SEPTEMBER 1991
COMMISSION DECISIONS
09-03- 91
09- 18- 91
09-20-91
09- 20-91
09-25- 91

Lanham Coal Company
Ideal Cement Company
Bulk Transportation Services, Inc .
Drummond Company, Inc.
Gatliff Coal Company

KENT 89-186
Pg . 1341
WEST 88-202-M Pg. 1346
PENN 89-143
Pg . 1354
SE
91-10-R Pg. 1362
KENT 89-242-R , Pg. 1370

ADMINISTRATIVE LAW JUDGE DECISIONS
09-04-91
09-04-91
09- 05- 91
09-05- 91
09-05- 91
09-05-91
09-05-91
09- 05- 91
09- 05-91
09-05-91
09- 10-91
09-10-91
09-11-91
09- 16-91
09-16- 91
09-16- 91
09-16-91
09- 18- 91
09-18-91
09-19-91
09-19-91
09-23-91
09-23- 91
09-23-91
09-25- 91
09- 20- 91
09-27-91
09- 30-91

Brent Roberts
KENT 91-896-R Pg. 1377
Paul Cotton, et a1 .
KENT 91- 897- R Pg. 1385
Benny Johnson
KENT 91-934-R Pg. 1389
James Jack, John S. Biby
LAKE 91-503- R, LAKE 91-530·R Pg. 1393- 5
Larry Flynn, Kimmie Noah
SE 91-538-R, SE . 91-544-R Pg. 1397-9
Patr;i.ck H... Fluty, Eyerette Ballard WEVA 91- 1193-R,.WEVA 91-1385-R Pg . 1401-03
Daniel Serge, Sandra Eastham
WEVA 91-1386-R,WEVA 91-1414-R Pg. 1405- 07
Kevin Tustin, Daniel Serge
WEVA 91- 1436-R,WEVA 91-1494-R Pg. 1409-11
Steven Perkins, Donald Case
WEVA 91- 1510-R, WEVA 91-1614-R Pg. 1413-15
Freeman United Coal Mining Co.
LAKE 91-746-R Pg. 1417
Consolidation Coal Company
PENN 91- 172
Pg. 1421
Beth Energy Mines Incorporated
PENN 91-1334-R Pg. 1422
Yerington Construction Co.
LAKE 91-127- M Pg. 1432
LAKE 91-50- M
Pg. 1436
Dunninck Brothers, Inc.
U. S. Steel Mining Company
WEVA 90-224
Pg. 1440
U.S. Steel Mining Company
WEVA 90- 225
Pg. 1451
United States Steel Mining Co.
WEVA 91-73
Pg. 1465
Lonnie Darrell Ross v. Shamrock Coal Co.
KENT 91- 76- D Pg. 1475
LJ ' s Coal Corporation
VA
90-47
Pg. 1491
Jamieson Company
WEST 90-197-M Pg. 1500
William Korhonen, USWA on behalf of 4 miners
WEST 90-267-mi Pg. 1508
v. General Chemical Co.
Summit Incorporated
CENT 90-112-M Pg. 1511
Hickory Coal Company
PENN 90- 49
Pg. 1521
Cyprus Tonopah Mining Corporation
WEST 90- 363- H Pg. 1523
Arch of Kentucky, Inc .
KENT 91- 16-R Pg. 1558
Featherlite Building Products (correction)
CENT 89-63-M
Pg . 1562
Roy Farmer, et al . v. Island Creek Coal
VA 91-31-C
Pg. 1564
Consolidation Coal Company:·
WEVA 91-286
Pg. 1567

ADMINISTRATIVE LAW JUDGE ORDERS
09-13- 91
09- 19- 91
09-25- 91
09-27- 91

Contest of Respirable Dust Cases
Toler Creek Energy, Inc.
Coal Mac Incorporated
Contest of Respirable Dust Cases

91-1
KENT 90-348
KENT 91-127
91- 1

Pg. 1573
Pg. 1596
Pg. 1600
Pg. 1611

SEPTEMBER 1991
Revie~ was

granted in the following cases during the month of September:

Secretary of Labor, MSHA v. Aloe Coal Company, Docket No. PENN 91-40, PENN 91-41.
(Judge Ma14!'er, July 25, 1991).
Amos Hicks v. Cobra Mining Company, et al., Doc~et No. VA 89-72-D.
Weisberger, August 7, 1991)

(Judge

Secretary of Labor, MSHA v. LJ~s Coal Corporation, Docket Nos. KENT 90-356,
etc. (Judge Weisberger, August 14, 1991)
Peabody Coal Company v. Secretary of Labor, MSHA, Docket Nos. KENT 91-340-R, etc.
(Judge Melick, August 21, 1991)

Review was denied in the following case during the month of September:
Secretary of Labor, MSHA v. Western Labs and Engineering, Docket No.
WEST 90-378-M. (Judge Morris, August 28, 1991)

COMMISSION DECISIONS

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

September 3, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. KENT 89-186

LANHAM COAL COMPANY, INC.

BEFORE:

Backley, Acting Chairman; Doyle, Holen and Nelson, Commissioners

DECISION
BY THE COMMISSION:
This civil penalty proceeding, ar~s~ng under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act" or "Act"),
involves the issues of whether 30 C.F.R. § 77.1710(g) provides adequate notice
of its applicability to the circumstances at issue and, consequently, whether
the judge erred in concluding that the Secretary of Labor established a
violation of the standard, and whether the Secretary abused her discretion by
citing Lanham Coal Company, Inc. ("Lanham") for a violation of section
77.1710(g) allegedly committed by its independent contractor, Caney Creek
Trucking Company ("Caney"). 1 Commission Administrative Law Judge James A.
Broderick determined that a violation of the standard had occurred, and that
the Secretary had not abused her discretion by citing Lanham. 12 FMSHRC 879,
882-83 (April l990)(ALJ). The Commission granted Lanham's petition for
discretionary review of the issue of whether the Secretary abused her
discretion by citing Lanham and granted sua sponte review of the issues of
whether Lanham had received adequate notice of the standard's applicability and
1

30 C.F.R. § 77.1710, entitled "Protective
provides in pertinent part:

cloth~ng;

requirements,"

Each employee working in a surface coal mine or in
the surface work areas of an underground coal mine shall
be required to wear protective clothing and devices as
indicated below:

*

*

*

(g) Safety belts and lines where there is danger of
falling; a second person shall tend the lifeline when
bins, tanks, or other dangerous areas are entered.

1341

whether a violation had been established. For the reasons that follow, we
vacate the judge ' s decision and remand this case to the judge for further
consideration.
I.

The essential facts are undisputed . Lanham owns and operates Lanham
No. 1, a surface coal mine located in Daviess County, Kentucky. On January 23,
1989, Gazi Bokkon, an inspector of the Department of Labor's Mine Safety and
Health Administration ("MSHA"), and MSHA inspector and accident investigator
Harold Utley investigated an accident that had occurred at the mine. They
interviewed Tony Lanham, then acting as a foreman for Lanham, and Gregory
Weinstein, an employee of Lanham, regarding the circumstances surrounding the
accident.
Mr. Weinstein told the inspectors that while he was driving a load of
spoil to a dump area on December 29, 1988, he saw Charles Daugherty, the owner
of Caney and also a truck driver for Caney , standing on his truck and unrolling
a tarp. The truck was parked in a section of the mine · set aside for "tarping
trucks." After he dumped his load of spoil, Weinstein drove back by the truck
but did not see Daugherty. Weinstein told the inspectors that because
"something just didn't feel right," he stopped his truck, and leaned out to see
if he could find Daugherty. Tr. 31-32 . Weinstein saw Daugherty lying on the
ground. Weinstein contacted Tony Lanham by radio, and Daugherty was
subsequently taken to the hospital. On January 22, 1989, the day prior to the
investigation, Daugherty died. Lanham and the Secretary acknowledged in their
briefs that Daugherty died for reasons unrelated to h is fall from his truck .
S. Br. at 2 ; L. Br. at 3.
As part of their investigation, Inspectors Bokkon and Utley examined the
area of the mine set aside for tarping trucks. The area was level and located
approximately two to three hundred feet away from the pit from which the coal
was extracted. The area also was used at night to park other equipment. The
inspectors did not observe any structures that indicated that safety lines or
other means could be used by the truck drivers for tarping t rucks . Tr . 33.
The inspectors determined that "[a]s [Daugherty] was unrolling the
tarpaulin toward the rear of the trailer, he apparently slipped and fe l l to the
ground , a distance of approximately 10 feet." G. Exh. 3. They concluded that
Daugherty was not wearing a safety belt or line at the time of his fall.
Tr. 9-10 . Based upon their investigative findings, the inspectors issued a
citation to Lanham pursuant to section 104(a) of the Mine Act, alleging a
violation of section 77.1710(g), which citation states that, " [a] contractor
(truck driver) was working in an elevated area and was not wearing a safety
belt and lines where there was a danger of falling. " G. Exh. 2. The
inspectors also found the violation to be significant and substantial . Id.
The citation was terminated on February 14, 1989, because trucks were being
tarped at another location rather than on mine property. "Tr. 20. No citation
was issued to Caney.
At the evidentiary hearing Lanham challenged the violation and the
Secretary's decision to cite it rather than Caney . The judge determined that

1342

the Secretary had not abused her discretion by citing Lanham, citing Brock v.
Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1986), and
concluded that in cases in which independent contractors commit violations of
mandatory safety standards, the Secretary has discretion "to cite production
operators as [s]he sees fit." 12 FMSHRC at 882. The judge found that a coal
truck driver is in danger of falling when fastening a tarp to a truck while
standing on a load of coal. 12 FMSHRC at 883 . The judge concluded that
because Daugherty was not wearing a safety belt or line while he was tarping
his truck, a violation of the standard had been established. Id. The judge
also found that the violation did not' result from Lanham's negligence, stating:
Until MSHA was notified of the contractor truck
driver's death, neither Lanham nor the inspector
considered the standard applicable to the tarping of
trucks. The inspector never observed safety belts or
lines used in such situations in more than 40 years of
mining experience. MSHA had no standards or guidelines
concerning this practice. Lanham had no specific
notice that the practice violated the standard. It
would be absurd under these circumstances to conclude
that the violation resulted from Lanham's negligence.
12 FMSHRC at 883. The judge assessed a civil penalty in the amount of $250
against Lanham, rather than the penalty of $2,500 proposed by the Secretary.
Id. The Commission subsequently granted Lanham's petition for discretionary
review challenging the judge's finding that the Secretary had not abused her
discretion by citing Lanham and granted sua sponte review on the issues of
"whether 30 C.F.R. § 77.1710(g) provides adequate notice of its applicability
to the circumstances at issue and whether the judge erred in concluding that
the Secretary established a violation of the cited standard."
··
II.

Section 77.1710(g) is not detailed but rather is of the type made "simple
and brief in order to be broadly adaptable to myriad circumstances." See,
Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November 1981); Alabama By-Products
Corp . , 4 FMSHRC 2128, 2130 (December 1982). Nevertheless, such a broad
standard must afford reasonable notice of what is required or proscribed. U.S.
Steel Corp., 5 FMSHRC 3, 4 (January 1983). The safety standard must "give the
person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408
U.S . 104, 108-109 (1972); see also, Phelps Dodge v. FMSHRC, 681 F.2d 1189, 1192
(9th Cir. 1982).
When faced with a challenge that a safety standard failed to provide
adequate notice of prohibited or required conduct, the Commission has applied
an objective standard, i.e . , the reasonably prudent person test. The
Commission recently summarized this test as "whether a reasonably prudent
person familiar with the mining industry and the protective purposes of the
standard would have recognized the specific prohibition or requirement of the
standard." Ideal Cement Co., 12 FMSHRC 2409, 2416 (November 1990). "In order
to afford adequate notice and pass constitutional muster, a mandatory safe~y

1343

standard cannot be 'so incomplete, vague, indefinite or uncertain that
[persons] of common intelligence must necessarily guess at its meaning and
differ as to its application."' !d., quoting Alabama By-Products Corp., 4
FMSHRC at 2129 (citations omitted).
Although the judge considered the question of prior notice when
determining Lanham's degree of negligence, it appears that he did not apply the
reasonably prudent person test when determining whether Lanham had notice of
the specific requirements of section 77.1710(g). 12 FMSHRC at 883 .
Accordingly, we are remanding this proceeding to the judge so that he may
determine, through application of the reasonably prudent person test, whether
Lanham had fair notice that section 77.1710(g) required the use of safety belts
or lines under the circumstances of this case. We do not reach the other
issues raised in this case.
For the foregoing reasons, we vacate the judge's decision and remand this
proceeding for further consideration by the judge.

