card" request for a hearing in each of the subject cases but
that it had mistakenly circled the citations and orders it was not contesting rather than those it
wished to contest. Attached to the motion are copies of the Green Cards and correspondence
from Drummond to the Department of Labor's Mine Safety and Health Administration
("MSHA") that accompanied payment of penalties in those same enforcement actions.
Drummond requests relief pursuant to Fed. R. Civ. P. 60(b) ("Rule 60(b)"). On June 8, 1995, the
Secretary of Labor filed a response to Drummond's motion, requesting that the Commission
assign this case to an administrative law judge with instructions to hold a full evidentiary
hearing.
Under section 105(a) of the Mine Act, 30 U.S.C. § 815(a), an operator has 30 days
following receipt of the Secretary's proposed penalty assessment within which to notify the
Secretary that it wishes to contest the proposed penalty. If the operator fails to notify the
Secretary, the proposed penalty assessment is deemed a final order of the Commission.
30 U.S.C. § 815(a).

883

The Commission has held that, in appropriate circumstances and pursuant to
Rule 60(b), it possesses jurisdiction to reopen uncontested assessments that have become final
under section 105(a). Jim Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993); Rocky
Hollow Coal Co., 16 FMSHRC 1931, 1932 (September 1994). Relief from a final order is
available in circumstances such as a party's mistake, inadvertence, or excusable neglect.
On the basis of the present record, we are unable to evaluate the merits of Drummond's
position. In the interest of justice, we remand the matter for assignment to a judge to· determine
whether Drummond has met the criteria for relief under Rule 60(b). If the judge determines that
relief w1der Rule 60(b) is appropriate, this case shall proceed pursuant to the Mine Act and the
Commission's Procedural Rules, 29 C.F.R. Part 2700.

(l_~tt AA

Joyce A. Doyle, Commissioner

A~,C~

884

Distribution:
J. Fred McDuff, Esq.
Drummond Company, Inc.
P.O. Box 10246
Birmingham, AL 35202
J. Alan Truitt, Esq.
Maynard, Cooper & Gale
2400 AmSouth/Harbert Plaza
1901 6th Avenue North
Birmingham, AL 35203
William Lawson, Esq.
Office of the Solicitor
U.S. Department of Labor
Suite 150, Highpoint Office Center
100 Centerview Drive
Birmingham, AL 35216
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

885

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

June 29, 1995

Docket No. KENT 94-92

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

Docket Nos. KENT 94-271
KENT94-272
KENT 94-362
KENT 94-363
KENT94-426

v.

NORTH STAR CONTRACTORS, INC.

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

ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S .C. § 801 et seq. (1988). On January 17, 1995, the Secretary of Labor filed a
Motion for Default Judgment, asserting that North Star Contractors, Inc. ("North Star") had
agreed to pay certain penalties proposed by the Secretary in six cases but had subsequently failed
to sign the Joint Motions to Approve Settlement mailed to North Star on April 15, 1994, and on
October 20, 1994. On February 1, 1995, Chief Administrative Law Judge Paul Merlin issued
two orders to show cause, directing North Star to answer with either a signed copy of the
settlement motion or with an explanation for its failure to do so. 1 On March 21 , 1995, after no
response had been filed, Judge Merlin issued two default orders, corresponding to the show cause
orders, entering judgment in favor of the Secretary and ordering North Star to pay the proposed
penalties.
On March 30, 1995, the Commissionrec~ived from Pamela Taylor, North Star's
secretary, two letters dated March 27. In the first letter, regarding the default order that had been
entered in Docket No. KENT 94-92, Taylor requests a copy of the proposed settlement,
explaining that she recently had assumed responsibility for the operator's penalty cases and that
she did not have all of the information necessary to discuss the cases.

1

The j udge issued a show cause order in Docket No. KENT 94-92, and a separate show
cause order pertaining to the other five subject cases.

886

In the second letter, regarding the default order that had been entered in the other five
cases, Taylor states that, on March 8, 1995, she had sent a letter to an attorney with the
Department of Labor's Regional Solicitor's Office and had attached a list of various penalty
assessments, including five of the subject actions. She states that she requested a reduction of
penalties and the formulation of a payment plan but received no response. Taylor requests that
the Commission consider all the cases listed in the attachment to her March 8 letter, which
includes 14 cases in addition to the subject cases.
The judge's jurisdiction over this case terminated when the captioned default orders were
issued on March 21, 1995. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be
sought by filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C.
§ 823(d)(2); 29 C.F.R. § 2700.70(a). Due to clerical error, the Commission did not act on the
March 27 letters within the statutory period for considering requests for discretionary review.
The judge's default orders became final orders of the Commission 40 days after their issuance by
operation of section l 13(d)(l) of the Mine Act, 30 U.S.C. § 823(d)(l).
Relief from a final Commission judgment or order is available to a party under Fed. R.
Civ. P. 60(b)(l) in circumstances such as mistake, inadvertence, or excusable neglect. 29 C.F.R.
§ 2700. l (b) (Federal Rules of Civil Procedure apply "so far as practicable" in the absence of
applicable Commission· rules); e.g., Lloyd Logging, Inc., 13 FMSHRC 78 1, 782 (May 1991). In
the interest of justice, we reopen these proceedings and deem North Star's March 27 letters to
constitute petitions for discretionary review, which we grant. Mitchell, emp. by HB&B Equip.
Co., 15 FMSHRC 2458, 2459 (December 1993); Remp Sand & Gravel, 16 FMSHRC 501, 502
(March 1994).
North Star has offered no explanation in its March 27 letters for its failure to answer the
judge's show cause orders. We conclude that relief from the judge's orders is not warranted and
we deny North Star's request as to the subject six cases. Cf Pit, 16 FMSHRC 2033, 2034
(October 1994) (denying request for relief).
We also deny North Star's request that we consider the other 14 cases referenced in its
March 8 letter to the Solicitor. The request is inappropriate for a majority of those cases because,
by the date of North Star's March 27 letters, they had been settled or dismissed, or were not
reviewable because an administrative law judge had not issued an order constituting his final
disposition of the matter. In the remaining cases, in which default orders had been entered and
had become final orders of the Commission, North Star has offered no justification for relief
under Rule 60(b).
·

887

Accordingly, we deny North Star's request for relief.

a~a~
Joyce A. Doyle, CommissiMel"

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

Distribution

Pamela M. Taylor
North Star Contractors, Inc.
29501 Mayo Trail
Catlettsburg, KY 41129
Brian W. Dougherty, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd., Suite B-201
Nashville, TN 372 15
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006
888

ADMINISTRATIVE LAW JUDGE DECISIONS

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

JUN 2 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRAT ION (MSHA) I
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. SE 95-81-M
A. C. No. 30-00612-05503 X7X
Docket No. SE 95-113-M
A. C . No . 38-00612-05504 X7X

DILLINGHAM CONSTRUCTION
Respondent

Lyman Quarry Mine
DECISION APPROVING SETTLEMENT

Appearances:

Leslie J. Rodriguez, Esq., Office of the Solicitor,
U. S. Department of Labor, Atlanta, Georgia, for
the Petitioner;
Mr . Joe Meyer, Dillingham Construction Company,
Asheville, North Carolina, for Respondent .

Before:

Judge Weisberger

These cases are before me upon petitions for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). A hearing was ~cheduled for May 9,
1995, in Greenville, South Carolina . At the hearing, the Parties
entered into a settlement agreement, and Petitioner moved to
approve the sett l ement . A reduction in penalty from $4800 to
$1200 is proposed. I have considered the representations and
documentation submitted in these cases, and I conclude that the
proffered settlement is appropriat~ under the criteria set forth
in Section llO(i) of the Act .

889

WHEREFORE, the motion for approval of settlement is GRANTED.
It is ORDERED that respondent pay a penalty of $1200 as follows:

$600 is to be paid on May 9, 1995 and $600 is to be. paid on
June 9, 1995.

/'-\ l

/.

I

ltc·'v\

'

~

Avram Weisberger
Administrative Law Judge
Distribution:
Leslie J. Rodriguez, Esq., Office of the Solicitor,
U. S. Department of Labor, 1371 Peachtree Street, NE, Room 339,
Atlanta, GA 30367 (Certified Mail)
Mr . Joe Meyer, Dillingham Construction Company, 340 Dillingham
Circle, Asheville, NC 28805 (Certified Mail)
dcp

890

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

JUN 5 1995
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 93-298
A.C. No. 05-03505-03619

v.

Deserado Mine

WESTERN FUELS-UTAH, INC.,
Respondent
DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.$. Department of Labor, Denver, Colorado,
for Petitioner;
Karl F. Anuta, Esq., Boulder, Colorado,
for Respondent.

Before:

Judge Cetti

This case is before me upon a petition for assessment of
civil penalties under section lOS(d) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act". The
Secretary of Labor on behalf of the Mine Safety and Health Administration (MSHA), seeks civil penalties from Respondent Western
Fuels-Utah, Inc. for the alleged violation of four mine safety
standards contained in 30 C. F.R. Part 75, subpart L involving
fire protection.

Facts Not In Dispute
1. Western Fuels-Utah, Inc., is engaged in mining and selling of bituminous coal in the United States, and its mining
operations affect interstate commerce.
2. Western Fuels-Utah, Inc., is the owner and operator of
Deserado Mine, MSHA I.D. No. 05-03505.
3. Western Fuels-Utah, Inc., is a medium size mine operator
with 2,606,398 tons of production in 1991.
4. Western Fuels-Utah, Inc., is subject to the jurisdiction
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et~ ("the Act").
891

5. The presiding Administrative Law Judge has jurisdiction
in this matter.
6. The subject citations and failure to abate· orders were
properly served by a duly authorized representative of the Secretary upon an agent of Respondent on the dates and places stated
therein, and may be admitted into evidence for the purpose of
establishing issuance and not for the truthfulness or relevancy
of any statements asserted therein.
7 . The exhibits offered by Respondent and the Secretary are
stipulated to be authentic but no stipulation is made as to their
relevance or the truth of the matters asserted therein.
8.
The proposed penalties will not affect Respondent's
ability to continue in business.
II

The Deserado Mine is a medium size underground coal mine
located near Rangely, Rio Blanco County, Colorado. The mine
operates on three shifts, five days a week.
On August 10, 1992, at about 7:10 p.m. during the mine's
evening shift, a fire occurred in the drive unit of the conveyor
belt located in the Number 3 East Mains (EM3) of the Deserado
Mine. The fire was detected when the Conspec computer system
noted a co (carbon monoxide) alarm. Alarms were set off by the
rise in carbon monoxide and the discharge of the dry chemical
fire suppression system at the EM3 conveyor system.
It is undisputed that there were no injuries and that the
fire was immediately reported to MSHA as soon as it was controlled even though it was not a reportable fire in the opinion
of the MSHA inspectors.
On August 11, 1992, the morning right after the swing shift
fire, MSHA personnel went to the mine and inspected the area of
the fire and the equipment at the EM3 belt drive. No violations
were found at the time of this first inspection and no citations
were issued. A week later MSHA personnel returned to the area of
the fire at the mine and issued four citations. Two of the citations involved electrical safety switches, and the other two the
dry chemical powder fire suppress·ion system.
III

There was considerable speculation and different theories
advanced by the parties at the hearing as to what caused the fire
but very little direct or persuasive evidence. The operator's
theory as to what caused the fire as set forth in the first two
pages of Respondent's post-hearing brief is as follows:

892

Logs, trash or coal jammed into the drive of
the belt. Friction created by the belt drive
rollers against the logs ignited the wood
within perhaps one to two minutes after the
jam. The ensuing fire rapidly burned through
the jammed belt. The dry chemical powder
fire suppression system discharged and the
nozzles which were directed at the top and
bottom of the top belt and the top of the
bottom belt, extinguished the fire on the
belt. However, the fire between the drive
rollers was not extinguished. Warned by the
alarms which were set off by the raise in
carbon monoxide and the discharge of the fire
suppression system, miners from the Deserado
Mine, using backup fire hoses, extinguished
the fire in the belt drive, and in the cribbing above the belt drive. The fire which
began at about 7:10 was controlled at about
7:34 P.M. and extinguished by 8:00 P.M.
It was the Secretary's position that the cause of the fire
was either a jumper at the control center that resulted in the
bypass of the sequence and slippage switches for the EM3 conveyor
belt flight or the failure of those switches to function as intended. The Secretary in post-hearing brief at page 7 states:
... Inspector Gore issued [two citations]
for an inoperable sequence switch and .•. an
inoperable switch on the fire suppression
system. The inoperable switches were determined to be the cause of the accident, since
the only other possible cause presented was
jumper at the control center. The mine insists there were no jumpers, leaving us to
conclude that the switches must have been
ineffective.
This was the basis for the issuance of Citation No. 3587226.
Turning now from the speculation and the various theories
advanced by the parties during the hearing and in their posthearing briefs as to what caused the fire, we now take a close
look at each specific citation iss'ued and determine if the preponderance of the evidence presented established the violations
alleged in each citation.
Citation No. 3587226

This citation charges the operator with an S&S violation of
30 C.F.R. § 75.1102. That safety standard in its entirety reads
as follows:

89 3

Underground belt conveyors shall be equipped
with slippage and sequence switches.
The citation issued by Inspector Gary K. Frey, one week
after the fire at the time of the second inspection reads as
follows:
The sequence and slippage switches installed
for the East Mains No. 3 conveyor belt flight
failed to function as intended, in that the
belt drive continued to operate when the East
Mains No. 2 belt was deenergized causing a
coal spillage at the head roller of the No. 3
belt. This condition stalled the belt causing the drive rollers to slip on the belt,
the resulting friction caused a belt fire to
occur; on 08-10-92.
Inspector Gary K. Frey who signed the citation was not
available at the hearing. Although signed by Mr. Frey the citation was written by Inspector Art Gore who was present and testified at the hearing. Mr. Gore was not present, however, at the
time of the initial MSHA inspection of August 11, 1992, the morning immediately ·following the swing shift fire.
Mr. Gore was at
the mine on August 18th when the four citations were issued.
It is undisputed that sequence and slippage switches in
question were installed for the East Main No. 3 conveyor belt
flight.
Both switches were "designed" to perform their proper
function. Both of the switches were properly working before and
after the August 10, 1992 fire and continued in use to the present (time of hearing) without any repair or alteration. During
his inspection of August 18th Inspector Gore did not look at the
switches to find out whether they were functioning or not. His
conclusions were based upon his examination of the electrical
wiring diagrams and the Conspec computer printout.
Inspector
Gore testified:
Q. . . . So looking at the Conspec and the
electrical wiring diagram, you concluded that
the switch must not have been functioning?
A. That's true.
Q. Did you look at the switch to find out if
it was functioning or not?
A. No, I did not.

In item 17 of the citation Inspector Gore states "The system
was examined and no malfunctions were found or occurred at the
time of examination."
. Evidence was presented by Respondent showing that the reliability of the Conspec printout is questionable. Errors were

894

shown to exist in the conspec printout. Credible evidence was
also presented to show the switches in question had been inspected three days before the fire and were functional prior to the
fire, that the switches had not been changed or modified in any
way after the incident, and that the same switches were still in
place, and functional two years later at the time of the hearing.
In another vein, looking at the plain wording of the regulation in question it clearly states that the conveyor shall be
"equipped" with specified equipment. What is the ordinary plain
meaning of the word "equipped". If the transmission of your car
were to suddenly not function properly for a short period of
time, you would not say your car was not "equipped" with a transmission.
Particularly were the transmission for some unknown
reason without any modification or repair appeared to be functioning in a very proper manner within a few minutes or hours
thereafter. Using ordinary plain english you wouldn't say your
car was not "equipped" with a transmission. I also believe that
if the promulgators of the regulation intended to make the sudden
unexpected malfunction of required equipment a citable offense,
they would have worded the regulation differently so that a person of ordinary prudence on reading the regulation would have
known of that intent.
Upon evaluation of all the evidence presented, I find that
the preponderance of the probative evidence fails to establish
that the EM3 belt conveyor was not "equipped with slippage and
sequence switches" as required by 30 C.F.R. § 75.1102. The
citation is vacated.
citation No. 3587227

This citation alleges a violation of 30 C.F.R. § 75.110116(a). The safety · standard in relevant part reads as follows:
30 CFR § 75.1101-16(a)
(a) Each self-contained dry powder chemical
system shall be eguipped with sensing devices
which shall be designed to activate the fire
control system, sound and alarm and stop the
conveyor drive motor in the event of a rise
in temperature, ... (Emphasis added).
Petitioner charges the operator with a 104(a) S&S violation
of the above quoted safety standard. The citation reads as
follows:
Citation No. 3587227
The self-contained dry powder chemical system
installed on the East Mains No. 3 belt flight

895

failed to stop the conveyor drive motors
after the fire suppression system for the No.
3 belt flight was activated. This condition
is believed to have contributed to a belt
fire which occurred on 08-10-92 at this belt
drive.
The record shows the citation was issued on August 18, 1992
at 9:45 a.m. The citation was terminated five (5) minutes later,
at 9:50 a.m. without any change in the self-contained dry powder
chemical system's sensing devices. Inspector Gore who wrote the
citation wrote in item 17 of the citation:
The system was examined and no malfunctions
were found or occurred at the time of examination.
The evidence clearly shows that the dry powder chemical fire
suppression systems was equipped with a sensing device that did
in fact activate (discharge) the fire control system and sounded
the alarm. There is disagreement as to whether or not the fire
suppress system stopped the conveyor drive motor.
Assuming arguendo that it did not stop the conveyor drive motor no persuasive evidence was presented that (in the words of the regulation) it was not "equipped" with a sensing device that was "designed" among other things, to stop the conveyor drive motor.
The undisputed fact that the citation was abated without any
repair, service or modification of this sensing device and continued to function properly after the August 10th fire is very
strong, if not, conclusive evidence that the fire suppression
system was equipped with sensing devices "designed" to stop the
conveyor drive motor in the event of a rise in temperature.
The Secretary, the charging party, has the burden of proof.
On careful evaluation of all the evidence I find that within the
meaning of the safety standard in question, that the preponderance of the evidence presented fails to establish that the selfcontained dry powder chemical system was not "equipped" with
sensing devices "designed" to activate the fire control, sound
the alarm and stop the conveyor drive motor in the event of a
rise in temperature. The citation is vacated.
citation Nos. 3587228 and 3587229

Citation No. 3587228, as amended at the hearing alleges a
violation of 30 C.F . R. § 75.1101-14(a). The citation reads as
follows:
The dry chemical fire extinguishing system
installed at the East Mains No. 3 belt drive
was not installed as required in that it was
measured with a standard rule to contain over

896

81 feet of piping and hose between the chemical container and the furthest nozzle which
was located at the belt take-u p unit.
Up to the time Petitioner modified the citation at the hearing this citation alleged a violation of 30 C. F.R . § 75 . 11079(a) (3) which with resp~ct to dry chemical fire extinguishing
systems requires that the "Hose and pipe shall be as short as
possible; the distance between the chemical container and the
furthest nozzle shall not exceed 50 feet. "
At the commencement of the hearing, without objection, the
Petitioner amended Citation No . 3587228 to allege a violation of
30 C.F.R. § 75.1101 - 14(a) which provides as follows:
(a) Self-contained dry powder chemical
systems shall be installed to protect each
belt-drive, belt takeup, electrical-control s,
gear reducing units a n d 50 feet of fireresistant belt or 150 feet of non- fire resistant belt adjacent to the belt drive .
Turning no~ to the other fire suppression citation , Citation
No. 3587229 al l eges a violation of 30 C.F . R. § 75 . 1101- lS(d)
which reads as . follows:
Nozzles and reservoirs shall be sufficient in
number to provide maximum protection to each
belt, belt take- up, electrical controls and
gear reducing unit .
The citation alleging a violation of the above quoted safety
standard reads as follows:
The reservoirs containing the dry chemical
powder used for fire suppression at the East
Mains No. 3 belt drive was not sufficient in
number to provide maximum protection for this
belt in that on 08-10- 92 a fire occurred, the
fire suppression system was activated, the
dry powder chemical was expelled and failed
to extinguish the fire .
Inspector Vetter inspected the area of the fire at the 3
East Mains section of the mine on August 11, 1992, the morning
after the swing shift fire . Vetter testified that the fire
suppression system was inadequ ate. Alth ough the system sensed
the fire and automatically discharged, it was inadequate because
it failed to completely put out the fire . The miners had to
bring in and use auxiliary water hoses to put out the fire .

89 7

There was only one dry chemical powder reservoir and 81 feet
of pipe from the reservoir to the discharge nozzles. This length
of pipe made it very difficult on discharge for the system to
adequately carry the dry powder chemical through this length of
pipe to the nozzles and expel the chemical so as to provide maximum protection particularly to the "belt take-up".
Inspector Vetter testified:
A The pipe is to carry this dry powder to
the nozzles . If there's an unl i mited amount
of piping in the system, then it stands to
reason that it will just more or less stay in
the system. The chemical won't be expelled.
The energy that's forcing this chemical
through the system is dissipated throughout
the system and it's ineffective when it
reaches its final destination.
It might have expelled some, but the majority
of it, I believe, was still left in the piping that transfers this chemical from the
reservoir to the nozzles.

Q

Okay. The belt -- and just s o we're
clear, on this belt takeup unit, did the
fire spread that far?

A

No, it didn't.

Q

Was this an area that was washed down by
the hoses, do you know?

A

The takeup unit?

Q

Yea

A

No. No, it didn't show a sign of being
washed down

Q

Okay. So that was a place that was easier
to observe how much, if any, chemical was
expelled; is that correct?

A

Yes

With respect as to the amount of the dry chemical expelled
in the area of the take-up unit, Vetter testified:
A What I saw was just a sprinkling of dry
powder chemical. Normally, it's a blanket of

89 8

yellow substance and this was just a dribbling or a sprinkle of dry powder chemical.
Vetter based upon his observations of the amount of dry
chemical he found at the belt take-up unit testified that if the
belt take-up unit had been on fire ther.e wasn't enough chemical
expelled out of that nozzle to adequately cover the take-up unit
and put out the fire.
I credit Inspector Vetter's testimony and find the preponderance of the evidence established a violation of 30 C.F.R.
§ 75.1101.
The violation was abated by installing a second dry chemical
reservoir which considerably shortened the length of the needed
piping to less than 50 feet from each reservoir to the nozzles
through which the chemical is expelled .
This is t~e same abatement action that terminated the
violation of citation No. 3587228 and the corresponding 104(b)
order.
Considering this fact along with the evidence presented
with respect to these two fire suppression citations leads me to
the conclusion that Citation No. 3587228 is duplicative and along
with its corresponding 104(b) order should be vacated and Citation No. 3587229 and its corresponding 104(b) order should be
affirmed.
Inspector Vetter found the violation in Citation No. 3243029
significant and substantial {S&S). It is well established that a
violation is S&S if, based on the particular facts surrounding
the violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature. Cement Division, National Gypsum co. 3
FMSHRC 822, 825-26 (April 1981). In Mathies Coal Co. 6 FMSHRC 1
(January 1984), the Commission explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial .•. , the Secretary of Labor must
prove;
(1) the underlying violation of a
mandatory safety standard; ... (2) a discrete
safety hazard -- that is, a measure of danger
to safety -- contributed to by the violation;
(3) a reasonable likelihood that the hazard
contributed to will result in an injury; and
(4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
6 FMSHRC at 3-4. See also Austin Power, Inc. v. Secretary, 861
F.2d 99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
(December 1987) {approving Mathies criteria.

899

The Commission has held 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. 11 U.S. Steel Mining Co. 6
FMSHRC 1834, 1836 (August 1984) (emphasis in original).
The commission has consistently held that evaluation of the
reasonable likelihood of injury should be made assuming continued
normal mining operations and must be based upon the particular
facts surrounding the violation in issue. Texasgulf, Inc. 10
FMSHRC 498, 500-01 (April 1988).
This is not a case where the Judge is asked to assume an
emergency situation in determining whether the violation is
significant and substantial (S&S). In this case there was no
need to make such an assumption as there definitely was an
emergency. The belt foreman Nepp reported that it was an "uncontrolled fire" and the mine rescue team was notified that the mine
had an emergency.
(Tr. 54-55). The fire suppression system at
EM3 conveyor was clearly inadequate. It failed to extinguish the
belt fire. The conveyor belt burned in two and the fire spread
to the cribbing above the belt drive. It generated a lot of
smoke. Miners \were evacuated from the mine except for the few
miners that remained to fight the fire with auxiliary water
hoses.
Fortunately no miner was injured. Nevertheless there was a
serious emergency with reasonable likelihood of serious injury
from the fire, from smoke inhalation and from the hazard of
fighting an underground coal mine fire with auxiliary hoses. I
agree with Inspector Vetter that this violation of the fire suppression standard was a significant and substantial violation.
The evidence presented established a violation of a mandatory
safety standard, a significant measure of danger to safety that
was significantly contributed to by the violation and a reasonable likelihood that the hazard contributed to would result in
injury of a reasonable serious nature . The preponderance of the
evidence established a significant and substantial violation.
PENALTY
The Deserado Mine is a medium size underground coal mine.
The mine failed to abate the serious violation charged in the
fire suppression citations within the one week set for abatement
by the mine inspector. There was no reasonable excuse for this
failure to timely abate. The violation was very promptly abated
only a£ter MSHA issued the 104(b) order.
The gravity of the violation charged in Citation No. 3587229
is high. A fire in an underground coal mine is a serious hazard.
A belt fire must be extinguished immediately because of the

900

serious potential for harm that can result from the fire and
smoke, particularly if the fire spreads. A fire in an underground coal mine such as we have in this case is reasonably
likely to result in a serious injury and can result in tragic
loss of life.
Considering the statutory criteria enumerated in section
llO(i) of the Act, particularly the high gravity of this S&S
violation of the fire suppression standard I assess a civil
penalty of $4,000.00.
ORDER
In view of the foregoing findings and conclusion it is
ORDERED that :
1.

Citation Nos. 3587225 and 3587226 are VACATED.

2.
Citation No. 3587228 along with its corresponding 104(b)
order is VACATED .
2.
Citation No. 3587229 including its S&S designation and
its corresponding 104(b) order are AFFIRMED and a penalty of
$4,000.00 is assessed for the violation of 30 C.F.R. § 75.110115 ( d) •

3 . RESPONDENT SHALL PAY a civil penalty of $4,000.00 to
MSHA within 40 days of this decision. Upon receipt of payment,
this case is dismissed.

qg~'ftlc~
Administrative Law Judge
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Karl F. Anuta, Esq ., WESTERN FUELS-UTAH, INC., 1720 14th Street,
P.O. Box 1001, Boulder, co 80306
(Certified Mail)
/sh

901

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

5 1995
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 93-401-M
A.C . No. 48-01459-05511

v.

Laramie County Crusher

LARAMIE COUNTY ROAD & BRIDGE,
Respondent
DECISION

Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
Petitioner;
Roberta A. Coates, Esq ., Laramie County Attorney,
Cheyenne, Wyoming, for Respondent.

Before:

Judge Manning

This case is before me on a petition for assessment of a
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against Laramie
County Road & Bridge ("Laramie County"), pursuant to sections 105
and 110 of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. §§ 815 and 820. The petition alleges a single violation
of the Secretary's safety standards. For the reasons set forth
below, I affirm the citation and assess a civil penalty in the
amount of $250.00.
A hearing was held in this case before Administrative Law
Judge John J. Morris, in Cheyenne, Wyoming. The parties presented testimony and documentary ~vidence, but waived posthearing briefs. This case was reassigned to me on April 24,
1995, for an appropriate resolution.
I.

DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Laramie County Crusher is operated by the government of
Laramie County, Wyoming. The crusher supplies gr~vel for use on
county roads. The citation that is the subject of this proceed902

ing was issued at the cone crusher (the " crusher") by MSHA Inspector Arthur L . Ellis on March 24, 1993.
Inspector Ellis observed an employee of Laramie County
standing on the lip of the crusher .
(Tr. 13). He believed that
a falling hazard was presented and issued a combination section
107(a) imminent danger ·order and section 104(a) citation (the
"citation"). The citation states:
An employee was observed standing on a
narrow lip of cone crusher, exposing himself
to the possibility of falling approximately
(12') 260 cm to the ground below. The employee was not wearing a safety belt and
line. The employee was removing rocks from
the cone crusher, which was bound up with
rocks and would not operate.
The inspector stated on the citation that the violation was
highly likely to cause a permanently disabling injury and was of
a significant and substantial nature. He determined that Laramie
County was moderately negligent. The citation was immediately
abated when the foreman removed the employee from the lip of the
crusher . 1
The citation charges Laramie County with a violation of 30
C.F . R. § 56 . 15005, which provides, in pertinent part, that "safety belts and lines shall be worn when persons work where there is
a danger of falling...
The inspector believed that it was
highly likely that the employee would fall because he was using
both hands to lift rocks off the screen that covered the crusher
and throw them over the side of the crusher.
(Tr. 19). He testified that "it would be easy for him " to lose his balance while
performing that task and fall off the crusher.
Id. Based on
MSHA reports on falling hazards, the inspector concluded that the
employee could have sustained serious back, neck, or head injuries .
(Tr. 21-22) .
Inspector Ellis determined that the employee
was not using a safety belt and line, and issued the citation on
that basis.
The crusher is a portable trailer-mounted cone crusher that
is fed by a conveyor belt.
(Tr. 12). The inspector measured the
distance between the lip of the crusher and the ground at 12
feet.
(Tr. 13). The lip is near the top of the crusher.
Id.
The issue of whether the cited condition presented an
imminent danger was not contested by Laramie County or litigated
in this proceeding . Accordingly, I make no findings in that
regard.
903

The configuration of the crusher and the position of the employee
when he was leaning over the crusher is depicted on Ex. 2, which
is a photograph taken by Inspector Ellis at the time he issued
the citation.
(Tr. 14). Inspector Ellis testified that he also
observed the employee standing with both feet on the lip of the
crusher.
(Tr. 18, 36).
Laramie County does not dispute that its employee was at the
lip of the crusher, leaning over the crusher, and throwing rocks
out.
It maintains that the ground was only eight feet below this
lip, based on measurements taken by Donald R. Beard, Laramie
County Public Works Director, a few days after the citation was
issued .
(Tr . 49). It also maintains that the cited safety
standard is so vague as to be unreasonable, arbitrary, and capricious and, therefore, contends that the standard is unenforceable as applied to the facts of this case. Laramie County contends that Inspector Ellis overstated the hazard presented, the
degree of any injuries that might be sustained, and the negligence of the operator. In addition, it argues that the use of a
safety belt and line would increase the danger of a serious injury because an employee would be snapped into the side of the
heavy metal crusher if he fell.
Without a safety belt, an employee could jump clear of the metal equipment and avoid serious
injury if he lo·s t his balance. Finally, Laramie County maintains
that the citation should not have been specially assessed under
30 C.F.R. § 100.5.
The safety standard at section 56.15005 is, by necessity,
broadly worded so that it can be applied to a wide range of
circumstances. The Commission has held that a safety standard
cannot be "so incomplete, vague, indefinite or uncertain that
( persons] of common intelligence must necessarily guess at its
meaning and differ as to its application." Alabama By-Products
Corp., 4 FMSHRC 2128, 2129 (December 1982} (citation omitted).
The Commission has determined that adequate notice of the requirements of a broadly worded standard is provided if a reasonably prudent person familiar with the mining industry and the
protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard.
Ideal
Cement Co., 12 FMSHRC 2409, 2416 (November 1990); Lanham Coal
Co., 13 FMSHRC 1341, 1343 (September 1991).
In Great Western Electric Company, 5 FMSHRC 840 (May 1983},
the Commission affirmed a violation of this safety standard
where an employee was installing a light fixture while standing
on a ladder about 18 feet above the ground.
In its decision, the
Commission stated that the reasonably prudent person test for
this standard is "whether an informed, reasonably prudent person
would recognize a danger of falling warranting the wearing of
safety belts and lines." 5 FMSHRC at 842.

90 4

In Lanham coal co., a dump truck driver was injured when he
fell ten feet from the top of his truck while trying to place a
tarp over the load. Following an investigation, MSHl\ cited the
mine operator under section 77.1710, which is similar to section
56.15005, because the truck driver was not using a safety belt
and line.
(13 FMSHRC at 1342). The mine operator argued that it
did not consider the cited safety standard to be applicable to
the tarping of trucks and was not given any notice that it would
be applied in such a manner. The Commission held that a safety
standard must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act
accordingly . " 13 FMSHRC at 1343 (quoting Grayned v. city of
Rockford, 408 U. S . 104, 109 (1972)) . Because the administrative
law judge affirmed the citation without considering this issue,
the Commission remanded the proceeding to the judge for application of these principles .
The record establishes that the employee in the present case
was standing and leaning over the top of the crusher approximately eight to twelve feet above the ground. He was reaching in the
crusher to pick up rocks and was throwing the rocks on the ground
behind him . Thus, he was not stationary but was moving about as
he worked. The eJ,llployee was not wearing a safety belt or line,
nor was he tied off in any manner. Safety belts and lines were
not available at the job site. Inspector Ellis was concerned
that the employee could fall and sustain a serious injury if he
should lose his balance while throwing rocks or moving around.
I credit his testimony in this regard.
Based on the evidence, I find that a reasonably prudent person would have recognized that the employee was in danger of
falling and that use of a safety line was warranted. The position of the employee on the lip of the crusher while he cleared
loose rock supports a reasonable conclusion that he was in a
precarious location which exposed him to a falling hazard.
Such
falls are usually unexpected and may occur at any time while an
employee is preoccupied with his work. "Even a skilled employee
may suffer a lapse of attentiveness, either from fatigue or environmental distractions, which could result in a fall. 11 Great
Western Electric, 5 FMSHRC at 842 . A safety line or other means
of protection helps prevent injury in the event of a fall.
I also find that a reasonably prudent person would have
recognized that the safety standard applied in this instance. On
remand in Lanham Coal Co., the administrative law judge vacated
the citation because the undisputed evidence established that
MSHA had never applied the safety line standard to the tarping of
dump trucks.
(13 FMSHRC 1710, 1712 (October 1991)). The safety
standard is frequently applied to -employees working on crushers
and other similar equipment, however. See, for example, Adams

905

,,

Stone Corp., 15 FMSHRC 1080 {June 1993}{ALJ}. One of the purposes of the safety standard is the prevention of dangerous falls
from mining equipment.
Laramie County's argument that a safety belt and line could
increase the likelihood of a serious injury is not well founded.
The argument is based oh the use of a six-foot safety line to
protect against a eight-foot fall.
Inspector Ellis testified
that other mine operators use safety lines in similar situations,
so there is no reason why Laramie county cannot devise a safety
line that protects miners without creating other hazards or
interfering with their work.
Based on the above, I conclude that the Secretary established a violation of 30 C.F.R. § 56.15005. 2 I also conclude
that the violation was S&S. I find that the evidence establishes
that there was a reasonable likelihood that the hazard contributed to would result in an injury of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 {January 1984). As Inspector
Ellis stated at the hearing, miners have been seriously injured
and killed as a result of falling from heights of eight to twelve
feet.
II .

civil Penalty Assessment

Section llO(i) of the Mine Act, 30 U.S.C. § 820(i), sets out
six criteria to be considered in determining the appropriate
civil penalty. Based on the criteria in section llO(i) of the
Mine Act, 30 u . s.c. § 820(i), I assess a penalty of $250.00 for
the violation. As stated above, Laramie County maintains that
the citation should not have been specially assessed under 30
C.F.R. § 100.5 . Because the penalty I have assessed in this proceeding is based on the evidence developed at the hearing, the
Secretary's penalty regulations at 30 C.F.R. § Part 100 are not
relevant. Sellersburg Stone co., 5 FMSHRC 287 (March 1983),
aff'd, 736 F.2d 1147, 1151-1152 (7th Cir. 1984).
I have not considered those regulations in assessing a penalty in this case.

2

In its answer to the petition for assessment of penalty,
Laramie County argued that because the product from the crusher
is used exclusively on the roads 'of Laramie county, Wyoming, the
crusher does not affect interstate commerce. Accordingly, it
maintained that MSHA does not have jurisdiction over the crusher
under 30 U.S.C. § 803. It did not raise this issue at the
hearing.
The Commission and the courts have consistently held
that Congress intended to exercise its authority to the maximum
extent feasible when it enacted the Mine Act.
See, for example,
Jerry Ike Harless Towing, Inc., 16 FMSHRC 683, 686 (April 1994);
United States v. Lake, 985 F.2d 265, 267 -69 (6th Cir. 1993).
906

I find that Laramie county was issued four citations in the

24 months preceding the inspection in this case.

(Ex. 1).

I

also find that Laramie County is a very small operator with about
5,000 man-hours worked in 1992.
(Tr. 6).
I find that the civil
penalty assessed in this decision would not affect Laramie County's ability to continue in business. The conditions cited by
the inspector were all timely abated. I find that Laramie County
made good faith efforts to comply with MSHA's safety standards.
I also find that Laramie County's negligence was low to moderate with respect to the violation. The Mine Act is a strict
liability statute. Asarco, Inc. v. FMSHRC, 868 F.2d 1195 (10th
Cir. 1989). A citation issued by MSHA for a violation of a safety standard must be affirmed if the facts show that the standard
was violated, even if the mine operator was not negligent. The
degree of the mine operator's negligence, however, is an important factor in determining the civil penalty.

Laramie County received a combination citation/imminent
danger order on April 17, 1990, from a different MSHA inspector
when he observed an employee on the crusher removing rock in a
similar manner while the crusher was operating. (Ex. A). The
inspector charged Laramie County with a violation of 30 C.F.R.
§ 56.14105, because the equipment was operating while the task
was preformed. Mr. Beard testified that during abatement discussions between Laramie County's foreman and the inspector,
Laramie County was led to believe that if it installed a screen
across the top of the crusher and deenergized the crusher whenever rock was removed by hand, it would be complying with MSHA's
requirements. (Tr. 44, 56-57). Mr. Beard stated that the MSHA
inspector did not mention the need for safety belts and lines.
Id.
The Secretary contends that because a different safety
standard was cited, a discussion of safety lines by the inspector
was not necessary. He also points to the "Action to Terminate"
section of the previous citation where it states that Laramie
County's foreman agreed that "no one would try to (remove rock
from the crusher] until the power was off or until safe access
was provided and there is a secure covering [for the crusher]
.... "
(Ex. A). He maintains that Laramie County should have
known that "safe access" referred to the use of safety lines.
As stated above, Mr. Beard stated that Laramie County did not
interpret the citation or the discussions to require the use of
safety lines.
(Tr. 57).
I credit his testimony in this regard.
I find that, even if Laramie County incorrectly interpreted the
prior inspector's actions, it believed, in good faith, that it
was complying with MSHA's requirements as a result of these discussions. Accordingly, I find that Laramie County was not as
negligent as MSHA determined.
90 7

III.

ORDER

Accordingly, Citation No. 4124092 is AFFIRMED, · and Laramie
County Road & Bridge is ORDERED TO PAY the Secretary of Labor the
sum of $250.00 within 40 days of the date of this decision .
.. - ~

)

Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Roberta A. Coates, Esq., Laramie County Attorney, 1825 Carey
Avenue, Cheyenne, WY 82001 (Certified Mail)

RWM

908

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

JUN

61995

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 94-181-M
A. C. No. 23-01785-05528

v.
Moberly Stone Company
MOBERLY STONE COMPANY,
Respondent

DECI SION

Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U. S. Department of Labor, Denver, Colorado, for
the Secretary;
No appearance for Respondent.

Before:

Judge Maurer
STATEMENT OF THE CASE

This proceeding concerns a proposal for assessment of civil
penalty filed by the petitioner against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S . C. § 820(a), seeking a civil penalty assessment of
$385 for five alleged violations of the mandatory safety
standards found in 30 C.F.R . Part 56 .
The respondent contested th~ violations and requested a
hearing. Pursuant to notice, a hearing was convened in Moberly,
Missouri , on March 7, 1995 , and while the petitioner appeared,
the respondent did not . In view of the respondent's failure to
a ppear, the hearing proceeded without them. For r e asons
d iscussed later in this decision, respondent is held to be in
default, and is deemed to have waived its opportunity to be
fur ther heard in this matter.

909

..
.·

.J:SSUE

The issue presented in this case is whether the petitioner
has established the violations cited, and, if so, the appropriate
civil penalty that should be assessed for the violations.
MSHA'S TESTIMONY AND EVIDENCE

The following MSHA Exhibits were received in evidence in
this proceeding:
1. A copy of the proposed assessment data sheet
(Exhibit P-1 ) .
2. A copy of section 104(a) Citation No. 4322264, issued by
Inspector LeRoy Parmalee on April 19, 1994 (Exhibit P-2) .

3. A copy of section 104(a) Citation No. 4322265, issued by
Inspector LeRoy Parmalee on April 19, 1994 (Exhibit P-3).
4. A copy of section 104(a) Citation No. 4322266, issued by
Inspector LeRoy Parmalee on April 19, 1994 (Exhibit P-4).
A copy of section 104(a) Citation No. 4322267, issued by
Inspector LeRoy Parmalee on April 19, 1994 (Exhibit P-5).
5.

A copy of section 104(a) Citation No. 4322268, issued by
Inspector LeRoy Parmalee on April 20, 1994 (Exhibit P-6) .
6.

The petitioner also presented oral testimony on the record
at the hearing and based on all the evidence presented, I
conclude and find that the violations have been established, and
accordingly, the contested citations are affirmed as issued.
RESPONDENT'S FAILURE TO APPEAR AT THE HEABING
The record in this case indicates that after first giving
the parties an opportunity to select their own trial date by
Prehearing Order dated October 25, 1994, a Notice of Hearing

9lo

dated January 12, 1995, setting this case down for hearing in
Moberly, Missouri, on March 7, 1995, was received by respondent
on January 17, 1995. Respondent received the afore~aid
Prehearing Order on October 27, 1994, but opted not to respond.
Respondent was first heard from by fax on February 15, 1995,
requesting that the hearing be moved to Burlington, Iowa, on
either a Monday morning or a Friday afternoon.
During a telephone conference between myself and the
parties, where the petitioner objected to moving the date or
location of the trial, I denied the respondent's motion and
informed them that the hearing would proceed as scheduled.
On February 26, 1995, respondent faxed a request for
reconsideration of that denial of their motion for continuance,
wherein it is erroneously stated that: 11 [w]e were not given an
opportunity to review our schedule before the date was selected
by the Comrnissiqn and MSHA. 11 In point of fact, the trial date
was selected entirely by the undersigned.
One of the purposes of the prehearing order is for the
parties to mutually agree upon a trial date, and I will in all
likelihood, accede to their wishes. However, if the parties
cannot or do not present me with a mutually agreeable trial date,
ultimately I must select one myself. But for the respondent to
state they had no opportunity to have an input into the selection
of a trial date is patently false. A prehearing order inviting
their participation in selecting a trial date and by implication,
a location, was received by them on October 27, 1994, by
certified mail. They simply neglected to respond to it in a
timely fashion, or for that matter, at all.
The respondent's prehearing motions to continue t .h e hearing
and change the venue of the hearing were both vigorously opposed
by the Secretary on common sense grounds . The Secretary objected
to the change in venue because the mine is located at Moberly,
Missouri, and the witnesses for the Secretary are also located in
central Missouri, as are the respondent's witnesses, if it should
have chosen to present any testimony. The only reason advanced
for the requested change of loc~tion is that respondent's
attorney, whoever that might be, lives in Iowa. I note that

911

there has been no entry of appearance in the record by any
attorney, anywhere. Be that as it may, in any event, it would
have been more cost effective for all the parties 1 if
respondent's attorney traveled to Moberly for the hearing, rather
than all of the witnesses traveling to Iowa to accommodate him.
The Secretary also objected to changing the date of the hearing
since all the arrangements for both lawyer and witnesses had
already been made to travel to Moberly on March 7. These
objections were well-taken, and respondent's motions were denied.
As previously stated above, the hearing proceeded in the
respondent's absence. The Secretary put in his case and then by
counsel, moved that a default judgment be entered against the
respondent pursuant to Commission Rul e 66(b) , 29 C.F.R.
§ 2700.66(b) , 2 and that the five citations at bar be affirmed and
that the proposed civil penalty of $385 be assessed against the
respondent.
Under the circumstances in this record, I conclude and find
that the respondent has waived its right to be heard further in
this matter and that it is in default, and that the violations,
as alleged, have been proven by a preponderance of the evidence,
and that it is appropriate to assess the respondent the proposed
civil penalty of $385.

See generally, 29 C.F.R. § 2700.51, which instructs the
presiding judge to consider the convenience of ~ parties and
their witnesses in assigning a hearing site.
1

29 C.F.R. § 2700.66(b) provides as follows:
Failure to attend hearing.
If a party fails to attend a
scheduled hearing, the judge·, where appropriate, may find the party
in default or dismiss the proceeding without issuing an order to
show cause.
2

912

ORDER
Respondent is ORDERED TO PAY a civil penalty of $385 to MSHA
within 30 days of the date of this decision and upon receipt of
payment, this matter is DISMISSED.

~

~ ·-

/Maurer

i~trative

Law Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor,
u. S. Department of Labor, 1999 Broadway, Suite 1600, Denver,
80202-5716 (Certified Mail)
Mr. P. R. Orr, P. 0. Box 582, Burlington, IA 52601 (Certified
Mail)
dcp

913

co

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF AOHINISTRATIVE LAY Jl.{)GES
2 SICYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

.JUN

7 1995

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

CIVIL PENALTY PROCEEDING
Docket No. VA 94-64
A.C. No. 44-06483-03536 A

v.
Mine No. 1
MICHAEL GRIFFITH, II, Employed
by TEAL MINING, INCORPORATED,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. VA 94-65
A.C. No. 44-06483-03538 A

v.

