JUNE 1988
COMMISSION DECISIONS
06-06-88
06-29-88

Rivco Dredging Corporation
Quinland Coals, Inc.

KENT 88-27-R
WEVA 85-169

Pg. 703
Pg. 705

CENT 88-40-M
PENN 88-99-R
KENT 88-189-D

Pg. 711
Pg. 713
Pg. 720

PENN 88-107-R
WEST 88-95-M
WEST 86-255-M
LAKE 86-121-R
KENT 88-84-D
WEVA 87-343
WEST 88-145-R
WEVA 88-168
PENN 88-4-D
LAKE 86-35
WEVA 88-90
CENT 88-2
PENN 87-145
WEVA 87-234-R
WEST 86-43-RM
WEST 87-166-R

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

ADMINISTRATIVE LAW JUDGE DECISIONS
06....:03-88
06-06-88
06-08-88
06-10-88
06-13-88
06-13-88
06-14-88
06-15-88
06-20-88
06-20-88
06-21-88
06-21-88
06-22-88
06-22-88
06-24-88
06-24-88
06-27-88
06-28-88
06-30-88

Meramec Aggregates, Inc.
Rushton Mining Company
Secretary of Labor for Orville Sparks v.
Sandy Fork Mining Company
BethEnergy Mines, Inc.
Garrick Gravel Incorporated
Cobblestone, Ltd.
Youghiogheny & Ohio Coal Company
Samuel Griffin v. Energy Producers Assoc.
Consolidation Coal Company
Beaver Creek Coal Company
Davidson Mining Inc.
Patrick J. Burns v. Gary Klinefelter
Zeigler Coal Company
Consolidation Coal Company (Order)
Patch Coal Company
BethEnergy Mines, Inc.
·M.A.E. West, Incorporated
FMC Wyoming Corporation
Western Fuels-Utah, Inc.

722
729

731
739

744
745
758
765
771
773
779
782
804
813
822
832

JUNE
Review was granted in the following cases during the month of June:
Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No.
VA 87-27. (Judge Broderick, April 22, 1988)
Secretary of Labor, MSHA v. Missouri Rock, Inc., Docket No. CENT 87-65-M.
(Judge Broderick, April 29, 1988)
Secretary of Labor, on behalf of Jerry Dale Aleshire and others v.
Westmoreland Coal Company, Docket No. WEVA 84-344-D. (Judge Broderick,
May 10, 1988)
No cases were filed in which review was denied.

COM..fl.1.ISSION DECISIONS

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

June 6, 1988

RIVCO DREDGING .CORPORATION
Docket Nos. KENT 88-23-R
88-24-R
88-25-R
88-26-R
88-27-R

v.

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

BEFORE:

Ford, Chairman; Doyle, Lastowka and Nelson,
Commissioners
AMENDED ORDER

BY THE COMMISSION:
These five cases had been the subject of a Petition for Discretionary Review filed by RIVCO Dredging Corporation on May 9, 1988. On
May 25, 1988, the Secretary filed a response to the same five docket
numbers. On May 26, 1988 this Commission issued an order remanding
the cases.
Upon remand, the administrative law judge noted that Docket No.
KENT 88-27-R had become moot because the Secretary had previously
vacated the citation associated with that docket; Citation No.
2985270. The judge submitted an inquiry to the Commission asking if
his dismissal of KENT 88-27-R was appropriate.

703

In view of the previous vacation of Citation No. 2985270, inclusion of KENT 88-27-R in the Commission's remand order was an
administrative error. Therefore the May 26, 1988 Order is amended
to delete KENT 88-27-R from the matters to be considered by the
judge.

~~
.

.. .- -,)

,. .

·,f/'/(_,j.-7(__,(___.-

{/f, k'
'

Joyce A." Doyle, Commissioner;>

Distribution
Gene A. Wilson, President
Rivco Dredging Corporation
P.O. Box 702
Louisa, Kentucky 41230
G. Elaine Smith, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Road
Suite B-201
Nashville, Tennessee 37215
Dennis Clark, Esq.
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Roy Maurer
Federal Mine Safety & Health Review Commission
5203 Leesburg Pik~, Suite 1000
Falls Church, Virginia 22041

704

t _-e_
.,,

_L(.._,L )' ,

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

June 29, 1988
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEVA 85-169

QUINLA.'t>.ID COALS, INC.
BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners
DECISION

BY THE COMMISSION:
This civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982) ("Mine
Act"), is before us for a second time. In a previous decision, we
remanded the matter to Administrative Law Judge William Fauver for a
determination of whether a violation of 30 C.F.R. § 75.200, the
mandatory roof and rib control standard, was the result of the
unwarrantable failure of Quinland Coals, Inc. ("Quinland") to comply
with the standard. 9 FMSHRC 1614, 1625 (September 1987). The sole
issue before us now is whether the judge, on remand, erred in concluding
that the violation of section 75.200 was the result of Quinland's
unwarrantable failure to comply. 9 FMSHRC 2159 (December 1987) (ALJ).
For the reasons that follow, we affirm.
The underlying facts and procedural history are set forth in
detail in our prior decision (9 FMSHRC at 1614-1617) and may be
sunnnarized here. Quinland owns and operates the Quinland No. 1 Mine, an
underground coal mine located in southern West Virginia. On October 11,
1984, an inspector of the Department of Labor's Mine Safety and Health
Administration ("MSHA") inspected the No. 7 seal located in an entry in
the East Mains area of the mine. 1/ In the entry, near a crosscut, the
inspector observed a large roof fall. As the inspector walked toward
the seal, he observed broken. roof support posts lying on the entry
floor. He also observed cracks in the roof of the entry which ran from
the roof fall to and over the seal. In addition, one side of the seal
was crushed by the weight of the roof. The inspector found that these

lf

The seal was a concrete block bulkhead notched at least six inches
into the ribs and flush with the floor and the roof of the entry. It
was constructed following a methane explosion, and its purpose was to
seal off the area where the explosion occurred from the rest of the
mine. Tr. 21. See also Bureau of Mines, U.S. Department of Interior, A
Dictionary of Mi~g-;-Mlneral, and Related Terms 975 (1968).

705
,•I,

I

conditions constituted a violation of 30 C.F.R. § 75.200, in that the
roof was not adequately supported to protect persons from falls. 2/ The
inspector also found that the violation resulted from Quinland's unwarrantable failure to comply with section 75.200. Accordingly, he
cited the violation in a withdrawal order issued pursuant to section
104(d)(l) of.the Act. ]./ Quinland abated the violation by installing
'];_/
Section 75.200, which restates section 302(a) of the Mirn'! Act, 30
U.S.C. § 862(a), provides in part:
Each operator shall undertake to carry out on a
continuing basis a program to improve the roof
control system of each coal mine and the means and
measures to accomplish such system. The roof and
ribs of all active underground roadways, travelways,
and working places shall be supported or otherwise
controlled adequately to protect persons from falls
of the roof or ribs. A roof control plan and
revisions thereof suitable to the roof conditions
and mining system of each coal mine and approved by
the Secretary shall be adopted and set out in
printed form ••••
(Emphasis added.)
]./

Section 104(d)(l) of the Mine Act states:
If, upon any inspection of a coal or.other mine,
an authorized representative of the Secretary finds
that there has been a violation of any mandatory
health or safety standard, and if he also finds
that, while the conditions created by such violation
do not cause imminent danger, such violation i·s of
such nature as could significantly and substantially
contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds
such violation to be caused by an unwarrantable
failure of such operator to comply with such
mandatory health or safety standards, he shall
include such finding in any citation given to the
operator under this [Act]. If, during the same
inspection or any subsequent inspection of such mine
within 90 days after the issuance of such citation,
an authorized representative of the Secretary finds
another violation of any mandatory health or safety
standard and finds such violation to be also caused
by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an orcier requiring
the operator to cause all persons in the area
affected by such violation, except those persons
referred to in subsection (c) of this section to be
withdrawn from, and to be prohibited from entering,
such area until an authorized representative of the

706

approximately 20 roof support posts in the entry.
Subsequently, the Secretary proposed a civil penalty for the
violation of section 75.200 and Quinland requested a hearing, denying
that it had violated the standard and denying, in the alternative, that
it was guilty of an unwarrantable failure to comply in the event a
violation should be found. Following an evidentiary hearing, the judge
issued a decision in which he-found a violation of section 75.200 but
made no finding as to whether the violation resulted from Quinland's
unwarrantable failure to comply with the standard. 8 FMSHRC 1175, 1178
(ALJ). Reviewing this decision, we concluded that the judge erred in
failing to consider Quinland's challenge to the unwarrantable failure
finding associated with the violation of section 75.200, and we remanded
the matter to the judge. 9 FMSHRC at 1619-23.
In his decision on remand, the judge briefly revjewed the meaning
of the phrase "unwarrantable failure." He noted the discussions of
unwarrantable failure in the pertinent legislative history and in United
States Steel Corp., 6 FMSHRC 1423 (June 1984). The judge opined that
whether the "legislative history definition" of unwarrantable failure or
the United States Steel explanation of unwarrantable failure was
applied, Quinland unwarrantably failed to comply with the standard. 9
FMSHRC at 2160. · The judge found that the roof conditions were highly
dangerous and were known or should have been known to mine management
prior to the inspector's issuance of the order. Id. The judge also
found that the mine foreman was aware that the roof control plan
required broken timbers to be replaced and that some timbers had not
been replaced. 9 FMSHRC at 2160. The judge stated, "the .•• evidence
shows that the violative roof condition was known by [Quinland) or
should have been known by [Quinland) before [the violation was cited),
and the failure to correct this condition was due to an unwarrantable
failure to comply with [section) 75.200." Id.
The judge issued his decision on December 10, 1987. On December
11, 1987, the Commission issued decisions in two cases addressing in
detail the proper interpretation of the term "unwarrantable failure" as
used in section 104(d)(l) of the Mine Act. Based upon the ordinary
meaning of the term, the purpose of unwarrantable failure sanctions
under the Mine Act, the legislative history, and judicial precedent, we
held that unwarrantable failure means "aggravated conduct, constituting
more than ordinary negligence, by an operator in relation to a violation
of the Act." Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987). On
review, Quinland notes that in analyzing the issue of unwarrantable
failure, the judge did not apply the aggravated conduct standard
enunciated in these subsequently issued decisions. Further, Quinland
asserts that in failing to comply with section 75.200, it was "guilty of
no more than ordinary negligence." Q. Br. 6. We do not agree. ·
Secretary determines that such violation has been
abated.
30 u.s.c. § 814(d)(l).

707

Even though the judge did not literally anticipate and apply the
aggravated conduct standard of unwarrantable failure enunciated in
Emery, his treatment of the question of unwarrantable failure in this
case is in accord substantively with that decision. The judge relied
upon the statement in the legislative history that unwarrantable failure
to comply means "the failure of an operator to abate a violation he knew
or should have known existed, or the failure to abate a violation
because of a lack of due diligence, or because of indifference or lack
of reasonable care on the operator's part." Senate Connnittee on Labor,
Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I
Legislative History of the Federal Coal Mine Health and Safety Act of
1969, at 1512 (1975); see also id. at 1602. The judge also relied on
United States Steel, supra, 6 FMSHRC at 1437, wherein we stated that
unwarrantable failure may be proved by showing that a violative
condition or practice resulted from an operator's "indifference, willful
intent or serious lack of reasonable care."
In concluding in Emery that "unwarrantable failure means
aggravated conduct, constituting more than ordinary negligence," we
looked to the same legislative history. 9 FMSHRC at 2002. We further
noted that in Zeigler Coal Co., 7 IBMA 280, 295-96 (March 1977), the
Interior Board of Mine Operations Appeals had interpreted unwarrantable
failure to mean the failure to abate conditions or practices the
operator "knew or should have known existed or which it failed to abate
because of [a lack of] due diligence, or because of indifference or a
lack of reasonable care" and that in drafting the Mine Act, the Senate
Comrilittee report cited Zeigler with approval. Emery, supra, 9 FMSHRC at
2002 (citing S. Rep. 181, 95th Cong., 1st Sess. at 32 (1977), reprinted
in Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2nd Sess. Legislative History of the Federal Mine Safety and
Health Act of 1977, at 620 (1978)). We concluded that the terms used in
the legislative history and in Zeigler, including the formulation used
by the judge in this case, in large measure describe aggravated forms of
operator conduct constituting more than ordinary negligence. 9 FMSHRC
at 2003-04. Thus, we hold that the judge's approach to resolving the
unwarrantable failure issue is sufficiently congruent with the
subsequently announced "aggravated conduct" test to allow us to proceed
to an examination of the evidence supporting the judge's finding.
The next question, therefore, is whether substantial evidence
supports the judge's finding that the violation of section 75.200 was
the result of Quinland's unwarrantable failure. Applying the principles
enunciated in Emery to the case at hand, we hold that it does.
Substantial evidence reveals that the violation was the result of
Quinland's serious lack of reasonable care. The conditions indicating
that the roof was not adequately supported were extensive and visually
obvious. The judge credited the inspector's testimony that, in addition
to the broken posts that had not been replaced and were lying on the
floor of the entry, there was a large roof fall near the intersection of
the entry and the crosscut, there were cracks in the roof running from
the intersection to and over the seal, and one side of the seal was
being crushed by the weight of the roof. 8 FMSHRC at 1178. We have
accepted these findings previously. 9 FMSHRC at 1618.

708

The mine foreman testified without dispute that the mine had a
history of bad roof conditions similar to those involved in this
violation. Tr. 124; 9 FMSHRC at 1618. In addition, the judge concluded
that the roof conditions were highly dangerous, and we agree. 9 FMSHRC
at 2160. Further, Quinland itself acknowledges that the roof conditions
existed "for·a considerable length of time and were repeatedly observed
by ••• the operator." Q. Br. 7. Given the extensive and obvious nature
of the conditions, the history of similar roof conditions, and
Quinland's admitted knowledge of the conditions, we find that Quinland's
failure to adequately support the roof was tne result of more than
ordinary negligence and that substantial evidence supports the judge's
conclusion that the violation resulted from Quinland's unwarrantable
failure. !!_/
One final aspect of the case requires comment. In his decision
the judge affirmed his "previous assessment of a civil penalty for $800"
for the violation. 9 FMSHRC at 2160. The Secretary correctly notes
that the civil penalty previously assessed by the judge was $850, not
$800. S. Br. 8 n.3; 8 FMSHRC at 1180. The Secretary requests that we
correct that inadvertent error. Quinland has not objected.
Accordingly, we affirm the judge's unwarrantable failure finding for the
violation of section 75.200, and we amend the penalty assessment to
$850.

Nelson, Conunissioner

!!_/
Quinland also asserts that prior to October 11, 1984, the
conditions were "repeatedly observed" by MSHA's inspectors but not cited
as a violation of section 75.200. Quinland argues that MSHA's failure
to previously cite a violation is "compelling evidence that [Quinland's]
conduct [was] not negligent." Q. Br. 11. Our review of the record does
not reveal that MSHA's inspectors previously observed the conditions
that were cited as a violation on the date at issue.

709

Distribution
Dennis D. Clark, Esq.
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Anthony J. Cicconi, Esq.
Shaffer & Shaffer
330 State Street
P.O. Box 38
Madison, West Virginia 25130
Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

710

ADMINISTRATIVE LAW JUDGE DECISIONS

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

June 3, 1988

CIVIL PENALTY PROCEEDING

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

Docket No. CENT 88-40-M
A. C. No. 23-00708-05502

v.

Meramec Aggregates, Inc.

MERAMEC AGGREGATES, I~C.,
Respondent
ORDER OF DISMISSAL
Before:

Judge Merlin

On December 11, 1987, the operator's request for a hearing
was received by this Commission. Commission rules require a proposal for a penalty to be filed within 45 days of the date the
Secretary receives a timely notice of contest. 29 C.F.R.
§ 2700.27.
The Solicitor failed to file a penalty petition.
Therefore, on March 17, 1988, an order was issued directing the
Sol.icitor to show cause why this case should not be dismissed.
The order was mailed to the Solicitor by certified mail, return
receipt requested, and the file contains the receipt card from
the Solicitor.
The file indicates that on April 27 my law clerk spoke to
the Solicitor, Mr. Charles Mangum, who stated he would file the
penalty petition or a response to the Show Cause Order on April
28. But he did not do so. The Commission does not have the
resource$ to keep reminding Solicitors to do what the Act and
regulations require.
Oue to the Solicitor's failure to file a penalty petition
and to comply with the show cause order, this case must be and is
hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge

711

Distribution:
Charles Mang~m, Esq., Office of the Solicitor, U. S. Department
of Labor, Room 2106, 911 Walnut Street, Kansas City, MO 64106
(Certified Mail)
Thomas Mascolino, Esq., Counsel, Trial Litigation, Office of the
Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard,
Suite 400, Arlington, VA 22203 (Certified Mail)
Meramec Aggregates, Inc., 445 W. Gravoif, St. Claire, MO
(Certified Mail)

/gl

712

63077

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

JUN 6 1988

.
.
.

RUSHTON MINING COMPANY,
Contestant

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

:
:

.

CONTEST PROCEEDING
Docket No. PENN 88-99-R
Citation No. 2883649i 12/8/87
Rushton Mine
Mine ID 36-00856

DECISION
Appearances:

Joseph Yuhas, Esq., Joseph T. Kosek, Esq., Rushton
Mining Company, Ebensburg, Pennsylvania, for the
Contestanti
B. Anne Gwynn, Esq., Office of the Solicitor,
U. s. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary.

Before:

Judge Weisberger

Statement of the Case
On December 21, 1987, Rushton Mining Company (Contestant)
filed a Notice of Contest contesting Citation No. 2883649 which
had been issued on December 8, 1987. The Secretary (Respondent)
filed its Answer on January 11, 1988, along with a Motion for
Continuance. On January 21, 1988, a Prehearing Order was issued
directing the Parties to inform the undersigned on or before
February 1, 1988, if the Notice Contest will be withdrawn in view
of the Commission's decision in Secretary v. Quinland Coals,
Inc., 9 FMSHRC 1614 (Sept. 1987). It further directed the
Parties, if the Notice of Contest will not be withdrawn, to
confer on or before February 1, 1988, to attempt to settle this
matter, and, in the alternative, to stipulate as to facts and
issues concerning which there is no agreement, and complete
discovery on or before February 1, 1988. On February 2, 1988,
Respondent filed a Motion for Relief to File Interrogatories. On
February 8, 1988, in a telephone conference call initiated by the
undersigned, with attorneys for both Parties, Contestant
indicated it did not have any objection to Respondent's Motion
for Relief to File Interrogatories. The Attorneys indicated that
they would be available the week of February 22, for trial of
this matter.

713

Pursuant to notice, the case was heard on February 24, 1988,
in Hollidaysburg, Pennsylvania. Donald J. Klemick and Albert G.
Gobert testified for the Respondent. Raymond J. Roeder, Horace
C. Pysher, Jerome F. Hewitt, and Chester Switala testified for
the Contestant.
Contestant filed its Proposed Findings of Fact and Conclusions of Law and Brief on April 20, 1988. The Respondent filed
its Post Trial Findings of Fact, Conclusions of Law and Memorandmn on April 25, 1988. Contestant filed a Reply Brief on April
29, 1988. Respondent did not file any Reply Brief.
·
Regulation
30 C.F.R. § 75.1704-2Ca> provides as follows:
In mines and working sections opened on and after
January 1, 1974, all travelable passageways designated
as escapeways in accordance with § 75.1704 shall be
located to follow, as detennined by an authorized representative ·of the Secretary, the safest direct
practical route to the nearest mine opening suitable
for the safe evacuation of miners. Escapeways from
working sections may be located through existing
entries, rooms, or crosscuts.
(Emphasis added.)
Citation
Citation 2883649 contains the following language:
The designated intake escapeway from the 2N-3 002
section to the intake shaft escape facility was not
located to follow the safest, direct practical route.
The escapeway was designated outby from the section to
station 7737, through crosscuts to station 7792, then
inby to the shaft a distance of about 2100 feet. The
safest, direct practical route would be from the
section traveling in a direct route to the shaft of
about 500 feet.
Stipulations
At the hearing the following stipulations were entered into:

714

1. This Administrative Law Judge has jurisdiction over~·
this proceeding. Both the R1.~.shton Mine and Rushton -- ----......_
Mining Company are subject to the jurisdiction of the~....._____
Federal Mine Safety and Health Act of 1977.
_

2. Pennsylvania Mines Corporation is the parent
corporation of Rushton Mining Company. Rushton Mining
Company operates one mine, Rushton Mine.
3. The subject citations were properly served by a
duly authorized representative of the Secretary of
Labor upon an agent of the Contestant at the dates,
times and places stated therein, and may be admitted
into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevance of
any statements asserted therein.
4. The assessment of a civil penalty in this proceeding will not affect Contestant's ability to
continue in business.
5. The annual production of Rushton Mine is six
hundred seventy-six thousand two hundred and thirty-two
tons.
6. The annual production of the Company is one million
three hundred and eighty-one thousand three hundred and
ten tons.
7. The Rushton Mine employs approximately two hundred
and fifty-seven miners.
8. The Contestant demonstrated good faith in the abatement of the citation.
9. Rushton Mine was assessed two hundred sixty-nine
violations over five hundred and eighty-three inspection days during the twenty-four months proceeding the
issuance of the subject citation.
10. The Parties stipulate to the authenticity of their
exhibits, but not to their relevance nor the truth of
the matters asserted therein. (Tr. 5-6.)

715

Fi·ndings of Fact and Discussion
I.
Based upon the Parties' stipulations, I conclu~e that I have
jurisdiction to hear and decide this case, and that the
Contestant is subject to the provisions of the Federal Mine
Safety and Health Act of 1977 and regulations promulgated thereunder.
II.
Contestant at the 2N-3 section of its Rushton Mine designated an escapeway, hereinafter called the Rushton escapeway,
to serve miners working in rooms 11 through 15. This escapeway
runs in a northeasterly direction, makes a 90 degree turn to go
in a northwest direction, makes a go· degree turn to go in a
southwest direction, makes a 90 degree turn to go in a northwest
direction, and makes a 90 degree turn to go in a southwest
direction to the No. 2 shaft which is the nearest shaft for
exiting from the 2N-3 Section. The length of this escapeway is
approximately 1700 feet. According to 40 C.F.R. § 75.1704-2Ca),
escapeways shall follow "· •• the safest direct practical route
to the nearest mine opening suitable for the safe evacuation of
miners." (Emphasis added.) Inasmuch as this escapeway heads in
a northeasterly direction for 12 crosscuts turns left, and then
subsequently returns in a southwesterly direction, parallel to
the direction in which it started, and runs for approximately 15
crosscuts to the mine opening at shaft, No. 2, it clearly can not
be found to be a "direct" route. To find otherwise would violate
the clear.meaning of the word "direct" as defined in Webster's
New Collegiate Dictionary, (1979 editions) as: "la: proceeding
from one point to another in time or space without deviation or
n
interruption: straight b: proceeding by the shortest way •
As such, it must be found that Contestant herein violated
section 75.1704-2Ca), supra.
III
Contestant, iq abatenent, upon consultation with MSHA,
designated the MSHA escapeway to be the escapeway for the 2N-3
Section. The MSHA escapeway runs for approximately 500 feet to
the No. 2 shaft, and contains only one jog and this jog is less
than 90 degrees. The MSHA escapeway has signs and was not noted
to have any problems with its roof or floor.
In essence, Contestant maintains that the Rushton escapeway
is the safest route to the nearest mine opening. The Rushton
escapeway is located in an intake entry. In contrast, the MSHA
escapeway depends for air upon lea~age in a hole around a door
located in the escapeway. The volume of air entering the MSHA
escapeway, through the closed door, was measured by Donald J.

Klemick, a MSHA Coal Mine Inspector, at approximately 1100 cubic
feet. Klemick and Raymond G. Roeder, a professional engineer and
Contestant's Mine Manager, disagreed as to whether the 1100 cubic
feet a minute measured was enough air for the escapeway. However, althoug.h the Rushton escapeway would clearly have more air,
I find that the MSHA escapeway satisfies the requirement of
30 C.F.R. § 75.1707, inasmuch as it is ventilated with intake
air.
Roeder and Horace c. Pysher, Contestant's Section Foreman
and Safety Inspector 'l'rainer, at the date the Citation was
issued, testified, in essence, that in the event the door in the
MSHA escapeway would be left open as the result of miners leaving
in haste, this would have a substantial impact upon two other
sections of the mine that depend upon the intake air from shaft
No. 2. Klemick and Pysher explained that with the door in the
MSHA escapeway open, there· will be much less resistance to intake
air from the No. 2 sha.Et which is in very close proximity and
which would reduce the flow to the other two sections. _However,
neither Klemick nor Pysher nor any other witness stated with
specificity the quantity of air that will be lost to the other
sections as a consequence of a door being left open in the MSHA
escapeway. I thus find that there was no basis to conclude that,
with the MSHA escapeway door left open in an emergency, there
would be either a substantial or significant reduction of air in
other sections.
Respondent's witnesses, including miners Jerome.F. Hewitt
and Chester Switala, the UMW Mine Safety Committee Chairman and
Mine UMW Safety Committeemen respectively,·testifieci, in essence,
that in all Contestant's·other escapeways, miners are trained to
escape in an outby direction. Thus, in their opinion, confusion
would result at the MSHA escapeway which . .requires.miners to
escape in an inby direction. In their opinion, this problem was
further exacerbated by the fact that miners are not assigned to
2N-3 section on a regular basis, and are sent there only when
work is not .feasible in their original sections. I find that the
record is devoid of any empirical data to support this opinion
testimony and accordingly find it to be speculative.
Roeder indicated that the MSHA escapeway is unsafe as it is
routed through the working sections 11 to 15, which contain
various equipment and where there is the potential for.a fire.
He thus opined that a miner would have to go through the smoke to
get to the escapeway. In contrast, Roeder indicated that with
the Rushton escapeway one would enter the air intake entry and
thus escape from the smoke. However, as brought out in crossexamination, it is clear that a miner working in a room in this

717

section would similarly have ..to traverse any working rooms that
are positioned between his location and the Rushton excapeway, in
order to enter the Rushton escapeway. It thus would appear that
the same hazards of using tha MSHA e~capeway would apply equally
to the use of- the Rushton escapeway.
·
In addition, Roeder indicated that the Rushton escapeway is
the shortest of all the escapeways at Contestant's mine and that
Contestant has never been cited for the length of its escapeways,
including those that are over 10,000 feet. Also, Pysher has
noted that due to the proximity of the No. 2 shaft, the door in
the MSHA escapeway would be difficult to open while carrying a
stretcher, due to the pressure on the door. Be also opined that
the 6 inch pipe placed below the roof, which is 5 feet above the
floor, would unduly impede the progress of a stretcher-bearer.
Also, Switala asserted that the Rushton escapeway provides more
alternative avenues of escape.
I conclude that the Rushton escapeway was violative of
section 75.1704-2(a), as it was not a direct route to the shaft.
In the event a hazard necessitating escape from the section, it
is clear that an indirect route containing three 90 degree jogs
and doubling back on itself, is a greater impediment to a speedy
exit from a dangerous situation as opposed to the MSHA escapeway,
which is direct and less than one third of the distance of the
Rushton escapeway. As such, it must also be considered to be the
"safest" within the purview of section 1704-2(a), supra.
IV.

Klemick testified that the use of the Rushton escapeway, as
it is longer than the MSHA one, could result in a fatality by a
miner being exposed to smoke or could result in falls occasioned
by the rush to leave a dangerous situation. However, in essence,
he indicated that in the absence of specific information, as to a
specific hazard, it would be difficult for him to tell what would
occur if one would have to use the Rushton escapeway. As such, I
must find that the Respondent has not met its burden in establishing that the violation herein is to be considered significant
and substantial (see Mathies Coal Co. 6 FMSHRC 1 (January 1984)).

718

ORDER
Citation No. 2883649, dated December 8, 1987, is modified in
that it is found to be not significant and substantial. In all
other aspects it is affirmed.

~~
Avram Weisberger
Administrative Law Judge

Distribution:
Joseph Yuhas, Esq., Rushton Mining Company, P.
Ebensburg, PA 15931 (Certified Mail)

o. Box 367,

B. Anne Gwynn, Esq., Office of the Solicitor, u. S. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
dcp

719

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

JUN 8 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF ORVILLE SPARKS,
Complainant
v.
SANDY FORK MINING COMPANY,

.
.
.
.:
.
.
.:

DISCRIMINATION PROCEEDING
Docket No. KENT 88-189-D
BARB CD 87-18
No • 10 Mine

ORDER OF DISMISSAL
Before:

Judge Weisberger

This matter is before the Administrative Law Judge upon the
Parties' Joint Motion to Approve Settlement and Petitioner's
Motion to Approve Settlement and Motion of Dismiss.
Upon consideration of the stipulation of the Parties and the
Motions filed herein, the Administrative Law Judge, being fully
advised, finds that the Settlement between the Parties should be
approved and the case should be dismissed.
It is therefore ORDERED that the Respondent comply with the
terms of the Settlement which have not already been carried out
and that the case herein is DISMISSED.

~~
Avram Weisberger
Administrative Law Judge

720

Distribution:
G. Elaine Smith, Esq., Office of the Solicitor, u. s. Depar~~ent
of Labor, 2002 Richard Jones Road, Suite B201, Nashville, TN
37215 CCerti~ied Mail)
Tony Oppegard, Esq., Appalachian Research and Defense Fund of
Kentucky, P. o. Bo~c 360, Hazard, KY 41701 (Certified Mail)
William A. Hayes, Esq., Hayes and Tingley, Suites 202-204,
Peoples Building, P. 0. Box al7, Middlesboro, KY 29065
(Certified Mail)
dcp

721

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
/

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

.

JUN 101988

.
.
.
.
.
.
.
.
.

BETHENERGY MINES, INC.,
Contestant

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

CONTEST PROCEEDING
Docket No. PENN 88-107-R
Order No. 2878578; 12/8/87
Cambria Slope Mine No. 33
Mine ID 36-00840

DECISION
Appearances:

Howard K. Agran, E$q., Office of the Solicitor,
u. S. Department of Labor, Philadelphia,
~ennsylvania, for the Secretary;
R. Henry Moore, Esq., Buchanan Ingersoll, P.C.,
Pittsburgh, Pennsylvania.

Before:

Judge Weisberger

Statement of the Case
In this proceeding, BethEnergy Mines, Inc., (Contestant)
seeks to contest a section 104Cd)(2) Order issued on December 9,
1987. The Notice of Contest was filed on January 4, 1988, and
the Answer of the Secretary (Respondent) was filed on January 25,
1988. Pursuant to notice, the case was heard in Hollidaysburg,
Pennsylvania, on February 25, 1988. Samuel J. Brunatti and
Joseph o. Hadden, Jr. testified for Respondent. William H.
Radebach and.John Gallick testified for Petitioner.
Contestant filed its Brief on April 21, 1988 and the
Respondent filed its Findings of Fact and Conclusions of Law on
April 25, 1988.
Stipulations
The Parties stipulated the following facts as set forth in
Contestant's Prehearing Memorandum:
1. The Cambria Slope Mine No. 33 is owned and operated
by BethEnergy.

722

2. The Administrative Law Judge has jurisdiction over
this proceeding; BethEnergy and Mine No. 33 are subject
to the jurisdiction of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. §§801 et seq.
3. The annual production of Mine 33 is approximately
1.7 million tons. The operator's annual production is
approximately 6 million tons.
4. The authenticity of the exhibits at hearing is
stipulated, but no stipulation is made as to the facts
asserted in such exhibits.
5. The subject order was properly served by a duly
authorized representative of the Secretary of Labor
upon agents of BethEnergy and may be admitted into
evidence for the purpose of establishing its issuance
and not for the truthfulness or relevancy of any statement asserted therein.
(Respondent's Prehearing
Memorandum P. 2-3, Tr. 9-10.)