Richard V. Backley, Acting Chairman

~a-W
oyceA.D0y1e, CommiSSiO

Arlene Holen, Commissioner

~~/

L. Clair Nelson, Commissioner

1344

Distribution
Flem Gordon, Esq.
Gord0n & Gordon
P.O. Box 390
Owensboro, Kentucky

43202

Carl C. Charneski, Esq.
Office of the Solicitor~
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
William E. Hynan, Esq.
Rebecca A. DeSimone, Esq.
National Coal Association
1130 17th Street, N.W.
Washington, D.C. 20036
Henry Chajet, Esq.
Laura Beverage, Esq.
Jackson & Kelly
1701 Pennsylvania Ave., N.W., #650
Washington, D.C. 20006
Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1345

.PID!RAL MINI SAPITY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
. WASHINGTON, D.C. 20006

September 18, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

..
Docke t No. WEST 88 · 202·M

I DEAL CEMENT COMPANY

BEFORE:

Backley, Doyl e, Hol en and Nelson, Commi s sioners

DECISI ON

BY THE COMMISSION:
This civil penalty proceeding , arising under the Federal Mine Safety and
Health Act 9f 1977, 30 U. S.C . § 801 et seq. (1988)(the "Mine Act" or "Act"),
is before the Commission a second time . This case involves a dispute between
the Secretary of Labor and Ideal Cement Company ("Ideal") concerning 30 C.F.R.
§ 56.9002 (1988), a former mandatory safety standard applicable to surface
metal and nonmetal mines, requiring that "[e]quipment defects affecting safety
shall be corrected before equipment is used." The Secretary cited Ideal under
section 56.9002 for operating a front-end loader without side screens. In his
original decision in this matter, Commission Administrative Law Judge John J.
Morris vacated · the citation on the basis that section 56 . 9002 did not give
Ideal adequate notice that the absence of side screens constituted an
"equipment defect affecting safety. " 11 FMSHRC 1776 (September 1989)(ALJ).
· The Commission granted the Secretary's petition for discretionary review
of t he judge's original decision . In its earlier decision, the Commission had
determined that the absence of the side screens amounted to an "equipment
defect" within the meaning of the standard and reversed the judge's conclusion
to t he contrary . With respect to whether the absence of side screens
"affect[ed] safety," the Commission determined that the ju~ge had incorrectly
analyzed whether the standard provided adequate notice under the circumstances
of the conduct prohibited. The Commission remanded the case so that the judge
could resolve the issue pursuant to the "reasonably prudent person test."
Ideal Cement Co., 12 FMSHRC at 2409 (November)(l990) ("Ideal I"). In his
decision on remand, the judge, upon application of the reasonably prudent
person test, determined that the standard did apply to the circumstances in
issue and that the Secretary had established a violation of the standard .
13 FMSHRC 359 (March 199l)(ALJ). We granted Ideal's petition for
discretionary review. For the reasons that follow, we affirm t~e judge's
decision .

1346

I.
Factyal Back1round and Procedural Histo;y
The facts in this matter have been amply set forth in I4eal I (12 FMSHRC
at 2409-12), and are summarized here. On October 20, 1987, Tom Bertagnolli,
an employee of Ideal, was involved in a fatal accident inside a kiln while
operating a modified front-end loader without side screens. The uni·l~ader
had been modified for certain tasks, including kiln work, in the following
respects: (1) the bucket was replaced by a jack hammer attachment; (2) the
side screen.s were removed; (3) the standard wheels were replaced by highpressure, narrow wheels; (4) the Rollover Protective Structure ("ROPS") was
lowered; and (5) a screen and a plywood shield were placed in the front of the
uni-loader. At the time of the accident, Mr. Bertagnolli was using the jack
hammer attachment on the uni-loader to remove worn brick from the kiln's
ceiling.
An inspector of the Department of Labor' s .. Mine Safety and Health
Administration ("MSHA"), Darrel Woodbeck, and an inspector for the State of
Montana, Robert Stinson, investigated the accident. They concluded that
Bertagnolli had been crushed between the uni-loader's side arms and the ROPS,
that the uni-loader must have been running at the time of the accident for the
arms to have raised, and that Bertagnolli must not have been wearing his
seatbelt. Tr. 357, 375-76. Inspectors Woodbeck and Stinson stated their
belief that if the side screens had been in place on the vehicle, it would
have been impossible for Bertagnolli to place himself in a position to be so
injured. Tr. 257, 357. Inspector ·Woodbeck issued a citation to ~deal
pursuant to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging a
violation of section 56.9002. ·The inspector noted that the citation was
terminated when the side screens were subsequently replaced on the uni-loader.

The Secretary thereafter filed a proposed assessment of civil penalty in
the amount of $10,000 against Ideal for the alleged violation. Following an
evidentiary hearing, Judge Morris vacated the citation because he concluded
that section 56.9002 did not give Ideal adequate notice that the absence of
side screens constituted an "equipment defect affecting safety." 11 FMSHRC at
1783, 1786-88. The judge acknowledged that equipment defects within the scope
of the standard are not limited to components affixed to the equipment but
also may take the form of missing components. The judge determined, however,
that a defect affecting safety must impair the actual functioning or operation
.of the equipment. 11 FMSHRC at 1785. He found that the missing side screens
did not constitute such a defect. Id.
The Commission granted the Secretary's petition for discretionary review
of Judge Morris' original decision. On review, the Commission determined that
the judge erred in construing the standard to support a finding of violation
only when a defective or missing component effectively impair$ the operation
of the equipment. 12 FMSHRC at 2414-15. The Commission held that a missing
piece of safety equipment may be as much a "defect" as a malfunctioning
operational component, and thereby satisfy the first element of a two-pronged
analysis of whether a condition constitutes an "equipment defect" that

1347

"affect[s] safety." 13 FMSHRC at 2415. The Commission concluded that the
absence of the side screens amounted to an equipment defect within the meaning
of the standard and reverse~ the judge's decision to the contrary. Id.
With respect to whether the operator had sufficient notice that the
absence of the side screens affected safety, the Commission determined that
the judge erred when he applied a test that required Ideal to have received
explicit prior notice that the standard required ~ttachment of the side .
screens. ~ 12 FMSHRC at 2415-1~.
The Commission concluded that the issue was
properly addressed through applicatio'n of the reasonably prudent person' test.
IQ. Accordingly, the Commission remanded the case to the judge to consider
"whether a reasonably prudent person, familiar with the mining industry and
the protective purpose of section 56.9002, would have recognized that the
missing side screens on the uni-toader ·' affect[ed] safety' within the meaning
of the regulation and would have remedied ~hat defect prtor to any further use
of the equipment." 12 FMSHRC at 2416. The Commission provided the following
guidelines for such analysis:
·
The judge should exam~ne the evidence in the
context of the modified condition in which the uniloader was being used at the time of the accident.
The judge should examine and set forth findings and
conclusions ba~ed on the evidence of record including
but not limited to: (1) the testimony of the Ideal
employees and ~he inspectors regarding ·whether
operating the uni-loader in the kiln without side
screens affected safety, taking into account the
proximity of the side arms to the operator's cab; (2)
any evidence regarding whether the presence of the
side screens impeded the equipment operator's vision
with respect to the work area; (3) any evidence
regarding whether Ideal's safety policies prohibited
removal of the sere'ens; and · (4) any evidence of
industry or manufacturer's policy regarding the
removal of the side screens an~ the circumstances, if
any, under which the side screens could be removed
without impairing safety ....

lsl.
In his decision on remand, the judge concluded that a violation had been
.established. The judge determined that, under the circumstances presented, a
reasonably prudent person would have recognized that the absence of the side
screens affected safety within the meaning of the standard. The judge found
that safety would be affected in the context of the kiln work in two ways:
bricks could fall through the area of the missing side screens onto the uni·
loader operator and the operator could be pinched by the uni-loader's
sidearms. 13 FMSHRC at 364.
In reaching the conclusion that a violation had occurred, the judge ·
considered each of the four factors suggested by the Commission in Ideal I,
supra. With respect to the first factor the judge found that: (1) the

1348

inspectors had concluded that the side screens were designed to prevent
contact with the lifting arms and that Bertagnolli would not have been able to
place himself in a position to be crushed if the side screens had been in
place; (2) there was evidence that the purpose of the side screens is to "keep
your arms out from underneath the loader while you are operating it" and to
prevent brick from falling on the uni-loader operator's lap (Tr. 404);
(3) evidence indicated that when an operator sits in the uni-loader
"everything is pretty close" (Tr. 171), and photographs "confirm{ed]" this
testimony; and (4) the total distance between the sidearms at mid- point was
45.4 inches. 13 FMSHRC at 360, 362-63.
With respect to the second factor listed by the Commission -- whether
the presence of the side screens impeded vision - - the judge noted evidence
that the screens had a tendency to impede side vision when the uni-loader was
backed down a ramp and out of the kiln, and that some employees attached the
side screens while others did not . 13 FMSHRC at 361, 363. The judge
determined that the vision impediment existed only when the uni-loader was
being backed out of the kiln and that such a problem could be rectified by
using a wider ramp . The judge further found that, in any event , Bertagnolli
was not engaged in backing up the uni-loader at the time when he was crushed.
13 FMSHRC at 363-64.
With respect to the third factor -- whether Ideal's safety policies
prohibited removal of the screens -- the judge noted that Ideal's supervisors
did not require or prevent the use of the side screens, that Ideal's safety
policies did not prevent the removal of the side screens, but that Ideal's
safety manual contains a provision stating, in part, that "[g]uards shall not
be removed except for making repairs, cleaning, dressing, oiling or adjusting
and then only by authorized persons when machines are stopped .. .. " 13 FMSHRC
at 361-63.
Concerning the fourth factor - - industry practices - - the judge stated
that the record contained "no evidence of any industry or manufacturer's
policy regarding the removal of the side screens and the circumstances under
which the side screens could be removed without impairing safety . "
13 FMSHRC at 367.
The judge thus concluded that inasmuch as the Commission had determined
that ·the missing side screens constituted an equipment defect and, in light of
his new determination that their absence affected safety, a violation of the
standard had been established. He assessed a civil penalty of $8,000.
13 FMSHRC at 365 .
II .
Disposition of Issues
The essential issue presented on review is whether substantial evidence
of record supports the judge's conclusion in this case that, upon application
of the reasonably prudent person test, the missing side screens affect~d

1349

safety within the meaning of section 56.9002. 1 Ideal contends that the
evidence reveals: that the presence of the side screens would not have
prevented the uni-loader operator from being hit with bricks falling through
the front of the loader; that had Bertagnolli been wearing his seat belt, as
allegedly required by Ideal's safety policies, he would not have been able to
lean out of the uni-loader; that MSHA inspectors had previously observed the
uni-loader being operated without side sc~eens but had not issued any
citations; and, that Ideal's employees did not consider it unsafe to operate
the uni-loader without side screens because, if they had, they could have redtagged the uni-loader and removed it from service or installed the side
screens. I. Br. at 9, 14, 16 n. 11.
The phrase "affecting safety" in the standard has a wide reach and the
"safety effect of an uncorrected equipment defect need not be major or
immediate to come within that reach." Ideal I, 12 FMSHRC at 2415, citing
Allied Chemical Corp., 6 FMSHRC 1854, 1858 (August 1984). The first safety
effect found by the judge was the danger of falling brick. Although brick
could have fallen through the front of the uni-loader, as pointed out by
Ideal, Ideal's employees acknowledged that the side screens were used to keep
1

Ideal argues that the judge's conclusion of violation is not supported
by a "preponderance" of the evidence . Section 113(d) (2) (A) (ii) (I) of the Mine
Act provides that the Commission's review is based on whether the judge's
findings are supported by substantial evidence.
See, ~. Secretary v.
Michael Brunson, 10 FMSHRC 594, 598 (May 1988).
Ideal has raised additional arguments. Ideal argues that the absence
of the side screens does not constitute an "equipment defect" and maintains
that the Commission retroactively determined. that the absence of the side
screens was a "per se violation of this broadly worded standard."
I. Br. at 5. The Commission did not hold that the absent side screens
constituted a "per se violation" of the standard but determined that the
first element of the two-pronged analysis had been established. The
Commission remanded the remaining safety-effect issue to the judge.
12 FMSHRC at 2415. We choose not to re-examine this issue further.
Ideal also contends that the judge improperly relied upon
uncorroborated hearsay and speculation to reach his conclusion that "the
absence of the side screens resulted in the accident." I. Br. at 15. The
Commission has determined that hearsay evidence is admissible in its
hearings, so long as it is material and relevant. Mid-Continent Resources.
Inc., 6 FMSHRC 1132, ~135 (May 1984) . However, even if we were to · conclude
that the judge's finding that the "absence of the side screens resulted in
the accident" was not supported by substantial evidence, it would not be
determinative of whether a violation of the standard occurred. Lone Star
Industries. Inc., 3 FMSHRC 2526, 2529 (November 1981). The judge did not
find a violation because the "absence of the side screens resulted in an
accident." Rather, he found that a violation was established because the
missing screens affected safety in that they allowed the uni-loader operator
to lean out of the cab or get his arms caught or pinched by the lifting
arms, or allowed bricks to fall into the operator's lap. 13 FMSHRC at 364.