Mine No. 1
MICHAEL GRIFFITH, Employed by
by TEAL MINING, INCORPORATED,
Respondent
DECISION

Appearances:

Before:

Edward H. Fitch, Esq., Office of the
Solicitor, Arlington, Virginia, on behalf of
the Secretary of Labor;
Michael Griffith and Michael Griffith, II, Jewell
Ridge, Virginia, pro se.
Judge Melick

These cases are before me upon petitions for civil penalty
filed by the Secretary of Labor pursuant to Section llO{c} of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq., the "Act" charging Michael Griffith and his son,
Michael Griffith, II as agents of corporate mine operator Teal
Mining, Incorporated {Teal Mining) with knowingly authorizing,
ordering or carrying out three admitted violations of mandatory
standards and seeking civil penalties of $2,200 and $2,800
respectively. The general issues before me are whether Michael
Griffith and/or Michael Griffith, II were agents of the corporate
mine operator as alleged and, if so, whether they knowingly
authorized, ordered or carried out the admitted violations. If
the above issues are resolved in the affirmative, then it will be
necessary to determine appropriate civil penalties t-0 be assessed
considering the relevant criteria under Section 110(i) of the
Act.
914

As a preliminary matter it should be noted that seven
exhibits (Government Exhibit Nos. 11 - 17) offered by the
Secretary and admitted at hearing under Commission Rule 63,
29 C.F.R. § 2700.63, are given no weight in this decision. The
exhibits consist of summaries of witness interviews prepared from
the notes of an investigator for the Mine Safety and Health
Administration (MSHA). The subjects of these interviews were
neither subpoenaed nor called to testify at hearings on the
charges against these pro se Respondents nor does it appear that
Respondents had any notice before hearing that the Secretary
would be offering these interview summaries as evidence. The
Respondents are also each charged with three quasi-criminal
violations under Section llO(c) of the Act 1 subjecting them to
$150,000 in penalties each under Section llO{a) of the Act.
Under the circumstances they are entitled to a federal
constitutional right of confrontation. Maryland v. Craig, 497
U.S. 836 (1990); Greene v. McElroy, 360 U.S. 474 {1959); Goldberg
v. Kelly, 397 U.S. 254 (1970). See also David B. Sweet,
Annotation, Federal constitutional Right to Confront Witnesses Supreme Court Cases, 98 L. Ed. 2d 1115.
The inability of the Respondents to confront and cross
examine these critical witnesses at hearing and thereby test
their recollection and the accuracy of their purported statements
and to compel them to stand before this tribunal to test their
demeanor would constitute a denial of due process.
As the Supreme Court stated in Greene v. McElroy:
"Certain principles have remained relatively immutable in
our jurisprudence. One of these is that where governmental
action seriously injures an individual, and the
reasonableness of the action depends on fact findings, the
evidence used to prove the Government's case must be
disclosed to the individual so that he has an opportunity to
show that it is untrue. While this is important in the case
1

Section llO(c) provides as follows:

Whenever a corporate operator violates a mandatory
health or safety standard or knowingly violates or fails or
refuses to comply with any order issued under this Act or
any order incorporated in a ·final decision issued under this
Act, except an order incorporated in a decision issued under
subsection (a) or section 105(c), any director, officer, or
agent of such corporation who knowingly authorized, ordered,
or carried out such violation, failure or refusal shall be
subject to the same civil penalties, fines, and imprisonment
that may be imposed upon a person under subsections (a) and
(d) •

915

of documentary evidence, it is even more important where the
evidence consists of the testimony of individuals whose
memory might be faulty or who, in fact, might be perjurers
or persons motivated by malice, vindictiveness,
intolerance, prejudice, or jealousy. We have formalized
these protections in the requirements of confrontation and
cross-examination. They have ancient roots. They find
expression in th~ Sixth Amendment which provides that in all
criminal cases the accused shall enjoy the right "to be
confronted with the witnesses against him." This court has
been zealous to protect these rights from erosion. It has
spoken out not only in criminal cases, e.g., Mattox v.
United States, 156 US 237 , 242-244 , 39 Led 409-411, 15 S Ct
3 37 ; Kirby v . United States, 174 US 47, 43 Led 890, 19 S ct
57 4 ; Motes v . United States, 178 US 458, 474, 44 Led 1150,
1156, 20 S Ct 993; Re Oliver, 333 US 257, 273, 92 L ed 682,
694, 68 S Ct 499, but also in all types of cases where
administrative and regulatory actions were under scrutiny.
E . g., Southern R. Co. v. Virginia, 290 US 190, 78 Led 260,
54 s ct 148; Ohio Bell Tel. co. v. Public Utilities Com. 301
US 292, 81 L ed 1093, 57 S ct 724; Morgan v. United States,
304 us 1, 19, 82 L ed 1129, 1133, 58 s ct 773, 999; Carter
v. Kubler, 320 US 243, 88 L ed 26, 64 S ct 1; Reilly v.
Pinkus, 338 us 269, 94 L ed 63, 70 s Ct 110. Nor, as it has
been pointed out, has Congress ignored these fundamental
requirements in enacting regulatory legislation . Joint
Anti-Fascist Refugee Committee v. McGrath, 341 us 123, 168,
169, 95 Led 817, 852, 71 s Ct 624 (concurring opinion).
Professor Wigmore, commenting on the importance of crossexamination, states in his treatise, 5 Wigmore on Evidence (3d
ed. 1940) § 1367:
"For two centuries past, the policy of the AngloArnerican system of Evidence has been to regard the necessity
of testing by cross-examination as a vital feature of law.
The belief that no safeguard for testing the value of human
statements is comparable to that furnished by crossexamination, and the conviction that no statement (unless by
special exception) should be used as testimony until it has
been probed and sublimated by that test, has found
increasing strength in lengthening experience."
The limited exception to the right to confrontation provided
under certain circumstances for the admission of written reports
by an examining physician in certain administrative proceedings
set forth in Richardson v . Perales, 402 U.S. 389, (1971), is, of
course, not applicable to these cases.
Under the circumstances
and within the above framework of law, it would be
constitutionally impermissible to give any weight to the seven
interview summaries at issue.

916

Even assuming, arguendo, there is no constitutional
infirmity in giving weight to these exhibits, they are, in any

event, untrustworthy and entitled to no weight. These interview
summaries were not taken under oath, were not signed nor
apparently reviewed by the purported authors, and, indeed, are
not even verbatim statements but only swnmaries of interviews
based upon the investigator's notes. It appears, moreover, that
language attributed to witnesses may have actually been authored
by the special investigator himself -- for example, the reference
to "the controversial conversations" attributed to
Richard Roberts (Government Exhibit No. 14, page 2). The
investigator also acknowledged that on at least four occasions in
the statement of one witness he failed to accurately attribute
statements to their true author, i.e. statements purportedly of
Michael Griffith, II, attributed to Michael Griffith, Sr.
(Government Exhibit No . 10, page 2). In addition, the
investigator acknowledged that, while apparently relying upon the
statement of Howard Cordle in reaching investigative conclusions,
he did not find the statement to be 11 100 percent truthful".
Accordingly, the inaccuracy and lack of credibility of these
exhibits undermines their potential probative value. They would,
therefore, in any event, be entitled to no weight.
As previous·1y noted, the underlying violations charged in
these cases and incorporated in Citation No. 4002030, and Orders
Nos. 4002031 and 3799489 are not disputed. Citation No. 4002030
alleges a February 9, 1993, violation of the approved mine
ventilation plan under the mandatory standard at 30 C.F.R.
§ 75.370(a) (1) and charges as follows:
The main return from the surface to the 2nd right mains was
not maintained to ensure safe passage at all times of
persons, in that water was allowed to accumulate 18 inches
to 32 inches in depths, at approximately five (5) locations.
The mining height is approximately 40 inches. Foreman
Howard Cordle stated that he knew of the conditions, water
accumulations was observed and citations issued during the
last inspection. The approved ventilation, methane and dust
control plan requires that return entries be maintained free
of water to ensure safe passage.
In relevant part the applicable ventilation plan provides as
follows:
Water which will inhibit safe travel or bleeder function
shall not be permitted to accumulate in bleeders. It shall
be pumped or drained. (See Government Exhibit No. 6).
Order No. 4002031 alleges a violation of the same provisions
of the mine ventilation plan on 'February 9, 1993, but charges as
follows:

917

The ventilation, methane and dust control plan was not being
complied with. The bleeder entries provided for the 3rd
left panel (pillar out area) off of the mains were not
adequately maintained and free of water to permit safe
travel. Water was allowed to accumulate from 15 inches to
40 inches in depth, beginning 60 feet inby survey station
number 553 and extended (sic] inby for an unknown distance.
The results of the weekly examinations conducted by
Edward Cordle, Foreman, on 02-07-93 stated he could not
traveled (sic] all of the bleeder because of water.
Order No. 37949489 alleges a June 3, 1993, violation of the
mine operator's roof control plan under the mandatory standard at
3 0 C. F.R. § 75.220 and charges as follows:
The approved roof control plan was not being complied with
in that the No. 6 entry (left conveyor entry) 001 Section is
21 to 22 feet wide for a distance of approximately 150 feet.
starting 70 feet inby survey station No. 1351 and extending
inby to the face. Also the last row of roof bolts in the
face is 6 to 8 feet outby the face. The approved roof
control plan sketch shows the entry not to exceed 20 feet in
width and .roof bolts installed within 4 feet of the face .
It is undisputed that the operator's roof control plan
limits entries, including the belt conveyer entry at issue
herein, to a width of 20 feet (Government Exhibit No . 18).
There is no dispute that as of March 18, 1993, Michael
Griffith (senior) became a corporate officer of Teal Mining,
namely Secretary/Treasurer and remained in that capacity at the
time of the June 3, 1993, violation charged in Order No. 3799489.
(Government Exhibit No. 19). He was, therefore, in a category of
agent specifically set forth in Section llO(c) of the Act as of
the date of the June 3, 1993, violation. The Secretary maintains
that Griffith (senior) was also an agent of Teal Mining when the
two violations were committed on February 9, 1993, based upon the
observations of the issuing inspector (Inspector Roger Vance) and
upon the interview summaries (Government Exhibit Nos. 11-17)
which I have found to be entitled to no weight. 2
The term "agent" is defined in section 3(e) of the Act as
"any person charged with responsibility for the operation of all
or a part of a coal or other mine or the supervision of the
miners in a coal or other mine." In attempting to show the
agency status of Michael Griffith {senior) the secretary argues,
but without explanation or record support, that the
2

The parties were advised by notice issued April 5, 1995,
that their briefs should be based upon evidence other than
Government Exhibit Nos. 11-17).

918

"relationship that existed between him and his son clearly
implied an agency in fact." In addition, the Secretary maintains
that Griffith's presence at the mine was "consistent throughout
the time that the mine was opened . " The secretary again fails,
however, to cite any credible record evidence to support this
conclusion or show how that evidence in any event supports a
finding of "agency". Indeed, aside from his own admissions that
he was around the mine beginning in October 1992 and in January,
the only credible evidence that Griffith (senior) was present on
any particular date came through the testimony of MSHA Inspector
Roger Vance. Vance testified that, at the time of his inspection
on October 21, 1992, he saw Griffith (senior) at the mine but at
that time he was performing only work as a mechanic . The only
other time Vance had observed Griffith (senior) at the mi ne was
during the February 9 inspection when Griffith, who was then
apparently incapacitated by injuries, was present but apparently
not performing any work.
While this evidence does indicate that
Griffith (senior) was present at the mine on occasion this
presence, standing alone without any evidence that he was then
"charged with any responsibility for the operation of all or a
part" of the mine or with the "supervision of the miners" is
hardly sufficient to establish his agency under the Act at the
time of the February 9, 1993, violations.
Griffith's lack of involvement in a responsible capacity is
further supported by his own testimony that he had nothing to do
with his son's mine until around October (presumably 1992) when
he volunteered to help as a mechanic/electrician to keep the
equipment operating. Michael Griffith, II . corroborated his
father's lack of authority at the mine characterizing his initial
participation as that of an advisor. Griffith, II hired
certified mine foremen, Coleman, Cordle and later Dye to run the
mine since he personally had no knowledge of the mining business.
He maintains that his father was never an employee and was not
paid for any work at the mine.
The Secretary next argues, but without specifying any
relevant time period, that Griffith (senior) was "clearly viewed
as an owner of the mine by many of the miners as well as by an
inspector". The basis for the Secretary's conclusion in this
regard appears, however, to be the interview summaries . which I
have found to be entitled to no weight, and the testimony of
Griffith himself that, at some point in time Randy Dye, one of
the other foremen, may have thougfit of him as a supervisor
(Tr. 279-280). This somewhat ambiguous testimony is hardly
sufficient, however, to establish the status of Griffith (senior)
as an "agent" as of the February 9, 1993, violations.
Finally the Secretary maintains that Griffith (senior) was
an agent because he and his son "never sought to tell the miners
that the father was not an owner of the mine." Under this novel
argument the Secretary is impermissibly attempting to shift his

919

burden of proof to the Respondent himself to prove he was not an
agent. Carried to its logical conclusion, the Secretary would
argue that the failure of Respondents to have declared to miners
that they were not "agents" makes them agents by default. Under
all the circumstances I find that the Secretary has failed to
sustain his burden of proving that Mr. Griffith (senior) was an
"agent" of the corporate operator on February 9, 1993.
Accordingly, the charges against him for activities as an "agent"
on that date as set forth in Citation No. 4002030 and Order
No. 4002031 must be vacated.
With respect to the violations, charged against Michael
Griffith, II in Citation No . 40 02030 and Order No . 4002031, the
Secretary argues that he "knowingly" acted or committed the
violations based on his testimony that he knew the water was
being pumped out of the mine. 3 In this regard the Secretary
relies on the following colloquy at hearing:
"Q. (by attorney Fitch] Well, why didn't you have the
returns clear of water?

A. Well, I didn't know they wasn't clear of water, to be
honest.
I knew there was water in there, but every time --there's water coming outside, I'd call inside and tell them
that there wasn't water coming out, to work on the pump,
make sure it's pumping water."
(Tr. 255)
I do not agree that the above testimony supports a finding
that Griffith, II knowingly acted or violated the ventilation
plan. To the contrary, the testimony shows that Griffith was
aware that water was continually being pumped outside and,
indeed, that they were making continuing efforts in an attempt to
comply with the ventilation plan. Moreover, the cited provision
of the ventilation plan may reasonably be construed as requiring
only that "water which will inhibit safe travel or bleeder
function . . . shall be pumped or drained."
In these cases the Secretary does not dispute that mine
production had already been discontinued and that the water was
3

The term "knowingly" is evaluated within the framework of
the Commission decision in Secretary v. Kenny Richardson,
3 FMSHRC 8 at 16 (1981} aff'd on · other grounds 689 F.2d 632 (6th
Cir. 1982), cert. denied, 461 U.S. 928 (1983). In that case the
Com.mission stated as follows:
"If a person in a position to protect employee safety and
health fails to act on tne basis of information that gives
him knowledge or reason to know of the existence of a
violative condition, he has acted knowingly and in a manner
contrary to the remedial nature of the statute."

9 20

being pumped out of the mine, but argues only that, in his
opinion, the pumps being used were inadequate to pump the water
fast enough.
This determination is clearly a judgment call
about which reasonable persons may disagree and is not the sort
of judgment sufficient to warrant a "knowing" violation under
Section llO(c). When this evidence is considered in conjunction
with Respondent's clear lack of knowledge and experience in the
industry and the reliance he placed upon the certified mine
foremen he hired, I find the Secretary has not sustained his
burden of proving the charges herein. Under the circumstances,
both charges against Michael Griffith, II, set forth in Citation
No. 4 002030 and Order No . 4002031 must be vacated.
With respect to the violation alleged to have occurred on
June 3, 1993 , (Order No . 37949489) the Secretary, in his posthearing brief, cites no evidence to support a finding that the
Respondents "knowingly" acted or violated the law or that they
were even aware of the conditions cited. Inspector Paul McGraw,
testified that he discovered the violation during his June 3,
1993, inspection and found that the entry was 21 to 22 feet wide
over 150 feet in linear distance. McGraw acknowledged that he
did not have an opportunity to talk to either of the Griffiths
about this violation. According to McGraw, section foreman
Howard Cordle told him that he thought the belt entry could, in
fact , be cut 22 feet wide.
Michael Griffith, II testified that he had no mining
experience before entering into the business herein and later
hired and relied upon Howard Cordle to run the mine.
Michael Griffith (senior) confirmed that his son knew nothing
about mining and, indeed, initially warned his son to stay away
from the mine since he knew nothing about the business. Griffith
(senior) testified that at first he had nothing to do with the
mine but, beginning around October , helped by trying to keep the
equipment operating . Around March 1993, apparently after he
became Secretary/Treasurer, he began signing pay checks along
with his son. After the instant vi o lation was issued, he asked
Cordle about mining with a 22-foot-wide entry. Accordi ng to
Griffith (senior), Cordle stated that he thought it should be 22
feet wide because that was the way he cut it at another
operation.
Based upon the paucity of e v idence regarding Michael
Griffith, senior's authority, participation and knowledge
surrounding the instant violation, I cannot find that he
"knowingly" acted or violated the cited requirements of the roof
·control plan. Accordingly, the charges against Michael Griffith
{senior) in this regard, must be vacated.
With respect to the allegations that Michael Griffith, II
knowingly violated the roof control plan under Order

9 21

No. 37949489, the Secretary has again failed to cite any evidence
to support the charges. Indeed, this appears to be for good
reason for there is, in fact, insufficient evidence to support
charges against Michael Griffith, II for knowingly ·acting or
violating the requirements of the corporate operator's roof
control plan as charged.
ORDER

The charges set forth herein against Michael Griffith and
Michael Griffith, II, are hereby vacated and these civil penalty
proceedings are dismissed.

: c'
I

Gary Mel
Administ
Distribution:
Edward H. Fitch, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., suite 400,
Arlington, VA 22203 (Certified Mail)
Michael Griffith, II, HCR 63, Box 7, Jewell Ridge, VA 24622
(Certified Mail)
Michael Griffith, HCR 63, Box 7, Jewell Ridge, VA 24622
(Certified Mail)
/jf
~:.

:·

·:.·

922

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

June 9, 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
CONSOLIDATION COAL COMPANY,
Respondent

.:

CIVIL PENALTY PROCEEDING

.:

Humphrey No. 7 Mine

Docket No. WEVA 94-274
A. C. No. 46-01453-04123

0

•
0

DECISION
Appearances:

Elizabeth Lopes, Esq., Office of the Solicitor,
u.s. Department of Labor, Arlington, Virginia,
for the Petitioner:
Elizabeth s. Chamberlin, Esq., Consol Inc.,
P.ittsburgh, Pennsylvania, for Respondent.

Before:

Ju'd ge Merlin

This case is a petition for the assessment of civil penalties filed by the Secretary of Labor against Consolidation Coal
Company under section 110 of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 820.
This case contains seven violations three of which were
settled prior to the hearing. The operator agreed to withdraw
the fourth (Tr. 317). The settl ements and the motion to withdraw
were placed on the record and approved (Tr. 17-20, 317). Accordingly, Citation No. 3304292 is modified to delete the significant
and substantial designation and a penalty in the amount of $693
is assessed.
Citation No. 3116375 is modified to delete the
significant and substantial designation and a penalty of $94 is
assessed. A penalty in the original amount of $235 is assessed
for Citation No. 3305650. And a penalty in the original amount
of $288 is assessed for Citation No. 3304289.
On April 18, 1995, a hearing was held with respect to the
remaining three 104(a) citations. · The transcript has now been
received and the parties have filed post hearing briefs.
The parties have agreed to the following stipulations (Court
Exhibit No. 1) which provide as follows:
1. The Administrative Law Judge and the Federal Mine Safety
and Health Review Commission have jurisdiction t~ hear and decide
this civil penalty proceeding pursuant to Section 105 of the
Federal Mine Safety and Health Act of 1977.

923

2. Consolidation Coal Company is the owner and operator of
the Humphrey No. 7 Mine.
3. Operations of the Humphrey No . 7 Mine are subject to the
jurisdiction of the Act.
4.

Consolidation Coal Company is a large operator.

5 . The maximum penalties which could be assessed for these
violations pursuant to 30 u.s.c. § 820(a) will not affect the
ability of Consolidation coal Company to remain in business.
6 . MSHA Inspector William Ponceroff was acting in his
official capacity as an authorized representative of the Secretary of Labor when he issued Citation Nos. 3304285, 3304287 and
3304288 .
7 . True copies of Citation Nos. 3304285, 3304287 and
3304288 were served on Consolidation Coal Company or its agent as
required by the Act.
8. Citation Nos. 3304285, 3304287 and 3304288 are authentic
and may be admitted into evidence for the purpose of establishing
their issuance but not for the purpose of establishing the
accuracy of any statements asserted therein .
9. Citation Nos. 3304285, 3304287 and 3304288 are not the
subject of review proceedings before the Commission.
10 . Consolidation Coal did not Contest Citation No. 3305609
and paid the fifty dollar ($50.00) penalty assessed for this
violation.
11 . MSHA 1 s Proposed Assessment Data Sheet accurately sets
forth (a) the number of assessed penalty violations charged to
the Humphrey No. 7 Mine for the period from January 1991 through
February 1994, and (b) the number of inspection days per month
during this period.
12. MSHA's Assessed Violations History Report, R-17 report,
may be used in determining appropriate civil penalty assessments
for the alleged violations.
13.

The operator demonstraned good faith abatement .

Without objection, all stipulations were accepted except for
No. 11, for which the operator was given five days from the close
of the hearing to submit any objections (Tr. 13) . No objections
having been received, Stipulation No . 11 is accepted. In addition, operator's Exhibit No. R-4, a piece of wire mesh , is hereby
admitted into the record.

924

Citation No. 3304285
Citation No. 3304285 dated, January 12, 1994, charges a
violation of 30 C.F.R. § 75.202(a) for the following conditions
or practices:
The mine roof was not adequately supported or
otherwise controlled starting 20' outby the first
intersection from the 1 East injection point. The roof
is eroded between the boards. In the second intersection outby the referenced location and continuing for a
distance of 40' the roof is eroded between the boards
exposing the rock. The 3rd intersection outby and
continuing for 50' the roof is eroded 10" to 15" deep,
42 11 wide and 4 1 long. The boards are broken. The 4th
intersection has loose roof, 2 roof bolts have fallen
out and the roof is sagging. The roof is eroded 12" to
18 11 above the boards, 42" wide and 4' long. The crosscuts on each side of this intersection require additional support. The 5th intersection need additional
support. The roof is broken around the cribs and is
sagging for a distance of 60' toward the injection
point. The second crosscut outby the walk through door
to the main line needs additional support where the
roof is eroded.
30 C.F.R.

§

75.202 sets forth the following:

(a) The roof, face and ribs of areas where persons
work or travel shall be supported or otherwise controlled to protect persons from hazards related to
falls of the roof, face or ribs and coal or rock
bursts.
The inspector who issued the subject citation testified that
on the day in question he was conducting an inspection as part of
a winter alert program (Tr. 28). According to the inspector
during the winter the mine drys out and there are a lot more roof
falls (Tr. 28, 120). A second inspector who accompanied the
issuing inspector also stated they were conducting a winter alert
inspection for hazardous conditions (Tr. 130).
The cited area is a travelway going from the main track to
an injection point (Tr. 30-31, Exhibit No. R-1). It is an intake
aircourse used to ventilate abandoned areas (Tr. 202}. The area
had been mined through several years ago and miners do not now
have to pass through it to get to where they work (Tr. 31). But
it is subject to weekly examinations (Tr. 33).
The issuing inspector stated that the entire passageway was
several hundred feet and that a few hundred feet had unsupported
roof (Tr. 36).
In places head coal was gone and rock was exposed

925

(Tr. 78). The immediate roof he could see was shale (Tr. 78).
The inspector also testified that he saw no floor to ceiling
supports in the areas he cited (Tr. 82). These descriptions were
confirmed by the accompanying inspector who said the roof had
deteriorated extensively and there were large areas where planks
and boards were broken and there was a large amount of exposed
roof (Tr. 130-131). This second inspector also advised that he
had been in the subject area during the prior quarter and that
since that time the roof had deteriorated drastically, which he
attributed to the change in the weather and the drying out of the
mine (Tr . 140- 141, 147) .
In contrast to the foregoing, the operator's ventilation
foreman who was the weekly examiner for the travelway, testified
that there was only some sloughing and breaking loose at the roof
with a little powder falling down and some small piles on the
ground (Tr. 167). He said the roof was in good shape without
signs of breakage and that sagging was due to potting out (Tr.
192-193). Where the roof was eroded, it was bolted and intact to
the roof with additional supports (Tr . 176). He did not believe
any more supports were needed and stated that the area was sound
(Tr. 191) .
In his opinion it was a pretty good travel area (Tr .
168).
In addition, the ventilation foreman stated that the roof
in this area had not changed since he began walking it ten years
previously in 1985 (Tr. 156, 167). According to the operator's
safety inspector who walked the passageway after the citation was
issued, there was no problem with the roof and the top was not
sagging (Tr. 222-223, 224-225).
The record also contains testimony specific to each location
enumerated by the inspector in the citation. For the first
intersection the inspector testified that the roof was eroded
between the boards for twenty feet (Tr. 110). However, he
further stated that he saw no signs of roof movement and that by
itself the condition in this intersection was not a significant
and substantial violation (Tr. 111) . The accompanying inspector
remembered the conditions in the citation, although he could not
say they were in the first intersection (Tr. 145- 146). According
to the accompanying inspector the condition was significant and
substantial (Tr. 146). The ventilation foreman took the position
that although there was roof erosion, the intersection was well
bolted and supported (Tr. 175-176). After reviewing and evaluating the testimony, I conclude that the evidence presented by the
Secretary is persuasive in estab~ishing the existence and extent
of the conditions cited. The issuing inspector offered precise
and detailed descriptions and in all material respects his
testimony was conf irrned by the second inspector who had been
sequestered.
With respect to the second intersection, the issuing inspector1 s testimony stated that the roof was eroded between the
boards for 40 feet (Tr . 89). The accompanying inspector

926

confirmed the distance involved, advising that he and the first
inspector counted the number of planks to get the measurement
(Tr . 132-133). The issuing inspector said that he would not
consider this condition by itself to be significant and substantial because there were no other signs of roof deterioration in
this location (Tr. 111- 112) . The ventilation foreman denied
seeing any 40 foot distance and said there were only some areas
that had potted out (Tr. 182-183). I find credible the evidence
offered by the Secretary because the inspectors' recollections
were clear, exact, and consistent. In light of these circumstances, the denials of the foreman are not convincing.
The issuing inspector testified that in the third intersection there were broken boards indicating that the roof was
eroding away to a depth of 15 inches and a width of 44 inches
(Tr. 112). Several boards adjacent to each other over the center
of the entry were sagging where they were broken (Tr . 112-114).
The sagging boards indicated that there was movement of the upper
strata of the roof (Tr . 114). The roof showed signs of taking
weight and there could be a failure (Tr. 112). The issuing
inspector also asserted that the violation in this area was
significant and substantial because the roof was taking weight
and could fail (Tr. 112). The accompanying inspector verified
the distance of 50 feet stating that he and the issuing inspector
counted the boards which were quite a few in number and next to
each other (Tr . 133). He had an independent recollection of the
50 feet (Tr. 144) . On the other hand, the ventilation foreman
said he did not see any eroded roof for 50 feet and nothing of
the depth and height given by the inspector (Tr. 183-184). He
did not see broken boards or anything major (Tr. 184). I find
the Secretary's evidence convincing because of the precise
measurements and comprehensive descriptions given by the
two inspectors. The issuing inspector's explanation of why
the conditions and their consequences were significant and
substantial was particularly cogent .
In the fourth intersection the issuing inspector stated
that the roof was sagging and eroded, rock was exposed and two
roof bolts which had fallen out, were lying on the mine floor
(Tr. 32, 84, 88). He explained that the roof was composed of
consolidated strata (Tr. 43 - 44) . The fallen bolts meant that the
anchorage zone where the strata was secured had weakened and the
strata were not tightly held together (Tr. 45). Roof erosion had
exposed rock which allowed subseq~ent layers of the roof to shift
(Tr . 88). When support weakens in the center the roof drops down
and sags (Tr. 86). The inspector expressed the view that the
violation in this area was significant and substantial because of
all these factors (Tr. 115). Also he relied upon the fact that
the crosscuts on either side of the intersection required addi tional supports (Tr. 115). He believed that these serious
conditions could cause a failure of the roof and a fatality (Tr .

92 7

115). The second inspector remembered the fallen bolts, sagging
roof and broken boards (Tr. 133-134). Here again, the operator's
ventilation foreman disputed the inspectors on all important
points. He admitted there were fallen bolts, but said they had
been on the floor for 10 years (Tr. 183-184). He saw no sign of
sagging and stated that the roof was merely potted out, but
standing just as nice as it was (Tr. 184, 193). I find convincing the proof offered by the Secretary because it is based upon
the exact and consistent recitals of the two inspectors. Also,
the issuing inspector gave a comprehensive explanation of why the
strata were not holding together.
In light of the Secretary's
evidence, the foreman's denials are not credible . I do not
accept the argument that the bolts had been lying on the floor
for ten years and that the roof was standing just as well as it
had been.
According to the issuing inspector the roof had broken down
around a crib in the fifth intersection so that the crib was no
longer supporting the strata of the roof for a distance of 60
feet (Tr. 41-42, 86-87, 91-92). There were no additional supports and the roof was loose (Tr. 33, 93). The roof was sagging
which indicated the consolidated strata was broken (Tr. 41-42).
The fact that the roof was down over the crib meant the roof was
weakened and not supported (Tr. 41-42, 87). Bolts were not
effective which was why the crib had been built (Tr. 98-99).
Head coal and shale were gone for a depth of 15 to 17 inches (Tr.
95). The inspector believed the violation in this area was
significant and substantial because the crib no longer supported
the roof and it was reasonably likely that the roof would let
loose and somebody would be killed (Tr. 116). These observations
were seconded by the accompanying inspector who also said that
the roof was sagging around the crib and that fallen rock had
pushed the head coal out (Tr. 131, 135). As with the other
locations the ventilation foreman disagreed with the inspectors,
asserting that he saw no broken cribs or sagging roof in the
cited area (Tr. 185, 189, 209-2 1 0 } . According to the foreman the
cribs were in another place (Tr. 185). The company safety
inspector testified that during his walk through the area after
the citation was issued he did not see anything like what was
described in the citation (Tr. 222). Unlike the ventilation
foreman he saw a crib in the area but said it was as good as when
it was put in (Tr. 223-224, 229-230). I find persuasive the
descriptions, explanations and conclusions of the inspectors.
As appears from the testimony set forth above, a conflict
exists between the inspectors and the ventilation foreman over
the conditions at the various cited locations. At one point the
foreman characterized these differences as a judgment call (Tr.
199). I do not accept this characterization. When one party
sees several adverse conditions· and the other party denies their
existence, the issue is not one of judgment but rather one of
credibility. In light of the detailed and precise recollections

9 28

of both inspectors, I cannot find that they did not see what they
reported. Nor can I find that they fabricated the conditions
about which they testified. Their testimony and the manner in
which they gave it simply are too direct and convincing. This is
why as trier of the facts, I find the Secretary's evidence more
persuasive.
In addition, other factors cast doubt upon the operator's
case. The foreman's allegation that the travelway remained
unchanged for ten years strains credulity, because it is premised
upon the mine being impervious to atmospheric, climatic and
seasonal changes for a decade or more (Tr. 167). Far more
telling is the evidence of the accompanying inspector that the
roof conditions had deteriorated drastically since the prior
quarter or two when he last visited this area of the mine (Tr.
141) . In addition, the testimony of both inspectors that the
winter is especially hazardous due to drying out in the mines is
supported by the fact that this inspection itself was part of a
winter alert (Tr. 28, 42, 120, 130) .
In light of the foregoing, I find that the conditions and
practices existed as charged in the citation and described by the
inspectors.
It \is therefore, my conclusion that the roof was not
adequately supported or controlled to protect persons from
hazards related to falls of the roof.
Under the mandatory standard, quoted supra. the area
required to be adequately supported or controlled is one where
persons work or travel. Both inspectors testified that the
weekly examiner would go through this travelway weekly in order
to make the examination mandated by 30 C.F.R. § 75.364 (Tr. 33,
102, 137). They also said that rock dusters could be in the area
(Tr. 47, 108-109, 138). The foreman agreed that for the past ten
years he had walked the travelway weekly in his capacity as
weekly examiner and that when he was going to be unavailable he
found someone else to do it (Tr. 158). He also said that in his
absence the general mine foreman performed the exam or assigned
someone else (Tr. 211). The foreman initially emphasized that he
usually did the weekly examination by himself (Tr. 158-159).
However, when asked if he then would be the only one who would
know about unreported conditions, he responded that th~ general
mine foreman travelled the area at least once a month and that
because the mine had been on strike, in the last year he had
performed the weekly inspections qnly 50% of the time, while
another man did the rest (Tr. 211-214). Upon consideration of
the testimony, I find the area was one travelled weekly by
examiners, at least monthly by the general mine foreman and
occasionally by rock dusters. The cited travelway is, therefore,
covered by the mandatory standard and a violation existed in all
locations described by the inspectors. Tunnelton Mining Company,
12 FMSHRC 2602 (December 1990).

9 29

As set forth above, the issuing inspector found that the
violations in the third, fourth and fifth intersections were
significant and substantial. The Commission has determined that
a violation is significant and substantial if, based on the
particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury of a reasonably serious nature. Peabody Coal
Company, 17 FMSHRC 508 (April 1995); Cement Division, National
Gypsum Co., 3 FMSHRC 822 (April 1981); U.S. Steel Mining Company
~, 6 FMSHRC 1573, 1574, (July 1984).
In Mathies Coal Company,
6 FMSHRC 1, 3-4 (January 1984), the Commission set forth the
requirements necessary for a finding of significant and
substantial as follows:
In order to establish that a violation of a mandatory safety standard is significant and substantial
under Nationa l 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.
I have found a violation of the mandatory standard. The
inadequately supported or controlled roof contributed to a
measure of danger because the roof could fall in the third,
fourth and fifth intersection. The recital by the issuing
inspector why there was a reasonable likelihood of a fall in
these areas was based upon cogent explanations of what was
happening to the roof and what could reasonably be expected to
happen. The serious deficiencies in roof support and control and
the consequences of these shortcomings satisfy the reasonably
likely requirement.
Finally, it was reasonably likely that a
roof fall would result in reasonably serious injuries or even
death. Accordingly, I conclude that the violation was significant and substantial in the three intersections identified by the
issuing inspector.
Based upon these considerations and the
evidence regarding the first two intersections, I conclude that
for purposes of determining the level of gravity unde~ section
llO(i), the violation was serious in all cited locations.
With respect to negligence, another factor to be taken into
account under section llO(i) in determining the appropriate
amount of penalty, the issuing inspector believed the level was
only moderate (Tr. 48-49). He found negligence was mitigated
because before the citation was issued, the foreman had taken
steps to change the route of travel away from the cited area by
bringing a man door into the area (Tr. 49, 73). The accompanying
inspector agreed that a man door had been moved to the area, but

9 30

not yet installed (Tr . 139, 152). Both inspectors reported that
the foreman told them he intended to reroute because of the bad
roof conditions (Tr. 48- 49, 124, 125, 140) . However, because the
foreman had denied the existence of all the adverse conditions,
he was placed in the curious position of having to deny that he
had any prior intention of changing the travelway or that he had
brought up a man door for that purpose (Tr. 166, 171). I find
the testimony of the inspectors more credible on these points and
based thereon I conclude that because of the dangerous state of
the roof, the foreman had decided to move the travelway before
the citation was issued. As the foreman acknowledged, it took
only one shift to reroute and the distance to the injection point
was much shorter the new way (Tr . 169). However, I do not agree
with the inspector that bringing one man door into the area is
sufficient reason to reduce the level of negligence to moderate.
The severe conditions in the area had existed for some weeks or
months (Tr. 47, 140- 141). Moreover, the weight of the evidence
demonstrates that the ventilation foreman must have been aware of
the state of the roof for some time. His failure to take corrective action created risks for other examiners, the general mine
foreman and rock dusters . Therefore, I find that the foreman was
highly negligent and that in view of his position his negligence
is imputable to the operator. Nacco Mining Co., 3 FMSHRC 848
(April 1981); Southern Ohio Coal Co . , 4 FMSHRC 1459 (August
1982); Rochester and Pi ttsburgh Coal Company, 13 FMSHRC 189, 194198 (February 1991); Mettiki Coal Co., 13 FMSHRC 760, 772 (May
1991); Yirginia Crews Coal co . , 15 FMSHRC 2103, 2106 (October
1993) .
In accordance with the stipulations of the parties which I
have accepted the operator is found to be large in size; imposition of a penalty will not affect its ability to engage in
business; there was good faith abatement, and the operator ' s
history of prior violations is as it appears in evidence
submitted by the Secretary.
One final matter .
In its post hearing brief, the operator
questions the credentials of the issuing inspector because he had
not been in the Pittsburgh seam for eight years (Tr. 55- 56) . The
inspector was a trained expert in roof support systems and
conducted roof control inspections twice a week in the years he
had been in the west and away from the Pittsburgh seam (Tr. 5859). He returned to the Pittsburgh seam as the roof control
supervisor (Tr . 61). I find the inspector fully qualified. In
this respect I note that the operator's ventilation foreman
maintained that conditions in the subject travelway had not
changed for 10 years.
Upon consideration of the foregoing, a penalty of $700 is
assessed for this violation .

9 31

Citation No. 3304287
Citation No. 3304287 dated January 12, 1994, charges a
violation of 30 C.F.R. § 75.364(h) for the following alleged
conditions or practices:
An inadequate weekly examination was conducted in
that a record of the hazardous conditions and there
locations were not recorded in the weekly examination
book. There were several locations where the roof was
not adequately supported or controlled as identified in
Citation No. 3304285 dated 1/12/94. There was also
float dust extended for a distance of 22 blocks as
referenced in citation 3305609, dated 1/12/94 . These
conditions occurred in the entries into the 1 East
injections point.
30 C.F.R . §75.364(h) provides as follows:
(h) Recordkeeping. At the completion of any shift
during which a portion of a weekly examination is made,
a record of hazardous conditions, their locations, and
the corrective action taken, and the results and location of air and methane measurements shall be made.
The record shall be made by the person making the
examination or a person designated by the operator and
shall be countersigned by the mine foreman .
If made by
a person other than the examiner, the examiner shall
verify the record by initials and date.
There is no dispute that the ventilation foreman did not
record any hazardous conditions for the subject areas in the
weekly examination book (Tr. 47).
The issue is whether there
were hazardous conditions which the regulations require to be
reported. The underlying circumstances which the foreman had not
reported were float coal dust and the inadequately supported roof
(Tr. 51-52). The inspector testified that the float coal dust
violation was not significant and substantial (Tr. 107). I note
that the operator paid the assessed penalty of $50 for this
violation, an amount customarily reserved for non serious violations (Stipulation No. 10) . Accordingly, I find that the float
coal dust violation was not serious and that it was not a
hazardous condition which was required to be reported.
The roof conditions are another matter. As set forth above ,
I have found violations of the roof in the third, fourth and
fifth intersections to be significant and substantial as well as
serious. Under these circumstances I reject the foreman ' s
assertion that there was nothing hazardous to report (Tr. 203205).
I find that the roof conditions in these locations were
hazardous and should have been recorded.
I also accept the
inspector's testimony that the failure to record by the foreman

9 32

increased the likelihood that someone could be injured by the
roof (Tr . 48). Accordingly , I find that the failure to record
the roof problems was a significant and substantial as well as a
serious violation. consolidation Coal co . , 15 FMSHRC 1408, 1415
(July 1993); Con solidation Coal Co . , 15 FMSHRC 1264, 1272 (June
1993); Eag l e West Inc., 14 FMSHRC 1800, 1802 (Nov. 1992); Kaiser
steel Corp., 5 FMSHRC 2224, 2229 (Dec. 1983) . Because the
dangerous state of the roof existed for an appreciable period of
time and must have been known to the foreman, I find that he was
highly negligent and that, as previously explained, his negli gence is imputable to the operator . The remaining criteria under
section llO(i) have been set forth above.
Upon consideration of the foregoing, a penalty of $500 is
assessed for this violation.
citation No. 3304288
citation No. 3304288 dated, January 21, 1994, and challenged
herein, charges a violation of 30 C.F.R. § 75 . 202(a) for the
following alleged condition or practice:
The mine roof was not adequately supported or
controlled in the old 1 East Loop, one car inby the
explosive car. There is a hanging rock approximately
10 1 high x 8 11 to 2 ' wide x 3 1 long and 2 11 thick in a
roof cavity area the wire side of the tracks. There
are also large rocks causing the screen to sag to the
extent that the wire is broken on one side. This is an
inactive area. The rock is located so that when it
falls it could knock the trolley wire into the cars;
causing a hazard to the person installing the line
switch.
The inspector who issued the citation testified that the
roof in the Old East Loop was inadequately supported . This area
was a side track that ran off the main entry where supply cars
and lowboy cars were kept (Tr. 237 - 238, 253, 295 - 296). An
earlier roof fall had created a cavity in the roof of this track
(Tr. 257 - 258). The cavity was covered with a wire mesh screen
(Tr. 236). According to the inspector, the wire was broken in
places and the screen was loaded with rocks, some of which had
fallen out of the screen to the ground (Tr. 238- 240, 274, 280).
The broken wires were on the tight or wire side of the entry (Tr.
277 - 278). In addition, a large rock, 2 ' x 3'x 2 11 , was hanging in
the cavity behind the broken wire and on t h e tight side of the
entry (Tr . 236, 237, 276-277). The inspector who accompanied the
issuing inspector confirmed that there were brok en strands in the
mesh and that loose material was hanging suspended in the screen
with large and small rocks (Tr. 282-283). The operator ' s safety
supervisor agreed that a mesh screen covered the cavity and that
a l arge rock of the dimensions given by the issuing inspector was

9 33

hanging inside the cavity {Tr. 298-299, 315-317). However, the
supervisor did not see any breaks in the mesh wire or any rocks
on the ground (Tr. 311). He expressed the opinion that what the
inspector thought were breaks was only overlapping pieces of wire
{Tr. 296-298). Upon due consideration, I am convinced by and
accept the testimony of the two inspectors that there were breaks
in the wires and that rocks had fallen through and were lying on
the ground. The presence of the large hanging rock in the cavity
was acknowledged by all the witnesses.
There is no dispute that the fireboss walks through the
cited area on his preshift examination and I so find (Tr. 268,
302). The issuing inspector believed supplies would be stored in
this side track and that people would go there to get them (Tr.
241-243, 270). However, he did not remember the type of cars in
the side track (Tr. 256-257). The safety supervisor testified
that the car under the fall was a lowboy and there was another
flat car in front and six or seven cars behind (Tr. 302). The
safety supervisor did not know why the lowboy was parked in the
side track, but said it could be used to carry equipment and was
low to the ground so a piece of equipment could be put on it (Tr.
303-304). I find that individuals would enter this area to use
the lowboy for · .transport of equipment.
In light of the foregoing, I conclude that a violation of
75.202(a) existed. The roof was not adequately supported or
controlled due to the large hanging rock as well as the other
rocks which were either held by the mesh or had fallen through to
the floor. Clearly, this was an area where people worked and
travelled.
§

The issuing inspector believed it reasonably likely that a
serious injury would result if the hanging rock fell (Tr. 243).
He stated that the rock could fall at any time without any
intervening conditions, just some vibrations or further deterioration (Tr. 244). The safety supervisor did not believe the roof
was inadequately supported or that there was a reasonable likelihood of substantial injury (Tr. 296-297). His opinion is based
upon wire mesh holding the rocks (Tr. 300). However, I have
found that the wires were broken and that some rocks were on the
ground. In view of these circumstances, I accept the view of the
inspectors that it was reasonably likely the rocks could fall and
hit someone (Tr. 243, 285-286). I further conclude this hazard
was reasonably likely although the broken mesh and the rocks were
on the wire side of the entry. when rocks broke through the
already damaged mesh, persons in the entire entry would be at
risk not just those who might be directly under the cavity. I am
persuaded by the evidence that falling rocks could hit the lowboy
car and give a glancing blow to an individual in the entry {Tr.
245-246, 285).

934

The inspectors also were of the view that it was reasonably
likely that a falling rock could hit the energized trolley wire
in this track causing the wire to fall on the car leading to a
shock or a burn (Tr. 263-264, 285-286). I reject this suggestion. The issuing inspector admitted that the preshift examiner
would not have to energize the trolley wire when he entered the
area (Tr. 269). There is no showing when or how often the
trolley wire would be energized by other people going into the
area.
In other words, the reasonable likelihood of a hazard from
an energized trolley wire would depend upon the occurrence of
intervening events, the likelihood of which was not shown by the
Secretary.
I have found a violation of the mandatory standard. The
inadequately supported or controlled roof contributed to a
measure of danger because the roof could fall. As explained
above, there was a reasonable likelihood the hazard would result
in injury and there can be no doubt that the injury would be
serious. Accordingly, I conclude that the violation was significant and substantial. Mathies Coal Company, supra. Based upon
these considerations, I also conclude that for purposes of
determining gravity under section llO(i), the violation was
serious.
With respect to negligence, another factor to be taken into
account under section llO(i) in determining the appropriate
amount of penalty, the issuing inspector found moderate negligence. Although he did not know how long the conditions had
existed, he estimated that they occurred over a couple of shifts
to a couple of days (Tr. 251-252). He did not know how long the
cars had been in the side track (Tr. 256). The evidence supports
a finding of nothing more than moderate or ordinary negligence
and that is what I find.
In accordance with the stipulations of the parties which I
have accepted the operator is found to be large in size, imposition of a penalty will not affect its ability to engage in
business, there was good faith abatement, and the operator's
history of prior violations is as it appears in evidence
submitted by the Secretary.
Upon consideration of the foregoing, a penalty of $350 is
assessed for this violation.
POST HEARING BRIEFS
The post-hearing briefs filed by the parties have been
reviewed. These briefs have been most helpful. To the extent
the briefs are inconsistent with this decision, they are
rejected.

935

ORDER

It is ORDERED that Citation Nos. 3304292, 3116375 1 3305650,
3304289, 3304285, 3304287, and 3304288 be AFFIRMED.
It is further ORDERED that the findings of significant and
substantial for citation Nos. 3304285 1 3304287, and 3304288 be
AFFIRMED.
It is further ORDERED that Citation Nos. 3304292 and
3116375 be MODIFIED to delete the significant and substantial
designations.
It is further ORDERED that the negligence findings for
citation Nos. 3304285 and 3304287 be assessed as high.
It is further ORDERED that the following penalties be
ASSESSED :
citation No.
citation No.
Citation No.
Citation No.
citat'ion No.
Citation No.
Citation No.

3304292
3116375
3305650
3304289
3304285
3304287
3304288

$693
$ 94
$235
$288
$700
$500
$350

It is further ORDERED that the operator PAY the above
penalties totaling $2,860 within 30 days of the date of this
decision.

--

Paul Merlin
Chief Administrative Law Judge
Distribution :
Elizabeth Lopes, Esq., Office of the Solicitor, o.s. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203
Elizabeth s. Chamberlin, Esq., Consol Inc., 1800 Washington Road,
Pittsburgh, PA 15241-1421
/gl

9 36

:•.