6. That no clean intervening inspection had occurred since
the issuance of the June 25, 1985, section 104Cd) Order on
which the section 104Cd>C2> Order was based.
(This stipulation is contained in Contestant's Letter of March 1,
19 88. )
Regulatory Provision
30 C.F.R. § 75.316 provides as follows:
"A ventil::i.tion system and methane and dust c.ontrol
plan and revisions thereof suitable to the conditions
and the mining system of the coal mine and approved by
the Secretary shall be adopted by the operator and set
out in printed form on or before June 28, 1970. The
plan sh~ll show the type and location 6f mechanical
ventilation equipment installed and operated in the
mine, such additional or improved equipment as the
Secretary may require, the quantity and velocity of air
reaching each working face, and such other information
as the Secretary may require. Such plan shall be
reviewed by the operator and the Secretary at least
every 6 months."

723

Approved Ventilation Plan
Page 7 of the approved plan as pertinent provides as
follows:

* * *
In addition to the other information required to
be shown on the map, the following shall also be shown:

* * *
2. All stopping, regulators, overcasts,
undercasts, air-lock and man doors.
Revision No. 29 approved August 24, 1987, provides as
pertinent as follows:
Construction of Regulators
"Regulators are constructed of concrete
blocks or steel or a combination of both."
Order No. 2878578
Order No. 2878578 issued on December 8, 1987, provides as
follows:
The approved ventilation and methane and dust control plan was not being complied with in the 1
West C prime area of the mine in that an intake
regulator constructed of brattice cloth was placed
across the 1 West left side intake entry just inby
the junction of the No. 7 entry of left. The
operator has no approval to construct air intake
regulators at this location. The operator was
previously notified that prior to constructing
intake regulators prior approval must be obtained
from the District Manager. The operator's
approved plan state~ regulators will be constructed of concrete blocks or steel or a
combination of both, not canvas. This area is
examined each week by a cartif ied person.
Findings of Fact and Conclusions of Law
Based upon the stipulation of the Parties, I conclude that
Contestant is subject to the jurisdiction of the Federal Mine'
Safaty and Health Act of 1977, 30 U.F.C § 801 et seq., and that I
have jurisdiction over this proceeding.

724

I.
William H. Radebach, who was responsible for all the underground work at Respondent's C prime seam, testified, in essence,
that sometime in September of 1987, there was too much air going
up the No. 4 intake entry. Accordingly, he installed a curtain
with an opening of approximately 2 feet by 3 feet in the upper
right hand corner in order to decrease the amount of air going up
this entry. The ventilation plan in affect, when the curtain was
installed, and when it was observed by MSHA Inspector Samuel J.
Brunatti, on December 9, 1987, did not indicate any regulator,
door, or check curtain at the site where Radebach installed the
curtain in question.
It is Contestant's position, as testified by Radebach, that
the curtain in question was installed only as a temporary measure
pending approval of permanent stoppings in entry No. 4, which had
been submitced to MSHA for approval on October 29, 1987. John
Gallick, the Director of Safety for Respondent's Pennsylvania
Division, testified, in essence, that temporary curtain checks
are usually installed at the discretion of the foreman, as there
are always daily adjustments being made. Essentially he indicated that subsequent to the installation of temporary curtains,
submissions are provided to MSHA at the next six month ventilation plan review. On cross-examination, Brunatti indicated that
he agreed that temporary canvas curtains in the work face can be
moved in the course of the day without prior approval, and that
if a regulator would have to be repaired a temporary curtain
could be installed without prior approval of MSHA.
The ventilation plan for Respondent, as indicated in
Government Exhibit 2, required all regulators· to be shown on the
Ventilation Plan Map. The plan does not contain· any definition
of the term regulator nor is such a term defined in the regulations. ~he only definition in the record of the term regulator
consists of the uncontradicted testimony of Brunatti and Joseph
D. Hadden, Jr., MSHA's District Chief of Ventilation. Brunatti
indicated that a brattice curtain or check redirects air from one
entry to another, whereas a regulator is used to control the
amount of air going through it by its opening and closing. (Tr.
24) In similar fashion, Hadden stated that a regulator provides
an artificial resistance in an air course, (Tr. 127), and is
designed to provide uniform distribution of air in sections (Tr.
139). Radebach also indicated that among other devices canvas
checks are used to regulate air CTr. 181). Also the MSHA
Training Manual, Government Exhibit 8, indicates that a regulator
can be made by tacking down one corner of a check curtain.

725

Accordingly, I find that the check curtain in question,
installed with one corner down in order to decrease the flow of
air in the No. 4 entry, was a regulator. Inasmuch as the curtain
in question was placed at a position that was not approved for
the placement of a regulator in the ventilation plan that was in
effect, I find that there was a violation of the ventilation plan
and hence of section 75.316, supra.
In reaching my decision, I did not place much weight upon
Respondent's argument that the check curtain in question was only
temporary, and that temporary curtains do not have to be shown on
a ventilation plan. Gallick's testimony is to the effect that,
in general, temporary checks are installed at the discretion of
the foreman (Tr. 242), and thus are not required to be noted in a
ventilation plan. I find that Brunatti's testimony clarifies
that temporary curtains can be moved and installed on a regular
basis when they are utilized at the working face where coal is
actually being mined (Tr. 23, 57). He also indicated that temporary curtains could be installed at the site of a regulator if
the latter is being· repaired (Tr. 82, 87).
In contrast, the
curtain in question was installed approximately 5,000 feet from
the working face. Al8o, there is a doubt as to whether the
instant canvas curtain was only temporary.
I note that Radebach
indicated, on cross-examination, that it was intented to leave
the curtain in question" in place "forever" ir necessary or until
MSHA had approved his plan for a permanent stopping.
(Tr. 203)

II.
Brundtti also found the canvas curtain in question to be
violative of a provision of the plan, Government Exhibit 4, which
is headed "construction of regulators" and which provides that
"Regulators are constructed of concrete blocks or steel or a
combination of both." Radebach testified that MSHA employee Alex
O'Rourke, upon reviewing Contestant's proposals concerning
construction of regulators, indicated, in essence, that MSHA's
concern was directed to the regulators used to control the return
air on working sections.
(Tr. 183) Gallick indicated when he
met with O'Rourke, pursuant to a MSHA's request to present
language concerning the construction of regulators, there was no
discussion with regard to temporary regulators and the examples
used at the diocussion related to split regulators. He said that
it was not contemplated that the language in Government Exhibit 4
was to include temporary regulators. However, for the reasons I
set forth above, (infra I.), I have concluded that the curtain in
question was a regulator. As such, the unqualified language of

726

the plan, as evidenced by Government Exhibit 4, required it to be
constructed of either concrete blocks or steel or both.
Inasmuch
as the curtain in question was constructed of canvas it violated
the approved ventilation plan.
III.
It is the position of the Respondent, that the violation
herein was significant and substantial. Respondent's witnesses
indicated that the installation of the curtain in question, with
only an approximately 2 feet by 3 feet opening, along with the
fa6t that the other entries in the section are closed off, could
have the effect of decreasing the air in the gob area to the
point where there would be insufficient air to vent the methane
there.
In this connection, reference is made to testimony that
Contestant's ffiine produces the most methane in the State of
Pennsylvania. Also, Respondent cites testimony to the effect
that the curtain herein, due to its canvas construction, is
susceptible of becoming dislodged or knocked down in a rib roll
or roof fall.
It thus is argued that should it be dislodged it
would have the effect of reducing the air available to ventilate
the gob area between No. 2 West and No. 1 West Sections.
I conclude that the hazard of an accumulation of methane
from the gob area, is contributed to by the installation of the
curtain herein. However, I find tnat there was insufficient
evidence to conclude that there is a "reasonable likelihood that
the hazard contributed to will result in injury."
(Mathies Coal
Company 6 FMSHRC 1, 3-.i (January 1984); (See also, Texas Gulf,
Inc. 10 FMSHRC (Slip. op. April 20, 1988)). I note, in this
connection, that the Respondent has failed to introduce any
evidence as to either the specific amount of methane in the gob
area, or any measurement of air flow subsequent to the installation of the curtain in question. The only evidence with regard
to methane, consists of Brunatti's statements, on cross-examination, that, based on an auto tester when he was in the area in
question, he concluded that the methane was not in excess of one
percent. He did not indicate the specific measurement of the
methane. In addition, any li~elihood of an explosion is minimized by the fact that on the date in question, mining was no
longer being performed in the No. 1 West Main Section. I thus
conclude that the violation herein was not significant and
substantial (see Mathies Coal Company, supra).

IV.
Respondent's position, that the violation herein was caused
by Contestant's "unwarrantable failure," appears to be predicated
upon the opinion of Brunatti that, in essence, the installation
of the curtain in question, was a device identical to that
requested by Respondent in its letter of October 29, 1987, and
not accepted by MSHA on November 19, 1987, (Government Exhibit 5).

727

Also cited by Respondent is the testimony of Radeback agreeing
that the regulators in use in No. 1 West Section on December 9,
did not meet the terms of Government Exhibit 4, which sets forth
the construction requirements of regulators CTr. 200).
Respondent avers that accordingly contestant instal~ed the
curtain in question knowing it did not comport with Government
Exhibit 4. In addition, Respondent argues that Contestant's
witnesses acknowledged that the ventilation plan does not contain
any provisions permitting the installation or erection of such a
temporary curtain.
In the recent case of Emery Mining Corporation 9 FMSHRC 1997
(December 1987), the Commission held that "unwarrantable failure,"
is more than ordinary negligence and requires "aggravated conduct."
I find the testimony of Contestant's witnesses to be credible and I
conclude that they acted in good faith, although in error, in
interpreting the ventilation plan in question as not requiring
prior approval by MSHA of the installation of temporary curtains,
such as the one in question. Accordingly, I find that Contestant's
violation of the section 316, supra, and the ventilation plan was
not as a result of its aggravated conduct. Further, I find the
testimony of Contestant's witnesses to be credible and find that
they acted in good faith in interpreting the ventilation plan
herein as not requiring a temporary curtain regulator to be constructed of either concrete block or steel as set forth in
Government Exhibit 4. Accordingly, I conclude that Contestant's
action herein did not constitute an unwarrantable failure.
ORDER
It is ORDERED that Citation No. 2878578 issued on December
9, 1987, be modified to a section 104(a) Order and to reflect
that it is not significant and substantial and is not caused by
Contestant's unw~rrantable failure.
In all other respects the
Citation is affirmed.

~~

Avram Weisberger
Administrative Law Judge
Distribution:

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 600 Grant Avenue,
75th Floor, Pittsburgh, PA 15219 (Certified Mail)
Howard K. Agran, Esq., Office of the Solicitor, u. s. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified-Mail)
dcp

728

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

v.

.
.
.

JUN 131988

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-95-M
A.C. No. 24-01804-05502
Garrick Gravel

GARRICK GRAVEL INCORPORATED,
Respondent
DECISION
Appearances:

Before:

Margaret A. Miller, Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
No api;>earance was made on Respondent's behalf.

Judge Cetti

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges Respondent with violation
of three safety regulations promulgated under Federal Mine Safety
and Health Act, 30 u.s.c. § 801 et seg., (the Act).
This proceeding was initiated by the Secretary with the
filing of a proposal for assessment of a civil penalty in the
amount of $119 for each of the three violations in the total
amount of $357. The Respondent filed a timely appeal admitting
the violations alleged in the three citations but contesting the
amount of the proposed penalties.
After notice to the parties by certified mail as to time and
place of hearing, a hearing was held in the above-captioned case
on May 10, 1988. The Secretary was represented by Margaret A.
Miller, Esq., Office of the Solicitor, U.S. Department of Labor.
No one appeared on behalf of Respondent.
The secretary's request that the record be opened to present
documentary and oral evidence was granted.
Richard c. Ferreira, a mine inspector employed by MSHA,
inspected the Garrick Gravel plant on September 15, 1987. As
a result of that inspection he issued Citation Nos. 2649490,
2649491 and 2649492 to the Respondent, Garrick Gravel Incorporated, for the violation of 30 C.F.R. § 56.12001, § 56.12025
and § 56.12013.

729

At the hearing oral and documentary evidence was presented
fully justifying the $119 proposed civil penalty for each of the
violations. The mine inspector testified that at no time during
his September 1987 inspection was anyone told that no penalties
would be assessed on the violations.
On May 16, 1988 the undersigned Judge issued a notice of
intention to issue a decision to uphold the violations and assess
the Secretary's proposed civil penalty of $119 for each of the
three violations in the total amount of $357 unless good cause
to the contrary be shown in writing within 10 days. No response
to the notice of intention has been received.
In concluding that the Secretary's proposed $119 penalty
for each of the violations is the appropriate penalty, I have
considered the criteria set forth in Section llO(i) of the Act.
CONCLUSIONS OF LAW
1.

The Commission has jurisdiction to decide this case.

2.

Respondent violated the mandatory safety standard
30 C.F.R. § 56.12001 as alleged in Citation No. 2649490.

3.

Respondent violated the mandatory safety standard,
30 C.F.R. § 56.12025 as alleged in Citation No. 2649491.

4.

Respondent violated the mandatory safety standard,
30 C.F.R. § 56.12013 as alleged in Citation No. 2649492.

5.

The appropriate penalty for each of the violations is
$119.
ORDER

Citations Nos. 2649490, 2649491, 2649492 are affirmed and
the Respondent is ordered to pay a civil penalty of $357.00 to
the Secretary within 30 days of the date of this decision.

~~

st F. Cetti
nistrative Law Judge
Distribution:

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street
Denver, CO 80294 (Certified Mail)
Mr. Norman L. Garrick, President, Garrick Gravel Incorporated,
P.O. Box 2966, Missoula, MT 59806 (Certified Mail)
730

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

JUN 131988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
COBBLESTONE, LTD.,
Respondent

CIVIL PENALTY PROCEEDINGS

.
.
.
..

Docket No. WEST 86-255-M
A.C. No. 05-03950-05503
Docket No. WEST 87-25-M
A.C. No. 05-03950-05504
Triangle One Mine

DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Mr. Leonard w. Lloyd, Owner, Cobblestone, LTD.,
Pagosa Springs, Colorado
pro se.

Before:

Judge Cetti

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges Cobblestone LTD. (Cobblestone)
with violating five safety regulations promulgated under the
Federal Mine Safety and Health Act, 30 u.s.c. § 801 et seq., (the
Act). These cases are before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to Section
105(d) of the Act.
Threshold Issue:
Respondent raises a threshold issue·of jurisdiction which
could be depositive of these proceedings. Respondent contends
that he was not engaged in inters.tate commerce and therefore the
Mine Safety and Health Administration (MSHA), is without jurisdiction over his activities at his gravel pit, particularly on
the date of inspection through the date set for abatement.
Respondent contends that the Secretary failed to establish that
the activities in which respondent was engaged at the time of
inspection affected interstate commerce.
The gravel pit in question is a family owned and operated
enterprise. The owner, Mr. Lloyd, testified that he operates the
pit with the help of his son, daughter and wife. He does 90
percent of his own labor. His only employee works part time.

731

Mr. Lloyd testified that he purchased the ten acres on which
the pit is located solely for the purpose of building a family
residence.
Some years later he discovered a gravel deposit on
the-property and commenced extracting crushing and stock piling
gravel. He extracts and crushes rock only when the weather
permits. However, he is open all year round for sale of his
stock piled gravel products to various contractors. Cobblestone's gross volume averages a little over $100,000 a year.
It
uses United States mail and telephones in its business
operations.
The primary product is crushed gravel from four-inch minus
to three-quarter inch minus which is used for sub road and top
road base. The contractors haul the purchased gravel from the
site in their own trucks. Cobblestone has never delivered any of
its products. The pit is located a little over a quarter of a
mile from the public road.
There are two loaders on the property. The primary loader
is a Michigan 275B rubber tire loader. Other equipment used at
the site are a 955 Caterpillar, a D-8 Caterpillar and several
crushers including a jaw crusher, and a roller crusher.
Respondent's gravel pit and crush stone operation is a mine
within the meaning of the Act. Section 3Ch>C1> of the Act reads
in part as follows:
"Coal or other mine" means (A) an area of land from which
minerals are extracted in nonliquid form ••• CB) private
ways and roads appurtenant to such area, and CC) lands,
excavations, ••• workings, structures, facilities, equipment, machines, tools, or other property ••• on the surface
or underground, used in, or to be used in, or resulting
from, the work of extracting such minerals from their
natural deposits in nonliquid form, ••• or used in, or to
be used in, the milling of such minerals •••
Respondent was extracting minerals Crock) from their natural
deposit in nonliquid form, crushing it, and stock piling it for
sale to various contractors throughout the year. Thus it is
clear that respondent's gravel pit and crushed stone operation is
a "mine" as defined in§ 3(h)(l) of the Act.
Cobblestone, however, contends that it was not engaged in
interstate commerce and therefore MSHA had no authority or jurisdiction to issue the citations in question on May 14, 1986.
Respondent's contention is based upon the owners unrebutted
testimony that on the date of inspection he was crushing and .
producing gravel solely for his own personal use on the mile and
a half roadway which he maintains all year round on the property
where he has his family residence and the gravel pit. The owner

732

testified that his production of gravel for his own personal use
from May 12 to May 28, 1986, was not an isolated incident. Each
year since he commenced operating the pit, approximately six
years ago, he has produced gravel for his personal use on the
driveway to his residence and on his gravel haul road.
Cobblestone also presented evidence that the gravel pit
had been closed for production of gravel for commercial purposes
since the Fall of .1985. The owner operator testified that he
planned not to reopen the pit for production of gravel for
commercial sale until June 9, 1986 and had so notified the MSHA
Regional Office in Grand Junc~ion, Colorado. This is reflected
in MSHA's records.
Looking first to the Act itself, Section 4 for the Act
states that:
"Each coal or other mine, the products of which enter
commerce, or the operations or products of which affect
commerce, and each operator of such mine and every miner in
such ·mine shall be subject to the provisions of this Act."
"Commerce" is defined in section 3{b) of the Act as follows:
"Trade, traffic, commerce, transportation or communication
among the several states, or between a place in a state and
any place outside thereof, or within the District of
Columbia, or a possession of the United States, or between
points within the same state but through a point outside
thereof."
The use of the phrase "which affects commerce: in Section 4
of the Act, indicates the intent of Congress to exercise the full
reach of its constitutional authority under the commerce clause.
See Brennan v. OSHRC, 492 F.2d 1027 {2nd Cir. 1974); U.S. v. Dye
Construction Co., 510 F.2d {10th Cir. 1975); Polish National
Alliance v. NLRB, 322 U.S. 643 {1944); Godwin v. OSHRC, F.2d 1013
{9th Cir. 1976).
On reviewing the relevant case law, I conclude that Respondent's contention that MSHA had no authority to issue the
citations on the day of the inspection {May 14, 1986) because at
that time he was producing gravel only for his personal use is
contrary to the prevailing law. United States Supreme Court has
ruled that a farmer growing wheat solely for his own needs
affects interstate commerce. The Court stated that while the
farmer's contribution to the demand for wheat may be insignificant by itself the cumulative impact of all such production by
others similarly situated is significant and has an impact on
interstate commerce. See Wickard v. Filburn, 317 U.S. 111, 128,
Cl942); Fry v. United States, 421 U.S. 542, 547 (1975).

733

Even though no evidence was presented to show that the
gravel respondent produced for sale to contractors was or was not
used solely intrastate, nevertheless it may reasonably be
inferred that even intrastate use of the gravel would impact upon
the interstate market. It is also reasonable to infer that some
of the equipment respondent· was using such as the 955
Caterpillar, the D-8 Caterpillar and the Michigan 275B rubber
tired loader were manufactured outside the respondent's home
State of Colorado.
It has been held that use of equipment that
has been moved in interstate commerce affects commerce. See
United States v. Dye Construction Co., 510 F.2d 78, 82 (1975).
It has been stated that accidents in mines disrupts
production and causes loss of income to operators which in turn
impedes and burdens commerce. See 30 u.s.c. Section 801Cf).
Thus any disruption of a mines operations in safety and health
hazards affects interstate commerce. See Marshall v. Kilgore,
478 Supp. 4~ Marshall v. Bosack, 463 F. Supp. 800. The United
States Supreme Court in Donovan v. Dewey, 452 U.S. 594, 602
(1981) stated "As an initial matter, it is undisputed that there
is a substantial federal interest in improving the health and
safety conditions in the Nation's underground and surface mines.
In enacting the statute, Congress was plainly aware that the
mining industry is among the most hazardous in the country and
that the poor health and safety record of this industry has
significant deleterious effects on interstate commerce."
It is concluded that under prevailing law the operations
and prof its of Cobblestone affect interstate commerce and that
its operation is subject to the provision of the Act.
Docket WEST 86-255-M
Citation No. 2634705
This citation charges Cobblestone with a violation of 30
C.F.R. § 56.15002 which provides as follows:
All persons shall wear suitable hard hats when in or
around a mine or plant where falling objects may create
a hazard.
. The Mine Safety inspector during his inspection of May 14,
1986, observed that Respondent's part time employee, Mr. Hagar,
was not wearing a hard hat while operating the jaw crusher. The
inspector testified that the intake opening at the top of the jaw
breaker where the material is dumped did not have a screen.
Consequently, when some of the stones dumped into the top opening
were pinched by the jaws and flew up in the air there was nothing
to prevent the stones from falling on the operator's unprotected
head.

734

The part-time employee was observed again on May 28th
working in the plant area without a hard hat.
At that time the
citation was replaced by a 104Cb) noncompliance order. Thereafter the employee wore a hard hat. Both the citations and the
noncompliance order state that only one person was affected by
the violation.
On the basis of the mine inspectors testimony it is found
that at the time of the inspection the operator of the jaw
crusher was not wearing a suitable hard hat while operating the
jaw crusher.
It is therefore concluded that there was a
violation of 30 C.F.R. § 56.15002.
The appropriate penalty for each citation will be discussed
below under the heading penalty.
Citation No. 2634707
This citation charges respondent with the violation of
30 C.F.R. § 56.15003 provides as follows:
All persons shall wear suitable protective footwear when
in or around an area of a mine or plant where a hazard
exists which could cause an injury to the feet.
During the May 14, 1986 inspection Roy Trujillo, the MSHA
mine inspector, observed the owner-operator wearing a pair of
tennis shoes while working in and around an area of the plant
where there was a hazard from falling rocks that could cause
injury to his feet.
The mine inspector presented evidence that
tennis shoes were not a suitable protective footwear when a
person is in or around an area of the mine or plant where such a
hazard exists.
§

The evidence presented establish a violation of 30 C.F.R.
56.15003.

On May 28, 1986, the citation was replaced by a 104Cb>
noncompliance order. The citation and the 104Cb) noncompliance
order were terminated June 17, 1986.
Citation No. 2634706
§

The citation charges respondent with a violation of 30 C.F.R.
56.12028 which provides as follows:
Continuity and resistance of grounding systems shall be
tested immediately after installation, repair, and modificationi and annually thereafter. A record of the resistance measured during the most recent tests shall be
made available on a request by the Secretary or his duly
authorized representative.
735

This citation states that "a continuity and ground resistance test hadn't been performed this year since the operator
started". The mine inspector presented undisputed testimony that
the required test had not been performed.
On May 28, 1986, the mine inspector replaced the citation
with a 104Cb> noncompliance order because the operator failed to
have records showing the resistance of the grounding system.
The operator testified that the test was made as soon as he
could get a qualified person to make the test. The citation was
terminated June 17, 1986.
§

The evidence presented established a violation of 30 C.F.R.
57.12028.

Citation No. 2634737
This citation charges the operator with a violation of 30
C.F.R. § 57.14001 which provides as follows:
Gears; sprockets; chains; drive, head, tail, and takeup
pulleys; flywheels; couplings; shafts; sawblades; fan
inlets; and similar exposed moving machine parts which
may be contacted by persons, and which may cause injury
to persons, shall be guarded.
The mine inspector presented evidence that there was no
guard on the V-Belt drive for the jaw crusher's electric motor.
The belt was opposite the bull wheel inby the ladder used to
climb to the crusher platform. The absence of the guard created
a pinch point hazard. The pinch point was located five feet four
inches above the ground.
The evidence presented establish a violation of § 57.14001.
At the time of his re-inspection the mine inspector observed
that the operato~ had not installed a guard for the V-Belt drive
on the jaw crusher. He therefore replaced the citation with a
104(b) noncompliance order.
The violation was corrected and terminated on June 17, 1986.
Docket No. WEST 87-25-M
Citation No. 2634736
§

Respondent was charged with a violation of 30 C.F.R
56.12032 which provides as follows:
Inspection and cover plates on electrical equipment and
junction boxes shall be kept in place at all times except
during testing or repairs.
736

The mine safety inspector presented evidence that the cover
was missing on the junction box for the electric motor that
drives the jaw crusher.
It was undisputed that a big rock had
fallen and smashed the junction box. The electrical connection
within the junction box was exposed to the weather.
On the re-inspection of May 28, 1986 the mine inspector
observed that the junction box still did not have a cover. Consequently, he replaced the citation with a 104Cb) noncompliance
order. The violation was terminated on June 17, 1986. On July
7, 1986, the citation was modified by MSHA from a significant and
substantial to a non significant and substantial violation.
§

The evidence presented established a violation of 30 C.F.R.
56.12032.
Penalties

Section llO(i) of the Act mandates Commission consideration
of six criteria in assessing appropriate civil_penalties:
Cl) the operator's history of previous violations; (2) the
appropriateness of the penalty to the size of the business of the
operator; (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) whether good faith was demonstrated in attempting to achieve prompt abatement of the
violation. 30 u.s.c. § 820Ci).
The parties stipulated to the small size of the operator's
business. This stipulation is appropriate and ·accepted.
It was
a small family enterprise with the operator performing most of
the work with the help of his family and only one part-time
employee.
The record reflects the operator has at least a moderate
history of previous violations.
The operator testified as to his substantial financial
obligations including the payment of a heavy mortgage on the
equipment and property. Nevertheless, I find no persuasive
evidence that the imposition of authorized penalties would adversely affect respondent's ability to continue in business.
The operator was negligent in failing to comply with the
standard alleged in each of the citations. Although there was no
accident or injury during the years the respondent operated the
gravel pit, the violations if continued unabated could have
resulted in serious injury.
In determining the appropriate penalty I have also taken
into consideration that most of the work was performed by the
operator himself and that each of the citations reflect that only
one or two persons were affected by the violations.
737

The operator's failure to promptly abate the violations
during the period of time from the May 14th inspection to the May
25th reinspection is serious. However, I am satisfied from the
record that the operator was sincere though mistaken in his
belief that MSHA did not have jurisdiction or authority to issue
the citations because during that period of time the owneroperator was producing gravel solely for his personal use.
Taking into consideration the six statutory criteria set
forth in Section llOCi> of the Act particularly the size of this
family enterprise, the appropriateness of the penalty to the size
of the business and the operator's sincere though mistaken belief
that MSHA had no authority to issue the citations during the
period May 12th to May 28th, I find that the appropriate civil
penalty for each of the violations is $50.00.
Conclusions of Law
1.

The commission has jurisdiction to decide this case.

2. Respondent violated the mandatory safety standards as
alleged in each of the citations.
3. The appropriate civil penalty for each of the violations
is $50.00.
ORDER
Each of the citations herein is affirmed and the respondent
is ordered to pay a civil penalty of $250.00 to the Secretary
within 30 days of the date of this decision.

v. Gft

Aug t F. Cetti
Administrative Law Judge
Distribution:

James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Cobblestone, LTD., Mr. Leonard W. Lloyd, P.O. Box 173, Pagosa
Springs, CO 81147 (Certified Mail)
/bls

738

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

JUN 141988
YOUGHIOGHENY & OHIO COAL
COMPANY,
Contestant
v.

:

CONTEST PROCEEDING

:
:

Docket No. LAKE 86-121-R
Order No. 28286341 8/5/86

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

. Nelms No. 2 Mine
..
.

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

v.
YOUGHIOGHENY & OHIO COAL
COMPANY,
Respondent

:

CIVIL PENALTY PROCEEDING

:

:
:

Docket No. LAKE 87-9
A. C. No. 33-00968-03650

.
.: Nelms No. 2 Mine
.
.:
DECISION

Appearances:

Before:

Patrick M. Zohn, Esq., Office of the Solicitor, U.S.
Department of Labor, Cleveland, Ohio for the
Secretary of Labor1
Robert C. Kata, Esq., St. Clairsville, Ohio, for
Youghiogheny & Ohio Coal Company.

Judge Melick

These cases are before me upon remand by the Commission on
May 13, 1988, to determine the validity of the order at bar
issued pursuant to section 104(d)(l) of the Federal Mine Safety
an_d Health Act of 1977, 30 u.s.c. § 801 et. seq., the "Act".
More .specifically the issue on remand is whether the admitted
violation of 30 C.F.R. § 75.1710-l(a)(2) charged in the order was
the result of the mine operator's unwarrantable failure to comply.
The Commission has also directed that the penalty assessment be
reexamined in light of the determination on unwarrantability.
Unwarrantable failure means aggravated conduct, constituting
more than ordinary negligence, by a mine operator in relation to
a violation of the Act. Emery Mining Corporation, 9 FMSHRC 1997

739

(19.87), petition for review filed 88-1019 (DC Cir. January 1988);
Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (1987).
In these
cases the Commission compared ordinary negligence, as conduct
that is "inadvertant," "thoughtless," or "inattentive," with
conduct constituting an unwarrantable failure i.e. ~onduct that
is "not justifiable" or "inexcusable".
In this case the evidence is undisputed that on
August 1, 1986, Youghiogheny and Ohio Coal Company (Y & 0)
section foreman John Slates directed one of his miners, David
Parrish, to operate a scoop tractor not equipped with a canopy
inby the last open crosscut in the main north section of the
Nelms No. 2 mine.
Because of the mining height the operation of
the scoop in this area without a cab or canopy was acknowledged
to be a violation of the cited standard.
David Parrish testified that Slates told him to operate the
scoop in the violative manner. Moreover Slates himself admitted
to Inspector Ervin Dean of the Federal Mine Safety and Health
Administration (MSHA.), in the presence of Y & O mine
superintendent Charlie Wurschum and Y & O safety director John
Woods, that "they had used the scoop in and inby that area, inby
the last open break," and that "it didn't have a canopy on it,"
and that "he knew that it was supposed to."
(Tr. 13-14 and
16-17). Slates also acknowledged to Inspector Dean that he had
ordered the scoo9 tractor to be operated without a canopy in the
last open crosscut and that he knew it was a violation (Tr. 13
and 28).
Under cross examination by counsel for Y & o, Inspector Dean
thought that Slates "might have said something to the effect I
wasn't thinking", but he was not sure that was said.
In addition
on further cross examination of Dean the following colloquy
occurred:

Q
[By Y & O Counsel] You said he [Foreman John Slates]
wasn't thinking. Did that lead you to believe he might
have made a mistake?
A
[By Inspector Dean] I don't have a doubt that he made a
mistake.

Q

I mean as opposed to intentionally breaking the law?

A
Yes. And again, I said he may have said that.
really remember what was said.

Q

I don't

Wouldn't that be very important to you to know why he
operated that piece of equipment like that?

A

Yes.

Q

But you didn't -- you just thought he might have said it
that he wasn't thinking at the time?

A

Yes, I guess so.

[Tr. 28-29].

Y & O has suggested that the above testimonial exchange
proves that Sectlon Foreman Slates did not intentionally direct
the scoop tractor to be operated without a canopy in the last
open crosscut and that his conduct or failure to act was
therefore the result of mere inattention or inadvertance.
However since a necessary premise underlying the questions
propounded by Y & O counsel was never established (Dean could not
"really remember" what Slates had said) the testimonial
conclusion (that Slates was not intentionally breaking the law)
based on that premise must be disregarded. Indeed the testimony
of Inspector Dean is so equivocal, uncertain and ambiguous on
this point as to be without probative value.
In addition I can give but little weight to the answer of
the scoop operator, David Parrish, to the ambiguous and
speculative question under cross examination by Y&O counsel that
he did not think his section foreman was intentionally placing
him in a position where he might be hurt. The response is
particularly inconsequential in the context of unwarrantability
since the violation has not been found to be "significant and
substantial" or serious. Parrish was also asked to speculate in
the followin; exhange:

Q [By Y & O Counsel] In your estimation do you think
that possibly the section foreman may have gotten mixed
up on where this scoop was being operated?
A
I don't believe that he got mixed up, with his
experience, but I believe that in the confusion of
stuff and not loading any coal -- he didn't mean to
have it done, as far as that. John Slates is a safe
man. He's a safe boss to work for as far as that
(Tr.35).
Again however such a speculative, ambiguous and conflicting
response has no probative value to the issue at hand.