1350

brick from falling on the uni-loader operator.
equipment operator, testified:

Stephen Carey, an Ideal heavy

I came out on a B shift, and the side screens were off
at that time , and I knew the machine, and, when you ' re
knocking brick out , you always had a chance of
catching a brick coming into your lap or whatnot, and
I knew the machine , I think, a lot better than most
people did, and so I went down ... and got the screens
and . . . put them on myself ....
Tr. 88. Mr. Carey also stated that the purpose of the side screens was to
prevent brick from falling onto the uni-loader oper ator's lap. Tr. 115. Bert
Todd, an Ideal yard foreman, testified that the purpose of the side screens
was to prevent "falling rock [from] coming down when you are loading" and "to
keep your arms out from underneath the loader while you are operating it. "
Tr. 404.
The judge also found t hat the absence of side screens could allow a uniloader operator to be pinched or crushed by the side arms. The judge noted
that Stanley Veltkamp, an Ideal employee, testified that "everything is pretty
close" inside the uni-loader (Tr. 171). Such testimony is corroborated by the
photographs of the uni-loader. ~. Exhs. R-2, P-6, 8-12, 16-18. Inspector
Stinson testified that the purpose of the side screens was to prevent the uniloader operator from contacting the uni - loader sidearms. Tr. 253-54.
Inspector Woodbeck testified that Bertagnolli had been crushed between the
sidearms of the uni - loader and the ROPS. Tr . 357. He explained that, if the
side screens had been present on the uni-loader, it would not have been
physically possible for Bertagnolli to pl~ce his body over the sidearms. Id.
The foregoing testimony and other evidence constitutes substantial
evidence to support the judge's conclusion that a reasonably prudent person,
familiar with the mining industry and the protective purpose of section
56.9002, would have recognized that under the circumstances in which the uniloader was being used, the missing side screens affected safety within the
meaning of the standard.
We reject Ideal's argument that it is not liable for any violation in
this ·case because of Bertagnolli's failure to wear a seat belt (as allegedly
required by Ideal), which woul d have prevented him from leaning out of the
uni-loader. Under the liability scheme of the Mine Act, an operator is liable
. for the violative conduct of its employees, regardless of whether the operator
itself was without fault and notwithstanding the existence of significant
employee misconduct. See, ~. Asarco. Inc.- Northwestern Mining Dept. v.
FMSHRC and AMC, 868 F.2d 1195, 1197-98 (lOth Cir. 1988), and authorities
cited. Moreover, this case does not involve a seatbelt violation, but rather,
whether the missing side screens affected safety . 2
2

We note the importance of seatbelts, which are required to be worn
under current Mine Act regulations.
See, ~. 30 C.F.R. § 56.14130(g)
(Present mandatory safety standard for surface metal and nonmetal mines).

1351

We find similarly unpersuasive Ideal's argument that it did not receive
adequate prior notice of the standard's requirements because MSHA had not
previously cited Ideal for operating the uni-loader without side screens.
Relying on settled Commission precedent, we reject Ideal's assertion that
equitable estoppel should be applied against the Secretary. See, King Knob
Coal Company . Inc. , 3 FMSHRC 1417 '· 1421- 22 (June 1981).
For the foregoing reasons, we affirm the judge's decision. 3

5<:yce A. Doyle, Commissioner

3

Chairman Ford did not participate in the consideration or disposition
of this matter.

1352

Distribution
James J. Go.nzales, Esq.
Holland & Hart
555 Seventeenth St ., #2900
P.O. Box 8749
Denver, Colorado 80201
Jerald Feingold, Esq.
Office of the Solicitor
U.S . Department of ~abor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
280 Colonnade Center
1244 Speer Blvd.
Denver, Colorado 80204

1353

FEDIRAL MINE SAFETY AND HEALTH REVIEW COMMISSION
.r 1730 K STREET NW, STH FLOOR

.

WASHINGTON, D.C.

20006

September 20, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

.

.....

Docket No. ·PENN 89·143

BULK TRANSPORTATION SERVICES, INC.

BEFORE:

Backley, Doyle, Holen and Nelson, Commissioners
DEqiSION

BY THE COMMISSION:
This civil penalty proceeding arises under t~e Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 'et seq. (1988)("Mine Act" or "Act"). It
presents the issues of whether Bulk Transportation Services, Inc. ("Bulk") is
an "operator" within the meaning of section 3(d) of the Mine Act; if so,
whether it was liable for a violation of 30 G.F.R. § 77.807-3 committed by its
subcontractor, James KFumenak~r; and whether the S~cretary of Labor abused her
discretion by citing Bu~k, rather _than Mr ! Krumenaker. 1 C6mmission
Administrative Law Judge George A. Koutras determined that Bulk was an
independent contractor-operator within the meaning of the Mine Act, that the
Secretary had not abused her discretion by citing Bulk rather than Krumenaker,
1

Section 3 (d) of the Mine Act, 30 U.S .·C. §802 (d),. provides:
"operator~~ means any owner, lessee, or other
person who operates, controls 1 or supervi_s es a coal
or other mine' or any independent contractor
performing services or construction at such mine .. :.

The original citation alleged a violation of 30 C.F.R. § 77.807-2.
P-Exh. 1. That citation was amended at the hearing to allege a violation of
30 C.F.R. § 77.807-3, which provides:
·
When any part of any equipment operated on the
surface of ' any coal min~ is requ~red to pass under
or by any energized high-voltage powerline and the
clearance between such eqUipment and powerline is
less than that specified in •§ 77.807-2' for booms and
masts, such powerlines shall be deenergized or other
precautions shall be taken.
·

1354

that a violation ~-~ section 77 .807-·3 had been established, and that the
violauion was of a significant and substantial nature. 12 FMSHRC 772 (April
1990) (ALJ). The Commission granted Bulk's petition for discretionary review.
For the reasons that follow, we affirm the judge's decision.

I.
Factual Backsround and Procedural History
In 1986, Bulk entered into a five-year contract with Bethlehem Steel
Corporation, BethEnergy Division ("BethEnergy"), to transport both raw and
clean coal from BethEnergy's Mine No. 33, in Cambria County, Pennsylvania, to
the Homer City Generating Station ("Generating Station"), about 40 miles away
in Homer City, Pennsylvania. R-Exh. 1. The Generating Station is jointly
owned by Pennsylvania Electric Company and New York State Electric & Gas
Corporation. Bulk is the exclusive transporter of coal from BethEnergy's Mine
No. 33 to the Generating Station (Tr. 110) and performed its contractual
obligations to BethEnergy through subcontractors, one of which was Krumenaker.
In the subcontract, Krumenaker agreed to lease Bulk a truck and driver.
Bulk has three employees: Charles Merlo, president of the company, a
dispatcher, and a bookkeeper. None of these employees works at the Mine No. 33
site. Typically, Bulk's dispatcher completes a work roster for the following
day by calling the mine and determining the number of coal loads that need to
be transported to the Generating Station. Bulk's subcontractors call the
dispatcher to see if there is work for them the following day; however, there
is no contractual requirement that Bulk provide work to each subcontractor who
requests i~. The next morning, each scheduled subcontractor travels to the
mine, its truck is loaded with coal by BethEnergy miners, and the subcontractor
transports the coal to the Generating Station .
On January 4, 1989, Nevin Davis, an inspector of the Department of
Labor's Mine ·Safety and Health Administration ("MSHA"), went to BethEnergy's
Mine No. 33 after being informed that the power and fans were off at the mine.
Inspector Davis discovered that the power outage had been caused when
Krumenaker raised the bed of his truck in order to clear the ice and snow from
it before receiving a load of coal. The bed touched the energized 46KV
powerline above the truck. Although eight of the truck's tires were blown,
Krumenaker jumped from the truck and was not injured.
Inspector Davis observed that Krumenaker's truck had a "Bulk" sign on it,
and assumed that Krumenaker was employed by Bulk. The inspector obtained
BethEnergy's list of independent contractors, required to be maintained
pursuant to 30 C.F.R. § 45.4, and noted that Bulk's name was on the list and
that Krumenaker's name was not.
Based upon his observations, Inspector Davis issued Bulk a citation
alleging a violation of section 77.807-2. (~ n. l supra). Inspector Davis
found the violation to be of a significant and substantial nature because he
believed that the driver could have suffered fatal injuries when the truck bed
made contact with the powerline. The citation was terminated after
BethEnergy's plant foreman instructed Krumenaker, and the other truck drivers,

1355

to be aware of the powerline. BethEnergy , subsequent to t he incident, also
posted warning signs. Inspector Davis did not cite Be t hEnergy for ~he
violation because he determined that the powerlines were at a proper height and
believed that it was difficult for BethEnergy to exercise control over truck
drivers when raising their truckbeds.
Following an evidentiary hearing, the judge found that Bulk was an
independent contractor-operator subject to liability under the Mine Act, and
that the Secretary had not abused her discretion by citing Bulk rather than
Krumenaker. 12 FMSHR.C at 789-98. The judge noted that in Otis Elevator Co.,
11 FMSHR.C 1896 (October 1989)("0tis I"), and Otis Elevator Co., 11 FMSHR.C 1918
(October 1989)("0t1s II"), the Commission had held that whether an independent
contractor is a statutory operator depends, in part, on the independent
contractor's relationship to the extraction process and the extent of its
presence at the mine. 12 FMSHR.C at 791. Applying the Commission's Otis test,
the judge reasoned:
Although it is true that Bulk does not own any of
the coal haulage trucks, and that the drivers are not
employed by Bulk, the fact remains that Bulk provides
and performs services for the mine operator BethEnergy
at the mine, albeit through the use of subcontractor
and owner/operator truck drivers. Under the terms of
the contract, Bulk was obligated to pick up the coal at
the mine site and have it delivered and unloaded at the
customer destinations designated by BethEnergy. The
coal is loaded by BethEnergy's miners. Although Bulk
chose to use subcontractors to transport and deliver
the coal, with BethEnergy's blessings, Bulk was
nonetheless legally obligated for the performance of
the services called for under the contract. BethEnergy
had no direct dealings with the subcontractors, and it
looked to Bulk to provide its coal transportation
needs. Given the large volumes of coal required to be
transported by Bulk, and the fact that Bulk had the
exclusive right to transport all of BethEnergy's coal
to [the Generating Station], I conclude and find that
Bulk was performing an essential service for BethEnergy
which was closely related to the mine extraction
process and was indeed an essential ingredient of that
process. BethEnergy is obviously in the business of
marketing its coal, and without the means for
transporting it to its customers through the services
provided by Bulk, it would not remain in business very
long.
12 FMSHRC at 792-93. Subsequent to the judge's decision, the Commission's ~
decisions were affirmed by the United States Court of Appeals for the District
of Columbia Circuit. Otis Elevator Co. v. Secretary & EMSHRC, 9~1 F.2d 1285
(1990).
The judge further concluded that the Secretary did not abuse her

1356 .

discretion by citing Bulk, rather than Krumenaker. The judge found no evidence
that Krumenaker was a bona fide independent contractor and determined that
Bulk, contrary to its assertions, did exercise control over its subcontractors.
12 FMSHRC at 795-98 . Finally, the judge determined that a violation of section
77.807-3 had occurred and that the violation was significant and substantial.
12 FMSHRC at 794, 798-99 . He assessed a civil penalty of $25 against Bulk.
12 FMSHRC at 801.

II.
Disposition of Issues
A.

Whether Bulk is an independent contractor-operator

Section 3(d) of the Mine Act expanded the definition of "operator"
previously contained in the Federal Coal Mine Health and Safety Act of 1969, 30
U.S.C. § 801 et seq. (1976)(amended 1977)("Coal Act"), to include "any
independent contractor performing services or construction at such mine." The
legislative history of the Mine Act demonstrates that the goal of Congress in
expanding the definition of "operator" was to broaden the enforcement power of
the Secretary to reach a wide range of independent contractors, not just owners
and lessees. The Report of the Senate Human Resources Committee explained that
the definition of operator was expanded in order to "include individuals or
firms who are ... engaged in construction at such mine, or who may be, under
contract or otherwise, engaged in the extraction process . . .. " S. Rep. No. 181,
95th Cong., 1st Sess. 14 (1977), reprinted in Senate Subcommittee on Labor of
the Committee on Human Resources, 95th Cong., 2nd Sess. Legislative History of
the Federal Mine Safety and Health Act of 1977, at 602 (1978)("Legis. Hist.").
The Conference Report likewise explained that the expanded definition "was
intended to permit enforcement" of the Act against independent contractors
"performing services of construction" and "who may have a continuing presence
at the mine." S. Conf. Rep. No. 461, 95th Cong. 1st Sess. 37 (1977), reprinted
in Legis. Hist. at 1315. The Commission has consistently recognized that the
inclusion of independent contractors in the statutory definition reflects a
Congressional purpose to subject such contractors to direct MSHA enforcement
under the Mine Act . Otis I, 11 FMSHRC at 1900, and authorities cited therein.
The Commission, in its Otis decisions, concluded that an independent
contractor performing elevator maintenance and repair operations at underground
coal mines was an operator within the meaning of the Act. The Commission,
however, indicated that "not all independent contractors are operators under
the Mine Act, and that 'there may be a point ... at which an independent
contractor's contact with a mine is so infrequent or de minimis that it would
be difficult to conclude that services were being performed.'" Otis I,
11 FMSHRC at 1900-01, quoting Nat'l Indus. Sand Ass ' n v. Marshall, 601 F.2d
689, 701 (3d Cir. 1979).
In its opinion affirming the Commission's Otis decisions, the D.C.
Circuit held that section 3(d) of the Act "does not extend only to certain
'independent contractor[s] performing services ... at [a ] mine; by its terms,
it extends to 'any independent contractor performing services ... at [a]
mine . "' Otis, 921 F . 2d at 1290 (emphasis in original). The Court noted that