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

JUN 1 3 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 94-380
A.C. No. 42-01697-03668

v.
Bear Canyon #1 Mine
C. W. MINING COMPANY,
Respondent
DECISION

Appearances:

Ned Z. Zamarripa, Conference and Litigation
Representative, Mine Safety and Health
Administration, Denver, Colorado, for Petitioner; 1
Carl E . Kingston, Esq . , Salt Lake City, Utah, for
Respondent.

Before:

Judge Manning

This case is before me on a petition for assessment of a
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ( " MSHA" ), against C.W.
Min i ng Company ("C.W. Mining"), pursuant to sections 105 and 110
o f the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§
815 and 820 ( " Mine Act") . The petition alleges two violations of
the Secretary's safety standards. At the start of the hearing,
the Secretary agreed to vacate Citation No. 3588362. 2 With
respect to the remaining citation, C.W. Mining does not contest
the fact of violation, but contends that the violation was not of
a significant and substantial nature ( " S&S " ) .
For the reasons
set forth below, I find that the violation was not S&S and I
assess a civil penalty in the amount of $225.00.
A hearing was held in this cpse on February 8, 1995, in Salt
Lake City, Utah. The parties presented testimony and documentary
evidence but waived post-hearing briefs.

Mr. Zamarripa was permitted to represent the Secretary in
this proceeding and was under the supervision of counsel for the
Secretary, Kristi Floyd, Esq.
2

This stipulation is at Tr. 4-5 in WEST 93-37 5 , February
7, 1995.
937

I.

FINDINGS OF FACT

The Bear canyon No. 1 Mine is an underground coal mine in
Sevier County, Utah. On January 11, 1994, MSHA Inspector Robert
Baker issued to c.w. Mining Citation No. 3588361, under section
104(a) of the Mine Act~ which stated:
Loose coal and coal fines was accumulated in the roadway of the 2nd East pillar
section from the pillar split off of 2nd Left
entry across #27 crosscut to the pillar split
in 20 feet inby #28 crosscut off of 2nd Right
up to 12 inches deep and up to 12 feet wide,
in 1st and 2nd Left it was dry in 1st and 2nd
Right it was wet, the roof bolter was bolting
in the split in 2nd right entry, also float
coal dust was accumulated on the rock dusted
surfaces around the feeder on the off walkway
side and outby 20 feet in to the stopping in
#26 crosscut.
He alleged a violation of 30 C.F.R. § 75.400. In the citation,
Inspector Baker stated that an injury was reasonably likely, that
if an injury occurred it would result in lost workdays or restricted duty, and that the violation was S&S. He determined
that c.w. Mining's negligence was moderate. The violation was
abated by cleaning up the loose coal, coal fines, and float coal
dust, and rock dusting the area.
Section 75.400 provides:
Coal dust, including float coal dust
deposited on rock dusted surfaces, loose
coal, and other combustible materials, shall
be cleaned up and not be permitted to accumulate in active workings, or on electric
equipment therein.
On January 11, 1994, while inspecting the second east pillar
section, Inspector Baker observed loose coal and coal fines in
Crosscut No . 27 (the "crosscut"). · (Tr. 9). He also observed
loose coal and coal fines in the intake entry inby the crosscut
where a miner was installing roof bolts with a roof bolting
machine.
Id. These accumulations were wet and up to 12 inches
in depth.
Id.
Inspector Baker then returned to the crosscut and
walked its length. He determined that the accumulations became
dryer as he walked through the crosscut towards the left side of
the pillar section. A generalized representation of the accumulations is set forth in Ex. G-2.
938

·:
<

Accumulations existed throughout the crosscut and they
varied in depth between one and twelve inches. Large areas of
the accumulations were between one and two inches in depth.
(Tr.
14-15, 46).
They were generally about four to five ·feet wide.
(Tr. 14-15). Inspector Baker could not estimate the amount of
coal and coal fines that had accumulated, but he believed the
total length to be about 700 feet.
Id. Accumulations were also
present in the belt entry between the crosscut and the feeder
breaker at the No. 26 crosscut. Inspector Baker took a methane
reading in the crosscut and determined that there was no methane
in the area.
(Tr. 2 4) •
A continuous mining machine was parked in the crosscut on
the left side of the pillar section . The continuous miner was
not energized. When Inspector Baker reached the continuous
miner, he spoke to Mine Superintendent Randy Defa . The inspector
asked Mr. Defa if he had noticed the accumulations. Mr. Defa
stated that he knew about them, that he was not mining in the
section because of them, and that a scoop was on the way to clean
them up . 3 (Tr . 10, 19, 24). Inspector Baker told Mr. Defa that
he was going to issue a citation for the accumulations and, while
they were discussing abatement time, the scoop arrived.
(Tr.
11).
The crew immediately started cleaning up the accumulations .
Id . Mr. Defa told the inspector that he did not believe that the
accumulations were S&S.
The cited area was a pillar section, which means that C.W.
Mining was engaged in retreat mining in that section. The continuous miner was used to cut the pillars in a pre-established
pattern. Considerable pressure was placed on the roof, ribs and
floor as the pillars were cut and the roof fell in the gob.
(Tr.
27-28).
As a consequence, significant amounts of coal sloughed
from the ribs and the floor heaved in the center of the crosscut.
(Tr . 52). Inspector Baker was not able to determine how much of
the accumulations he observed were coal sloughage from the ribs
and how much was coal that had fallen from shuttle cars during
mining.
(Tr . 11, 31). He believed, however, that c.w. Mining
had overloaded its shuttle cars on the previous shift and that a
significant amount of the accumulations were coal that had fallen
off these cars .
(Tr. 15-16). He based his conclusion, in part,
on tracks he observed in the area .
(Tr . 16, 25).
Inspector Baker testified that, even though the superintendent knew of the accumulations and was taking steps to clean them
up at the time of the MSHA inspection, the accumulat i ons should
have been removed before the end of the previous shift or the
area should have been dangered off at the start of the day shift .

3

start.

Apparently, the scoop on the pillar section would not
(Tr. 1 0 , 19) .
939

(Tr. 20).
He estimated that the accumulations had been created
on the previous shift and had existed for at least four hours.
(Tr. 20, 36-37). There is no dispute that no mining had occurred
on the day shift and that the day shift crew was going to clean
up the accumulations before mining began.
(Tr . 21, 24, 38) .
II.

,._

DISCUSSION WITH FURTHER FINDINGS
AND

CONCLUSIONS OF LAW
The only issue in this case is whether the accumulations
were of a significant and substantial nature.
The S&S terminology is taken from section 104(d) of the Mine Act, JO u.s.c.
§ 814(d), and refers to more serious violations.
A violation is S&S if, based on the
facts surrounding the violation, there exists
a reasonable likelihood that the hazard contributed to by the violation will result in
an injury or illness of a reasonably serious
nature.
Wyoming Fuel Co., 16 FMSHRC 1618, 1625 (August 1994} (citation
omitted) .
The Commission has established a four part S&S test,
as follows:
In order to establish that a violation
of a mandatory safety standard is significant
and substantial . . . , the Secretary of Labor
must prove:
(1) the underlying violation of
a mandatory safety standard; (2) a discrete
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 wil l be of a reasonably serious
nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 19 84) . An evaluation
of the r easona ble l ikelihood of an injur y should be made assuming
continued normal mining operations.
U.S. Steel Mining co., 7
FMSHRC 112 5 , 1130 (August 198 5 ).

940

....

There is no dispute that the first element of the Mathies
test has been met, an underlying violation of a safety standard .
I also find that the Secretary has established that a discrete
safety hazard existed, the second step. It is well known that
accu mulations of coal and coal fines present a danger of a mine
fire and explosion. c .w. Mining contends that the Secretary
failed to establish the third step of the Mathies S&S test. The
Secretary maintains that because the accumulations were highly
combustible and potential ignition sources were present, it was
reasonably likely that the hazard presented would result in an
injury of a reasonably serious nature.
Inspector Baker testified that portions of the accumulations
were extremely dry and combustible and that any nicks in the
trailing cables of the equipment in the section would have provided an ignition source.
(Tr. 16- 17, 34) . He further stated
that there was a reasonable likelihood that the crew would suffer
serious burns and smoke inhalation if the condition was allowed
to continue.
(Tr. 17 - 18). He testified that all that was necessary to ignite the accumulations was an ignition source.
(Tr. 18).
Inspector Haker testified that there were a number of ignition sources in the area. First, he observed two nicks in the
trailing cable for the continuous miner that exposed the insulated inner conductors.
(Tr. 18). Second, he stated that the
feeder breaker in the belt entry was no longer maintained in
permissible condition. Id. Finally, he testified that the roof
bolting machine was being used in the far right entry . Although
he did not find any problems with it or with its trailing cable,
he stated that it was a potential ignition source.
Id .

c.w. Mining contends that the accumulations were not S&S .
It maintains that most of the accumulations were sloughage from
the ribs and mine floor .
(Tr. 42).
It argues that this sloughage occurred either at the end of the previous shift or just
prior to the start of the day shift and the that the day shift
crew was getting set to clean it up, prior to the start of mining, when the MSHA inspector arrived.
Nathan Atwood, who was in
charge of production on the day shift of January 11, 1994, testified that due to the tremendous amount of weight on the pillar
section, the mine floor crumbled and coal was forced up in the
center of the crosscut.
(Tr. 43). He observed the subject accumulations and testified that they were ordinary rib sloughage and
floor heave.
(Tr. 45, 48) . While he testified that some of the
accumulations could have fallen off a shuttle car, he believed
that very little, if any , of the accumulations fell from shuttle
cars.
(Tr . 49). Mr. Defa also testified that the accumulations
were mostly rib s l oughage and floor heave.
(Tr. 56-58, 60) .

94 1

He stated that rib sloughage and floor heave can accumulate very
quickly, in a matter of minutes.
(Tr. 59) . 4
I find that the Secretary did not establish the third element of the Mathies S&S test. The Secretary contends that these
accumulations had existed for a considerable length of time and
that mining had occurred while the accumulations were present.
Inspector Baker relied heavily on his analysis of tire tracks he
observed in the crosscut. He testified that he saw cat tracks
from the continuous miner in the crosscut and "shuttle car haulage track indentations in the accumulation ... down to the feeder."
(Tr . 25) . He stated that the shuttle cars have an eight
inch clearance.
(Tr. 26). When questioned how a shuttle car
with low clearance could run over accumulations that were up to
twelve inches deep, he testified that the tires of the shuttle
car pushed the accumulations aside, to the outside of the roadway.
Id.
Yet, he also testified that the accumulations were in
the center of the crosscut.
(Tr. 12, 14-15). Mr. Defa testified
that the continuous miner had been moved into the crosscut at the
beginning of the day shift but that shuttle cars has not been in
the area.
(Tr. 52-53). In addition, he stated that mining had
not been conducted on the left side of the pillar entry for three
or four shifts, so there would not have been any reason for
shuttle cars to· be in that area .
(Tr. 53, 60-61).
I credit the testimony of Mr. Defa in this regard and find
that the Secretary did not establish that the accumulations had
existed for a long time. I find that the preponderance of the
evidence establishes that the majority of the accumulations were
the result of rib sloughage and floor heave and that, due to the
heavy pressure, these conditions could have been created in a
short period of time. The citation was issued at 9:45 a.m., the
day shift started at about 6:30 a.m., and the preshift examination was conducted at about 4:30 a.m.
(Tr. 29-30). The preshift
books did not indicate the presence of coal accumulations. (Tr.
11-12). While that fact does not prove that the accumulations
did not exist at 4:30 a.m., when considered along with the other
evidence, it casts doubts on the inspector's estimation of the
length of time the accumulations had existed.
The Secretary contends that three ignition sources could
have ignited the accumulations . Although the roof bolting
machine was operating, the inspector testified that his inspection of it and the trailing cable' did not reveal any problems.
He did not exp l ain how this machine could have ignited the coal
accumulations. As stated above, there was no methane present in
the area.
Inspector Baker also stated that the feeder breaker
was not in permissible condition, it was not inby the last open
4

The parties do not dispute that the area had been rock
dusted. The rock dust did not cover the accumulations.
(Tr.
36). Mr. Defa testified that the area was rock dusted on the
previous shift.
(Tr. 59).

942

crosscut. There was no evidence, however, that it was energized
or that it would have been energized before the area was cleaned
up. Finally, he stated that there were two nicks in the trailing
cable of the continuous miner. It is not disputed that this
equipment had been moved while the accumulations were present.
While this fact helps support the Secretary's argument, I find
that it does not, by itself, establish that the violation was
S&S . The evidence does not establish that it was reasonably
likely that these nicks would propagate an injury-producing fire
under the particular circumstances of this case.
There is no dispute that c.w. Mining was aware of the accumulations and was taking affirmative steps to clean them up before the inspector arrived on the pillar section. Inspector
Baker believes that the accumulations should have been cleaned up
at the end of the prior shift or the area dangered off at the beginning of the day shift. While it might have been prudent to
danger off the area, the fact that c.w. Mining failed to do so
does not establish the S&S nature of the violation.
The Commission has held that an evaluation of the reasonable
likelihood of an injury should be made assuming continued normal
mining operations. U.S. Steel Mining Co., 7 FMSHRC at 1130. In
this instance, assuming continued normal mining operations, the
accumulations would have been removed before mining was resumed.
Thus, miners were exposed to accumulation hazards for a short
period of time. 5
III.

CIVIL PENALTY ASSESSMENT

Section llO(i) of the Mine Act, 30 U.S.C. § 820(i), sets out
six criteria to be considered in determining the appropriate civil penalty. Based on this criteria, I assess a penalty of $225
for the violation.
I find that c.w. Mining was issued 158 citations and orders in the 24 months preceding the inspection in
this case.
(Ex. G-1). I also find that C.W. Mining is a mediumsized operator that produced between 300,000 and 400,000 tons of
coal in 1992. I find that the civil penalty assessed in this
decision would not affect c.w. Mining's ability to continue in
business. The violation was timely abated by c.w. Mining.

5

The forth element of the Mathies S&S test is whether it
is reasonably likely that an injury would be of a reasonably
serious nature. I find that if the accumulations d i d ignite and
injure a miner, it is reasonably likely that such an i njury would
be of a reasonably serious nature.
943

I further find that the violation was serious, but that C.W .
Mining's negligence was low. The negligence was low because the
operator had already taken steps to clean up the accumulations
before the inspector arrived .
IV.

ORDER

Accordingly, Citation No. 3588362 is VACATED. Citation No .
3588361 is MODIFIED to delete the significant and substantial
designation. As modified, the citation is AFFIRMED and C. W.
Mining Company is ORDERED TO PAY Secretary of Labor the sum of
$225.00 within 40 days of the date of this decision.

. -·-·~
'l ..

.

I
/ '

'i

//

/ -~£,Acy--- . A"--Cl!-'z~~Richard W. Manning
Adminis trative Law Judge

~- ~
~

Distribution :
Ned D. Zamarripa, Conference and Litigation Representative, Mine
Safety and Health Administration, P.O. Box 25367, Denver, co
80225 - 0367 (Certified Mail)
Carl E. Kingston, Esq . , 3212 South State Street, P . O. Box 15809,
Salt Lake City, UT 84115 (Certified Mail)

RWM

944

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

JUN 1 5 1995
TOPPER COAL COMPANY, INC.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.
I

CONTEST PROCEEDING
Docket No . KENT 94-944-R
Citation No. 4243301; 5/19/94
No . 9 Mine
Mine ID 15-17326

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-1052
A. C . No . 15-17326-03506 S
No. 9 Mine

TOPPER COAL COMPANY, INC . ,
Respondent
DECI SI ON
Appearances:

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

Before:

Judge Hodgdon

These cases are before me on a notice of contest and
petition for assessment of civil penalty filed by Topper Coal
Company, Inc . against the Secretary of Labor and by the Secretary
of Labor, acting through his Mine Safety and Health
Administration (MSHA), against Topper Coal, respectively,
pursuant to Section 105 of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c . § 815. The company contests the issuance of
Citation No. 4243301 to it on May 19, 1994 . The Secretary's
petition seeks a civil penalty of $8,500.00 for the v i olation
alleged in the citation. For the reasons set forth below, I
affirm the citation, as modified, and assess a penalty of
$5,000.00 .
945

The cases were heard on February 22 and 23, 1995, in
Pikeville, Kentucky. MSHA Coal Mine Inspectors Howard Wi l liams
and Elmer Hall, Jr. and MSHA Coal Mine Safety and Health
Specialist Cheryl S. McGill testified for the Secretary.
Mr. Gary D. Fields, MSHA Coal Mine Inspector Jerry D. Abshire
and MSHA Conference Litigation Representative Gerald W. McMasters
testified on behalf of Topper Coal. The parties have also filed
briefs which I have considered in my disposition of these cases .

FACTUAL BACKGROUND

The facts surrounding this case are not disputed. On
May 19, 1994, Inspectors Williams, Hall and Ronald Honeycutt went
to Topper Coal's No. 9 Mine to conduct a spot saturation
inspection for smoking articles in the mine.
Inspector Hall
informed Mr. Fields, President and owner of Topper Coal, that the
inspectors were present to conduct an inspection, although he did
not inform Mr . Fields that they were looking for smoking
materials. He also instructed Mr. Fields not to call into the
mine to advise the miners underground that the inspectors were
coming. Hall and Honeycutt then went underground and Williams
remained in the mine office with Fields.
About 15 or 20 minutes after the inspectors had gone into
the mine, Mr. Fields went to the mine telephone, picked it up
and, without saying anything to Williams, called into the mine
and said "James, there are two federal inspectors in there.
Tell
11
the men to watch out and be careful.
(Tr. 177.)
On hanging up,
Fields told Williams that he was afraid the men underground would
not see the inspectors and run over them with a shuttle car.
As a result of this call, Inspector Williams issued the
citation in question.
It alleged a violation of Sect.i on 103(a)
of the Act, 30 U.S . C. § 813(a), and stated that:
"Gary Fields owner impeded a Saturation Spot Inspection (CAB) by calling
underground on the mine phone notifying the miners [that] two
Federal Inspectors [were] on their way inside, after being
i nformed by Elmer Hall, Howard Williams and Ronald Honeycutt
(federal inspectors) not to notify the miners underground of the
inspectors ' presence."
(Jt . Ex . 1 . )

946

No smoking materials were found.
However, two citations for
other violations were issued as a result of the inspection.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
Section 103{a) of the Act provides, as pertinent to this
case, that:
Authorized representatives of the Secretary .
shall make frequent inspections and investigations in
coal or other mines each year for the purpose of
(4) determining whether there is compliance with the
mandatory health or safety standards or with any
citation, order, or decision issued under this title or
other requirements of this Act . In carrying out the
requirements of this subsection, no advance notice of
an inspection shall be provided to any person . .
In carrying out the requirements of clause[ ] . . .
(4) of this ·subsection, the Secretary shall make
inspections of each underground coal or other mine in
its entirety at least four time a year . . . . The
Secretary shall develop guidelines for additional
inspections of mines based on criteria including, but
not limited to, the hazards found in mines subject to
this Act, and his experience under this Act and other
health and safety laws.
For the purpose of making any
inspection or investigation under this Act, the
Secretary . . . or any authorized representative of the
Secretary . . . shall have a right of entry to, upon,
or through any coal or other mine.

On reading this section of the Act, it is apparent that it
does not explicitly prohibit impeding or interfering with an
inspection. Nevertheless, it is evident from the legislative
history that Congress intended thi's section to give "a broad
right-of-entry to the Secretaries or their authorized
representatives to make inspections and investigations of all
mines under" the Act. S. Rep. No. 95-181, 95th Cong., 1st Sess.
27 (1977), reprinted in Legislative History of the Federal Mine
Safety a.n d Health Act of 1977, at 615 {1978).

947

While Section 108(a) (1) (B) of the Act, 30 U.S.C.
§ 818(a) (1) (B), provides th~t the Secretary may seek an
"injunction, restraining order, or any other appropriate order"
from a United States district court whenever an operator or his
agent "interferes with, hinders, or delays the Secretary or his
authorized representative . . . in carrying out the provisions of
this Act," it is generally accepted that such conduct is also
forbidden by Section 103(a) . Thus, one treatise states" [i]n
addition to seeking injunctive relief, the Secretary of Labor may
issue citations for interference with the conduct of an
inspection." l Coal Law and Regulation§ 8 . 04 (1983).
See also
"103(a) Denials of Entry" I MSHA Program Policy Manual§ 103(a)
(1988) [instructing inspectors to cite operators under Section
103(a) for being "threatened or harassed" while making an
inspection] .
In Waukesha Lime and Stone Co., 3 FMSHRC 1702 (July 1981),
the Commission held that a refusal to permit an inspection
violated Section 103(a) of the Act.
In so doing, it rejected the
company's argument that injunctive relief under Section 108(a) (1)
provided the Secretary's sole remedy when an operator engaged in
the activities set out in that section, 1 holding:

1

Section 108(a) (1) provides:

The Secretary may institute a civil action for
relief, including a permanent or temporary injunction,
restraining order, or any other appropriate order in
the district court of the United States for the
district in which a coal or other mine is located or in
which the operator of such mine has his principal
off ice, whenever such operator or his agent-(A)
violates or fails or refuses to comply
with any order or decision issued under this Act,
(B)
interferes with, hinders, or delays the
Secretary or his autho.rized representative . . .
in carrying out the provisions of this Act,
(C)
refuses to admit such representatives to
the coal or other mine,
(con't on next page)

948

First, notwithstanding the absence of express
statutory language, it is illogical to assume that
Congress intended to mandate inspections and a right of
entry for the Secretary's authorized representative
pursuant to section 103(a), without viewing the
operator's denial of entry as a dereliction of its duty
under the Act. . • . Second, we reject the contention
that a section 108(a) (1) injunction is the Secretary's
sole remedy if an operator denies entry to his
authorized representative. Rather, dual remedies
exist : an administrative remedy under sections 104 and
llO(a), and a civil injunctive remedy under section
108(a) (1). We believe that if Congress had intended
injunctive relief to be the exclusive remedy, it would
have stated so unequivocally.

Id. at 1704.
Subsequent~y, the Commission has continued to construe
Section 103(a) broadly.
In United States Steel Corp . , 6 FMSHRC
1423 (June 1984), the Commission held that the failure to provide
an inspector transportation to the site of an accident prevented
him from inspecting the scene and was, therefore, a violation of
Section 103(a).
Id. at 1431. With more significance to this
case, the Commission also held that the company's insistence on
the presence of a company attorney at an interview during the
investigation of the accident, without specifying when the
attorney would be present, combined with the failure to produce
an attorney, "had the effect of unreasonably delaying the
accident investigation" and that this delay "impeded" the
investigation in violation of Section 103(a).
Id. at 1433.

(D)
refuses to permit the inspection ot the coal
or other mine, or the investigation of an accident or
occupational disease occurring in, or connected with,
such mine,
(E)
refuses to furnish any information or report
requested by the Secretary .
in furtherance of the
provisions of this Act, or
(F)
refuses to permit access to, and copying of,
such records as the Secretary . . . determi nes
necessary in carrying out the provisions of this Act .

949

In Calvin Black Enterprises, 7 FMSHRC 1151 (August 1985),
the Commission found that when inspectors were told that they
were trespassing and needed written permission fro~ the operator
to inspect they were effectively prevented from entering the
mine. Stating that "MSHA inspectors are not required to force
entry or to subject themselves to possible confrontation or
physical harm in order to inspect," the Commission affirmed a
violation of Section 103(a). Id. at 1157.
In Sanger Rock & Sand, 11 FMSHRC 403 (Judge Cetti, March
1989), a Commission judge found a violation of Section 103(a)
when the operator refused to cooperate in an inspection by
delaying in furnishing records the inspector needed to see and by
calling the inspector a "liar." Just recently, another
Commission judge concluded, in another case involving an
inspection for smoking materials, that calling into the mine
after being instructed not to by MSHA inspectors was a violation
of Section 103(a). Cougar Coal Co . , 17 FMSHRC 628 (Judge Amchan,
April 1995) .
Based on the legislative history and the case law, I
conclude that the 11 broad right-of-entry" in Section 103(a)
includes a prohibition against the operator impeding or
interfering with the inspection. Consequently, I conclude that
the citation in this case describes a violation of the Act.
Turning to the facts in this case, I find that Mr. Fields
obstructed the inspection. As he admitted, he "thought [Hall]
was just going in there and just sneak up on them [the miners
underground] and just see what he could catch them doing."
(Tr. 196-97.) He further admitted that he understood that the
inspectors did not want him to call underground and let his men
know that the inspectors were coming into the mine.
{Id.)
Knowing this, and without further questioning the inspectors or
explaining to them any concerns he might have had about this
plan, he proceeded to call into the mine and alert his men that
"two federal inspectors" were coming into the mine.
(Tr. 177.)
Fields claim that the call was made purely for safety
reasons is not accepted. He did not express any such safety
concerns when the inspectors initially explained to him what they
wanted to do. He did not express any safety concerns to
Inspector Williams when he decided to make the call. It appears

9 50

that his concern for safety was an attempt to rationalize the
call after he made it. Furthermore, if he was only concerned
that the inspectors not be run over, he did not have . to identify
the people entering the mine as "federal inspectors." Finally,
he stated at the hearing that when he called into the mine, he
"figured they were there," that is, that the inspectors were
already on the section. {Tr. 199.) If he believed that, the
safety claim makes no sense, since the miners would presumably
have already observed the inspectors.
Based on this evidence, I conclude that Mr. Fields impeded
the inspection. Accordingly, I conclude that Topper Coal
violated Section 103{a) of the Act as alleged. 2
Significant and Substantial
The violation in this case was declared to be "significant
and substantial." A 11 significant and substantial" (S&S)
violation is des.cribed in Section 104 (d) (1) of the Act, 30 U.S.C.
§ 814(d) (1), 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 S&S "if, based upon the
particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature. 11 Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the
Commission set out four criteria that have to be met before a
violation can be found to be S&S. The criteria are:
(1)
violation of a mandatory safety standard; (2) contribution to a
safety hazard by the violation; {3) a reasonable likelihood that
the hazard will result in an injury; and (4) a reasonable
likelihood that the injury will be of a reasonably serious

•...
...

..·.•,
2

Respondent's arguments that the inspection was not
conducted "within reasonable limits and in a reasonable manner,"
Resp. Br. at 9-10, has been considered and rejected as
unpersuasive.

951

nature.
Id. at 3-4. See also Austin Power, Inc. v. Secretary,
861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc.,
9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).
This evaluation is made in terms of "continued normal mining
operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574
(July 1984) . The question of whether a particular violation is
significant and substantial must be based on the particular facts
surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (April
1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 1007 (December
1987).
Rather than address this violation in terms of the Mathies
criteria, the Secretary states that:
It is the Secretary's position that where the
operator denies or otherwise interferes with the
Secretary's right of entry under section 103(a) of the
Act, this violation should be presumed to be
significant and substantial. The Secretary's right of
entry is the mechanism by which the entire Act is
enforced. If the Secretary is denied entry, directly
or indirectly, he is unable to determine the number and
the type of violative conditions which pose serious
hazards to miners working underground and to ensure
that these hazards are eliminated.
Sec. Br . at 10.
The Respondent, apparently following Mathies, argues that
the violation is not "significant and substantial" because no
smoking materials were found during the inspection and the mine
does not have a history of methane liberation, "so there is no
way that an explosion could have been reasonable like~y to have
occurred as a result of this violation." Resp. Br . at 11. The
company also points out that when the inspector issued the
citation in this case, he found that the violation was not
"significant and substantial . "
The problem with trying to assess this violation under the
traditional criteria is that there is no way of knowing what the
inspectors would have found if the miners had not been alerted to
their presence . Since neither Mr. Fields nor the miners were

952

aware of the specific purpose of the inspection, the fact that no
smoking materials were found does not necessarily indicate that
those miners who did have smoking materials somehow ~isposed of
them. On the other hand, the logical consequence of warning
underground miners that inspectors are on their way underground
would be for the miners to attempt to cover-up, dispose of, or
even correct any viola'tions of which they are aware.
Although there is no evidence that that happened in this
case, there is also no evidence that violations were not coveredup.
Generally speaking, I find that when an inspection is
interfered with in this manner, it is reasonably likely that an
S&S violation wou l d have been discovered. Therefore, I conclude
that when an inspection is impeded there is a presumption that
the violation is S&S.
In this case, the Respondent has not presented any evidence
that would rebut such a presumption. Accordingly, I find that
the violation of Section 103(a) was 11 significant and
substantial."
Degree of Negligence
A week after the citation was issued in this case, the
degree of negligence was modified from "moderate" to "reckless
disregard." Moderate negligence is defined in the Regulations
as:
"The operator knew or should have known of the violative
condition or practice, but there are mitigating circumstances."
30 C.F.R. § 100.3(d) (Table VIII). Reckless disregard is defined
as:
"The operator displayed conduct which exhibits the absence
of the slightest degree of care. 11
Id.
Reckless disregard is
also the type of conduct which characterizes a finding of
"unwarrantable failure" under Section 104(d) (1) of the Act,
30 U.S.C. § 814(d) (1) . 3 Wyoming Fuel Co., 16 FMSHRC 1618, 1627

"

3

Curiously, while the citation was modified from alleging
a violation under Section 104(a), 30 U.S.C. § 814(a), to allege
an "unwarrantable failure" under Section 104(d) (1) when the
degree of negligence was modified, it was subsequently modified
again back to a Section 104(a) violation.

953

·:·.

·:-:

(August 1994); Rochester & Pittsburgh Coal Corp. , 13 FMSHRC 189,
193 - 94 (February 1991); Emery Mining Corp., 9 FMSHRC 1997, 200304 (December 1987) .
The Secretary argues that Mr . Fields actions constituted
reckless disregard because he "deliberately disregarded the
inspectors' instructions and telephoned underground personnel to
warn them that inspectors were traveling to the section . " Sec.
Br. at 11 .
It is the Respondent's position that this conduct
"did not constitute reckless disregard since the operator did not
even know the purpose of this investigation prior to phoning
underground." Resp. Br. at 11.
The fact that Mr. Fields did not know the specific purpose
of the inspection does not reduce the degree of negligence in
view of the fact that he did know that the inspectors did not
want him to call into the mine and he understood their reason
for directing him not to do so. However, the evidence does not
support a finding that he exhibited a total absence of care.
His concern for safety, even if expressed only in a last minute
attempt to justify his actions, removes his conduct from the
reckless disregard definition.
Fields' conduct is better described as that he knew of the
violative condition or practice and there are no mitigating
circumstances, which happens to be the definition of "high"
negligence in the Regulations.
30 C.F.R. § 100.3(d) (Table VIII).
This finding is also consistent with the Secretary's modification
of the citation from one under Section 104(d) (1) to one under to
one under Section 104(a). Consequently, I conclude that the
degree of negligence for this violation was " high" rather than
"reckless disregard" and will modify the citation accordingly.

CI VIL PENALTY ASSES SMENT
The Secretary has proposed a civil penalty of $8,500.00 for
this violation. The Respondent argues that if it did violate the
Act, a penalty of $250.00 is appropriate. It is the judge's
independent responsibility to determine the appropriate amount of
pen alty, in accordance with the six criteria set out i n Section

954

.··,

§ 820(i).
Sellersburg Stone Co. v .
Federal Mine Safety and Health Review Commission, 736 F . 2d 1147,

llO(i) of the Act, 30 U.S.C .
1 1 51 (7th Ci r . 1984).

A computer printout of Topper Coal's violation history
indicates that it was assessed 141 penalties in the t wo years
preceding this violation, 115 of which were S&S .
(Govt. Ex. 1.)
Although the allied papers indicate that this is a small company
(135,401 production tons per year) and a small mine (29,716
production tons per year), it cannot be said that this company's
violation history warrants increasing the penalty.
The parties have stipulated that 11 [p)ayment of a reasonable
penalty wil~ not have an adverse effect on the ability of the
operator to continue in business."
(Jt. Ex. 2.)
Since the
proposed penalty was $8,500.00 when this stipulation was entered
into, I conclude that a penalty of that amount is considered
reasonable and will not have an adverse effect on the company ' s
ability to continue operating.
Once committed, this violation could not be abated.
I note,
however, that there is no evidence that the either the company or
any of its personnel had interfered with inspections before or
since this violation, nor had the company been cited for any
smoking violations.
(Govt. Ex . 1.)
The gravity of this violation is very serious. The
Secretary's right to inspect mines without obstruction or
interference goes to the heart of the Mine Act and such actions
cannot be permitted. Furthermore, the Respondent was pighly
negligent in this case and there are no factors which mitigate
Mr . Fields' conduct .
Accordingly, taking all of this into consideration ,
including the reduction in the company ' s degree of negligence,
I conclude that a penalty of $5,000.00 is appropriate for this
violation and a company the size 'of Topper Coal.

955
-~

ORDER

Citation No . 4243301 is MODIFIED to reduce the . level of
negligence from "reckless disregard" to 11 high 11 and AFFIRMED as
modified. Topper Coal Company, Inc . is ORDERED to pay a civil
penalty of $5,000.00 within 30 days of the date of this decision.
On receipt of payment,· this proceeding is DISMISSED.

'-!~~

Administrative Law Judge

Distribution:
Billy R. Shelton, Esq . , Baird, Baird, Baird & Jones, P . S . C., 415
Second Street, P.O. Box 351, Pikeville, KY 41502 (Certified
Mail)
Susan E. Foster, Esq., Office of the Solicitor, Department of
Labor, 2002 Ri char d Jones Rd., Suite B-201, Nashvi l l e , TN 372152862 (Certified Mail)
/lbk

956

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

JUN 1 5 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
RICHARD E . GLOVER AND
LEON KEHRER,
Complainants

DISCRIMINATION PROCEEDING
Docket No . LAKE 95-78-D
VINC CD 94-10
Rend Lake Mine 11-00601

v.
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Lisa A. Gray, Esq., Office of the Solicitor, U.S.
Department of Labor, Chicago, Illinois for the
Complainant;
Elizabeth Chamberlin, Esq., Pittsburgh,
Pennsylvania for the Respondent.

Before:

Judge Melick

This case is before me upon the complaint by the Secretary
of Labor on behalf of Richard E. Glover and Leon Kehrer pursuant
to Section lOS(c) (2) of the Federal Mine Safety and Health Act of
1977, 30 u.s . c. § 801, et seq., the "Act". The Secretary alleges
that the consolidation Coal Company (Consol) transferred these
complainants in violation of Section 105(c) (l} of the Act 1
1

Section 105{c) (1) of the Act provides as follows:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject to
this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under or
related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of
the miners at the coal or other mine of an alleged danger or
safety or health violation in a coal or other mine, or
because such miner, representative of miners or applicant for
employment is the subject of medical evaluations and potential
transfer under a standard published pursuant to section 101 or
because such miner, representative of miners or applicant for
9 57

because of their activities as miners' representatives. In
particular, it is alleged that the Complainants were removed from
their jobs as "scooter barn" mechanics on June 21, 1994, because
their "walkaround" duties performed under Section l"03(f) of the
Act purportedly interfered with the efficiency of the scooter
barn area. 2 Indeed it is undisputed that Consol removed the
Complainants from their jobs as scooter barn mechanics because of
their activities as miners' representatives in order to make the
scooter barn area more efficient.
A preliminary issue is whether the Complainants were in fact
"representatives of miners" within the meaning of the Act during
relevant times and , in particular on June 21 , 1994, when they
were transferred. Pursuant to the directive in Section 103(f) of
the Act the Secretary in his regulations at 30 C. F.R. § 40.l(b)
has defined representative of miners as "any person or
organization which represents two or more miners at a coal or
other mine for the purposes of the Act." Moreover, in Utah Power
and Light Company v. Secretary, 897 F.2d 447, 455 (10th Cir.
1990) the circuit Court confirmed that any person or organization
representing two or more miners is a miners' representative under
Section 40.l(b).
In this case the Complainants both testified that prior to
June 21, 1994, they were appointed as "safety committeemen" by an
official of the local union in order to perform walkaround
functions under the Act. Moreover, in each case, that
appointment was confirmed by vote of the local union composed of
miners at the Rend Lake Mine. It may reasonably be inferred from
this undisputed evidence, therefore, that both Glover and Kehrer
were, as of June 21, 1994, appropriately representing two or more
miners at the Rend Lake Mine and were accordingly representatives
of miners within the meaning of Section 103(f) of the Act.
Footnote 1 continued
employment has instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is
about to testify in any such proceeding, or because of the
exercise by such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory right
afforded by this Act.
2

Section l03(f} provides that "[s]ubject to regulations
issued by the Secretary, a representative of the operator and a
representative authorized by his miners shall be given an
opportunity to accompany the Secretary or his authorized
representative during the physi_c al inspection of any coal or
other mine made pursuant to the provisions of subsection (a), for
the purpose of aiding such inspection and to participate in preor post-inspection conferences held at the mine."

958

Factual Background
Both Glover and Kehrer had worked as "scooter barn"
mechanics at the Rend Lake Mine for many years prior to June 21,
1994. Glover had worked at the mine for 25 years and for 17 of
those years had been a "scooter barn" mechanic. Kehrer had
worked at the mine for 21 years. The scooter barn is located
underground and on June 21, 1994, was situated about 150 feet
from the bottom of the "B" shaft. It is a shop area 18 feet by
70 feet in size with rock walls, a beamed ceiling and a cement
floor containing equipment including welders, drill presses, and
grinders. One mechanic on each of the three shifts works out of
the scooter barn and is ordinarily supervised only at the
beginning of the shift. Glover worked primarily on rubber-tired
equipment and occasionally worked outside the scooter barn on
heavier equipment. Glover was then also a representative of
miners serving as a "walkaround" with mine inspectors about two
thirds of his work time. He later estimated that he and Kehrer
(on the "C" shift) each spent four days out of five working as
walkarounds.
According to Glover, at the end of his shift on Friday,
June 21, 1994, he was told by his boss, Vernell Burton, that he
would be taken out of the scooter barn because of his work as a
walkaround. Burton also told him there was a possibility that if
he would quit his walkaround activities he could stay at the
scooter barn. When Glover returned to work on Monday, June 24,
he was transferred to work as a mechanic on the 1-G Section. He
again asked Burton if he would be permitted to stay at the
scooter barn if he gave up his walkaround duties but Burton did
not respond. At the end of his shift Glover and Complainant Leon
Kehrer went to the mine superintendent's office. According to
Glover, Superintendent Wetzel explained that the job transfer was
made to increase productivity at the scooter barn. At this
meeting, maintenance supervisor Wamsley offered the Complainants
the option to quit their walkaround duties and remain in the
scooter barn but Wetzel overruled him, stating that it was not an
option. Glover acknowledged that Wetzel told him that he was
doing a good job as a walkaround but they needed somebody full
time in the scooter barn.
According to Glover, working on the section as an
underground mechanic is significantly less desirable than working
in the scooter barn and conditions on the section were more
hazardous. Because of this Glover subsequently bid on a motorman
job taking a $1.00-an-hour pay cut.
Billy Ray Sanders, a former inspector for the Illinois
Department of Mines and Minerals, was performing an inspection at
the Rend Lake Mine on June 21, 1994. He happened to be outside
the off ice of Maintenance Supervisor John Moore when he overheard
Moore tell Kehrer that they had a meeting and decided to remove

959

him from his job in the scooter barn because of his work as a
11 walkaround 11 for Federal and state Inspectors.
Sanders heard
Moore tell Kehrer that if he wanted to give up his walkaround
duties he could remain as a scooter barn ~echanic but otherwise
he would be transferred to the section. Kehrer asked for
Sanders' assistance to prevent his transfer but, upon checking
with his legal department, Sanders found he could not help.
Kehrer heard about his possible transfer from the scooter
barn because of his duties as a "walkaround" from one of his
bosses, Randy Price. Assistant Maintenance Superintendent
John Moore also told Kehrer that he was to be transferred from
the scooter barn because of his walkaround activities.
Scott Wamsley confirmed to Kehrer that he either had to quit his
walkaround duties or lose his job as a scooter barn mechanic.
Kehrer then met with Wetzel who repeatedly stated that "my
official statement [reason] is to make the scooter barn more
productive."
Kehrer testified that he was then transferred to the 3-F
Section and initially had no supervisor, no tools and no work
assignments . According to Kehrer the section mechanics perform
more difficult and heavier work and are subject to more dangerous
conditions than .scooter barn mechanics. They work with A.C.
power, and are exposed to dust, methane and potentially dangerous
roof and rib conditions.
Kehrer also noted that the scooter barn mechanic on the
B-shift was not a representative of miners and was not
transferred to the sections unlike he and Glover. Kehrer
conceded that there was, indeed, a transportation problem at the
mine because the bad road conditions in the mine damaged
equipment . He also noted that there were not enough mantrips in
the mine in any event.
On behalf of Consol, Lead Maintenance Foreman Vernell Barton
testified that during June 1994, he was in charge of the service
and maintenance of the transportation equipment. He had a good
working relationship with both Complainants and was not involved
in the transfer decision. Barton had been told that Glover was
transferred because the time he was missing on day shift left
them short handed. They had to use a fill-in mechanic in the
scooter barn in Glover's absence and initially the replacements
were not as skilled . He was told several months before
June 1994, that they needed to have someone at the scooter barn
at all times because of the aging of the equipment and the
increasing use of diesel equipment required increased
maintenance.
John Robert Moore testified that he was an assistant to the
master mechanic in June 1994, in charge of the transportation
equipment. He too reported to Scott Wamsley. Moore was also

9 60

..

.·

involved in the decision to transfer the Complainants. He
recalled a staff meeting on June 11 to discuss various problems
at the mine including inadequate transportation of the hourly
employees to their work stations. Nine of the people attending
the meeting raised this issue and the apparently related problem
of not always having a mechanic available in the scooter barn .
They wanted a mechanic to be available at the scooter barn 24
hours a day. Moore testified that he was told by Wamsley that it
would be necessary to move the Complainants out of the scooter
barn to have somebody available all the time. According to Moore
they also needed someone trained to work on their new diesel
equipment available all the time.
Moore testified that in June 1994, although there were nine
or ten mechanics working on each of the three shifts and that any
one of these could have worked on the section as mechanics, only
one or two per shift were capable of working in the scooter barn
as substitutes. Moore acknowledged, however, that the
transportation problems they had in June 1994, were the same
problems they had since 1989. Moore maintains that they did not
have the people to train to fill in. Moore acknowledged that he
told Kehrer that if he would give up his walkaround duties he
could stay in the scooter barn.
Mine Superintendent Joseph Wetzel testified that he
scheduled the management meeting on June 11, 1994, to "define
roles and solve problems". According to Wetzel the subsequent
transfer of the Complainants was not as punishment but was the
result of transportation problems. Wetzel testified that someone
suggested offering the Complainants a choice to resign as
representatives of miners but he wanted them to continue in that
capacity and therefore did not give them a choice. Wetzel also
testified that since their transfer the maintenance staff had
been increased but not sufficiently to allow for fill-ins at the
scooter barn.
When the above essentially undisputed facts are distilled,
what emerges is in essence a policy by Consol that effectively
bars miners' representatives at the Rend Lake Mine from holding
the position of scooter barn mechanic. It may also reasonably be
inf erred from the evidence that under this policy no one serving
as a miners' representative could even be considered for the
scooter barn job because of his activities as a miners'
representative. Conversely, under the Consol policy no person
presently holding the position of scooter barn mechanic could
accept the duties as a miners' representative without fear of
losing his scooter barn job and being transferred to less
desirable and more hazardous work.