741

I also give but little weight to the speculation of Don
Statler, the Y & o Safety Director who, although not present
either at the time of the violation or at the later interview of
Statler, suggested---that--Foreman Slates could have been confused
in ordering his employee to operate the scoop in themanner
·
described. There is insufficient probative evidence in the
record before me that Slates was in fact confused and there is no
evidence that he in fact to~q_S~atler that he was confused.
In sum there is essent1ally nothing but vague speculation to
support Y & O's contentions in this record.
Moreover the one person who could have answered the question
at issue, Section Foreman Slates, was not even called as a
witness by Y & o. It is a well established rule of evidence that
if a party knows of the existence of an available witness on a
material issue and such witness is within its power to produce
and, if, without satisfactory explanation it fails to call him,
an inference may be drawn that the testimony of the witness would
not have been favorable to such party. 2 Wigmore, Evidence § 285
(Chadbourn rev. 1979); Jones on Evidence, Presumptions and
Inferences § 3.91. It may indeed reasonably be inferred in this
case by the unexplained failure of Y & O to have called this most
essential witness who was one of its own employees, that his
testimony would not have been favorable to Y & o. The same
inferences can be drawn from the unexplained failure of Y & O to
have called Wurschum and woods, two of its other employees who
were present at the meeting at which Slates made his critical
admissions to Inspector Dean.
Under the circumstances Y & O's claim that Slates'
commission of the violation herein was merely the result of_
inadvertance, thoughtlessness or inattention is without credible
or probative evidentiary support.
In light of the strong
affirmative evidence that Slates dir~cted Parrish to perform work
in violation of the standard and that he knew it was a violation
to do so, I find that his conduct was ~ggravated and neither
justifiable nor excusable. This constitutes "unwarrantable
failure" and the section 104(d)(l) order is accordingly affirmed.
This evidence also supports a finding that this was an
intentional violation and the $400 penalty previously ordered in
this case is accocdingly warranted.

742

ORDER
Order No. 2828634 is affirmed and the contest of that order
is denied.
Youghiogheny & Ohio Coal Company is directed to pay
a civil penalty of $400 within 30 days of the date <:>f this
decision.
l
/.
:\

,J

A :\

()

\ ·\· ,n ;'v'

/-~'- \ Lt-'~ \''. ,t.t:ll(;N\

~ry M~iick

\
Administrative La~ Judge
(703) 756-6261
~

Distribution:
Robert c. Kota, Esq., Youghiogheny & Ohio Coal Co., P.O. Box
1000, St. Clairsville, OH 43950 (Certified Mail)
Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department
of Labor, 881 Federal Office Building, 1240 East Ninth Street,
Cleveland, OH 44199 (Certified Mail)
Vicki Shteir-Dunn, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
nt

743

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

June 15, 1988

SAMUEL GRIFFIN,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. KE~T 88-84-D
BARB CD 87-37

ENERGY PRODUCERS ASSOCIATES
INC.,
Res ponde·nt

.

.•

ORDER OF DISMISSAL
Before:

Judge Merlin

On February 16, 1988, you filed with this Commission a complaint of discrimination under section 105(c) of the Federal Mine
Safety and Health Act of 1977. On April 20, 1988 a show cause
order was issued directing you to provide information regarding
your complaint or show good reason for your failure to do so.
The show cause was mailed to you certified mail~ return receipt
. requested and the file contains the receipt car,_d indicating you
received the show cause order. You have however, not responded
and complied with the show cause order.
Accord~ngly,

this case is DISMISSED.

-Law Judge
Distribution:
Mr. Samuel Griffin, P. 0. Box 43, Pathfork, KY
(Certified Mail)

40863

Energy Producers Associates, Inc., 948 Compton Road, Cincinnati,
OH 45231 (Certified Mail)

I gl

744

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

JUN 201988
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAF.ETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner
v.

Docket No. WEVA 87-343
A. C. No. 46-01452-03643
Arkwright No. 1 Mine

CONSOLIDATION COAL COMPANY,
Respondent

.
DECISION

Appearances:

Joseph T. Crawford, Esq., Office of the Solicitor,
u. s. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary;
Michael R. Peelish, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania.

Before:

Judge Weisberger

Statement of the Case
On September 28, 1987, the Secretary (Petitioner) filed a
petition for an assessment of Civil Penalty for alleged
violations by the Respondent of the following reg.ulations on
June 9, 1987: 30 C.F.R. § 75.515, 30 C.F.R § 75.1725~a), 30 C.F.R.
§ 75.902, and the following regulations on June 10, 1987:
30 C.F.R. § 75.518-1, and 30 C.F.R. § 513-1. Respondent's Answer
was filed on October 22, 1987.
A Prehearing Order was issued on November 4, 1987, setting a
hearing on this matter for January 13, 1988, in the event that no
settlement was reached. On January 4, 1988, an Order was entered
continuing the hearing based upon Respondent's request for
continuance, which was not objected to by Petitioner.
On January 20, 1988, the case was reassigned to the
undersigned.
Pursuant to notice, the case was rescheduled and
heard in Wheeling, West Virginia, on March 22, 1988. Edwin Fetty
and Alex Volek testified for Petitioner. John Farley, II, Donald
s. Bucklew, and Harold P. Schaffer testified for Respondent.
Petitioner filed its Proposed Findings of Fact, Conclusions
of Law, and Memorandum Law on June 7, 1988, and Respondent filed

745

its Posthearing Brief on June 7, 1988.
Stipulations
At the Hearing the Parties intered into the following
stipulations:
a. That jurisdiction of this matter properly rests
with the Federal Mine Safety and Health Review
Commission.
b. That the operator has a history of 389 assessed
violations at this mine.
c. The size of the operator is reflected by the
following data:
Ci>
·Arkwright Number 1 employees approximately
225 employees.
(ii)
Daily production of Arkwright ~umber 1
equals approximately between 7000 and 9000 tons, while
annual production equals approximately 1,400,000 tons.
(iii) The Respondent operates 33 mines.
(iv) The annual production of all the
Respondent's mines is approximately 41,221,321 tons.
(V)
The annual dollar volume of sales by the
Respondent for 1988 will not be released by the
Respondent.

(vi)
DuPont E.I. DeNemours and Company is the
parent company: Consolidation Coal Company is a
wholly-owned subsidiary.
d. The violations were abated within the required time
period in each instance.

746

e. Approximately two (2) miners were exposed to the
hazard created by each violation.
f.

Injury incidence rate:
Fatal

Non Fatal*

No. Days Lost*

Total*

Arkwright No. 1
1986

0

1987

0

Consolidation Coal Com;eany
1986

.09

3.23

1.49

4.81

1987

.02

6.47

1.58

8.07

1986

.05

5.68

1.69

7.43

1987

.04

7.11

2.17

9.33

Nation

*Data on non-fatal injuries and lost work days at Arkwright
No. 1 for 1986 and 1987 will be furnished upon receipt.
With regard to paragraph 5(c)Cii) Arkwright I employees
approximately 225 employees and not 4,000 as stated there.
with regard to paragaraph 2, the daily production of
Arkwright Number 1 equals approximately 7,000 to 9,000 tons.
Issues
The Respondent, the Owner/Operator of the subject
underground mine was cited, along with the independent
contractor, who owned and operated the equipment in issue, for
violations of the following regulations: 30 C.F.R § 75.1725Ca),
§ 75.902, § 75.518-1, and§ 75.513-1.
The issues are whether the
Respondent was properly cited, and whether the Respondent
violated these regulations as well as 30 C.F.R. § 75.515. If
these issues are found in the affirmative, it must be determined,
in each case, whether the violations were of such a nature as
could significantly and substantially contribute to the cause and
effect of a mine safety or health hazard. Also, it will be
necessary, for each violation of Respondent, if any, to
determined the appropriate civil penalty to be assessed in

747

accordance with section ll(i) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801, et. seq., (the Act).
Proper Party
It appears to be the position of the Respondent, in reliance
upon Phillips Uranium Corporation 4 FMSHRC 549 (April 1982), that
the independent contract herein, Frontier-Kemper, is the most
responsible party, as it, rather then Respondent, owned and
operated the various equipment involved in Citation Nos. 2698629,
2698630, 2698631, and 2698632. In this connection, John Farley,
II, the Project Manager for Frontier, the independent contractor,
testified that prior to the commencement of its work at
Respondent's mine, i t was agreed that Respondent was to do the
preshift and onshift examination, take the employees of the
independent contractor in and out of the mine, perform hazard
training, and supply power. On the other hand, the independent
contractor was to perform all electrical work on its own
equipment, and the Respondent was not in any way to direct the
work force of the independent contractor. Farley also testified
that "very seldom" were Respondent's employee at the work site.
Harold P. Schaffer, Respondent's supervisor, testified, in
essence, that Respondent's employees conducting its preshift
examinations inspected only for hazardous conditions and did not
inspect any of the independent contractor's equipment as that was
to be done by certified persons. Farley also indicated that the
blower, which is the subject of Citation No. 2698629, was
designed specially for the independent contractor. Indeed,
Farley further testified that even the independent contractor's
electrician on the site was not familiar with this piece of
equipment.
In the Phillips case, supra, only the operator, rather than
the independent contractor, was cited for violations involved in
the specialized task of shaft construction at the operator's mine.
The Commission, in Phillips, supra, at 552 quoted with approval
from Old Ben Coal Company, 1 FMSHRC 1480 {1979), to the effect
that the inclusion of an independent contractor within the
definition of "operator" in the Act, reflects the Congressional
intent to " • . . subject contractors to direct enforcement of the
Act." In Phillips, supra, in reversing the judge who below had
upheld the citations and orders issued to Phillips, the operator,
the Commission reasoned as follows:
"The contractors, conceded to be "operators" subject to
the Act, failed to comply with various safety standards.
Yet Phillips, rather than the contractors, was cited;
penalties were sought against Phillips, rather than the
contractors; the violations would be entered into
Phillips' history of violations, rather than the

748

contractors' histories, resulting in increased
penalties for Phillips rather than the contactors in
later cases. Compared to Phillips' burden in bearing
the full brunt of the effect of the violations
committed by the contractors, the contractors would
proceed to the next jobsite with a clean slate,
resulting in a complete short-circuiting of the Act's
provisions for cumulative sanctions should the
contractors again proceed to engage in unsafe
practices." . (Phillips, supra, at 553).
In contrast, in the instant case, the independent contractor
was also cited, and even was served with 104Cd) Orders, for the
exact violations, which are the subject of Citation Nos. 2698629,
2698630, 2698631, and 2698632. Accordingly, the rationale behind
the Commission's decision.in Phillips, supra, is inapposite to
the instant case, and thus is not controlling of the issue
presented herein, i.e. as to whether the independent contractor
and the operator are jointly liable.1/
In Bituminous Coal Operators Association v. Secretary of
Interior 547 F.2nd 240 (4th Cir. 1977), the Court held, that
under the Coal Act of 1969, the owner of a mine is liable for the
independent contractor's safety violations without regard to the
owner's fault.
It is significant, that as stated by the D.C.
Circuit, in International Union United Mine Workers of America,
v. FMSHRC, (slip op., February 23, 1988, No. 87-113), "The Senate
committee report on the bill, that later that year became the
Mine Act, expressly took note of and approved the BCOA decision.
S. Rep. No. 181, 95th Cong., 1st Sess. 14, reprinted in 1977
U.S. CODE CONG. & ADMIN. NEWS 3401, 3414." The holding in~
Ben, supra, has, in essence, been followed by the 9th Circuit in
Cyprus Indus. Minerals Company v. FMSHRC, 664 F.2nd 1116
(9th Cir. 1981). In the Cyprus case, supra, at 1119, the Court
stated that " ••• mine owners are strictly liable for the actions
of the independent contractor violations (sic) .•••• "
(See also
Republic Steel Corporation, 1 FMSHRC 5, 9 (1979); Old Ben
Company, 1 FMSHRC 140, 1481-83 (1979); International Union Mine
Workers v. FMSHRC, supra).
1/

In this connection, I find irrelevant Old Dominion Power co.
(August 1984) and Calvin Black Enterprises, 7
FMSHRC 1151 (August, 1985) cited by Respondent, as neither of
these cases dealt with the issue of whether an independent
contractor and a owner can be jointly liable.
(In Old Dominion
supra, the issue presented was whether a contractor was properly
cited.
In Calvin Black, supra the Commission affirmed the
citation issued to a owner-~perator.)

6 FMSHRC 1886

749

Accordingly, based upon•the above line of cases, I conclude
that it was proper herein to cite Respondent, along with the
independent contractor, for violations concerning equipment owned
and operated by the independent contractor.
Citation No. 2698627
Citation No. 2698627 alleges that the energized 4160 volt
cables entering the metal disconnect switch box which was located
on the main butt section " • • • are not provided with proper
fittings where they are entering the metal box. The cables are
loose running through 3 inch pipe."
Regulation
30 C.F.R. § 75.515 provides, as pertinent, that "Cables
shall enter metal frames of motors, splice boxes, and electrical
compartments only through proper fittings."
Edwin Fetty, an Electrical Inspector for MSHA, testifed, in
essence, that the cable in question was energized, and extended
through a piece of pipe into the box. He said that he did not
observe any fitting.
He offered his opinion that the phrase
"pro~er fitting," as contained in section 75.515, supra, meant a
"secure" fitting.
Essentially, it was his opinion, that the only
"proper fitting," was a strain clamp, which in fact was provided
to abate this violation. In contrast, Donald S. Bucklew,
Respondent's maintenance foreman, testified that the cable in
question entered the disconnect box through a conduit which was a
little larger than the cable, and which was welded to the
disconnect box. He described the conduit as being a quarter inch
metal and running from approximately 1 inch into the box, to 4 to
5 inches outside the box. He said that the cable, in being
inserted in the conduit, was shoved through a tape, or rubber
bushing, which was wrapped inside the conduit. Fetty testified
that this connection was "not common."
I adopt the version testified to by Bucklew with regard to
the description of how the cables in question entered the box,
due to my observations of his demeanor, and the detailed nature
of his testimony. I find that the Patitioner has not established
that the cables in question, did not ~ass "through proper
fittings." Aside from Fetty's opinion that a proper fitting is
only a strain clamp, and that the connection used by Respondent
was "not common," there was no evidence presented as to
prevailing practice. Further, Fetty indicated that because the
cable was energized he did not test the cable by pulling it to
see whether the connection used by Respondent held.

750

7 FMSHRC 1151 (August, 1985) cited by Respondent, as neither of
these cases dealt with the issue of whether an independent
contractor and a owner can be jointly liable.
(In Old Dominion
supra, the issue presented was whether a contractor was properly
cited. In Calvin Black, supra the Commission affirmed the
citation issued to a owner operator.)
Citation No. 2698627
Citation No. 2698627 alleges that the energized 4160 volt
cables entering the medal disconnect switch box which was located
on the main butt section " • • • are not provided with proper
fittings where they are entering the medal box. The cables are
loose running through 3 inch pipe."
Regulation
30 C.F.R. § 75.515 provides, as pertinent, that "Cables
shall enter metal frames of motors, splice boxes, and electrical
compartments only through proper fittings."
Edwin Fetty, an Electrical Inspector for MSHA, testifed, in
essence, that the cable in question was energized, and extended
through a piece of pipe into the box. He said that he did not
observe any fitting. He offered his opinion that the phrase
"proper fitting," as contained in section 75.515, supra, meant a
"secure" fitting. Essentially, it was his opinion, that the only
"proper fitting," was a strain clamp, which in fact was provided
to abate this violation. In contrast, Donald s. Bucklew,
Respondent's maintenance foreman, testified that the cable in
question entered the disconnect box through a conduit which was a
little larger than the cable, and which was welded to the
disconnect box. He described the conduct as being a quarter inch
metal and running from approximately 1 inch into the box, to 4 to
5 inches outside the box. He said that the cable, in being
inserted in the conduct, was shoved through a tape, or rubber
bushing, which was wrapped inside the conduct. Fetty testified
that this connection was "not common."
I adopt the version testified to by Bucklew with regard to
the description of how the cables in question entered the box,
due to my observations of his demeanor, and the detailed nature
of his testimony. I find that the Petitioner has not established
that the cables in question, did not pass "through proper
fittings." Aside from Fetty's opinion that a proper fitting is
only a strain clamp, and that the connection used by Respondent
was "not common," there was no evidence presented as to
prevailing practice. Further, Fetty indicated that because the
cable was energized he did not test the cable by pulling it to
see whether the connection used by Respondent held.

751

Accordingly, inasmuch as Petitioner has not established that
the cable entering the disconnect box did not pass "through
proper fittings," I find that Re~pondent herein did not violate
30 § 75.515, supra.
Citation No. 2698629
On June 9, 1987, Citation No. 2698629 was issued which
provides, as pertinent, as follows:
"The over temperature device
installed on the 2 lube rotary positive blower, Model 23000, to
cause the blow to shut down when the temperature rises to
approximately 325 degrees F, is not maintained in an operatable
condition. When the normally opened contact tips on the switch
are closed, the blower continues run. When the contact closes it
should cause the blower to shut down. ***"
Regulation
30 C.F.R. § 75.1725(a) provides as follows:
"Mobile and
stationary machinery and equipment shall be maintained in safe
operating condition • . •
"
It was the testimony of Fetty, in essence, that when he
closed the contact tips on the over temperature device on the
rotary blower, the blower continued to run, whereas it should
have shut down to prevent it from over heating. He said that he
was aware that the over temperature device had a time delay on
it, and that when it was tested in his presence an electrician
closed the contacts for a "long time" which was to his
recollection more than a few seconds, and the blower still did
not shut down. He stated that he thus concluded that the device
was not "properly maintained."
John Farley, project managed for the contractor, testified
that James Walker, the independent contractor's electrician, had
contacted the headquarters of the independent contractor on June
9, 1987, after Fetty made his inspection, in order to determine
how to fix the over temperature device. Fetty said that the
electrician was told that the device had a 6 second delay and
when the latter rechecked it it worked properly. Indeed, when
Fetty abated the violation on the following day, he noted that
the over temperature device was " • • . now in an operative
condition. It will cause the blower to shut off when the
normally open contacts are closed." There is no evidence that
any repair was done to the device between Fetty's inspection on
the 9th and subsequent abatement on ti.1e 10th. Fetty, who
acknowledged that the device had a time delay on it, did not
contradict the testimony of Farley that the amount of the time
delay was 5 seconds. Fetty's testimony that, when tested on the

752

9th, the contacts were closed "for a long time," i.e. "more than
a few seconds," doea not positively establish that the delay
lasted more than the time delay of 6 seconds. Thus, there is
insufficient evidence, that, when tested on the 9th, the over
temperature device did not function as it should. There is no
evidence that a 6 second delay renders this device unsafe.
I
find thus that it has not been established that this device was
not maintained in a "safe operating condition." Accordingly, I
find that there has not been any violation by Respondent herein
of section 1725(a), supra.
Citation No. 2698630
On June 10, 1987, Fetty issued Citation 2698630 which
provides, in essence, that the energized 460 oil pump mower
installed on the 2 lube rotary blower in the main butt section
" • • . is not provided with a fail safe device to cause the
circuit breaker to open when either the pilot or ground wire is
broken." The citation alleges that the above condition is a
violation of 30 C.F.R. § 75.902 which provides that " • • • On or
before September 30, 1970, low- and medium-voltage resistance
grounded systems shall include a fail-safe ground check circuit
to monitor continuously the grounding circuit to assure
continuity which ground check circuit shall cause the circuit
breaker to open when either the ground or pilot check wire is
broken, or other no less effective device approved by the
Secretary or his authorized representative to assure such
continuity, except that an extension of time, not in excess of 12
months, may be permitted by the Secretary on a mine-by-mine basis
if he determines that such equipment is not available. Cable
couplers shall be constructed so that the ground check continuity
conductor shall be broken first and the ground conductors shall
be broken last when the coupler is being uncoupl~d."
In essence, Fetty testified that the pump motor in question
has three phases and that there were no fail-safe devices which
would cause the circuit breaker to open and deenergize, when
either the pilot or ground wire would be broken in any point in
the circuit. Fetty's testimony has not been contradicted.
Accordingly, I find that it has been established that the
Respondent herein violated section 75.902, supra, by not having a
fail-safe ground check circuit for the pwnp motor in question.
It was the testimony of Fetty that without a fail-safe
device, if the ground wire would have been detached, the
circuit-breaker would not deenergize the system. He said that if
the insulation in the motor would break down or there would be
damage to the conductor, this could result in voltage in the
frame of the motor causing.injury to one touching the frame.
However, on cross-examination, Fetty agreed that there was a

grounding protection of the oable and if there was a problem with
the insulation and an individual touched the motor frame he would
not be affected.
Although I find that there has been a violatiorr of
section 75.902, supra, with some measure of danger contributed to
by the violation, there is insufficient evidence to conclude that
there was a "reasonable likelihood that the hazard contributed to
will result in an injury," and I thus conclude that the violation
herein was not significant and substantial (Mathies Coal Company
6 FMSHRC l, 3-4 (January 1984)).
For the reasons discussed above, infra, I conclude that
gravity of the violation was low. Also, based upon the testimony
of Farley, I conclude that the equipment herein, which contained
the violative condition, was owned and operated exclusively by
the independent contractor. Further, based on Farley's
testimony, I conclude that Respondent did not have any
contractual obligations to inspect the contractors equipment or
supervise the work of its employees.
I thus conclude that the
negligence of Respondent herein was low.
I also have considered
the various other statutory factors in section llOCi) of the Act,
as stipulated to by the Parties.
I conclude based upon all of
the above that the Respondent pay $20 as a civil penalty for the
violation of section 75.902, supra.
Citation 2698631
On June 10, 1987, Fetty issued a citation which alleges
essentially that the energized 500 mcm cable supplying 460 volt
power for the 500 hp blow motor on the main butt section, ".
is not provided with proper short-circuit and over load
protection. The cable is protected by a 1200 amp sylvania
circuit breaker set on 1200 amps according to the information on
the face of the circuit breaker."
30 C.F.R. § 75.518 provides that "Automatic circuit-breaking
devices or fuses of the correct type and capacity shall be
installed so as to protect all electrical equipment and circuits
against short-circuit and overloads." 30 C.F.R. § 518-1, as
pertinent, provides that such a ddvice " • • • which does not
conform to the provisions of National Electric Code, 1968, does
not ineet the requireinents section 75 .518."
Fetty testified as to the essentials of the citation issued
on June 10. Respondent did not rebutt this testimony and in fact
stipulated as to these facts. Fetty explained that in his
opinion, in essence, the setting at 1200 amps is too high for a
cable supplying power to a 540 amp blower motor, as, in the event
of a short-circuit, the brea.~er would not trip out a11d the

754

current would continue to flow until 1200 amps are reached, thus,
taking longer to clear the circuit. Respondent maintains, in
essence, that the amperage of the setting on the circuit breaker
at 1200 amps is not relevant inasmuch as the breaker at
Respondent's power center, set at 2500 amps, will trip at that
point and thus deenergize the 500 hp motor.
I find however, that
the circuit breaker, being set at 1200 amps was not installed in
such a way, "as to protect" the equipment of the blower served by
the cable, and thus is violative of 30 C.F.R. § 75.518, supra. I
also note that it was the uncontradicted testimony of Fetty that
Respondent's engineer John Cormack agreed that the setting was
too high. Thus, I find that the Respondent herein did violate
section 75.518, supra, as alleged in the citation.
Fetty indicated that in an event of a roof fall or damage to
the cable leading to a short-circuit, an arc will result which
will continue to present a hazard as power will not be shut off
until 1200 amps are released. Further, it was Fetty's
opinion that due to the setting at 1200 amps, there will be
increased heat passing through the cable which will cause a
breakdown of the cable if there is rock or a bent cable.
In this
connection, Fetty said that in his opinion the cable was old as
it did not have any markings on it. It was his opinion that
sooner or later there would be an accident due to the breakdown
of the cable causing arcing.
I find that although there is some
measure of danger contributed to by the breaker being set at 1200
amps, this danger is not very high considering the testimony of
Bucklew, which I adopt as it has not been contradicted, that the
breaker at Respondent's power center is set to trip at 2500 amps,
and will thus deenergize the 500 hp blower motor. Further, I
note, that on cross-examination, Fetty had agreed that the cable
leading to the motor in question was warm and not hot, and that
although there were some signs of abrasions on the outer jackets
the insulation was intact. I thus find that Fetty's opinion
that, "sooner or later" an accident will occur due to break down
of the .installation causing arcing, falls short of establishing a
"reasonable likelihood" that the hazard of arcing will occur
(Secretary v. Consolidation Coal Company, 6 FRSHRC 189, at 193
(February 1984)). Accordingly, I find that it has not been
established that the violation herein is significant and
substantial (Mathies Coal Company, supra).
For the reason discussed above, infra, under Citation
No. 2698630, I conclude that the Respondent herein exhibited only
low negligence in violating section 75.518, supra. Further, for
the reason discussed above, infra, I concl~de that the gravity of
the violation herein to be low. Further, I have considered the
remaining statutory factors in section llO(i) of the Act, as
stipulated to by the Parties. Based upon all of the above, I

755

conclude that the Respondent shall pay a fine of $20 as a civil
penalty for the violation of the above regulation.
Citation No. 2698632
On June 10, 1987, Fetty issued Citation No. 2698632 which
alleges that the cable supplying 460 volts for the 500 hp motor
on the blower in the main butt section, " • • • is not sufficient
size to have adequate current carrying capacity. Full load
current of the motor is 540.2 according to the name plate
information and a 500 rncm cable is being used." This citation
alleges a violation of section 30 C.F.R. § 75.513-1, which
provides that "An electric conductor is not of sufficient size to
have adequate carrying capacity if it is smaller than is provided
for in the National Electric Code, 1986." Fetty testified that
the code requires a size of 125 percent of the full load, and
that in this case, the full load of the motor was 540.2 amps. He
said he performed calculations and that the cable in question was
"too small." Fetty also indicated that the cable was hot and
that there were signs of deterioration. This testimony was not
contradicted by any of Respondent's witnesses. Accordingly, I
find based upon this testimony of Fetty, that there was a rise of
temperature with some sign of damage to the installation material.
Accordingly, I conclude that it has been established that the
cable was of insufficient size as defined in section 75.513,
supra.
It was Fetty's testimony that with a cable being too small
in size, therefore carrying too many amps, there will be an
increase in heat which will break down the insulation, with
arcing, smoke, asphyxiation, and possible high burns being
reasonably likely to.occur. It was his opinion that continued
operation of too small sized cable will lead to insulation breakdown which will cause contact with the ground conductors which
will lead to a short-circuit~ He also indicated that although
the area was rock dusted, there were wooden timbers, oil on the
blower, and spalling coal. It was the testimony of Farley, which
was not contradicted, that the equipment was being run at only 60
percent of full capacity, and the amps were continually monitored.
As such, I conclude that it has not been established that there
was a "reasonable likelihood" of the hazard of arcing or fire
occurring (See, Secretary v. Consolidation Coal Company, supra).
Accordingly, I find that it has not been established that the
violation herein was significant and substantial (Mathies,
supra).
I find that the negligence of Respondent herein be low, as
analyzed with regard to Citation No. 2698629. Also, for the
reasons which I discussed above, infra, in discussing whether the
violation was significant and substantial, I conclude that the

756

gravity herein of the violation was low. Also, I have considered
the other statutory factors in section llO(i) of the Act as
stipulated to by the Parties. Based upon all of the above, I
conclude that a penalty herein of $20 is reasonable and proper
for the violation of section 75.513, supra, by the Respondent.
ORDER
It is ORDERED that Citation No. 2698627, and Citation
No. 2698629 be DISMISSED. It is further ORDERED that Respondent
pay the sum of $60, within 30 days of this Decision, as a civil
penalty for violations of Citation Nos. 2698630, 2698631, and
2698632.

Avram Weisberger
Administrative Law Judge
Distribution:
Joseph T. Crawford, Esq., Office of the Solicitor, u. s. Department of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
dcp

757

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

.

JUN 201988
BEAVER CREEK COAL COMPANY,
Contestant

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

:
:

.
.
..

CONTEST PROCEEDING
Docket No. WEST 88-145-R
Order No. 3224939; 3/17/88
Trail Mountain #9 Mine
Mine I.D. 42-01211

ORDER OF DISMISSAL
Appearances:

Charles W. Newcom, Esq., Sherman & Howard, Denver,
Colorado,
for Contestant;
James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Respondent.

Before:

Judge Morris

Contestant Beaver Creek Coal Company seeks declaratory
relief, attorneys fees and reimbursement for costs.
Procedural History
The Commission file reflects the following procedural
history:
1. On March 22, 1988 Beaver Creek filed a contest seeking a
review of MSHA Citation 3224939, issued on March 17, 1988. The
crux of Beaver Creek's contest of the 104(d)(2) order was that
contestant had not accepted the cited condition as a part to its
roof control plan (RCP). l;
In its contest Beaver Creek also sought attorneys fees
pursuant to Rule 11 of the Federal Rules of Civil Procedure.
At the same time Beaver Creek moved for an expedited
hearing.
2. On March 24, 1988 the judge granted Beaver Creek's
motion for an expedited hearing and set the case for March 31,
1988.

1/ Under existing law an operator cannot be cited for violating
its plan unless the plan and any amendments have been adopted by
the operator. Bishop Coal Co., 5 IBMA 231, 1 MSHC (BNA) 1367
(1975).
758

3. On March 30, 1988 the hearing date of March 31, 1988 was
cancelled. Further, Beaver Creek was granted until April 8, 1988
to amend its notice of contest and the Secretary was granted
until April 15, 1988 to respond.
4. On April 4, 1988 the Secretary filed a letter indicating
that MSHA's Order No. 3224939 was vacated on March 25, 1988. The
letter vacating the order indicates there had, in fact, been no
agreement on a proposed modification of Beaver Creek's RCP.
5. On April 6, 1988 Beaver Creek filed interrogatories and
further requested that certain documents be produced.
6. On April 8, 1988 Beaver Creek filed an amended notice of
contest and offer of proof and memorandum in support thereof.
As a factual basis for its amended notice of contest Beaver
Creek states as follows:
A. By letter dated January 13, 1988, Exhibit A hereto,
Beaver Creek sought a minor modification of its roof control
plan, a request that it be allowed to go from a 10 foot cut
to a 20 foot cut in development mining. As a part of that
request, Beaver Creek also sought a technical amendment to
its plan to add, as a matter of informational background in
the plan, that it would be using remote controlled
continuous mining machines in development pursuant to an
approval which had been previously been given for use of
such machines in connection with Beaver Creek's ventilation
plan. See Exhibit B hereto.
B. By reply letter dated February 16, 1988, Exhibit C
hereto, MSHA "tentatively" approved a plan change going to a
20 foot cut. However, that approval letter sought to add
five stipulations/conditions, none of which was tied to
mining conditions in the Beaver Creek mine as required by
Secretary of Labor v. Carbon County Coal Co., 3 MSHC (BNA)
1943 (1985), [7 FMSHRC 1367] and none of which was related
to any consequences growing from the proposed change of
going from a 10 foot cut to a 20 foot cut. MSHA issued a.
short follow-up modification to its February 16 letter on
February 24, 1988. See Exhibit D hereto.
C.
In a responsive letter dated March 9, 1988, (mailed
March 14, 1988), Beaver Creek specifically objected to four
of the proposed stipulations/conditions and agreed to accept
one of the proposed stipulations/conditions. See Exhibit E
hereto.
D. Thereafter, Citation and Order No. 3224939 was issued by
MSHA on March 17, 1988, as described in the Amended Notice
of Contest.
759

E. By letter dated March 21, 1988, MSHA sought to give
added reasons for its actions. See Exhibit F hereto. With
regard to those three reasons, it is to be noted with
respect to the first reasons that Beaver Creek has safely
operated with a plan involving mining distances of up to 140
feet, using temporary roof support, before installing full
overhead roof support. The issue as to the location of the
continuous miner operator, point number two in the letter,
had not been previously raised. That issue is not related
to the question of a 10 foot versus a 20 foot cut, and as
previously noted, use of remote controlled continuous mining
machines had previously been approved under Beaver Creek's
ventilation control plan. The third issue raised in the
letter relating to face ventilation is simply wrong in
addition to being a new assertion. Ventilation is not extended until temporary supports have been set.
F. By letter dated March 25, MSHA advised Beaver Creek,
essentially, that in MSHA's view things were "to go back to
square one" and enforcement action would commence on
Wednesday, March 30, 1988, absent some agreement. See Exhibit G hereto. A copy of that letter was first received by
Beaver Creek personnel by hand delivery on March 28, 1988,
at a meeting involving Beaver Creek personnel and MSHA
personnel at MSHA's Denver offices.
G. During the course of the March 28, 1988 meeting, or in
subsequent discussions relating to the roof control plan approval process, MSHA has taken, and continues to take, the
following positions with regard to review and/or approval of
Beaver Creek's current plan or any requested amendments
thereto:
1. MSHA understood that the s~ipulations in the February
16, 1988 letter had been accepted by Beaver Creek
personnel. Beaver Creek disputes that. Further, Beaver
Creek states that MSHA Coal Mine Safety and Health
District 9 has improperly departed from the District's
prior plan approval practice and has begun in recent
months attaching to many, if not all, roof control and
ventilation control plan approval requests such as the
request by Beaver Creek, additional "conditions" or
"stipulations" which do not relate to changed roof
control circumstances caused by the proposed amendment,
but rather involve ancillary matters not addressed to
the conditions at the particular mine. These additional
proposed conditions/stipulations thus appear to be
matters of personal preference rather than changes needed
to address some inadequacy specific to the mine in
question and its roof control plan. Such efforts to use
the amendment process to "open" a plan are improper.