1357

it "need- not confront" the issue of whether there is a point at which an
independent contractor ceases to be an operator because its contact with a mine
was so infrequent or de minimis because, in Otis, the contractor had conceded
that it performed "limited but necessary" services at the mines.
921 F.2d at 1290 n.3.
In the present case, the judge determined that Bulk was an independent
contractor-operator within the meaning of section 3(d) of the Act because Bulk
performed an essential service for BethEnergy, transportation of mined coal,
which the judge found was closely related to the extraction process, and
because Bulk had a continuing presence at the mine . 12 FMSHRC at 792-93. We
conclude that the judge's determination that Bulk is a statutory operator is
amply supported by the record .
Bulk does not dispute that it is an independent contractor and that it
has been assigned an MSHA independent contractor identification number pursuant
to 30 C. F . R. § 45.3. Rather, it argues that it is not an independent
contractor-operator within the meaning of the Mine Act and its regulations
because it was merely a "transportation broker" and, accordingly, was not
engaged in the extraction· process, did not have a continuing presence at the
mine, and did not substantially participate in the mine's operations. The
judge examined the nature of Bulk's services as though Bulk were the party
actually hauling coal, rather than serving merely as a transportation broker.
We agree with the judge that, under the facts of this case, Bulk cannot avoid
liability through the use of subcontractors rather than employees, after
contractually obligating itself to be BethEnergy's exclusive hauler of coal
from Mine No. 33 to the Generating Station. The fact that Bulk chose to
perform its obligations through the use of subcontractors rather than employees
did not modify Bulk's position as BethEnergy's exclusive coal hauler at the No.
33 Mine. 2
Nor are we persuaded by Bulk's argument that it does not maintain a
physical presence at the mine. Each of Bulk's subcontractors drives under
Bulk's Pennsylvania Public Utility Commission number and places a Bulk
nameplate on its truck. Tr. 23, 73, 97. Bulk maintains that its
subcontractors do so only to comply with Pennsylvania law. B. Br. at 21.
Whatever may be the legal relationship between Bulk and its subcontractors, the
fact remains that these subcontractors could not perform the relevant coal
haulage services at the mine without Bulk's authority. Those subcontractors
could not maintain an independent physical presence at the mine for the
relevant services because Bulk had the exclusive contract for coal haulage from
the mine to the Generating Station.

2

Our focus is on the actual relationships between the parties, and
is not confined by the terms of their contracts. Reference to the contractual
relationships between the parties is made because the contracts are evidence
of the parties' actual relationships. Moreover, the determination of whether
a party is properly designated to be within the scope of section 3(d) of the
Act is not based upon the existence of a contract, nor the terms of such a
contract.

1358

Further evidence supports the judge's determinations that Bulk's services
were essential and closely related to the extraction process and that Bulk had
a sufficient presence at the mine. 12 FMSHRC at 792-93. Merlo testified that
" there is a constant flow of truck drivers in and out, .. working for us," and
that they generally haul four to five days per week. Tr. 85, 107. Under its
contract with BethEnergy, Bulk agreed to transport approximately 30,000 tons of
raw coal and 20,000 tons of clean coal per month to the Generating Station.
R-Exh . 1, sections 1.1, 1.2. Given the undisputed fact that Bulk' was
BethEnergy's exclusive coal hauler between Mine No. 33 and the Generating
Station, and given the quantities of coal hauled by Bulk, we agree with the
judge that Bulk's services in hauling coal were essential and closely related
to the extraction process. 12 FMSHRC at 792.
Accordingly, we affirm the judge ' s holding that Bulk is an independent
contractor-operator within the meaning of the Mine Act. We note, however, that
our holding is limited to the haulage services context of this case, where the
violative conduct occurred at a mine.
B.

Whether Bulk should be held liable for the acts of Krumenaker

Bulk argues in the alternative that, even if it is considered an
operator, it is not an "owner-operator" and, therefore, should not be held
liable for a violation committed by its subcontractor. Quoting Cyprus
Industries v. FMSHRC, 664 F.2d 1116, 1119 (9th Cir. 1981), Bulk argues that
owners or production-operators are held liable for violations caused by
independent contractors because "they are generally in 'continuous control of
conditions at the entire mine.'" B. Br . at 9 (emphasis in Court's decision) .
Bulk contends that it did not exercise control over its subcontractors or have
responsibility for safety over an identifiable part of the mine. B. Br. at 911. We reject such a narrow reading of Cyprus. In Cyprus, the Court stated
that one policy reason for holding owners liable for the violations committed
by independent contractors is that an owner is "generally in continuous control
of conditions at the entire mine." 664 F.2d at 1119. The Court did not state
or imply that this was the only reason why owners should be held liable for
acts of their contractors or that, if for some reason, an owner did not
exercise such general control over the entire mine, it could not properly be
held liable for the acts of its contractors.
To the contrary, settled liability law under the Mine Act clearly
demonstrates that the basis for holding an owner-operator liable for the
violative conduct of another is its general system of liability.
The
Commission and various courts have recognized that the Mine Act (as well as its
predecessor, the Coal Act) sets forth such a scheme of liability without fault.
See, ~. Bituminous Coal Operators' Association v. Secretary of Interior, 547
F.2d 240, 246-47 (4th Cir. 1977)("BCOA"); Cyprus, 664 F . 2d at 1119;
Sewell
Coal Co. v. FMSHRC, 686 F.2d 1066, 1071 (4th Cir. 1982); International Union,
United Mine Yorkers of America v. FMSHRC, 840 F.2d 77, 83-84 (D.C. Cir. 1988);
Asarco. Inc. -- Northwestern Mining Dept. v . FMSHRC & AMC, 868 F.2d 1195, 119798 (lOth Cir. 1988); and Western Fuels-Utah v. FMSHRC, 870 F.2d 711, 713 (D.C.
Cir. 1989). Thus, an owner is held liable for the acts of its contractor not
merely because the owner has continuous control of the entire mine but, rather,
because the Act's scheme of liability provides that an operator, although

1359

faultless itself, may be held liable for the violative acts of its employees,
agents, and contractors. Because Bulk is a statutory operator, it may be held
liable for the violative acts of its subcontractor, Krumenaker.
C.

Whether the Secretaxy abused her discretion by citing Bulk
rather than Krumenaker

Bulk argues that the Secretary abused her discretion in citing it rather
than Krumenaker. Bulk argues that the enforcement action taken against it was
contrary to the provisions of MSHA's "Enforcement Policy and Guidelines for
Independent Contractors," set forth in MSHA's Program Policy Manual ("Policy
Manual"). These guidelines provide that enforcement action may be taken
against an operator principal for the violative acts of its independent
contractor in any of the four following contexts: the principal contributed to
the violation; the principal contributed to the continued existence of the
violation; the principal's employees were subjected to the hazard created by
the violation; or the principal has control over the condition requiring
abatement. III Policy Manual Part 45, at 6. Bulk argues that none of these
circumstances apply to it. B. Br. 28-29.
In instances of multiple operators, the Secretary may, in general,
proceed against either an owner-operator, its contractor, or both, for a
violation. Cyprus, 664 F.2d at 1119; Old Ben Coal Co., 1 FMSHRC 1480, 1483
(October 1979). If Krumenaker is not an "operator," clearly, the Secretary did
not abuse her discretion by failing to cite him. We conclude, however, that
even if it is assumed that Krumenaker constitutes a statutory operator, the
record supports a conclusion that the Secretary did not abuse her discretion by
citing Bulk.
Preliminarily, the Secretary's citation of Bulk was not inconsistent with
the Policy Manual criteria. The guidelines states that enforcement action may
be appropriate in any of the four described situations. III Policy Manual Part
45, at 6. Bulk had substantial control over the condition requiring abatement,
which satisfies the fourth criterion. Although BethEnergy later posted warning
signs and instructed Krumenaker and the other drivers to take precautions
around the powerlines (Tr. 30-31), BethEnergy also looked to Bulk to ensure
safe practices among its drivers. Merlo testified that whenever BethEnergy has
a safety complaint about one of Bulk's drivers, it contacts the subcontractor
"on the site," and eventual ly notifies Bulk by letter so that Bulk can inform
the drivers and correct the safety problems. Tr. 114-15. Bulk then passes
BethEnergy's complaint on to the subcontractor involved, usually by including
BethEnergy' s letter in the subcontractor's pay voucher. Tr. 91. (The
inspector's contemporaneous investigative notes contain a statement that
BethEnergy had informed Bulk of the violation and that Bulk had warned its
drivers accordingly. See P-Exh . 2, p. 5 . ) We also note that Bulk's contract
with BethEnergy provides that Bulk is responsible for violations of law and
inspecting the haulage trucks "to assure safe movement . .. in compliance with
any law .... " R-Exh. 1, section 5.1. In any event, as held by the D.C. Circuit
in Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538-39 (1986), the
Secretary's criteria are merely expressions of general policy and are not
Qinding regulations that the Secretary is required to observe.

1360

Significantly, the record shows that Bulk has a continuing relationship
with BethEnergy and may be in the best position to influence the safety
practices of all its drivers. Bulk chooses its drivers and may refuse to
retain those drivers who cause safety violations. Tr. 101-103. We believe
that it is unreasonable to require the Secretary to pursue each of Bulk's 70 to
100 subcontractors.
The judge's conclusion that the Secretary did not abuse her discretion in
citing Bulk, r~ther than Krumenaker, is supported by applicable precedent,
which clearly establishes that the Secretary has wide enforcement discretion.
See,~. · consolidation Coal Company, 11 FMSHRC 1439, 1443 (August 1989);
Cathedral Bluffs, 796 F.2d at 537-38; Old Ben, 1 FMSHRC at 1481-86. 3
Accordingly, for the reasons set forth above, we affirm the judge's
decision. 4