96 1

Analysis

Ordinarily it is essential in proving a case of
discrimination under section 105 ( c) ( 1) of the Act t ·h at there be a
determination of unlawful motive. The Act prohibits retaliatory
conduct or discrimination that is motivated by a miner's
exercising any protected right. Nevertheless, situations have
arisen in which proof that adverse action was improperly
motivated has not been required. The Supreme Court has permitted
a showing of facial discrimination under section 8(a) (3) of the
National Labor Relations Act ("NLRA"), 29 u.s.c. § 158(s) (3) :
"Some conduct . . • is so 'inherently destructive of employee
interests ' that it may be deemed proscribed without need for
proof of an underlying improper motive . " NLRB v. Great Dane
Trailers, 388 U.S . 26, 33 (1967) (citations omitted). Moreover,
the Commission held in UMWA and Carney v. Consolidation Coal Co.,
1 FMSHRC 338, 341 (1979), that an operator's business policy was
facially discriminatory. There, the Commission found that, under
section llO(b) of the Coal Act (30 u. s . c . § 820(b) (1976) (amended
1977), the predecessor to section 105(c), a company policy
requiring union safety committeemen to obtain permission from
management before leaving work to perform safety duties was
unlawful because it impeded a miner's ability to inform the
Secretary of alleged safety violations. See also Simpson v.
FMSHRC, 842 F.2d 45 3 , 462-63 (O.C. Cir. 1988) (when mine
conditions intolerable, operator motive need not be proven to
establish constructive discharge). Cf. Secretary on behalf of
Price and Vacha v. Jim Walter Resources, Inc., 12 FMSHRC 1521,
1532-33 (1990) (held that operator's policy was not facially
discriminatory.)
In Swift et al. v. Consolidation Coal Company, 16 FMSHRC
201, 206 (1994) , the Commission held that in order to establish
that a business policy is discriminatory on its face, a
complainant must show that the explicit terms of the policy,
apart from motivation or any particular application, plainly
interferes with rights under the Act or discriminates against a
protected class. The Commission further noted that once a policy
is found to be discriminatory on its face, an operator may not
raise as a defense the lack of discriminatory motivation or valid
business purpose in instituting the policy.
When reviewing a claim of facial discrimination, the
Commission has also stated:
"The Commission does not sit as a super grievance board to
judge the industrial merits, fairness, reasonableness, or
wisdom of [a challenged business program or policy] apart
from the scope and focus appropriate to analysis under
section 105(c) of the Min~ Act. 11 our limited purpose is to

962

focus simply on whether the (program) or enforcement of some
component thereof conflicts with rights protected by the
Mine Act.
Price and Vacha 12 FMSHRC at 1532 (citation omitted).
Within this framework of law it is clear that Consol's
policy herein is, indeed, facially discriminatory. By
effectively barring miners' representatives from holding the
desirable job of scooter barn mechanic, by discouraging persons
who might wish to work as scooter barn mechanics from becoming
miners• representatives and by removing persons from such a
position upon the assumption of activities as a miners'
representative , Consol's policy unlawfully discriminates against
the protected class of miners' representatives and those who
would otherwise be willing to serve in that capacity. It is
significant to note that this policy also effectively restricts
miners' rights to select whom they wish to have represent them
under Section 103(f) of the Act. See Kerr-McGee Coal Corp. v.
FMSHRC, 40 F . 3d 1257 (D . C. Cir . 1994), petition for cert . filed,
63 U.S.L.W . 3805 (U.S. Apr . 14, 1995) (No. 94-1685). Under the
circumstances Consol's policy which led to the transfer of the
complainants herein is facially discriminatory and in violation
of the Act.
The policy at issue and the specific action by Consol in
transferring the Complainants in this case for their activities
as miners' representatives is also discriminatory under the
customary analysis applied to discrimination cases. The
Commission has long held that a miner seeking to establish a
prima facie case of discrimination under section 105(c) of the
Act bears the burden of persuasion that he engaged in protected
activity and that the adverse action complained of was motivated
in any part by that activity . Secretary on behalf of Pasula v.
Consolidation Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The
operator may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was in no
part motivated by any protected activity. If an operator cannot
rebut the prima facie case in this manner, it may nevertheless
defend affirmatively by proving that it would have taken the
adverse action in any event on the basis of the miner's.
unprotected activity alone. Pasula, supra; Robinette, supra.
See also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642
(4th Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d
954, 958-59 (D.C. Cir. 1984); Boich v . FMSHRC, 719 F.2d 194, 19596 (6th Cir. 1983) (specifically approving the Commission's
Pasula-Robinette test). Cf. NLRB v. Transportation Management
Corp., 462 U.S. 393, 397-413(1983) (approving nearly identical
test under National Labor Relations Act).
There is no dispute in this case that both Complainants, as
miners• representatives, were members of a protected class and
9 63

had engaged in protected activity prior to their transfer.
It is
also clear that the adverse action complained of (the transfer of
the Complainants from their job as scooter barn mechanics to
section mechanics) was motivated solely by their protected
activity as miners' representatives (because of their timeconsuming work in that capacity). Since this case does not
therefore involve a "mixed-motive", discrimination under the Act
is established and no further analysis under Fasula is necessary.
Consol cannot under the circumstances prevail with an
affirmative defense that it based its transfer of Glover and
Kehrer on unprotected activity alone since it admits that their
transfer was based upon their activities as miners'
representatives . Indeed, it cannot be disputed that the adverse
action was solely motivated by the fact that the Complainants
were performing their duties as representatives of miners. They
were admittedly transferred because their walkaround duties
detracted from the time devoted to their duties as scooter barn
mechanics. The Secretary has in this manner, therefore, also
proven discrimination under the Fasula analysis.
Even assuming, arguendo, that this case involves a "mixed
motive" in the sense that Consol was also motivated in
transferring Glover and Kehrer by business related concerns that
their activities as miners' representatives was affecting mine
productivity and efficiency, those concerns cannot prevail over
the express Congressional intent to construe Section 105(c)
"expansively to assure that miners will not be inhibited in any
way in exercising any rights afforded by the [Act]."
s. Rep. No. 95-181, 95th Cong., 1st Sess., at 35 & 36 (1977)
["S. Rep."], reprinted in Senate Subcommittee on Labor, Committee
on Human Resources, 95th Cong., 2d Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 623 & 624
{1978) ["Leg . Hist . "] .
That Senate Committee also stated in that report as follows:
"If our national mine safety and health program is to be
truly effective, miners will have to play an active part in
the enforcement of the Act. The Committee is cognizant that
if miners are to be encouraged to be active in matters of
safety and health, they must be protected against any
possible discrimination which they might suffer as a result
of their participation" .
Moreover, in creating a protected class of miners'
representatives under Section 103(f) of the Act, Congress
expressly recognized that there would be related economic costs
to the industry. Thus, while it may be true that Consol ·could
operate more productively and efficiently by prohibiting miners'
representatives from holding certain jobs, Congress has clearly

964

determined that such business reasons cannot be used to justify
discrimination against them as Consol suggests herein.
Considering the serious impact Consol's actions herein would
have on the willingness of persons to serve as miners'
representatives and the intentional and obvious discriminatory
nature of its actions in conjunction with other criteria under
Section 110(i) of the Act, I find that a civil penalty of $10,000
is appropriate.

ORDER
In accordance with the damages requested by the Secretary,
Consolidation Coal Company is hereby directed to (1) immediately
restore the Complainants to their positions as scooter barn
mechanics at the appropriate rate of pay for the position, and
(2) post for a period of not less than 60 days a notice at Rend
Lake Mine in a prominent place frequented by miners, which states
its recognition of miners' statutory rights to file complaints of
discrimination and to participate as miners' representatives with
the Mine Safety and Health Administration; and its commitment to
honor these rights, and not to interfere in any manner with the
exercise of these rights. Consolidation Coal Company is further
directed to pay c i vil penalties of $10,000 for the violations in
this case.

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Gary Melick
Administrative Law Judge
(703)1756-6262
Distribution:
Lisa A. Gray, Esq., Office of the Solicitor, U.S. Dept ~ of Labor,
230 s . Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified
Mail)
Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15421 (Certified Mail)
/jf

9 65

·:

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

JUN 1 9 1995
BRUSHY CREEK COAL COMPANY,
Contestant

CONTEST PROCEEDINGS

v.

Docket No. LAKE 94-168-R
Citation No . 4260292; 3/29/94

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

Docket No. LAKE 94-171-R
Citation No. 4260295; 3/29/94
Docket No. LAKE 94-172-R
Citation No . 4266730; 3/29/94
Docket No. LAKE 94-173-R
Citation No. 4266732; 3/29/94
Docket No. LAKE 94-174-R
Citation No . 4266773; 3/29/94
Docket No. LAKE 94 - 175-R
Citation No. 4260297; 3/29/94
Docket No. LAKE 94 - 176-R
Citation No. 4261610; 3/29/94
Brushy Creek Mine
Mine I.D. No. 11-02636
CIVIL PENALTY PROCEEDINGS

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

Docket No. LAKE 94-250
A . C. No. 11 - 02636-03864

v.
Docket No. LAKE 94-251
A . C . No . 11-02636-03865

BRUSHY CREEK COAL CO., INC . ,
Respondent

Docket No . LAKE 94-459
A.C . No. 11-02636-03866
Brushy Creek Mine

966

DECISIONS
Appearances:

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

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern notices of contest
filed by Brushy Creek Coal Company (Brushy Creek) , pursuant to
Section lOS(d) of the Federal Mine Safety and Health Act of
1977, challenging the legality of seven (7) section 104(a)
citations issued at the mine on March 29 and 30, 1994, in the
course of a MSHA ventilation inspection. The civil penalty cases
concern proposed assessments filed by the Secretary against
Brushy Creek for the alleged violations. Consolidated hearings
were held in Evansville, Indiana, and the parties filed posthearing arguments that I have considered in the course of my
adjudication of these matters .
Issues
The issues presented in these proceedings are whether the
cited conditions or practices constituted violations of the
cited safety standards, whether the alleged violations were
"significant and substantial" ("S&S"), and the appropriate
civil penalties to be imposed for the violations, taking into
account the penalty criteria found in section llO(i) of the Act.
Additional issues raised by the parties are identified and
disposed of in the course of these decisions.
Applicable Statutory and Regulatory Provisions
1.
The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301, .e..t. ~2.

Sections 104(d), lOS(d) and llO(a) and (i) of the Act.

967

.,

3.
30 C.F.R. §§ 75.332 (a ) ( 1), 75.334 (a) (1), 75.370 (a) (1),
7 5 . 3 8 O ( f ) ( 1 ) , 7 5 . 5 O3 , and 7 5 . 5 O7 - 1 .

4.

Commission Rules, 29 C.F.R.

§

2700.1,

~ ~·

Stipulations
The parties stipulated to the following (Joint Exhibit-1;
Tr. 10-12 ) :
1.
The Federal Mine Safety and Health Review
Commission has jurisdiction over these proceedings.
2.
Brushy Creek and its mines are subject to
the Mine Act.
3.
At all relevant times to these proceedings,
Brushy Creek owned and operated the Brushy Creek Mine,
a bituminous coal mine located in Galatia, Illinois.
4.
Brushy Creek's operation affects interstate
commerce.
5.
The subject mine produced 1,123,941 tons of
bituminous coal from January 1, 1993 through December 31,
1993 .
6.
Brushy Creek produced 2,614,239 tons of
bitumi nous coal at all of its mines from January 1,
1993 through December 31, 1993.
7.
The subject citations were properly served
by duly authorized representatives of the Secretary of
Labor upon agents of Brushy Creek on the dates indicated
therein.
8.
The subject citations may be admitted into
evidence for establishing their issuance, and not for
the truthfulness or relevancy of any statements asserted
therein .
9.
The exhibits to be offered by Brushy Creek
and the Secretary are stipulated to be authentic but no

968

stipulation is made as to their relevance or the truth
of the matters asserted therein.
10. The proposed penalties for each citation will
not effect Brushy Creek's ability to continue in business.
11. Brushy Creek demonstrated good faith by
abating the cited violations.
12. The certified copy of the MSHA Assessed
Violations History (Joint Exhibit 3) accurately
reflects t he history of the subject mine for two years
prior to March 29, 1994 .
Discussion
Qocket Nos. LAKE 94-168-R and LAKE 94-250
Section 104(a) "S&S" Citation No. 4260292, issued on
March 29, 1994, by MSHA Staff Engineer Jeffery Wirth, cites
an alleged violation of 30 C.F.R. 75.332(a) (1), and the cited
condition or practice states as follows:
Return air is flowing out of the old 5-B worked
out panels/rooms and is traveling inby to the
#5 unit producing continuous miner section,
MMU-005.
This air is flowing into the old
5-B worked out panels and continues on inby
after exiting the worked out area to the producing section. This is the same split of air
and is not intake air .
Docket Nos. LAKE 94-171-R and LAKE 94-251
Section 104 (a ) ''S&S" Citation No. 4260295, issuea on
March 29, 1994, by Mr. Wirth, cites an alleged violation of
30 C . F.R. 75.507-1, and the cited condition or practice
states as follows:
The old 5-B worked out panel (return air) is
being traveled with non-permissible equipment golf carts, etc . Golf carts are present in the
worked out area at the time of inspection. Air

969

quality in this worked out area was found to be
as follows: methane 1.9% and oxygen at 18.8%
in an area 4 entries wide and 23 X c long.
Docket Nos. LAKE 94-173-R and LAKE 94-250
Section 104(a) "S&S" Citation No. 4266732, issued on
March 29, 1994, by MSHA Inspector James Holland, cites an
alleged violation of 30 C. F . R. § 75 . 334(a) (1), and the cited
condition or practice states as follows:
worked out area was not ventilated to move
methane into a return air course or to the
surface. Evidence of 1 . 9% CH4 and 18.8% 0/2
was present.

A

Docket Nos. Lake 94-174-R and LAKE 94-459
Section 1 Q4{a) non-"S&S" Citation No. 4266733, issued on
March 29, 1994, · by Mr. Holland, cites an alleged violation of
30 C.F.R. § 75.380{f) (1), and the cited condition or practice
states as follows:
The current of air used to ventilate the primary
escapeway for the No. 5 unit located in Southwest
Mains was not ventilated with intake air.
Docket Nos. LAKE 94-175-R and LAKE 94-250
Section 104(a) "S&S" Citation No. 4260297, issued on
March 30, 1994, by Mr. Wirth, as a section 104(d) (1) citation,
and subsequently modified on April 28, 1994, to a section 104(a)
citation, cites an alleged violation of 30 C.F.R. § 75.370(a) (1),
and the cited condition or practice states as follows:
The continuous miner was observed cutting/
loading coal from the working face with very
little air movement behind the line curtain.
The anemometer would not turn in all the area
behind the line curtain indicating that the
velocity was less than 50 feet per minute (fpm)
in much of the area behind the line curtain . A
velocity of 50 fpm would result in a volume of

970

;,

about 1,000 cubic feet per minute at the end of
the line curtain. With the machine mounted
scrubber not in operation the blades on the
anemometer would not turn at all. A methane
test taken in this working place when mining
ceased indicated methane present at a level of
0.4% . This producing section has been back in
this area since 3/28/94. The operator pulled
out of this producing section during April, 1993
due to large amounts of methane migrating through
the bottoms from an abandoned mine located approximately 90 feet to 120 feet directly below this
area. The ventilation plan approved by the district
manager on 6/18/93 requires 6,500 cfm of air to be
maintained at the end of the line curtain at all
times the machine is cutting or loading coal on
long cuts using remote control.
Docket Nos. LAKiE 94-176-R and LAKE 94-250
Section 104(a) 11 S&S 11 Citation No. 4261610, issued on
March 30, 1994, by MSHA Mining Engineer Michael A. Bird, as a
section 104(d) (1) order, and subsequently modified on April 28,
1994, to a section 104(a} citation, cites an alleged violation
of 30 C.F.R . § 75.370(a) (1), and the cited condition or practice
states as follows:
The approved ventilation plan was not being
complied with on the #5 unit (MMU-005) . The
ventilation plan states that on long cuts using
remote control miners the line curtain will be
maintained to within 40 feet of the deepest
penetration of the face. The line curtain
measured sixth-six feet from the deepest
penetration in the number six entry were [sic]
coal was being cut and loaded. When the miner
operator was asked he stated that the maximum
curtain was 40 feet . This producing section
has been back in this area since 3/28/94. The
operator pulled out of this producing section
during April, 1993 due to large amounts of
methane migrating through the bottoms from an
abandoned mine located approximately 90 to
120 feet directly below this area .

9 71

MSHA's Testimony and Evidence
Jeffery Wirth testified that he has worked for _MSHA for
two years and seven mont~s as a district staff mining engineer .
He received a B.S . degree in mining engineering in 1982 from
Southern Illinois University, Carbondale, and started working
in mines upon graduation. He attended MSHA's 13-week training
program at the Mine Academy in Beckley, West Virginia, attended
additional classes in ventilation, and has had on-the-job
training with MSHA. He is a member of the Society of Mining
Engineers, has served as a district instructor in mine disasters,
holds Kentucky mine foreman and shot firers papers, Illinois
mine manager's papers, and has 10 years of mining experience
(Tr. 34-40).
Mr. Wirth stated that his MSHA duties include assisting
mine operators with ventilation plans, reviewing such plans,
and conducting ventilation reviews. He also conducts mine site
inspections on the average of two days a week and the inspections
are usually ventilation oriented.
Mr. Wirth identified Citation No. 4260292, and explained
that it was issued during a "ventilation saturation inspection"
conducted by six MSHA inspectors (Tr. 45) . He stated that there
was a methane problem at the mine and that methane was liberating
from the mine floor from an old sealed and abandoned Peabody
No . 47 mine located 90 feet below and migrating through the
Brushy Creek Mine (Tr . 46-47).
Mr. Wirth confirmed that the conditions described in the
citation area were accurate, and he believed that it was
reasonably likely that an injury or illness would occur for
the following reasons (Tr. 48):
A.
Basically, because the air was entering an
extensive worked-our area, and it wasn't being
properly examined, and there· was an area in this
worked-out area that was approximately a third of
a mile long, a body of methane present that we
found upon walking this area that was hanging in
there, and there was no air movement in that air
area.
It would be very easy for the contaminated

9 72

air in this worked-out area to enter the producing
section .
Q.
So, what hazard did you identify as being
reasonably likely to contribute to an accident or
an illness?

A.
The fact that the Number 5 unit was not being
ventilated with a separate split of fresh or intake
air. In fact, the Number 5 unit was being ventilated
with contaminated return air that was exiting the
old 5-B worked-out panels .
Mr . Wirth explained that the gist of the violation is that
air that was used to ventilate the old worked-out panels was
then coursed out of those areas and was used to ventilate the
coal producing faces on the section before going into the
return air course and exiting the mine (Tr . 49-50). He further
explained that clean ventilation air on a separate split should
have been used to ventilate the producing section, rather than
using the air that had swept over the old worked- out area
(Tr. 50) .
Mr. Wirth stated that he based his "S&S" determination on
the fact that methane was being liberated from the old Peabody
Mine and migrating through the respondent's mine, and the workedout area was not being properly pre-shifted or examined weekly
(Tr. 53-54).
Mr. Wirth stated that he made a finding of moderate
negligence because the respondent was in the process of sealing
up the worked-out area and knew that it was a worked-out area and
not an air course. He stated that an air course is not sealed
and a worked-out area is sealed because "you're pulling out of or
have pulled out of that you have no intention of going back into"
(Tr. 54). He defined a "worked-out area" as "an area where
mining has been completed, whether pillared or nonpillared, and
it does not include an intake or return air course," and also
referred to the definition found in section 75 . 301 (Tr. 55-56).
Referring to a mine map of the cited area, referred to as
the 5-b panel (Exhibit G-2), Mr. Wirth explained that an "active
area, as opposed a worked-out area, "is where you're either
11

9 73

setting up mining equipment for a mechanized mining unit, you're
recovering mining equipment, you're pulling out of the area, you
still have the equipment you're recovering, or its a mechanized
mining unit" (Tr. 59). He stated that when he traveled the cited
area there was no coal production in progress, no coal producing
equipment, no power, and no continuous mining unit in operation
(Tr . 5 9 - 6 O ) •
Mr . Wirth pointed out the location where the seals were
being constructed, and he stated that when he entered the area
two seal forms had been constructed and were ready for pouring,
and five men were working constructing additional forms to close
off the entire area permanently {Tr. 61). He further explained
as follows {Tr. 62):
JUDGE KOUTRAS: If those seals had been
completed before you got there, would we have
this case?
THE WITNESS:

No.

BY MS . KASSAK:
Q.

Why is that?

A.
Because this area would have been sealed
up, and there is no access. Once an area like this
is sealed up, there is no access to get back in here .
The intake air would have flowed down this air course
here, past thee seals which would have been required
to be pre-shifted, then continuing on to the
producing section right down here.
Mr. Wirth confirmed that coal was being produced on the
No. 5 Unit. He confirmed that he walked the perimeter of the
worked-out area to the areas of deepest penetration and found
no dates, times, or initials, or' evidence that a weekly examination was being conducted pursuant to section 75.364 and he
issued a citation for that (Tr. 64).
Mr. Wirth stated that stoppings were present along the
worked-out area where the panels had been roomed, and he observed
a low area where permanent ventilation control devices were in

974

the process of crushing out . When the inspection party passed
through a personnel door in a stopping, all of their methane and
air monitoring testing instrument alarms went off indicating that
there was a problem with low oxygen and high methane, and this
was substantiated with bottle samples. Smoke tube tests
indicated no air movement, with oxygen levels at 18.8 percent and
methane levels up to 1.8 percent, and he marked these areas on
the mine map (Tr. 66-67). The oxygen level was below normal and
the methane level was higher than the 1 . 0 percent allowed in an
active working section. There is no specific methane limit in a
worked-out area, "until you get close to an explosive range, and
then there is a problem with imminent danger" (Tr . 68) . He would
not have expected 1.8 methane if the area were properly
ventilated (Tr. 70). He confirmed that it took approximately
four and one-half hours to walk the worked-out area in question
(Tr.73). He also confirmed that the respondent was required to
examine the worked-out area weekly to the furthest point of
mining in each area, and that would be in the corners. An intake
air course is required to be pre-shifted pursuant to section
75.360 (Tr. 76).
Mr. Wirth defined "return air" as "air that has ventilated
a worked-out area or has ventilated the last place in a working
section" (Tr. 83). He confirmed that return air was flowing out
of the old 5-B worked-out panels and rooms and was traveling inby
to the No. 5 Unit producing continuous miner section MMU-005, and
ventilating that area (Tr. 83-84). In his opinion, a separate
split of intake air should have been used to ventilate the coal
producing area, and the return air coming out of the worked-out
panel should have been coursed out through an overcast across the
intake entry (Tr. 84-85).
In further explanation of why he believed section
75 . 332{a) {1) was violated, Mr. Wirth stated as follows
(Tr . 8 6 - 8 8 ) :
This is the case because the
THE WITNESS:
air that is entering the worked-out area is
traversing through the worked-out area and is
continuing on to the producing section. The
producing section does not ~ave a separate split
of fresh intake air . It's being ventilated with
return air that ' s coming out of the worked-out area.

975

..

:.:

..

f~
.:..

JUDGE KOUTRAS:
If that seal had been in place,
then the working section and that working area and
producing section would have been ventilated by the
intake air coming in, correct?
THE WITNESS:

Correct.

If that had been sealed

off
JUDGE KOUTRAS:
But since it was diverted and went
through that area where they were constructing the seal
was being used to ventilate that area, your position or
MSHA's position is that that became return air.
THE WITNESS:

Correct.

JUDGE KOUTRAS:
And when it got back down and back
coursed down in the working face, it was still return
air.
THE WITNESS:

That's right .

BY MS. KASSAK:

Q.

Can return air ever become intake air?

A.
No . Intake can become return but return
can't become intake.
It doesn't work that way.

*

*

*

*

Q.
And the only air to that working section
was that coming out of the worked-out area?
A.
The only air to ventilate those working faces
on that unit was coming out of that worked-out area.

Q.

You saw no split to provide for fresh intake

A.

There were no splits present.

air?

Mr. Wirth believed the cited condition was hazardous because
in an area that is not examined, "you don't know what's going

976

on, 11 and oxygen may drop and methane may rise, which was in fact
the case . Also, a roof fall would cause permanent ventilation
control devices to fail, and the air containing the methane would
migrate to the coal producing faces where miners are working
(Tr. 89}. He confirmed that the methane levels he found would
not result in a citation if the area were considered a worked-out
area, but if it is considered an intake air course, methane in
excess of 1 . 0 percent would be a violation (Tr. 94). He confirmed that a golf cart he observed in the work-out area was an
ignition source, and he issued a citation for this (Tr. 95) .
On cross-examination, Mr. Wirth confirmed that he was not
aware that the cited 5-B area was there prior to the day of his
inspection. He was told how the 5-B area was being ventilated
while he was on the mine surface and was shown the mine map as
it was that day and he knew where the area was when he arrived
underground (Tr. 103-104). He explained his route of travel and
confirmed that he was accompanied by company representative Gene
Culpepper who wa.s riding a golf cart. Mr. Culpepper was on one
side of the permanent ventilation devices, and Mr. Wirth and the
union walkaround representative were on the other side (Tr . 106).
Mr. Wirth stated that his methane detector did not go off
while walking the area prior to going through the personnel door
(Tr . 108-109). He confirmed that a stopping line ran through the
area in question, even though it is not shown on map Exhibit G-2
(Tr. 111). Mr. Wirth confirmed that he has Illinois state mine
manager papers, but was not current on the requirements of state
law, an<l believed that an intake air course and return seals
need to be examined 24 hours prior to a shift under state law
(Tr. 112). He confirmed that there were no seals in the cited
5-B area, but they were being constructed at the mouth, and once
completed, they were required to be pre - shifted prior to any work
in that area (Tr. 113).
Mr. Wirth stated that as he entered the cited area with
Mr. Culpepper, they passed through a pair of open air lock
equipment doors. A scoop was being pulled through the doors and
both sets were open because the scoop was too long, and Mr. Wirth
commented to Mr. Culpepper, 11 aren 1 t those doors supposed to be
closed? 11 (Tr. 115). Mr. Culpepper replied, 11 yes, 11 and closed the
doors after the scoop passed through (Tr. 16) .

977

Mr. Wirth stated that he noticed red reflectors while
walking the area with Mr. Culpepper, and Mr. Culpepper told him
that red reflectors indicated "return air," but stated that he
did not know why they were in the area. Mr . Wirth observed no
one changing any markers (Tr. 123). He further stated that
Mr. Culpepper took the position that the cited area was an
intake air course (Tr. 130).
MSHA Supervisory Mining Engineer Mark Eslinger testified
that he reviewed Mr. Wirth's 11 S&S 11 findings in connection with
Citation No . 4260292, and that he agreed with them (Tr. 135). He
stated that he was in the mine nine months earlier in a different
area and was concerned with the methane coming through the floor.
When he was there with Mr. Wirth, it was only the second day of
mining, and he was concerned that once mining started up again,
methane would again come up through the floor. He also confirmed
that he found methane in the worked-out 5-B floor area, and it
could travel to the working section at any time (Tr. 134-137) .
Mr. Eslinger stated that in approximately April, 1993,
mining ceased in the 5-A active working area and the equipment
was pulled back in order to mine the presently worked-out
5-B area. Mining then stopped in that area, the seal construction was started, and mining resumed in the 5-A area
that was mined earlier in 1993 (Tr. 141).
Mr . Eslinger stated that .4 and . 5 percent methane was
found at the faces of the active coal producing area and there
was sufficient air quantity sweeping those faces.
The oxygen
was sufficient and there was no evidence of any carbon monoxide
(Tr. 145-146 ) . He agreed that all of the air sweeping the
working faces "was up to snuff," and even though the air was
within legal limits, once it ventilates the worked-out area it
is return air, and it can not be used to ventilate the working
faces (Tr. 147 ) .
On cross-examination, Mr. Eslinger could not recall if the
mine was placed on a 5-day spot inspection schedule after
January, 1994, and he stated that such scheduling is done by
the MSHA field office (Tr . 152) . He confirmed that his methane
detector was set to go off at 2.5 percent methane , and when he
went through the permanent stopping doors in the 5-B area, it
sounded, but it did not do so prior to that time (Tr. 154). He

978

confirmed that the highest methane reading at the working face
was five tenths (Tr. 155).
Mr. Eslinger stated that all of the air leaving the workedout area would be return air that would be coursed out of the
mine. Since the air had entered and ventilated the worked-out
area, and was then used to ventilate the faces where mining was
taking place, it was return air (Tr. 158). He stated that there
was nothing in the mine ventilation plan that would allow the
respondent to do what it was doing and that the mandatory
sections of the regulations, and not the ventilation plan, are
applicable in this case (Tr. 159).
Inspector Wirth confirmed that he issued Citation
No. 4260295 (Tr. 162). He stated that the exceptions noted in
section 75.507-1, paragraphs (b) and (c), do not apply to the
cited conditions.
Mr. Wirth aonfirmed his gravity finding of "reasonably
likely," and identified the hazard as the non-permissible
golf cart driving through the worked-out area that was not
being properly ventilated in that there was no air movement,
and where a body of methane was present. Based on these
conditions, he concluded that if work had been allowed to
progress, it was very likely that an explosion would occur
because the golf cart was an ignition source, and it would
be driven into the methane, which constituted an odorless
and tasteless fuel for an explosion. He identified the driver
as Gene Culpepper, the respondent's representative who was
accompanying him during his inspection.
Mr. Wirth confirmed that once he determined that the area
was a worked-out area, he took action to keep the golf cart
out (Tr. 165-166). He confirmed that the location of the golf
cart when he observed it was outby the last open crosscut and
he marked the location with a circled 11 GC 11 on the mine map
(Exhibit 0-2) . He confirmed that the golf cart area was being
ventilated by return air, and stated that the golf cart is nonpermissible per se and the respondent's counsel conceded that
this was the case (Tr. 170). Mr. Wirth confirmed that he did
not inspect the golf cart (Tr . 171).

9 79

On cross-examination, Mr. Wirth stated that in the course
of his inspection, he observed two golf carts in the worked-out
area at two different times, and he observed Mr. Culpepper on
one of them at the end of the evening. He did not observe the
vehicle serial number and did not know if Mr. Culpepper drove
more than one cart (Tr. 174) .
Mr. Wirth believe that Mr . Culpepper drove the golf cart
out and he allowed him to do it after the cart was pushed out
of the edge of the body of methane. Mr. Wirth tested the methane
before the cart was started, and it was below the permissible
limit (Tr . 177 ). He had not yet written the citation at that
time and the golf cart was not taken out of service (Tr. 180).
Mr. Eslinger testified that he is employed by MSHA as a
ventilation supervisor. He holds a college degree in civil
engineering and is a registered engineer in the State of Indiana.
His duties include the supervision of five ventilation inspectors
and evaluating and approving mine ventilation plans. He also
served on an MSHA committee that rewrote the ventilation
regulations, including the ones in issue in these proceedings
( Tr . 1 9 5 - 19 7 ) .
Mr. Eslinger confirmed that he supervised a saturation
and ventilation inspection of the mine and five inspectors were
underground inspecting different mine areas. He accompanied
Inspector James Holland during the evening shift inspection on
March 29, 1994, and he identified a copy of Citation No . 4266732,
issued by Mr . Holland. The citation reflects that there was
1.9 percent methane and 18.8 percent oxygen present in the cited
worked-out 5-B area (Tr. 199) . Mr . Eslinger stated that as he
and Mr. Holland were leaving the 5-B area they went through a
personnel door and their methane and air instrument CMX 270
detectors sounded and recorded the readings reflected in the
citation .
In addition, Mr. Eslinger used smoke tubes, and
Inspector Wirth took bottle samples, to confirm their findings
(Exhibit G-3; Tr . 200-201).
Mr. Eslinger confirmed that Mr . Holland cited a violation
of section 75 . 334(a) (1), which requires worked-out areas to be
ventilated so that methane air mixtures and other gases and dust
fumes are continuously diluted and routed into a return air
course or to the mine surface. He explained that "continuously

980

-~

diluted" means that there is air movement that takes out gases to
a return air course and to the mine surface. He confirmed that
he could find no air movement in the area in question and when
he used a smoke tube, "the smoke mushroomed up into the air and
just stayed there; did not move" (Tr . 202) . He further confirmed
that he personally observed the conditions in question (Tr. 203}.
Mr. Eslinger believed that the cited conditions presented a
hazard because the lack of air movement indicated that the area
was not being ventilated and the methane was building up and the
oxygen was being depleted. The methane could rise to an explo- ,
sive level and could be ignited, and it would also move towards
the working section where mining was taking place. He agreed
with Mr. Holland's 11 S&S 11 finding (Tr . 204-205).
Mr. Eslinger agreed with Mr. Holland's "moderate" negligence
finding and he confirmed that he discussed the citation with
Mr. Holland and agreed that it accurately reflects the conditions
that he (Eslinger) personally observed (Exhibit G-5; Tr. 207).
On cross-examination, Mr. Eslinger explained what was done
to terminate the cited conditions and indicated that certain
man doors were opened up to allow air to circulate through the
area in order to dilute the methane. He marked the locations
of the doors on map Exhibit 0-2, as part of his explanation, and
believed that more than five doors were opened (Tr . 214-220).
Mr . Eslinger described the ventilation in place as "a very
unusual ventilation arrangement" in that when he initially saw
it on a map be remarked that "we've got a worked-out area that's
being ventilated and the air is going to the faces" and he also
found that the neutral area was not ventilated (Tr. 222).
Mr. Eslinger confirmed that he found the poor quality of
air in the area between the stoppings in the worked- out 5-B area.
Since he detected no air movement there, he concluded that there
was no continuous dilution and routing of the air into a return
air course (Tr. 229-232} .
Mr. Eslinger confirmed that he did not test the air in the
bottom "bottle" shaped area surrounded by red stopping lines, as
shown on Map Exhibit 0-2 . However, after walking through the

981

area and passing "the neck of the bottle," he found that the air
quality improved (Tr. 235-36).
Mr. Eslinger stated that the cited standard requires the
air to be 11 continuously diluted, 11 meaning "all of the time" in
a worked-out area so as to continuously move the methane. He
further stated (Tr. 241):
So, as long as you found one place,
where there was no movement, as you've testified
with the smoke tube and the cloud of smoke just
hangs there, that's one place in the worked-out
area where you know there was no air movement?
Q.

Yes. We determined that throughout this
A.
one bottle, as I'm calling it, there was no air
movement.
Q.

How much of an area is that bottle?

A.
Mr . Wirth alluded to it before, it's
about one-third of a mile by 240 feet, 250 feet;
whatever.
Mr . Eslinger confirmed that he took no anemometer readings
because "it would not turn in that low velocity" (Tr. 243) . He
confirmed that the air exiting in the worked-out area in question
has to pass by the working section to get out to the return air
course and out of the mine (Tr . 244).
Mr. Eslinger confirmed that Citation No. 4266733 was
issued by Inspector James Holland because the cited primary
escapeway was ventilated with return air rather than intake
air.
(Mr. Holland was unavailable for the hearing because of a
"severe back problem.") Mr. Eslinger accompanied him during his
inspection (Tr. 9). Mr. Eslinger stated that the cited condition
violated section 75.308(f) (1), and although there was another
escapeway that was ventilated with intake air, since there was a
belt in it, it could not be the primary escapeway.
Mr. Eslinger stated that mine management designates the
primary and alternate escapeways and marks them with reflectors.
He confirmed that he was with Mr. Holland and observed the

982

primary escapeway area and agreed that it was being ventilated
with return air. He determined that the air was return air by
walking the air course that was bringing air to the unit back to
the point where it entered the worked-out area where· the previous
citations were issued, and "the air that was what the operator
wishes to call intake was under our determination return air"
(Tr. 258). Referring to a mine map, Exhibit G-2, he identified
and located the "primary escapeway" as the "air course here on
the right side of the main southeast main was designated as their
intake escapeway, *** or I call it the intake; it's the primary
escapeway" (Tr. 258) .
Mr. Eslinger stated that the primary escapeway was designated with colored reflectors, it was required to be shown on the
map of the unit, and employees should be instructed on the escape
route (Tr. 259). He explained that he and Mr. Holland walked
down the escapeway in the opposite direction from where mining
was advancing and when they reached the old 5-B worked-out area,
they turned into it. The markings in the worked-out area were a
different color, . but he could not recall the color (Tr. 261).
Mr. Eslinger believed that management intended to remove
some stoppings once the seals at the worked-out area were completed, and this would allow travel "straight right out of the
mine" (Tr. 261). However, at the time of the inspection, the
seals were not installed and the stoppings were in place. Under
the circumstances, the men would have to travel a circuitous
three-and-one half mile route around the stoppings to get out
of the mine (Tr. 262-265).
Mr. Eslinger agreed with Mr. Holland 1 s "moderate" negligence
finding . He also agreed with the non- 11 S&S 11 gravity finding
(Tr. 265-266) .
On cross-examination, Mr . Eslinger stated as follows
(Tr. 269) :
Thank you . You 1 ve heard the discussions
here with respect to whether this is an intake air
course or whether it's a worked-out area?
Q.

A.

Yes.

983

Q.
If it's an intake air course, then this
citation wouldn't stand; is that correct? Then,
the primary escapeway would have been ventilated with
intake air?
A.

That's correct.

Q.
But, if it's a worked-out area, I guess it
would have to stand in your opinion?
A.
That's correct, because they did not have an
escapeway ventilated with intake air that didn't have
a belt . The other one was intake air, but it had a belt.
Mr. Eslinger confirmed that after the seals were completed,
the cited escapeway air course became intake air and the citation
was terminated.
Prior to the sealing, however, the escapeway
was being ventilated with return air and this did not meet the
definition of primary escapeway (Tr. 270).
Mr. Eslinger stated that he did not review the mine file and
that the mine map he had on file in his off ice did not show the
ventilation arrangement shown on the exhibit and the escapeways
were not marked. He was not .certain about the reflector colors,
and stated that management was hoping to complete the seal work
in two weeks and "we wouldn't catch it" (Tr. 274).
Mr. Eslinger stated that if anyone working at the face
wanted to leave the mine by using the primary designated escapeway up one of the two entries shown on the map, they would have
encountered the concrete block stopping walls and would have had
to turn into the worked-out area and gone through several man
doors to end up in the intake escapeway (Tr . 277).
Mr . Eslinger characterized the ventilated worked-out area
as "a classic worked-out area. 11 He stated that mining was
completed (Tr. 282, 285) . He confirmed that management did not
submit a ventilation plan showing the method of ventilating the
worked-out area as shown on the maps in question (Tr. 285). He
reviewed the ventilation mine map at the time of the inspection
and it showed mining taking place in the worked-out area and the
ventilation scheme on that map was sufficient because it showed

984

that mining was going on {Tr. 286).
follows (Tr. 287):

He further explained as

JUDGE KOUTRAS: Do you think by starting
construction on that seal that it was the intent of
the operator here to permanently seal that area and
abandon it and never go back to mining there again?
THE WITNESS:
Right . They were never going to
go back. And you only seal a worked - out area . It
says a worked-out area has to be either sealed or
ventilated. By their own admission, to me, when they
built seals, they were admitting this is worked up,
we're done, we're complete.
Inspector Wirth confirmed that he issued Citation
No. 4260297, citing a violation of section 75.370(a) (1),
and he explained as follows (Tr. 292-293):

Q.
Can you tell us the gist of the citation
without reading the exact words of it, please?
A.
Sure. The gist of the citation is that the
operator is required to have a certain quantity of
air at the end of the line curtain at all times if
they're producing, cutting, loading coal on the
sections, and they did not have that required amount
of air at the end of the line curtain.
In fact, the vanes on the anemometer whenever
I put the anemometer behind the line curtain in
between the line curtain and rib, the vanes on the
anemometer would not even turn.
Referring to two sketches depicting the conditions that
he observed {Exhibits G-8 and G-9), Mr . Wirth further explained
that the approved ventilation plah requires that 6,500 cubic
feet of air per minute be maintained at the end of the line
curtain at all times while coal is being cut and loaded (Joint
Exhibit -2; Tr . 296) . The specific ventilation plan requirement
is found at page 1, Item C-2 (Tr. 298).

985

Mr. Wirth confirmed that he personally observed coal
being cut and loaded, and also saw a coal hauler leaving the
No. 6 entry fully loaded. He also observed the machine cutting
at the face and the coal hauler pulled in and loaded another car.
He then informed the machine operator that there was a violation.
He took a methane reading at the last row of roof bolts and it
was .4 percent and within the allowable limits (Tr. 300-301).
He estimated that the air at the end of the line curtain was
1,000 cubic feet per minute (Tr. 302) .
Mr . Wirth confirmed his "S&S" gravity finding, and stated
that he based it on the presence of methane 100 feet below the
cited area at the old Peabody works, a gap in the line curtain
at the floor level, and the curtain was not maintained to within
40 feet of the face. He conceded the methane level he found was
"way below" the allowable limit (Tr. 304). However, he believed
that it was reasonably likely that the lack of air would result
in a build-up of undiluted methane and present .a n explosion
hazard (Tr. 306.). He confirmed t:bat mining in the cited area had
discontinued for ten months because of excessive methane and had
only resumed for 2 days prior to the inspection {Tr. 307-308).
Mr. Wirth confirmed that the respondent drilled bore holes
to bleed out the methane and MSHA was aware of the fact that
mining had started up again (Tr. 310). He confirmed that the
respondent's prior experience with methane in the old Peabody
works "very much so" influenced his "S&S" finding because
management "is aware of the methane problems that they had in
that area, and they are aware that the mine is still below them"
(Tr. 311) . He also considered the presence of some methane, no
air, and the presence of operating equipment {Tr. 313).
Mr. Wirth confirmed that the mining machine was taking
"long cuts 11 and that it was a remote controlled machine, and he
believed the violation was "very obvious." The section foreman
or mine operator should check the air at the end of the line
curtain, and when the amount of air is less than that specified
in the ventilation plan, production should cease until the air is
restored (Tr . 312).
On cross-examination, Mr . Wirth explained his sketches, and
he could not recall the crosscut number, but did remember the

9 86

entry (Tr. 315). His notes reflect the location as the No. 6
entry, and the crosscut is not identified (Tr . 317). He
confirmed that Mr. Eslinger and Mr. Bird were with him in that
entry (Tr. 319). He also stated that company representative Ed
Hatcher came to the section with them 11 but refused to go to the
face because he told us that he did not want to be responsible
for what we might see" (Tr. 323).
· In response to further questions, Mr. Wirth stated that he
observed no evidence that the line curtain was ripped or
partially torn down, and there was no line curtain lying on
the mine floor in the entry. Although there was a gap at the
bottom of the curtain and it did not go all the way to the floor,
this would make no difference as long as the air was maintained
at 6,500 cfm (Tr. 326).
MSHA Mining Engineer Michael Bird testified that he received
a B.S. Degree in mining engineering from the University of
Missouri in December, 1985, and after working in private industry
became employed with MSHA in April, 1992 . He holds State of
Alabama mine foreman papers, and his present duties include the
review and approval of mine maps and ventilation plans and
conducting ventilation inspections (Tr. 337-339).
Mr. Bird confirmed that he issued Citation No. 4261610 and
that Mr. Wirth was with him during the inspection. He explained
that he observed that the line curtain was set back more than
the required 40 feet, and that he measured the distance as
66 feet from the deepest penetration to the end of the curtain .
Section C- 2, page 1, of the ventilation plan concerning long cuts
states that "using remote control miners, the line curtain will
be maintained to within 40 feet of the deepest penetration of
the face" (Tr. 340-341).
Mr . Bird stated that when he and Mr. Wirth walked . into the
No. 6 entry, he saw a loaded coal car leaving, and saw coal being
loaded. He identified the operatbr of the remote control miner
as Steve Burgess. He confirmed that the miner measured 36 feet
from the bits to the tail, and the distance from the curtain to
the last row of roof bolts was 30 feet. The point of "deepest
penetration" would be at the coal face where the miner bits are
cutting. The curtain must be up while coal is being cut or
loaded (Tr. 342-344). He explained his "S&S" finding, and
98 7

confirmed that three miners were exposed to an ignition hazard
(Tr. 345) .
Mr. Bird stated that he based his "high negligence" finding
on the fact that the cited condition was obvious . He explained
that the miner operator knows that he can cut with the curtain
within 40 feet of the face, and it was obvious in this case,
where the miner 11 is sunk all the way into the last row of bolts,
you're over 40 feet" (Tr. 346).
Mr. Bird stated he did not observe any line curtain on the
ground or a shuttle car dragging a curtain away (Tr. 352).
When asked why he initially determined that the violation was
unwarrantable, Mr. Bird replied, "at the time I looked at that,
know or should have known.
It was right there," and coal was
being continuously loaded (Tr. 354-355). He would not have
issued a citation if the curtain had been dragged off and load ing had stopped in order to hang it back up. However, he saw no
evidence that this was the case (Tr. 355).
On cross-examination, Mr. Bird explained how he measured the
curtain distance and what he observed in connection with the
equipment operating and traveling through the entry in question,
and the cutting and loading of the coal (Tr . 356-360). His notes
reflected that the "remote control miner was cutting and loading
coal in the number 6 entry" (Tr . 362) . His notes also stated
that "after the order was abated, the miner loaded one more ram
car of coal to complete the cut" (Tr . 373).
Mr. Eslinger was recalled, and he stated that he arrived at
the location in question before Mr. Bird and Mr. Wirth and as he
walked up the entry a loaded shuttle car came through the curtain. As he watched it, another one came by and pulled in and he
watched as it was being loaded. After it left, a third shuttle
car pulled under the miner tail and loading started . He then
pointed to it, and Mr. Wirth and Mr. Bird proceeded to make their
measurements and mining was stopped (Tr. 375-376) . Mr. Eslinger
did not observe a ripped curtain or any curtain being dragged off
by a shuttle car. The curtain was being hung off the floor and
there were no nails in the roof header boards to indicate that it
was hung up to the last full roof bolts (Tr . 378).

9 88

Mr. Wirth was recalled, and stated that as he walked
through the curtain in the No . 6 entry, he observed a fully
loaded ram car leaving the entry away from the miner outby to
the feeder . He also observed another car come out of the
crosscut and it was waiting for the car that was fully loaded.
The empty car pulled in under the miner and it was in the process
of starting to load when he walked in. He then "went to the end
of the line curtain, attempted to take an air reading, informed
the operator that there was a problem, there was a violation and
they shut the machine off" (Tr. 380).
Mr . Wirth stated that he did not observe any torn curtain
being dragged off by a shuttle car and observed no rips in the
curtain or nails or nail holes in the header boards where a
curtain could have been hung, and saw no evidence that there
ever was a proper amount of curtain. He confirmed that after
the miner was shut down, the face boss, Roy Wiggins, brought
in a brand new line curtain, and it was not dirty, ripped or
torn, and it was obvious that it was a new curtain that "had
just come off a new roll" (Tr . 384).
Respondent•s Testimony and Evidence
Paul Smock, respondent•s superintendent of underground
operations, testified that he has 28 years of mining experience
and has worked for the respondent since 1980. He is a high
school graduate and has conducted mine training and rescue
classes at a local community college and vocational school.
He confirmed that the mine is located above an old mine that
liberates methane and which "has posed a problem for us for
years. 11 He confirmed that the active mine is on an exhaust
ventilation system and that air is drawn in to the mine and
pulled out. He identified Exhibit 0-2 as a mine map showing
the mine workings as of March 29, 1994, and confirmed that it
was prepared for the hearing in these matters . He explained
the map markings and the air directions, including the intake
and return air, and stated that orice the air crosses the active
working faces it becomes return air as shown by the map arrows
with a dot on the shaft (Tr. 394-405) .
Mr. Smock stated that the entire 5-B area up to the
5-A face area, as shown on the map, is an intake air course

9 89

and not a worked-out area.
follows (Tr. 406):

He defined a "worked out" area as

A.
A worked-out area is an area where mining
has been completed. There is more to mining than
just cutting coal . Rock dusting is mining, building
stoppings is mining, making belt moves is mining.
We have finished cutting coal in this area, but
mining wasn't done because I had to get out of there .
I had a building seals in there.
Mr. Smock stated that sometime previous to March, 1993, the
5-A face area was abandoned because of the methane and the unit
was pulled back to the 5-B area. On or about March 25, 1993,
coal removal was completed in the 5-B area, and the move back to
the 5 - A area would take two to three days. At the same time,
work was in progress to reclaim and seal the 5-B area, and he
stated that, "we wanted out of there as quickly as we could
possibly get out of there" because of various gas bleeders and
pillar squeezing (Tr. 408-411).
Mr. Smock stated that on March 29, he still had belt,
framing drives, and power boxes in the room inby the area where
the seals were being constructed in the 5-B area. He stated
that, "this was my last room set up. That what is. When that
was mined, I was through, and I was out" (Tr . 413). He further
explained that the area was "troubled" before the inspection
because the pillar squeezing "was messing up my ventilation
system," and he still had to examine the entire 5-B area as an
intake air course (Tr. 414).
Mr. Smock identified the red markings on map Exhibit 0-2,
as permanent stoppings or permanent ventilation controls, and
he characterized the areas between the markings as "neutral air. 11
He explained how these areas were ventilated to keep the methane
below the legal limit. He stated that the methane is blended
with the air flowing through the ' neutral area and is diluted
and is carried out of the mine (Tr. 416) .
Mr. Smock stated that the seals were being constructed
" just inby the 460 foot mark" as shown on Exhibit 0-2, and a
stopping line was being established for an air course once the
area was sealed. However, in order to travel in and out to
990

.·.•.

remove the equipment, wooden doors were constructed to allow for
travel and to establish the air course. In order to keep the
neutral area free of methane while all of this work was being
done, he personally opened up three man doors and he marked the
locations on the map exhibit with orange circles. He opened the
doors to clean out any methane. He believed this was sufficient
to dissipate the methane and he tested the area with his
11
checker," but took no bottle samples (Tr. 416-423) .
Mr. Smock stated that his project man, Melvin Winters, was
told to keep the doors open in order to ventilate the 5-B neutral
areas, but that Inspector Wirth ordered the doors closed and the
flow of air stopped, and this caused the methane to build-up and
endangered everyone in the mine . Mr . Smock stated that "he had a
fit" when he learned that the doors were closed by the inspector,
but he was not present at the scene to discuss it with him
(Tr . 4 2 4 - 4 2 6 ) .
Mr . Smock stated that after pulling out of the 5-A area
because of methane, and moving to the 5-B area, a bore hole was
drilled and it took several months to bleed the methane out of
the 5 - A area. He confirmed that the violation was abated by
opening the doors in the 5-B area to reduce the methane down
below the one percent level. The doors were not the same ones
that he had opened (Tr. 429-431) .
Mr. Smock stated that the "old southeast" area of the mine
is similar to the 5-B intake air course and both areas are
inspected by mine examiners every shift as intake air courses
(Tr . 4 3 6 - 4 3 8 ) .
Mr. Smock stated that at no time did any methane in excess
of one percent every reach the working faces, and at no time
were miners at the working face ever exposed to excessive methane
(Tr . 443) .
On cross-examination, Mr. Smock explained the steps taken to
address the methane problem in the 5-A area, and he stated that
the old mine below that area is not full of water, but "we still
get periodic gas bleeders in that area but nothing like what we
had" (Tr . 4 4 8) .
Mr. Smock confirmed that he had finished cutting coal in the
5-B area and that it consisted of panels and rooms and that no
991

more coal was going to be mined (Tr. 449). He agreed that the
distance around the perimeter of the 5-B area was approximately
two-and-one half to three mills, and confirmed that during March
29 or 30, 1994, he was in that area every day.
In addition, mine
examiners would have been there daily to examine the area of
deepest penetration, the seal area where work was in progress,
and the intakes for an air course (Tr. 452-453).
Mr . Smock confirmed that his mine examiners were required
to walk the perimeter of the 5-B area weekly after all of the
mining work was completed, and they were required to note this
in a book and to place their initials on a date board (Tr. 456).
Pre-shift examinations were conducted at the seal areas and the
5-B perimeter areas (Tr. 459).
Mr. Smock stated that when the seals were constructed, the
only equipment left in the 5-B area was a belt line, a unit of
equipment, high voltage, and a water line. He confirmed that he
was in the process of building frames for the seven seals that
would have sealed the 5-B area and only a couple of seal forms
had been constructed at the time of the inspection, and none
had been completed at that time.
Mr. Smock did not believe that he needed overcasts to carry
the air from the 5-B area to the return air course. He explained
that he had no reason to split the air because he only had
one unit mining coal during the period in question. He explained
that the neutral air in the 5-B area was ventilating the area
where the seals were being constructed and that . the air leaving
the 5-B area was ventilating the coal producing unit at the 5-A
area.
The coal producing unit consisted of a cutting machine,
loading machine, roof bolters, and a scoop, and the equipment
used at the seal area was "probably a scoop, jeep," but he did
not consider that to be a unit. He confirmed that he .had a crew
in the 5 - B area doing seal and reclaim work, and a crew in the
5-A area mining coal (Tr. 475-477).
Mr. Smock confirmed that the source of the air used to
ventilate the 5-B area was the air coming down the belt haulageway, and after sweeping the perimeter of the 5-B area, the air
continued down the haulage entry and swept across the 5-A faces
(Tr . 4 7 8 - 4 8 2 ) .