760

2. MSHA's position is that it may undertake a general
review, whether in response to an amendment request or
on its own initiative, of the Beaver Creek roof control
plan regardless of whether the current plan "continues to
effectively control the roof face and ribs." This
position is contrary to the new regulations.
30 C.F.R.
§ 75.200, 53 Fed. Reg. 2375 (January 27, 1988).
3. MSHA's position is that in reviewing the issue of
moving from a 10 foot cut to a 20 foot cut, it may base
its approval of the amendment, in some part, upon nonroof control matters such as perceived traffic hazards
or the type of production equipment to be used in advancing the face. Beaver Creek does not dispute MSHA's
right to properly exercise its statutory powers, but it
does dispute MSHA's position that unrelated issues,
such as those just noted, may be raised and used as a
basis for refusing approval of a proposed amendment to a
roof control plan or withdrawing approval of an existing
roof control plan.
H.
As matters are currently postured, Beaver Creek may
imminently be subject to enforcement action including the
possibility of closure orders which could prevent coal
production.
In these circumstances, and in light of the
continuing dispute, Beaver Creek should be allowed to pursue
declaratory relief rather than being unnecessarily forced to
face MSHA enforcement action.
7. On April 11, 1988 Beaver Creek filed a notice to take
the deposition of witness DeMichiei.
8. On April 12, 1988 Beaver Creek filed notices to take the
depositions of witnesses Poncerhoff, Holgate, Jones, and Smith.
9. On April 18, 1988 the Secretary moved for an extension
of time to respond to the amended notice of contest and further
moved to stay discovery until a ruling is entered on the
Secretary's motion to dismiss.
10. On the same date, Beaver Creek responded to the
Secretary's motions. Beaver Creek objected to any extension of
time on discovery. Further, Beaver Creek asserts any indefinite
stay may prejudice its interests. Beaver Creek did not object to
an extension until May 6, 1988 for the Secretary to respond to
its amended notice of contest.
11. On April 19, 1988 the judge granted the Secretary until
May 17, 1988 to file his response to the notice of contest.
Further, the judge further authorized Beaver Creek to proceed
with discovery. Oral arguments were set for May 27, 1988.

761

•

12. Subsequently amended notices were filed by Beaver Creek
resetting the above depositions for May 25, 1988.
13. On May 2, 1988 the Secretary filed two motions to
dismiss and for a protective order. The motion to dismiss was
supported by memorandum.
In her motion for a protective order,
the Secretary seeks to protect from disclosure any deliberations
between any agency personnel relating to contestant's claims and
from identifying or disclosing the contents of any internal
agency deliberative document relating to Beaver Creek's claims.
The Secretary further submitted authorities in support of her
position.
The Secretary seeks the protective order as to the Beaver
Creek's interrogatories as well as to the depositions of the
district manager, the district engineering supervisor, and the
district roof control supervisor.
14. The Secretary's supplemental motion to dismiss (filed
May 2, 1988) states that MSHA has granted the RCP modifications
requested by Beaver Creek and the parties are no longer engaged
in Bishop negotiations.
15. On May 5, 1988 the Secretary filed a second motion to
stay discovery. The Secretary states there are two days
scheduled for depositions in Denver, Colorado and three days in
Price, Utah. The Secretary estimates that $4,000 will be spent
on such depositions.
16. On May 6, 1988 Beaver Creek filed its response opposing
the Secretary's second motion to stay.
17. On May 9, 1988 Beaver Creek filed its response in
opposition to the Secretary's motion for a protective order.
18. On May 11, 1988 the judge issued an order directing the
Secretary to respond to Beaver Creek's interrogatories. Further,
if the Secretary believed her answers were protected by her claim
of privilege she was directed to submit said answers for an in
camera inspection by the judge. The depositions of all witnesses
were otherwise stayed until the entry of an order on the Secretary's motions to dismiss. The judge's order further reconfirmed
the oral arguments previously set for May 27, 1988.
In connection with the Judge's Order of May 11, 1988 the
Secretary filed two notebooks of documents for an in camera
inspection by the judge relating to the Secretary•S-claim of
privilege.
In connection with the documents the Secretary
requested that any matter the judge finds is not privileged be

762

returned to the Secretary without releasing the contents to
Contestant.
The Solicitor states this procedure will preserve
his position in event he elects to appeal an order requiring
disclosure.
If the case is remanded the judge will grant the
Secretary's request in this regard.
Since the issue of privilege has not been reached in the
case the two notebook files remain in the Commission's office in
Denver, Colorado~
The Secretary further requested that the Solicitor be
present for any in camera review. He believes that such proceedings should be ex parte because the reason for the privilege
is not always apparent from the face of the document and the
contents of certain documents will be revealed in an explanation
of the privilege involved. The Secretary states this procedure
is not without precedent since warrants are often issued with
only the moving party present.
It is the Judge's view that the Secretary's request should
be denied.
Her presence, without the presence of Contestant,
would constitute an ex parte communication in violation of
Commission Rule 82, 29 C.F.R. § 2700.82.
If the case is remanded
the judge will so rule on this issue.
19.

Oral arguments took place as scheduled.
Discussion and Evaluation
on Motions to Dismiss

The two issues presented here are whether Beaver Creek is
entitled to costs and attorneys fees and whether declaratory
relief should be granted.
In connection with attorneys fees and reimbursement for
costs Beaver Creek particularly relies on Rule 11, FRCP.
In
support of its position Beaver Creek also cites Rushton Mining
Company, 9 FMSHRC 392 (1987).
Rushton was originally heard by Commission Judge James A.
Broderick. After Judge Broderick entered his initial decision
Rushton raised, for the first time and before the Commission, the
issue of reimbursement. The Commission remanded the case to give
Judge Broderick an opportunity to rule on the issue, 9 FMSHRC at
393.
In his decision after remand Judge Broderick concluded that
Rule 11 of the Federal Rules of Civil Procedure was not applicable, 9 FMSHRC 1270 (1987). I completely agree with Judge
Broderick's decision. Inasmuch as this is an expedited rul.ing it
is not necessary to further review Judge Broderick's views.

763

Beaver Creek argues the Commission would not have remanded
Rushton to Judge Broderick if the Commission believed Rule 11 was
not applicable.
I cannot speculate on the Commission's reasons
for the remand.
However, a Commission decision in Rushton and in
this case will no doubt serve as a guide as to these issues.
The second issue presented here is whether Beaver Creek is
entitled to declaratory relief.
As a threshold matter the Commission has jurisdiction to
grant declaratory relief under section 5{d) of the Administrative
Procedure Act, 5 u.s.c. § 554(e). Such authority is discretionary and it may be used to terminate controversy or remove uncertainty. Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d
447, ClOth Cir. 1983).
However, declaratory relief is not warranted here because
the issues are moot. The modification sought by Beaver Creek was
granted by the Secretary. In addition, the parties have not
reached an impasse in Bishop negotiations.
Further, the relief
sought by Beaver Creek (paragraphs 4Ca) through 4(f) of amended
Notice of Contest) appears to be an open invitation for the
Commission to become a third party in Bishop negotiations.
However, without specific facts any determination made by the
judge would be of no value.
Beaver Creek vigorously asserts that if declaratory relief
is not allowed here it has only two choices.
It can acquiesce in
the improper interpretative positions taken by the Secretary
regarding roof control plan review procedures (see paragraph 4(a)
through 4(f), amended notice of contest) or object and risk
enforcement actions which could cause a shutdown of the mine.
Beaver Creek is not without remedy.
In Penn Allegh Coal
Company, 3 FMSHRC 2767 (1981) the Commission .observed that the
statute makes it clear that a plan similar to the one involved
here is not formulated by the Secretary but is "adopted by the
operator". While the plan must be approved by the Secretary's
representative, who may on that account have some significant
leverage in determining its contents, it does not follow that he
has anything close to unrestrained power to impose terms. For
even where the agency representative is adamant in his insistence
that certain conditions be included, the operator retains the
option to refuse to adopt the plan in the form required, 3 FMSHRC
at 2772.
In view of the foregoing factors it follows that declaratory
relief is not warranted.
For the foregoing reasons, the Secretary's motion to dismiss
is granted.

•
Law Judge

Distribution:
Charles W. Newcom, Esq., Sherman & Howard, 633 Seventeenth
Street, 3000 First Interstate Tower N., Denver, co 80202
Ctertified Mail)
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
/bls

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

JUN 211988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
DAVIDSON MINING INC.,
Respondent
DAVIDSON MINING INC.
Contestant
v.

CIVIL PENALTY PROCEEDING
:

.
. No. 1 Mine

.
.
.: CONTEST PROCEEDING
:

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

Docket No. WEVA 88-168
A. C. No. 46-06898-03530

Docket No. WEVA 88-82-R
Order No. 2953130: 12/2/87

:

:

Mine I.D. 46-06898

Davidson No. 1 Mine
DECISION

Appearances: Mary K. Spencer, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia for
the Secretary of Labor:
William D. Stover, Esq., Beckley, West Virginia for
Davidson Mining Inc.
Before: Judge Melick
These consolidated cases are before me under section 105Cd)
of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et. seq., the "Act," to challenge a citation and
withdrawal order issued to Davidson Mining Inc •. (Davidson> under
sections 104(a) and 104Cb) of the Act, respectively, and for
review of the civil penalty proposed by the Secretary of Labor
for the violation alleged therein. At hearing Davidson
acknowledged the violation and allegations set forth in the
citation and asserted that it was challenging only the validity
of section 104Cb) Order No. 2953130 and the amount of penalty
proposed.
The underlying citation alleges a "significant and
substantial" violation of the standard at 30 C.F.R. § 75.301 and
charges as follows:

765

Only 2420 cubic feet of air a minute could be measured
in the last open crosscut between No. 8 and No. 9
entries in the 007-0 Moose Mains Section when measured
with chemical smoke and only 1995 cubic feet of air a
minute could be measured behind .line brattice in No. 8
entry where roof bolting machine was preparing coal and
only 1450 cubic feet of air a minute could be measured
in face No. 6 entry where continuous mining machine was
located.
30 C.F.R. § 75.301 provides in part as follows:
The minimum of quantity of a.i.c reaching the last open
crosscut in any pair or set of developing entries and
the last open crosscut in any pair or set of rooms
shall be 9000 cubic feet a minute •••• The minimum
quantity of air in any coal mine reaching each working
face shall be 3,000 cubic feet a minute.
The Section 104(b) order reads as follows:
Only 6042 cubic feet of air a minute could be measured
in the last open crosscut when measured with chemical
smoke, management was building permanent undercasts and
ventilation stoppings which were tore [sic] out due to
a roof fall which occurred on 11/28/87. 007-0 Moose
Mains Section right side.
Section 104(b) of the Act reads as follows:
If, upon any follow-up inspection of a coal or other
mine, an authorized representative of the Secretary
finds Cl> that a violation described in a citation
issued pursuant co sub•ection (a) has not been totally
abated ~ithin the period of time as originally fixed
therein or as subsequently extended, and (2) that the
period of time for the abatement should not be further
extended, he shall determine the extent of the are~
affected by the violation and shall promptly issue an
order requiring the operator of such mine or his agent
to immediately cause all persons, except those persons
referred to in subsection (c), to be withdrawn from,
and to be prohibited from entering, such area until an
authorized representative of the Secretary determines
that such violation has been abated.
It is not disputed that the violation charged in Citation
No. 2953127 was not totally abated within the time set forth in
that citation and that the period of time for abatement had not
been extended. The issue before me then is whether MSHA

766

In~pector Er.nest Thompson, the authorized representative of the
Secretary, acted reasonably in refusing to extend the time for
abatement. In this case I find that he did in fact act
reasonably.

Inspector Thompson was performing a general inspection at
the Davidson No. 1 Mine on December 1, 1987, when he learned that
a roof fall had occurred in the Moose Mains Section of the mine
three days earlier. Thompson observed, and it is not disputed,
that the mine ventilation had been interrupted as a result of the
roof fall and the air was short circuited and not adequately
ventilating the working faces. Only 2,420 cubic feet per minute
Ccfm) of ventilating air was found at the last open crosscut
where 9,000 cfm was required. In addition only 1,995 cfm was
found behind the line brattice at the No. 8 entry and only 1,450
cfm was found at the face of the No. 6 entry--locations where
3,000 cfm was required. Thompson accordingly issued the section
104(a) citation at bar.
Thompson told Section Foreman James Hancock at about
12:40 p.m. that he was then "under a citation" and that he was to
"pull the power on his equipment and restore his ventilation."
Although Thompson did not then inform Hancock of a specific
abatement time Thompson anticipated that temporary check curtains
would be hung within 20 or 30 minutes to correct the immediate
problem of inadequate ventilation. Thompson later prepared the
written citation on the surface around 1:30 or 2:00 p.m. setting
forth a specific abatement time and presented it to Dale Patten,
the company representative. No objection was then raised to the
abatement time.
On December 2nd Thompson returned to the subject area with
Patten. Arriving at 10:59 a.m. he again took air readings in the
last open crosscut and found only 6,042 cfm where 9,000 cfm was
required. Thompson observed that the belt conveyor had been
advanced forward one or two crosscuts, and that there had been
additional coal production as evidenced by several new connecting
crosscuts. He estimated that since the citation had been issued
there had been 6 to 8 hours of coal production with a r~gular
crew (48 man hours) taking 8 or 9 cuts of coal. Stoppings had
also been erected inby the fall area necessitated by the belt
move and Thompao11 estimated that this involved an additional
12 man-hours.
Thompson thereupon &old Patten that he was issuing a section
104(b) order, basing his decision on the evidence that they had
"run coal", made a belt move, and added 11ew stoppings-indicating to him that they had had time to correct the
ventilation problem but chose rather to continue running coal.
Thompson was also concerned that the continued inadequate

767

ventilation increased the danger from the accumulation of methane
and other dangerous gases. This hazard was exacerbated by the
extraction of virgin coal in a coal seam having a history of
methane liberation Ci.e. the Cedar Grove Coal Seam) and in a coal
seam located below the water table.
Subsequent examination of the mine preshif t reports
confirmed to Thompson that mining had continued without adequate
ventilation evan after the citation had been issued. It is not
disputed that the designation on the preshift report for the
evening shift Cp~l3 Exhibit G-5) "LOB R =3,010 cfm" means that
during the preshift examination between 2:00 a.m. and 3:30 a.m.
on December 2, the ventilation was not legally sufficient.· The
report Cp.14 Exhibit G-5) does not show that the ventilation was
corrected before coal was .mined.
In closing argument Davidson claimed that the "whole
situation reeks of unreasonableness" and that Inspector Thompson
should have extended the abatement time to permit completion of
an undercadt rather than have issued the subject order. Davidson
argues that the initial abatement time set forth in the citation
was not reasonable. It maintains that Inspector Thompson and
Mine Superintendent Larry Presley had agreed to abate the
violative condition by the construction of an undercast and
implies that it must therefore have been understood by Thompson
that the violative condition could not have been abated within
the limited time given in the citation.
Inspector Thompson denies however that there was any such
agreement and, to the contrary, testified that he anticipated
that temporary controls would have been erected within 20 or 30
minutes to abate the immediate ventilation problem. Inasmuch as
Thompson did in fact provide a relatively short abatement time in
the citation, it is readily apparent that he did in fact
anticipate the use of temporary measures to quickly abate what he
perceived to be a hazardous condition. Whether or not there was
an additional agreement to construct an undercast as a permanent
solution to the ventilation deficiency is therefore not
particularly relevant.
I also find Davidson's complaint that it was not given
sufficient time to abate to be less than credible for the reason
that it did not object to that abatement time when the citation
was issued and complained only after Thompson had already issued
the 104(!::>) order the next day. If company officials truly
believed they had reached an agreement to defer abatement until
they had time to complete construction of a permanent undercast
it is reasonable to expect that they would have immediately
protested the brief time allowed by Thompson in his citation and
have requested an extension. Under the circumstances I find that

768

the abatement time set forth •in the citation was reasonable for
the immediate construction of temporary corrective measures--and
that Davidson knew that the abatement time was reasonable for
that purpose. In light of this evidence I also reject Davidson's
claims that temporary corrective measures were aot -feasible or
could not have been achieved before the order was issued.
'

Davidson also argues that it did not mine coal without
adequate ventilation after the citation had been issued. However
in light of Davidson's own "Daily and On-Shift Reports"
(Exhibit G-5 pps. 13-14> I find this claim to be without merit.
Indeed even Mine Superintendent Fredley conceded that the re2orts
show that the inadequate ventilation reported on December lSL at
the last break on the right side was not corrected before
resumption of coal production in that area. Thus the credible
evidence supports Inspector Thompson's belief at the time he
issued the subject order that Davidson had produced coal without
adequate ventilation after the issuance of the citation and
contrary to his specific instructioas to mine officials. In
order to prevent further violations and exoosure of miners to
hazardous conditions and in light of David~on's demonstrated bad
faith in continuing to mine coal without proper ventilation it
was particularly important and reasonable for Thompson to have
issued a section 104(b) o.cder of withdrawal requiring all miners
not working on the abatement to be removed. Indeed I find that
this basis for issuing the order was sufEicient in itself
regardless of whether the original abatement time was reasonable
vel non. Under the cicc~mstances I find that Order No. 2953130
was properly issued and is valid.
I also find that the violative condition was the result of
operator negligence. The roof fall that initially caused the
ventilation problems occurred chree days before the citation was
issued so the operator ahould have· beea on particular notice for
ventilatioa pr0olems. Moreover i t is not disputed that there was
so little air in the cited area when Thompson tested it that his
anemometer would not even move. In spite of these conditions
Davidson continued to mine coal until the citation was issued.
The evidence that Davidson continued coal production without
adequate ventilation even after the issuance of the citation and
it3 failure to have abated the violative condition within the
time prescribed also show bad faith. Moreover, the continued
mining of coal ~ithout adequate ventilation greatly increased the
gravity of the violation. As Inspector Thompson observed, the
continued mining of coal could have created excess methane and
coal dust without adequate ventilation greatly incceasing the
potential for a fatal mine fire or explosion. In assessing a
civil penalty in this case I hava also considered Davidson's

769

size and history of violations. Under the circumstances I find
that a civil penalty of $1,000 is appropriate.
ORDER
Citation No. 2953127 and Order No. 29531:60 are affirmed and
the Contest of the Order is denied. Davidso~Mining Inc. is
hereby directed to pay a civil penalty of $li~OO within 30 days
of the date of this decision.
~~
I)

~

0
r\~~~u~
{/ }

;

t.l

Gary Mell. ck
\\
Admini$trati ve\·;Law Judge
( 703) ~ 7,56-6261 \\

i I~
<

v

Distribution:

'

Mary K. Spencer, Esq., U.S. Department of Labor, Office of the
Solicitor, Room 516, Arlington, VA 22203 (Certified Mail)
William D. Stover, Esq., 41 Eagles Road, Beckley, WV
(Certified Mail>
nt

770

25801

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

June 21, 1988

PATRICK J. BURNS,
Complainant

DISCRIMINATION PROCEEDING
[}ocket No. PENN
PITT CD 87-10

v.

88-4-D

GARY KLINEFELTER~
( U• S • STE EL COM PAN Y}
Respondent
ORDER OF DISMISSAL
Before:

Judge Merlin

On October 5, 1987, you filed with this Commission a
complaint of discrimination under section 105(c) of the Federal
Mine Safety and Health Act of 1977.
On this same day you were sent a letter from the Commission
informing you of what was needed to be done in order for your
complaint to be processed. On January 19 and again on March 23,
1988, my law clerk spoke with the complainant's wife and informed
her of what the complainant needed to do so that the complaint
could be p~ocessed.
Finally on April 20, 1988 a show cause order was issued
directing you to provide information regarding your complaint or
show good reason for your failure, to do so. The show cause was
mailed to you certified mail, return receipt requested and the
file contains the receipt card indicating you received the show
cause order. You have however, not responded and complied with
the show cause order.
Accordingly, this case is DISMISSED.

\

\
Paul Merlin
Chief Administrative Law Judge

Distribution:
Mr. Patrick J. Burns, Jr., 125 Cumberland Avenue, Masontown, PA
15461 (Certified Mail}

771

Mr. Gary Klinefelter, Ventilation Foreman, U. S. Steel Mining
Company, Inc., P. 0. Box 711, Waynesburg, PA 15370
(Certified M~i 1)
Mr. Thomas Shumaker, Int'l. H&S Rep., District 4, 32 S. Mains
Street, Masontown, PA 15461 (Certified Mail)

I gl

772

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

JUN 221988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petition.er

v.

CIVIL PENALTY PROCEEDING

.

.
..

Docket Np. LAKE 86-35
A.C. No. 11-01845-03586
Zeigler No. 5 Mine

ZEIGLER COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Miguel J. Carmona, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois, for
Petitioner; Brent L. Motchan, Esq., Vice-President
and General Counsel, Zeigler Coal Company,
Fairview Heights, Illinois, for Respondent.

Judge Maurer
Statement of the Case

This case is before me upon a petition for assessment of
civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801, et seq., the "Act", in which
the Secretary charges the Zeigler Coal Company (Zeigler) with one
violation of the mandatory standard at 30 C.F.R. § 75.200. The
general issues before me are whether the company has violated the
regulatory standard as alleged in the petition and, .if so, the
appropriate civil penalty to be assessed for the violation.
The hearing was held as scheduled on March 28, 1988, at
St. Louis, Missouri. Documentary exhibits and oral testimony
were received from both parties.
The Mandatory Standard
Section 75.200 of the mandatory standards, 30 C.F.R.
§ 75.200 provides as follows:
§ 75.200

Roof control programs and plans.

Each operator shall undertake to carry out on a continuing
basis a program to improve the roof control system of each

773

coal mine. and the means and measures to accomplish such
system. The roof and ribs of all active underground
roadways, travelways, and working places shall be supported
or otherwise controlled adequately to protect persons from
falls ot the roof or ribs. A roof control plan and
revisions thereof suitable to the roof conditions and mining
system of each coal mine and approved by the Secretary shall
be adopted and set out in printed form on or before
May 29, 1970. The plan shall show the type of support and
spacing approved by the Secretary. Such plan shall be
reviewed periodically, at least every 6 months by the
Secretary, taking into consideration any falls of roof or
ribs or inadequacy of support of roof or ribs.
No person
shall proceed beyond the last permanent support unless
adequate temporary support is provided or unless such
temporary support is not required under the approved roof
control plan and the absence of such support will not pose a
hazard to the miners. A copy of the plan shall be furnished
to the Secretary or his authorized representative and shall
be available to the miners and their representatives.
The Cited Condition or Practice
Order No. 2614140 cites a violation of 30 C.F.R. § 75.200
for the following condition:
The roof control plan approved for this mine was not
being followed in unit No. 2 in the cross-cut between 3
and 4 South entries at 2550 feet. The machine operator
while loading coal was 3-1/2 feet inby the last row of
permanent roof support in the cross-cut. The roof
control plan for this mine states that work shall not
be performed inby unsupported roof.
Unit 2 in South
off west off 2nd main North off 1st Main West off Main
North.
Stipulations
At the hearing, the parties agreed to the following
stipulations which were accepted:
1. On August 26, 1985, Zeigler had a roof control plan in
compliance with MSHA regulations, which had been approved by
MSHA.
2. During the 24 ~onth period preceding the issuance of the
instant order of withdrawal, Zeigler had a total of 38 assessed
violations.

774

3. During the calendar year preceding the issuance of the
instant order of withdrawal, the Zeigler No. 5 Mine had produced
985,638 tons of coal and the controlling entity produced
2,872,758 tons of coal.
4. Payment of the proposed assessed penalty would not
affect Zeigler's ability to remain in business.
5. The Commission and the presiding administrative law
judge have jurisdiction over this pr'oceeding.
Discussion and Analysis
Inspector Jesse B. Melvin, who issued the subject ord~r on
August 26, 1985, testified on behalf of the Secretary. He has
been a coal mine inspector for some 15-1/2 years, and further
testified as to his qualifications, training and experience with
MSHA and previously as an underground coal miner for 19 years.
While inspecting the Zeigler No. 5 Mine on August 26, 1985,
Inspector Melvin deduced by his observations and a series of
measurements that the operator of a continuous mining machine on
an earlier shift had travelled 3-1/2 feet inby permanent roof
support. He therefore concluded that a violation of 30 C.F.R.
§ 75.200 had occurred and so issued the§ 104(d)(2) order at bar.
The continuous miner had been mining in the crosscut from
the No. 3 entry side towards the No. 4 entry on the shift prior
to the inspection. However, the continuous miner was not in the
crosscut when the inspector viewed the area on August 26, 1985.
Since the mining machine was no longer in the unbolted
crosscut at the time of his inspection, the inspector calculated
the position of the miner operator vis-a-vis the last row of roof
bolts by a series of measurements he made with the assistance of
Mr. Johnson, a safety committeeman travelling in the mine with
him. They observed the impression left by the front edge of the
pan of the mining machine on the bottom and measured from there
back to the last row of roof-bolts which was 23-1/2 feet. They
then located the continuous mining machine in an adjacent area
and measured it from the front of the pan to the miner operator's
seat. That distance turned out to be 19 feet.
Subtraction
yielded the result that the miner operator on the previous shift
had proceeded inby permanent roof support by approximately 3-1/2
feet.
The accuracy of the 23-1/2 foot pan-to-bolt measurement
necessarily depends on the ability to see the impression of the
pan on the bottom. The ins[)ector is positive he observed the
impression of the pan on the bottom. He explained that where

775

anything heavy sits down on something that is soft, it will leave
an impression of it. Then, when it (the pan) drags back, it
shows where the machine has travelled backwards. Mr. Johnson
also testified that the impression of the pan was clear. He
stated that after the crosscut was bolted, enabling-him to get in
there, he assisted Inspector Melvin with the measurement by
holding his end of the tape measure at the edge of the pan
impression. Mr. Dennis Collins, a former timberman at the
Zeigler No. 5 Mine, further corroborated the testimony of the
inspector and Johrison on this critical point. He testified that
he witnessed the Melvin/Johnson measurement and also observed the
tracks of the continuous mining machine pan on the bottom.
Mr. Don Kroll, currently the manager of safety and training
at the Murdock Mine of the Zeigler Coal Company, testified on ·
behalf of the respondent. On the date in question herein, he was
in the safety department at the Zeigler No. 5 Mine and had
accompanied the inspector that day. He testified that at that
time, in the crosscut from 3 to 4, there was a 1-1/2 foot notch
left on the left hand rib and a 4-1/2 foot notch along the right
hand side, of a 17 foot wide crosscut. The respondent's point
being that it would have been very difficult, although admittedly
not impossible, to get the head of the miner through that hole in
the crosscut and therefore the miner operator himself could not
have penetrated so deeply as to be under unsupported roof.
Mr. Kroll also testified that he did not see any mark or
track from the pan of the continuous miner on the bottom.
I make the necessary credibility finding concerning the
visibility of the impression of the pan on the bottom in favor of
the Secretary. Three witnesses, including the iQspector, state
they clearly saw it and recognized it as an impression of the
miner's pan on the bottom. I also find it credible that the
measurement from the front of that pan impression back to the
last row of bolts was 23 or 23-1/2 feet. This was also
corroborated testimony. I further find as a fact that the
distance from the front of ~he pan of the miner back to the
operator's seat on the miner was measured to be and is 19 feet.
It therefore follows that I agree with the inspector and find as
a fact that the miner operator was inby permanent roof support by
a distance of 3-1/2 feet.
I therefore conclude that the
Secretary has established a violation of 30 C.F.R. § 75.200, as
alleged.
A violation is properly designated significant and
substantial "if, based on the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a
reasonably serious nature." National Gypsum, 3 FMSHRC at 825.

776

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained:
•
·
In order to establish that a violation of a mandatory
safety standard is significant and substantial-under
National Gypsum the Secretary • • • 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.
The Co1nmission has explained further that the third element of
the Mathies formula "requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result
in an event in which there is an injury." U.S. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984).
(Emphasis deleted). They
have emphasized that, in accordance with the language of section
104(d)(l), it is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial. 6
FMSHRC at 1836.
I have already found an underlying violation of the
mandatory safety standard. The safety hazard contributed to by
the violation and the consequences of the same are obviously
serious injury and/or death from a roof fall. The only remaining
elarnent is the reasonable likelihood that the hazard contributed
to will result in an event, such as a roof fall in which someone
will be seriously injured or killed. In this regard, Inspector
Melvin testified that there had already been roof falls in other
units close to the cited area and that in his opinion it
is reasonably likely to expect miners working under unsupported
roof to be seriously injured or killed in the event of a roof
fall in such an area. The continuous miner had a canopy
installed and the roof conditions in the crosscut were generally
described as good, but I nevertheless conclude that the instant
violation of the cited mandatory safety standard was significant
and substantial and serious.
In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987),
appeal dism'd per stip., No. 88-1019 CD.C. Cir. March 18, 1988),
and Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December
19S-7), the Com.'11ission held that "unwarrantable failure means
aggravated conduct, constituting more than ordinary negligence,
by a mine operator in relation to a violation of the Act."

In this case, the Secretary argues that Zeigler demonstrated
a moderate degree of negligence. All of the Secretary's evidence

is to that effect. The order is marked that way and the
inspector testified consistent with that marking at the hearing.
Therefore, even making this finding as urged by the Secretary, as
I do for purposes of assessing the civil penalty, that is not
sufficient to sustain an "unwarrantable failure" firiding.
Furthermore, there is no other evidence contained in this re__cord
that would support a finding of aggravated conduct on the part of
Zeigler with respect to this violation. Accordingly, I will
modify the§ 104(d)(2) order at bar to a citation issued under
§ 104(a) of the Act, and affirm the significant and substantial
violation of 30 C.F.R. § 75.200 as such.
With regard to the civil penalty to be assessed in this
case, I have throughly reviewed the record and considering the
statutory criteria contained in§ llO(i) of the Act, conclude
that an appropriate penalty for the violation found herein is
$400.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Order No. 2614140 properly charged a violation of 30
C.F.R. § 75.200 and properly found that the violation was
significant and substantial. However, the order improperly
concluded that the violation resulted from Zeigler's
unwarrantable failure to comply with the mandatory safety
standard involved. Therefore, the violation was not properly
cited in a § 104Cd)(2) order. Accordingly, Order No. 2614140 IS
HEREBY MODIFIED to a § 104(a) Citation and AFFIRMED.
2. The Zeigler Coal Company IS HEREBY ORDERED TO PAY a
civil penalty of $400 within 30 days of the date of this
decision.