Richard V . . Backley,

(7~fi. ~~

J ci:Y~eA:DOYle , CommisSioner

~~~

Arlene Holen, Commissioner

~~

L. Clair Nelson, Commissioner

3

Bulk also argues that it has been subjected to inconsistent enforcement
action by the Secretary because, in ~he past, MSHA vacated citations issued to
Bulk on the b~sis that the citations should have been issued to one of Bulk's
subcontractors who actually committed the violations. B. Br. at 29. Under
the Mine Act, as we have held, equitable estoppel does not generally apply ·
against the Secretary.
King Knob Coal Co., 3 FMSHRC 1417, 1421-22 (June
1981).
4

Chairman Ford did not participate in the consideration or disposition
of this matter.

1361

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

September 20, 1991
DRUMMOND COMPANY, INC.,

v.

Docket No. SE 91-10 - R
SE 91- 11- R

SECRETARY OF lABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

BEFORE:

Backley , Doyle, Holen, and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This contest proceeding arising under the Federal Mine Safety ·and Health
Act of 1977, 30 U.S.C . § 801 et seg . (1988)("Mine Act" or "Act" ), concerns a
dispute between Drummond ·eoal Company ("Drummond" ) and the Secretary of Labor
("Secretary" ) over the issuance of a section 104(d) (1) citation for accumulations
of combustible materials in belt line conveyor areas in violation of 30 C.F.R.
§ 75.400. 1
Drummond filed a notice of contest on October 24, 1990, and move d
for expedited hearing.
A hearing was held on November 14- 15, 1990, before
Administrative Law Judge Avram Weisberger.
The parties filed post hearing briefs and proposed findings of fact and
conclusions of law. Judge Wei sberger's decision modified the ·s ection 104(d)(l)
citation by vacating the unwarrantable failuFe finding. The Commission granted
the Secretary's petition for discretionary review appealing the judge ' s
determination that the violation was not unwarrantable. For the reasons that
follow, we vacate the judge's conclusion that the violation was not unwarrantable
and remand the issue of ' unwarrantability for reconsiderat ion.

1

Section 75.400, entitled "Accumulation of combustible mater ials," is
a statutory provision:
Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal , and other combustibl e materials,
shall be cleaned up and not be permi t ted to accumulate in
active workings , or on electric equipment t herein.

1362

I.
Factual Background and Procedural History
Drummond operates an underground coal mine, the ·Mary Lee No. 2 Mine, in
Alabama.
The mine is a thin seam coal deposit varying in thickness from
approximately 34 to 52 inches. It util~zes belt haulage to transport coal to the
surface. One section of the mine contains several interconnected belt lines
including the belt line and associated macninery at issue in thi~ case . 2 MSHA
Inspector Walter Deason examined this interconnected system of belt lines during
the period October 2-4, 1990. He issued several citations for accumulations of
combustible materials, including the citation and finding of unwarrantable
failure at issue herein.
Inspector D~ason's examinations proceeded toward the mine face. Early in
the morning of October 2, he examined the Slope Belt and found accumulations of
combustible materials, approximately thirteen inches deep and thirty feet long ,
in violation of section 75 . 400 . A section 104(a) citation was issued.
In
addition to the excess accumulations at the Slope Belt, Inspector Deason found
that shift inspectors were not placing dates or their initials in areas required
to be inspected, suggesting the possibility that no examinations were being made .
The record shows that Deason told Carl Ware, the owl shift mine foreman on duty
at the time, that inspections must be made and t~at the initials of the fire
bosses must be recorded to verify the inspections . .
Deason returned to the mine the next afternoon and continued examining the
conveyor belts. He was accompanied by John Busby, Drummond Safety Inspector, and
Sam Hunt, Alternate UMWA Safety Committeeman.
Deason foun~ accumulations of
coal under the belt line drive and the take-up unit of the 40 North No. 1
Conveyor Belt. ·These accumulations were approximately thirty-four inches deep
and between fifty and sixty feet long. Again, a citation was issued alleging a
violation of section 75.400.
On October 4, Inspector Deason returned to the 40 North Belt Line and
related section conveyor lines with . Sidney . Hill,
International UMWA
Representative, and Sam Hunt. · Deason noted accumulations of cQal approximately
twelve inches deep and thirty 'feet long beneath the belt drive and a take-up unit
of the 40 North No . 3 Conveyor Belt and noted that the belt was rubbing the
accumulations. A citation charging a violation of section 75.400 was issued.
2

This system of interconnected belts contains six belt lines and
operates ·in the following manner:
Coal mined from the face is
placed . on the 4315 Section conveyor drive and the 4050 Section
conveyor drive. The 4315 Belt Line carries coal to the 430 line,
which in turn proceeds to the 40 North Belt. The 40 North Belt,
because of its length, is divided into three belt sections. The 430
line dumps its coal onto the 40 North Belt at the No. 2 belt, which
is the middle belt .of the 49 North B~lt conveyor · system. The 4050
section conveyor drive deposits its coal directly onto the 40 North
Belt Line at the No. 3 belt. The 40 North Belt transports coal to
the 10 West Belt, which connects to the Slope Belt. The Slope Belt
brings the coal to the surface.

•• te •'

1.363.

·• . . . ·'

Thereafter, he proceeded to the 40 North No. 3 Belt and found accumulations of
coal thirteen inches deep and between twenty and thirty feet long from the end
. drive rollers to the ~ischarge rollers of the 4050 Section Conveyor Drive. The
accUmulations were relatively large, and consisted of small particles of coal
rather than large lumpy coal usually associated wit~ spills. 13 :fM~HRC at ._72.
Inspector Deason the~ proceeded to the 4315 Section conveyor belt and
there 'he .found float ~oal ~us.t, extending a distance o.f nearly 500. feet. A
ci~ation was issued charging a .violation of sectfon 75.400, which was designated
sign~ficant and substantial. . Inspector Deason testified that an examination of
the source of the du~t disclosed that the 4315 header was running in -the coal
dust and flipping it into the air. On further examination of the area, Deason
found coal dust accumulations in the area of the header and the take-up unit as
well as under the ~elt. ~ere was also a roller missing near the area . of the
take up · unit, which allowed the belt to rub against the metal frame.
In
addition, the belt was running in .the accumulations and area guards and other
guards - ~ere missing from the side of the belt line.
Based on these findings, Inspector Deason cited Drummond, pursuant to
section l04(d)(l) 3 , for a violation of section 75.400, alleging accum~lations
of combustible materials at the 4315 Section Belt Line. The section 104(d)(l)
citation stated:
Float coal dust was allowed to accumula·;:e beneath the
take up 'carriage on the 4315 section conveyor drive 19
inches deep. The take up roller and belt was running in
the said ,accumulations. Also coal was beneath the drive
units from half way of .the belt to the tight side end of
the drive~. Also coal was on the tight side up to 16
inches deep.
This is the 5th conyeyor belt unit written at this mine
in the past 4 days.
·

3

Section 104(d),(l) provides:
If, upon any inspection of a coal or other mine, an authorized
represe~tative of the Secretary finds that there has been a
violati~n of any mandatory health or safety standard, and if
he also finds that, while the conditions created by such
violation do not cause imminent danger, such violation is of
such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine
saf,e ty ,or h~alth 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 standard, he shall
include such finding in any citation given to the operator
under this Act.
30 U.S.C. Section 814(d)(l).

1364
, ......... • ;

...

l

• •

The pre-shift fire boss books indicate that the headers
was [sic] OK.
..
In addition to indicating that the citation was significant and substantial and
that Drummond's failure to maintain clean belt lines was unwarrantable, Deason
also charged that the citation involved high negligence.
Before the judge, the Secretary argued that Drummond's actions were
unwarrantable on three grounds. First, the Secretary argued that Drummond knew
or should have known of the accumulations because inspections and specific
discussions regarding other belts in close proximity to the 4315 Belt line placed
Drummond on a heightened alert for accumulations. The Secretary also argued that
Drummond made a conscious decision not to clean up accumulations until the idle
shift because it did not want to stop production. Finally, the Secretary argued
that Drummond ' s suggestions that the standard permits a reasonable time lapse
between accumulation and clean up contravenes clear Commission authority to the
contrary.
Citing Old Ben Coal Co., 1 FMSHRC 1954 (1979) , the Secretary
highlighted Commission review of the legislative history of the Act, emphasizing
Congressional intent to prohibit accumulations .
Drummond argued that it had demonstrated good faith in cleaning up the
accumulations, that abatement effort is the most important factor and, that based
on Utah Power & Light Company v . SecretahY, 12 FMSHRC 965 (May 24, 1990), such
efforts can be sufficient to prevent a finding of unwarrantable failure .
Drummond noted evidence that a miner was cleaning coal from under the belt line
at the time of the inspection. 13 FMSHRC at 76.
In discussing the evidence of unwarrantability, the judge reviewed the
history of the accumulations at the conveyor belts, the length of time the coal
was allowed to accumulate, and the visibility of the accumulations . Although the
judge did not specifically find that there was a history of accumulations, the
judge examined the three-day review by Inspector Deason. He found that, at each
step, the inspector had noted significant accumulations. The judge emphasized
the strength of this evidence, especially evidence of accumulations at each of
the belt lines cited prior to reaching the 4315 Belt Line.
Based on the
testimony of Inspector Deason and Sidney Hill, the judge found that the
accumulations at the 4315 Belt Line had gradually accumulated over a period of
time prior to the citation. 13 FMSHRC at 74 . The judge noted the testimony of
several witnesses that the conditions were readily visible, or would have been,
if viewed through the screens protecting the sides of the belt line. Busby, the
operator's own safety inspector, testified that the roller areas are susceptible
to spillage and demand closer scrutiny than other areas of the belt. Id.
The judge concluded that the weight of evidence established that Drummond
"did not use due diligence in inspecting for accumulations in the area in
question. "
Id.
Again, the judge concluded that the weight of evidence
"specifically" established that, if careful inspection had been made, the
accumulations would have been noticed and that "[d]ue to the extent and depth of
the accumulations ... it is highly likely that they existed at least 4 hours

1365

earlier when the preshift ex amination was made." 4

13 FMSHRC at 75.

The judge found, however, that the record did not support a conclusion of
unwarrantable failure. He rejected the Secretary's assertion that the operator
had actual knowledge of the conditions at the 4315 conveyor, finding that "the
record fails to establish such knowledge on the part of Contestant of the
specific accumulations at the specific locations in issue, i.e. , the 4315
conveyer belt." (Emphasis in the original) . Id. In reaching this conclusion,
he found that Inspector Deason had not discussed the problem of accumulations at
the belt lines prior to citation.
The judge also relied on Drummond's efforts to clean up the accumulations .
The judge credited testimony t h at a miner was s h oveling coal at a distance 200
to 250 feet inby the cited area and that shoveling had occurred at the header and
25 to 30 feet inby on the tight side of the belt. Id.
After reviewing the history of the accumulations, the length of time coal
had been allowed to accumulate and the visibility of the accumulations, the judge
focused on whether the operator actually knew of. the violations and the efforts
made by the operator to clean up the accumulations.
Based on those
considerations, he found the record insufficient to support a conclusion of
unwarrantable failure .

II.
Disposition of Issues
On review, the Secretary challenges the judge's finding that the violation
was not the result of Drummond's unwarrantable failure. She asserts that the
judge failed to apply correctly the EmeiY test of unwarrantability and erred by
expressly limiting the scope of aggravated conduct to actual knowledge of the
specific violative conditions. She asserts that proper application of Emery and
its progeny demands recognition that the required knowledge can also be
established by a showing that the operator should have known, or had reason to
know, of the violative conduct and that the evidence establishes that Drummond
had every reason to know of the conditions and chose to do nothing about them.
The Commission has held that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence by a mine operator in relation to a
violation of the Act. Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 987);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987).
This
determination was derived, in part, from the ordinary meaning of the term
"unwarrantable failure" ("not justifiable" or "inexcusable"), "failure" ("neglect
of an assigned, expected or appropriate action"), and "negligence" ("the failure
to use such care as a reasonably prudent and careful person would use,
characterized by "inadvertence," "thoughtlessness," and "inattention") . Emet:y,
supra. 9 FMSHRC at 2001. This determination was also based on the purpose of
4

In this case the judge found that Drummond's failure to conduct
adequate pre-shift examinations was unwarrantable with respect to
this very same belt line.

1366

unwarrantable failure sanctions in the Mine Act, the Act's legislative history,
and on judicial precedent. Id.
The judge, in rejecting the Secretary's assertion that Drummond knew of the
violation, found that Drummond did not know "of the specific accumulations at the
specific locations in issue, i.e., the 4315 section conveyor belt." 13 FMSHRC
at 75. The Secre.tary argues that the judge was incorrect in requiring advance
notice to Drummond of the accumulations before issuance of a citation. The
Secretary cites the following language from the decision as indication that the
judge imposed such a requirement:
There is insufficient evidence that Deason had any
discussion with any of Respondent's personnel prior to
the issuance of the Citation in issue, with regard to
problems with accumulations at the belt lines.... A
plain reading of this testimony reveals that it does not
establish that Deason informed Busby of the need either
to take care of accumulations in general on belt lines,
or to be aware of such problems in the area in question.

*

*

*

*

*

There is no evidence that respondent was informed by
Deason of the need to make a thorough inspection of the
area in question.
Thus, the fact that Deason found
accumulations after he spoke to Ware and Busby does not,
per se establish aggravated conduct.
13 FMSHRC at 75.
We agree that the Secretary is not required to give advance notice to
operators of violative conditions before issuance of a section 104(d) citation.
Such rationale would contravene fundamental notions of miner safety and operator
responsibility upon which the Mine Act rests,~ S. Rep. No. 181, 95th Cong.,
1st Sess. 17-18 (1977), reprinted for the Senate Subcommittee on Labor, Committee
on Human Resources, Legislative History of the Federal Mine Safety and Health Act
of 1977, 95th Cong. 2d Sess., 605-06 (1978) . It would also severely weaken the
unwarrantable failure provisions of section 104(d) by establishing a standard
that would allow an operator to avoid sanction by claiming that MSHA had not
provided advance notice that certain violative conduct would result in section
104(d) enforcement action.
It is well settled under Commission precedent that actual knowledge of a
violative condition is not a necessary element to establish aggravated conduct
for an unwarrantable failure finding. Eastern Associated Coal Corp., 13 FMSHRC
178, 187 (February 1991).
In Eastern, the Commission reviewed unwarrantable
behavior based on an operator's constructive knowledge of a continuing hydraulic
oil leak problem at a hoist tipple. The Commission rejected . the necessity of
actual knowledge on the part of the operator and the notion that nonfeasance on
the part of mine personnel might insulate the operator from imputed knowledge.
The Commission stated:

1367

A lack of actual knowledge by Eastern's management of
the apparently continuing leak does not necessarily bar
an unwarrantable failure finding.
In Pocahontas Fuel
Co., 8 IBMA 136, 148-49 (1977), aff'd sub nom.
Pocahontas Fuel Co. v. Andrus, 590 F . 2d 95 (4th Cir.
1979), failure of a rank-and-file preshift examiner to
detect a violation was found to be imputable to the
operator for unwarrantable failure purposes.
Even
assuming that Eastern ' s preshift and onshift examiners
did
not
record
any
continuing problem..
that
consideration does
not necessarily preclude an
unwarrantable failure finding. Emery makes clear that
unwarrantable failure may stem from what an operator
"had reason to know" or "should have known. " 9 FMSHRC at
2003. Eastern Associated Coal Corporation, 13 FMSHRC
at 187 .
The record indicates that Drummo~d had reason to know of the conditions at
the 4315 Belt Line.
The evidence is uncontested that during the period of
October 2-4, Inspector Deason conducted a systematic, step-by-step, inspection
of the conveyor belt system, proceeding toward the 4315 Belt Line.
Indeed,
findings of fact with regard to the extent and course of the inspections and the
accumulations found in those areas prior to the citation at issue here
demonstrate that Drummond was on notice that accumulations were, in fact, being
found at each step along the way toward the 4315 Belt Line. As a result Drummond
should have been on' heightened alert, see Youghiogheny & Ohio Coal Co., supra.
and Eastern Associated Coal Corporation, supra., for accumulations of combustible