992

Mr. Smock did not dispute the 1.8 percent methane found by
the inspectors in the 5-B area and he stated that "there had to
be methane in there when he closed those doors.
It had to build
up" (Tr. 482) .
Mr. Smock stated that once the seals were completed, the
doors behind the seal area would have been removed and replaced
with a stopping because a stopping line and an air course would
be needed to sweep the seals (Tr. 493 ) .
In response to further questions, Mr. Smock stated that the
MSHA inspector who was in the 5 - B area prior to March 29 and 30,
knew about the work in that area. He could not identify any
inspector by name, nor could he recall any specific conversations
with any inspector (Tr. 498). He confirmed that the manner in
which the 5-B area was being ventilated at the time of the
inspection was not covered or authorized by the ventilation plan
approved on June 17, 1993 (Joint Exhibit-2) (Tr. 499).
General Mine Manager Edward Hatcher testified that he
has worked for Brushy Creek for 15 years and that he has
25 and +/2 years of mining experience. He explained his
education and training, and stated that he holds dust control
and underground electrical certifications, mine manager, mine
examiner and hoisting engineer's papers, and a coal mine EMT
certificate from the State of Illinois (Tr . 508).
Mr. Hatcher stated that he visited the 5-B area on the
morning of March 29, 1994, to check on the reclaiming work in
progress. He stated that belt framing, belt lines, a piece
of unhooked high voltage cable, and parts from a miner machine
were in the area and were in the process of being removed, and
he marked the mine map to show where the equipment was located
(Tr . 510-511).
Mr . Hatcher stated that Illinois mining law prohibits any
interference with air ventilation, · including doors, without
permission from the mine manager (Tr. 513). He stated that
he found no methane in the 5-B area when he was there early on
March 29, and believed that the methane found by the inspectors
resulted from the closing of the doors at the mouth of 5-B,
which shut off the air flow to the area where the methane was
found (Tr. 515 ) . He did not discuss this with the inspectors,
993

and did not discuss with Mr. Wirth about his instructions to
Mr. Culpepper to shut the doors (Tr. 516-517) .
Mr. Hatcher stated that the pre-shift examiner's report for
the 8:00 a.m. to 4:00 p . m. shift on March 29, 1994, reflects that
except for the places noted, the No. 5-B intake air course area
was safe 11 in its entirety from the faces out" (Exhibit 0-3;
Tr. 519-520). He confirmed the excessive methane citation was
abated by opening certain doors, and at 8: 00 a. m. on March. 30,
the methane was below one percent (Tr. 521).
Mr. Hatcher stated that he accompanied Mr. Eslinger and
Mr. Wirth on March 30, during the abatement of several citations
in the 5-B area. They then proceeded to the 5-A area and
Mr. Hatcher left to call Mr . Smock to inform him about the
abatements "in the old works" and Mr . Eslinger proceeded to the
face . Mr . Hatcher denied that he told Mr . Eslinger that he did
not wish to go to the face because he did not want to see what
was going on, and he explained that he told Mr. Eslinger he could
not accompany him because he had to call Mr . Smock (Tr. 526).
Mr. Hatcher stated that the line curtain and air citations
were abated before the inspectors left the area (Tr. 528). He
did not conference these citations with MSHA, "because they were
written and they were abated and as far as I was concerned , it
was over with 11 (Tr. 531).
On cross-examination, Mr. Hatcher confirmed that there was
no separate split of air from the air intake area going into
the 5-B area and a separate split of air going down to the
5-A working face (Tr. 534). He explained the use of doors for
ventilation and stated that the doors in question were
constructed to be used at a later date when a certain point
was reached on the construction of the seals . The doors were
built to be left open and were not to be used as part· of the
ventilation of the seal area (Tr. 538). He further indicated
that the personnel doors were sp'ecif ically opened in the area
in question to dilute the methane (Tr. 540).
Mr. Hatcher stated that he was in the neutral 5-B area and
not in the intake air course when he made his methane spotter
tests. He stated that he entered both of the "bottle areas"
and found no methane over one percent. He only activated a
99 4

smoke tube when he found . 9 percent methane and "saw that I had
movement. No problem" (Tr. 562). He believed that the methane
citation was the direct result of the inspector ordering the
closing of the two wooden doors (Tr . 562).
Mr . Hatcher confirmed that he did not conference the line
curtain citation and that he was not present when it was issued
(Tr. 565-566). He also confirmed that he did not observe the
cited conditions concerning the line curtain. He did, however,
accompany Mr. Eslinger to the face after the citations were
issued and after returning to the area after speaking to
Mr. Smock. He did not see any haulage cars pass by because he
was away from the feeder area where the cars were heading
(Tr . 5 7 7 - 5 7 8 ) .
Shift Mine Manager Steve Reynolds testified that he
accompanied Inspectors Holland and Eslinger during the March 29,
1994, inspection of the 5-A face area and the 5-B air course.
They walked around the perimeter going outby the intake air
outside of the stoppings and he observed two locations where
Richard Doty had initialed and dated the inspection boards for
March 29, and he pointed these out to Mr . Eslinger (Tr. 584-589).
Assistant Safety Inspector Roy Gene Culpepper has worked for
Brushy Creek for 13 years, and has 23 years of mining experience.
He stated that he accompanied Mr. Wirth and a union representative during the inspection on March 29, 1994. He met Mr. Wirth
at the 5-B seal area, and he observed newly constructed wooden
air lock doors in that area. A crew supervised by Melvin Winters
had constructed the doors and they were doing reclaiming work and
working on the seals (Tr. 589-592).
Mr. Culpepper stated that the doors were 30 to 35 feet apart
and opened and there was a scoop half way through the inby door.
He did not know whether the doors were supposed to remain open
or closed, and Mr. Wirth instructed him to close the doors
(Tr. 593). Mr. Culpepper stated that Mr. Wirth and the union
representative walked along the outside perimeter of the intake
area and he drove along the inside of the stoppings in the
neutral area in a golf cart, and he would stop and speak with
them periodically. He had his methane detector on the entire
time and it never sounded {Tr. 595).

995

Mr. Culpepper explained his route of travel, and he stated
that at one point Mr. Wirth told him that some areas were cut
too deep, that the reflectors were going the wrong _way, and that
a citation would be issued because the 5-B unit was being ventilated by return air. Mr. Culpepper stated that he told Mr. Wirth
that it was an intake air course and Mr. Wirth replied, "that's
what I've been told to do, and that's what it is" (Tr. 596).
Mr. Culpepper stated that his golf cart went dead and he left it
on charge and he was picked up by walkaround Wendell Gary in his
cart and they proceeded along the neutral area looking for the
inspectors when he observed someone in the next entry flagging
him. Mr . Culpepper got off the cart and started towards the
individual and his methane detector started sounding. All of the
inspectors, including Mr. Wirth, Mr. Holland, Mr . Bird, and
Mr. Eslinger were there and the methane detector continued to
sound. Mr. Culpepper was told that there was methane in the area
and that he would be cited for having a non-permissible golf cart
in the area (Tr. 598 - 603, Exhibit G-4) . He offered to push the
cart out of the area, and Mr. Eslinger advised him that he would
check the methane and allowed him to drive the cart out and
Inspector Holland went with him (Tr. 603).
Mr. Culpepper stated that he next traveled to the 5-A face
area in a cart with Inspector Bird. He left Mr. Bird to find
section foreman Roy Wiggins and found him at the back side of the
feeder "cleaning up a pile of coal or something, I don't know . I
didn't know he was back there working" (Tr. 605). Mr. Culpepper
then proceeded to the face where he encountered Mr. Eslinger,
Mr. Bird, and Mr. Wirth, and they informed him that they had
issued a (d) citation and order for insufficient air at the face
and a curtain that had been torn down (Tr. 606). Mr. Culpepper
left to find Mr . Wiggins and found him coming from the feeder
area dragging a piece of old curtain. He told Mr. Wiggins about
the citation and order and returned to check on the abatements
(Tr. 607) .
Mr. Culpepper identified Exhibit 0-4 as a map or sketch of
what he observed and the area where Mr. Steve Burgess stated
Mr. Eslinger was standing (Tr . 609) . Mr . Culpepper described
what he observed, including the location of the curtain. He
confirmed that he made a notation "curtain taken down by car"
on the sketch because "that's what I thought," but he did not

996

see the car take the curtain, and he did not speak to the car
operator (Tr . 611-613) . He confirmed that he saw that a curtain
was missing and down in the area, but did not know what happened
(Tr. 614) .
Mr . Culpepper stated that he was subsequently told by the
miner operator Steve Burgess that he thought that a car had taken
the curtain down (Tr. 615). Mr. Culpepper stated that the mining
machine was shut off when he reached the face area, and he could
not recall whether a buggy or ram car were there or coming out at
that time {Tr. 617-618). Mr. Culpepper identified Exhibit 0-5 as
a copy of the notes he made (Tr . 619).
On cross-examination, Mr. Culpepper stated that the
reflectors in the 5-B area where he was riding while Mr. Wirth
was walking were blue, and Mr . Wirth told them that the
reflectors in the area that he was in were red, which "would
have been significant for a return air course off the old unit
down there" (Tr. 620) .
Mr. Culpepper stated that he did not take an air reading
at the end of the line curtain in question, and he confirmed
that the sketches were made six months after the violations for
use in this litigation and the information was taken from his
notes (Tr. 621). He explained his sketches (Tr. 622-626).
Mr. Culpepper took exception with the sketch of the location of
the check curtain as drawn by the inspectors and his sketch and
he stated as follows {Tr. 629-630) :
I want to know the difference
JUDGE KOUTRAS:
between the way you claim it was and the difference
in the way the inspectors claim it was. Now, what
you're telling me now is, the only difference is the
position of the curtain on their diagram and the
position of the curtain on your diagram, right?
THE WITNESS:

Yes, sir,

JUDGE KOUTRAS:
Now, on your diagram, was that
curtain more 40 feet from the working face?
THE WITNESS:

Yes, sir.

99 7

JUDGE KOUTRAS:
It was.
Isn't it required to be
to within 40 foot of the face when the machine is
cutting and loading?
THE WITNESS :

Yes, sir.

JUDGE KOUTRAS:
If the machine was cutting and
loading, that would be a violation, wouldn't it, even
by your diagram?
THE WITNESS:

Yes, sir.

David H. Pait, Safety and Human Resources Manager, testified
that he has served in that position since December 1991. He has
a B.S. degree, with a vocational education major, and a masters
degree in business administration. He has all MSHA certifications, except electrical instructor, and has Kentucky mine and
surface mine manager ' s papers, and Illinois mine manager papers
(Tr . 6 6 2 - 6 6 3 ) .
Mr. Pait stated that his duties include the writing of
ventilation plans, and he confirmed that he wrote the plan that
is Joint Exhibit-2 (Tr. 664) . He stated as follows (Tr . 665):
A.
On the night of the 29th when Mr . Eslinger
was getting ready to leave 5-A section and walk the
intakes, he informed me that he was going to walk the
intakes and that if what he thought was true, I was
going to get a bunch of violations. And I asked why
and he said, 'Because you're airing this section with
return air. 1

Q.

What did you tell him?

A.
I couldn't believe it.
I said, 'What do
you mean, return air?' He said, ' Well, that ' s off
of old works, so it's return air.'
I said, ' Those
are intake air courses.'
That was my position .
Mr. Pait stated that the ventilation plan did not prohibit
the ventilation configuration in use on the perimeter of the
5-B area on March 29, 1994 . He· stated that MSHA revi e ws such
plans every six months and that the word "neutral " appears in the
998

plan. He identified ventilation plan drawing A0715-1, titled
"Typical Room and Pillar Mining Plan Evaluation Point, 11 and he
explained the legend and markings that appear on the drawing,
including the designated evaluation points that are examined by
the mine examiners . He further explained that the 5-B area did
not have stated definite evaluation points and that the preshift
examiners would initial "at the point of deepest penetration or
somewhere within that area between the beginning and the end to
indicate that they had, indeed, traveled -- made the route in
its entirety" (Tr. 670) . He stated that Mr. Doty inspected the
5-B area on the second shift the day the inspectors were there,
and he believed it was regularly inspected (Tr. 670 - 671).
Mr. Pait identified the area where the seals were being
constructed, and where the two wooden ventilation air lock
doors were located in the neutral travel road . The doors were
approximately 20 feet wide and 5 feet high, constructed of
plywood and timbers and coated with fire-proofing material,
and they were made to open for machinery to pass through.
It was also intended that air pass through the doors into the
neutral area (Tr. 674).
Mr. Pait also identified the metal personnel doors that
Mr. Smock testified about, and the purpose in opening all of
these doors, including the wooden equipment doors, was to
establish and pull the air down the neutrals to keep them clear.
All that was required was some air movement or trickling through
the neutrals around the perimeter of the 5-B -area (Tr. 676).
Mr. Pait stated that the 5-B intake air perimeter area
would have been a designated primary escapeway beginning on
March 28, but Mr. Smock informed him that the unit had moved
to the 5-A area, and Mr. Pait advised the second shift that
the intake escapeway needed to be reestablished by changing
the reflector colors, but only a portion of the work area was
completed (Tr. 677-678).
Mr. Pait confirmed that he was familiar with the cited
standard, section 30 C.F.R. § 75 . 332(a) (1), and he stated as
f ol l ows (Tr. 679):
A.
Mr . Eslinger is of the opinion that's it's
a worked-out area . I'm of the opinion that it was an

999

.•:.

intake, and the reason and the rationale I gave him
at the time and that I still believe is, that in
part 75.300, the definition of a worked-out area
excludes returns, the belt and entries and intake air
courses. And this was an intake air course after that
unit moved back in the straights. From my perceptive,
that's the way it is. He holds a different opinion.
Q.
So, in your view, it's either intake air or
return air, and if it's either of those, it's not a
worked-out area?

A.

Yes, sir.

Q.
And in his view it's worked-out area and,
therefore, it can't be intake?

A.

Yes, sir.

Mr. Pait confirmed that map Exhibits G-2 and 0-2 show the
same approximate areas, but that G-2 was completed after
April 11, 1994, and shows several "sealed" 5-B areas and does
not include all of the relevant stoppings or permanent ventilation devices that existed on March 29, 1994 (Tr. 680-683) .
He explained the prior mining difficulties and methane problems
encountered in early April, 1993, and the efforts made to
address the problem . While the methane was being bled off the
5-A area, mining moved to the 5-B area, and when that was
finished, it moved back to the 5-A face area (Tr. 687).
Mr. Pait stated that he had no personal knowledge or
information about the ventilation curtain citations and he
confirmed that he was on the surface when Mr. Culpepper called
him and advised him that a (d) citation and (d) order were
being issued because "the curtain is back 66 foot and there
is no air on the miner" (Tr. 687).
Mr. Pait was not cross-examined by the petitioner. However,
in response to certain bench questions, Mr. Pait stated that he
saw nothing wrong with the intake air sweeping the perimeter
of the 5-B area and then exiting down the entry, around the
5-A working faces, and out of the mine. He stated that there

1000

•·,

was 39,000 cubic feet of air flowing out and only .3 percent
met h ane on the section . He confirmed that this was his first
experience with the new regulation and that he and Mr. Eslinger
had a difference of opinion (Tr. 691) . Mr. Pait be l ieved that
it was management's prerogative to establish intake air and to
designate where it would go when it writes its ventilation plan .
He confirmed that if a designated area is a worked-out area it
can not be an intake, and if it is determined that the 5-B area
was worked-out on March 29, 1994, it would be a violation
(Tr. 692).
Roof bolter operator Steve Burgess testified that he was
operating the continuous miner machine at 5-A face on March 29,
1994. He stated that he was making a straight remote cut in the
No. 6 entry, and he was standing on the right side of the entry
away from the machine . He explained the cutting sequence, and
stated that when he first saw the inspectors he was through
cutting coal and was backing the machine up to clean the place up
so that it could be roof bolted . He did not consider cleaning up
coal to be cutting or loading coal because, "I'm not cutting any
coal.
I'm just cleaning up loose coal on the ground where I have
already made a cut" (Tr. 640-643) .
Mr. Burgess stated that he checks the line curtain before
starting the cuts, but does not take an air reading because he
does not have an anemometer, and the face boss takes the reading.
He stated that Roy Wiggins checked the air volume. When the
inspectors appeared, Mr. Wirth checked the air "and there wasn't
any air there because all of our curtain wasn't there" (Tr . 644).
Mr. Burgess explained that he had cut the left side of the
entry when the car that was leaving hooked the curtain and took
out the bottom skirting and 11 I knew he woul dn't have any air
there," because the remaining curtain was four feet of~ the
ground (Tr . 645). He stated that he saw the curtain come down
and leave (Tr. 645). He further stated that approximately
30 feet of the 70 foot long curtain was torn down, and there was
no skirting on the last five or six feet of the curtain toward
the face (Tr. 646-647). He did not cut or load any coal after
the curtain was torn down (Tr. 648).
On cross-examin ation, Mr. Burgess stated that when the
inspectors arrived he was backing the cutting machine out and

1001

he was heading into the face area to clean it up. He stated
that there was approximately three-quarters of a ram car of coal
to be cleaned up, and that it is loaded into the ca-r. When asked
if he loaded the coal immediately prior to the arrival of the
inspectors, he replied, "I didn't clean the place up, no . They
stopped me 11 and "there wasn't a car there yet, but I wasn't ready
to clean up yet whenever I saw them walking up" {Tr. 650). He
further explained (Tr. 650-651):
A.
I was still backing the machine out, ready
to position it on the right side of the cut to clean up.

Q.
Had you loaded any coal from this area
from any prior clean-up?
A.
I had just cut a 35-foot remote cut
in that place.
Q.

.Where did the coal go from that cut?

A.

I'm not sure what you're asking me .

JUDGE KOUTRAS: After you took that 35-foot cut,

what happened to the coal?
THE WITNESS:
It was dumped in the ram cars and
hauled out to the belt tail and dumped on the belt.
Mr. Burgess stated that approximately a year ago while he
was preparing to clean up a place that he had cut, an inspector
told him that he did not have to maintain the air while he was
cleaning up and "since that time I was under the impression,
right or wrong, that you evidently didn't have to have 6500 feet
of air behind your line curtain to clean a place up" (Tr.655656) . Abatement was achieved by obtaining a curtain from a roof
bolting machine nearby, and he stated that, "we had gotten the
curtain off there earlier to han~ in there to start with"
(Tr. 657). He confirmed that the curtain was new and was not
yet up to replace the missing curtain, and the old piece was
used as skirting {Tr . 660). He stated that he to l d Mr . Wirth
that the curtain had been torn down by a dump car. After the
order was terminated, he cleaned up the place and loaded the
coal out of the face (Tr. 661).

1002

Mr. Eslinger was called in rebuttal by MSHA and he
confirmed that the two escapeway citations referred to by
Mr. Pait have been vacated by MSHA as part of a settlement.
He stated that the only indication he had that management
was treating the 5-B area as an intake air course were the
statement by Mr. Smock, Mr. Pait, Mr. Hatcher, and Mr. Culpepper.
He found no evidence of any preshif t examinations being made
as required by section 75.360(b) (6). He confirmed that his
opinion that the 5-B area was a worked-out area and not an
intake air course, is the position of MSHA in this matter. He
explained that the new regulations had been in effect for less
than two years, and in anticipation of litigation, he presented
the facts in this case to a gathering of MSHA district
ventilation supervisors and coordinators at a meeting in Beckley,
West Virginia, in August and they all agreed that the 5-B area
was a worked-out area and that 11 he should have no problem" in
establishing this (Tr. 696 - 702 ) .
Mr. Eslinger stated that he would consider the 5-B area to
be an abandoned area "because they weren't mining it" (Tr. 704) .
He stated that there was not much difference between an abandoned
area and a worked-out area that is now defined in the ·new rule .
With regard to the contention by management that they were still
recovering equipment from the 5-B area, Mr . Eslinger pointed out
that section 75.332(a) (1) requires a separate split of intake air
where equipment is being removed and that the same air ventilating such an area can not simultaneously be coursed through an
active working section. It must be done separately. His
position is that the air used to ventilate the 5-B area became
return air and was used to ventilate the 5-A working faces
(Tr . 705) .
Mr. Eslinger agreed that the 5-B and 5-A ventilation methods
in use at the time of the inspection were not a normal mining
practice, and he explained as follows (Tr. 706):
THE WITNESS:
This is hot normal mining
practice, right, and I agree with that when mining
ceased here because of the gas in the 5-A area,
that they had to go somewhere with the unit. So,
they backed up and they went here. Like Mr. Smock
said, to go off the intake side, they would have
preferred to go out the return side.

1003

I think the key thing here is that they should
have made preparations for coming out of here and
built overcasts to split the air or when they recovered
this equipment, wait a period of time until this area
was sealed and then go back in here . If they had
waited until this was sealed and not started mining
down here, we would not have written the citations
that we did.
Mr. Smock alluded to the problems of ventilating
this area. He talked about taking the belt area in
here and dumping it into the air course so they were
getting belt air to the face. There were ventilation
problems that were occurring because of the sequence
of events that happened, whether they called intake or
worked-out. They set themselves up into a series of
violations. We said that this is a worked-out and
subsequently wrote the violations that we did.
Mr. Eslinger confirmed that when the 5-B area was being
mined it was ventilated by intake air, and that 11 when the air
passed the last working place on the unit, then it became return
air" (Tr. 707). He agreed that interruption of mining at the
5-A face area because of the methane, and the withdrawal to the
5-B area presented a unique case (Tr. 709). He also agreed that
there were no methane levels or lack of oxygen that would have
endangered miners on March 29 and 30, 1994, and stated that, "I
never saw any methane levels in the working section that were
above the accepted levels" (Tr . 709) .
Mr. Eslinger expressed concern about the curtain violations
because of the prior methane problems that were addressed by the
drilling, and his concern was that there was still a potential
for encountering methane again. He did not believe the closing
of any wooden doors in the 5-B area caused the methane buildup in
that area (Tr. 711). He did not believe that the cited missing
curtain was ever installed, and stated that he stood back in the
crosscut watching the mining when Mr . Wirth took his air reading .
He also watched a full car load, and a second car starting to
load, and there was no curtain reaching up to near the tail of
the mining machine (Tr . 713).

1004

On cross-examination, Mr. Eslinger stated that he saw no
evidence that examiner Doty walked or drove the entire perimeter
of the 5-B area. He confirmed that he did not check each of the
40 or 43 examination places, but looked at some of them and saw
no examination dates, times, or initials (Tr. 715-717). Referring to a UMWA letter of March 21, 1994, that prompted the
inspections in question (Exhibit ALJ-1), Mr. Eslinger stated
that there is nothing illegal about ventilating sealed mine areas
with intake air that is then used to ventilate a working section
(Tr. 720) . He confirmed that improvements were made in the mine
ventilation and he "found more air per unit than I had ever seen
in the history of Brushy Creek Mine" (Tr . 721).
Mr. Eslinger stated that on March 30, 1994, he found only
.4 and .5 percent methane at the 5-A face area and improved
ventilation, but he was still concerned about the fact that
mining was taking place where the methane had come through the
mine floor (Tr. 724) . He confirmed that he could have anticipated that mining would take place in the 5-B area, but did not
raise this with mine management (Exhibit 0-6; Tr. 726-728) .
Findings and Conclusions
Citation No. 4266730 (LAKE 94-172-R; LAKE 94-251)
This citation was issued by Inspector Holland on March 29,
1994, and he cited a violation of 30 C . F . R . § 75.503, after
observing a non-permissible golf cart operating in the last
open crosscut between the No. 5 and 6 entries. Section 75.503
requires that all electric face equipment taken into or used inby
the last open crosscut be maintained in permissible condition.
The parties agreed to settle this violation and MSHA filed
a motion pursuant to Commission Rule 31, 29 C.F.R. § 2~00.31,
seeking approval of the proposed settlement. In support of the
motion, MSHA's counsel stated that the initial negligence and
gravity levels determined by the inspector remain unchanged, and
counsel agreed that Brushy Creek demonstrated good faith in
abating the cited condition. However, in view of the fact that
the number of persons affected by the violation has been reduced
from seven to three, counsel asserted that a reduction from the
initial proposed penalty assessment of $595 to $310 in settlement
of the violation was warranted (Tr. 16-18).

1005

Pursuant to Commission Rule 31, 29 C.F.R. § 2700.31, the
proposed settlement was approved from the bench (Tr . 17-18).
My decision in this regard is herein AFFIRMED and the settlement
IS APPROVED .

Citation No. 4260292 (LAKE 94-168-R; LAKE 94-250)
Brushy Creek is charged with a violation of 30 C.F.R.
75.3~2(a) (1), because the inspector believed that the air
leaving the 5-B "worked-out" area, after ventilating that area,
was return air that continued traveling inby where it was used
to ventilate the active 5-A working faces where coal was being
mined before it exited the mine through the return. He concluded
that both of these areas were being ventilated by the same split
of return air, and that the active face area was not being
ventilated by a separate split of intake air as required by the
cited standard, which provides as follows :
75.332 .working sections and working places .
(a) (1) Each working section and each area
where mechanized mining equipment is being
installed or removed, shall be ventilated by a
separate split of intake air directed by overcasts, undercasts or other permanent ventilation
controls .
§

Citation No. 4260295 (LAKE 94-171-R ; LAKE 94-251)
Brushy Creek is charged with a violation of 30 C. F.R.
75.507-1, because the inspector observed a non-permissible
golf cart traveling in the 5-B "worked-out" area . The inspector
concluded that this area was a return air course, and since the
golf cart was non-permissible (this is not disputed), he cited a
violation. The cited standard provides as follows:
§

§

75.507-1 Electric equipment other than powerconnection points, outoy the last open crosscut;
return air; permissibility requirements.

(a) All electric equipment, other than powerconnection points, used i~ return air outby the last
open crosscut in any coal mine shall be permissible
except as provided in paragraphs (b) and (c) of
this section.

1006

Citation No. 4266732 (LAKE 94-173-R; LAKE 94-250)
Brushy Creek is charged with a violation of 30 C.F.R.
§ 75.334(a) (1), because the inspector found 1.9 percent methane
and 18.8 percent oxygen levels in the 5-B "worked-out" area. He
concluded from this that the area was not ventilated so as to
continuously dilute and route methane to a return air course.
The cited regulation provides as follows:
75.334 Worked out areas and areas where
pillars are being recovered.
(a) Worked-out areas where no pillars have
been recovered shall be( 1) Ventilated so that methane-air mixtures
and other gases, dusts, and fumes from throughout
the worked-out areas are continuously diluted and
routed into a return air course or to the surf ace
of the mine; or
(2) Sealed.
§

The parties agreed that the critical issues here are
whether the cited area was in fact a worked-out area, and the
interpretation and application of the regulatory words "continuously diluted" (Tr. 251). MS.HA'S position is that the intent
of the regulation is to insure that all worked-out areas are
ventilated so as to continuously dilute and move all methane
into the return. Since the inspector found 1.9 percent methane
and 18.8 percent oxygen levels in the cited worked-out 11 bottle 11
area that has been characterized by Brushy Creek as "neutral"
air, MS.HA concludes that the ventilation was not doing the job
by continuously diluting methane and moving it out of the area.
Even though the air that eventually found its way to the active
5-A mining faces was clear of methane, which indicates that it
has been diluted at that point, MS.HA nonetheless argues that the
methane found at the cited location was not diluted and carried
away, and if left undetected and unabated could continue to
accumulate to hazardous levels (Tr. 245-247).
Citation No. 4266733 (LAKE 94-174-R; LAKE 94-459)
In this citation Brushy Cre~k is charged with a violation
of 30 C.F.R. § 75.308(f) (1), for failure to ventilate a primary
escapeway with intake air. Section 75.380(f) (1) provides, in
relevant part, as follows:

100 7

§

75.380 Escapeways; bituminous and
ignite mines.

(a) Except in situations addressed in
75.381, § 75.385 and § 75.386, at least two
separate and distinct travelable passageways
shall be designated as escapeways and shall
meet the requirements of this section.
§

*

*

*

*

(f) (1) Primary escapeway. One escapeway
that is yentjlated with intake ajr shall be
designated as the primary escapeway . In areas
of mines developed after November 15, 1992, the
primary escapeway shall not contain diesel
equipment, electrical equipment described in
§ 75.340(a) and§ 75.340(b) (l}, or compressors
described in § 75.344, except(i) Equipment necessary to maintain the
escapeway in safe, travelable condition; and
(ii) Haulage equipment other than belt and
trolley haulage, necessary for the transportation
of persons and materials.
(Emphasis added}
Subsection (a) of § 75.380 requires a mine operator to
designate at least two separate and distinct travelable passageways as escapeways that meet the requirements of the regulation.
Subsection (f) (l) requires that one of the escapeways be
designated as the primary escapeway. The designation of the
primary escapeway depends on how it is ventilated. In order to
meet the requirements of the regulation, the designat~d primary
escapeway must be ventilated by intake air. If it is ventilated
by ~eturn air it may not serve as a designated primary escapeway.
The parties are in agreement that the controlling issue
with respect to Citation Nos. 4260292, 4260295, 4266732, and
4266733 is the interpretation to be placed on the terms "workedout area," "return air," and "intake air" pursuant to the newly

1008

promulgated ventilation regulations published in the May 15,
1992, Federal Register, Volume 57, No. 95, pages 20868-20929.

§

MSHA's ventilation regulations, Subpart D, 30 C.F.R.
75.301, provides the following relevant definitions:
Horked out area. An area where mining has been
completed, whether pillared or non-pillared,
excluding development entries, return air courses,
and intake air courses.
Intake air. Air that has not yet ventilated the last
working place on any split of any working section, ~
any worked-out area, whether pillared or nonpillared.
(Emphasis added) .
Return air. Air that has ventilated the last working
place on any split of any working section ~ any workedout area, whether pillared or non- pillared. If air
mixes with air that has ventilated the last working place
on any split of any working section ~ any worked-out
area, whether pillared or nonpillared, it is considered
return air. For the purposes of existing §75.507-1, air
that has been used to ventilate any working place in a
coal producing section or pillared area, or air that has
been used to ventilate any working face if such air is
directed away from the immediate return is return air.

The Dictionary of Mining. Minerals. and Related Terms,
U.S . Department of the Interior, 1968 Edition, defines "workedout area" as "[a] mine or large section of a mine from which all
mineable coal has been taken."
MSHA's Arguments
MSHA asserts that Brushy Creek does not contest the fact
that mining was completed in the 5-B area, and that its witnesses
admitted there was no coal production going on in that area, that
the continuous miner had been squeezed out of the area and was
moved to the 5-A area where coal was being produced.
MSHA states that Brushy Creek's witnesses further admitted
that the 5-B area had no power, that this area had been previously roomed and paneled, that they had "retreated out" and that

1009

none of the crew would have to go into the 5-B area because
"there was nothing left in there for them to get," that one work
crew was in the process of building seals, and that approximately
two (2) weeks from the date of the subject citations, the
5-B area would have been completely sealed.
In reply to Brushy Creek's assertion that the 5-B area was
an intake air course and would remain so until the area was
completely sealed, MSHA maintains that Brushy Creek failed. to
show that it treated this 5-B area as an intake air course by
performing the required examinations for such air courses, and'
instead admitted that much of the 5-B area was "squeezing." In
light of this, MSHA concludes that passage into certain of this
area's points of deepest penetration were inaccessible for any
such required examinations.
In response to Brushy Creek's assertion that the 5-B "intake
air course" area, by definition, can not be a "worked-out" area,
MSHA argues th~t Brushy Creek took no affirmative action to treat
the 5-B area as· an intake air course, and that Safety Ma~ager
Pait admitted that most of the 5-B area was still marked as a
return air course because the color patterns on the reflectors
located there had not yet been changed. Further, MSHA states
that despite its knowledge of the examination requirements and
its promises to the contrary, Brushy Creek presented no proof at
hearing of conducting the pre-shift examinations required for an
intake air course, presented no evidence to rebut the MSHA
inspector's credible testimony that he did not observe any
examiner's initials in the 5-B area points of deepest penetration, and Mine Manager Hatcher referred to the 5-B area as the
"old works."
MSHA cites my decision in Zeigler Coal Company, 2 FMSHRC
304, 324 (February 1992), affirming a violation of 75.507, for
locating non-permissible golf carts in return air. In that case,
I found that intake air which had initially passed two working
faces was return air when it continued to sweep additional faces
where the cited golf carts were located. MSHA asserts that the
new ventilation regulations parallel my Zeigler holding, and that
§ 75.301 added definitions for "intake air" and "return air" to
characterize the air current by whether the air has ventilated a
working place .Ql: a mined out area.

1010

MSHA states that under the final rule, and in conformance
with established distinctions made throughout the mining
industry, if air has ventilated either the last working place
.Ql: any worked-out area, then this air is considered to be
"return air." MSHA argues that the definition of "return air"
also makes clear that if intake air mixes with air that has
ventilated either working places Q.l: "worked-out" areas, then
this air is considered return air. MSHA maintains that the air
which flowed through the 5-B "worked-out'' area was destined to
ventilate the 5-A working face, and despite Brushy Creek's
assertion that it had the "prerogative" to define its air
courses, the regulations provide a codified definition to which
it must adhere .
MSHA argues that its interpretation of the regulation is
consistent with the language and purpose of the Act and deserves
substantial deference. In support of this conclusion, MSHA
states that the legislative history of the Act demonstrates
Congress' intention to prevent, and not merely to minimize,
violative conditions, particularly with respect to ventilation
regulations that are aimed at eliminating ignitions and fuel
sources for explosions and fires. Citing several court decisions, MSHA concludes that courts have recognized the great
deference due an agency's interpretation of the law it
administers and enforces.
MSHA asserts that the proper standard of review when
considering the validity of a regulation is whether or not it
is consistent with, and reasonably related to, the statutory
provisions under which it was promulgated and is not in conflict
with other statutory provisions. MSHA concludes that in the
instant cases, the only interpretation that promotes the
protection of the miners at the Brushy Creek Mine, who are
exposed to air which has coursed through an un-examined minedout area with all of that area's consequent contaminants, among
them methane, is the interpretation it has advanced. In support
of this conclusion, MSHA relies on the testimony of Mr. Eslinger
regarding the definition of "worked-out area" and the intent of
the regulations.
MSHA points out that Mr. Eslinger confirmed that its
interpretation of the term "worked-out area" applies to the
5-B area of the mine. MSHA concludes that its interpretation

1011

::

..

··.

..
.·

is reasonable and would better protect the miners working in
the 5-A area than the interpretation proposed by Brushy Creek.
MSHA asserts that even if Brushy Creek mistakenly believed
that the 5-B area was an intake air course, the Mine Act provides
for liability without fault. Citing the Commission's decision
in Ideal Cement Company, 12 FMSHRC 2409, 2415 (November 1990),
MSHA argues that the test as to whether Brushy Creek violated the
standard is whether a reasonably prudent person, familiar with
the mining industry and the protective purposes of the standard,
would have recognized that air which traveled through an extensive area, known to be gassy, then mixed with air coming off the
belt haulageway before it ventilated the working face in the
5-A area would be considered "return air."
Disputing Brushy Creek's assertions to the contrary, MSHA
takes the position that the subject definition contained in the
regulations at 30 C.F.R . § 75.301 is not necessarily circular,
vague, or overly broad. Citing Alabama By-Products Co:r:poration,
4 FMSHRC 2128, 2130 (December 1982), MSHA states that,
"[b)roadness is not always a fatal defect in a safety and health
standard. Many standards must be simple and brief in order to be
broadly adaptable to myriad circumstances."
Finally, MSHA points out that Brushy Creek is not a new,
inexperienced mine operator, and that its familiarity with the
mining industry and with MSHA's regulations, the purpose of
which is to protect miners, should have made it aware that the
5-B area would be considered "return air." MSHA concludes that
Brushy Creek can not, in good faith, allege that it believed that
MSHA would permit potentially dangerous conditions resulting from
the cited conditions to exist without penalty merely because it
chose to label this air course "intake air."
Brushy Creek's Arguments
Brushy Creek agrees that the common issue with respect to
Citation Nos. 4260292, 4260295, 42266732, and 4266737 is whether
the cited 5-B area was a "worked-out area" as defined by section
75.301. Brushy Creek takes the position that the .definition of a
"worked-out" area is circular and therefore can not be applied to
turn an intake air course into something else.

1012

In support of its argument, Brushy Creek states that the
section 75.301 definition of 11 intake air" reveals that it is
defined with reference to "worked-out area, 11 and that intake air
does not include air which has ventilated a worked-out area.
Brushy Creek concludes from this that the inartful definition of
a worked-out area circles back upon itself and leaves no choice
other than to conclude that an intake air course can not be a
worked-out area.
Based on the regulatory "worked-out area" definition,
Brushy Creek asserts that developing entries, return air courses,
and intake air courses must be excluded from a worked-out area,
and if any of these three is present an area is not a worked-out
area. Brushy Creek believes that since the 5-B area was
separated from other entries by stoppings or other ventilation
control devices, it met the regulatory definition of an "air
course. 11 Since the air passing through that air course had not
yet ventilated the last working place, Brushy Creek concludes
that the air in that air course was intake air. Since this was
the case, Brushy Creek believes that the physical area which
contained the intake air course could not be a worked-out area,
and that this area either contained an intake air course which
directed air over the 5-A face or it contained a return air
course. In either case, Brushy Creek does not believe it was a
worked-out area since the definition of such an area excludes
both return air courses and intake air courses .
Brushy Creek asserts that the difficulties in understanding
the meaning of "worked-out" justifies its reliance upon its
understanding of the term in relation to the terms describing
other underground mine areas. With regard to Mr. Eslinger's
testimony that there is little difference between an abandoned
area and a worked-out area, Brushy Creek takes the position that
the 5-B intake air course was being regularly inspected and
ventilated, and thus did not meet the statutory definition of
"abandoned area" or the Mining Dictionary definition of
"abandoned workings."
Brushy Creek maintains that the air course around the
perimeter of the 5-B area met all of the practical requirements
as an intake air course in that the entries were separated from
the neutral entries by ventilation control devices, and that the
only connection between the air course and the neutral entries

1013

was through metal personnel doors used to allow methane in the
neutral areas to "trickle" into the air course so as to be
diluted and carried away.
Brushy Creek states that the concept of an air course around
a neutral area is shown in the mine ventilation plan that was
examined by Mr. Eslinger and Mr. Wirth before their inspection,
and that a map of the 5-B area showing the perimeter air course
around the neutral entries dated September 21, 1993, was also
examined by Mr. Eslinger when it was filed with MSHA. In addition, Brushy Creek asserts that the air course was examined as an
intake air course, and that it was in the process of marking the
air course an intake air course primary escapeway at the time of
the March 29, 1994, inspection, and that MSHA insisted it was
necessary to mark the entire perimeter as a means of abating two
other escapeway citations issued during the inspection.
In comparing its mine map, Exhibit 0-2, with MSHA's mine
map, Exhibit G-~, both of which were prepared for this litigation, Brushy Creek points out that MSHA's map fails to show
the permanent ventilation controls which created the intake
air course. Conceding that its designation of an area as an
intake air course may not, of itself, establish the area as such,
Brushy Creek nonetheless concludes that it has always been its
prerogative to adopt a ventilation plan which fits the unique
circumstances at its mine.
Brushy Creek concedes that there was no coal production
equipment in the air course at the time of the inspection, but
takes the position that nothing in the regulations states that
removal of the equipment or seal construction magically transforms an intake air course into a worked-out area. Brushy Creek
concludes that any dissatisfaction regarding the length of the
air course or the specific conditions found did not give MSHA
the authority to arbitrarily reclassify an intake air ·course
as a worked-out area. Brushy Creek further concludes that the
inspectors could have cited it for an improperly inspected intake
air course, or for other regulatory violations, but instead
focused on the "worked-out area" newly promulgated regulation
"written" by Mr. Eslinger, and having made the choi'ce, the
citations stand or fall on this definition.

1014

Citing the testimony of Mr. Eslinger at Tr. 705-709,
Brushy Creek states that while the 5-B area was being mined
the air course delivered clean intake air to the face, and the
contaminated return air was carried away in the air course. As
the location of the face changed, the classification of the air
course changed, depending on whether it carried 11 intake 11 or
"return" air. When mining ceased in the 5-B area on Friday,
March 25, 1994, the air course up to the face was an "intake
air course" and beyond the face was a "return air course."
Brushy Creek points out that according to Mr. Eslinger when
the equipment moved back to the 5-A face on Monday, March 28,
1994, the entire 5-B area became "a worked-out area" and the air
course became a return air course. In short, Brushy Creek
concludes that what had been an acceptable intake air course
became, for no stated reason, an unacceptable worked-out area,
and although Brushy Creek was permitted to run fresh air through
the area on Friday, it was not permitted to do so on Monday, even
though the air at the 5-A face never exceeded acceptable levels.
Brushy Creek states that reduced to its simplest terms,
MSHA's claim is that intake air entered the 5 - B area, moved with
the atmosphere in this "worked-out" area, then exited as return
air sweeping the 5-A face. However, Brushy Creek points out that
permanent ventilation controls existed which met MSHA's definitions and created an air course around the 5-B area. Further,
the intake air does not mix with the atmosphere in any worked-out
area. Intake air stays in the intake air course and does not
ventilate a work area. Even if it did mix , the air would have
picked up the air bubble discovered in the neutral.
Brushy Creek points out that the intake was always clear of
excessive methane, and no one ever found "bad air" in the form of
high methane or low oxygen at any place in the air course or at
the faces. Brushy Creek states further that the parties agree
that the air in the No . 5 air course was intake air up to the
point where the seals were under construction at the 5-B entry
area, and if the seals had been in place, the air would have had
a direct flow to the 5-A face and there would have been no
violation.
Brushy Creek concludes that· nothing occurred to the air in
the 5-B intake air course which could change the "intake" air

1 015

into "return" air. The air did not become contaminated with
methane or lose its oxygen content, there was no coal production
equipment present, there was no working face or working places,
the only working place in that area of the mine on March 29 was
the 5-A face, there were no power sources, and the only equipment
present was miscellaneous belt structures and other equipment
which was being recovered, none of which was "mechanized mining
equipment" requiring a separate split of air pursuant to section
75 . 332 (a) (1).
Brushy Creek asserts that if the permanent stoppings were
not in place throughout the 5-B area, as represented in MSHA's
map, Exhibit G-2, then the entire area would be classified as a
"worked-out area." However, because the permanent ventilation
controls were in place, the entries separated by those permanent
controls remain classified as an air course pursuant to the
definition of that term in section 75.301. Since it was an air
course, and was utilized as an intake air course, Brushy Creek
concludes that by definition, it can not be a worked-out area.
Citing the Zeigler decision, ~upra, Brushy Creek states
that return air may have different meanings for different
standards, and for the purpose of Subpart D, Part 75, it means
"air that has ventilated the last working place." Brushy Creek
takes the position that the air passing along the 5-B intake
air course did not ventilate the "last working place" until it
reached the 5-A face .
Brushy Creek asserts that before going underground on
March 29, 1994, Mr. Wirth and Mr. Eslinger had apparently
concluded that the 5-B area fit Mr. Eslinger's definition of
"worked- out" (Tr. 144). Mr. Wirth was familiar with the area
and told Mr. Culpepper shortly after they started that the
air course contained return air (Tr. 596}, and that before
starting into the air course from the other end, Mr. E·slinger
told Mr. Pait that the air was "off old works, so it's return
air" (Tr. 665 ) . Brushy Creek suggests that since Mr. Eslinger
had supposedly superior knowledge in regard to MSHA's interpretation of the "worked-out area" provisions of the new
ventilation regulations, and had previously been to the mine
and was familiar with the ventilation plan and mine maps of
the 5-B area, he was obliged to . point out any hazards to
Brushy Creek, rather than playing a game of "gotcha."