Roy J M urer
Administrative Law Judge

Distribution:
Miguel J. Carmona, Esq., U.S. Department of Labor, Office of the
Solicitor, 230 S. Dearborn St., 8th Fl., Chicago, IL 60604
(Certified Mail)
•
Brent L. Motchan, Esq., Vice President & General Counsel, Zeigler
Coal Co., 331 Salem Place, Fairview Heights, IL 62208 (Certified
Mail)
slk
778

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

June 22, 1988

CIVIL

SECRETARY OF LABOR,
MI~E SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

PE~ALTY

PROCEEDING

Docket No. WEVA 88-90
A. C. ~o. 46-01318-03789
Robinson Run Mine

v.
CONSOLIDATION COAL COMPANY,
Respondent

DISAPPROVAL OF SETTLEMENT
ORDER TO SOLICITOR TO SUBMIT !~FORMATION
Before:

Judge Merlin

The Solicitor has filed a motion to approve settlement of
the violation involved in this case.
This case involves a violation of 30 C.F.R. § 75.1720-1
in that ~ix miners were not w~aring distinctively colored hard
hats. The penalty was originally assessed at $311 and the proposed settlement is for $250. Jn her motion, the Solicitor
asserts that, among other things, the reduction is warranted
because gravity was less than originally thought. The motion
states that the employees involved were maintenance personnel who
were temporarily assigned to the mine to repair equipment. The
motion further states that at all times these employees were
accompanied by a superintendent who "w~s aware of their lack of
experience and certification." According to the Solicitor's
motion, there was little likelihood that these miners would be
confused with experienced miners.
The Commission and its Judges bear a heavy responsibility in
settlement cases pursuant to section llO(k) of the Act which
provides:
(k) No proposed penalty which has been
contested before the Commission under section
105(a) shall be compromised, mitigated, or
settled except with the approval of the
Commission. *
* *

779

See S. Rep. ~o. 95-181, 95th Cong., 1st Sess. 41-5 (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 632-633 (1978).
Penalty proceedings before the Commission are de nova.
Neither the Commission nor its Judges are bound by tlle-setretary' s proposed penalties. Rather, they must determine the appropriate amount of penalty, if any, in accordance with the six
criteria set forth in section llO(i) of the Act. Sellersbur~
Stone v. Federal Mine Safety and Health Review Commission, 7 6
F. 2d 1147 (7th Cir. 1984).
The Commission has recently reaffirmed the authority of its
Judges to review ~nd, where necessary, disapprove settlements,
stating:
·

* * * Settlement of contested issues and
Commission oversight of that process are
integral parts of dispute resolution under
the Mine Act. 30 U. S. C. § 820(k); see
Pontiki Coal Corp., 8 FMSHRC 668, 674--rM'ay
1986). The Commission has held repeatedly
that if a judge disagrees with a penalty proposed in a settlement he is free to reject
the settlement and direct the matter for
hearing. See,~, Knox Countl Stone Co., 3
FMSHRC 2478, 2480-81 (~ovember 981). A
judge's oversight of the settlement process
"is an adjudicative function that necessarily
involves wide discretion." Knox County,
3 FMSHRC at 2479.
*

*

*

*

*

Secretary of Labor v. Wilmot Mining Company, 9 FMSHRC 686
(April 1987).
Based upon the Solicitor's representations set forth above,
I cannot conclude that the recommended reduction in the penalty
is warranted. If anything, the facts as set forth by the Solicitor make the violation appear more serious and highlight the
operators negligence. The operator should have taken partic~lar
care because the miners were inexperienced. In addition, their
inexperience and lack of certification put them at greater peril
and therefore, increased gravity. Under the circumstances the
original assessment seems modest indeed.

780

Accordingly, the Solicitor is ORDERED to s~bmit additional
information in support of her motion for settlement within 20
days from the date of this order otherwise this case will
promptly be set for hearing.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Therese I. Salus, Esq., Office of the Solicitor, U. S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Mr. Danny Quesenberry, Vice President, Consolidation Coal
Company, P. O. Box 1632, Fairmont, WV 26554 (Certified Mail)
Michael H. Holland, Esq., UMWA, 900 15th Street, N.W.,
Washington, DC 20005 (Certified Mail)
/gl

781

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 41988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'l'RATION (MSHA),
Petitioner

. CIVIL PENALTY

PROC~EDING

Docket No. CENT 88-2
A.C. No. 34-01353-03509

v.

. Welch Mine

PATCH COAL COMPANY,
Respondent

DECISION
Appearances:

Michael Olvera, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
the Petitioner;
Marcus A. Wiley, Mining Engineer, Wiley
Engineering, Inc., Broken Arrow, Oklahoma, for
the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns proposals for assessment of
civil penalties filed by the petitioner against the respondent
pursuant to section llOCa) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 820(a), seeking civil penalty
assessments in the amount of $1,050, for.five alleged violations of mandatory training standard 30 C.F.R. § 48.26(a).
The respondent filed an answer denying the violations,•and a
hearing was held in Tulsa, Oklahoma. Although the parties
waived the filing of posthearing briefs, I have considered
their oral arguments made on the record during the hearing in
my adjudication of this matter.
Issues
The issues presented in this case include the following:
Cl> whether the respondent violated the cited mandatory training standard; (2) whether the violations resulted from an
unwarrantable failure by Patch Coal Company to comply with the
requirements of the cited standard; and (3) whether or not the

782

violations were significant and substantial. Assuming the
violations are affirmed, the question next presented is the
appropriate civil penalties to be assessed pursuant to the
penalty criteria found in section llOCi> of the Act.
Applicable Statutory and Regulatory Provisions
30

1.

The Federal Mine Safety and Health Act of 1977,

2.

Sections llO(a), llO(i), 104Cd), and 105(d), of the

3.

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

u.s.c. § 301, et seq.

Act.

Stipulations
The parties stipulated to the following (Tr; 3-4):
1. The respondent's history of prior violations consists of two (2) citations issued
during the twenty-four (24) months prior to the
violations in this case, over a period of
twenty-two C22) inspection days.
2. The respondent's annual 1986 coal
production was 28,000 tons, with first-quarter
1987 production of 12,000 tons.
3. The r~spondent admits to "technical
violations". of the training requirements of
30 C.F.R. § 48.26Ca>, but contests the inspector's gravity and negligence findings.
Discussion
The contested section 104Cd)(l) citation and orders were
issued by MSHA Inspector Johnny M. Newport in the cou~se of an
inspection which he conducted at the mine on April 13, 1987,
and they are as follows:
Section 104Cd)(l) Citation No. 2839121, issued on
April 13, 1987, at 8:30 a.m., cites an alleged violation of
30 C.F.R •. § 48.26Ca), and the condition or practice is
described as follows:
Mr. Gary Layton determined to be a newly
employed experienced miner operating a 988-B
front-end loader at pit 004-0load rear dump
trucks. A discussion with Mr. Layton revealed

783

he had received no newly employed experienced
miner training. Mr. Layton had been working at
this mine for approximately three weeks.
The inspector made gravity findings of "reasonably
likely" resulting in "fatal" injuries, and he concluded that
the violation was "significant and substantial." He also made
a negligence finding of "reckless disregard," and included all
of these findings on the face of the violation form by marking
the appropriate places under Section II, "Inspector's
Evaluation."
·
At 8:45 a.m., on April 13, 1987, the inspector issued
section 104(d)(l) Order No. 2839123, which states as follows:
Mr. Scott Bullard determined to be a newly
experienced (employed) miner operating a
caterpillar 769B rear dump truck at pit 004-0
had not received newly employed experienced
miner training. Mr. Bullard had been working
at this mine for approximately two weeks.
At 9:15 a.m., on April 13, 1987, the inspector issued
section
104(d)(l) Order No. 2839125, which states as follows:
,,
Mr. Gaylin Rogera determined to be a newly
employed experienced miner operating a
caterpillar 769-B rear dump truck at pit 004-0
had not received newly employed experienced
miner training. Mr. Rogers has been working at
this mine for approximately three weeks.
At 9:15 a.m., on April 13, 1987, the inspector issued
section 104(d)(l) Order No. 2839127, which states as follows:
Mr. Rick Nash determined to be a newly
employed e~perienced miner operating a
Caterpillar 9-L bulldozer at pit 004-0 had not
received newly employed experienced miner
training. Mr. Nash has been working at this
mine for approximately three weeks.
At 9:45 a.m., on April 13, 1987, the inspector issued
section 104(d)(l) Order No. 2839129, which states as follows:
Mr. Larry Pitts, determined to be a newly
employed experienced miner operating a
Caterpillar 9-L bulldozer at pit 004-0 had not
received newly employed experienced miner

784

training. Mr. Pitts has been working at this
mine for approximately three weeks. ·
The inspector made gravity and negligence findings with
respect to the aforementioned four orders identical to those
made in connection with the initial section 104Cd)(l) Citation
No. 2839121.
Petitioner's Testimony and Evidence
MSHA Inspector Johnny M. Newport testified as to his
experience and background, and he confirmed that he issued the
citation and orders in question during his inspection of the
respondent's mining operation on April 13, 1987. Mr. Newport
described the respondent's mining operation as a surface pit
coal mine utilizing a drag line, front-end loaders, and rear
dump trucks. At the time of his inspection, the cited
employees were removing overburden with bulldozers, and were
operating endloaders and rear dump trucks. During the
inspection of the equipment he asked each of the five cited
miners whether they had received newly employed experienced
miner training, and they replied that they had received no
such training from the respondent (Tr. 8-11).
In response to a question as to why he concluded that the
lack of the required training would "reasonably likely" result
in injuries, Mr. Newport responded as follows (Tr. 11-12):
A.
It would be reasonably likely that an accident would occur, based on their experience,
the hazards involved with moving overburdan,
leaving the high wall, plus the general aspects
of just the coal mine industry; it's a hazardous business.

Q.

You've found, I guess in your experience,
that as the amount of training of an employee
goes down, t~e chance of accidents go up?
A.

That's true; yes, sir.

In response to a question as to why he concluded that any
injuries resulting from the lack of training could reasonably
result in fatalicies, Mr. Newport responded as follows (Tr.
12):
A.
Basically, because of the hazards involved
in the coal mining industry.
If a person is
not trained to notice certain aspects of high

785

walls, the patterns of equipment movement,
where they dump, what method is being mined,
there's a reasonable likelihood that it would
result in a fatality.

Q. Was there anything in particular with the
types of machines that they were using at this
present time that would lead you to believe
that a fatality could occur?
A.
It's large equipment that's being used in
the mining industry.

Q. Could you say that if the injury did occur,
it would probably be of a reasonably serious
nature?
A.

Yes, sir, in my opinion, it would.

Mr. Newport stated that his negligence finding of "reckless disregard" was based on the fact that during the respondent's oper~tion oE a prior pit with a drag line, he discussed
training with mine superintendent Doug Cook, and it was his
understanding that depending on their experience, Mr. Cook
knew.the types of training required of miners. Mr. Newport
stated that Mr. Cook has a copy o~ the "C.F.R." and the mine
training plan. Mr. Newport confirmed that the respondent was
cooperative during his inspection (Tr. 13).
On cross-examination, Mr. Newport stated that at the time
he asked the employees whether they had received training, he
had reviewed the respondent's training plan and asked about
the location of the first aid station and first aid supplies,
and no one could answer his questions in this regard. He also
asked about communications, general mine policies, and accident reporting, and the only safety items that the employees
were aware of were the need to wear hard hats and safety shoes.
Mr. Newport identified copies of two training certificates for
cited employees Gary Layton and Gaylin Rogers, and he confirmed that at the time of his inspection the employees could
not produce copies of the certificates, and Mr. Newport confirmed that he could not find them among the mine records he
reviewed (Tr. 13-16; exhibits R-1, R-2).
Mr. Newport confirmed that all of the cited employees
were experienced miners, but were newly employed by the respondent for 1 to 3 weeks prior to his inspection. When asked to
explain the basis for his conclusions that the lack of the
required training pursuant to the respondent's approved plan

786

would expose each of the cited miners to "serious injuries" or
that it was reasonably likely that each miner would likely be
involved in an accident of a reasonably serious nature,
Mr. Newport responded as f9llows (Tr. 19-21):
THE WITNESS: At the time that I made the
inspection, it did have a high wall. The
gentlemen working next to the high wall, or the
spoil banks, come8, nee in contact, but in that
general area. Per se, just on a flat, as this
floor, it 1 3 reasonably likely it could be less
---.._than that.
-----~

~
Going and coming from this pit, though,
·there's hllls. You could have a flat tire,
steering, .blowing the hydraulic hose is a
common occurrence in the coal mines with heavy
equipment.

JUDGE KOUTRAS:
I understand all that, but how
would training this fellow keep those events
from happening? You could have the
best-trained miner in the world operating a
front-end loader and all of a sudden, his
hydraulic goes out because maybe the front-end
loader is defective or it wasn't inspected for
brakes or it had a broken hose or something
like that. I suppose that's what Mr. Wiley is
asking you.
THE WITNESS:
In the portion of the training
with trucks, front-end loaders, there's a
mining method. It's either a left-hand method
or a right-hand method.
If a certain person has been trained in a
right-hand method and this company is doing the
opposite, if he's not properly trained to his
aspect, they could run into each other.
The size of the equipment could play a big
importance on that gentleman getting hurt or
hurt seriously, so it does play a big
importance.
Some of the other coal companias, for
example, that one truck -- you're sitting here,
and it's anywhere from zero to maybe 15 feet.

787

We have some people that pass like on the highway, which is called the "left-hand method,"
whereas other people, for safety purposes -they do that for -JUDGE KOUTRAS: In this case, did you make
those determinations individually for all these
people or· did you just assume that since they
weren't trained, they would be exposed to all
of these things that generally could happen at
any operation?
THE WITNESS:

Yes, it could generally happen.

JUDGE KOUI'RAS: You didn't, for example, take
each of ~hese people and determine what their
jobs wer~ and all that business, whether it was
left-hand or right-hand and all that business;
did you?
THE WITNESS: Each is supposed to be incorporated in the Training Plan to go about it, sir.
Referring to his inspection report of April 13, 1987,
Mr. Newport confirmed that he issued a citation for the lack
of a front horn on a motor grader and inadequate brakes on
mobile equipment. The citations were issued at a different
pit than those where tne untrained miners were working, and
Mr. Newport conceded that no citations were issued for the
work environment in which these miners were working. However,
Mr. Newport took the position that the cited equipment
travelled to the pit where the employees were working (Tr.
23-26).
In response to further questions concerning his gravity
and negligence findings, Mr. Newport stated as follows at (Tr.
31-32):
JUDGE KOUTRAS: Did you, Mr. Newport, find any
conditions at that mine when these fellows were
working that would lead to any unusual circumstances in the form of hazards?
THE WITNESS: Not at that time, sir, but as far
as the conditions during this inspection, it
was during the winter and with the high walls,
when the sun dries them out and then we have
the rains, there's a possibility rocks could

788

fall from the high wall:
foot cleaning coal.

There's people on

JUDGE Kou·rRAS: This would be true in any
surface mining environment; wouldn't it?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: So you would come to the same
conclusion if you'd gone to the next one down
the road? You would come to all these
conclusions?
THE WITNESS: Even at the ones to the next
mine, we asked them on their training. Once
the initial time period that a person starts at
a mine -- Some mines give training on a
monthly basis for these same aspects. By law,
they're required eight hours of annual
refresher training to go over these things.
And, at (Tr. 39-40):
As far as I was concerned, Mr. Cook did
know; he's an experienced mining engineer.
He's be~n in the business for at least -better than 20 years; he's familiar with this.
Unle'3s him and this gentleman have some
agreement, as far as I am concerned, yes, sir,
it's just total disregard.
Mr. Newport coniirmed that he did not have the mine training plan with him at the time he interviewed the employees by
their equipment, and that he did not review the plan with them
item-for-item to insure that they had received training in
each of the subjects listed on the plan. He assumed that they
were aware of these items, and aside from their knowledge of
the requirements for safety shoes and hard hats, the employees
told him that they had not received all of the training
required by the plan (Tr. 42).
Mr. Newport confirmed that MSHA's training requirements
require different degrees of training, depending on the
experience of the miner. Pursuant to the respondent's training plan, newly employed experienced miners are required to
receive 3 hours of training, and new miners with no experience
are required to receive 40 hours of training. He confirmed
that the type of training required oi the citad miners in this

789

ca3e appears at page 5 of the training plan (exhibit P-1, Tr.
42). He also believed that the "hazard training" indicated on
the training certificates for Mr. Layton and Mr. Rogers is the
type of hazard training given to mine visitors, rather than to
newly hired experienced miners (Tr. 43).
Mr. Newport confirmed that all of the cited miners were
withdrawn from the mine, and that the citations were timely
abated after the miners received the requisite training from
an individual who is on retainer with the respondent CTr. 45).
He also confirmed that the cited miners had worked at least
2 years at other mines (Tr. 51).
Mr. Newport stated that his prior conversation with
Mr. Cook concerning training took place while he was on a spot
inspection of another mine. Mr. Newport explained that this
mine was along the same haulage road used by the respondent,
and Mr. Cook advised him at that time that the respondent was
considering opening up a new pit. During a conversation in
the mine.office, Mr. Newport stated that he advised Mr. Cook
that "you need to remember the training," and Mr. Cook
responded that "it would be taken care of." Since Mr. Cook
was responsible for the entire mine, Mr. Newport believed that
he was adequately informed about the training requirements
(Tr. 53-54). Mr. Newport confirmed that he had no knowledge
that Mr. Callahan had done any training. Assuming that he
did, since he was not an MSHA certified trainer with a "blue
card," Mr. Newport would still have issued the citations for
improper training (Tr. 56-57).
Respondent's Testimony and Evidence
Marcus A. Wiley, Professional Engineer and President,
Wiley Engineering Company, stated that he was designated by
the respondent's mine superintendent, Doug Cook, to represent
the respondent in this matter because his firm in on retainer
by the respondent a3 a consulting firm. Mr. Wiley asserted
that the respondent has an excellent compliance recor~ and is
concerned for the saiety of its employees. He confirmed that
the respondent's principal reason for contesting the violations was based on it3 desire to challenge the inspecto~'s
finding that the respondent exhibited a "reckless disregard"
for MSHA's training requirements. He conceded that the
complete training required by section 48.26(a), was not given
to the five newly hired experienced miners cited by Inspector
Newport. Mr. Wiley maintained that the employees did receive
some "hazard recognition" training from one of his contractor
employees, John Callahan, and he submitted copies of training
certificates issued to two of the cited miners (Gary Layton

790

and Gaylin Rogers) which indicate that they received this
training on March 30, 1987 (Exhibits R-1 and R-2; Tr. 6-8).
Mr. Wiley explained that Mr. Callahan was one of three
employees of his firm who are certified by the State of
Oklahoma as mine training supervisors, and that Mr. Callahan
was a certified mine foreman assigned as the pit supervisor at
the respondent's mine. Conceding that Mr. Callahan was not an
MSHA "approved" training instructor, Mr. Wiley nonetheless
maintained that the training given to the cited miners by
Mr. Callahan concerned hazard recognition and avoidance,
emergency and evacuation procedures, and health and safety
standards, and that some of this training overlapped MSHA's
training requirements for newly employed experienced miners.
Mr. Newport stated that he has never met Mr. Callahan and
was not aware of his supervisory responsibilities. Mr. Wiley
explained that this was aot unusual since Mr. Cook was the
individual identified under IY1SHA' s mine ID number as the
responsible person at the mine. Mr. Wiley assumed that
Mr. Newport would have contacted Mr. Cook in regard to the
citations which he issued and would not necessarily speak with
Mr. Callahan. Mr. Newport confirmed that during his inspection he did not speak with Mr. Cook or Mr. Callahan, and he
explained tnat Mr. Cook's name appears on the citation forms
as the pertion to whom he served tne citations because Mr. Cook
had previously instructed him to put his name on all citations
issued at the mine (Tr. 26-30).
Mr. Wiley pointed out that the respondent did have an
MSHA approved training plan in effect at the time of the
inspection conducted by Indpector Newport, and that after the
withdrawal of the affected miners, they received immediate
training in order to abate the violations, and that the respondent's training plan was amended to include mine superintendent Cook as one of three individuals certified by MSHA as
approved training instructors. Prior to the inspection,
Mr. Cook was not an approved trainer. Inspector Newpo,rt
agreed that this was the case, and he stated that the citations could have been avoided if the respondent had upgraded
its training plan to include Mr. Cook and Mr. Callahan
MSHA
certified and approved training instructors (Tr. 26-27;
48-50).

as

Mr. Wiley candidly conceded that while the complete and
proper MSHA training may not have been provided by the respondent in this case, he feels personally responsible for this,
but believes that the severity of the inspector's conclusion
that the violations were the result of the redp6ndent's

791

"unwarrantable failure" to comply with MSHA's training requirements is not justified (Tr. 34-35).
·
Findings and Conclusions
Fact of Violations - 30

C.~.R.

§ 48.26(a)

The rebpondent is charged with five alleged violations of
mandatory tl'.:'aining standard 30 C.F.R. § 48.26(a), which mandates certain training for newly employed e.xperienced miners.
The standard requires that such .ininers complete a program of
instruction in seven t.opical categories which are as follows:

1.

Introduction to work environment.

2.

Mandatory health and training standards.

3.

Authority a11d responsibility of
supervisor's and miners' representatives.

4.

Transportation controls and communication
systems.

5.

Escape and emergency evacuation plans;
firewarning and firefighting.

6.

Ground controls; working in areas of
highwalls, water hazards, pits, and spoil
banks; illumination and night work.

7.

Hazard recognition.

Inspector Newport confirmed that he issued the violations
during the course of an inspection and after interviewing the
five miner equipment operators while they were engaged in work
involving the removal of overburden at the surface pit mine in
question. The miners confirmed to the inspector that while
they were aware of the requirements for wearing hard hats and
safety shoes, they had not received any newly employed experienced miner training as required by the respondent's approved
training plan. The inspector also confirmed that the cited
employees could not produce copies of any training certif icates indicating that they had received the required training,
and he could not find any copies of any such certificates
during his review of the appropriate mine records.
The record establishes that while the cited equipment
operators were exparienced miners trained in the operation of

792

•
the equipment they were oparating
at the time of the inspection, they were newly employed miners at the respondent's mine
and had worked there for several weeks prior to the inspection.
Further, the respondent has stipulated and admitted that the
employees in question had not received the required training
specified in section 48.26Ca), as well as its own MSHA approved
mine training plan. Under all of these circumstances, I conclude and find that the failure by the respondent to provide
the required newly employed miner training for the five cited
employees in question constituted violations of the requirements of mandatory training standard 30 C.F.R. § 48.26(a), and
the violations ARE AFFIRMED.
The Unwarrantable Failure Issue
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows
at 295-96:
In light of the foregoing, we hold that an
inspector should find that a violation of any
mandatory standard was caused by an unwarrantable failure to comply with such standard if he
determines that the operator involved has
failed to abate the conditions or practices
constituting such violation, conditions or practices the operator knew or should have known
existed or which it failed to abate because of
a lack of due diligence, or because of indifference or lack of reasonable care.
In several recent decisions concerning the interpretation
and application of the term "unwarrantable failure," the
Commission further refined and explained this term, and concluded that it means "aggra'iTated conduct, constituting more
than ordinary negligence, by a mine operator in relation to a
violation of the Act." Emery Mining Corporation, 9 FMSHRC
1997 (December 1987); Youghiogheny & Ohio Coal Company,
9 FMSHRC 2007 (December 1987); Secretary of Labor v. Ru~hton
Mining Company, 10 FMSHRC 249 (March 1988). Referring to its
prior holding in the Emery Mining case, the Commission stated
as follows in Youghiogheny & Ohio, at 9 FMSHRC 2010:
We stated that whereas negligence is conduct that is "inadvertent," "thoughtless" or
"inattentive," unwarrantable conduct is conduct
that is described as "not justifiable" or

793

"inexcusable." Only by construing unwarrantable failure by a mine operator as aggravated
conduct constituting more that ordinary negligence, do unwarrantable failure sanctions
assume their intended distinct place in the Act's enforcement scheme.
In Emery Mining, the Commission explained the meaning of
the phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:
We first determine the ordinary meaning of
the phrase "unwarrantable failure.• "Unwarrantable" is defined as "not justifiable" or
"inexcusable." "Failure" is defined as "neglect
of an assigned, expected, or appropriate action."
Webster's Third New International Dictionary
{Unabridged) 2514, 814 {1971) {"Webster's").
Comparatively, negligence is the failure to use
such care as a reasonably prudent and careful
person would use and is characterized by
"inadvertence," "thoughtlessneds," and "inattention." Black's Law Dictionary 930-31 {5th ed.
1979). Conduct that is not justifiable and
inexcusable is the result of more than inadvertence, thoughtlessness, or inattention. * * *
I take note of the fact that in this case the petitioner's
proposed civil penalty assessments for the violations in question were processed by MSHA's regular assessment procedures,
taking into account the aix statutory civil penalty assessment
criteria found in aection llO{i) of the Act. Although MSHA had
discretion to waive the regular asaes.3ment formula in determining the amount of the proposed civil penalty assessments for
the violations in question and to apply a more stringent
"special assessment" procedure pursuant to 30 C.F.R. § 100.5,
it did not do so in this case. Two of t.he categories listed
among the guidelines for determining whether or not a "special
assessment" is appropriate are found in section 100.S{b) and
Ch), and they are as follows:
{b} Unwarrantable failure to comply with
mandatory health and safety standards;

*

*

*

*

*

*

*

Ch) Violations involving an extraordinary
high degree of negligence or gravity or other
~nique aggravating circumstances.

794

Notwithstanding the inspector's "unwarrantable failurert
and "reckless disregard" negligence findings, MSHA opted not
to levy "special assessments" for the violations in question,
and its trial counsel could offer no explanation as to why
MSHA did not choose to waive the regular assessment formula in
connection with the violations in question.
The evidence in this case establishes that the respondent
was aware of MSHA's training requirements for newly employed
experienced miners, and had adopted an approved training plan
pursuant to the appropriate MSHA regulations. The evidence
also establishes that at least two of the affected miners
received some hazard recognition training, and I have no
reason not to believe Mr. Wiley's assertions that all of the
miners received at least a minimum of training regarding
hazard recognition. Mr. Wiley impressed me as a credible
individual who readily accepted responsibility for the failure
by the miners to receive the full 3-hour training required by
MSHA's regulation. The evidence also establishes that the
miners in question, who no longer are employed at the mine,
were experienced equipment operators who knew how to operate
their equipment, and were instructed to wear safety shoes and
hard hats.
Inspector Newport confirmed that the respondent had always
previously been in compliance with the required training regulations and had received no prior citations for violating MSHA's
training standards. As a matter of fact, Mr. Newport stated
that when he went to the mine for his inspection he was under
the assumption that all of the miners had been trained because
he had never experienced any prior training problems with the
respondent, and as an example, he cited the fact that John
Hare, an individual in the employ of the contractor, and who
was li~ted in the approved training plan as an MSHA qualified
traini11g instructor, had always conducted the proper training
pursuant to the respondent's plan {Tr. 51, 59).
Although the respondent's mine $Uperintendent Dou,g Cook
did not appear or testiiy at the hearing, I take note of, and
find credible, the answer that he filed in this case.
In his
answer to the penalty assessment proposal filed by the ~eti
tioner, Mr. Cook conceded that he was aware of MSHA's training
requirements, and has always made a sincere effort to comply
with those cequirement3. This statement is supported by the
inspector's testimony that the re:3pondent has always been in
compliance with tne subject training requirements. Conceding
the fact that t'Vir. Callahan, a contracl:. employee of Wiley
Engineering, waa not listed as an HSHA approved training
instructor in its approved training plan, Mr. Cook maintained

795

that this w~s an "oversight." This contention is supported in
part by the fact that during the abatement process, the respondent's training plan was subsequently modified to include
Mr. Cook as an MSHA certified training instructor, and
Inspector Newpo.ct confirmed that had Mr. Cook or Mr. Callahan
been included in the plan as qualified training instructors,
the violations could have been avoided.
I also take note of the fact that in his answer, Mr. Cook
asserted that all of the affected miners were familiar with
the equipment they were operating at the time of the inspection, and that they had received "orientation (walk-around)
training" from Mr. Callahan prior to starting work at the mine.
Mr. Cook apparently believed that since Mr. Callahan was an
experienced surface miner certified by the State of Oklahoma
as a mine foreman, qualified to train miners, he also met
MSHA's requirements as an individual qualified to train the
respondent's miners pursuant to the contract with Wiley
Engineering. This position by Mr. Cook was corroborated by
Mr. Wiley who believed that Mr. Cook thought he was acting
properly, and Mr. Wiley, in hindsight, candidly conceded that
he should have insured that all of the training topics listed
in MSHA's regulation W8re covered during the training of the
miners in quest~on (Tr. 61-62).
Inspector Newport testified that he based his negligence
finding of "reckless disregard" on the fact that on a prior
brief visit to another pit operated by ~he respondent, he
reminded Mr. Cook about the need f0r training in the event the
respondent were to open a new pit, and that Mr. Cook had the
training plan and a copy of the "C.F.R." available for reference. Mr. Newport conceded thac at the time of his inspection, he did not have the training plan with him, nor did he
review it with the miner's who informed him that they had not
received all of the required training, but had been instructed
to wear safety shoes and hard hats.
In further explanation ot his "reckless disregar~' negligence finding, and in particular Mr. Cook's knowledge of the
training requirements, Mr. Newport stated that "it was my
understanding that he knew that depending on a person's.experience on what type of training had to be given." Mr. Newport
also commented that "I thought I covered it pretty good.
Maybe I didn't'; I'll say maybe there's something I left out"
(Tr. 13). At another point during the hearing, Mr. Newport
3tated "As far as I was concerned, Mr. Cook did know; he's an
experienced mining engineer. He's been in the business for at
least -- better than 20 years; he's familiar with this" ( •rr. 39-40).

796

On the facts of this case, and after careful review and
consideration of the record, I find no credible support for
the inspector's "reckless disregard" negligence finding. Nor
can I find any credible evidence to aupport an "unwarrantable
failure" finding. To the contrary, I conclude and find that
at most, the inspector's rationale for making the disputed
finding supports a negligence finding ranging from "ordinary"
to "moderate," rather than one supporting any conclus·ion that
the respondent's conuuct was inexcusable, or egregious, or
that it exhibited the absence of the slightest degree of care.
In short, I find no evidentiary support for any conclusion
that the respondent's failure to insure that the cited newly
employed experienced miners received all of the required training was the result of any aggravated conduct of the kind
described by the Commi3sion in its recent holdings on this
question. Accordingly, the inspector's unwarrantable failure
findings for each of the violations ARE VACATED.
Modification of Citations and Orders
In view of my unwarrantable failure findings, the contested section 104(d)(l) citation and orders are modified to
section 104Ca) citations. See: Old Ben Coal Company,
2 FMSHRC 1187 (June 1980); Consolidation Coal Company,
3 FMSHRC 2207 (September 1981); Youngstown Mines Corporation,
3 FMSHRC 1793 (July 1981).
The Significant and Substantial Violations Issue
A "significant and substantial" violation is described in
section 104(d)(l) of the Mine Act as a violation "of such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard." 30 C.F.R. § 814(d)(l). A violation is properly
designated significant and substantial "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature."
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825_ (April
19 81) •
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary

797

of Labor must prove:
(1) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard--that is, a measure of
danger to safety-contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129, the Commission stated further as follows:
We have explained further that the third
element of the Mathies formula "requires that
the Secretary establish a reasonable likelihood
that the hazard contributed to will result in
an event in which there is an injury." U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance
with the language of section 104Cd>Cl), it is
the contribution of a violation to the cause
and effect of a hazard that must be significant
and substantial. U.S. Steel Mining Company,
Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
S"t'eel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
Although I agr.ee that any mining operation, whether it be
a surface pit mine such as the one operated by the respondent
in this case, or an underground mine, generally involves a
working environment exposing miners to potential hazards and
dangers, the question of whether any particular violation is
significant and substantial must be based on the particular
facts surrounding the violation, including the nature of the
mine involved, Secretary of Labor v. Texasgulf, Inc., Docket
Nos. WEST 85-148-M and WEST 86-83-M, decided by the Commission
on April 20, 1988; Cement Division, National Gypsum Co.,
supra; Youghigheny & Ohio Coal Company, supra.
With regard to the training requirements found in section
48.26Ca), I agree that such training promotes mine safety by
making miners aware of the hazards associated with their
particular jobs tasks, and I have affirmed an inspector's
"S&S" findings where the facts and circumstances clearly established that the lack of training presented a reasonable likelihood of serious injuries associated with such a violation,
Secretary of Labor v. Highwire, Incorporated, 10 FMSHRC 22,
67-68 (January 1988).