materials, which the judge found had been there since at least the preshift
examination. 13 FMSHRC at 74.
Also Drummond's own safety inspector testified at trial, and the judge so
found, that the belts in the subject section required closer scrutiny. 13 FMSHRC
at 74. The evidence establishes that the accumulations in question would have
been noticed upon a careful inspection.
13 FMSHRC 74, 7 5 .
Drummond' s own
witness, John Busby, testified that the area in question under the take-up unit
at the 4315 Belt Line was not clean and that he would have seen the accumulations
if he had looked through the screens.
13 FMSH.RC at 74.
Inspector Deason
testified that the accumulations would have been visible to a person walking by
them. Id.
In addition, Drummond was warned on the first day of the inspections that
no initials or dates appeared at the Slope Belt, suggesting that no preshift
inspections had taken place. Inspector Deason reminded Carl Ware, mine foreman,
that inspections had to be made . Mor~over, the judge's recognition of the fact
that "some" cleanup effort had been made suggests that the judge believed that
Drummond knew of the accumulations. We conclude that Drummond knew or had reason
to know of the accumulations.
We next address whether Drummond's conduct was unwarrantable, i;e.
aggravated conduct, constituting more than ordinary negligence. The judge, in
finding that the operator's conduct was not unwarrantable, rejected the
Secretary's assertion that Drummond had made a conscious decision to delay

1368

cleanup until the owl shift. He relied on Drummond's mitigation efforts and
found that the operator had "made some efforts to clean up the accumulations."
13 FMSHRC at 74. The Secretary argues that Drummond's abatement efforts were not
sufficient to mitigate unwarrantability and furthermore that the judge's decision
is inconsistent in the following respects: first, the significant accumulations
problems together with the unwarrantable failure to conduct an adequate
inspection is inconsistent with g~od faith mitigation; second, vacation of the
unwarrantability finding with respect to this violation is inconsistent with the
finding of unwarrantability in the preshift examination violation; and, third,
the judge's conclusion that the operator unwarrantably failed to inspect is
inconsistent with his finding that the operator had no reason to know of the
accumulations. We agree that there are inconsistencies in the judge's opinion.
On remand, the judge, in determining whether the violation arose as a
result of Drummond's unwarrantable failure, should weigh the evidence in light
of Drummond ' s actions in the context that it had reason to know of the
accumulations, not in the context of actual knowledge.
On remand the judge should also · consider whether Drummond's mitigation
efforts were sufficient to deal effectively with the accumulation problems given
the undisputed evidence that th~ belt was actually running in contact with the
accumulations and over a portion of the metal frame where a roller was missing,
and whether the miner could have completed the necessary · abatement in an
expeditious manner. He should consider these efforts in light of his previous
findings that Drummond lacked due diligence in inspecting for accumulations and
that accumulations remained during preshift examinations.

III.
Accordingly, we vacate the judge's finding of no unwarrantable failure and
remand this matter to him for reconsideration of Drummond's actions in light of
the legal standards enunciated herein.

oyce K. Doyle, Commissio

r

~n.~

~~
~-

Clair Nelson, Commissioner

1369

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

September 25, 1991
GATLIFF COAL COMPANY, INC.

v.

Docket Nos. KENT 89 - 242 - R, etc.

SECRETARY -OF LABOR,
MI NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

BEFORE:

Backley , Doyle, Holen and Nelson, Commissioners
DECISION

BY THE COMMISSION :
In this consolidated contest and civil penalty proceeding arising under
the Federal Mine Safety and Health Act of 1977 , 30 U.S . C. § 801 et seq. (1988)
(the "Mine Act"), we are called upon to determine whether a means of emergency
communication that existed at the time of an accident constituted an
established and maintained emergency communication system under 30 C.F.R.
§ 77 . 1701. Commission Administrative Law Judge Gary Melick vacated the
section 104(d)(l) order issued in connection with the alleged violation.
13 FMSHRC 368 (March 199l)(ALJ). For the reasons set forth below, we reverse
the judge's conclusion that the standard was not violated and remand the case
to the judge for further proceedings.
I.

Factual and Procedural Background
The facts of this case are largely undisputed . Gatliff Coal Company,
Inc. ("Gatliff" ) owns and operates a surface strip coal mine l ocated in
Whitley County, Kentucky known as Gatliff No . 1, Job 75 . At about 3:20 a.m.
on August 1, 1989 a truck driven by Gatliff employee Boyd Fuson went off an
elevated roadway on the mine property and tumbled down a 120 foot embankment.
In response to the accident, two Gatliff employees, Donald Hopkins and Richard
Gibbs, drove from the mine property 'to the nearest telephone, which was about
two miles away, in order to summon help. There was no telephone at Job 75.
Fuson died as a consequence of the accident.
In the investigation that followed, MSHA inspector James Payne issued a
104{d){l) order charging a violation of 30 C.F.R. § 77 . 1701, because there was
no company radio at Job 75 at the time of the accident. 1 Tr. 49 . According
1

The standard provides :
§ 77 . 1701

Emergency communications; requirements.

13 7 0

to James Meadors, Gatliff's day shift foreman at the time of the accident,
each mine site typically has three company radios. The company radios are
two-way 40 watt radios with sufficient range to reach the Gatliff mine office
and are located in the foreman's truck, the mechanic's truck and the lube
truck. Tr. 151. On the night of the accident, however, there was no company
radio on site at Job 75. Tr. 156. Meadors testified that he had taken the
foreman's truck off the Job 75 site, that the lube truck was at another
Gatliff mine site "roughly three miles away, maybe a little more," and that
the mechanic's truck had been taken home. Tr. 150, 154, 156. At the time of
the accident, there was, however, a citizen band radio ("CB radio" or "CB")
belonging to the day shift operator of the bulldozer being operated by Mark
Hopkins.
John Blankenship, Gatliff's safety director, testified about the
operator's emergency notification procedures. He acknowledged that under
normal circumstances those procedures consisted of communication via one of
the two-way radios back to the mine office, where there was a telephone.
Tr. 216. Blankenship's signed statement of Gatliff's company policy regarding
emergency communications was read into the record:
Gatliff Coal Company, Inc. has a standard operating procedures
(sic) of the company's radio communication to be provided on the
job in case of emergency. This provides for the job to contact
base and base then calls for assistance, base being the guard
shack. And this has always been our standard operating
procedure. 2
Tr. 222.
(a) Each operator of a surface coal mine shall
establish and maintain a communication system from
the mine to the nearest point of medical assistance
for use in an emergency.
(b) The emergency communication system required to
be maintained under paragraph (a) of this section
may be established by telephone or radio
transmission or by any other means of prompt
communication to any facility (for example, the
local sheriff, the State highway patrol, or local
hospital) which has available the means of
communication with the person or persons providing
emergency medical assistanc~ or transportation in
accordance with the provisions of paragraph (a) of
this section.
2

.We note that, although Blankenship signed the statement under protest,
his protest was not because of any claim that the statement was inaccurate,
but because he felt that signing it was tantamount to stating that Gatliff did
not have the procedure in place. Tr. 221-223.

1371

Thus, Gatliff conceded that its standard emergency communication
procedure involved using 40 watt two-way radios and that there were no such
two-way radios at Job 75 on the night of the accident. However, before the
administrative law judge Gatliff took the position that, although no 40 watt
two-way radio was present at Job 75 at the time of the accident, CB radios
were present, which would have enabled the miners to link up with a different,
but nearby, Gatliff mine site (Job 74) that did have such a two-way radio on
the lube truck. Foreman Meadors testified that miners routinely communicated
by CB radios between the two -sites.
Tr. 150, 154.
Safety Director Blankenship stated that the miners at Job 75 could have
reached the lube truck at Job 74 by using the CB, but he acknowledged that the
miners were never told to use the CBs. Tr. 217 . In response to questions
from the court, Blankenship testified as follows:

Q.

Yell, how do you get in touch with the lube
truck if you're 3 miles away?

A.

With the CB.

Q.

Do you understand why these people did not use
it?

A.

No, I don't .

Q.

Were they told to use the CBs?

A.

They were never per se told to use the CBs
except, you know, they would have radio
communication there and someone would get on the
company radio and call. Now, how they got ahold
of one another to use the company radio to call
the guard that was pretty much left to their own
discretion .

Tr. 217.
Blankenship testified that, since the accident, miners have been told to
communicate for help the "fastest possible way" and that they have been told
to use CBs. Prior to the accident, however, the miners had not been
specifically told to use a CB radio or to walk to the mechanic's truck.
Blankenship assumed that i~ an emergency the miners would find the quickest
way to get help. Tr. 220.
Mark Hopkins testified that, although there was a CB radio on the
bulldozer he was operating the night of the accident, it .never entered his
mind to use it to summon help. Tr. 158, 162. ALJ decision at 13 FMSHRC 373.
The CBs were used by the miners to give directions, to keep each other
company, to communicate with other job sites, and to use if there was
something wrong. Tr. 163-165. Yhen asked why he did not use the CB to reach
another Gatliff job site the night of the accident, Hopkins stated he was

1372

"just scared." Tr. 165. He further stated that he was trained, in the event
of an emergency, to use either the foreman's truck or the lube truck to make a
call for help. Tr. 164.
Inspector Payne testified that a CB radio could be used for emergency
communication under the standard if there were someone monitoring it on the
other end. Tr. 53. He noted that the CBs were owned by the employees and
that during his investigation no one told him that there was an alternate
emergency communication system. Tr. 54, 55, 61.
In his decision the judge noted the undisputed testimony of Inspector
Payne that the only radio at Job 75 at the time of the accident was the CB in
Hopkins' bulldozer and that this radio had insufficient range to reach either
the mine office or medical or police assistance. 13 FMSHRC at 373. The judge
further found that the CB at Job 75 could have reached the lube truck at Job
74 and that the lube truck had a radio sufficiently powerful to reach the mine
office. On this basis, the judge concluded that the Secretary had failed to
prove a violation because the CB radio on the bulldozer at Job 75 was capable
of reaching the lube truck radio, which in turn could communicate with the
mine office, where a telephone was located. 13 FMSHRC at 374 .
The Secretary filed a petition for discretionary review challenging the
judge's determination that the emergency communication system existing at the
time of the accident satisfied the requirements of the standard.
II.

Disposition of Issues
The Secretary contends that 30 C.F.R. § 77.1701 is violated when a
mine's established means of emergency communication is removed from a mine
site. The Secretary argues that the established means of communication at Job
75 was the two-way radio in the foreman's truck and not the CB system. The
miners knew only of the two-way radio as the emergency communication system;
CB radios were personal, not company, equipment and were brought to work by
some miners so that they could talk with other equipment operators. To
underscore her contention that the CBs were not part of an "established"
system the Secretary observes that, when the emergency in this instance arose,
the miners did not use their CBs, but instead went in search of a telephone. 3
3

The Secretary asserts as a separate basis for error that a CB radio
could not be a substitute for the two-way radio system because it entailed
unnecessary multiple-step emergency communication procedures, which were
more time consuming and less reliable than the two-way radio. The Secretary
did not assert before the administrative law judge that unnecessary
multiple-step emergency communication systems were prohibited by the
standard. The issue first appears in the Secretary's Petition for
Discretionary Review and again, in amplified fashion, in her brief before
the Commission. Gatliff responded to the issue in opposing the Secretary's
Petition for Discretionary Review and noted that "[t]he judge made his
determination based on the regulations, not on some obscure implication now

1373

Gatliff argues that the communication system did not fail on the date of
the accident, it simply was not used . Gatliff contends that the CB system
constituted an established alternate method of emergency communication, which
it originally established and installed. At one time Gatliff supplied its
miners with CB radios at the site but discontinued the practice due to thefts.
It continued to provide cable and antennae to those miners who brought their
own CBs . The fact that the miners did nQt use the CB system in the emergency
should not be confused or equated with the separate concept of whether the
system was established and maintained. It notes that the miners knew that CBs
were available and that Gatliff knew they were being used. Gatliff argues
that the CBs constituted an alternate system satisfying§ 77.1701.
There is substantial evidence in the record to support the judge's
findings that CB communication from Job 75 to the lube truck at Job 74 was
technically possible on the date of the accident, and that the lube truck's
two-way radio could have reached the mine office, which was equipped with a
telephone. The issue in this case, however, is whether this alternate system
satisfies 30 C.F.R. § 77.1701. On its face the standard makes clear that the
onus is upon the operator, not its employees; to establish and maintain the
emergency communication system.
"Establish" means "to make secure or firm ... to cause
to be recognized or accepted . . . to introduce and
enforce .
"Maintain" means "to preserve or keep in a given
existing condition, as of efficiency or good repair."
Webster's II New Riverside University Dictionary (1984).
Gatliff has acknowledged that its standard procedure was to have a
company two-way radio on the job as its emergency communication system and
that this system worked by having the job site make contact with the base,
which in turn called for assistance. Tr . 216. Gatliff also acknowledges that
their standard (two-way radio) procedure was not in place at Job 75 on the
night of the accident. Tr. 156. Gatliff Br. at 8, 9. It agrees that its
standard operating procedure involved having at least one vehicle with such a
two-way radio at each mine site and admits that this procedure was not
followed when the foreman's truck left the Job 75 site at the start of the
suggested by the Secretary." Statement in Opposition to the Secretary's
Petition for Discretionary Review at 4.
Section 113(d)(2)(A)(iii) of the Mine Act provides: "Except for good
cause shown, no assignment of error by any party shall rely on any question
of fact or law upon which the administrative law judge had not been afforded
an opportunity to pass." Not having been presented before the judge, this
issue of law is not properly before the Commission and we decline to
entertain it. See Union Oil Company of California, 11 FMSHRC 289, 301
(March 1989), Climax Molybdenum Co., 1 FMSHRC 1499, 1500 (October 1979).

1374

shift on July 31. Id. at 8. Thus the two-way radio system was clearly not
maintained as required by section 77 . 1701. However, Gatliff asserts that the
alternate "CB system" was also its established and maintained system.
The CB system was undeniably a voluntary system adopted by the miners
utilizing their personal CB radios . Tr . 54 , 154, 162, 219. The operator
initially introduced CBs but effectively abandoned their use in favor of twoway radios. Tr. 219. The operator aid not enforce the use of CBs and there
is no evidence that the operator told employees that the CB system was an
alternate emergency system. During Inspector Payne's investigation no one
suggested that there was an alternate emergency communication system. Tr. 61 .
Blankenship admitted that the miners had never been told "per se" to use the
CBs, but after the accident they were instructed to use them . Tr. 217, 220 .
This failure to instruct miners in the use of the CB radios as an emergency
communication system weighs against a conclusion that the alternate system was
established and maintained .
The fact that the CBs were the miners' personally owned equipment, not
Gatliff's, and that miners were free to decide whether to bring CBs to work,
is also inconsistent with the standard's requirement that the emergency
communication system be operator established and maintained. That the
operator knew that its employees were routinely using CBs, did not disapprove
of their use, and aided this practice to the extent of providing cable and
antennae for them does not amount to sufficient involvement to constitute
operator establishment and maintenance of the system.
In conclusion, we hold that because the CB system was neither operator
established, nor operator maintained, it did not satisfy the requirements of
section 77.1701 . Accordingly, we reverse the administrative law judge's
determination that no violation occurred. We remand the case to him for
resolution of any remaining issues, including whether the violation

1375

resulted from the operator's unwarrantable failure, whether it was significant
and substantial, and for the assessment of an appropriate civil penalty. 5

~k~.~
foYceA:DO)Tie, Commissio"¥f

!lzLL~
~~~