1016

Brushy Creek states that if the 5-B air intake is a
"worked-out" area, then the four citations must be considered
separately and either vacated or modified. With reg.ard to
Citation No. 4260292, Brushy Creek believes that the essence
of the alleged violation is that it should have had clean
air ventilating the producing section, and that it was "S&S"
because of the possibility of methane from below or from the
leng.t hy air course. However, Brushy Creek points out that
during the two inspection days in question, the air in the
air course and at the face was clean and there was no methane
levels in the working section that were above acceptable levels.
Brushy Creek concludes that, at most, this citation results
from a reasonable disagreement as to the classification of
5-B air course resulting from the difficulty of the definition.
It concludes that the citation should be vacated, and, if not,
reduced to non-"S&S" with no negligence.
With regard to Citation No. 4260295, Brushy Creek states
that the time noted for the issuance of the citation is wrong,
and that only one golf cart was ~resent. Although the citation
was marked 11 S&S 11 and "reasonably likely" to result in a permanently disabling injury, Brushy Creek points out that the
operator was allowed to start the cart and give one of the
inspectors a ride out, and it concludes that no danger would
have been present if Mr. Wirth had not taken it upon himself to
change the air flow. Brushy Creek believes the citation should
be vacated and, if not, reduced to non-"S&S" with no negligence.
With regard to Citation No. 4266732, Brushy Creek points
out that MSHA acknowledged that "management was compelled by
circumstances beyond their control to change ventilation that
may have permitted the cited condition to exist." Further, while
the citation alleges that the neutrals {the "worked-out area")
"was not ventilated," Mr. Eslinger admitted that the a~r quality
on the working section was satisfactory (Tr. 245) . Under the
circumstances, Brushy Creek concludes that the methane in the
area was continuously diluted within the intent of the standard,
and it believes that the citation should be vacated or reduced to
non- 11 S&S 11 with no negligence.

··'
..;
·.•

With regard to non-"S&S" Citation No. 4266733, Brushy Creek
argues that it was in the process of changing the escapeway
markers when the inspection team arrived, and at MSHA's

··~

1 017

·:-.

direction, to abate the citation, the entire 5-B intake air
course was marked, even though Mr. Eslinger admitted he would
take a shorter way out (Tr. 264). Brushy Creek maintains that
MSHA's prosecution of this citation is inconsistent since if it
is sustained, it is an acknowledgment that the primary escapeway
which MSHA required to be marked was ventilated with intake air.
If this citation is sustained, Brushy Creek suggests that
consistency requires that the other three must be dismissed.
The 5-B area in question was a rather extensive area
containing entries, rooms, and panels from which coal had been
extracted . Mr . Smock estimated that it was approximately
two and one half to three miles around the perimeter of the
area, and Mr. Wirth stated that it took four and one half hours
to walk around the area (Tr. 73, 450).
In the instant proceedings, if access to the 5-B area had
been sealed at the time of the inspection, the intake air would
have continued ,down the intake air entry directly to the 5-A face
area where it would have swept and ventilated the faces before
exiting the mine through the return. In that scenario, there
would be no violation because the intake air traveled directly
to the face area without first migrating and traveling through
the 5-B area. However, by coursing the air through the 5-B area
where the sealing work had not been completed, and allowing that
air to mix with the air ventilating the neutral area before exiting the area where it was again used to ventilate the 5-A working
faces, the respondent ran afoul of the cited ventilation
standards.
As noted earlier, "intake air" is defined by section 75.301
as (1) air that has not yet ventilated the last working place on
any split of any working section .Q..t: (2) air that has not yet
ventilated any worked-out area. "Return air" is defined in
relevant part as (1) air that has ventilated the last working
place on any split of any working section, .Q..t: (2) air that has
ventilated any worked-out area. 'In short, air that has llQ.t.
ventilated any worked-out area is considered intake air, and air
that ha.a ventilated any worked-out area is considered return air .
The controversy with respect to the four disputed violations in
question is focused on the interpretation of the section 75.301
definition of the phrase 11 wo~ked-out area" and its interpretation
and application to the terms "intake" and "return" air.

1018

The phrase "worked-out area" is defined, in relevant part,
by section 75.301, as 11 an area where mining has been completed,
excluding developing entries, return air course$, and intake
air courses."
Inspector Wirth testified that during his inspection of the
5-B area there was no coal production in progress, no continuous
mining unit or coal producing equipment, and no electrical power.
He also observed that some of the permanent ventilation stoppings
were crushing out, and the only work that he found in progress
was the work to complete the sealing of the area (Tr . 59-65) .
Inspector Eslinger characterized the 5-B area as "a classic
worked-out area" where mining had been completed (Tr. 282, 285).
Although Mr. Eslinger believed that the ventilation method used
at the time the area was being mined, as shown on the mine maps,
was sufficient, he confirmed that management did not submit a
ventilation plan showing the method of ventilation used in the
5-B area at the time of the inspection (Tr. 282, 285}. Since
Brushy Creek was in the process of sealing the 5-B area,
Mr. Eslinger concluded that Brushy Creek tacitly admitted that
mining was completed in that area and it never intended to go
back to mine coal (Tr. 287).
Mr. Smock agreed that a "worked-out area" is one where
mining has been completed, and he conceded that at the time of
the inspection, "we had finished cutting coal in this area, but
mining wasn't done because I had to get out of there" {Tr. 406).
Conceding that there was no electrical power on the 5-B area,
Mr. Smock suggested that because of the sealing work in progress,
and the presence of some equipment in one of the rooms (belt,
framing drives, and power boxes), which had not been removed from
the area, the area was not "worked-out" {Tr. 412-412, 467-468).
General Mine Manager Hatcher identified similar equipment that
was in the area (Tr. 510-511).
During closing arguments at ·the hearing, Brushy Creek's
counsel stated that, 11 we haven't contested the fact that mining
was completed in that area" (Tr. 741}. Indeed, in its posthearing brief, Brushy Creek concedes that there was no coal
production equipment in the 5-B area at the time of the

1019

•.

..:·:·

inspection, and it does not dispute the fact that there was
no power on the 5-B area.
I conclude and find that the evidence here establishes that
at the time of the inspection in question, the mining of coal
had been completed in the 5-B area, there was no power, and the
area was in the process of being sealed.
I further conclude
and find that the fact that the sealing had not been totally
completed, and that certain pieces of equipment had not yet been
removed from the area, does not detract from the fact that the
area was for all intents and purposes "mined-out." Under the
circumstances, I conclude and find that the 5-B area was a
"worked-out area" as that term is defined by section 75 . 301.
With regard to the exclusion of return air courses and
intake air courses from the definition of "worked-out area," I
cannot conclude that the 5-B area contained any clearly defined
intake air course that qualifies for a "worked-out area"
definitional ex.clusion .
For the reasons which follow, and notwithstanding the fact
that the 5-B perimeter area was separated by ventilation stoppings, I can not conclude that it constituted a .Q.e. facto intake
air course that would exclude the 5-B area as a worked-out area.
In support of its assertion that the perimeter of the
5-B area constituted an intake air course, thereby excluding
the 5-B physical area as a "worked-out area," Brushy Creek maintains that the ventilation stoppings constituted an "air course"
as defined by section 75.301, and that since the air in that air
course had not yet ventilated the last working place, it was
intake air.
Brushy Creek argues that the 5-B perimeter air course met
all of the practical requirements as an intake air course in
that the entries were separated from the neutral entries by the
stoppings and ventilation doors that allowed methane in the
neutral area to "trickle" into the air course, that the concept
of an air course around a neutral area is shown in ventilation
plan Drawing A0717-01 (Exhibit JE-2), that the air course was
examined as an intake air course, and that it was in the process
of marking the air course as an . intake air course primary
escapeway when the inspectors appeared on March 29, 1994.

1020

I conclude and find that the fact that a ventilation plan
sketch depicts a ''concept" for an air course around a neutral
area does not support any conclusion that the respondent's
ventilation method in use at the time of the inspection was
covered or authorized by the approved plan. In fact, the
testimony is to the contrary.
Conceding that simply designating an area as an intake air
course does not ~ facto establish it as such, Brushy Creek
maintains that it has always been its prerogative to adopt a
ventilation plan which fits its unique circumstances. However,
Mr. Eslinger testified credibly that there was nothing in the
mine ventilation plan allowing Brushy Creek to do what it was
doing (Tr . 159). Further, although Mr. Pait testified that the
mine ventilation plan did not prohibit the ventilation conf iguration for the 5-B perimeter area (Tr. 666), Mr. Smock testified
that the ventilation plan did not cover or authorize what was
being done at the time of the inspections on March 29 and 30,
1994 (Tr. 499).
Brushy Creek's assertion that it considered the 5-B area to
be an intake air course because it regularly inspected the area
as such is not well taken, and its conclusion in this regard is
rejected for lack of any supporting probative or credible evidence. The only written documentation produced by Brushy Creek
to support its assertion that the 5-B area was being regularly
inspected as an intake air course is a preshift mine examiner's
report signed by Richard Doty for an inspection of the "#5
intake" on March 29, 1994 (Exhibit P-0-3) . Mr . Doty was not
called as a witness and Brushy Creek introduced no further
examination reports from its mine records.
Brushy Creek's Shift Manager Reynolds, who walked part of
the 5-B perimeter with Inspectors Holland and Eslinger .on
March 29, 1994, testified that he observed two locations where
Mr . Doty had initialed and dated March 29 on the inspection
boards, and he marked the locations on Exhibit 0-2 (Tr. 588).
However, no records documenting these examinations were forthcoming and one can only speculate as to whether one of these
locations was the one documented by the aforementioned Doty
report.

1021

Although Underground Superintendent Smock testified that
he had to examine the entire 5-B area as an intake air course,
and that his mine examiners "would have been there .daily" to
examine the area of deepest penetration, the seal work area,
and "the intake for an air course 11 (Tr. 414, 452-459), no
documentation in the form of examination records were produced,
and none of the examiners who purportedly conducted the
examinations were called to testify.
Safety Manager Pait testified that the 5-B area did not have
definite examination points, and he asserted that examiners would
initial "at the point of deepest penetration or somewhere within
that area between the beginning and the end" (Tr. 670) . Although
Mr. Pait believed the area was regularly inspected, the only
specific examination he could identify was the one by Mr. Doty on
March 29 (Tr. 670}. Brushy Creek confirmed that it could not
find any examination records for the 5-B area other than the one
it produced (Tr. 695).
Inspector Wirth testified that the 5-B area was not being
properly pre-shifted or examined weekly as required by sections
75.360 and 75.364, and that when he walked the perimeter of the
5-B area to the point of deepest penetration, he found no dates,
times, initials, or evidence to indicate that these examinations
were being conducted. Under the circumstances, he cited
Brushy Creek with a violation for not conducting these
examinations (Tr. 48, 53-54, 76).
Inspector Eslinger was aware of only one entry in the
5-B area that was examined and marked "safe," but he did not
believe that Brushy Creek was examining all of the entries and
rooms throughout the entire area as required by section
75.360(b) (6), and he disputed Brushy Creek's contention that it
considered the 5-B area to be intake air because it was being
examined as an intake air course (Tr. 284).
After careful consideration ' of all of this evidence, I
conclude and find that, at most, Brushy Creek may have conducted
sporadic and cursory examinations of the 5-B area while working
and preparing to seal the area before the inspections in
question, but I can not conclude that it was regularly inspecting
or treating the area as an intake air course.

1022

Mr. Wirth testified credibly that intake air can become
return air, but that return air can not become intake. He
further testified that when he inspected the 5-B area with
Mr. Culpepper be observed that it was marked with red reflectors,
and that Mr. Culpepper informed him that these markings were used
to identify return air (Tr. 84-85, 122-123}. Mr. Pait testified
that at the time of the inspection most of the 5-B area "was
still marked as a return because that's what those had been a
week before . .. " (Tr. 677-688} .
The definition of "air course" found in section 75 . 301
states, in relevant part, that the separation of an entry or
entries by stoppings or other ventilation control devices is
so that any mixing of air currents between each is limited to
leakage. The evidence here reflects that the mixing of the
5-B neutral air and the perimeter air was more than leakage or
confined to "a trickle."
The respondent's assertion that the 5-B "intake air" did not
mix or ventilate any worked-out area and stayed in the "intake
air course" is not supported by the evidence and testimony, and
it is rejected .
Mr. Smock confirmed that the 5-B neutral area was being
ventilated in order to keep any methane below the legal limits.
In order to facilitate the flow of air through that area,
stopping blocks were removed, and the air that was used to
ventilate this area blended in with the rest of the air in the
air course that was exiting the 5-B area (Tr. 414-416}. He
further confirmed that air was coursed into the neutral areas by
stopping doors to allow the air to circulate and ventilate the
neutral area. The air would then exit through these doors and
into the air course (Tr. 423). He also testified that air from
the belt haulageway was used to ventilate the area tha~ was being
sealed, and that it traveled the perimeter of the 5-B area,
through the neutral area, and out into the air course that then
swept the 5-A working faces before exiting the mine through the
return (Tr. 477-478}.
The evidence establishes that the mine is an extremely
gassy mine. Indeed, the mining that had previously taken place
at the 5-A area was suspended and moved to the 5-B area because
of high levels of methane migrating through the 5-A floor from

1023

an old abandoned mine below that area . Mining resumed in the
5-A area after the methane was cleared up after bore holes were
drilled to bleed it off.
Mr. Wirth testified credibly that the worked-out area
included the neutral area between the stoppings where methane
was detected in an area where there was no air movement
(Tr . 147). He also observed 5-B areas where the stoppings
were crushing out and where below normal oxygen levels were
discovered, as well as methane levels up to 1.8 percent.
Mr . Eslinger t estified that his methane detector , which was
set at 2 . 5 percent methane, sounded when he walked through a
stopping door into the 5-B neutral area. Un<lerground Superintendent Smock candidly admitted that he "wanted out of there as
soon as possible" because of pillar squeezing and the presence of
gas bleeders. He also admitted that the 5-B area was "troubled"
before the inspection because of the squeezing that was "messing
up" the ventilation system.
Mr. Wirth acknowledged the presence of permanent and
temporary ventilation controls and stoppings while he was
traveling the 5-B area during his inspection (Tr. 106-107, 111).
He confirmed that the air ventilating the 5-A face area where
mining was taking place was the same air that had ventilated
the 5-B area, and that both areas were being ventilated by
the same split of air and not separately. Although Mr. Wirth
acknowledged that the air entering the section was initially
intake a i r, he concluded that once it was coursed through the
5-B area, it became return air, regardless of whether it remained
in the perimeter area or in the "neutral area" (Tr. 85). Since
the air ventilating the 5-A area was not on a separate fresh air
intake split, he concluded there was a violation of section
75.332 (a) (1).
Mr. Wirth testified that the last working place on the
section for the purpose of applying the definition of return air
was the 5-A working place where coal was being produced (Tr. 98).
He agreed that by definition, the air must first pass by that
working place before it can be considered return air pursuant to
-section 75.301. However, since the air had already ventilated
the "worked- out" area before reaching the last working place,
he concluded that it was return air by that same definition
(Tr. 99) .

10 2 4

Mr. Eslinger considered the entire 5-B area, including the
"neutral areas" between the stopping lines, to be worked-out
areas (Tr. 147). He conceded that the air that exited the
5-B area and was used to ventilate the 5-A face area would have
been within the legal limits of intake air, 1:2JJ..t. ~ the section
75.301 definition of return air that defines such air as air that
has been used to ventilate a worked-out area (Tr. 147).
Although I agree with Brushy Creek's assertion that the
definition of "worked-out area" is circular, confusing and
inartfully drafted, I am not persuaded that Brushy Creek was
totally ignorant of the prohibitions against using air which
has ventilated a worked-out area to ventilate the working face
area in question . Nor can I ignore the hazards associated with
potential methane ignitions and explosions that may occur as a
result of ventilating active face areas with air that was used to
ventilate other worked-out areas before exiting the mine through
the returns. I find that the promulgation of the ventilation
standards found at sections 75.332, 75.334, and 75.380, was
clearly intended to address, remedy, or prevent these potential
hazards to miners working underground.
After careful consideration of all of the evidence in these
proceedings, I conclude and find that MSHA has the better part of
the argument. I can not conclude that Brushy Creek has established that the 5-B perimeter area that it has characterized as
an intake air course was in fact a clearly identifiable separate
air course delivering un-mixed air directly to the 5- A working
faces without first ventilating the 5-B worked-out areas. Since
the evidence establishes the 5-B perimeter air mixed with the
air from the belt haulageway that was used to ventilate the
5 - B neutral worked-out areas, I conclude and find that the air
did in fact ventilate worked-out areas before reaching the
5- A working faces. Under the circumstances, I further conclude
and find that this air was return air as that term is defined by
section 75 . 301 .
The parties agreed that the principal issue with respect to
t he citations in question is whether the cited 5-B area was a
•wor ked-out area" as defined by section 75.301 (Tr. 281, 505,
692; Respondent's Post-hearing Brief, pg. 9). They further
agreed that if I should find that the cited 5-B area was a
worked-out area, the violations should be affirmed . Under the

1025

circumstances, Citation Nos. 4260292, 4260295, 4266732, and
4266733 ARE AFFIRMED .
Citation No. 4260297 <LAKE 94-175-R; LAK.E 94-250)
In this citation, Brushy Creek is charged with a violation
of mandatory safety standard 30 C.F . R. 75.370(a ) (2), for failing
to follow its approved ventilation plan requiring a minimum of
6,500 cfm of air at the end of a ventilation line curtain at
all times while the miner machine is cutting or loading coal
(Ventilation plan, pg. 1, paragraph C. (2) (Exhibit JE-2)).
Section 7S.370 (a) (1) requires a mine operator to develop and
follow its approved plan, and, in this case, the inspector
found less than the required amount of air at the cited face
ventilation curtain in question while coal was being cut and
loaded.
Inspector Wirth 1 s credible and unrebutted testimony clearly
establishes that there was little or no air movement at the end
of the cited line curtain in question. The respondent's approved
ventilation plan requires that 6,500 cubic feet of air per minute
be maintained at the end of the line curtain at all times while
coal was being cut and loaded. Mr. Wirth 1 s testimony establishes
that the available air was insufficient to even turn the vanes of
the anemometer that he used to test the air.
Mr. Wirth's testimony that he observed coal being cut and
loaded at the face of the No. 6 entry where the cited curtain was
located was corroborated by the credible testimony of Inspector
Bird who testified that when he and Mr. Wirth walked into the
entry, he observed coal being loaded, and a loaded car leaving
the area. Mr. Bird's inspection notes reflected that the remote
control miner was cutting and loading coal in the No. 6 entry.
Mr. Eslinger testified credibly that he arrived at the cited
location shortly before Mr. Bird and Mr. Wirth and observed a
loaded shuttle car leaving. He then watched as other shuttle
cars pulled in and were loaded with coal.
I find no credible testimony or evidence to rebut the
observations made by Mr. Bird, Mr. Wirth, and Mr. Eslinger in
support of the violation. Mine Manager Hatcher confirmed that
he did not observe the cited conditions and was not present
when the citation was issued. Assistant Safety Inspector

1026

..

,,

-....

Gene Culpepper testified that when he went to the face area
he found Mr . Eslinger, Mr. Bird, and Mr. Wirth there and
they informed him that a citation had been issued be~ause of
insufficient air at the face. Mr. Culpepper confirmed that
when he arrived in the area, the mining machine was shut off
and he did not take any air readings at the end of the cited
line curtain.
Safety Manager Pait confirmed that he had no personal
knowledge of the line curtain violations and that he was on the
surface when Mr . Culpepper called him to inform him that the
citation was being issued.
The only relevant testimony by the respondent in defense of
the violation was that offered by miner operator Steve Burgess.
He testified that he did not take an air reading before starting
his cuts because he had no anemometer. He confirmed that
Mr. Wirth checked the air and found none because part of the
curtain was miss~ng.
Mr. Burgess claimed that when he first observed the
inspectors he was through cutting coal and was backing the
machine up to clean up so that he could begin bolting the roof.
He took the position that he was simply cleaning up the loose
coal that was on the ground and suggested that he was not cutting
or loading coal. I reject this testimony as a less than credible
defense to the violation. Even if I were to accept as true that
Mr. Burgess was cleaning up loose coal when he first observed the
inspectors, they testified credibly that when they were observing
the work at the face, coal was being cut and loaded, and shuttle
cars were coming and going from the face areas with loaded coal
that had been cut at the face by Mr. Burgess.
On cross-examination, Mr. Burgess confirmed that he had not
cleaned up any loose coal when the inspectors appeared at the
face areas and that he had just made a 35 foot cut of coal that
was dumped in the ram cars and hau~ed away. He further confirmed
that he cleaned up the place and loaded the coal out after the
violation was abated and terminated.
I conclude and find that the petitioner has established by
a preponderance of the credible and probative evidence that the
requisite amount of air was not being maintained at the end of

1 02 7

the ventilation line curtain while coal was being cut and loaded.
Brushy Creek's failure to maintain the air as required constitutes a violation of its approved plan, and its fai~ure to follow
the plan constitutes a violation of section 75.370(a) (1).
Accordingly, the citation IS AFFIRMED.
Citation No. 4261610 (LAKE 94-176-R; LAKE 94-250)
Brushy Creek is charged here with a violation of mandatory
safety standard 30 C.F.R. 75.370(a) (1), for failing to follow
its approved ventilation plan requiring the cited ventilation
line curtain to be maintained within 40 feet of the deepest
penetration of the face while coal is being cut and loaded
(Ventilation Plan, pg. 1, paragraph C. (2) (Exhibit JE-2)). Here
the inspector found that the curtain measured 66 feet from the
deepest penetration where coal was being cut and loaded.
The credible testimony of Inspector Bird establishes that
the cited ventilation line curtain was not maintained to within
40 feet of the face as required by the approved mine ventilation
plan. The applicable plan provision when remote control miners
are in use requires the ventilation line curtain to be maintained
to within 40 feet of the deepest penetration of the face.
Mr. Bird determined that the line curtain was not maintained
to within 40 feet of the face by measuring the distance between
the miner bits cutting at the face to the tail of the miner, and
the distance from the line curtain to the last row of roof bolts .
Based on these measurements, he concluded and found that the line
curtain was being maintained at a distance of 66 feet from the
point of deepest penetration where coal was being cut and loaded
at the face . Mr. Eslinger, who was present at the scene,
testified credibly that after he pointed out that coal was being
cut and loaded, Mr. Bird proceeded to make his measurements, and
that mining was stopped.
Brushy Creek's Safety Inspector Gene CUlpepper, who made a
sketch of the curtain, including a notation that it was "taken
down by a car," confirmed that he based this notation on what he
"thought" had happened, and he admitted that he did not see any
car tear the curtain down and did not speak to any car operator.
Although he claimed that he saw that the curtain was missing, he

1028

conceded that he did not know what happened. He further stated
that miner operator Burgess told him that he "thought" that a
car had torn down the curtain. Mr. Culpepper confirmed that he
made his sketch six months after the citation was issued, and
although he took exception with the curtain sketches made by the
inspectors, he admitted that even on his sketch the curtain is
shown as more than 40 feet from the face, and that this would be
a violation.
Miner operator Burgess claimed that he saw the curtain
being torn down, but indicated that only 30 feet of the 70 foot
curtain was torn down and that the last five or six feet of
curtain skirting towards the face was missing. He confirmed
that abatement was achieved by hanging a new curtain that had
been stored in a roof bolting machine nearby, and he testified
that this new curtain was intended to replace the old curtain.
Inspector Wirth testified credibly that he saw no evidence
that the curtain had been ripped down and he saw no curtain lying
on the mine floor. Although he did observe a gap at the bottom
of the curtain, he did not believe this was significant as long
as the air was maintained as required by the ventilation plan.
Inspector Bird, who was also at the scene with Mr. Wirth,
did not observe any curtain on the ground or a car tearing it
down. He testified that he would not have issued the citation if
the curtain had been torn down and loading was stopped to hang
it back up . However, he saw no evidence that this was the case.
Inspector Eslinger testified that he observed no ripped
curtain or any curtain being dragged off by a shuttle car, and
he saw no evidence that the curtain had been hung up to the
last full roof bolts.
The respondent's suggested defense that the curtain was not
maintained to within 40 feet of the face because it was torn down
by a shuttle car leaving the area .i.a rejected . Mine operator
Burgess' testimony that the new curtain stored on the roof bolter
was intended to be hung earlier "to start with," suggests that
part of the curtain may have been down sometime prior to the
arrival of the inspectors, and that mining continued on with no
action taken to install the new curtain until after the citation

1029

was issued. Under the circumstances, I can not conclude that
this excuses the violation .
I conclude and find that the petitioner has established by
a preponderance of the credible and probative evidence that the
cited violation line curtain was not maintained to within 40 feet
of the deepest penetration while coal was being cut and loaded,
as required by the mine ventilation plan. Brushy Creek's failure
to maintain the required curtain distance as required by its
approved plan constitutes a violation of section 75 . 370(a) (1).
Accordingly, the citation IS AFFIRMED.

Brushy Creek's counsel suggested that the inspectors were
mistaken as to the location of the cutting machine, as well as
the depths of the cuts, and he advanced the argument that the
machine operator was 11 strictly cleaning up after completing some
cuts" and was not cutting or loading coal (Tr. 382-393). Counsel
further asserted that Brushy Creek was charged with two separate
line curtain vip lations rather than one and he voiced his displeasure with MSHA's 11 double barrel" enforcement action
(Tr . 3 93 - 3 9 4 ) •
find no credible or probative evidence to support any
conclusion that the inspectors were mistaken as to the location
of the violations. Even if they were, I find no prejudice to
Brushy Creek in defending the citation. I further find no
evidence to support a conclusion that the inspector mistook the
depths of the cuts. I find the inspector's unrebutted
measurements in support of the violation to be credible.
I

With regard to Brushy Creek's "duplicate violation"
argument, while it is true that the two line curtain violations resulted from a single episode, the evidence supports
two distinct violations and the Act requires a penalty assessment
for each violation, 30 U.S.C. 820(a). However, I have· taken all
of this into consideration in assessing the penalties for the
violations in question .
.Significant and Substantial Violations
A "significant and substantial 11 violation is described in
section 104(d) (1) of the Mine Act as a violation "of .s uch nature
as could significantly and substantially contribute to the cause

10 30

and effect if a coal or other mine safety or health hazard."
30 C.F.R . § 814(d) (l). A violation is properly designated as
significant and substantial, "if, based upon the par.t icular facts
surrounding the violation there exists a reasonabl~. 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 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 reasonab+y 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
,CQ_,_, 6 FMSHRC 1834, 1836 (August 1984) .
We have
emphasized that, in accordance with the language
of section 104(d) (1), it is the contribution of a
violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining
Company. Inc., 6 FMSHRC 1573, 1574-75
(July 1984).
The question of whether any particular violation is "S&S"
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 2006 (December 1987) . Further, any
determination of the significant nature of a violation must be
made in the context of continued normal mining operations.

10 31

.··:

National Gypsum, 3 FMSHRC 327, 329 (March).
Incorporated, 8 FMSHRC 8 (January 1986).

Halfway.

In the Texasgulf, Inc. case, supra, the Commission affirmed
the judge's non-"S&S" finding in connection with a permissibility
violation and commented that in order for an ignition or explosion to occur, "there must be a confluence of factors, including
a sufficient amount of methane in the atmosphere surrounding the
impermissible gaps and ignition sources," 10 FMSHRC 501.
Citation No. 4260292
Mr. Wirth based his "S&S" finding on the fact that the 5-A
face area where mining was taking place was not being ventilated
by a separate split of fresh intake air, and was instead being
ventilated by air that had circulated through and ventilated the
worked-out 5-B area. He concluded that it was reasonably likely
that an injury would occur because the 5-B area was not being
properly examined, there was a body of methane present in the
neutral worked~out area, with no air movement sufficient enough
to dilute and move out that methane, and he believed that contaminated air from this area would easily find its way to the
coal producing area. He also considered the fact that methane
was being liberated from an old mine and was migrating through
Brushy Creek's mine.
Mr. Wirth further believed that low oxygen levels and high
methane levels may go undetected in areas that are not properly
examined, and that roof falls could result in the failure of
permanent ventilation control devices. Mr. Eslinger confirmed
that he reviewed Mr . Wirth's 11 S&S 11 finding and agreed with it.
Since it was only the second day of mining, Mr. Eslinger was
concerned that methane could again come through the mine floor,
and he found methane in the 5-B area and believed that it could
travel to the working 5-A face at any time.
I conclude and find that Mr'. Wirth' s testimony in support of
his "S&S" finding is general and somewhat speculative. Although
I have found that the failure to ventilate the 5-A working face
area with a separate split of intake air constitutes a violation
of section 75.332(a) (1), on the specific facts of this case, I
cannot conclude that in the course of continued mining the cited

1032

condition would reasonably likely result in an accident or
injuries of a reasonably serious nature.
The evidence establishes that no active mining was taking
place in the 5-B worked-out area and there was no power on the
area. Except for some miscellaneous belt structures, all of the
electrical equipment used to mine coal had been removed from the
worked-out area. Except for the area where sealing work was
being conducted, there is no evidence that miners were regularly
working in other worked-out areas. Although Mr. Wirth concluded
that it was "very easy" for any contaminated air exiting the
worked-out area to enter the 5-A producing section, Mr. Eslinger
confirmed that there was sufficient air quantity and oxygen at
the working 5-A faces, and there was no evidence of any carbon
monoxide. Indeed, Mr. Eslinger characterized the air sweeping
the faces as "up to snuff" (Tr. 147). Mr. Eslinger also
testified that he found no methane levels or oxygen levels that
would have endangered miners on March 29 and 30, 1994 (Tr. 709).
In view of the foregoing, I conclude and find that the
evidence does not support the inspector's 11 S&S 11 finding, and
his finding in this regard IS VACATED. The citation IS MODIFIED
to a non-"S&S" citation.
Citation No. 4160295
Inspector Wirth cited the nonpermissible golf cart that
was driven into the area where he found 1.9 percent methane and
18.8 percent oxygen. Brushy Creek conceded that the cart was
non-permissible. Mr. Wirth believed that it was reasonably
likely that an explosion would occur if work had been allowed
to continue because the cart was driven into an area where he
found the methane and low oxygen levels. Although he did not
inspect the golf cart, he believed that the cart batteries, and
the motor, which sparks and arcs, the battery terminals, and the
headlight all constituted ignition sources.
After careful review of all of the evidence and testimony
with respect to this violation, I cannot conclude that it was
"S&S." Although the evidence establishes that the golf cart was
non-permissible, the inspector conceded that he did not inspect
it and there is no evidence that any of its components were
defective. Further, the evidence establishes that no active

1033

··.

mining was taking place in the 5-B area , there was no power on
the section, and all of the mining equipment had been removed.
The evidence reflects that Mr. Culpepper was initially
driving a cart in the neutral area behind the stoppings while
the inspector he was with was on the other side. Mr . Culpepper
had operated the cart without incident or inspector complaints
for most of the inspection . However, when the battery went dead,
Mr. qulpepper abandoned the cart and was picked up by another
cart driven by the walkaround representative. When Mr . Culpepper
subsequently got off the cart and started walking in the
direction of an entry from where he was being flagged by someone,
his methane detector sounded in the presence of all of the
inspectors who had apparently just stepped through a stopping
door and detected the presence of methane. At that point in
time, Mr. Culpepper was informed that he would be cited for
driving the golf cart into the area where methane was detected.
Inspector Wirth conceded that the cart was not taken out
of service, and that he allowed it to be driven from the area
after it was pushed out of the area where the methane was
detected . However, before the cart was started again, Mr . Wirth
tested for methane and found that it was below the allowable
limit. This indicates to me that the condition was immediately
abated . I also n ote Mr. Wirth's testimony that prior to entering
the neutral area through the personnel door, his methane detector
never sounded (Tr. 108). He also testified that the methane
level he found would not in itself warrant a citation for the
worked-out area in question (Tr . 94).
Based on t he facts and evidence presented, I conclude and
find that the methane level that caused the detectors to sound
was an isolated event of very short duration, and with rather
instant abatement. In the context of continued mining operations, I cannot conclude that it was reasonably likely that a
methane ignition or explosion would have occurred. The only work
in the 5-B area was the sealing work, and there is no evidence
that miners would normally be working in the neutral area behind
the stoppings where the cart was being driven at the time of the
inspection, nor is there any evidence of any methane or golf
carts being otherwise operated in the sealing work area as part
of any normal mining operation. Under all of these circumstances, the "S&S" finding by the inspector IS VACATED, and the
citation IS MODIFIED to a non-"S&S" citation .

1 0 34

Citation No. 4266732
Inspector Holland issued this citation after finding
1.9 percent methane and 18.8 percent oxygen in the cited
worked-out area. He did not testify. However, based on the
narrative description of the cited condition, it would appear
that Mr. Holland concluded that the area was not sufficiently
ventilated to move out the methane that he found.
Mr. Eslinger testified that he observed the conditions that
gave rise to the citation and he agreed with Mr. Holland's "S&S"
finding. Mr. Eslinger concluded that the lack of air movement,
coupled with the high methane and low oxygen levels indicated
that the available air was not moving out the methane. He
further concluded that in the normal course of mining, it was
reasonably likely that methane would continue to build up to an
explosive level, and it could be ignited or moved towards the
active working faces. He was also concerned that the low level
of' oxygen coul~ cause depleted oxygen levels that would be
insufficient for breathing.
For the reasons stated with respect to my non-"S&S" findings
in connection with Citation No. 4260295, I conclude and find that
the evidence does not support the inspector's 11 S&S 11 finding
associated with Citation No. 4266732. In addition to those
reasons, I have considered Mr. Wirth's testimony that there is
no specific methane limit for worked-out areas, and that the
methane level he found would not result in a citation for the
cited worked-out area {Tr. 68, 94}. Under the circumstances, and
on the facts of this case, I cannot conclude that the evidence
supports any conclusion of a reasonable likelihood of an accident
or injury if work were allowed to continue in the 5-B area.
Accordingly, the inspector's 11 S&S 11 finding IS VACATED and the
citation IS MODIFIED to a non-"S&S" citation.
Citation No. 4260297
With regard to this citation, issued by Mr. Wirth for
inadequate air behind the ventilation line curtain, he testified
that he based his 11 S&S 11 finding on the fact that mining had only
resumed in the 5-A area two days prior to his inspection after it
had been discontinued for ten months because of the high levels

10 35

of methane leaking through the mine floor from an old abandoned
mine. Conceding that the methane level he found at the time
of the inspection was below the allowable limit, and that
Brushy Creek drilled bore holes to bleed out the methane,
Mr . .Wirth nonetheless was concerned that a build-up of methane
could again occur in the absence of adequate air ventilation at
the face curtain area where mining was actively going on and
where mining equipment was in operation. He concluded that a
build-up of undiluted methane was reasonably likely in the
absence of ventilation, and that this would pose an explosion
hazard .
Citation No. 4261610
With respect to the citation issued by Mr. Bird for not
positioning the ventilation line curtain to within 40 feet of
the face, he testified that he based his 11 S&S 11 finding on the
fact that methane had in the past been freely liberated through
the mine floor, , and in the presence of the ignition sources that
were present , he believed fire and ignition hazards were present
and that three miners who he observed working in the area were at
risk. If an explosion had occurred, he believed it was reasonably likely that the miners would suffer fatal injuries.
Although it is true that the air ventilating the active
5-A area faces was not contaminated with high levels of methane
at the time of the inspection, some methane was detected. Given
the fact that mining had only recently resumed in that area after
it had been discontinued for approximately ten months because of
excessive methane liberation through the mine floor from an old
abandoned mine, I conclude and find that the lack of adequate air
flow at the face, and the positioning of the ventilation curtain
approximately 66 feet from the face, rather than the required
40 feet, presented a discrete safety hazard in that methane could
have been liberated and accumulated while the miner was cutting
and loading coal at the face area. Indeed, Mr. Smock confirmed
that periodic gas bleeders are still encountered in the 5-A area
{Tr. 448). Further, the continuous miner, as well as the other
'U'lining equipment that was operating in the area, constituted
potential ignition sources while coal was being cut .and loaded.
Under the circumstances, I conclude and find that in the course
of continued mining at the cited face area, it was reasonably

10 36

likely that a methane ignition, fire, or explosion would have
occurred.
I further conclude and find that in the event of a face
ignition, fire, or explosion, it would be reasonably likely
that the miners who would be present would suffer injuries of
a reasonably serious nature. Under the circumstances, I conclude and find that the violations associated with Citation
Nos . 4260297 and 4261610 were "S&S", and the findings of the
inspectors in this regard ARE AFFIRMED .
Size of Business and Effect of Ciyil Penalty Assessments
on the Respondent's Ability to Continue in Business
I conclude and find that Brushy Creek is a large mine
operator and the parties have stipulated that payment of the
civil penalty assessments for the violations in question will not
adversely affect Brushy Creek's ability to continue in business.

History of Prior violations
MSHA computer printout listing Brushy Creek's compliance
record for the period March 29, 1992 through March 28, 1994,
reflects that it paid civil penalty assessments in the amount of
$96,028 for 549 violations, 337 of which were "single penalty"
non-"S&S" violation. Except for one section 104(d) (1) citation,
all of the listed violations were issued as section 104(a)
citations. There are 29 prior violations of section 75 . 370(a) (1)
(failure to follow the ventilation plan), and 55 violations of
section 75.503 (electric face equipment permissibility).
An

Although I cannot conclude that the respondent's history of
prior violations is particularly good, for an operation of its
size, I cannot conclude that it warrants any increases in the
civil penalty assessments which I have made for the violations
which have been affirmed.
Good Faith Abatement
The parties stipulated that Brushy Creek abated all of the
violations in good faith.

10 37

Grayity
Based on my "S&S" findings and conclusions, I .conclude and
find that the violations affirmed as "S&S" violations were
serious violations, and that the non-"S&S" violations were nonserious.
Negligence
The inspectors found that Citation Nos. 4240292, 4260295,
4266732, and 4266733 resulted from a moderate degree of negligence on the part of Brushy Creek. The "moderate" negligence
finding for Citation No. 4266732 was subsequently modified to
"low" negligence by MSHA in the course of a conference (Tr. 208213) .
Citation Nos. 4260297 and 4261610 were initially issued
with findings of "high" negligence. However, they were
subsequently modified to reflect a "moderate" degree of
negligence.
I agree with the negligence findings, as modified, and I
conclude and find that all of the violations were the result of
Brushy Creek's failure to exercise reasonable care.
Ciyil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section llO{i) of the Act, I conclude and find that the
following penalty assessments are reasonable and appropriate for
the violations that have been affirmed in these proceedings:
Citation No.
4260292
4260295
4266732
4266733
42660297
4261610

~

3/29/94
3/29/94
3/29/94
3/29/94
3/30/94
3/30/94

30 C.F.R.
Section
75. 332 (a) (1)
75.50701
75.334 {a) (1)
75.3BO{f) (1)
75.370(a) (1)
75. 370 {a) (1)

1038

Assessment
$150
$ 75
$100
$ 50
$600
$400

ORDER

In view of the foregoing, IT IS ORDERED as follows:
1.

Section 104{a) "S&S" Citation Nos. 4260292,
4260295, and 4266732 ARE MODIFIED to
section 104(a) non- 11 S&S 11 citations.

2.

Brushy Creek shall pay a civil penalty assessment
of $310, in settlement of section 104{a) 11 S&S 11
Citation No. 4266730, March 29, 2994, 30 C.F.R.
75.503 .

3.

Brushy Creek shall pay civil penalty assessments
in the amounts shown above for the remaining
citations that have been affirmed.
Payment is to
be made to MSHA within thirty (30) days of the
date of these decisions and orders, and upon receipt
of payment, these matters are DISMISSED.

Administrative Law Judge
Distribution:
Karl F. Anuta, Esq., P.O. Box 1001, 1720 Fourteenth Street,
Boulder, CO 80306 (Certified Mail)
Christine M. Kassak, Esq., Office of the Solicitor,
U.S. Department of Labor, 230 S. Dearborn Street, 8th Floor,
Chicago, IL 60604 (Certified Mail)

\lh

1039

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

JUN 1 9 1995
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 93-85- M
A.C. No. 42-00023 - 05521

v.

Docket No. WEST 93-285-M
A.C. No. 42-00023-05522

AMERICAN STONE, INC.,
Respondent

Docket No. WEST 93 - 424-M
A.C. No. 42 - 00023 - 05523
Docket No . WEST 93-527-M
A.C . No . 42 - 00023-05524
Aragonite Mine
DEC I SION

Appearances:

Ann M. Noble, Esq . , Office of the Solicitor,
U.S . Department of Labor, Denver, Colorado,
for Petitioner
Scott E. Isaacson, Esq., King & Isaacson,
Salt Lake City , Utah,
for Respondent.

Before:

J udg e Cett i

These consolidated civil penalty proceedings are before me
upon petitions for assessment of civil penalty under section
105{d) of the Federal Mine Safety and Health Act of 1977, 30
u. s.c. § 801 et ~, (Mine Act). The Secretary of Labor on
behalf of the Mine Safety and Health Administration, charged the
operator of the Aragonite Mine with 18 violations of safety
standards set forth in Part 56, Title 30, Code of Federal
Regulations.
The Respondent filed a timely answer contesting the violations . After due notice to the parties the consolidated cases
were heard in Salt Lake City, Utah.
Citation No. 2653512 the only citation in Docket No. WEST
93 - 85- M charges that the operator failed to notify the nearest
subdistrict office when closing the Aragonite Mine. At the hearing the Secretary vacated the citation along with its proposed
$50.00 penalty based upon the fact that Respondent produced
billing statements for August , September and October 1992 which

1040

satisfactorily demonstrated that the mine was open and not closed
at all times for which the citation was issued .
All the remaining citations, except for two 1 which are not
contested, are for alleged violations at the Aragonite crushing
mill which is located approximately four miles from the mine.
The crushing m~ll had been operated only sporadically. The mill
is enclosed in a metal building and has no permanent source of
electrical power. When it is operated, electrical power is
provided by a portable diesel generator.
Respondent American Stone states that when the citations
were issued the mill had been shut dOWD for approximately nine
months. American Stone states that just before the inspection it
had moved the portable diesel generator from another site to the
mill, but had not yet hooked the generator up.
American Stone states that at the time of inspection it was
in the process of cleaning, repairing and setting up the mill.
The inspector was told that the mill was shut down and had not
been operated for approximately 9 months but the inspector,
nevertheless, insisted on inspecting the mill at that time.
Respondent contends that when there is no electrical power
to the mill, there is no risk of electrical injuries and that it
did not and would not have operated the mill in the condition it
was in at the time of inspection. It is on this basis that
American Stone requested that the citations be vacated or at
least the penalties be reduced to a more appropriate level .
At the hearing the parties negotiated a settlement agreement
and requested approval of the agreement. Under the proffered
settlement Respondent withdraws its contest to Citation Nos.
2653598, 2653665, 2653666, 2653674, 2653662, 2653663, 2653664,
2653669, 2653671 and 2653670 and agrees to pay in full the MSHA
proposed penalty of $50.00 for each of these citations, for a
total penalty of $500.00 for these 10 uncontested citations.
In support of the reduction of penalties for the remaining
eight (8) citations the Secretary states that preparation for
hear i ng discloses the following:
There were fewer employees (one rather than 4) exposed to
the hazards posed by the violations set forth in Citation Nos .
2653599 and 26533600 and 104(b) Order 4120245.

The other two citations are Citation No . 2653664, the horn
on a front-end loader was not functional and Citation No. 2653669,
the falling object protection structure on a forklift was not
functional.

1041

The injury which would reasonably result from the conditions
set forth in Citation Nos. 2653672, 2653661 and 2653668 would be
permanently disabling rather than fatal.
The injury which would reasonably result from the conditions
set forth in Citation Nos. 2653667 and 2653675 would cause lost
workdays or restricted duty and not permanent disability.
The negligence exhibited by Respondent with regard to
Citation No. 2653673 and the corresponding 104(b) Order No.
4120246 was "low" rather than "moderate".
(The bagger conveyor
belt was seldom operated.)
In view of the foregoing, Petitioner agrees to amend the
proposed penalties on the remaining eight (8) citations as
follows:
Initial
Proposed
Penalty

Amended
Proposed
Penalty

147.00
102.00
102 ..00
81. 00
102.00
1,000.00

$100.00
80.00
80.00
50.00
80.00
750.00

300.00

200.00

81. 00

50.00

citation/Order No.
2653599
2653672
2653661
2653667
2653668
265 3 600
4120245 (104(b) Order}
2653673
4120246 (104(b) Order}
2653675

$

I n addition Respondent states that it will no longer operate
the crushing mill in question and that it intends to remove the
structure from the site. If Respondent places a portable mill at
the Aragonite Mine it will notify MSHA at least three business
days prior to placing the portable mill at the Aragonite Mine and
will, at the time of notification, provide information regarding
the anticipated length of time Respondent plans to operate the
portable mill at the Aragonite Mine.
Respondent will also notify MSHA at least three business
days pr i or to the time it anticipates having employees present at
the Aragonite Mine to conduct mining operations and will, at that
time, provide information regarding the anticipated length of
time Respondent plans to have employees present at the Mine.
I have considered the representations and documentation submitted at the hearing in these cases, and I conclude that the
proffered settlement is appropriate under the criteria set forth
in section llO(i) of the Act .

1042

ORDER

In view of the foregoing it is ordered that:
1. Citation No . 2653512 is VACATED and the proposed $50.00
penalty is set aside.
2. The motion to approve the settlement is GRANTED; this
includes the modification of certain citations as agreed and
shown above.
3.
Respondent shall pay the approved penalties totaling
$1,890.00 to the Secretary of Labor within 40 days of the date of
this decision and order.

Augu t F. Cetti
Administrative Law Judge

Distribution:
Ann Noble, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Scott E. Isaacson, Esq., AMERICAN STONE, INC . , 4 Triad Center,
Suite 825, Salt Lake City, UT 84180 (Certified Mail)
\sh

1043

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

JUN 2 0 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF SAMUEL KNOTTS,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEVA 94-357-D
MORG CD 94-3

v.
Coalbank Fork No. 12
TANGLEWOOD ENERGY, INC . ;
FERN COVE INC . ;
I

RANDY BURKE I . AND RANDALL KEY I

"Respondents
DECISION

Appearances:

James V. Blair, Esq., Office of the Solicitor,
U. S. Department of Labor, Arlington, Virginia,
for the Complainant;
Paul O. Clay, Jr., Esq., Fayetteville,
West Virginia, for Respondents.