798

On the facts of the case now before me for adjudication,
the record establishes that the cited miners who lacked the
training required for newly employed experienced miners were
experienced equipment operators who were trained in the operation of the particular equipment they were operating at the
time of the inspection. The facts also establish that at
least two of the miners, as well as the others, received some
minimum type of "orientation" and hazard recognition training,
and were aware of the fact that they should wear hard hats and
safety shoes. The respondent has conceded that all of the
affected miners had not received the complete 3-hour training
mandated by the respondent's training plan and the cited
training standard, and the violations have been affirmed. The
issue is whether or not these violations were significant and
substantial, and whether the facts and evidence adduced by
MSHA in support of the inspector's "S&S" findings support
those findings.
In the instant case, Inspector Newport confirmed that he
issued no citations for any other safety infractions for the
work environment where the miners in question were working at
the time of his inspection. He also conceded that the equipment operators were experienced and trained in the operation
of their equipment, and he found no unusual mine conditions or
hazardous circumstances present in the areas where the miners
were working. Although he alluded to citations which he
issued at the time of his inspection for the lack of a front
horn on a motor grader and inadequate brakes on some mobile
equipment, he conceded that these violations were found at a
different pit location from that in which the untrained miners
in question were working, and there is no evidence that any of
the equipment 'being operaced by the miners in question was
unsafe or otherwise defective. The inspector also confirmed
that he found no violations associated with the high wall or
spoil bank located in the general area where the miners were
working, and he confirmed that the miners would not be "in
contact" with those areas CTr. 19-21; 25).
Although Mr. Newport indicated that his inspection was
"during the winter" and that there was a possibility that
rocks could fall from the highwall when it dries out after a
rain and that people would be on foot cleaning coal, (Tr. 31),
the fact is that the citations were issued in April, and there
is no evidence to establish that it had rained or that any of
the miners in question were exposed to any rock fall hazards.
Inspector Newport alluded to the .fact that the equipment
which lacked a front horn or adequate brakes travelled to the

799

pit where the miners in question were working, and he took the
position that "it's all one mine." However, there is no probative evidence that this equipment was in fact operated at the
pit where the miners in question were working. Under the circumstances, I give little weight to this testimony and find it
too remote and general to establish that the miners were in
fact exposed to these equipment hazards, or that their lack of
training would have contributed to any hazards associated with
those violations.
In support of his conclusion that the lack of training
would reasonably likely result in injuries to the experienced
miners in question, Inspector Newpor,t relied on the general
hazards associated with moving overburden and the hazardous
nature of the coal mining industry as a whole. In support of
his conclusion' that it was reasonably likely that any injury
associated with the lack of training would result in a fatality, Mr. Newport relied on the fact that the miners were operating "large equipment," and "because of the hazards involved
in the coal mining industry" (Tr. 12). He also believed that
an individual who was not trained to recognize certain aspects
of high walls, equipment movement and dumping patterns, and
the method of mining being followed would reasonably likely to
be exposed to fatal injuries. He further alluded to the fact
that the operation of front-end loaders and trucks entails
right-handed and left-handed mining methods and vehicle passing patterns, and that if equipment operators are not trained
in these methods they could run into each other.
There is no evidence in this case that the experienced
equipment operators who had worked at the mine eor 2 or 3 weeks
prior to inspector Newport's inspection were oblivious to the
mining methods and equipment passing procedures alluded to by
the inspector as part of the basis for his "S&S" findings.
Although it is true that the miners may not have been formally
trained in these matters pursuant to general topical subject of
"Transportation controls and communication systems" which is
part of t.he respondent's training progca1n, Mr. Newport, conceded
that he did not review the training plan with the miners with
whom he spoke to determine their knowledge of these matters,
nor did he make any determinations as to the mining method
being utilized at t~e time of his inspection, or the specific
equipment passing procedures being utilized by these operators.
Inspectoc Newport admitted that the miners told him that
they were aware of the itemized training subjects listed in
the training plan, but had not received all of the training
listed herein (Tr. 42). Given the fact that at least t~o of
them received some kina or hazard recognition training, and

800

that all of them knew about ~he wearing of hard hats and
safety shoes and were experienced equipment operators who had
worked at the mine for weeks before the inspection without any
apparent difficulty or accident or injury incidents, I find it
difficult to believe that they were totally ignorant of the
appropriate work procedures associated with the operation of
their equipment. Further, Mr. Newport conceded that he simply
assumed that the lack of training·exposed the miners to
injuries and fatalities generally associated with any mining
operation (Tr. 19-21).
On the facts of this case, and after careful review and
consideration of Inspector Newport's testimony in support of
his "S&S" findings as to each of the violations, I conclude
and find that these findings were based on general and speculative assumptions that a lack of training would expose miners
to injuries and fatalities generally associated with any mining operation, rather than on any specific prevailing mining
conditions from which one could conclude that the miners in
question were in fact exposed to mine hazards likely to result
in injuries of a reasonably serious nature. In short, I conclude and find that the petitioner has failed to establish by
a preponderance of the credible and probative evidence adduced
in this case that the violations were significant and substantial. Accordingly, the inspector's findings in this regard
are rejected and they ARE VACA'rED.
Size of Business and Effect of Civil Penalty Assessments on
the Respondent's Ability to Continue in Business
Respondent's representative staced that the Welch Mine
employs a minimum of 15 miners, and a maximum of 30. He confirmed that at the time the violations were issued, the mine
employed 15 miners, and currently employs less than five.
Petitioner's counsel agreed that the respondent is a small
surface coal mine operator. Under these circumstances, and
taking into account the respondent's coal production as stipulated to by the parties, I conclude and find that the respondent is a small mine opecator. Further, absent and information
to the contrary, I also conclude and find that the civil penalties assessed for the violations which have been affirmed
will not adversely affect the respondent's ability to continue
in business.
History of Prior Violations
The parties stipulated to the respondent's history of
prior violations. Based on that stipulation, I conclude and
find that the respondent has a good compliance record, and

801

there is no evidence that it has been previously cited for any
violations of MSHA's training standards.
Negligence
I conclude and find that the respondent knew or should
have known about the training requirements found in section
48.26Ca), and that its failure to exercise reasonable care to
insure that this training was given to the newly employed
experienced miner.:> in question constitutes a moderate degree
of negligence on its part.
Gravity
Although I have found tnat on the facts of this case the
violations in question were not significant and substantial, I
nonetheless conclude and find that the failure to adequately
train the newly employed experienced miners in question constituted a serious violation of the training requirements of section 48.28(a). The failure to adequately train a miner could
under certain conditions and circumstances, result in exposing
a miner to potential and possible mine hazards.
Good Faith Compliance
Inspector Newport confirmed that the respondent exhibited
good faith in timely abating the violations. He confirmed
that after the miners were withdrawn from the mine, they
received immediate training administered by a contractor who
was an MSHA approved training instructor, and the orders were
terminated. Under the circumstances, I conclude and find that
the respondent exercised good faith compliance in abating the
violations.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking into account the civil penalty assessments criteria
found in section llO(i) of the Act, I conclude that the following civil penalty assessments for the violations which have
been affirmed are reasonable and appropciate:
Citation No.

Date

30 C.F.R.
Section

2839121
2839123
2839125

04/13/87
04/13/87
04/13/87

48.26(a)
48.26(a)
48.26(a)

Assessment
$75
$75
$75

2839127
2839129

04/13/87
04/13/87

4d.26(a)
48.26(a)

$75
$75

ORDER
The respondent IS ORDERED to pay civil penalty assessments
in the amounts shown above within thirty (30) days of the date
of this decision. Upon receipt of payment by the petitioner,
this matter is dismissed.

Distribution:
Michael Olvera, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Marcus A. Wiley, Wiley Engineering, Inc., 7832 South Elm
Place, Broken Arrow, OK 74011-4353 (Certified Mail)
Mr. Doug Cook, Superintendent, Patch Coal Company, P.O.
Box 295, Welch, OK 74369 (Certified Mail)

/fb

803

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

JUN 241988
SECRETARY·OF LABOR,
MI~E SAFETY AND HEAL'r&
ADMINISTRATION, CMSHA),
Petitioner

:

CIVIL PENALTY PROCEEDINGS

:
:

Docket No. PENN 87-145
A.C. No. 36-00840-03606

v.
Docket No. PENN 87-155
A.C. No. 36-00840-03607

BETH ENERGY MINES, INC.,
Respondeai:

Docket No. PENN 87-188
A.C. No. 36-00840-03612
:
:

.

Docket No. PENN 87-224
A.C. No. 36-00840-03617
Cambria Slope No. 33 Mine

DECISION
Appearances:

William T. Salzer, Esq., and Evert vanWijk, Esq.
Con the brief), Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania for the Secretary of Labor:
R. Henry Moore, Esq., Buchanan Ingersoll·
Professional Corporation, Pittsburgh, Pennsylvania
for Respondent.

Before: Judge Melick
These cases are before me upon the petitions for civil
penalties filed by the Secretary of Labor pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et. seq., ~he "~ct" c;::harging Beth Energy.Mines,
Inc., (Beth Energy) with five violations of regulatory standards.
The general issues before me are whether Beth Energy violated the
cited regulatory standards, and, if so, whether those vioiations
are of such a nature as could significantly and substantially
contribute to the cause and effect of a mine safety or health
hazard, i.e. whether the violations are "significant and
substantial". If violations are found, it will also be necessary
to determine the appropriate civil penalty to be assessed in
accordance with section llOCi) of the Act.

804

Docket Nos. PENN 87-145 and.PENN 87-224
At hearing the parties moved to settle Order No. 2691012
proposing a reduction in penalty from $850 to $650. Based upon
the documentation and representations presented pos~-hearing I
conclude that the profferred settlement is appropriate under the
criteria set forth in section llOCi) of the Act.
Citation No. 2691218 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. § 75.1704 and charges as
follows:
The intake escapeway for 14 left G. West Mains and
G. West Mains left sections was not maintained to
insure passage at all times of any person, including
disabled persons in that the first overcast inby S.S.
4979 in No. 5 entry of G. West Mains had steps to cross
over it and the distance between the steps ranged from
16 inches to 8 inches through which a person could fall
also the steps over the 2 overcast where the escapeway
crosses from the left side of G. West to the right had
spaces between the steps from 4 inches to 11 inches
through which a person could fall. These overcast
[sic) were from 66 incheB to 72 inches high and had 6
or 7 s~eps each. Also from S.S. 1126 in No. a entry
through a xcut to No. 9 entry and outby on No. 9 entry
to S.S. 1240+50 feat. The travelway had piles of rock
at lease one-foot high across the escapeway.
Citation No. 2698137 similarly alleges a "significant and
substantial" violation of the same regulatory standard and
charges as follows:
The alternate escapeway for the E East left, E East
right, 4LT E East and 5LT E East which is the left side
return of E East is not being maintained to insure
passage at all times of any person, including disabled
persons. At 3 locations steps were built over overcast
and gaped [sic] between the steps up to 9 inches were
present that a person or a part of a person could fa~l
through causing injuries in the event of an emergency.
The 3 locations are Cl) inby overcast in the 2nd set in
the return both sets of steps the top set was 9 inches
from the top of the overcast (2) inby overcast in the
3rd set in the return both sides steps were gaped [sic]
from 4 to inches (3) inby overcast in. the 4th set on
the return inby side steps had gaps from 4 to 6 inches.
The Secretary maintains that the cited conditions
constituted a violation of that part of the standard at 30 C.F.R.
§ 75.1704 which reads as follows:

805

At least ~wo separate and distinct travelable
passageways which are maintained to insure passage at
all times of any person, including disabled persons,
and which are to be designated as escapeways ••• shall
be provided from each working section ••• and shall be
maintained in safe condition.
It is apparent that the language of this standard is
expressed in general terms so that it may be adaptable to myriad
situations affecting the safety of escapeways. See Kerr-McGee
Corp. 3 FMSHRC 2496 (1981). Accordingly questions of liability
fbr alleged vidlations of this standard must be resolved by
reference to whether a reasonably prudent person, familiar with
the mining industry and the protective purpose of this standard,
would have recognized the hazardous conditions that the standard
seeks to prevent. Ozark-Mahoning Co., 8 FMSHRC 190 (1986); Great
Western Electric Co.; 5 FMSHRC 840 (1983); U.S. Steel Corp., 5
FMSHRC 3 (1983); Alabama By-Products Corp., 4 FMSHRC 2128 (1982).
Specifically the maintenance of escapeways in safe condition
must be measured against the test of what a reasonably prudent
person, familiar ~ith the mining industry and protective purpose
of the standard, would have provided in order to meet the
p.cotection intended by thE3 standard.
rhe Commission has stated
that the reasonably prudent person test contemplates an
objective, and not subjective, analysis of all surrounding
circumstances, factors and considera~ions bearing on the inquiry
at issue. Great Wedtern, sup.ca., 5 FMSHRC at 842-843.
Citation No. 2691218 charges two categories of violation,
namely, excess gaps between the steps over the overcasts in the
intake escapeway and piles of rocks across the escapeway. The
evidence on these issues is essentially undisputed. The first
overcast was approximately 66 inches high. The gaps in the steps
on one side of this overcast were unifo.cmly 8 inches, except
between the top step and the top of the overcast where the
horizontal distance between the st~p and the top of the overcast
was 16 inches. This step was level with the top of the overcast.
The gaps on the other side of the overcast were nearly of uniform
width of between 4 to 6 inches. The second overcast was
approximately 72 inches high and the gaps were from 4 to 11
inches. The cited pile of rocks was about one foot high and two
to three feet ~ide and continued across the entry.
The steps cited in Citation No. 2698137 had been in
existence for several months to a year. At the second set of
overcasts in E East the top step on each side was 9 inches from
the oveccast. At the third set of overcasts in the alternate
escapeway there were gaps of 4 to 6 inches. These sets of
overcasts were all approximately 4 1/2 feet high.

806

The horizontal gaps in the steps in both G West and E East
were almost uniformly 4 to 6 inches with the exception of the gap
between the top step and the top of the overcast. In three
instances this gap exceeded 6 inches but the top step and the top
of the overcast were in the same horizontal plane with no
vertical rise between the steps. One set of steps had uniform
gaps of 8 inches. All of the cited steps were constructed of
wood and were six feet wide with treads of uniform width. The
backs of the steps were open. ~he steps in E East had handrails.
MSHA Inspector Gene Ray, who issued these citation, opined
that the existence of gaps of varied widths in the steps created
a hazard because miners "could very easily not see the hol.e
between the steps and fall into it and get injured." He further
described the hazard as follows:
If people had to evacuate these ••• sections in an
emergency situation, and they would be in a hurry •••
they would fall between--that they would slip into one
of these gaps, that they could become injured ••. they
could receive a sprain or a broken leg. Also, in that
they would be injured, it would slow them down in the
process of evacuating the mine in case of an emergency.
Ray also observed that miners "could trip and injure
themselves" over the rock piles while traveling the escapeway in
an emergency situation.
·
Within this framework I conclude that a reasonably prudent
person familiar with the tactual circumstances surrounding the
cited conditions would have recognized that the irregular gaps up
to 16 inches wide in the steps over the overcast and the
described pile of rocks created hazardoua conditions in the
escapeways such as to constitute violations of the cited
standard.
I also find that the violations were "significant and
substantial". The described violations contributed to the
discreet safety hazard of tripping or slipping and/or falling
through the uneven gaps in the steps and of tripping over the
piles of rocks. I~ is reasonably likely to expect such a hazard
to result in injuries such as sprains oc factures and that such
injuries would be of a reasonably serious nature. See Mathies
Coal Co. 6 FMSHRC l (1984). The hazards ~ould also be greatly
exarcebated by an evacuation through the cited areas during an
emergency.
I find however that the operator is chargeable with but
little negligence with respect to the violations charged in
Citation No. 2691218.
The evidence shows that although some of

807

the gaps in the steps had existed for up to ten years and in
areas subject to MSHA inspections, no citations or other notice
had been given that they constituted violations. Similarly with
the respect to the rock piles, Beth Energy is chargeable with but
little negligence. There is no evidence to show that Beth Energy
officials had prior knowledge of the rocks in an area that is not
subject to frequent inspections. However since the violations
charged in Citation No. 2698137 were found on June 15, 1987, five
months after notice of similar violations in Citation No.
2691218, it is .clear that the operator should have corrected the
cited conditions. Its failure to have done so constitutes
negligence.
Oocket No. PENN 87-155
On February 11, 1987, MSHA Inspector William L. Davis issued
Citation No. 2691158 pursuant to Section 104(a) of the Act. the
citation alleges a "significant and substantial" violation of the
standard at 30 C.F.R. § 75.202 and charges as follows:
The roof was found to be inadequately supported in that
the 6" x 8" x 5' crossbars (2) of them were broke [sic]
and several showed signs of exce8sive weight on them,
therefore this entry is not safe for travel by a
certified person for weekly examinations. Located in
the No. 8 entry between the second and third crosscut
inby survey station Ho. 7226 of the No. 10 entry of the
F West Mains.
The citation was issued following an inspection of the F
West Mains area by Inspector D:::ivis and Foreman Roger Mcintosh on
February 11, 1988. The F West area was an inactive area where
mining had not occurred for several years. The only persons who
regularly encered the subject area were mine examiners who
perform weeKly examinations of the bleeder evaluation points and
the return air courses. Such ex:aminat.ions were being made in the
Nos. 8, 9, or 10 entries, depending on the condition of the
particular entry, and these entries were in common.
The evidence shows that Davis had never previously inspected
this area and neither he nor Mcintosh knew the precise route
followed by the mine examiner who traveled these entries.
While Davis first testified that they were able to follow the
precise route of the mine examiner by tracking footsteps in the
coal dust, he later admitted that the footprints could have been
made years earlier when the section was active.
Davis testified that he and Mcintosh passed through the F
West entries until they arrived at spad No. 7145 in the No. 8
entcy. Just beyond that point, he noticed that 2 crossbars used

808

for roof support were broken' Davis and Mcintosh then turned
left in a crosscut and proceeded to che No. 9 entry. They looked
down the No. 9 entry and observed that the bottom was heaved and
there was roof pressure in the No. 9 entry beyond where they were
standing. Davis thought it was not feasible to travel in the No.
9 entry so they travelea to the No. 10 entry and apparently
proceeded down the ~o. 10 entry.
According to Davis, the citation was abated by marking a
route of travel in the No. 8 entry between a row of timbers and
the right hand rib. In issuing the citation, the inspector
assumed that the mine examiner was traveling under the bad roof
in the No. 8 entry but had no idea which entry the mine examiner
actually traveled.
Ralph Keefe, a union mine examiner, testified that he made
the weekly examination the week before the subject citation and
had regularly made such examinations. His normal route of travel
was to proceed down the No. 8 entry to spad 7145. Keefe would
then turn left (as Inspector Davis did) and travel over one
crosscut to the No. 9 entry. He would turn right down the No. 9
entry and travel two crosscuts. According to Keefe he would then
turn right and travel in a crosscut back to the No. 8 entry thus
avoiding all of the dangerous areas in the entries (See Exhibit
R-2). He would then turn left through a crosscut to the No. 10
entry and travel three crosscuts in the No. 1-0 entry because of
the fall in the No. 9 entry.
The route avoided bad roof in the No. 8 entry beyond spad
7145, it avoided bad roof beyond the crosscut where the examiner
turned from the No. 9 to the No. 10 entry and it avoided the bad
roof behind the area where the examiner entered the No. 10 entry.
Keefe specifically testified that he did not travel under the
cited bad roof in the No. 8 entry when making his weekly
examination of the F West returns. He had been making
examinations in this area for a year and a half before the
citation and was aware of this area of bad roof. According to
Keefe the route had also been marked so that the cited area in
the No. 8 entry could be avoided.
I find the testimony of Keefe to be entitled to significant
weight as he clearly was the person most knowledgeable about the
cited area, having been the mine examiner for the previous year
and a half, and was the only witness having first hand knowledge
of the actual route traveled during the mine examinations. On
the other hand Inspector Davis was clearly not familiar with the
cited area and was inspecting it for the first time. Moreover
Davis did not question the mine examiner to determine the route
he traveled or avail himself of the opportunity to accompany the
examiner along his regular route. Davis also acknowledged that

809

it was difficult, it not impossible, because of the condition of
the mine floor, to otherwise determine which path was followed by
the mine examiner. Under the circumstances he could only
speculate as to the route traveled. Davis also contradicted
himself in a_critical respect by first stating that-bad roof
prevented all passage in the No. 10 entry but later admitting '
that there was no area of bad roof along the route Keefe followed
in the No. 10 entry.
Under the circumstances I do not find that the Secretary has
sustained her burden of proving that a violation has occurred
herein. Accordingly Citation No. 2691158 is vacated.
Docket No. PENN 87-188
Citation No. 2691708 alleges a violation of the regulatory
standard at 30 C.F.R. § 75.1707 and charges as follows:
The isolated intake air escapeway, designated as such
by the operator (no. 2 entry) and the "D" East Mains
trolley haulage Cno. 3 entry) were not separated. This
area was developed after March 30, 1970 and this
isolated escapeway is used by the 6 left active
working section. The first crosscut between no. 2 and
no. 3 entries inby survey station no. 5074 was open and
air was passing from no. 3 entry into no. 2 entry. The
air is in common at the first crosscut inby survey
station no. 5074 and also for two crosscuts outby this
area where the intake air and escapeway goes into the 6
left working section; however, the air traveling in
towards the 6 left section was splitting at the mouth
of this section with a small amount of air going inby
in the no. 2 entry. The air passing inby in no. 2
entry is preventing the track/trolley air from entering
6 left section at this time.
The cited standard provides as relevant hereto that "the
escapeway required by this section to be ventilated with intake
air shall be separated from the belt in trolley haulage entries
of the mine for the entire length of such entries to the
beginning of the working section ••• " The term "working section"
is defined in the regulations as all areas of a coal mine from
the loading point of the section to and including the working
face.
See 30 C.F.R. § 75.2Cg)(3). In this case it is not
disputed that the belt tail would be considered the loading
point.
The Secretary argues that although the intake escapeway
"curls" around in a "horseshoe" away from the working face,
from the loading point to the faces would nevertheless be inby

810

and everything from the loading point in the other direction and,
implicitly, doubling back, would be outby~ MSHA Inspector Ronald
Miller's testimony in this regard is not disputed. Accordingly,
from the reference point at the belt tail of the 6 left section
"any point t~aveling out the belt entry would be therefore outby".
Under the circumstances it id clear that under the cited standard
the operator was required to maintain a separation between the
intake air and the trolley haulage entcy in the cited areas.
Beth Energy maintains that it did provide such separation
without permanent stoppings by use of a pressure differential.
However the persuasive evidence in thi.s case through the
testimony of MSHA's expert witnesses is that pressure separation
alone is not sufficient under the cited standard unless a
specific exception is granted under the regulation or under the
procedure for the approval of ventilation plans. According to
Inspector Miller the "separation" tha~ is required by industry
standards is a physical barrier or stopping.
According to ~SHA ventilation specialist Samuel Burnetti,
in mines where pressure separation is permitted a physical
barrier such as a regulator must also be used in conjunction
therewith to provide adequate control. Even Beth Energy Mine
foreman Nick Carpinello acknowledged that he would not permit an
air pressure differential between an intake escapeway and the
track trolley for any of the crosscuts where the two directly
parallel each other and that such separation would ~e in
violation of the cited standard. Carpinello also acknowledged
that if the air flow in the escapeway should reverse then the air
from the track trolley would indeed enter the escapeway. This
testimony corroborates that of the MSHA experts supporting the
rationale of the regulation to avoid a potential hazard.
Under the circumstances I find that MSHA's construction of
the standard to be consistent with accepted industry practice and
the "reasonable person" test discussed supra. Under the
circumstances the failure of Beth Energy to have erected
permanent stoppings as cited constituted a violation of
30 C.F.R. § 75.1707.
I do not find however that the Secretary has met her burden
of proving the necessary probabilities of an occurrence to
establish the violation as "significant and substantial". See
Mathies Coal Co., supra. The testimony of Burnetti and Miller
concerning the potential for an air reversal that could cause
track air to flow onto the intake escapeway was speculative and
based on presumptions of fact not established in the record. For
the same reasons I do not find that the Secretary has proven that
the violation was of high gravity.

811

I also find that Beth Energy is chargeable but with little
negligence in regard to this violation. This finding is based in
part on the confusion caused by the unusual "horse-shoe" design
of the escapeway. It is also based on the evidence that Beth
Energy had previously utilized pressure separation without being
cited and that a prior violation had been vacated by MSHA
officials on the basis that a separation was in fact being
maintained by positive air flow.
In determining appropriate civil penalties in these cases I
have also considered that the mine operator is of moderate' size
and does not have a significant history of violations. I also
have taken it into consideration that the violative conditions
were abated in a good faith and timely manner.
Accordingly I find that the following civil penalties are
appropriate: Docket No. PENN 87-145 - Order No. 2691012
(settled) $650; Citation No. 2691218 $75. Docket PENN 87-155
Citation No. 2691158 (vacated). Docket No. PENN 87-188 Citation No. 2691708 $100. Docket No. PENN 87-224 - Citation No.
2698137 ..;.$250.

ORDER
Citation No. 2691158 is vacated. Order No. 2691012 and.
Citation Nos. 2691218, 2E91708 and 2698137 are affirmed and Beth
Energy Mines, Inc., is directed to pay civil penalties to lling
$1,075 within 30 days of the date of this d

Distribution:
Evert H. vanWijk, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market Street, Philadelphia, PA 19104 <Certified
Mail)
.
R. Henry Moore, Esq., Buchanan Ingersoll Professional
Corporation, 58th Floor, 600 Grant Street, Pittsburgh, PA
(Certified Mail)
nt

812

15219

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

JUN 271988
CONTEST PROCEEDINGS

M.A.E. WEST, INCORPORATED,
Contestant

v.

Docket No. WEVA 87-234-R
Citation No. 2909484; 5/14/87

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

:

Docket No. WEVA 87-235-R
Citation No. 2909485; 5/14/87

:

Docket No. WEVA 87-236-R
Citation No. 2909486; 5/14/87
Docket No. WEVA 87-237-R
Citation No. 2909487; 5/14/87
Docket No. WEVA 87-238-R
Order No. 2909488; 5/14/87
Docket No. WEVA 87-239-R
Citation No. 2909489; 5/14/87
MAE West Preparation Plant
Mine ID 46-03755

SECRETARY OF LABOR,
MINE SAFETY AND HEAL'rH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 88-92
A.C. No. 46-03755-03534

v.
M.A.E. West Preparation Plant
M.A.E. WEST, INCORPORATED,
Respondent
DECISIONS
Appearances:

Mark M. Neil, Esq., Rist, Neil & Associates,
and William D. Stover, Esq., M.A.E. Services,
Inc., Beckley, West Virginia, for the
Contestant/Respondent;
JacK E. Strausman, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for the Respondent/Petitioner.

813

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern six Notices of
Contests filed by M.A.E. West Incorporated pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 815(d), challenging the validity of four section
104(a) citations, with special "significant and substantial"
(S&S) findings, and two section 107Ca) imminent danger orders
issued at M.A.E. West's Preparation Plant on May 14, 1987.
The citations and orders were issued after the conclusion of a
fatal accident investigation conducted by MSHA (Exhibit G-27).
A hearing was conducted in Beckley, West Virginia, during
May 24-25, 1988, and the parties appeared and participated
fully therein.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub: L. 95-164, 30 U.S.C. § 801 et seq.
2.

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

The issues presented in these proceedings are as follows:
1. Whether or not the conditions and
practices cited in the imminent danger orders
constituted an imminent danger within the
meaning of section 107(a) of the Act.
2. WhetheL or not the conditions or
practices described in the citations issued
pursuant to section 104(a) of the Act constituted violations of the cited mandatory safety
standards, and if 30, ~hether or not these
violations were significant and subdtantial.
3. The appropriate civil penalty assessments that should be ass~ssed against M.A.E.
West for the violations in question, taking .
into account the civil ~enalty assessment
criteria found in section llO(i) of the Act.

814

Stipulations
The parties stipulated to the following <Exhibit ALJ-1;
Tr. 5-6):
1. MAE West, Inc. is a West Virginia
corporation located at 41 Eagles Road, Beckley,
West Virginia 25801.
2. MAE West, Inc. operates a bituminous
coal preparation plant at Uneeda in Boone
County, West Virginia.
3. The federal mine identification number
for the MAE West Prep. Plant is 46-03755.
4. MAE West, Inc., and the operation of
the MAE West Prep. Plant, are subject to the
jurisdiction of the Mine Safety and Health Act
of 1977, as amended, 30 u.s.c. § 801 et seq.
5. The Administrative Law Judge has
jurisdiction over this proceeding.
6. The inspector who issued the subject
104(a) citations (numbers 2909484, 2909485,
2909487, and 2909489) and the subject 107Ca>
imminent danger orders (numbers 2909486 and
2909488) was a duly authorized representative
of the Secretary of Labor.
7. The subject 104Ca) citations (numbers
2909484, 2909485,2909487 and 2909489) and the
subject 107 (a) immi11ent dange.c orders (numbers
2909486 and 2909488) were properly served upon
the operator in accordance with sections 104(a)
and 107Ca) of the Acc.
8. Copies of the subject citations and
orders, and the subsequent modifications or
terminations issued, are authentic and may be
admitted into evidence for the purpose of
establishing their issuance and not for the
truthfulness of any statement therein.
9. A copy of Form R-17, the Assessed
Violation History Report for the MAE West, Inc.
Prep. Plant accurately sets forth the number
and types of violations assessed for said plant

815

during the period from May 12, 1985 to May 11,
1987 and may be admitted into evidence.
10. For purposes of section llO(i) of the
Act, MAE West, Inc. is a moderate-sized
company.
11. The imposition of the proposed civil
penalties will not affect the operator's
ability to continue in business.
12. For purposes of section llO(i) of the
Act, the operator demonstrated good faith in
achieving compliance with the Act after being
notified of the subject 104(a) violations
(numbers 2909484, 2909485, 2909487, 2909489).
Bench Ruling
During opening statements at the hearing, MSHA's counsel
moved for leave to amend and modify section i07(a) Order
No. 2909486 to cite a violation of 30 C.F.R. § 77.404(c)
rather than 30 C.F.R. § 77.516 (Exhibit G-3-a). Counsel also
moved to amend and modify section 104(a) Citation No. 2909487
to cite a violation of section 77.404(c), rather than section
77.516, and to delete the sentence which originally appeared
in item #8, "condition or practice" on the face of the original citation form, which read "The practice is contrary to the
National Electrical Code section 430-86" (Exhibit G-4-a).
M.A.E. West's counsel filed a previously prepared written
objection to the proposed modifications and amendments, and
after further arguments on the record, MSHA's request was
granted, and the objection was rejected (Tr. 8).
Discussion
The contested citations and orders, as modified and
amended, are as follows:
§

Section 104(a) "S&S" Citation No. 2909484, 30 C.F.R.
77.502 (Exhibit G-1):
The conduit provided for the 480 volt a.c.
three phase circuit for the drive motor of the
ra~ coal bypass belt, also called the breaker
reject belt, included a junction box that was
damaged to the extent .chat muck and water were
allowed to accumulate in it. This resulted in

a power lead shorting to ground, and it shorted
out the start-stop controls of the Koppers
rotary breaker.
Section 104(a) "S&S" Citation No. 2909485, 30 C.F.R.
§ 75.516 (Exhibit G-2):

The No. 14 AWG control leads for the JDG
switch of the Koppers rotary breaker were
spliced 12 feet inby the large splice box
located on the underside of the 2nd floor of
the breaker building. The splice shorted to
the conduit and shorted the start-stop switches
for the Koppers rotary breaker. The splice was
located inside a run of conduit tubing, not
acceptable in the National Electrical Code,
section 346-14 for rigid metal conduit, and
section 345-14 for intermediate metal conduit.
Section 107(a) Imminent Danger Order No. 2909486,
30 C.F.R. § 77.404(c), (Exhibits G-3 and G-3-a):
During the investigation of a fatal
accident, it was revealed that a practice of
working on and inside the Koppers rotary
breaker without locking out the circuit breaker
which was the disconnecting device, existed.
Section 104(a) "S&S" Citation No. 2909487, 30 C.F.R.
(Exhibits G-4 and G-4-a):

§ 77.404(c)

The investigation of a fatal accident
revealed that a practice of not turning power
off and locking out the circuit breaker for the
Koppers rotary breaker existed when work was
being performed on the machine. The circuit
breaker was the power disconnecting device.
Secl:ion 107Ca) Ircmlinent Dangar Order No. 2909488,
30 C.F.R. § 77.516, (Exhibits G-5):
During the investigation of a fatal accident it was found that so1ne circuit breakers in
the cir=uit breaker room of the breaker bQilding which wera the power disconnecting devices
for tne motor circuits were not provided with a
means to be locked out when work was being
performed.