Arlene Holen, Commissioner

L. Clair Nelson, Commissioner

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Robert I. Cusick, Esq.
David B. Wicker, Esq.
Wyatt, Tarrant & Combs
Citizens Plaza
Louisville, Kentucky 40202
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Two Skyline Center, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041

5

Chairman Ford did not participate in the consideration or disposition
of this matter.

1376

ADMINISTRATIVE LAW JUDGE DECISIONS

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

September 4, 1991
BRENT ROBERTS,

contestant

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

.•
•
.:••
..•
•
..••
.
•

CONTEST PROCEEDING
Docket No. KENT 91-896-R
Cassette Nos. 46295881, et al.
Peabody Coal company
Mine ID 15-02709
Mine

Camp No. 1

DECISION

Appearances:

Michael T. Heenan, Esq. , Lynn . M. Rausch, Esq. ,
Smith, Heenan and Althen, Washington, D. c. for
the Contestant ; James Crawford, Esq. , Robert c.
snashall, Jr., Esq., Office of the Solicitor,
u. s. Department of Labor, Arlington, Virginia,
for the Respondent.

Before a

Judge Merlin

This case is a notice of contest filed under section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 815(d), (hereafter referred to as the "Act" or "Mine Act")
seeking to challenge a proposed revocation of contestant's status
as a person certified by the Secretary of Labor to take respirable dust samples. The Secretary has filed a motion to dismiss
accompanied by a supporting brief and contestant has filed a
brief in opposition. Oral argument was heard on August 22, 1991.
The Act requires each mine operator to continuously
maintain an average concentration of respirable dust in the mines
at or below prescribed limits. 30 u.s . c. § 842(b), 30 C. F.R.
§ 70.100.
Operators must take accurate dust samples and submit
them to the Secretary for analysis. 30 u . s.c. § 842(a),
30 C.F . R. § 70.201-70.210. Respirable dust sampling can only be
done by a person who has passed a test on sampling given by the
Mine Safety and Health Administration (hereafter referred to as
"MSHA") and who has been certified by the Secretary to take the
required dust samples. 30 c.F.R. § 70.2(c) and 30 c.F.R.
§ 70.202(a) and (b); 30 C.F.R. § 71.2(c) and§ 71.202(a) and (b);
and 30 C.F . R. § 90.2 and§ 90.202(a) and (b).
Contestant in the present matter is a person certified by
the Secretary to take dust samples in accordance with the procedures outlined above. On April 18, 1991, MSHA wrote contestant
that information gathered during an investigation showed that he
1 377

failed to properly collect or ensure proper collection of respirable dust samples. Attached to the letter was a list of cassettes where samples allegedly were collected by contestant and
the weight of the dust sample allegedly had been altered as
indicated by abnormal white centers. The letter advised that
MSHA was proposing to revoke contestant's certification to
collect respirable dust samples and, if applicable, his certification to maintain and calibrate respirable dust sampling
devices. Contestant was given 30 days to provide any information
he believed might affect the proposed decision to revoke.
on May 15, 1991, the instant action was filed. But, on
May 20, 1991, MSHA again wrote contestant stating that MSHA only
needed to know if he intended to contest the revocation. · contestant was given 60 days to advise whether he intended to contest
the revocation and was told that in the meantime within 30 days
MSHA would send him information on procedures to be followed for
certification revocation.
At this point it must be noted that on April 4, 1991, the
Secretary issued 4,710 citations under section 104(a) of the Act,
30 u.s.c. § 814(a), to 508 mine operators involving 874 mines,
alleging violations of 30 C.F.R. § 70.209(b), 71 . 209(b) and
90.209(b), on the ground that the weight of respirable dust
cassettes submitted by operators to fulfill the sampling requirements had been altered and that a portion of the dust in the
filters had been removed. Operators have filed more than 3,000
notices of contest with the Commission under section 105(d)
challenging these citations. These cases, now pending before an
administrative law judge of this Commission, are in the early
stages of discovery. In re: contests ot Respirable pust Sample
Alteration citations, (Master Docket No. 91-1). However, apparently because of a plea bargain with the United States Attorney
in criminal proceedings no citations were issued to contestant's
operator regarding contestant's cassettes and therefore, there
are no operator notices ot contest with respect to them.
(Hearing Transcript, pp. 27-28).
Most recently, on June 27, 1991, MSHA wrote contestant's
counsel to advise that MSHA had determined to stay all pending
revocation proceedings. MSHA's letter referred to the notices of
contest filed by operators and further stated that there were
several active criminal investigations involving abnormal white
centers although no specific cases were identified. According to
the letter the stay would remain in effect until further notice,
but individual cases might be activated. Contestant was told
that if the stay was lifted in his case he would. be given 60 days
to respond and revocation procedures would be given to him at
that time.

1378

The sequence of MSHA's letters to contestant demonstrates a
retreat from the taking of immediate action against him. However, ·this in no way means that the Secretary has ceased activities
of potential harm to contestant. The reference in the June 27
letter to the ongoing notices of contest filed · by operators
(Master Docket No. 91-1) is an acknowledgment that at the very
least, issues and matters of general application arising in those
contests may well be relevant to the continued status of contestant as a certified person. 1 As already noted, no citations
were issued to contestant's operator, and no operator initiated
contests exist with respect to his cassettes. Therefore, contestant would appear to be a stranger to the 3,000 operator suits.
If contestant cannot take part in those contests, at some point
the question will arise how he can be bound by any of the findings and conclusions reached therein . Also, of concern is how
contestant could be affected by the plea bargain between his
operator and the Government regarding his cassettes. Martin v .
Wilks, 490 U.S. 755, 761-762 (1989); Gilbert v. Ben-Asher, 900
F.2d 1407, 1410 (9th Cir. 1990). In general, one would expect
every effort would be made to avoid duplicative litigation,
particularly in these dust cassette cases where so many persons
and suits are involved.
In determining what other recourse, if any, is available to
contestant, the nature of the rights arising from his certification must be ascertained. Contestant's certification may be
likened to a form of license from the Secretary to perform his
tasks and is therefore, akin to many other situations where
individuals have been afforded safeguards against arbitrary
deprivation. See e.g., driver's licenses: Mackey v. Montrym,
443 u.s. 1, 10 (1979); Dixon v. Love, 431 U.S. 105, 112 (1977);
Bell v. Burson, 402 u.s. 535, 539 (1971); Scott v. Williams, 924
F.2d 56, 58 (4th Cir. 1991); horse trainer license: Barry v.
Barchi, 443 u.s. 55, 64 (1979); day care center license: Chalkboard v. Brandt, 879 F.2d 668, 672 (9th Cir. 1989); horse owner
license: Gamble v . Webb, 806 F.2d 1258, 1261 (5th Cir. 1986);
warehouse license : Delahoussaye v. Seale, 788 F.2d 1091, 1094
(5th Cir . 1986); pilot license: Pastrana v. United States, 746
F.2d 1447, 1450 (11th Cir. 1984). Contestant's certification
also is analogous to a form of public employment where due
process must be accorded before adverse action is taken.
Federal
Deposit Insurance Corporation v. Mallen, 486 u.s. 230, 240
(1988); Cleveland Board of Education v. Loudermill, 470 u.s . 532,
541 {1985); Logan v. Zimmerman Brush Co . , 455 u.s. 422, 433
{1982); Crain v. Board of Police Commissioners, 920 F.2d 1402
1

Even where a contestant's operator has filed a notice of
contest, MSHA's letter apparently contemplates a two-track approach
whereby the individual would do nothing until his operator's case
is decided. However, such an individual could seek to intervene in
the operator's suit. 29 C.F.R. § 2700.4.

13 79

(8th Cir. 1990); Derstein v. State of Kansas, 915 F .2d 1410 (lOth
Cir. 1990). The foregoing decisions set forth what process is
"due" in various situations in accordance with a balancing test
which weighs private interests, risk of erroneous deprivation and
the Government's interest. Mathews v. Eldridge, 424 u.s. 319,
335 (1976). In some instances a pre-termination hearing is
constitutionally required. Logan v. Zimmerman Brush Co., supra,
at 433-434, 436; Bell v. Burson, supra, at 541-542. In others it
is not. Mackey v. Montrym, supra, at 19; Dixon v. Love, supra,
at 115. But there must be some form of opportunity to respond
before the property right is either infringed upon or taken away.
Mathews v. Eldridge, supra, at 333. Accordingly, the Secretary's
certification of contestant undoubtedly constitutes a property
right entitled to appropriate constitutional protections.
Insofar as the pleadings and briefs filed by the parties in
this case are concerned, it appears that the Secretary has not
adopted any procedures regarding decertification. It should be
noted that the regulations do not expressly give her that authority. The proposed final rule contained such ·a provision, 42 Fed.
Reg. 59294, 59296 (November 16, 1977), but the final rule did
not, although the comments asserted the Secretary's right to
decertify. 42 Fed. Reg . 23990, 23996 (April a, 1980). However,
certification of qualified individuals has been recognized as
essential to the integrity of the dust sampling program. Consolidation Coal Company v. Federal Mine Safety and Health Review
Commission, 824 F.2d 1071, 1087 (D.C. Cir. 1987); American Mining
Congress v. Marshall, 671 F.2d 1251, 1259 (lOth Cir. 1982);
Consolidation Coal Company, 8 FMSHRC 890, 901 (June 19S6). If
the sampling program is to work, the secretary must have the
power to decertify. I believe she has that authority. Janik
Paving and Construction v. Brock, 828 F.2d 84, 91 (2d Cir. 1987);
West v. Bergland, 611 F.2d 710, 720-723 (8th Cir . 1979); Touche
Ross Securities and Exchange Commission, 609 F.2d 570, 579-580
(2d Cir. 1979).
Contestant's present position is, however, untenable because
the Secretary has not come forward with any procedures whereby he
can protest the proposed decertification. In his brief and at
the hearing the Solicitor offered the assurance that once revocation proceeds, contestant will be given an opportunity for a prerevocation hearing and for a full post-revocation hearing.
(Solicitor's brief p. 19) (Hearing Transcript pp. 24-25, 29-30).
In light of the foregoing, the Mine Act must be examined to
see if it can be found to afford contestant any relief with
respect to his constitutionally protected rights. In their
briefs the parties make extensive reference to the penalty
provisions of the Act. After first contending that the Secretary
has no authority to decertify, a position which as set forth
above I reject, contestant asserts in the alternative that
certain enforcement actions such as withdrawal orders may be

1380

considered a form of civil penalty which can be contested pursuant to the Act. Under this theory contestant suggests that a
proposed decertification is a proposed penalty which he is
entitled to challenge before the Commission. (Contestant's brief
pp. 6-8, 11-13). The Secretary's po~ition is that the proposed
revocation letter is not a civil penalty under the Act.
(Solicitor's brief pp. 11-13).
It is clear that generically the term "penalty" includes
punishments and sanctions which are non-monetary as well as
monetary. Webster's Third New International Dictionary (1988),
p. 1688. However, the pertinent inquiry here is not the various
meanings of "penalty" permissible under general usage but how
that term is used in the Mine Act. The antecedent of the present
penalty provisions in sections lOS and 110 of the Mine Act is to
be found in section 109 of the 1969 Coal Act. Both Senate and
House Reports for the coal Act explained the civil penalties,
then being introduced into the law, solely in monetary terms.
Every reference to civil penalties in the reports described them
as fines of specified dollar amounts. s. Rep·. No. 411 and H.R.
Rep. No. 563, 91st Cong., 2d Sess., reprinted in Legislative
History. Federal Coal Mine Health and Safety Act, (hereafter
referred to as "Legislative History") at 39, 92-93, 568-569, 594
(1970). Similarly, floor debate in both houses, regardless of
the precise issue being discussed, e.g., mandatory nature of
civil penalties or criteria to be used in fixing amounts, was
always in terms of dollars. Legislative History, supra, at 463464, 509-510, 659, 717. After conference between the ~ouse and
Senate, the Statement of the Managers on the Part of the House,
delineated civil penalties in the same manner. Legislative
History, supra, at 1033. Nowhere in the legislative history of
the Coal Act is there any indication that anything other than
monetary fines were being adopted.
In 1977, the original Senate and House Bills, amending the
1969 Coal Act, contained a provision entitled a "civil penalty
closure order." s. 717 and H.R. 4287 95th Cong., 2d Sess., reprinted in Legislative History of the Federal Mine Safety Act of
1977 {hereafter referred to as "1977 Legislative History") at
136, 141, 159, 214, 219 and 237 (July 1978). This additional
closure authority which was to be reserved for the most serious
cases would have been proposed by the Secretary and assessed by
the Commission after an opportunity for hearing in the same
manner as monetary civil penalties. 1977 Legislative History,
supra, at 85-86. However, after Committee hearings, both House
and Senate bills omitted this provision and the Committee reports
do not refer to it. In floor debate, senator Schweiker explained
that the civil penalty closure order had been deleted as too
heavy handed and had been replaced with a provision for a notice
followed by closure orders where an operator has a pattern of
significant and substantial violations, 1977 Legislative History,
supra, at 1071-1074. Both House and Senate Committee reports