Before:

Judge Maurer
STATEMENT OF THE CASE

This case is before me upon the complaint by th~ Secretary
of Labor on behalf of Samuel W. Knotts under Section lOS(c) (2)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 .e..t. ~., the "Act", allegl.ng that Mr. Knotts was discharged
by the respondents on January 28, 1994, in violation of
section lOS(c) (1) of the Act. The Secretary seeks back wages and
interest for Mr. Knotts as well as civil penalties against the
respondents . Respondents maintain that Knotts was not discharged
in violation of the Act, but rather was discharged because of his
involvement in an allegedly unprotected 2 hour conversation with
an outside mining engineer representing the land owners that
respondents perceived to be negative and inflammatory in nature.

1044

Pursuant to notice, an evidentiary hearing was held at
Fairmont, West Virginia on January 19-20, 1995. Subsequently,
both parties have filed post-hearing proposed findi~gs of fact
and conclusions of law which I have considered along with the
entire record and considering the contentions of the parties,
make this decision.
STIPULATIONS

The complainant and respondents have stipulated to the
following :
1. The Coalbank Fork No. 12 Mine is a coal mine and is
operated by Fern Cove, Inc.
2. Fern Cove, Inc. is a successor in interest to
Tanglewood Energy, Inc. at the Coalbank Fork No. 12 Mine .
3. The p~oducts of the Coalbank Fork No. 12 Mine enter
commerce and the· Coalbank Fork No. 12 Mine is therefore subject
to the Federal Mine Safety and Health Act of 1977, 30 u .s.c.
§ 801 .e.t. ~· (hereinafter "the Mine Act").
The administrative law judge has jurisdiction to hear
and decide this case.
4.

The assessed violation history report may be used in
determining an appropriate civil penalty.
5.

6. For purposes of the assessment of civil penalties the
violation history of Tanglewood Energy, Inc. at the Coalbank Fork
No. 12 Mine shall be considered to be the violation history of
Fern Cove, Inc. and yice versa.
7. Fern Cove, Inc. and Tanglewood Energy, Inc. are jointly
and severally liable for all civil penalties assessed against
either by the Federal Mine Safety ··and Health Review Commission
relative to the Coalbank Fork No. 12 Mine.
8. Complainant Samuel Knotts was discharged by respondent
on January 28, 1994 .

1045

9. Complainant Samuel Knotts was discharged because of
respondent's belief that he spoke with mine engineer J. Randy
Campbell for over 2 hours on January 27, 1994.
10. At the time of his discussion with mine engineer
J. Randy Campbell on January 27, 1994, Complainant Samuel Knotts
was the only representative of the respondents on the surface of
the Coalbank Fork No. 12 Mine.

11 . On September 1, 1993, Complainant Samuel Knotts
testified on behalf of the Secretary in the case of Secretary ex
rel. Perry Poddey v . Tanglewood Energy, Inc.
On January 25, 1994, Administrative Law Judge Arthur
Amchan issued a decision ordering respondent to pay Perry Poddey
over $9,000 in back wages as a result of the respondent's
violation of section lOS(c) of the Mine Act.
12.

13. A new~ story about Perry Poddey's reinstatement with
back pay appeared in the January 26, 1994 edition of the
Clarksburg Telegram.
14 . A news story about Perry Poddey's reinstatement with
back pay appeared in the January 26, 1994 edition of USA Today.

15. Complainant Samuel Knotts engaged in protected activity
under the Mine Act when he testified in the case of Secretary ex
rel. Perry Poddey v. Tanglewood Energy, Inc.
16. Complainant Samuel Knotts engaged in protected activity
under the Mine Act to the extent that he assisted mine safety and
health inspectors in locating violations.
17. Complainant Samuel Knotts received $3,640 in
unemployment benefits from the State of West Virginia since his
termination by respondent on January 28, 1994.
18. Complainant Samuel Knotts is presently employed by the
West Virginia Department of Highways and has been so employed
since July 1, 1994, working 40 hours per week at a rate of $7.85
per hour. Prior to his full-time employment Mr. Knotts worked
part time for the Department of Highways for 2 months.

1046

19. At the time of his discharge by respondents,
complainant was working 40 hours per week at the rate of $10.00
per hour plus occasional overtime at time-and-a-half.
FINPINGS OF FACT
Having considered the record evidence in its entirety, I
find that a preponderance of the reliable, relevant, and
probative evidence establishes the following findings of fact:

1 . Complainant Samuel William Knotts was employed as an
outside man for the respondent, Tanglewood Energy, Inc. and Fern
Cove, Inc. for approximately 3 1 / 2 years at the Coalbank Fork
No. 12 Mine prior to his discharge on January 28, 1994.
2. Respondent Randy Burke is President of Fern Cove, Inc.
and of Tanglewood Energy, Inc.
3. Respo~dent Randall Key is a part owner and officer of
Fern Cove, Inc. and Vice-President of Tanglewood Energy, Inc.
4. Inspector Kenneth W. Tinney testified concerning two
citations written in November of 1992, and another on January 6,
1993, for a repeat violation concerning a discharged cylinder on
the belt fire suppression system. He discussed these violations
with Knotts and Key, and after the November citations Knotts
asked him not to use his name in discussing violations with the
company anymore "because they 'kind of' blamed him for getting
the citations. 11 Key stated that he did not recall Tinney at' any
time mentioning an employee's name during discussions of safety
violations, but Key admitted that he probably discussed the violations with Knotts because certain actions needed to be taken to
correct the same and Knotts was the individual with the responsibility for checking the cylinder and had the respons~bility to
report any problems to Key .
S. Inspector Reed testified that on one occasion in July
of 1993, when MSHA inspectors were having trouble reconciling
training certificates with an outdated list of certified
employees that was kept in the mine office, Knotts suggested they
compare the training certificates to current time sheets that he
pointed out to them. This resulted in Inspector Reed coming up

10 4 7

with four employees that had not received their training, for
which he wrote a withdrawal order. Reed also testified that
Knotts told him later on a return visit that he "got pretty well
chewed out over the training records."
6. On August · 10, 1993, Knotts made a verbal complaint to
Inspector Reed of unsafe electrical practices that led to an
electrical inspection of the mine. The electrical inspection
resulted in a number of violations being issued. There was,
however, no testimony that the respondents knew that the
electrical inspection was a result of a complaint originating
with Knotts.
7 . Respondents were generally aware, however, that Knotts
was ·particularly helpful in assisting mine safety and health
inspectors in locating violations.
8 . On September 1, 1993, Knotts testified on behalf of the
Secretary in the case of Secretary ex rel. Perry Poddey v.
Tanglewood Energy. Inc., 15 FMSHRC 2401 (ALJ} (1993). He gave
testimony that directly supported the testimony of Perry Poddey,
the complainant in that case, concerning who bore responsibility
for repairing certain equipment. In his November 29, 1993
decision finding respondent Tanglewood Energy, Inc. guilty of
violating section lOS(c) of the Mine Act, Judge Amchan specif~
cally cited Knotts' testimony as supporting his finding against
the respondent on this issue, which Judge Amchan described as
"[p]ossibly the most critical issue in th[e) case." Secretary ex
rel. Perry Poddey v. Tanglewood Energy. Inc., 15 FMSHRC 2401,
2410-2411 (ALJ) (1993). On January 25, 1994, 3 days before
Knotts was fired, Judge Amchan issued a Decision on Damages
ordering Tanglewood Energy, Inc. to pay Perry Poddey over $9,000
in back wages and interest as a result of the respondent's
violation of section 105(c) of the Mine Act.
9. A news story about Poddey's reinstatement with back pay
appeared in the January 26, 1994 'edition of the Clarksburg
Telegram, and the January 26, 1994 edition .of USA Today. The
story was also reported on television.

1048

10. Mine engineer J. Randy Campbell arrived at the Coalbank
Fork No. 12 Mine on January 27, 1994, to conduct an inspection as
a representative of the land owners of the property, or in his
words "to investigate whether or not the operators were
efficiently mining the coal and concerning their production."
11. Campbell's inspections, which generally lasted from
1 to 4 hours, usually included asking questions of rank and file
miners like Knotts because he felt the information he obtained
from rank and file miners tended to be more specific and more
accurate. He would also usually ask rank and file miners about
morale at a mine because of its correlation to production.
12. There is a lot of contention in the record concerning
the length of the conversation between Campbell and Knotts on the
morning of January 27, 1994. Respondents produced a lot of
evidence that, if found credible, would tend to establish the
conversation went on for 2 hours. On the other hand, the two
participants to the conversation contend it was for no longer
than 45 minutes; and was conducted, at least for a part of the
time, while Knotts busied himself with other tasks around the
mine office. During this time, they discussed the mine's
violation history, the condition of the batteries on the ram
cars; the bypassed electrical components on the mantrips,
including the three-wheelers and four-wheelers and the fact that
a lot of them were junk or needed substantial work to be
repaired. They discussed morale issues generally, and they
talked about management and problems with management, vacations,
and the lack of vacation pay, as well as the fact that
Messrs. Key and Burke were involved at other mines and that Key
had not been working at this mine until the recent past few
months. More particularly, they discussed Key and Burke's
management style and Burke's new truck. The truck's relevance
stems from the notion that if Burke could afford a new truck, he
could also afford to give miners a paid vacation, which they had
not had for the last 2 years. Apparently, the truck had become a
"morale" issue at the mine, and Knotts thought it appropriate to
pass that information to Campbell.
Interestingly, both Campbell and Knotts testified that
Knotts stated at the time that he could be fired if management
could hear his comments to Campbell . Mr . Key did hear those

1 0 49

.

=~

comments via an open mike telephone line and as he predicted,
Knotts was fired the next day. In order to resolve the timing
issue, I find as a fact that the Knotts/Campbell conversation on
January 27, 1994, lasted from 1 hour 15 minutes to 1 hour
30 minutes. In so finding, I have given the greater credibility
to the disinterested witnesses. First of all, Mr. Campbell
stated that he arrived at the mine between 7:30 a.m. and
8:30 a.m., and that at least 45 minutes elapsed after his arrival
before he began his conversation with Knotts. He also stated
that he finished his conversation with Knotts and left the mine
somewhere between 9:00 a . m. and 9:30 a.m. Operating at the
extremes of those limitations, I deduce the conversation could
have been as long as 1 hour and 15 minutes. Secondly, Mr. Young,
although he seemed uncertain and confused about some of the
details of that morning, has the advantage of no longer working
for the respondents and seemingly "has no dog in this fight." He
estimated the time during which Key listened into the
conversation on the open line telephone as "at least an hour and
a half."
13 . The decision to terminate Knotts was made by Key and
agreed to by Burke. He was actually discharged at a meeting held
in Key's office on January 28, 1994.
DISCUSSION AND COHCLUSIONS
The principles guiding the Commission's analysis of
discrimination under the Mine Act are well settled . A miner
establishes a prima facie case of prohibited discrimination by
proving that he engaged in protected activity and that the
adverse action complained of was motivated in any part by that
activity. Secretary on behalf of Pasula v. Consolidation Coal
~' 2 FMSHRC 2786, 2797-2800 (October 1980), rey'd on other
grounds . sub nom. Consolidation Coal Co. v. Marshal 1,. 6 6 3 F. 2d
1211 (3d Cir. 1981); Secretary on behalf of Robinette v. United
castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator
may rebut the prima f acie case by showing either that no protected activity occurred or that the adverse action was in no
part motivated by protected activity. Pasula, 2 FMSHRC at 27992800. If the operator cannot rebut the prima facie case in this
manner, he nevertheless may defend affirmatively by proving that
he also was motivated by the miner's unprotected activity and

10 50

would have taken the adverse action in question for the unprotected activity alone . 2 FMSHRC at 2800; Robinette, 3 FMSHRC at
817-18; see also Eastern Assoc. Coal Corp. v. FMSHEC, 813 F.2d
639, 642 (4th Cir. 1987).
It is stipulated that Knotts engaged in protected activity
under the Mine Act when he testified in the case of Secretary ex
rel Perry Poddey v. Tanglewood Energy. Inc. and also to the
extent that he assisted mine safety and health inspectors in
locating violations. Furthermore, I find that his discussion
with Campbell on January 27, 1994, also constituted protected
activity under the Mine Act to the extent that Knotts made
safety-related complaints to Campbell concerning the condition of
equipment at the mine. I also find that the complaints were
truthful. In fact, much of the mine equipment~ in poor
condition. The company had five golf carts (or four-wheelers}
and none were operable at the time of Knotts• discharge. At the
time of Campbell's visit, there was no ride available to bring
him underground, a condition that had occurred at least once
before. The ram cars had been brought over from another mine and
had old worn out batteries that would not hold a charge. A
number of vehicles were observed to have been rewired so that
essential safety components were either bypassed or disconnected.
State Safety Instructor Thomas Bass and MSHA Inspector
Virgil Brown testified at length as to the possible dangers these
conditions posed, and Knotts himself described problems he and
other employees had experienced with faulty equipment.
While the complainant need not possess any specific intent
in making statements regarding safety or health in order for his
statements to be considered protected activity, it is clear here
that the complainant had a specific intent when relating certain
information to Campbell. The complainant reasonably perceived
Campbell to be an agent of the land owners who he thought would
or could exert pressure, either directly or indirectly, on the
respondents to improve safety at ' the mine. When the complainant
was asked at the hearing what his purpose was in telling Campbell
about the repeated electrical violations, the complainant
responded that he thought the mining conditions would improve as
a result of his having spoken up and that the working conditions
at the mine would in turn become safer for the men. I find that

10 5 1

the complainant was motivated by the fact that he reasonably
thought Campbell's communication with the land owner could
positively influence safety at the mine.
The adverse action in this case was, of course, the discharge. It is stipulated in this record that the reason for the
discharge was his conversation with Campbell. Thus, there is a
clear nexus between one of the instances of protected activity
and the adverse action. The nexus between the other two
instances of protected activity and the adverse action is less
clear. I find a very fragile connection, if any; perhaps I would
liken it to background noise that maybe set the scene for Knotts'
discharge. The earlier incidents involving MSHA inspectors are
very remote in time to complainant's discharge and are not more
than peripherally relevant or material to the discharge itself.
With regard to his testimony in the Poddey case, it also is
relatively remote in point of time. He testified on September 1,
1993, and the decision on the merits was issued November 29,
1993.
In any event, Knotts' discharge was motivated at least in
part by his protected activity and therefore, I find that the
complainant has made out a prima f acie case of discrimination
under the Mine Act. I also find that the respondents are unable
to rebut this prima f acie case by showing that no protected
activity occurred or that adverse action was in no way motivated
by the protected activity. The preponderance of the evidence is
clearly to the effect that Knotts' engaged in protected activity
and that his discharge was motivated at least in part by that
protected activity.
When a prima f acie case is established, a respondent may
defend affirmatively by showing that it was also motivated by an
unprotected activity and that it would have taken the adverse
action in any event for the unprotected activity alone. Of
course, the respondent bears the burden of proof with regard to
this affirmative defense. ~ v. Ma~a Copper, 4 FMSHRC 1935
(1982) .

1052

Respondents here argue that complainant's discussion with
Campbell contained both protected and unprotected aspects and
that complainant was discharged for the unprotected aspects,
alone.
There are two distinct problems the respondents had with
this conversation. First, it was too long. And secondly, it was
personally slanderous to both Key and Burke, at least in part.
With regard to the first, I have found it was 75 to
90 minutes long. The Secretary makes an excellent point in his
brief to the effect that however long it was, respondent Key
condoned that activity. He stated that the underground phone
could have been used to call the surf ace at any time during the
conversation. According to his testimony, he easily could have
pressed down the button on the phone after the first 5 minutes of
the discussion, and told the complainant to get back to work.
Key's inaction is no different than if he was on the surface, saw
Knotts talking to Campbell and did nothing to terminate the
conversation. Moreover, for whatever amount of time he spoke to
Campbell, the complainant was essentially doing his job. He was
the only employee on the surface at the time Campbell visited the
mine and his job duties included answering questions of more or
less "official" visitors, like Campbell. It was Campbell who
initiated the discussion with complainant, as he had done on
previous occasions. He began questioning complainant because
respondents had not been able to provide him with a ride underground, he was not satisfied that he had received sufficient
information from respondents over the phone to prepare his
report, and because he believed that complainant was as knowledgeable about mine operations as anyone else at the facility.
And most of what the complainant stated was in the form of
embellished responses to questions put to him by Campbell.
Turning to the content of the conversation, it is true that
certain portions of what Knotts was passing on to Campbell could
be characterized as "gossip" and inflammatory language at that.
However, I find that in the context of the coal mining industry
this was pretty mild stuff compared to many· other cases which
come before the trial judges of this Commission. I therefore
conclude that the unprotected portions of the Knotts/Campbell
conversation could not reasonably have formed the basis for
Knotts' discharge without more.

1053

On balance, I find that the respondents did not meet their
burden of proving the affirmative defense.
Accordingly, I conclude that respondent terminated
complainant's employment on January 28, 1994, in violation of
section lOS(c} of the Mine Act.
ORPER
WHEREFORE rT rs ORDERED that:
1. Within 15 days of this decision, the parties shall
confer in an effort to stipulate the amount of complainant's back
pay due, interest on that amount, and litigation costs as well as
a reasonable civil penalty for the violation found herein, considering the six statutory criteria contained in section llO(i)
of the Mine Act. Such stipulation as to damages shall not
prejudice respondent's right to seek review of this decision. If
the parties agree on damages, the Secretary shall file a stipulated proposed order on damages within 30 days of this decision.
If the parties do not agree, the Secretary shall file a list of
mutually agreed upon trial dates for a further hearing on the
issue of damages, including the civil penalty to be assessed
herein.
2. Respondents shall expunge any reference to his
January 28, 1994 discharge from Mr. Knotts' personnel file
maintained by the company.
3. This decision will not become final until a subsequent
order is issued concerning damages and penalty.

Law Judge

1054

Distribution:
James Blair, Esq . , Office of the Solicitor, U. S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
Paul O. Clay, Jr., Esq., Laurel Creek Road, P. 0. Box 746,
Fayetteville, WV 25840 (Certified Mail)
dcp

1055

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

~JUN 2 1 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of
WILLIAM KACZMARCZYK,
Complainant

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

v.
READING ANTHRACITE COMPANY,
Respondent

DECISION ON THE SECRETARY OF LABOR'S MOTION
TO ENFORCE THE ORPER OF TEMPORARY REINSTATEMENT
Appearances:

Stephen D. Turow, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Complainant;
Martin J . Cerullo, Esq . , Cerullo, Datte &
Wallbillich, P.C . , Pottsville, Pennsylvania,
for Respondent.

Before:

Judge Amchan
Background

On October 15, 1993, Complainant, William Kaczmarczyk, was
transferred from a light duty position at Respondent's mine to
workers compensation status. He filed a complaint with the
U.S . Department of Labor alleging that this action was taken in
retaliation for his activities as a walkaround representative
during an MSHA inspection that was completed on October 14, 1993.
The Secretary filed an application for temporary reinstatement with the Commission . Respondent ' requested a hearing
on this application and, on September 12, 1994, I ordered
Complainant temporarily reinstated . In my order I stated that
"Mr. Kaczmarczyk's position, including financial compensation
and benefits, must be no worse than it would be had he not been
placed on compensation status on October 18 (sic), 1993,"
16 FMSHRC 1941, 1947.
1056

I further stated, in a footnote, that, "[r]espondent could
not, for example, recall Complainant to work and require him to
perform tasks which he is incapable of doing," 16 FMSHRC 1941,
1974, n. 7 . On April 26, 1995, prior to the issuance of my
decision in the discrimination proceeding, the Secretary fil ed
an emergency motion to enforce the temporary reinstatement order.
That motion alleges that between April 17 and 20, 1995,
Complainant was assigned tasks that were beyond his physical
limitations in violation of my September 12, 1994 order .
The motion further alleges that Mr. Kaczmarczyk left the
mine site on April 20, 1995, because he was unable to continue
to work due to the stress to which he was subjected by being
repeatedly ordered to perform work that was beyond his physical
capabilities (Secretary's motion page 4, paragraph No. 5). The
Secretary contends that Respondent constructively suspended1
Mr . Kaczmarczyk on April 20, 1995 .
A hearing was held on the Secretary ' s motion on May 19,
1995, at which the undersigned and the parties concluded that
I would retain jurisdiction over the Secretary's motion to
enforce the temporary reinstatement order after issuance of
my decision on the discrimination complaint. A decision on
the liability portion of the discrimination complaint was
issued on May 24, 1995. In that decision, I concluded that
Complainant's October 15, 1993, transfer was discriminatory.
The matter is pending before me on the questions of damages
and the assessment of a civil penalty .
findings of Fact
One of the buildings at Respondent ' s facility is a scale
house. This is a two story structure, one above ground and
one below ground . The lower level is adjacent to a rectangular area that lies beneath a large scale used to weigh loaded
trucks before they leave Respondent's wet silt processing plant
(Tr . 10 -17, Sec. Exhs . EM-1, EM-2Y.

At the time the motion was filed Complainant was still off
of work . He returned to work on May 1, 1995, after missing
6-1/2 days, for which he has not been paid (Tr. 146-47).
1

10 57

In early spring of 1995, Respondent decided to repair the
scale. The week before April 17, Complainant accompanied a
repairmen who went underneath the scale. They found several
inches of water on the floor beneath the scale which they pumped
out. They also found mud on the floor around the concrete
pillars that support the steel rods of the weighing mechanism.
At least one of these rods was broken (Tr. 37-48).
On the morning of April 17, 1995, Foreman David Kerstetter,
acting upon instructions from Respondent's General Manager, Frank
Derrick, ordered Complainant to clean the mud out from underneath
the scale so that Respondent's repairman would have a clear
accessway to the broken components (Tr. 214-19, 266-74).
Complainant told Kerstetter that the task was beyond his physical
capabilities (Tr. 52) 2 •
Kerstetter described that mud as a fine coating of
1 to 2 inches in thickness, covering parts of an area approximately 15 feet wide, and 25 to 30 feet in length (Tr. 270-75).
Kaczmarczyk described the mud as being generally 2 to 4 inches
in depth and covering an area 12 to 15 feet in width and SO to
60 feet in length (Tr. 37-39, 48). The two men agree that the
mud would have to be shoveled into 5-gallon buckets and carried
up the stairs to ground level on numerous trips (Tr. 52-54, 27475, 228 [Prior to April 20, General Manager Derrick envisioned
the mud being brought outside in buckets]).
Upon Kaczmarczyk's refusal to perform the task, Kerstetter
consulted General Manager Frank Derrick and Safety Director David
Wolfe. Wolfe instructed him to tell Kaczmarczyk to do whatever
he was capable of doing (Tr. 255-56).

Kaczmarczyk's physical limitations are indicated in the
Secretary's Exhibit No. 5 introduced at the Temporary Reinstatement Hearing. He underwent 'a cervical spinal fusion in
late 1991, and also has lower back pain (See e.g., Exh. R-6).
In January 1992, his physician indicated that occasional bending,
squatting, stooping, kneeling, crouching, pushing, pulling, and
handling are within Complainant's physical capabilities. Lifting
and carrying up to 20 lbs are also within his limits. Other
physical demands were not evaluated.
2

1058

On Wednesday, April 19, 1995, Kaczmarczyk and Robert
Sabaday, another light duty employee, were assigned to clean up
the mud below the scale (Tr. 66-67, 178). They pumped water out
of the lower level of the scale house, cleaned the steps, and
then attempted to clear mud from a passageway leading to the room
beneath the scale (Tr. 69-72). Sabaday tried to shovel the mud
into buckets but found this too difficult (Tr. 183). He then
shoveled a path through the mud, placing it in piles (Tr. 188).
Kaczmarczyk used a broom to sweep the path behind him and also
used a dryer on the path (Tr. 185).
Foreman Kerstetter visited this area twice on the morning
of April 19. He admitted to Sabaday that he did not realize how
much mud there was underneath the scale, and in the passageway
leading to it (Tr . 187). Sabaday told Kerstetter that it was
too difficult to carry the mud out in buckets (Tr. 187, 191);
Kerstetter instructed the two miners to do what they were able to
do (Tr. 187).
On Wednesday, after observing Complainant and Sabaday,
Kerstetter informed Respondent's General Manager, Frank Derrick,
that cleaning the mud from under the scale was a difficult job
(Tr. 225). Respondent then abandoned its attempt to remove all
the mud from under the scale (Tr. 158, 284), and decided to
concentrate on clearing an area in front of the broken scale
components (Tr. 284-85). Derrick decided that on Thursday,
Respondent would have to accomplish this scaled-down task by
means other than carrying the mud out from under the scale in
buckets (Tr. 225-26).
Derrick decided to use a grade-all, a large construction
vehicle, to clean the mud out from under the scale (Tr. 226). He
instructed Kerstetter to assign Mr. Kaczmarczyk to clean papers
and wood in the scale house office on the building's upper floor
(Tr. 226-27). Mr. Sabaday was given an unrelated assignment for
April 20.
On April 20, 1995, miner Paul Houser drove the grade-all to
the scale. Kaczmarczyk guided Houser over ~he scale and Houser
dug a hole alongside the sc~le with his equipment (Tr. 308).
This hole was intended to facilitate the removal of mud and water
from below the scale (Tr. 88-93).

1059

Shortly thereafter Foreman Kerstetter arrived . Kerstetter
told Kaczmarczyk to shovel the dirt left by Heuser's machine off
the scale . This dirt was 2 to 3 inches in height and extended
the length of the scale, possibly a distance of 60 feet.
Kaczmarczyk told Kerstetter that this task was also beyond his
physical limits {Tr . 94-98}. Houser cleaned the dirt off the
scale with the grade-all{Tr. 313-14}.
Kaczmarczyk then went down the steps to the lower level of
the scale house to continue sweeping {Tr . 98-99}. Kerstetter
followed him and asked him to make a path to the scale components
with a shovel {Tr. 100). Kerstetter took a shovel and demonstrated to Kaczmarczyk how he thought this task should be
accomplished {Tr. 101-104) 3 • Complainant took offense to this

3

Kerstetter denies that he ordered Kaczmarczyk to shovel mud
under the scale on April 20, 1995, and contends that he demonstrated how Complainant should shovel on, April 19, not April 20
{Tr. 288-291) .
I credit Complainant's testimony on these matters
over that of Foreman Kerstetter.
Although Kerstetter may not have ordered Kaczmarczyk to work
underneath the scale, I find that he did join Complainant at the
lower level of the scale house on April 20. After watching the
grade-all, Kerstetter concluded that the mud could not be removed
by this machine {Tr. 289}. Having been told by Derrick to have a
path cleaned underneath the scale and having no other means of
accomplishing this task, I conclude that Kerstetter renewed his
request of Complainant that he shovel a path through the mud .
As to the shoveling demonstration, I rely on the fact that
Kerstetter admits to making such a demonstration {Tr. 291-93),
that Kerstetter's contemporaneous log for April 19 mentions
no such demonstration {Tr. 304), while Kaczmarczyk's contemporaneous notes for April 20 do mention the incident {Tr. 165-66).
Additionally, Mr . Sabaday, who was with Kaczmarczyk and
Kerstetter on April 19, recalls no such event (Tr. 201).
Moreover, a demonstration of April 20 is consistent with a
turn of events in which Kerstetter's only available means of
making a path to the broken parts was to have Complainant make
one with a shovel since Sabaday was no longer present to do the
shoveling.

1060

request and the manner in which it was made (Tr. 101-02) .
Kaczmarczyk told Kerstetter that Kerstetter was harassing him,
and that he would file "charges" against him (Tr. 194-105).
Kerstetter left the area and Complainant called his wife
(Tr. 105-07). He told her that because of the harassment he
was subjected to he was unable to eat (Tr . 106-110). After
another phone call, Complainant decided that he should leave
the worksite (Tr. 110, 172-74) . He did not return until May 1,
1995.
Respondent violated the terms of the temporary
reinstatement order on April 17 and Al;>ril 19. 1995
I conclude that the assignment given to Kaczmarczyk on
April 17 and 19, 1995, was beyond his physical capabilities
and violated the temporary reinstatement order . Kerstetter's
testimony that on April 19 Respondent abandoned the goal of
cleaning the entire area beneath the scale (Tr. 284), and had
decided to clean up only a 4-foot by 4-foot area, confirms
Complainant's assertion that the task assigned on the 17th and
the morning of the 19th was far more extensive {see Sabaday•s
testimony at Tr . 187-92, 199-200).
Mr. Kaczmarczyk is prohibited from doing repetitive bending
and twisting, particularly while carrying weight such as wet mud
on a shovel (Tr. 265}. Mr. Sabaday's testimony confirms that the
task, as originally assigned, was beyond Kaczmarczyk's physical
capabilities (Tr. 187-191).
Up until Kerstetter talked to Sabaday on the morning of
April 19, Respondent contemplated having the mud carried up to

fn. 1 (continued)
Finally, I simply do not believe that Kaczmarczyk made up
a story about discussing shoveling with Kerstetter on the lower
level of the scale house on April 20 . Something occurred
precipitating Kaczmarczyk's departure from· the min~ site on that
morning. I conclude that it is more likely that his departure
was caused by a dispute over the mud beneath the scale, which was
likely to recur, than over the dirt on top of the scale which
would not likely be an issue in the future.

1061

ground level and outside the scale house in 5-gallon buckets
(Tr. 228). Although I credit Respondent's witnesses that they
continually told Kaczmarczyk to do only what he could do, I
conclude that such advice was essentially meaningless in the
context in which it was given. There was no way that Complainant
could reasonably expect to accomplish the task assigned by doing
only what he was capable of doing.
General Manager Derrick instructed Kerstetter to have the
mud cleaned up. Although Derrick testified there was no hurry
(Tr . 216-17), the record does not indicate that anybody conveyed
to Complainant that he had an infinite amount of time to
accomplish this task. Indeed, Sabaday was given the impression
that the area had to be cleaned right away so that the scale
could be repaired (Tr. 199).
Thus, I conclude that Kaczmarczyk was fully justified in
regarding the admonitions to just do what he could as a
subterfuge to pressure him to do tasks beyond his restrictions.
Moreover, it is doubtful that a person with Complainant's
restrictions could have tolerated the extensive number of trips
up the stairs of the scale house with small buckets of wet mud
that were needed to accomplish the task as originally assigned.
Complainant was not constructively discharged
or suspended on April 20. 1995
On April 20, 1995, Kerstetter again asked and pressured
Kaczmarczyk to shovel wet mud, albeit from a much smaller area
than on the previous two days and possibly by pushing it out
of the way, rather than by picking it up. He may also have
suggested that Complainant shovel the mud in buckets because
after Kerstetter realized the grade-all could not remove the
mud from underneath the scale, he had no alternative means of
accomplishing the task given to him by General Manager Derrick.
For purposes of this decision, I conclude it is unnecessary
to determine exactly what Kerstetter told Kaczmarczyk to do on
April 20. As on April 17 and 19, Complainant never performed any
of the tasks to which he objected (Tr. 153). Moreover, he was
never threatened with any form of discipline for not doing these
tasks (Tr. 153). Although Mr. Kaczmarczyk has availed himself
of his union's grievance procedure on several occasions, and has

1062

represented other miners in processing grievances, he did not
file a grievance regarding his dispute with Respondent over his
ability to clean the mud under the scale (148-50) .
Complainant was clearly very upset by the events of
April 17-20, 1995. He contends that he was so upset that he
could not eat and left work on April 20, due to what he
perceived was constant harassment.
The issue in the instant case is not whether Mr. Kaczmarczyk
was sufficiently upset to leave work, but whether conditions were
so intolerable that a reasonable miner would have felt compelled
to leave work, Secretary on behalf of Clayton Nantz v. Nally &
Hamilton Enterprises. Inc., 16 FMSHRC 2208, 2210 (November 1994);
Simpson v. FMSHRC, 842 F.2d 453, 461-63 (D.C. Cir. 1988).
In analyzing the instant case, I have paid particular
attention to a decision by the United States Court of Appeals
for the Third C~rcuit in Clowes v. Allegheny valley Hospital,
991 F.2d 1159 {3d Cir. 1993), cert. denied 114 S. Ct. 441,
126 L. Ed. 2d 374. I do so not only because of the analogous
factual situation, but because the instant case also arises in
the Third Circuit.
In Clowes the court reversed an award entered in a case
arising under the Age Discrimination in Employment Act, finding
insufficient evidence to establish constructive discharge.
Clowes, a nurse for 30 years at Allegheny Valley Hospital,
alleged that excessive supervision by a new and much younger
supervisor caused her to become so depressed that she resigned.
The court of appeals opined that unfair and unwarranted treatment
does not necessarily constitute a constructive discharge and
that an employee's subjective perception does not control the
resolution of a constructive discharge claim.
As in the instant case, Clowes was never threatened with
discharge or any other adverse action. She never advised the
hospital that she would resign if conditions did not change and
never filed a grievance under her collective bargaining
agreement.
As the court notes, such factors may not be necessary to
establish a constructive discharge in all cases. However, in
the instant case, I conclude that a reasonable miner in

1063

Mr . Kaczmarczyk's situation, who had not been threatened with
discipline and who regularly avails himself of the grievance
procedure, would not leave work on April 20, 1995, and refuse
to return to work until May 1.
In reaching this conclusion, I am influenced by the fact
that several less drastic alternatives were available to
Complainant . He could have filed a grievance and continued to
refuse to do work beyond his physical capabilities. Moreover,
Complainant could have petitioned the undersigned for an order
enforcing the temporary reinstatement order without leaving work.
Respondent requested that Complainant shovel mud on
three days. Foreman Kerstetter may have been less than pleasant
in responding to Kaczmarczyk's refusals to do so. However,
Kerstetter did not stand over Complainant and continually berate
him . At worst, he made an uncomplimentary remark and left the
area in which Kaczmarczyk was working .
I conclude that the
working conditions to which Complainant was subjected were not
intolerable.
In conclusion, I find that Respondent did violate the
terms of the temporary reinstatement order by ordering
Complainant to shovel mud under the scale on April 17 and 19,
and bring it to ground level by carrying it up a flight of
stairs in buckets.
It may have also violated the terms of the
order on April 20. However, conditions were not intolerable
for a reasonable miner in Complainant's situation. Therefore,
I conclude that Mr . Kaczmarczyk was not constructively
suspended.
ORDER

Having found that Respondent did not constructively suspend
Complainant on April 20, 1995, I find that Complainant is not
entitled to any relief for the violations of the temporary
reinstatement order that occurred.

~- ~

Arthur J . Amchan
Administrative Law Judge

1064

Distribution:
Stephen D. Turow, Esq ., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd ., Su ite 4 00 ,
Arlington, VA 22203 (Certified Mail)
Martin J . Cerullo, Esq., Cerullo, Datte & Wallbillich,
P.C., Second Street & Laurel Blvd., P . O. Box 450, Pottsville,
PA 17901 (Certified Mail)

/lh

1065

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

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 95 - 16
A. C. No. 36-01301-03685

I

Dunkard Mine
DUNKARD MINING COMPANY,
Respondent
DECI SI ON APPRQVING SETTLEMENT
Before:

Judge Maurer

This case is before me upon a petition for assessment of
civil penalty under section lOS{d) of the Federal Mine Safety and
Health Act of 1977 (the Act).
Petitioner has filed a motion to
approve a settlement agreement and to dismiss the case. A
reduction in penalty from $1949 to $780 is proposed . The
citations, initial assessments, and the proposed settlement
amounts are as follows:

CITATION NO.

INITIAL
ASSESSMENT
309
168
168
220
267
267
204
168

9952804
3672157
3672159
3672160
3672363
3672364
3672365
3672366
3672367

$

TOTAL

$ 1949

PROPOSED
SETTLEMENT
$

124
67
67
88

107
107
82
67
-2.l

-1..1.B.
$

1066

780

I have considered the represent ations and documentation submitted
in t his case, and I conclude t hat the proffered settlement is
app r opriate under the criteria set forth in section l lO(i) of the
Act.
WHEREFORE , the motion for approval of settlement is GRANTED ,
a nd it is ORDERED that respondent pay a penalty of $780 within

30 days of this or der.

f'l\J\

(J;vvvl/'---_-·

\. f-taurer
iis't. rative Law Judge
~

}

Distribution:

Linda M. Henry, Esq., Office of the Solicitor, U. S . Department
of Labor, 3535 Market Street, Room 14480, Philadelphia , PA 19104
Karl-Hans Rath, General Manager, Dunkard Mining Company,
P. O. Box 8, Dilliner, PA 15327
dcp

1067

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

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 94-216
A.C. No. 46-01453-04117

I

Docket No. WEVA 94-328
A.C. No. 46 - 01453 - 04128
CONSOLIDATION COAL COMPANY,
Respondent

Humphrey No . 7 Mine

DECISION
Appearances:

Elizabeth Lopes, Esq., Office of the Solicitor,
U. s. Department of Labor, Arlington, Virginia,
for the Petitioner;
Elizabeth S . Chamberlin, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent .

Before:

Judge Feldman

These proceedings concern petitions for assessment of civil
penalties filed by the Secretary of Labor against the respondent
pursuant to section llO(a) of the Federal Mine Safety and
Health Act of 1977 (the Act), 30 U.S . C . § 820(a). Docket No.
WEVA 94-216 involves a proposed civil penalty of $2596 for two
104(a) citations that were designated as significant and
substantial . With respect to Docket No. WEVA 94-328, the
Secretary has proposed a civil penalty of $21 , 500 for a 104(d} (1)
citation and two 104(d) (1) orders allegedly attributable to the
respondent's unwarrantable failure.
Thus, .the total proposed
civil penalties in these matters is $24,096. As noted bel ow , t he
parties have agreed to settle these proceedings for a total civil
penalty of $11,445.
These matters were heard on May 11 and May 12, 1 995 , in
Washington, Pennsylvania . At the commencement of the hear ing,

1068

the parties informed me that they had settled the two citations
in Docket No. WEVA 94-216 and 104(d) (1) Citation No. 3305270 in
Docket No. WEVA 94-328.
Docket No. WEVA 94-216
The settlement motion presented on the record reflects that
Citation No. 3304293 was issued on January 24, 1994, for a
violation of the mandatory safety standard in section
75.333(b) (4), 30 C.F.R. § 75.333(b} (4), This standard requires
separation of the primary escapeway from the belt and trolley
haulage entries. The citation was issued because of alleged
defective permanent stoppings between the primary escapeway and
the trolley haulage entry. The settlement terms include deletion
of the significant and substantial designation from this citation
because it was unlikely that smoke contamination would occur in
the primary escapeway in the event of a fire given the conditions
observed by the issuing MSHA inspector. Thus, the parties agreed
to a reduction in the proposed penalty from $1,298 to $507.
Citation No. 3304294 was issued on January 24, 1994, f.or an
alleged inadequate preshif t examination in violation of section
75.360(a), 30 C.F.R. § 75.360(a). The parties agreed to a
reduction in civil penalty from $1,298 to $794 due to a reduction
in the gravity associated with this violation. Consequently,
the parties seek to reduce the total proposed civil penalty in
Docket No. WEVA 94-216 from $2,596 to $1,301.
Docket No. WEVA 94-328
At the beginning of the hearing the parties informed me that
the respondent has agreed to pay the $6,000 proposed penalty for
104 (d) (1) Citation No. 3305270. 104 (d) (1) Order Nos. 3305280
and 3305605 were issued between 10:30 a.m. and 12:30 p.m. on
January 10, 1994, for violation of section 75.370(a) (1),
30 C.F.R. § 75.370(a) (1), as a result of the respondent's alleged
failure to follow its approved ve'n tilation plan, and, for alleged
impermissible accumulations of coal dust in violation of section
7?.400, 30 C.F.R. § 75.400. Both citations.were issued shortly
after the respondent had noted these violative conditions in its
preshift examination book sometime before 7:00 a.m. on the
morning of January 10, 1994.

1069

After the presentation of the Secretary's direct case with
respect to Order No. 3305605, I expressed concern regarding the
issue of unwarrantable failure in situations where Mine Safety
and Health Administration (MSHA) inspectors observe violative
conditions during the shift immediately following the notation of
such conditions by the preshift examiner. Obviously, an operator
is subject to a citation if a mine inspector observes a violation
shortly after the condition is noted by the preshift examiner.
However, in such circumstances, an operator must be afforded a
reasonable period of time to correct conditions observed during
the preshif t examination before the failure to take remedial
action can be construed as the requisite "inexcusable" or
"unjustifiable" conduct necessary to sustain an unwarrantable
failure charge . ~Emery Mining Co:r:poration, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007,
2010 (December 1987) .
For example, in the instant case, the respondent commenced
cleanup of the coal dust accumulations at approximately
10:30 a . m. after notations made in the preshift examination book
at approximately 7:00 a.m. The testimony did not establish the
cleanup was motivated by the presence of the MSHA inspector on
mine property. Moreover, there was no evidence that these
accumulations had been ignored in that the preshif t report
reflected the area had been rock dusted on Friday, January 7,
1994, the preceding production shift prior to the pertinent
Monday, January 10, 1994, preshift examination.
In addition, the thrust of the Mine Act's 104(d)
unwarrantable failure provisions is to discourage repetition of
an operator's high negligence by placing the operator on a
probationary chain buttressed by the threat of a withdrawal
order. Greenwich Collieries, 12 FMSHRC 940, 945 (May 1990).
Thus, the withdrawal of miners pursuant to a 104(d) o~der is a
consequence of the operator's repeated high degree of negligence
rather than the existence of an extremely hazardous condition.
In fact, operators responsible for violations cited in 104(d)
orders would normally be permitted a reasonable abatement period
w~thout the necessity to withdraw or otherw:ise cease mining
operations if the violative condition ~·~s cited under section
104(a) of the Act . Thus, 104(d) withdrawals must be
distinguished from withdrawal orders under the imminent danger

1070

provisions of section 107(a) of the Act that relate to extremely
hazardous conditions .
In this case, the absence of malfunctioning rollers,
inoperable dust suppression water sprays, hot embers, or, an
identifiable source of ignition in close pro~imity to the cited
accumulations, are mitigating circumstances that do not add up to
reckless continued mining operations in the face of an extreme
danger. MSHA's use of the 104{d) withdrawal of personnel as
evidence of a dangerous condition indicative of high negligence
is the functional equivalent of the tail wagging the dog as a
104(d) withdrawal, alone, is not evidence of exigent
circumstances warranting the immediate withdrawal of miners.
Neither is the 2 1/2 hour delay in attempting to remove the
accumulations necessarily indicative of aggravated conduct on the
part of the respondent .
Upon expressing concerns regarding the applicability of the
unwarrantable failure findings in this case, the parties were
invited to confer for the purposes of settlement during a brief
recess. Upon reconvening, the parties advised that they had
reached an agreement on the remaining two orders. The parties
agreed to retain the significant and substantial designations for
the cited violations. However, the parties agreed to modify
Order Nos. 3305280 and 3305605 to 104(a) c itations thus removing
the unwarrantable failure charges. Consequently, the parties
seek to reduce the civil penalty from $6,500 to $2,072 for each
of these modified citations.
ORPER
This decision formalizes the approval of the parties'
settlement motion with respect to all of the matters in issue .
The motion was approved because the settlement terms are
consistent with the civil penalty criteria contained in
section llO(i) of the Act, 30 U.S . C. § 820{i) . Accordingly,
IT IS ORDERED that the respondent, Consolidation Coal Company,
pay a total civil penalty of $11,445 comprised of a civil
penalty of $1,301 in Docket No. WEVA 94-216 and $10,144 in

1071

Docket No. WEVA 94-328. Payment shall be made to the Mine Safety
and Health Administration within 30 days of the date of this
decision. Upon timely receipt of payment, these docket
proceedings ARE DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:

Elizabeth S. Lopes, Esq., Office of the Solicitor, U. S.
Department of Labor, 4015 Wilson Boulevard, Arlington,
VA 22203 (Certified Mail)
Elizabeth S. Chamberlin, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail)
/rb

10 72

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

June 23, 1995

.
.:•

D. H. BLATTNER ' SONS,
INCORPORATED,
contestant

:

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

.:
.

CONTEST PROCEEDING
Docket No. CENT 95-121-RM
Kine ID 29-00233
continental Pit

0
0

.•

ORDER OF DISMISSAL
Before:

Judge Merlin

on February 17, 1995, the contestant filed a notice of
contest alleginq it was qiven a verbal order by an inspector of
the Mine Safety and Health Administration (hereafter referred to
as "MSHA"), to comply with 30 C.F.R. § 41.20 or be shut down.
The regulation requires operators to file a notification of legal
identity with the appropriate MSHA district manager. The ,. .
contestant argues that because it is an independent contractor,
the regulation should not be applied to it. According to the
contestant, it is a party in other cases now on appeal before the
Commission which present the same issue. Those cases involve a
different mine and operator. 1
On March 9, 1995, an order was issued. directing the Solicitor to file a response to the notice of contest. on April 6,
1995, the Solicitor filed a motion to dismiss, denying that a
verbal order had been issued for failure to file a legal identity
report. The Solicitor further asserts that on January 10, 1995,
MSHA issued a citation to the contestant under section 104(a),
30 u.s.c . § 814(a), alleging a violation of 30 C. F.R. § 41.20.
The Solicitor states that the contestant did not seek review of
the citation and that this contest is an attempt to confer
jurisdiction upon the Commission with respect to it . The instant
complaint however, makes no mention of the January 10 citation.
After receivinq the Solicitor•s motion to dismiss, the contestant
filed a brief alleging that it had not been served with such a
citation.
With respect to the alleged January 10 citation, it is noted
that section lOS(d) of the Mine Act, 30 u.s.c. § 815(d), provides
an operator with dual avenues of relief. An operator may within
1

Docket Nos. WEST 93-123, WEST 93-286, and WEST 94-5-M.