Section 104(a) "S&S" Citation No. 2909489, 30 C.F.R.
(Exhibit G-6):

§ 77.516,

Some circuit breakers used as the oower
disconnecting devices for motor circuit~ in the
breaker building were not provided with a means
to be locked out when work was being performed
on the machines. This is contrary to the
National Electrical Code section 430-86. These
circuit breakers included the rock bin undercut
gate, the 2-48 inch slope conveyor, and the
main.
MSHA's Testimony and Evidence
In support of its position in these proceedings, MSHA
presented the testimony of Federal Mine Inspectors James E.
Davis and Roy w. Milam. Inspector Davis prepared the official
report of investigation concerning the accident in question,
and he testified as to his findings which were included in the
report, as well as to certain information developed during
interviews with certain witnesses in the course of the investigation (Exhibits G-27 and G-30). Inspector Milam, the individual who issued the contesced citations, testified as to the ·
facts and circumstances concerning his electrical inspections,
and the reasons for the issuance of the citations in question.
During the second day of the hearing, and during a break
in the cross-examination of Inspector Milam, the parties
advised me that they had reached a proposed settlement in all
of these matters, and MSHA's counsel requested some additional
time to contact his off ice for the purpose of discussing and
clearing the proposed settlement with his supervisor.
Counsel's request was granted, and the hearing was recessed to
accommodate the parties in their further settlement negotiations. 'rhe hearing was subsequently recomrened, and the
parties advised me that they had reached an agreement and proposed settlement of all of the cases, and they were afforded
time to present their settlement motions, including supporting
arguments on the record. MSHA's counsel confirmed that Inspectors Davis and Milam agreed with the terms of the settlement,
which are as follows (Tr. 55-60):
1. Docket Nos. WEVA 87-234-R,
WEVA 87-235-R, and WEVA 87-239-R. With regard
to section 104(a) "S&S" Citation Nos. 2909484,
2909485, and 2909489, the parties are in agreement that the citations may be affirmed as
issued and modified by the inspector. M.A.E.

818

West agreed to pay the full ru~ount of the proposed civil penalty assessments for the violations in question, and agreed to withdraw its
contests in this regard.
2. Docket No. WEVA 87-238-R. The parties
agreed that the contested section 107(a) Imminent Danger Order No. 2909488, may be affirmed
as issued and modified by the inspector, and
M.A.E. West agreed to withdraw its contest in
this regard.
3. Docket Nos. WEVA 87-236-R and
WEVA 87-237-R. With the concurrence of Inspector Milam, the parties agreed to amend and
modify section 107(a) Imminent Danger Order
No. 2909486 and section 104(a) "S&S" Citation
No. 2909487, so that the "condition or practice" described by the inspector will read as
follows:
During the investigation of a
fatal accident it was concluded that
Chester Asbury entered the Koppers
Rotary Breaker for the purpose of
repairs and maintenance without the
power being off in violation of
30 C.F.R. § 77.404(c).
The inspector's "high" negligence finding
with respect to Citation No. 2909487 is reduced
to "moderate," thereby justifying a reduction
of the original civil penalty assessment.
The parties agreed that the contested
order and citation, as amended and modified
abova, may be affirmed as issued, and subsequently amended and modif.ied. M.A.E. West
agreed to withdraw its contests in this regard.
With respect t0 MSHA's proposed civil
penalty assessment of $8,000, for the Citation
No. ~9094a7, MSHA agreed to raduce its proposed
penalty asses3ment for this violation to
$7,000, and M.A.E. West agreed to pay that
amount in satisfaction of the violation.

819

Conclusion
Aiter careful review and consideration of the pleadings,
and the arguments presented by the parties in support of the
proposed settlement disposition agreed to by the parties in
these proceedings, the proposed settlements were accepted and
approved :from the bench. Further, pursuant to the requirements of Commission Rule 30, 29 C.F.R. § 2700.30, I conclude
and find that the settlement agreements are reasonable and in
the public interest, and my bench decisions in this regard ARE
REAFFIRMED.
ORDER
All of the citations, orders, and violations in issue in
these proceedings ARE AFFIRMED. M.A.E. West IS ORDERED to pay
the following civil penalty asaessments for the violations in
question, within thirty (30) days of the date of these
decisions and order:
Citation/
Order No.

Date

30 C.F.R.
Section

Assessment

2909484
2909485
2909487
2909489

05/14/87
05/14/87
05/14/87
05/14/87

77.502
77.516
77.404(c)
77.516

$ 255
$ 255
$7,000
$ 180

IT IS FURTHER ORDERED that the Notices of Contests filed
by M.A.E. West in connection with the contested violations in
i3sue in these proceedings ARE DISMISSED. Upon receipt of
payment of the aforesaid civil penalty assessments by the petitioner, the civil penalty proceeding ia likewise dismissed.

~~Kouf;~
Administrative Law Judge

- 820

Distribution:
William D. Stover, Esq., M.A.E. Services, Inc., 41 Eagles
Road, Beckley, WV 25801 (Certified Mail}
Mark M. Neil, Esq., Rist, Neil & Associates, 1800 Harper Road,
Beckley, WV 25801 (Certified Mail}
Jack E. Strausman, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203 (Certified Mail}

/fb

821

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE. SUITE 400
DENVER. COLORADO 80204

JUN 2 81988
FMC WYOMING CORPORATION,
Contestant

.

CONTEST PROCEEDINGS
Docket No. WEST 86-43-RM
Citation No. 2647693; 11/23/85

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

Docket No. WEST 86-44-RM
Order No. 2647694; 11/23/85
Docket No. WEST 86-45-RM
Order No. 2647695; 11/23/85
FMC Trona Mine

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

.
.
.

CIVIL PENALTY PROCEEDING
Docket No. WEST 86-110-M
A.C. No. 48-00152-05535

v.
FMC Trona Mine
FMC WYOMING CORPORATION,
Respondent
and
UNITED STEEL WORKERS OF
AMERICA,
Intervenor
DECISION
Appearances:

James H. Barkley, Esq., Margaret A. Miller, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Respondent/Petitioner;
James Holtkamp, Esq., Vancott, Bagley, Cornwall &
McCarthy, Salt Lake City, Utah,
for Contestant/Respondent;
Stan Loader, Staff Representative, United Steelworkers of America, Rock Springs, Wyoming,
Intervenor.

Before:

Judge Cetti
Statement of the Case

These consolidated contest and civil penalty proceedings
arise under the Federal.Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et~., Cl982)("Mine Act"). The Secretary on
behalf of the Mine Safety and Health Administration CMSHA)
charges the FMC Wyoming Corporation ("FMC") with violating three
regulatory safety standards.

822

The three violations charged are based upon MSHA's mine
inspector Robert Scheneman's November 19th inspection of FMC's
Trona mine surface facility.
Factual Background
FMC operates a trona mining and processing facility near
Green River, Wyoming. The trona is found in thick underground
seams. FMC extracts the trona from its natural deposits by using
underground mining and in situ leaching methods. Adjacent to the
mine is a large surf ace plant where the trona is processed into
various products.
The citation and orders in these proceedings arise not from
extracting or processing trona but from maintenance work done by
FMC's maintence crew on the No. 3 turbine in the "Sesqui"
powerhouse, located in the surface plant. The turbine is one of
three turbines which are used to generate electricity for use at
the surf ace plant. The turbines and associated boiler are
enclosed in the powerhouse which has large doors on the west side
for heavy equipment access.
STIPULATIONS
The parties stipulated as follows:
1.

FMC is a large operator.

2.

The violations were abated within the period proscribed.

3. Payment of the amended penalties will not impair FMC's
ability to continue in business.
4. The operator's history of prior violations is average
for an operator of its size.
Citation No. 2647693
This citation was issued under section 104(a) of the Mine
Act on November 23rd by MSHA Inspector Robert Scheneman.
The citation alleges a violation of 30 C.F.R. § 57.5002
which mandates the following:
Dust, gas, mist, and fume surveys shall be conducted as
frequently as necessary to determine the adequacy of
control measures.
In the citation MSHA inspector Robert Scheneman correctly
states the facts as follows:
The company Industrial Hygienist was not notified when
work was being started to remove the asbestos type in-

823

sulation from the No. 3 turbine in Sesqui Powerhouse.
There were no surveys taken to determine if the people
working were overexpo_sed to asbestos. The Industrial
Hygienist did take samples after the work was done and
they were cleaning up.
This citation was modified from a 104Ca) citation to a
104Cd)(l) citation on December 12, 1985.
On November 4, a maintenance crew supervised by FMC foreman
John Wilfong began the process of dismantling the No. 3 turbine
for its scheduled 5-year overhaul.
The dismantling work began with the removal of the turbine
covers and blanket insulation. The blanket appeared to be made
of "grayish" fiberglass cloth 2 inches thick.
It extended only
along the flange area of the turbine cover. The blanket insulation was placed over the handrail behind the control room
which is near the turbine.
Next the maintenance crew removed the flange bolts using a
hydraulic wrench and separated the halves of the turbine. This
process took approximately three days and entailed the chipping
away of insulation around the bolts.
The insulation in the bolt area appeared to be a hardboard
type mortar.
As the insulation was chipped away, the pieces fell
on either side of the turbine down to the first floor below. The
mortar was enmeshed in chicken wire. Underneath the mortar were
bricks of insulation,held in place by baling wire. The removal
of the mortar insulation entailed cutting the chicken wire with
pliers and chipping some of the mortar to loosen it from the
bricks. The chicken wire with the mortar then fell underneath
the turbine to the floor below. The brick insulation was removed
by cutting the baling wire, allowing the bricks to fall to the
floor beneath the turbine. The brick insulation was a soft
chalky substance that would stick under a thumb nail if scratched.
The mortar and brick insulation removal required approximately
two to four hours of work. The total time taken to remove the
insulation was about three days. The insulation debris was left
scattered about the area for approximately two weeks.
It is undisputed that FMC did not take dust surveys during
the three day period the maintenance crew removed the insulation
nor during the following two weeks.
It it also undisputed that
MSHA never took any air samples at any relevant time.
During the bolt removal process, some dust was kicked up
into the air. Before the bolt could be removed the crew had to
use hammers to remove the second layer of insulation. This
plaster like insulation was held together with chicken wire.
It

was soft and would crumble when hit. As the material .was broken
up it was dropped or thrown to the floor below. As the insulation was dropped to the floor it created dust.
One
maintenance employee described the dust as a heavy flour type
dust that would fly up when hit.
The maintenance foreman in charge of the crew was John
Wilfong.
He had been assigned the task of overhauling the No. 3
turbine by his immediate supervisor, Mike Hruska. Foreman
Wilfong was asked by three members of his crew whether insulation
they were handling contained asbestos, and whether it was safe to
handle it.
The foreman gave them vague assurances that it was
safe. Hruska as well as Wilfong saw the insulation being removed
from the turbine.
On November 18, 1985, FMC's industrial hygienist Carl Watson
came to the Sesqui powerhouse to check on the work of an independent outside contractor who had a crew that specialized in
removal of material containing asbestos.
This crew wore protive clothing and equipment. This crew was engaged in removing
insulation containing asbestos from the 61 foot high upstairs
ceiling of the facility.
The building was properly posted with
warning signs. This ceiling insulation removal is unrelated to
the citation and orders in this case except to show FMC awareness
and attention to airborne hazards. During his November 18th
check of the Sesqui powerhouse, FMC's industrial hygienist first
became aware that insulation had been removed from turbine No. 3.
He indicated to the foreman Mr. Wilfong that the insulation
blankets could contain asbestos and asked that they be properly
bagged. He also directed that the insulation on the floor below
the turbine be cleaned up by wetting the insulation and putting
it into plastic bags. Two employees cleaned up the insulation
after it had been wetted down. Those engaged in the cleanup wore
protective clothing with canister masks.
On the following day, November 19, 1985, MSHA Inspector
Robert Scheneman was making a regular inspection at the FMC
facility.
The inspector came to the powerhouse to check on FMC
personnel cleaning up insulation material taken off the turbine.
When the inspector arrived at the No. 3 turbine he saw Carl
Watson, FMC's industrial hygienist taking samples and observed
the cleanup crew wearing protective clothes and masks cleaning up
the insulation.
The mine inspector took a "grab" sample out of one of the
bags of insulation, which he sent to Denver MSHA Tech Support for
analysis. The report, petitioner's exhibit 1, indicates that the
sample contained 4.4 percent amosite and .3 percent crysotile by
weight.

825

FMC presented evidence that it had in place at the time of
the issuance of the citation a policy regarding asbestos identification and cleanup (Ex. P-2, P-6).
I am satisfied from the
evidence presented that if the foreman Wilfong had been aware
that the insulation contained asbestos or that had Mr. Watson the
industrial hygienist had been aware that the insulation was being
removed, that the appropriate policy guidelines would have been
implemented.
Approximately 17 months before the issuance of the current
citation and orders FMC's Industrial Hygienist, Mr. Watson, had
distributed a memorandum dated July 1, 1985 to senior managers at
the FMC plant. (Ex. P-3).
This memorandum showed the results of
sampling and analysis for asbestos in various materials located
throughout the facilities.
Included in the memo was the analysis
of the No. 3 turbine insulation which showed that it contained
asbestos. Mr. Hruska, the general maintenance foreman, an
immediate supervisor of Wilfong, testified that he does not
recall seeing the July 1, 1985, memorandum before the turbine
overhaul began and consequently did not advise Mr. Wilfong that
the No. 3 turbine insulation contained asbestos.
The cited safety standard, § 57.5002, mandates that dust
surveys be conducted as frequently as necessary to determine the
adequacy of control measures.
It is a broad general standard.
Such a standard should be evaluated by reference to an objective
standard of what actions a reasonably prudent person familiar
with all the facts, including those peculiar to the mining
industry, and the protective purpose of the standard, would have
taken to provide the protection intended by the standard.
Section 57.5002 is broadly written so as to be adaptable to
myriad circumstances. This safety standard is of central importance in the crucial regulatory area of avoiding overexposure
to airborne hazards.
Upon review of the entire record I'm satisfied and find that
a reasonably prudent person familiar with the facts including
those peculiar to the mining industry and the protective purposes
of the standard would have conducted dust surveys to determine
what control measures would be adequate to prevent the possible
overexposure of the employees working with the insulation. Dust
surveys should have been conducted during the three days the
maintenance crew removed the insulation from turbine No. 3.
Since respondent took no dust surveys during that period of time
respondent violated and thwarted the protective purposes of the
standard.
Without air samples there is no way to determine whether any
employee in the maintenance crew was overexposed.
Respondent's contention that the application of§ 57.5002 is
conditioned on a finding of exposure to airborne contaminants in

826

excess of the permissible limit defined in § 57.5001 is rejected.
The rationale of the Commission's decision in Tammsco, Inc., and
Schmarje, 7 FMSHRC 2006 [3 MSHC 2026] (December, 1985) is not
applicable to the facts and the safety standard charged in this
case.
Section 104(d)(l) of the Mine Act provides that a violation
is significant and substantial if it is of "such nature as could
significantly arid substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." 30 u.s.c.
§ 814(d)(l).
A violation is properly designated significant and
substantial "if, based on the particular .facts surrounding that
violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National Gypsum, 3 FMSHRC
822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984) the Commission explained:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum, the Secretary ••• must prove: Cl)
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.
The Commission has explained that the third element of the
Mathies formulation "requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result
in an event in which there is an injury." U.S. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984) (emphasis deleted).
They
emphasized that, in accordance with the language of section
104(d)(l), 30 u.s.c. § 814(d)(l), it is the contribution of a
violation to the cause and effect of a hazard that must be
significant and substantial. Id.
In addition, the evaluation of
reasonable likelihood should be made in terms of "continued
normal mining operations." U.S. Steel Mining Co., Inc., 6 FMSHRC
1573, 1574 (July 1984). Applying these principles to the instant
case.
It is concluded that the cited violation is not of a
significant and substantial nature.
The Review Commission has ruled that "unwarrantable failure
means aggravated conduct, constituting more than ordinary
negligence, by a mine operator in relation to a violation of the
Act." It based this conclusion on the ordinary term "unwarrantable failure".
The purpoie of unwarrantable failure
sanctions with in the Mine Act, the Act's legislative history
and judicial precedence.
The Commission stated that whereas
negligence is conduct that is "inadvertent," "thoughtless," "or

827

inattentive," conduct constituting unwarrantable failure is
conduct that is "not justifiable" or "inexcusable".
The
Commission pointed out that by construing unwarrantable failure
by a mine operator to mean aggravated conduct constituting more
than ordinary negligence, can unwarrantable failure sanctions
assume their intended distinct place in the Act's enforcement
scheme.
See Emery Mining Corp., 9 FMSHRC 1997, 2001, 2004
CDecember 198 7) Ci.nd Youghiogheny and Ohio Coal Co., 9 FMSHRC
2007, 2010 {December 1987). Applying these principles to the
facts of this case I find that the violation of Section 56.5002
was not the result of FMC's unwarrantable failure to comply.
The violation was caused by ordinary negligence . For purposes
of determining the appropriate penalty, I would evaluate the
degree of negligence at the upper range of ordinary negligence.
The evidence shows that FMC was not indifferent to the
hazard of airborne asbestos.
It had shown an awareness and
attention to this hazard. As previously stated FMC had in place
at the time of the issuance of the citations a policy regarding
asbestos identification and cleanup CExs. P-2 and P-6). FMC's
industrial hygienist Mr. Watson distributed a memorandum dated
July 1, 1985, to senior managers at the FMC plant regarding the
results of various sampling and analysis for asbestos, including
an analysis of the No. 3 turbine insulation (Ex. P-3). There is
no evidence indicating that had the maintenance foreman been
aware that the insulation contained asbestos or that had the
industrial hygienist been aware that the insulation in the No. 3
turbine was being removed, that FMC's asbestos policy guidelines
would not have been implemented.
The record also shows FMC was not indifferent to the hazards
of airborne asbestos dust.
At the time of the current inspection
FMC had an independent contractor with a crew wearing protective
clothes and equipment removing insulation containing
asbestos
from the ceiling of the building that housed the turbine. While
ceiling insulation removal was unrelated to the citation and
orders in this case it indicates FMC's awareness and attention to
the hazard of airborne asbestos dust.
These efforts to eliminate
the hazard of airborne asbestos dust tend to support the
conclusion that FMC's failure to comply with the safety standard
in question was due to ordinary negligence rather than to
aggravated conduct exceeding ordinary negligence.
For purposes of determining the appropriate penalty FMC's
degree of negligence in violating the safety standard is
evaluated as reaching the upper range of plain ordinary negligence. Considering FMC's large size, that the payment of appriate penalties will not impair FMC's ability to continue in
business, that FMC's history of prior violations is average for
an operation of its size, and the potential seriousness of the
violation it is found that the appropriate penalty for FMC's
violation of § 57.5002 is $600.00.

828

Order No. 2647694
This Order was vacated at the hearing upon motion by the
Secretary of Labor.
The Secretary's counsel stated he had
reviewed the applicability of the standard and the sufficiency of
the evidence and determined not to proceed with Order No. 2647694
(failure to provide special protective equipment and clothing).
The Secretary's motion to withdraw the proposal for penalty and
vacate the citation was granted over the objection of the
Intervenor.
Order No. 2647695
This Order was originally issued by the mine inspector as a
citation under section 104Cd)(l) of the Act. The order alleges a
violation of 30 C.F.R 57.18002(a)(b) which provides:
(a) A competent person designated by the operator shall
examine each working place at least once each shift for
conditions which may adversely affect safety or health.
The operator shall promptly initiate appropriate action
to correct such conditions.
Cb) A record that such examinations were conducted shall
be kept by the operator for a period of one year, and
shall be made available for review by the Secretary or
his authorized representative.
The MSHA inspector, in the citation alleges:
The people responsible for setting up this maintance [sic]
job failed to notified [sic] the people doing the work that
they would be working with asbestos. Their company memo
section 3-CB) states that when they do work of this type,
removing asbestos insulation while making repairs.
The
Industrial hygiest [sic] will be notified when this type of
work is being done so he can observe the job and recommend
protective equipment. They have a list of all places that
have asbestos present. The place were [sic] the violation
occurred was document [sic] on the list. They did not
clean up after every shift. And placed in the proper container =or disposal. This is a failure of the operator to
take appropriate safety measure [sic] to insure that the
employees were adequately protected. While working in this
area. There were eight (8) people doing the work plus the
foreman, and supervisor in this area. This job took from
Nov. 4 to Nov. 18, 1985 with no protection provided. For
the employees involved. There is no records [sic] showing
off [sic] examinations of this area.
On December 12, 1985, Inspector Scheneman modified this
citation to a 104(d)(l) order.

829

To establish a violation of 30 C.F.R. § 56.18002 the
Secretary must prove by a preponderance of the evidence that a
competent person failed to make an examination of the working
place or that no record of the examination was made. Upon
careful review of the record I find that the Secretary failed to
prove that there was no examination of the working place by a
competent persons or that no record of the examinations were
made.
The log of the examination of the Sesqui powerhouse during
the period of the No. 3 turbine overhaul shows the date and shift
on which the examinations were conducted and the name of the
person conducting the examinations and the work places examined.
This log was introduced into evidence by FMC as its Exhibit D-27.
FMC also introduced into evidence an MSHA program directive,
dated November 20, 1979, in which MSHA clarified the record
keeping requirements of the safety standards (Ex. D-26). The
program directive specifies that the items that must be recorded
in order to comply with record keeping requirements are:
(a) the date and shift;
Cb) the person(s) conducting the examination; and
Cc) the working places examined.
The MSHA's program directives also specifies that:
Citations for violations of this standard are to be issued
only where there has been a failure to cond~ct an examination of a working place or a failure to record that
an examination has been done.
The standard is not to be
used to cite an operator for a hazard that is not specifically covered by another standard, or for a hazard that
is already covered by another mandatory standard, or for
imminent danger.
I'm satisfied that the program directive as it relates to
this case correctly interprets the safety standard in the manner
intended by its promulgator.
On careful review of the record I
find that the evidence presented at the hearing does not
establish a violation of 30 C.F.R. § 57.18002.
Conclusions of Law
1.

The Commission has jurisdiction to decide this case.

2. Respondent violated the mandatory safety standard 30
C.F.R. § 57.5002 as alleged in Citation No. 2647693. The
appropriate civil penalty for this violation is $600.00.
3. FMC's violation of § 57.5002 was not significant and
substantial and was not caused by FMC's unwarrantable failure to
comply.
830

4. FMC did not violate 30 C.F.R. § 57.18002(a)(b). Order
No. 2647695 is vacated and the proposed penalty set aside.
S. Order No. 2647694 and its related proposed civil
penalty, upon motion by the Secretary of Labor, are each vacated.
ORDER
Docket No. WEST 86-43-RM
Docket No. WEST 86-110-M
Citation No. 2647693 as modified to a citation issued
pursuant to Section 104(a) is affirmed and the respondent is
ordered to pay a civil penalty of $600.00 to the Secretary within
within 30 days of the date of this decision.
Docket No. WEST 86-44-RM
Docket No. WEST 86-45-RM
Docket No. WEST 86-110-M
Order Nos. 2647694 and 267695 and their related proposed
penalties are each vacated.

F. Cetti
istrative Law Judge
Distribution:
Margaret A. Miller, Esq., James H. Barkley, Esq., Office of the
Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961
Stout Street, Denver, CO 80294 (Certified Mail)
James Holtkamp, Esq., Vancott, Bagley, Cornwall & McCarthy, 50
Main Street, Suite 1600, P.O. Box 45340, Salt Lake City, UT
84145 (Certified Mail)
Mr. Stan Loader, Staff Representative, United Steelworkers of
America, District 33, P.O. Box 1315, Rock Springs, WY 82902
(Certified Mail)
/bls

831

s.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

JUN 3O1988
WESTERN FUELS-UTAH, INC.,
Contestant

.

CONTEST PROCEEDINGS
Docket No. WEST 87-166-R
Order No. 2835325; 3/21/87

:

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

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

v.
WESTERN FUELS-UTAH, INC.,
Respondent

.
...
.:

Docket No. WEST 87-167-R
Citation No. 2835326; 3/22/87
Docket No. WEST 87-168-R
Citation No. 2835327; 3/22/87

:

Docket No. WEST 87-169-R
Citation No. 2835328; 3/22/87
Mine I.D. 05-03505

.
.

CIVIL PENALTY PROCEEDING

.

Deserado Mine

Docket No. WEST 87-251
A.C. No. 05-03505-03540

.
.

DECISION
Appearances:

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

Before:

Judge Lasher

The penalty case was consolidatedwith the four contest
proceedings at hearing---which as reflected in the caption
involve a Section 103Ck> withdrawal order and 3 citations. The 5
dockets arise under and the Commission has jurisdiction pursuant
to the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
Section 801 et~ (1982) (herein the Act).
The four enforcement papers Corder and 3 citations) were
issued by MSHA Inspector Dale L. Hol~opeter subsequent to the
occurrence of a serious accident which occurred at approximately
9:25 a.m., on March 20, 1987, near the Deserado mine, an underground coal mine operated by Contestant/Respondent (herein
Western Fuels) in Rio Blanco County, Colorado.

832

One of the citations (No. 2835327) charged that the alleged
violation described therein was "significant and substantial".
The other 2 Citations <numbered 2835326 and 2835328) did not
contain "S&S" designations.
A. General Findings
The Deserado Mine is an underground coal mine located near
Rangely, Rio Blanco County, Colorado. Coal is taken from the
mine to a preparation plant from which it is transported for
several miles to a train loadout area by an overhead conveyor CT.
27, 55, 153).
The parties, in addition to stipulations as to jurisdiction,
admissibility of underlying documentation and mandatory penalty
assessment criteria, also submitted the following written
stipulations:
a. On Friday, March 20, 1987, at about 9:25 a.m., a nonfatal powered haulage accident occurred on the County Road
78 at the Beltline Conveyor Overpass CCNV-2). Dale J.
Ackerman, truck/light equipment operator, and Michael G.
Smith, heavy equipment operator, were seriously injured
when the Euclid, RD-50, end dump haulage truck, with the
bed raised, struck the overpass, causing the truck to overturn onto its left cab side. The accident occurred because
the haul truck operator failed to lower the truck bed after
dumping refuse material at Pit 2/3 l;
·
b. The accident was reported by the (mine) operator to the
MSHA office in Glenwood Springs at approximately 12:00
noon on March 20, 1987.
c. The No. 2 Beltline conveyor overpass is above County
Road No. 78 and is used as a haul road by Western Fuels
with express permission of Rio Blanco County and Bureau of
Land Management.
d. The No. 2 Beltline Conveyor overpass was not at the time
of the accident marked and did not contain warning signals.

1/

The evidence of record also overwhelmingly established that
the driver of the truck, Ackerman, for whatever reason, failed to
lower the truck bed and then drove the truck approximately 2
miles from the pit to where the bed struck the overpass as the
truck attempted to proceed underneath.

833

Inspector Hollopeter, who is stationed in Denver, was
advised of the accident by his supervisor sometime after
"noontime" on Friday, March 20, 1987. After packing, he drove
from Denver to Craig, Colorado that afternoon. That night he
prepared his equipment, etc. for the ensuing investigation, and
the following morning traveled from Craig to the mine where he
met with company and union officials at approximately 8 a.m. CT.
28-32). He was advised by Mine Superintendent John Trygstad that
the haulage truck-with the bed thereof in the raised position-had struck the overland conveyor structure. At the conclusion of
the meeting, Inspector Hollopeter issued the Section 103Ck)
Order-- based on what he was told at the meeting-- to insure the
safety of the miners CT. 33-38, 55). Following the meeting,
Inspector Hollopeter, accompanied by Western Fuels' Safety
Director Jerry Kowlok, went to the accident scene, and then to
Pit 2-3, i.e. the refuse pile CT. 40, 59).
It was Inspector Hollopeter's understanding, and I so find
from the entire record, that Dale Ackerman, the driver of the
50-ton capacity truck on the trip in question, his second of the
day CT. 132), started out from the preparation plant on March 20
with a load of refuse, proceeded down the 2-lane haul road
{County Road 78) to the refuse pile Cpit) where he dumped the
refuse material, picked up passenger Smith, and was traveling
back down the gravel-dirt haul road to the preparation plant when
the accident occurred as above noted about 9:25 a.m. at a point
about 1.75 miles from the pit CT. 41, 44-48, 132, 256-257). The
speed limit on the haul road from the refuse pit {dump) is 30
m.p.h. CT. 256).
The accident occurred when the right side of the front of
the "headache rack" Ca protective part of the bed extending out
over the cab to keep falling objects from striking the cab and
the truck operator) struck the overpass structure CT. 60-61, 71,
362; Exs. M-11, 12 and 13).
The truck ended up on its left side following the accident;
Michael G. Smith, an "authorized" passenger CT. 243, 260, 294,
295) was removed from the truck at 10:40 a.m. and Ackerman, whose
lower left leg had to be amputated at the scene, was removed from
the truck at 12 noon CT. 52-53, 116; Ex. M-14).
After his arrival at the accident scene {and the refuse
pit), Inspector Hollopeter took various measurements and
photographs of the truck, overpass structure, and accident scene
{Ex. M-6 through M-13) CT. 41, 50-58).
The overpass structure {sometimes referred to as an overhead
conveyor) extends over the haul road in an arch, the lowest point
of which is 20.16 feet and highest point being 27 feet; there was
a clearance of approximately 26 feet at the point where the truck
struck it CT. 65, 68, 138, 141). The conveyor is in the center

834

of the structure itself with walkways on either side. One effect
of the withdrawal order was to prohibit persons from walking on
these walkways (T. 78). When the bed of the truck is raised it
extends upward at a 60 degree angle and is about 28 feet 4 inches
in height.
The truck thus failed to clear the overpass by about
18-24 inches (T. 69 ). With the bed raised, there was thus no
place the truck could have cleared the overpass (T. 70).
In its
travel position, i.e., with the bed lowered, the height of the
truck is 14 feet 5 inches (T. 72).
B. Docket No. WEST 87-166-R
Validity of Withdrawal Order No. 2835325
The Order was issued pursuant to Section 103(k) of the Act
which provides:
"In the event of any·accident occurring in a coal or other
mine, an authorized representative of the Secretary, when
present, may issue such orders as he deems appropriate to
insure the safety of any person in the coal or other mine,
and the operator of such mine shall obtain the approval of
such representative, in consultation with appropriate State
representatives, when feasible, of any plan to recover any
person in such mine or to recover the coal or other mine or
return affected areas of such mine to normal."
Subsequent to its issuance at 8:50 a.m. on March 21, 1987,
the Order was modified four times by Inspector Hollopeter.
Western Fuels contends that the Order as modified, was
improperly issued since its purpose was not to insure the safety
of persons in the mine, but rather was intended to preserve
evidence (T. 202). The Order itself charges no violation and
MSHA seeks no penalty in connection therewith (T. 9).
The "Condition or Practice" involved in the Withdrawal Order
was set forth by Inspector Hollopeter in Section 8 thereof as
follows:
The mine has experienced a nonfatal powered haulage
accident on the surface haul road (County Rd. 78) at No. 2
Beltline Conveyor overpass. This order is issued to assure
the safety of persons until an examination or investigation
is made to determine the area is safe. An investigation
party of company officials, state and county officials,
safety committeemen are permitted to enter the area.
Section 15 of the Withdrawal Order, wherein the "Area or
Equipment" to be withdrawn is to be described, was filled in by
Inspector Hollopeter as follows:

835

"The No. 2 Beltline Conveyor overpass structure 150 feet each
side of the haul road and the haul road 150 feet easterly
and westerly of the structure, except the southern portion
of the haul road to permit traffic to pass."
Inspector Hollopeter issued the Order to ensure the safety
of persons until an investigation could be conducted (T. 34-36,
142).
At 1:40 p.m. on March 21, 1987, the Inspector issued the
following modification:
103Ck) Order is modified to allow the operator to move the
Euclid R-50 (Company No. 4) from the accident area to the
shop area.
Also, the closure of a section of this haul
road is now removed from this order.
At 7:35 p.m. on March 21, 1987, this second modification~/
was issued:
The 103(k) Order is modified to show the area of the No. 2
Beltline Conveyor (overland conveyor) closure from the 150
feet on each of the haul road changed to just the No. 2
Beltline Conveyor Overpass structure and belt at the main
supports north of the haul road to the main supports south
of the haul road.
At 11:39 a.m. on March 22, 1987, this third and final
modification was issued by Inspector Hollopeter:
The 103(k) Order is modified to allow repairs to the No. 2
beltline conveyor overpass and operation of the conveyor
belt this being based on the Chief Engineer opinion which
was given and to allow repairs on the Euclid R-50 (Company
No. 4) haulage truck, with stipulation that the District
Office, MSHA, CMSH&H, Denver, co., be notified of any defective item found and that we get a report of the damage
and repairs done to the truck.
If an independent shop is to do the repairs, we are to be
notified so that we might be present during examination
or testing.
One effect of the Withdrawal Order, as previously noted was
to prohibit persons from walking on the walkways alongside the
conveyor. The operation of the conveyor was also "closed" by the

2/ Upon the issuance of this second modification, the coverage
of the Order would have remained on the "curved arched portion of
the overpass structure", the truck, and the conveyor belt (T.
153).
836

order CT. 85, 86). The order did not prevent traffic on the
haulage road (County Road 78) from travelingunder the overpass
structure, and thus would not have the effect of preventing the
same kind of accident from happening had another Euclid truck
proceeded under the overpass with its bed raised CT. 80-85).
This is a moot point, however, since there was only one such
truck operating at the time-- the one involved in the subject
accident CT. 87). The Inspector testified he also put an order
on the truck to "prevent people from being in or around" it CT.
87-88) although this is not specifically reflected in Section 15
(Area or Equipment) of the order itself.
At the time of his initial investigation, Inspector
Hollopeter did not know the truck was being driven-- why/or what
caused the truck to be driven-- with the bed in a raised position
CT. 73, 77).
He considered the possibility that there was a malfunction which would have caused the bed to be in a raised
position CT. 77, 151).
Inspector Holiopeter issued the first modification of the
Withdrawal Order because the County wanted the truck moved and so
that the truck could be moved off the road to the shop area
allowing traffic to move in both directions CT. 151). At the
time of its issuance he had not checked out and cleared the
overpass structure for safety CT. 74-76, 142, 189). He described
his concerns relating to the overpass as follows:
"Just underneath, looking at the conveyor, I saw where -the side which the truck had contacted, initially, and -at the initial contact point, I saw, on the lattice work,
where there was (sic) braces broken out, bent out. And,
also, the I-beams were bent, twisted underneath it."
CT. 77)
The Inspector was also concerned about the cracking of paint
around the bolts of the overpass which may have been caused by
the accident CT. 147-149
). ~/
Following issuance of the first modification which permitted
removal of the damaged truck from the accident area, the Inspector again examined the conveyor structure. He testified as
to what he observed:
"On the easterly side of the structure, which was the side,
which the haulage truck had initially contacted, I saw

3/ Although not well articulated by the witness, I infer that
this concern ws directed toward the possible traumatic effect the
impact of the collision had on the structure.

837

the lattice work bent, braces broken out completely on one
end, and bent out. The metal, which was bent.
For a distance along the bottom of the conveyor, I observed
some of the I-beams going across underneath this structure,
bent.
Also, I notice on the opposite side of the impact
area, paint which appeared to be cracked, which was apparently caused by the impact.
Q.

But, it was on the opposite side of the conveyor?

A.

Yes."

CT. 89)

Surface Area Foreman Jack L. Monfrada described what he saw
when he arrived as follows:
"There was some beams and lattice work that was -- one
lattice work was broke and pokin' up on the air, and you
could see where these beams had been bent. They were
horizontal beams, across the bottom of the structure.
CT. 342)
After this visual examination and conducting interviews CT.
89-91) Inspector Hollopeter issued the secnd modification at 7:35
p.m~ on March 21, 1987.
He explained what led to issuance of the
second modification:
"Mainly, my understanding was that the company were Csic)
havin' security people stay at that area to prevent people
from goin' in the accident area -- or, under the 103K Order
area.
And, they'd have to keep people -- they said they
was going to keep people there all the time.
And, at that
particular time, I didn't feet the Order should be lifted,
because I had concern on the structure, but I felt the Order
cold be modified to bring the distances in from 150 feet
just to -- just so the Order would pertain to the overland
conveyor structure, that went across the road.
And, that
-- that way you wouldn't need to have a -- anyone secure
the area, or -- as far as havin' a person there all the
time."
CT. 90-91)

xxx

xxx

xxx

xxx

I was concerned about the amount of metal, which was damaged
-- your braces, your I-beams, which were bent; the cracking
of the paint, walkway, everything.
I was concerned about if the conveyor was operated, how
much -- this metal was fatigued -- there could have been
maybe an accident, shortly thereafter, if it was turned on.
Just -- I had concern.

838

And, concern about. the safety of anyone who might walk
up on that conveyor belt?
A. Yes.
(T. 92)

Q.

The third modification was issued at 11:34 a.m. on Sunday,
March 22, 1987, to permit Western Fuels to repair the conveyor
belt, it being the opinion of Western Fuels Chief Engineer Mike
Weigand that upon completion of such the conveyor belt could be
safely operated CT. 92-94)
Inspector Hollopeter remained
concerned about the safety of the structure and wanted MSHA
"technical support people" to examihe it. The third modification
thus continued MSHA 6ontrol over this aspect of the matter. By
letter he requested them to examine it and subsequently received
a written report back indicating the structure was safe which led
to issuance of a fourth modification of the Order in May, 1987
CT. 93-96, 98) which removed the structure from the effect of the
Order CT. 97). At this point only the truck remained under the
control of the Order CT. 98). Following further investigation of
the truck and the Inspector's receipt of information that the
truck had no indications of defective parts, malfunction, etc.,
Inspector Hollopeter terminated the subject Section 103Ck>
withdrawal order CT. 98-100).
Michael J. Weigand, Western Fuels' Chief Engineer at the
Deserado Mine, testified that when he inspected the overpass
structure on the day of the accident he observed that one of the
diagonal braces had broken loose and there was "some damage" to
the ends of some I-beams which run "roughly parallel to the road"
underneath the structure (T. 363). He felt that the photographs
in the record as exhibits C-5, 10, 16 and 17 accurately depicted
the damage to the structure imediately after the accident CT.
362-368). Mr. Weigand indicated that his inspection disclosed a
5-inch deflection of the structure the existence of which "was
possible" bef6ie the accident (T. 371). He conceded that "there
could be some effects from that accident" that could "weaken" the
structure over the "longterm" CT. 373-374) and the relatively
extensive repairs made to the structure after the accident were
done because such were reimbursed by insurance, it took a shorter
time to perform the repairs in that manner, and it was decided to
do it "right" so that the structure would last its projected
30-year term CT. 374-376).
During the MSHA investigation in the 2-day period following
the accident, Mr. Weigand participated and gave his opinion to
Inspector Hollopeter that the structure "was safe" (T. 377-378 ).
It was also his opinion that the structure was not a "dangerous
overpass" either before or after the accident CT. 386).
On cross-examination, this exchange, of some significance,
between Mr. Weigand and MSHA's counsel occurred:

839

Q. All right. And, you did tell Mr~ Hollopeter, as I understand, that it was your opinion that there were some braces
that should be replaced on this overpass?
A. I felt that if immediate work was done, that that's the
part that should have been done, yes. CT. 392}
Mr. Weigand also conceded the possibility that the cracked
paint on the structure occurred as a result of the truck's impact
with it CT. 396).
Maintenance Superintendent Anthony Lauriski described the
damage to the overpass structure as follows:
A. There was two trusses tore loose, and the hand rail was
sort of bent in one spot, and there was some damage to the
supports that go across and hold the walkway up CT. 410).
Western Fuels' Safety Instructor/Inspector David G. Casey,
who in the beginning took charge of the rescue operation,
described the damage to the structure this way:
"We had a couple of cross-beams that were tore loose- they
were vertical beams, and a few I-beams that had been bent."
CT. 450)
Mr. Casey expressed the opinion that the overpass was not
dangerous, perilous or risky either before or after the accident
(T. 452, 461) for persons or vehicles to travel under or near CT.
461-462).
As to that part of the Order pertaining to the truck, Mr.
Laruiski testified that he first "knew" there was no malfunction
which would have caused the bed to raise (and thus cause the
accident) when the valve was disassembled after the truck was
taken to the repair shop CT. 419}. This is supportive of the
Inspector's judgment.
Although Western Fuels, in its Brief, repeats several times
the charge that Inspector Hollopeter's issuance of the Section
103(K} Order was to "preserve evidence"- an allegedly unauthorized purpose, I find no direct or substantive support in
the record, arguments or briefs for making such a finding.
Inspector Hollopeter testified that he issued the subject order
so that could "go in and look at the area to insure the safety of
the miners" CT. 34). Scrutiny of the actions of the Inspector,
from the time of his notification of the accident through his
ensuing investigation and issuance of the Order and its three
primary modifications, supports the contention of the Petitioner
that "Throughout the course of the investigation, as Mr.
Hollopeter learned more of the accident and investigated the

840

which an Euclid R-50 (Co No. 4) End dump haulage truck
contacted the No. 2 Beltline Conveyor overpass and the two
miners in the cab were seriously injured. MSHA Glenwood
Springs, CO. field office was notified of the accident
12 p.m. on 3/20/87."
The standard alleged to have been violated was, 30 C.F.R.
50.10 (entitled "Immediate Notification") which is placed in the
codification system of the regulations under Subchapter M
(entitled "Accidents, Injuries, Illnesses, Employment, and
Production in Mines"), under Part 50 thereof (entitled "Notification, Investigation, Reports and Records of Accidents,
Injuries, Illnesses, Employment and Coal Production in Mines")
and lastly under Subpart B thereunder (entitled "Notification,
Investigation, Preservation of Evidence"). Section 50.10
provides:
"If an accident occurs, an operator shall immediately
contact the MSHA District or Subdistrict Office having
jurisdiction over its mine.
If an operator cannot
contact the appropriate MSHA District or Subdistrict
Off ice it shall immediately contact the MSHA Headquarters
Office in Washington, D.C., by telephone, toll free at
(202) 783-5582."
The issue posed by Western Fuels in connection with this
Citation is:
"Does an operator violate the immediate reporting obligation of the regulations where he delays advising MSHA
for 2 hours while devoting full attention to the rescue
of injured miners, and where the delay does not exacerbate
the rescue efforts or hinder the subsequent accident investigation?" ~/
It has been stipulated, and the record also reflects, that
the accident occurred at 9:25 a.m. and that Western Fuels
reported it to MSHA's Glenwood Springs Office at 12 noon CT. 107,
109, 448). This coincides with the 2 1/2 hour period of the
6/ It is initially noted that the questions whether the delay
Cl> exacerbated rescue efforts, or (2) hindered MSHA's investigation, would relate more directly to the penalty assessment
factor of seriousness, rather than to the occurrence of an infraction of the standard cited. Obviously, at the time of delay
in notification, the ultimate effects thereof may not be
recognizable and the elements of proof inherent in the
phraseology of the regulation contain no such exception for
situations where there is no prejudicial effect. A roof-control
requirement, for example, is not self-abnegating where the violation of such does not cause an injury - causing fall.

841

site, he was able to modify the order to keep in line with what
he knew, while still ascertaining that no further injuries would
occur." The nature of the possible hazards which the impact
might have sustained to the structure (See Ex. C-2) and the
possible problems with the truck which could have caused the bed
to raise without operator negligence, all adequately evidenced in
this record, would have made it irresponsible for the Inspector
to have Cl> proceeded without issuing the Order, or (2) to have
terminated the Order prematurely.
I find no support in the
record for the proposition that the Order was issued either
routinely or for the sole-or primary-purpose of ireserving
evidence pending a post-accident investigation. _/
Western Fuels' contention (Brief, p. 22) that "The inspector
used a club when a simple 'please' would have been sufficient,"
ignores the responsibility placed on the Ins~ector by the Mine
Act to insure safety in such circumstances. _I
There being no admissions or substantive or probative
evidence upon which to conclude otherwise, it is found that the
exercise of discretion by the Inspector in issuing the Order and
its modifications was appropriate in the circumstances and that
such Order and its modifications should be affirmed.

c. Docket No. WEST 87-167-R
Citation No. 2835326
The "Condition or Practice" deemed a violation by Inspector
Hollopeter was described in Section 8 of the Citation as follows:
"The operator did not immediately contact the MSHA District
or Subdistrict office having jurisdiction over its mine
of an accident which had injuries to two miners which had
reasonable potential to cause death.
A non fatal powered
haulag~ accident occurred on 3/20/87 about 9:25 a.m. in

!/

The Inspector, under Section 103(j) of the Act, certainly
does have an independent obligation and responsibility to take
appropriate measures "to prevent the destruction of any evidence
which would assist in investigating the cause or causes" of an
accident.
~I
The responsibility for determining structural damage to the
overpass and conveyor, any truck malfunction, and any patent or
latent safety hazards stemming therefrom, is recognized as a
considerable one. Any question in the mind of the sole person
bearing this burden in mine safety enforcement would necessarily
be resolved on the side of safety.

842

rescue operation CT. 111). Evidence of record {Ex M-5) indicates
that passenger Mike Smith called in the accident on his two-way
radio (hand-held pack-set) at approximately 9:23 a.m. The first
a.m. The first individual on the scene was a Coca-Cola delivery
man. When he first arrived at the scene he thought no one was in
the truck but upon investigation he saw and heard Mike Smith
calling on the radio for help. When he heard no response to the
first call for help, he got on Mike's radio and repeated the call
for help.
Immediately upon receiving the call that two miners
were trapped in an overturned haul truck, the Western Fuels
ambulance was dispatched and the Rangely District Hospital was
notified at approximately 9:27 a.m. that their ambulance was also
needed. The Rangely Rural Fire Protection District was also
notified at this time. A Western Fuels Security Guard was
dispatched immediately to the scene and arrived at 9:26 a.m. This
security guard and the preparation plant foreman arrived in a
Ford pickup {security vehicle).
Western Fuels' Safety Director at the time, Jerry Kowlok CT.
406), who did not testify, reported to Inspector Hollopeter that
he contacted the Glenwood Springs office at about 12 noon and
that he was "the only person designated to contact MSHA on an
accident" CT. 109, 110, 339, 421, 447, 466-467). Mr. Kowlok did
not make this report until after he had left the accident scene
CT. 448, 459, 460). Mr. Kowlok had a radio at the scene of the
accident, was in contact with his security base which had a
telephone, and thus had the means by which to immediately notify
MSHA of the accident (T. 335-336, 406, 429-430, 434, 459-460,
468-469).
Some of the general purposes of immediate notification are
(1) determination of the type of accident, (2) getting the
nearest available MSHA inspectors to the accident site, (3)
allowing MSHA the opportunity to supply expertise to the
situation as well as special equipment and special rescue teams,
and (4) prevention of future accidents CT. 109-110). According
to the Inspector, however, no such rescue teams, etc. were
actually available for use in rescuing the two miners trapped in
the truck in the instant situation CT. 176-180). On the other
hand, MSHA was deprived of any opportunity to immediately
investigate or be present at the accident site to assist in
rescue or attempt to prevent further injuries. There was no
allegation or evidence that notifying MSHA would have been a
futile act i.e., that based on past inept performances by MSHA in
accident situations, that Western Fuels was justified in
believing a 2 1/2 hour delay would make no difference.
Further, there was. no evidence presented that it was
impossible- or even difficult- for Western Fuels to have notified
MSHA imediately CT. 335-340, 341, 361, 406-408, 420, 428-432,
460, 466-468).
There clearly was available the means of

843

communicating with MSHA and various management and other
personnel available to do it.
It is thus concluded that the
violation as charged in the Citation occurred and that Western
Fuels was negligent in the commission of such. The regulation
infracted constitutes a highly important aspect of mine safety
process and enforcement in terms of both accident investigation
and assistance and is eroded only at considerable cost in the
perspective of future accidents and tragedies. The importance of
this regulation is related to the role Congress has mandated for
inspectors in the Act itself (See Sections 103(j) and Ck) thereof). Although the probability that the delay did not affect
rescue or investigation processes, the humanitarian interests of
Western Fuels' personnel, and the emotionally traumatic aspects
of the incident itself are to be inferred from the record overall
and stand in some mitigation of the considerable seriousness and
culpability to be attributed to the violation, 7; the $20 penalty
sought by the Secretary, being but a token sum,-is not considered
appropriate.
A penalty of $150.00 is assessed.
D. Docket No. WEST 87-168-R
Citation No. 2835327
The "Condition or Practice" charged to be a violation by
Inspector Hollopeter was described in Section 8 of the Citation
as follows:
"The equipment, Euclid R-50 CCo. No. 4) End dump haulage
truck, being driven from the Pit 2-3 Refuse dump to the
preparation plant was not secured in the travel position.
A nonfatal powered haulage accident occurred, severely injuring the operator and passenger of the truck, when the
raised truck bed struck the No. 2 Beltline Conveyor Overpass. Through interviews .it was determined that it is the
Company policy to have the bed of the truck lowered when
traveling."
The standard allegedly violated was subsection {s) of 30
C.F.R. § 77.1607 pertaining to "Loading and Haulage Equipment1
Operation", which provides:

7/

The parties, as part of their written stipulation {Court Ex.

I> concurred that Western Fuels is a large bituminous coal mine

operator and that it proceeded in good faith in attempting to
achieve rapid compliance after notification of all the alleged
violations.
As part of the same stipulation, the parties
submitted into evidence a computerized history of prior violations {Ex. M-1) indicating that Western Fuels had 129 previous
violations in the 2-year period preceding the issuance of the
subject Citations.
844

"When moving between work areas, the equipment shall be
secured in the travel position." .~/
Inspector Hollopeter designated this to be a "significant
and substantial" violation on the face of the Citation, giving
rise to what appears to be the contention raised by Western
Fuels: "Should an operator be charged with a significant and substantial violation where a driver, contrary to common sense,
company policy, and specific operational instruction, operates a
dump truck without lowering the bed" (Western Fuels Brief, p. 33).
It is noted parenthetically at this juncture that the phraseology
of this contention appears directed more to the mine safety
concepts of "liability without fault" and mitigation of the
penalty assessment criterion of negligence than to the "significant and substantial" formula.
I first find that it is a violation, whether or not a
"significant and substantial" one. Thus, in reaffirming the
strict liability or "liability without fault" doctrine's
application in mine safety matters in Western Fuels-Utah, Inc.,
10 FMSHRC 256 (March 25, 1988), the Commission pointed out that
the principle of liability without fault requires a finding of
liability even in instances where the violation results from
unpreventable employee conduct.
It thus rejected the notion of
an exception to the rule even for unforeseeable employee
misconduct. ~/ The parties have stipulated, and, the record is
clear, that the accident occurred because the truck operator
failed to lower and secure the truck bed. The bed was raised
when the accident occurred CT. 408, 418-419). The truck thus was
not in "travel position" as the standard requires and Ackerman
was driving the truck between work areas when the accident
occurred. This constitutes a violation of the pertinent standard.
For purposes of liability- as distinguished from penalty
assessment purposes-- a miner's negligence or misconduct is
properly imputed to the mine operator.
Secretary v. A.H. Smith
Stone Company, 5 MSHRC 13 (1983). The question of negligence
imputation for penalty purposes will be taken up subsequently
herein.
In a recent decision Secretary v. Texasgulf, Inc., 10 FMSHRC
(April, 1988} the Commission reaffirmed its position as
to proof of significant and substantial violations:
8/ "Travel position" for the truck in question required the bed
to be secured in its lowered position CT. 113, 242, 253-254). As
noted in the Citation itself and established at the hearing,
Western Fuels' policy required the truck, when moving, to have
the bed in the lowered "travel" position (T. 112-115, 226-227,
310).
9/ I conclude elsewhere herein that the accident in question
occurred as a result of Mr. Ackerman's unforeseeable negligence.

845

"Section 104Cd)(l) of the Mine Act provides that a violation
is significant and substantial if it is of "such nature as
could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard." 30 U.S.C. § 814(d)(l). A violation is properly
designated significant and substantial "if, based on the
particular facts surrounding that violation, there exists
a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum, 3 FMSHRC 822,
825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984) the Commission explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the Secretary
must prove: Cl) 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.
The Commission has explained further that the third element
of the Mathies formulation "requires that the Secretary
establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984) (emphasis deleted). We have emphasized that, in accordance with the language of section 104Cd)(l), 30 u.s.c.
§ 814Cd)(l), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and
substantial. Id. In addition, the evaluation of reasonable
likelihood should be made in terms of "continued normal
mining operations." U.S. Steel Mining Co., Inc., 6 FMSHRC
1574 (July 1984)."
In the circumstances of this case, the infraction of the
safety standard was clearly established, as well as the fact that
the violation contributed to the creation of a discrete safety
hazard. Not only was there a reasonable likelihood that the
hazard contributed to would result in an injury, but the hazard
actually occurred, that is, it came to fruition when the raised
truck bed struck the overpass structure, the direct result of
which were the serious injuries to Ackerman and Smith CT.
115-118, 408; Ex. M-5). This is found to be a "significant and
substantial" violation.
We turn now to the questions of negligence and mitigation.
Mr. Ackerman was a full-time employee whose primary job was to

846

drive the Euclid R-50 haul truck and another haul truck whose
dumping mechanism was similar to that of the Euclid. Ackerman
would normally Cat least since December, 1986) make 8-13 trips a
day from the preparation plant -to the refuse dump CT. 220-222,
286). Ackerman was familiar with the road-and by inferencethe presence of and characteristics of the overpass he was to
travel under CT. 283-286; See also "General Findings", supra).
Western Fuels established that in December, 1986, Mr.
Ackerman had been trained in the operation of the Euclid R-50
truck by its Surface Area Foreman, Daniel J. Rideout CT.
216-218).
This training covered proper dumping procedures which
Rideout described as follows:
"The proper dumping procedures would be to make sure your
area -- where you're backing on up to --- that there's
no obstructions or anything in the way, like that. Try
to be on as level ground as possible, and. set your dump
bed; put your truck in neutral, sound the horn, dump your
load; lower your bed; sound your horn, again; release your
dump brake; put it in gear, and that's basically it; you're
done."
(emphasis added)
CT. 220)
Rideout described the Euclid R-50 as an "easy-to-drive",
stable truck which had no tendency to tip over, and said there
was no occasion on which it should be driven with the bed raised
CT. 225-226). Ridout reiterated the company "policy" of not
driving the truck with the bed raised and pointed out that such
is set forth also in the "Operator Handbook" for the truck, Ex.
C-7, at p. 33-35, CT. 227, 253, 293). Truck drivers were
directed to keep a copy of the Handbook in the truck and to read
it in their idle time CT. 228, 289). Rideout had never seen
Ackerman driving with the bed up and would have disciplined him
had he done so CT. 232-233). Rideout was certain that in
meetings with his drivers, which I conclude would have included
Mr. Ackerman, that the need for lowering the truck bed before
traveling was discussed CT. 248, 258, See also T. 288). The
drivers, however, were not specifically advised that the haul
truck with the bed up would not clear the overpass, nor were they
specifically advised what the height of the truck was with the
bed raised CT. 258). Nor were they specifically advised what the
clearance of the overpass was CT. 259). This was the only
overpass the truck drivers would have occasion to drive under
CTr. 259).
The overpass was constructed in 1982 and would have been in
existence throughout Mr. Ackerman's tenure as truck driver CT.
251).

84 7

At the time of the accident there was no sign or notice in
the cab of the truck to remind the driver to lower the bed CT.
270) although such notice was apparently installed thereafter CT.
270, 323). There was an "indicator" (depicted in Exhibit C-11)
which comes down in front of the truck's windshield from which
the truck driver can determine if the bed was raised or lowered
CT. 255-256, 262-263, 296).
Jack L. Munfrada, a Surface Area Foreman, described the bed
indicator in the following examination sequence:
"Q.
Is there any other way, when you're sitting in the
driver's seat, or in the passenger's seat, that you can
see that the bed is in the air?
A.
Yes. There's a bed indicator on the bed of the truck.
If the bed is lowered, it is in the right-hand corner,
visually through the eight-inch window, and it is a round
-- in diameter, approximately five inches, with a decal -a red and white decal, with a black figure, pointing back
towards the dump box.
Also, you can see it through the
driver's mirror, very plainly.

Q.

You can see the bed through the driver's

A.

Yes.
You could see it out the passenger door window
you could se~ the headache rack.
And, also, if the bed
was up in the daytime, you'd notice the change in light."
(T. 296-297). 10/
Based on its maintenance records and "Pre-shift Operator's
Check Lists", Western Fuels had no indication to believe that the
subject truck was not functioning properly in proximity to the
accident CT. 402-406, 410-413) and in the absence of any other
evidence to the contrary, and in light of the evidence indicating
operator failure as the cause of the bed not being lowered to
travel position, it is inferred and found that the truck was in
proper operating condition at the time of the accident.
The record in this proceeding indicates that the cause of
the accident was the operator's failure to lower the bed before
proceeding on to the haul road and moving the vehicle to its
point of impact with the overpass structure.
10/ From this dialogue as well as other evidence CT. 255-259)
indicating other reasons why a truck driver would normally know
or be aware of the raised bed, I find and infer that for a driver
of the truck in question to proceed along the haul road with the
truck bed raised and not have such fact enter the stream of his
consciousness would be an unusual occurrence and one which would
not be foreseeable by his foreman or other management CT. 471).

848

David G. Casey, Western Fuels' Safety Instructor, testified
that he visited Mr. Ackerman in the hospital on the day of the
accident and recounted this conversation concerning what had
.happened:

Q.

And, did he explain to you what happened?

A.
Yes. And -- and he said that he spaced it
couldn't believe that he'd spaced it out.

xxx

xxx

he

xxx

"The Witness: He couldn't believe that he'd spaced it out
-- referring to the dump bed being up."
CT. 455-456)
When pressed to develop his understanding of Ackerman's use
of the phrase "spaced out", Mr. Casey stated:
"The Witness: -- and he said "spaced out", and then we
he said "I can't believe If----- up", and he repeated it
again, "I can't believe I did that", you know."
CT. 471)
From this and other evidence of record indicating Ackerman
was a "good" employee who had received safety training CT.
439-445) it is concluded that the accident resulted from Mr.
Ackerman's negligent oversight in not lowering the bed of the
truck, and that such negligent conduct was not foreseeable by
Western Fuels' responsible management personnel. Southern Ohio
Coal Co., 4 FMSHRC 1459, at 1463-1464 (1982).
In this
connection, it is further noted that there is no evidence of
prior accidents having occurred at the overpass CT. 465).
While a mine operator is not necessarily shielded from
imputations of negligence even where non-supervisory employees
such as Mr. Ackerman are concerned, A.H. Smith Stone Co., 5
FMSHRC 13 (1983), for the negligence of the miner to be attributed to the operator, consideration must be given the
foreseeability of the miner's conduct, the risks involved, and
the operator's supervision, training and discipline of its
employees. Here, the record indicates that the mine operator
fulfilled its obligations as to training and in the establishment
of its policy as to not operating the truck with the bed raised.
MSHA, in its brief does not contend (or discuss) imputation. Mr.
Ackerman's negligence in the commission of the violation will not
be imputed to Western Fuels, Southern Ohio Coal Co., supra, at
1465.
In view of the seriousness of this violation, and upon
evaluation of the other general mandatory penalty assessment
849

factors previously discussed in connection with Citation No.
2835326, a penalty of $300.00 is determined to be appropriate and
assessed.
E. Docket No. WEST 87-169-R
Citation No. 2835328
The "Condition or Practice" deemed a violation by Inspector
Hollopeter was described in Section 8 of the Citation as follows:
"The No. 2 Beltline Conveyor Overpass above the haul road
(County Rd. No. 78) was not conspicuously marked or warning
devices installed when necessary to insure the safety of
the workers. A nonfatal powered haulage accident occurred
when an Euclid R-50 End dump (Co. No. 4) raised bed contacted the overpass while traveling on the haulage road. The
operator of the truck and passenger were severely injured.
At the time of the investigation the overhead clearance
was not marked.
The standard allegedly violated was Subsection (c) of 30
C.F.R. 77.1600 (entitled "Loading and haulage; General") which
states:
"Where side or overhead clearances on any haulage road
or at any loading or dumping location at the mine are
hazardous to mine workers, such areas shall be conspicuously marked and warning devices shall be installed
when necessary to insure the safety of the workers."
Although the Inspector originally charged that this was a
"significant and substantial" violation, the Citation was
subsequently modified to delete such designation upon further
investigation CT. 158-160).
Western Fuels contends that the Conveyor (CNV-2) overpass
was not "hazardous tomine workers" and thus warning signs (or
devices) were not required.
Evidence in the record establishes that other than speed
limit signs CT. 448) there were no signs, warnings, "clearance"
signs or flashing lights on the overpass structure or conveyor
(T. 118-121, 189-192, 245-246, 259, 463), or on the road on
either side of the structure CT. 189, 448). Specifically, there
was no sign on the overpass which said what the clearance was (T.
259). Inspector Hollopeter was of the opinion a hazard existed
because there was no sign warning of the clearance of the
overpass structure either on the structure itself or back along
the haul road (T. 121-125).

sso

There are no regulations applicable in mine safety matters
which establish height requirements for structures such as the
subject overpass CT. 382 >.
The U.S. Department of Transportation's Manual on Uniform
Traffic Control Devices (Ex. C-14) requires signs when less than
12 inches clearance is provided over the highest vehicle being
used on the roadway CT. 380-381).
Chief Engineer Weigand expressed the opinion that prior to
the accident the overpass structure was not "dangerous"
"perilous" or "risky" CT. 386). As noted previously, there had
been no prior accidents at the overpass, and in view of Cl) the
significant clearance height of the overpass (ranging from 20-27
feet approximately), (2) the general compliance of the structure
with requirements other governmental agencies CT. 380-384)), (3)
the general opinions of Western Fuels witnesses that the overpass
was not "perilous" or dangerous, C4) the vagueness of MSHA's
evidence and theory that the overpass was hazardous, and C5) the
fact that the accident under scrutiny herewas caused by the
forgetfulness of a truck driver who broke the rule against
driving with the bed raised and who had been passing under the
overpass some 20 times a day for months, it is concluded that the
overpass clearance was not "hazardous" within the meaning of the
regulation cited and that no violation occurred.
ORDER
Cl> Withdrawal Order No. 2835325 and its modifications are
affirmed.
C2) Citations numbered 2835326 and 2835327 (including its
"Significant and Substantial" designation) are affirmed.
C3)

Citation No. 2835328 is vacated.

Contestant/Respondent Western Fuels shall pay the Secretary
of Labor the total sum of $450.00 as and for the civil penalties
hereinabove assessed on or before 30 days from the date of this
decision.

"t7. . . .../C _
~1chael
. .~

~"'

1'

~~ ~
~~,
• Lasher, Jr.
Administrative Law Judge

/t '
).J~A~t

851

Distribution:
Karl F. Anuta, Esq., P.O. Box 1001, 2120 13th Street, Boulder, CO
80306 (Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail)
United Mine Workers of America, Local 1984, District 15, Box 615,
Rangely, CO 81648 (Certified Mail)

/bls

*U.S.GOVERNl!IENT PRINTING OffICE:19BB-201-735183005

852