1073

30 days of the receipt thereof contest the issuance or modification of any order or citation. 29 c.F.R. §§ 2100.20,
2100.21. In addition or as an alternative, the operator may
wait until the secretary notifies it of a proposed penalty
assessment for the alleged violation and then file a notice of
contest. 29 C.F.R. §§ 2700.25, 2700.26. In this case if a
penalty assessment is proposed with respect to the January 10
citation, the operator can challenge the citation and the
assessment at that time and raise the issue of service.
The Commission bas no jurisdiction to review the alleged
verbal order issued on January 18, 1995, by an MSHA inspector
requiring it to obtain a legal identity number or be shut down.
Section 104 of the Act, supra, sets forth the conditions under
which the Secretary may issue citations to operators for violations of the Act and thereafter issue orders of withdrawal.
citations are expressly required to be in writing and it is clear
the Act contemplates that orders issued after the citations also
be in writing. The legislative history of the Act demonstrates
that citations and orders are treated the same. s. Rep. No. 461,
95th Cong., 1st sess. 47 (1977), reprinted in, senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong.,
2nd sess., Legi~lative History of the Federal Mine Safety and
Health Act of 1977, at 1325 (1978). Section 109 of the Act, 30
o.s.c. § 819, provides, inter alia, that orders and citations be
posted on a bulletin board at the mine. Also, commission regulations require that a legible copy of the contested citation or
order be attached to the operator•s notice of contest and that if
a legible copy is not available, the text of the citation
or order be set forth in the notice of contest. 29 C.F.R.
§ 2100.2o(e).
To comply with the posting and filing provisions,
the citation or order must be in writing.
Accordingly, even assuming the operator received a verbal
order as it alleges, such an order would be of no effect because
it was not in writing. No penalty assessment can be based upon
an oral communication. If the operator disagrees with an inspector• s verbal communications, it may wait until the inspector
completes and serves a written order. Then it can abate the
order to avoid the effects of a withdrawal order and seek review
before the Commission. If the operator decides not t~ abate, in
which case the withdrawal order takes effect, it may seek expedited review before the Com.mission. Section lOS(d), supra;
29 C.F.R. §§ 2100.20, 2700.52. An administrative agency is a
creature of congress and cannot exceed the jurisdiction given
to it by Congress. Lyng y. Payne, 476 o.s. 926, 937 (1986);
Killip y. Office of Personnel Management, 991 F.2d 1564, 1569
(Fed Cir. 1993). The commission has followed this principle.
Kaiser Coal corp., 10 FMSHRC 1165, 1169 (September 1988). Under
section lOS(d), supra, the operator can seek review of an order

10 74

or citation issued under section 104 and the commission is
directed to afford an opportunity for a hearinq under 5 u.s.c.
§ 554.
Since any order or citation issued under section 104 must
be in writinq, the Commission•s jurisdiction extends· only to such
orders and citations.
In liqht of the foreqoinq, it is ORDERED that this case be
DISMISSED.

Paul Merlin
Chief Administrative Law Judqe
Distribution:

(Certified Mail)

Michael s. Lattier, Esq., James B. Lippert, Esq., Gouqh, Shanahan,
Johnson & waterman, D. H. Blattner & sons, Inc., 33 South Last
Chance Gulch, Suite 1, P. o. Box 1715, Helena, MT 59624-1715
Robert A. Cohen, Esq., Office of the Solicitor, u.s. Department of
Labor, 4015 Wilson Blvd., Arlinqton, VA 22203
/gl

1075

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

JUN 2 6 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINI STRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 95-190-M
A.C. No. 47 - 00792-05508

I

Cedar Lake Sand & Gravel Pit
CEDAR LAKE SAND & GRAVEL,
Respondent
DECISION
Appearances:

Ruben R. Chapa, Esq. , U.S. Department of Labor,
Office of the So licitor , Chicago, Illinois,
for the Petitioner;
Bruce Gi lbert , President , Cedar Lake Sand
& Gravel Co. , Hart f ord , Wisconsin,
for the Respondent.

Before :

Judge Weisberger

This case is before me based on a Petition for Assessment
of a Penalty filed by the Secretary of Labor alleging a violation
by Cedar Lake Sand & Gravel Company , Incorporated ("Cedar Lake")
of 30 C.F.R. § 56.16006 and 30 C.F.R § 56.2003(a). Pursuant to
notice, the case w~s heard in Milwaukee, Wisconsin, on May 31,
1995.
Findings of Fact and Discussion
Violation of 30 C.F.R .

§

56.16006

On June 22, 1994, Robert Taylor, an MSHA Inspector 1 ,
inspected the Cedar Lake Sand and Gravel Pit (Cedar Lake Pit), a

1

Taylor ret i red as an MSHA Inspector on December 31, 1994 .

1076

sand and gravel operation located in Washington County Wisconsin.
Taylor observed a compressed gas cylinder that was attached to a
portable cart, and located outside adjacent to a shack where gas
and grease were stored. The cylinder was not covered. Taylor
issued a citation alleging a violation of 30 C.F.R. § 56.16006,
11
which provides as follows:
[v]alves on compressed gas cylinders
shall be protected by covers when being transported or stored,
and by a safe location when the cylinders are in use . "
Cedar Lake did not present any testimony to impeach or
contradict the testimony of Taylor that the cylinder was not
covered. Further, the parties stipulated that the cylinder "was
being stored," (Joint Stipulation 1, Paragraph S(a)). Clint
Gerlach, Cedar Lake's Foreman, testified that in the past MSHA
inspectors only examined those cylinders located in a storage
facility to see if they were covered. He said that the cylinder
at issue was set up for use, and that to the best of his
recollection cylinders are used daily. He could not remember
when the cylinder at issue had last been used prior to June 22,
1994. He indicated that when a cylinder is put to use, a
regulator is installed . The cylinder at issue had such a
regulator. Gerlach indicated that in his more than 18 years
experience he had not been aware of the need to cover cylinders
that had regulators installed on them.
Based upon the uncontradicted testimony of Taylor, I find
that the cylinder in question was not covered. Further, the
parties have stipulated that it was being stored, and there is no
evidence that it was in use . Indeed, Gerlach could not recall
when it was last used.
I thus find that Cedar Lak~ did violate
section 56 . 16006, supra . I note Respondent's allegation that
MSHA in the past had not cited Cedar Lake for not covering its
cylinders that were not stored in the storage area.
I find
this allegation not to be a defense to the violation of
Section 56.16006, supra (see U.S. Steel Mining Co . . Inc . ,
15 FMSHRC 1541, 1546-1547 (1993)).
Taylor explained that should the valve of the cylinder be
knocked off as a consequence of its not being covered, the
cylinder then would become like a missile, and could cause
serious injuries, a fire, or an explosion. However, the gravity
of the violation is mitigated to some degree by the fact that the
cylinder was secured to a cart. Also, I find credible Gerlach's

1077

testimony that until the instant citation was issued, he, in good
faith , was not aware that cylinders not stored in the storage
area had to be covered.
I thus find Cedar Lake ' s n egligence to
have been mitigated somewhat. Considering these factors, as we l l
as the remaining factors set forth in Section llO(i) of the Act
as stipulated to by the parties, I conclude that a penalty of
$200 is appropriate .
Violation of 30 C.F . R § 56.20003(a)
On June 22, 1994, as Taylor continued his inspection, he
climbed up a flight of stairs to a catwalk (walkway) that led to
a sizing screen . A handrail was located on one side of the
walkway. There was a toe plate approximately 2 inches high on
the edge of the walkway . Taylor testified that he observed a
buildup of rocks on the walkway. According to Taylor, the-rocks
and the accumulated rocks were 8 inches deep , and covered the
entire walkway .
Taylor issued a citation which initially alleged a violation
of 30 C.F.R. § 56.11001, but which was amended on June 27 , 1994,
to instead allege a violation of 30 C.F.R. § 56.20003(a).
Section 56.20003(a), supra, provides that at all mining
operations, 11 [w]orkplaces, passageways, storerooms, a n d service
rooms shall be kept clean and orderly . " Gerlach, who was present
with Taylor, testified regarding the accumulation of rocks as
follows: "I don't think it was quite 8 inches" {Tr . 90). He
opined that, due to the presence of a 2 1/2 inches high toe
plate on each side of the edge of the walkway it was not likely
that the material accumulated 8 inches. However, since Gerlach
indicated that he was not on the walkway on the day the citation
was issued, I find that his testimony is inadequate to impeach
or dilute the testimony of Taylor based upon his actual
observations.
I thus find that, based upon Taylor's testimony,
the walkway did have an accumulation of rocks . According to
Gerlach and Tony Wagner, the crusher plant operator, no one works
on the walkway when the plant is in operation. However, the
walkway is the means of access to the sizing screen. A miner
uses the walkway once a day to access the s~reen in order to .
grease it and observe its condition. Also, the walkway provides
access to the screen, when its cloth has to be changed.
I thus
find that the walkway, which is the means of access to the
screen, is a passageway as that term is commonly under stood.
In

1078

this connection, I note the following definition of the term
passageway as set forth in Webster's Third New International
Dictionary (1986 edition): "[a] way that allows passage to or
from a place or between two points." Since the walkway is
considered a passageway, and since it contained an accumulation
of rocks to the extent testified to by Taylor, I conclude that
Cedar Lake did violate Section 56.20003(a), supra.
Taylor noted footprints in the dust on the floor of the
walkway . He also noted dust on the accumulated rocks. He opined
that the accumulation of rocks had existed for at least a day.
On the other hand, Wagner testified that each morning he checks
the screen, and cleans the walkway . Gerlach testified that
earlier in the day Wagner had told him that when Taylor had
issued his citation, clay had covered up the holes on the screen
causing the materials on the belt feeding the screen to fall on
the walkway. Also, Gerlach indicated that, in general, crushers
produce dust which extends about 1000 feet from the crushers. In
this connection, he noted that the walkway at issue was located
approximately 15 feet from two crushers . Based upon this
essentially uncontradicted testimony, I find that the level of
Cedar Lake's negligence to have been mitigated to some degree.
According to Taylor, a person walking to the screen on the
walkway while carrying tools or other materials could have
tripped on the accumulated rocks causing a sprain or a bruise.
I thus find the violation was only of a moderate degree of
gravity . I find that a penalty of $150 is appropriate for this
violation.
ORPER
It is ORDERED that Cedar Lake pay a civil penalty of $350
within 30 days of this decision.

·Avram Weisber.g er
Administrative Law Judge

1079

..

.·

Distribution:
Ruben R. Chapa, Esq., U.S. Department of Labor, Office of
the Solicitor, 230 South Dearborn Street, 8th Floor,
Chicago, IL 60604
(Certified Mail)
Bruce Gilbert, President, Cedar Lake Sand & Gravel Co., Inc . ,
Route #2, Hartford, WI 53027
(Certified Mail)
/ml

1080

FEDER.AL KINE SAPETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 220 41

JUN 2 7 1995
SOUTHMOUTAIN COAL, INC.
AND
WILLIAM RIDLEY ELKINS,
Contestants

v.

:

CONTEST PROCEEDINGS

No. VA 93-108-R
.. Docket
Citation No. 4257501; 5/26/93
.
. Docket No. VA 93-109-R
. Order No. 4257502; 5/26/93
.. Docket No. VA 93-110-R
0

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

. order No. 4257503; 5/26/93
.: Docket No. VA 93-111-R
.: Order No. 4257504; 5/26/93
. Docket No. VA 93-112-R
. Order No. 4257505; 5/26/93
.
:
:

.
.

Docket No. VA 93-113-R
Order No. 4257506; 6/26/93

Docket No. VA 93-114-R
Order No. 4257507; 5/26/93
Docket No. VA 93-115-R
Order No. 4257508; 5/26/93

0

:

:

Docket No. VA 93-116-R
Order No. 4257509; 5/26/93
Docket No. VA 93-117-R
Order No. 4257510; 5/26/93

.... Docket No. VA 93-119-R
. Order No. 4257512 ; · 5/26/93
Docket No. VA 93-124-R
..: Order
No. 4257517; 5/26/93
.

. Docket No. VA 93-125-R
. Citation No. 4257518; 5/26/93
.
Docket No. VA 93-131-R
Citation No. 4257524; 5/26/93

Docket No. VA 93-132-R
.. Order
No. 4257525; 5/26/93

:

1081

. Docket No. VA 93-133-R
. Citation No. 4257526; 5/26/93
. Docket No. VA 93-134-R
.• Citation No. 4257527; 5/26/93
.
:

Docket No. VA 93-135-R
Citation No. 4257528; 5/26/93

:

.

Docket No. VA 93-137-R
Order No. 4257530; 5/26/93
Docket No. VA 93-138-R

. Order No . 4257531; 5/26/93
0

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

v.
SOUTHMOUNTAIN COAL, INC.,
Respon<ient

..

Mine No. 3 I.D. No. 44-06594
CIVIL PENALTY PROCEEDINGS

.. Docket No. VA 93-165

A.C. No. 44-06594-03522

... Docket No. VA 93-166
A.C. No. 44-06594-03523

. No. 3 Mine

ORDER LIFTING STAYS/DECISION APPRQVING SETTLEMENT
AND ORDER OF DISMISSAL

In a motion to dismiss these proceedings the Secretary
states as follows:
In accordance with a plea agreement and sentencing in
related criminal proceedings and because the respondent
South.mountain Coal Company (Southmountain) has paid a
substantial civil penalty for the violations involved in
these proceedings. In support of this motion, the Secretary
offers the following information and explanation.
(1) As a result of criminal prosecution against both
respondents, the United States District Court for the
Western District of Virginia accepted guilty pleas from
South.mountain and Ridley Elkins. A provision of those
guilty pleas required the Secretary to move to dismiss these
proceedings upon payment of the proposed civil penalties
totalling $436,732.
(2) on May 17, 1995, in accordance with the guilty pleas,
United States District Judge Samuel Wilson sentenced
Southmountain to pay the above-enumerated monetary amount to
the Mine Safety and Health Administration, in addition to

1082

criminal fines and restitution totalling an additional
$1,563,268.
(3) On May 31, 1995, Judge Wilson ordered Apple Coal
Company, the parent company of Southmountain, to pay the
amounts charged against Southmountain. This payment by
Apple Coal Company was pursuant to an agreement made by
Apple in front of Judge Wilson.
(4)
The amount to be paid to the Mine Safety and Health
Administration has been remitted in accordance with Judge
Wilson's orders .
(5)
The Secretary sought the civil penalties in this case
against Southmountain and Mr. Elkins, as jointly and
severally liable for the violations. By payment of the
total proposed amount by Apple, the monetary liability of
both respondents has been satisfied. In addition, the
findings of criminal conduct serve as significant deterrents
to further such violations.

Therefore, in light of the payment of substantial civil
penalties and criminal sentences in the related criminal
proceedings, the Secretary moves that these civil penalty
proceedings be dismissed.
The Secretary's motion is deemed in part to constitute a
motion for settlement in which Respondent has agreed to pay and
has, in fact, paid the proposed penalty of $436 1 732 in full. I
have considered the representations and documentation submitted
in these cases, and I conclude that the proffered settlement is
acceptable under the criteria set forth in Section llO(i) of the
Act.
ORDER
WHEREFORE, the Stay Orders in the captioned cases are
lifted, and the settlement in the civil penalt proceedings is
approved. Furthermore, the captioned contest roceedings are
dismissed as now moot.

Gary Mel
Administ
(703) 75

10 83

.··~

ge

Distribution:
Henry Chajet, Esq., James Zissler, Esq . , Jackson and Kelly,
2401 Pennsylvania Ave., N. W., suite 400, Washington·, D. c. 20037
(Certified Mail)
Jeffery Sturgill, Esq . , Sturgill , Mullins and Kennedy, 944 Norton
Road, P . O. Box 3458, Wise, VA 24293 (Certified Mail)
Carl C. Charneski, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
(Certified Mail)
Jack Kennedy, Attorney at Law, 105 Sixth Street, N.W., Suite 200,
P. O. Box 654, Norton, VA 24273 (Certified Mail)
Jessee Darrell Cooke, Miners' Representative, southmountain Coal,
Inc . , P.O. Box 950, Coburn, VA 24230 (Certified Mail)
/j f

1084

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

JUN 2 9 1995
KELLYS CREEK RESOURCES, INC . ,
Contestant

CONTEST PROCEEDINGS
Docket No. SE 92-122-R
Citation No. 3380190; 1/7/92

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

Docket No. SE 92-123-R
Citation No. 3380191; 1/7/92
Docket No. SE-92-124-R
Citation No . 3380192; 1/7/92
Docket No . SE-92-125 - R
Citation No . 3380193; 1/7/92
Docket No. SE-92-126-R
Citation No. 3380194; 1/7/92
Docket No. SE-92-127 - R
Order No. 3380195; 1/7/92
Docket No . SE-92-128-R
Citation No . 3380196; 1/7/92
Docket No. SE -92- 1 29-R
Order No. 3380197; 1 /7/92
Docket No . SE 92- 1 30-R
Order No . 3380198 ; 1/7/92
Docket No . SE 92-131-R
Order No . 3380199 ; 1/7/92
Docket No . SE 92-147 - R
Order No. 2805080 ; 1/10/92
Docket No . SE 92-148 - R
Order No. 2804581; 1/10/92

1085

Docket No . SE 92-150-R
Order No. 2804583; 1/10/92
Docket No . SE 92-17 1 -R
Order No. 339509; 1/21/92
Docket No. SE 92-176-R
Order No. 3395711; 1/10/92
Docket No. SE 92-177-R
Order No . 3395712; 1/10/92
Docket No . SE 92-180-R
Order No . 3395715; 1/10/92
Mine No. 78
ID No . 40-02934
SECRETARY OF LABOR,
MINE SAFETY .AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. SE 92-322
A.C. No. 40-02934-03529
Docket No . SE 92 - 339
A . C . No. 40-02934-03530

KELLYS CREEK RESOURCES, INC.,
Respondent

Docket No . SE 93 - 584
A:c. No . 40-02934-03540
Mine No. 78
DECISION
Appearances:

Thomas A . Grooms, Esq., U.S . Department of Labor,
Office of the Solicitor, Nashville, Tennessee,
for the Petitioner .
G. Christopher Van Bever, Esq . , Wyatt, Tarrant &
Combs, Louisville, Kentucky, for the Respondent .

Before :

Judge Weisberger

10 86

I.

History of these cases

These Contests and Civil Penalty Proceedings are before me
based on Notices of Contest filed by Kellys Creek Resources Inc . ,
("Kellys Creek 11 ) challenging the issuance by the Mine Safety and
Health Administration ( 11 MSHA 11 ) of 44 citations and/or orders
alleging violations of various mandatory safety standards. The
Secretary of Labor ("Secretary") filed three Proposals for
Assessment of Civil Penalty alleging violations of various
mandatory standards . Pursuant to Notice, these cases were heard
on January 18 and 19, 1995.
The parties stipulated to the facts of the violations,
including the degree of negligence and gravity, and the findings
of significant and substantial and unwarrantable failure as set
forth in the citations and orders at issue. The Secretary
stipulated to the good faith exhibited by Kellys Creek in
attempting to achieve compliance after notification of the
violations at issue.
In its brief, ,Kellys Creek challenges the issuance of one of
the citations 1 , and two of the orders 2 at issue on the ground
that the Secretary issued multiple citations for multiple
violations of the same standard in violation of MSHA policy .
Also, it is argued that the imposition of penalties would violate
the Double Jeopardy Clause of the Fifth Amendment . Further,
Kellys Creek argues that penalties were erroneously assessed by
the Secretary using criteria a·nd procedures not in effect at the
time of the accident at issue. Lastly, Kellys Creek seeks a
reduction in penalties, and requests that the Secretary be
directed to recalculate the penalties taking into consideration
its financial status.

1

Citation No . 3380194

2 0rder

Nos. 3380195 and 3380196

1087

II.

Discussion

A.
Whether the Secretary, in violation of his policy.
erroneously issued multiple citations for multiple violations of
the same standard.
In January 1992, Kellys Creek was engaged in retreat mining,
i.e . , the removal of coal pillars from areas of the mine that had
previously been mined.
The sequence in which various pillar
blocks were to be cut was governed by Ke l lys Creek's Roof Control
Plan ( 11 Plan 11 ) on January 1, 1992, a roo f-fall occurred, fatally
injuring two miners, and seriously injuri ng a third . MSHA
Inspector Daniel Johnson issued one citation and two orders based
upon the failure of Kellys Creek to follow the sequence set forth
in the Plan. Citation No. 3380194 sets forth a failure to
follow the proper sequence in mining pillar block No . 3. Order
No. 3380195 sets forth the failure to follow the proper sequence
in mining pillar block No. 4, and Order No. 3380196 sets forth a
failure to follow the proper sequence in mining pillar block
No. 6. Approximately 20 feet separated the pillar blocks
designated as Nos. 3, and 4, and approximately 60 feet separated
the pillar blocks designated as Nos . 4 and 6 . Johnson indicated
that the pillar blocks designated as Nos. 3, 4, and 6 were in the
"same general area" of the mine (Tr. 57) and in the same section,
i.e~, third left.
Kellys Creek argues that the citation and orders at
issue were improperly issued as they all cited a violation of
30 C.F.R . § 75.220 in the same area of the Mine.
In support of
its position, Kellys Creek relies on the following language in
MSHA's Program Policy Manual ("PPM"):
However, where there are multiple violations of the
same standards which are observed in the course of an
inspection and which are all related to the same piece
of equipment or to the same, area of the mine, such
multiple violations should be treated as one violation
and one citation should be issued.
(Resp. Ex. 2,
p. 15) .

1088

Johnson indicated that all three cited acts occurred in the
same general area of the mine and that the same standard was
violated. I note, however, that in his testimony Johnson
explained that there was not only one v iolation coveri ng all
three pillars at issue because "these are three separat e and
distinct areas of being violated (sic}" (Tr. 46}.
On cross-examination, Johnson testified as follows relating
to the cited situations: "Pillars 3, 4 and 6 were three separate,
distinct acts (sic}. They were mining in three different places,
not complying with the roof control plan in three different
locations at the same time." (Tr. 70} .
The Plan, as supplemented in September 1991, provides a
detailed cutting sequence for the removal of coal from pillar
blocks {Government Exhibit No. 18} . The removal of coal from each
pillar block constitutes a separate and distinct operation.
I thus find that, although the three cited pillar blocks were in
the same general area, the operation at each block was distinct,
and hence each pillar block constituted a "distinct area ." Thus,
the issuance of three separate citations/orders by Johnson was
consistent with the PPM . Although the PPM precludes the issuance
of multiple citation of violations of the same standard relating
to "the same area of the mine," it mandates that, "separate
citations shall be issued for: .. . identical violations in
distinct areas of a mine" (Resp. Ex. 2, P . 15} . Further,
Johnson's action herein was fully consistent with Se ction llO(a}
of the Federal Mine Safety and Health Act of 1977 ( " the Act"}
which provides, as pertinent, as follows:
"[e]ach occurrence of
a violation of a mandatory health or safety standard may
constitute a separate offense."
I conclude that it was not improper for Johnson to have
issued three citati ons/orders herein.
B. Assessment of penalties by the Secretary based on
criteri a not in effect at the date o f t h e accident at issue
The accident that precipitated the assessment of the civil
penalties in question occurred on Janu ary 1 , 1992. On Friday,
January 24, 1992, MSHA published a final rule settin g forth new
procedures for proposing civil penalties under the Act , and
increasing the maximum penalty from $10,000 to $50 , 000 (57 Fed.

1089

Reg. 2968, January 24, 1992). The effective date for the new
penalty assessment criteria was set for March 1, 1992.
Essentially it is Kellys Creek's position that the
Secretary's assessment of penalties herein in excess of $10,000,
was based on a retroactive application of the final rule, and as
such was in error. Kellys Creek seeks an order directing the
Secretary to recalculate the penalty assessments in accordance
with the regulatory limit of $10,000 that was in effect on the
date of the accident (30 C.F.R. § 100(3) (g) (1991)).
I find Kellys Creek's argument to be without merit, and the
requested re l ief is denied for the reasons that follow. Under the
Act, the Secretary proposes and the Commission assesses civil
penalties for violations of the Act.
(See 30 U.S.C. § 815(a) &
(d) and 820(a) & (i)).
If an operator contests the Secretary's
proposed assessment, the Commission's jurisdiction attaches and,
pursuant to Section llO(i) of the Act, the Commission is
authorized to assess civil penalties.
Assessment of penalties by the Commission is strictly .Q.e.
See Youghiogheny & Ohio Coal Co., ("Y & 0 11 ) , 9 FMSHRC 673,
678 (April 1987)
In Y & O, supra, at 678-679, the Commission
elaborated as follows:

Il.QYQ.

We have consistently rejected assertions that, in
serving our separate and distinct function of assessing
appropriate penalties based on a record developed in
adjudicatory proceedings before the Commission, we are
bound by the Secretary's regulations, which are
intended to assist him in proposing appropriate
penalties. ~' .e.......£L_, Sellersburg Stone Co.,
5 FMSHRC 287 (March 1983), aff'd, 737 F.2d 1147
(7th Cir. 1984); Black Diamond Coal Mining Co.,
7 FMSHRC 1117 (August 1986); U.S. Steel Mining Co.,
6 FMSHRC 1148 (May 1984).
In Y & 0, supra, the Commission held that once a hearing has
been held, a determination by a Commission Judge that the
Secretary did not comply with Part 100 in proposing a penalty

1090

does not require affording the Secretary a further
opportunity to propose a penalty. Rather, in such circumstances
the appropriate course is for the Commission or its judges to
assess an appropriate penalty based on the record." Y & 0,
supra, at 679.
11

In Y & 0, supra, at 679, the Commission set forth the basis
for its holding as follows;
The Commission possesses explicit, statutory authority
to independently assess an appropriate penalty assessed
on the record evidence pertaining to the statutory
criteria specified in section llO(i), 30 U.S . C.
§ 820(i), developed before it .
The record developed in
an adversarial proceeding concerning the statutory
penalty criteria invariably will be more complete,
current and fairly balanced than the information that
is normally available to the Secretary at the prehearing stage when he must unilaterally determine and
propose a penalty . Further, because the Commission is
itself bound by proper consideration of the statutory
criteria and its penalty assessments are themselves
subject to judicial review under an abuse of discretion
standard, no compelling legal or practical purpose
would be served by requiring the Secretary to undertake
again to propose a penalty where a preferable record
already has been developed before the Commission.
I conclude that this rationale and the holding of the
Commission in Y & 0, supra, applies with equal force to the case
at bar.
I find that a proposed assessment by the Secretary based
on a retroactive application of a final rule does not mandate
reassessment, nor does it preclude a .de. IlQY.Q assessment of a
penalty after a hearing.
C.

Penalty
1.

Docket No. SE 93-584

As a consequence of a roof fall on January 1, 1992,
which resulted in two fatalities, MSHA issued five citations
under Section 104(a) of the Act, one Section 104(d) (1) citation,
and five Section 104(d) (1) orders. Kellys Creek does not contest

1091

the violations. Also, Kellys Creek does not contest the findings
of significant and substantial, gravity, unwarrantable failure,
and level of negligence set forth in these citations and orders .
a.

Citation Nos. 33801 90. and 33801991.
and Order No. 3380194

On their face, Citation Nos. 3380190, 3380191 and 3380194
appear to cite violative conditions that could have been most
directly responsible for the roof fall that caused two
fatalities. Accordingly, these violations were of the highest
level of gravity . Further, I note that Kellys Creek has not
contested the findings of high negligence relating to Citation
No . 3380190, and reckless disregard relating to Citation
No . 3380194 . In assessing a penalty for these violations,
considering the fact that two miners were killed as a result of
these violations, the elements of gravity and negligence are
accorded the most weight .
However, the penalties to be assessed are reduced a slight
degree due to their effect on the ability of Kellys Creek to
continue in business . 3 In this connection , although there is no
evidence that Kellys Creek has dissolved, the Secretary has
stipulated that the former has ceased operations {Secretary's
Brief p.31 n.3). Kellys Creek had net revenue of $843 , 200 in the
fiscal year ending May 31, 1994, but a loss of $45,749. 4 More
importantly, at the end of fiscal year 1993 Kellys Creek's assets
were only $47,306. In April 1995, Kellys Creek had assets of
less than $5,000 and liabilities in excess
of $130,00.

Kellys Creek alleges error on the part of the Secretary in
not considering the impact of proposed penalites on its ability
to continue in business. Kellys Creek requests an order
directing the Secretary to properly recalculate the proposed
penalty . This request is denied for the reasons set forth
above, {II{B), infra).
3

According to Kel lys Creeks' tax return, the los s amounted
to $60,717 . However, I find that this loss should be reduced by
$14,923 , the accumulated deprec i ation taken as a deduction from
income.
~-

4

1092

Considering all the above, I find the following to be the
proper penalties for the following citations/orders: 3380190$45, 000, 3380191-$45,000 and 3380194-$45000. 5
b.

Citation Nos. 3380192 and . 3380193.
Order Nos. 3380195. 3380196. 33801197.
3380198. 3380199. and Citation No. 3380422 .

Based on the levels of gravity and negligence set forth in
these citations and orders not contested by Kellys Creek, and
considering the impact of a penalty on the ability of Kellys
Creek to continue in business, I find that the following
penalties are appropriate for the violations established by the
following citation/orders: 3380192-$4,500, 3380193-$2,700;
3380195-$4,500, 3380196-$4,500, 3380197-$2,700, 3380198-$2,700,
3380199-$2,700, and 3380442-$20.
2.

Docket No. SE 93-322

These citations and orders were not issued as a result
of the fatal roof fall on January 1, 1992 . Based on the levels
of gravity and negligence set forth in these citations and orders
not contested by Kellys Creek, and considering the impact of a
penalty on the ability of Kellys Creek to continue in business,
I find that the following penalties are appropriate for the
violations established by the fol.lowing citation/orders:
2804581-$200, 2804583-$200, 2805080-$200, 3395509-$200, 3395711$150, and 3395712-$150.
3.

Docket No. SE 92-339 (Order No. 3395715)

This order was not issued as a result of the fatal roof fall
on January 1, 1992. Based on the levels of gravity and
negligence set forth in this order, not contested by K~llys
Creek, and considering the impact of a penalty on the ability of

authority to make a ~ nmlQ assessment of a penalty in
excess of $10,000 for an established violation is based on the
Omnibus Reconciliation Act of 19.90, effective November 5, 1990
(Pub.L . 101-508, Title III, § 3102) which amended 30 U.S.C.
§ 820 (a) .
5My

1093

Kellys Creek to continue in business, I find that a penalty of
$200 is appropriate for this violation.
D. Whether the imposition of penalties for the cited
violations are precluded by the Double Jeopardy Clause of the
Fifth Amendment
On July 23, 1992, the United States Attorney for the Eastern ·
District of Tennessee issued a three count Bill of Information
charging that Kellys Creek and Hollis Rogers, as president,
violated certain mandatory health and safety standards for
underground coal mines. Kellys Creek subsequently plead guilty
to the three count Bill of Information and received a penalty of
$5,000. The $5,000 penalty was comprised of a $2,000 penalty for
Count 1; a $2,000 penalty for Count 2; and a $1,000 penalty for
Count 3. Essentially, it is Kellys Creek's position that since
the Bill of Information encompasses Citation/Order Nos. 3380192,
3380193, 3380195, and 33801198, that the Secretary's attempt to
impose penaltie$ for these citations/orders violates the Double
Jeopardy Clause by subjecting Kellys Creek to a punishment for
the same conduct for which it was previously punished in a prior
criminal proceeding. Kelly Creek relies solely on Vnited States
v. Halper, 490 U.S . 435 (1989), which held as follows: "[U]nder
the Double Jeopardy Clause a defendant who already has been
punished in a criminal prosecution may not be subjected to an
additional civil sanction to the extent that the second sanction
may not fairly be characterized as remedial, but only as a
deterrent or retribution." (490 U.S., supra, at 448-449).
For the reasons that follow, I find that :u:......s.. v. Halper,
supra, is not applicable to the Commission's authority under
Section llO(i) of the Act to assess civil penalties where
violations of the Act have been established in Commission
proceedings.
In I.L...S....:.. v. WRW Corp., 986 F.2d 138 (6th Cir . 1993), the
Sixth Circuit was presented with the issue of whether the
imposition of civil penalties under Section 110 of the Act
following criminal convictions under Section 110 of the Act
was a violation of the Double Jeopardy Clause. The Court took
cognizance of Halper, supra, but followed the previously
established framework to determine whether a Civil Proceeding

1094

was punitive or remedial. 6 The Court referred to United States
v . One Assortment of 89 Firearms, 465 U.S . 354, 362-63, where the
Court applied the following test for determining whether a civil
proceeding is criminal and punitive, or civil and remedial:
First, we have set out to determine whether Congress,
in establishing the penalizing mechanism, indicated
either expressly or impliedly a preference for one
label or the other . . . . Second, where Congress has
indicated an intention to establish a civil penalty,
we have inquired further whether the statutory scheme
was so punitive either in purpose or effect as to
negate that intention . (quoting United States v. Nsu:Q,
448 U.S. 242, 248, 100 S . Ct . 2636, 2641, 65 L . Ed . 2d 742
(1980)) (citations omitted).
In Nllli, supra, the Court applied this test to penalties
imposed under Section 110 of the Act as follows:
In this case, it is obvious that Congress has intended
the penalties under 30 U.S.C. § 820(a) to be civil.
Not only is the statute so labeled, but the civil
provisions are somewhat broader in scope than the
criminal provisions . Whereas "willful" violations can
be "punished" by a criminal fine or imprisonment under
30 U.S.C. § 820(d), civil penalties may be assessed
regardless of fault.
986 F.2d, supra, at 141.
The Court, in NE.N, supra, next analyzed the purpose of the
civil penalties provided for in Section llO(i) of the Act, and
concluded that it is remedial, rather than a form of punishment.
In reaching this conclusion, the Court, in 986 F.2d, supra, at
141-142, stated as follows:
We emphasize that the civil penalty imposed does
not involve an affirmative disability or restraint, has
not been historically regarded as a punishment, and
does not require a finding of scienter. The defendants

6

Kennedy v. Mendoza Martine.z, 372 US 144 (1963) f irst set
forth the factors to be assessed in determining whether a
sanction is civil or criminal.

1095

argue that the imposition of a civil penalty promotes
the aims of retribution and deterrence, given the
various factors used to determine the amount o~ the
civil penalty. However, even though the application of
these factors to a given case may result in a penalty
which is punitive, we conclude that imposing a civil
penalty for health and safety violations which varies
in amount based upon the severity of the violation and
the operator's attempts to come into immediate
compliance may as readily be ascribed to the remedial
purpose of promoting mine safety. Although the
defendants further argue that their behavior was
already a crime under 30 U.S.C. § 820(d), as pointed
out above the civil penalty provisions cover a broader
range of conduct than the criminal provisions under the
Act and are not co-extensive with the criminal
provisions. Moreover, it is clear that '"Congress may
impose both a criminal and a civil sanction in respect
to the same act or omission. 111 One Assortment of 89
Firearms, supra, 465 U.S. at 365, 104 S.Ct. at 11061107 (quoting Helvering v. Mitchell, 303 U . S. 391 399,
58 S.Ct.630, 633, 82 L.Ed. 917 (1938)).
Finally, in ~' supra, the Court analyzed whether the civil
penalty appeared excessive in relation to a remedial purpose 7 •
Specifically, the Court analyzed whether the civil penalty was
excessive in relation to the Government's expenses.
In support
of this analysis, the Court, in _NRN, 986 F.2d, supra, at 142,
quoted from Halper, supra, at 449 as follows:
(T]he precise amount of the Government's damages and
costs may prove to be difficult, if not impossible, to
ascertain . . . . Similarly, it would be difficult if not
impossible in many cases for a court to determine _the
precise dollar figure at which a civil sanction has
accomplished its remedial purpose of making the
Government whole, but beyond ' which the sanction takes
on the quality of punishment.
In other words, ... the

7

This analysis is the last of the factors set forth in
Mendoza v . Martinez, supra.
It also was the focus of the court's
attention in Halper, supra.

1096

process of affixing a sanction that compensates the
Government for all its costs inevitably involves an
element of rough justice.
In the instant case, according to the Affidavits filed with
the Secretary's Brief, costs for the hours worked by inspectors,
investigators and attorneys on the respective civil and criminal
cases, and the costs for their respective meals, lodging and
travel during the course of these investigations, inspections,
and hearings amounts to $47,149.50. This figure does not reflect
the total costs to the government, which also included the use of
government vehicles, the costs of assessing the penalties, the
costs of clerical and other support staff within MSHA, the Office
of the Solicitor or the United States Attorney's Office in
Chattanooga, Tennessee, and does not include any amounts for the
ancillary cost of benefits, e.g., retirement and health
insurance, paid to the employees involved.
Based on the holding and rationale set forth in rIB.N, supra,
I find that the· penalty provisions set forth in Section llO(i} of
the Act are remedial and civil in nature, and not criminal .
Further, I find that the costs to the government exceed the total
penalty of $16,200, which I found to be proper for the violations
established for Citation No. 3380192 and Order Nos. 3380193,
3380195, 3380198 8 , which, in essence, correspond to the acts
pleaded to in the Bill of Information .
I thus conclude that the
assessment of a penalty, infra, for these orders/citation does
not subject Kellys Creek to a second punishment in violation of
the Double Jeopardy Clause.
ORDER
It is ORDERED that Kellys Creek pay a total penalty of
$160,420 within 30 days of this decision.

U..A

L'------

Weisberger
Administrative Law Judge

8

II (C) (1) (b)

I

infra .

109 7

Distribution:
G. Christopher Van Bever, Esq., Wyatt, Tarrant & CQmbs,
2600 Citizens Plaza, Louisville, KY 40202
(Certified Mail)
Thomas A. Grooms, Esq . , Office of the Solicitor, U.S. Department
of Labor, Suite B-201, 2002 Richard Jones Road, Nashville,
TN 37215-2862 {Certified Mail)

/ml

1098

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGE
2 SKYLINE, IOTH FLOOR

5203 LEEBURG plKE
FALLS CHURCH, VIRGINIA 22041

JUN 1 2 1995
BERWIND NATURAL RESOURCES, CORP.,
KENTUCKY BERWIND LAND COMPANY,
KYBER COAL COMPANY,
JESSE BRANCH COAL COMPANY,
Contestants,

CONTEST PROCEEDINGS
Docket No. KENT 94-574-R
through
KENT 94-797-R

v.

and

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

KENT 94-862-R
AA & W Coals, Inc.
Elmo No. 5 Mine

I

Mine I.D. No. 15-16856
ORPER DENYING MOTION IN LIMINE
On April 24, 1995, I issued an Order and Notice of Hearing
in these cases. In the order, I denied the Secretary's motion
for summary decision with respect to all of the Contestants
(17 FMSHRC 684 (April 1995)) .
I granted the Contestants' motion for summary decision with
regard to two of the Contestants: Berwind Natural Resources
Corp. (Berwind) and Jesse Branch Coal Company (Jesse Branch).
I stated:
[T]he undisputed material facts establish that
Jesse Branch and Berwind did not substantially
participate in the control or supervision of the
day-to-day operations of the mine or have the
authority to do so (17 . FMSHRC at 717).
I also denied the Contestants' motion with regard to
Kentucky Berwind Land Company (Kentucky Berwind) and Kyber Coal
Company (Kyber) . I stated:
I cannot find the undisputed material facts
establish that Kyber and Kentucky Berwind

1099

substantially participated in the control or
supervision of the day-to-day operations of the
mine or had the authority to do so. Nor can I
find such facts establish they did not so
participate. Additional evidence is needed
about the mining projections and the
relationships between AA&W, Kyber and Kenbucky
Berwind as they relate to the projections and to
the day-to-day operations at the mine.
Additional information also is needed regarding
the interpretation and implementation of the
provisions in the Kyber-AA&W contract that
relate to production (17 FMSHRC 716-717).
In order to afford the parties the opportunity to augment
the record with the necessary additional evidence, I noticed the
cases for hearing and stated, "at the hearing the parties should
be prepared to of fer evidence regarding the particular issues
specified above, 11 i.e., the issues stated regarding Kyber and
Kentucky Berwind (17 FMSHRC at 717).
In response to the notice of hearing, the parties, as
directed, have exchanged lists of exhibits, witnesses and
synopses of testimony. As a result, counsel for the Contestants
has moved in limine for an order precluding the Secretary from
offering certain testimony and evidence at the hearing.
Counsel states that the parties' prehearing preparations reveal
the Secretary's intent to present evidence beyond the scope of
the issues that remain in the cases .
Counsel for the Secretary opposes the motion stating, in
effect, that all issues are open for litigat i on ("The denial of
summary decision only signifies that there are facts in dispute.
As a result, all issues raised in the motions are open to
litigation" (Response to Motion in Limine 4) . ) . As set forth
more fully below, I do not agree with counsel for the Secretary,
although I decline to grant the ·contestants ' motion outside a
hearing and without proffers, where necessary, from counsel for
the Secretary.
Generally, when a case is not fully adjudicated upon a
motion for summary decision , the judge may ascertain what
material facts are controverted or are yet to be ascertained and

1100

may enter an order accordingly. Upon trial of the action, the
facts shall be deemed established and the decision rendered
(~Fed. R. Civ. P. 56(d)).
If the judge denies the motion and
does not specify those facts that are not controver ted or at
issue, all of the issues, as framed in the pleadings, are open
f or trial . However, when the judge specifies the facts needing
resolution, trial is only necessary on those issues·required for
a decision (B.e.e. Moore's Federal Practice, ~ 56.20 [2] (1995)).
In such instances, contrary to the Secretary's contention, all
-4-ssues are not open for litigation.
In my view, the order and notice of hearing of April 24 1995,
contemplated that to resolve the remaining issues the hearing
should be limited to evidence regarding whether Kyber used mining
projections substantially to control day-to- day mining at the
Elmo No . 5 Mine (17 FMSCHRC at 707) , whether Kyber exercised
control over the day-to-day operations of the mine through the
Kyber-AA&W contract provisions relating to production (17 FMSCHRC
at 709) and whether Kentucky Berwind used its involvement with
mining projections substantially to control the day-to-day mining
at the Elmo No. 5 Mine (17 FMSCHRC at 714) . On May 1, 1995, I
stated this view in a letter to Stephen D. Turow, counsel for the
Secretary.
Counsel for the Contestants requests that I exclude proposed
expert or factual testimony on 13 issues in the Secretary's
May 26, 1995 letter to Timothy M. Biddle, counsel for the
Contestants. I decline to do so in the abstract and outside the
context of the hearing . However, while the ruling sought by the
Contestants is DENIED, the Secretary is on notice that I intend
to conduct the hearing consistent with my view of the issues
remaining to be resolved.

David F. Barbour
Administrative Law Judge

1101

Distribution:
Robert I. Cusick, Esq . , Marco M. Rajkovich, Esq.,
Christopher Van Beyer, Esq., Mindy G. Barfield, Esq . ,
Wyatt, Tarrant & Combs, 1700 Lexington Financial Center,
Lexington, KY 40507 (via facsimile and certified mail}
Timothy M. Biddle, Esq., Thomas M. Means, Esq., Edward M. Green,
Esq., Crowell & Moring, 1001 Pennsylvania Avenue, N.W.,
Washington, D. C., 20004-2595 (via facsimile and certified mail)
Stephen D. Turrow, Esq . , Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
(via facsimile and certified mail}
\me a

1102

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

June 22, 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSBA),
Petitioner

v.
ROBERTS BROTHERS COAL
COMPANY, INCORPORATED,
Respondent

.:
..:
..

CIVIL PENALTY PROCEEDING
Docket No. KENT 95-210
A. C. No. 15-17216-03528
cardinal #2

ORDER ACCEPTING LATE FILING
ORDER OF ASSIGNMENT
On February 21, 1995, the Solicitor filed a penalty petition
in this case. The petition was accompanied by a brief motion to
accept the late filing of the petition. On March 24, 1995, the
operator filed an answer together with a motion in opposition to
the late filing contending that the Solicitor provided no facts
to support her motion.
Thereafter, on April 24, 1995, an order was issued directing
the Solicitor to submit information to justify the late filing of ·
the penalty petition. On May 12, 1995, the Solicitor filed a
response. The Solicitor advises that a new procedure had been
instituted in June 1994 for the processing of penalty contests
whereby the operator's contest is faxed from MSHA's office in
Arlington, Virginia to the appropriate MSHA district off ice.
Following the receipt of the fax, the district office makes
copies of the citations and assembles packets which are mailed to
the operator, the Regional Solicitor's Office and the Commission.
According to the Solicitor, in the instant case the MSHA district
office has no record of receiving the operator's contest on
January 10, 1995, the date it was supposed to have been faxed by
MSHA's Arlington office. When the Arlington office did not
receive a packing list confirming that the files were sent to the
Regional Solicitor an inquiry was made by Arlington to the
district office. At that time it was determined that the district off ice had no record of receiving the contest and· the
contest was again faxed on February 13, 1995. The Solicitor
asserts that the delay in filing was due to the problems in
implementing the new system for hahdling cases, and that procedural safeguards for tracking cases were not firmly established.
Moreover, the Solicitor's states that the operator has not been
prejudiced by the 22 day delay.
As stated in the April 24 order, late filings of penalty
petitions have been allowed when the Solicitor gives adequate
reason to justify the tardiness.
Long Branch Energy, 16 FMSHRC
2192 (October 1994), ~ Al.§.Q, Salt Lake county Road Department,
1103

3 FMSHRC 1714, 1716 (July 1981); Bhone-Poulenc of Wyoming co.,
15 FMSHRC 2089 (Oct. 1993); M. Jamieson Company, 12 FMSHRC 901
(April 1990); s ' L coal Company, 14 FMSHRC 403 (Feb. 1992);
Wharf Resources USA Incorporated, 14 FMSHRC 1964 (Nov. 1992);
Power Operating company, 15 FMSHRC 931 (May 1993). In l&.ng
Branch Energy, supra, I accepted a penalty petition that was 52
days late involving similar circumstances . The delay in this
case is much shorter . Therefore, I find that the Solicitor has
demonstrated adequate cause for the delay in filing the penalty
petition .

The operator in its motion in opposition states that the
delays in the receipt of the petition have been prej u dicial to
t he operator . However, the operator offers no specific showing
of prejudice beyond its general assertion. I do not find that
the operator was prejudiced by the short delay involved.
In light of the foregoing, it is ORDERED that the late filed
penal ty petition be ACCEPTED .
It is further ORDERED that this case be assigned to
Administrative Law Judge T. Todd Hodgdon.
All future communications regarding this case should be
addressed to Judge Hodgdon at the following address:
Federal Mine Safety and Health
Review Commission
Office of Administrative Law Judges
TWo Skyline Place, suite 1000
5203 Leesburg Pike
Falls Church, VA 22041
Telephone No. 703-756-4570

Paul Merlin
Chief Administrative Law Judge
Distribution :

(Certified Mail)

Donna E. Sonner, Esq.; Office of the Solicitor, u.s. Department
of Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN
37215
M. Kirby Gordon II, Esq., Gordon & Gordon, P.s.c., corporate
Centre, 401 Frederica, P. o. Box 398, Owensboro, KY 42302-0398
/gl
1104

·u.s. Government Printing Office: 1995-387·720/33381