1381

describe civil penalties under the 1977 Amendments as adopting
the same monetary penalties that had been in effect under the
Coal Act. H.R. 312 and s. 181, 95th Cong., 2d Sess., 1977 Legislative History, sUpra, at 365, 629. Civil penalty provisions
were extended to non-coal mines and administrative procedures
including the creation of this independent Commission were
improved, but the reports make clear that only monetary fines are
involved.
1977 Legislative History, supra, at 375-376, 628-634.
As in 1969, floor debate in 1977 demonstrated that civil penalties meant only monetary fines. 1977 Leoislative History, at
906-907, 921-922, 1014, 1211-1212. The Joint Explanatory Statement of the Committee of the Conference similarly explained that
only monetary fines are involved. 1977 Legislative History,
supra, at 1335-1336.
In light of the foregoing, it is clear that the proposed
decertification of contestant cannot be interpreted as a punishment falling within the civil penalty provisions of the Act. As
set forth above, in 1977 Congress considered and rejected a civil
penalty closure order. Instead, it left in place and reaffirmed
the statutory distinction between civil penalties which are only
monetary in nature and other sanctions such as withdrawal orders.
consequently, the penalty provisions of the Act afford no relief
to contestant.
There remains for consideration whether contestant can
challenge the proposed decertification under the general review
provisions of the Act. Section 105(d) of the Act, 30 u.s.c.
§ 815(d), sets forth the parameters of Commission review of
Secretarial actions as follows:
If, within 30 days of receipt thereof, an operator
of a coal or other mine notifies the Secretary that he
intends to contest the issuance or modification of an
order issued under section 104, or citation or a notification of proposed assessment of a penalty issued
under subsection (a) or (b) of this section, or the
reasonableness of the length of abatement time fixed in
a citation or modification thereof issued under section
104, or any miner or representative of miners notifies
the Secretary of an intention to contest the issuance,
modification, or termination of any order issued under
section 104, or the reasonableness of the length of
time set for abatement by a citation or modification
thereof issued under section 104, the Secretary shall
immediately advise the Commission of such notification,
and the Commission shall afford an opportunity for a
hearing ... and thereafter shall issue an order, based
on findings of fact, affirming, modifying, or vacating
the Secretary's citation, order, or proposed penalty,
or directing other appropriate relief .... The rules of
procedure prescribed by the Commission shall provide

1382

affected miners or representatives of affected miners
an opportunity to participate as parties to hearings
under this section.
The Commission has adhered strictly to the terms of the
statute in determining its jurisdiction. It has held that a
representative of miners cannot contest a citation because the
Act gives that right only to mine operators. U.M.W.A. v. Secretary of Labor, 5 FMSHRC 807 (May 1983). In the same vein the
Commission also held that miners and their representatives do not
have the statutory right to contest the vacation of orders
because section 105(d) does not confer that right upon them and
Congress demonstrated in other provisions of the Act that it was
fully aware of the discrete meaning of vacating an order.
U.M.W.A. v. Secretary of Labor, 5 FMSHRC 1519 (September 1983).
As the Commission stated, section 105(d) is clear and unambiguous
in setting forth the extent to which miners and their representatives can institute challenges to the Secretary's enforcement
of the Act. 5 FMSHRC at 1520 •·
Contestant recognizes the limited scope of review under
section 105(.d) as interpreted by the foregoing Commission decisions. However, he argues that those decisions are distinguishable from this case because they involved actions against operators, whereas here contestant himself may be the subject of
enforcement action in the form of decertification. (Contestant's
brief p.18). These contentions notwithstanding, I am bound by
the Commission's consistent fidelity to the precise terms of the
statute. Kaiser coal company, 10 FMSHRC 1165 (September 1988),
The Mine Act, following the scheme first presented in the Coal
Act, establishes a system whereby orders, citations and penalty
assessments are issued to operators and pursuant to which operators may obtain administrative review of them. 30 u.s.c. § 814
and 820. Legislative History, supra, at 36-38, 565-566, 588-590,
713-714, 1029-1032; 1977 Legislative History, supra, at 635-637.
Whenever administrative review is available to someone other than
an operator, the law carefully delineates to whom and under what
circumstances such relief is available. The term "operator" is
explicitly defined in the Act, 30 u.s.c. § 802(d), and contestant
recognizes he does not fall within that definition. (Contestant's brief pp. 7-8). In addition, there is no basis to hold
that any of MSHA's letters to contestant regarding decertification can be construed as a citation under the Act. The terms and
conditions under which citations are issued are plainly spelled
out in the Act and none of them exist here. 30 u.s.c.
§ 814.
It is not for the Commission or one of its judges to legislate a system of administrative review under the Mine Act which
has no foundation in the law or legislative history. As explained above, contestant has significant rights which are
entitled to due process protections, but implementation of those

1383

protections must be found elsewhere. The review provisions of
the Mine Act do not represent the only possible avenue of relief
against every action the Secretary may take in the field of mine
health and safety~ And the secretary's failure to provide
appropriate remedies at this time does not endow the Commission
with powers it does not otherwise possess. An administrative
agency may not exceed the bounds legislated by Congress. As the
Supreme court has stated:
However, the fact is that the Board is entirely a
creature of Congress and the determinative question
is not what the Board thinks it should do but what
Congress has said it can do.
Civil Aeronautics Bd. v. pelta Air Lines. Inc., 367 u.s.
316, 322, (1961).
In light of the foregoing, this case must be and is hereby
DISMISSED.

Paul Merlin
Chief Administrative Law ,Judge
Distribution:
Michael T. Heenan, Esq., Lynn M. Rausch, Esq., Smith, Heenan and
Althen, 1110 Vermont Avenue, NW., Suite 400, Washington, DC
20005 (Certified Mail)
Robert c. Snashall, Jr., Esq., James B. Crawford, Esq., Office of
the Solicitor, U. s, Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)
Robert B. King, Esq., Robert B. Allen, Esq., King, Betts & Allen,
P. o. Box 3394, Charleston, WV 25333 (Certified Mail)
John B. Carrico, Esq., 801 Charleston National Plaza, Charleston,
WV 25301 (Certified Mail)
J. Timothy DiPiero, Esq., DiTrapano & Jackson, 604 Virginia
Street, East, Charleston, WV 25301 (Certified · Mail)
jgl

1384

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

September 4, 1991
PAUL COTTON,

CONTEST PROCEEDING
Contestant

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

..••
..••

Docket No. KENT 91-897-R
Cassette Nos. 46268665, et al •
Peabody coal Company
Mine ID

15-14074

Martwick UG

AND
STEVE LITTLE,

Contestant

.•

v.

CONTEST PR9CEEDING
Docket No. KENT 91-898-R
cassette Nos. 46268661, et al.
Peabody Coal Company

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

Mine ID

.

contestant

15-14074

Martwick UG

CONTEST PROCEEDING
Docket No. KENT 91-992-R
Decertification Letter

v.
:

Peabody Coal Company
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
AND
ROBERT BENNETT,
Contestant

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

.
:

Mine ID . 15-07166 Sinclair
UG #2

..••
.•

,CONTEST PROCEEDING
Docket ·No. LAKE 91-478-R
Cassette Nos. 46267776, et al.
Peabody Coal Company

.•
1 385

Mine ID 11-02440

Marissa Mine

AND
SHARELL CLARK,

CONTEST PROCEEDING

•

"'

:·

.

0

Contestant
Docket No. WEVA 91-1331-R
Cassette Nos. 46216752, et al.

v.
SECRETARY OF LABOR 1
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Respondent

..
.
.

Eastern Associated Coal Corp.
Mine ID

46-04332

Light Foot No. 1 Mine

AND
JAMES F. MATICS,
Contestant

CONTEST PROCEEDING
Docket No. ·WEVA 91-1332-R
Cassette Nos. 46277778, et al.

v.

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

.

Harris No. 2
Harris No. 1

Mine ID 46-01270
Mine ID 46-01271

. •

AND
ROBERT E. PERSINGER,
Contestant

CONTEST PROCEEDING
·Docket No. WEVA 91-1333-R
Cassette Nos. 46138254 et al.

v.

Peabody Coal company

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

Montcoal No. 7
Mine ID

46-01495

AND
JIMMY HAYWORTH,

CONTEST PROCEEDING
contestant
Docket No. WEVA 91-1525-R
Decertification Letter 4/30/91

v.

Eastern Associated Coal Corp.

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

Harris No. 1
Mine ID

13 86

46-01271

AND
REGGIE PHILYAW,

Contestant

v.

.

.

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

CONTEST PROCEEDING
Docket No. WEVA 91-1926-R
Cassette Nos. 46239627 , et al.
Peabody Coal Company
Kopperston No. 1
Mine ID

46-01537

DECISION
Appearances:

Michael T. Heenan, Esq., Lynn M. Rausch, Esq.,
Smith, Heenan and Althen, Washington, D. c. for
the Contestant; James Crawford, Esq . , Robert c.
Snashall, Jr., Es q., Office of· the Solicitor,
U. s. Department of Labor, Arlington, Virginia,
for the Respondent.

Before:

Judge Merlin

The parties have agreed that the decision in Brent
Roberts v. Secretary of Labor, Docket No. KENT 91-896-R i s
controlling in the above-captioned cases.
A decision has been entered this day dismissing the
complaint in Roberts.
Accordingly, it is ORDERED that these cases must be and
are hereby DISMISSED.

-

•
Paul Merlin
Chief Administrative Law Judge

Distribution:
Michael T. Heenan, Esq., Lynn M. Rausch, Esq., Smith, Heenan and
Althen, 1110 Vermont Avenue, N.W., Suite 400, Washington, DC
20005 (Certified Mail)
John B. Carrico, Esq., 801 Charleston National Plaza, Charleston,
wv 25301 (Certified Mail)

138 7

Robert B. Allen, Esq., King, Betts & Allen, P. 0. Box 3394,
Charleston , WV 25333 {Certified Mail}
J. Timothy Dipiero, Esq., DiTrapano & Jackson, 604 Virginia
Street East, Charleston, WV 25301 (Certified Mail)
James B. crawford, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail}
jgl

1388

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

September 5, 1991

BENNY JOHNSON I
Contestant

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

...

.
.

CONTEST PROCEEDINGS
Docket No. KENT 91-934-R
through
KENT 91-936-R
Citation No. 9858643; 4/4/91
through
9858645; 4/4/91
Island creek Coal-W Kentucky

.

Hamilton No. 2 Mine
Mine ID

15-02706

DECISION

Before:

Judge Merlin

These cases are notices of contest filed under section
105(d)of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 815(d), seeking to challenge the Secretary's proposed
revocation of contestant's status as a person certified by the
Secretary of Labor to take respirable dust samples. Each notice
of contest relates to a citation issued by the Secretary to contestant's operator, Island Creek Coal Company, for allegedly
tampering with a dust cassette. The Secretary has filed a motion
to dismiss which contestant has opposed, stating he relies upon
the brief submitted on his behalf in Docket Nos. KENT 91-937-R
through KENT 91-955-R.
On September 4, 1991, I held in Roberts v. Secretary, Docket
No. KENT 91-896-R, that an individual such as contestant has
rights arising from his certification which are entitled to due
process protections. However, I further held that I had no
jurisdiction to entertain an independent suit by such a miner or
to grant him relief. The issues in Roberts are the same as those
presented here and therefore, that decision is dispositive of
this matter.
As contestant's brief in KENT 91-937-R etc., points out,
the operator here, unlike the operator in Roberts, has filed
notices of contest challenging the citations issued to it.
Contestant may wish to consider the possibility of becoming a
party to the operator's suits.
(See Footnote 1, page 3 of the
Roberts decision.)

1 389

In light of the foregoing, it is ORDERED that these cases be
and are hereby DISMISSED.

Paul Merlin
Chief Ad~inistrative Law Judge
Enclosure
Distribution:
Marcus P. McGraw, Esq., ·Greenebaum, Doll & McDonald, 1400 Vine
Center Tower, P. 0. Box 1808, Lexington, KY 40593-1637 (Certified Mail)
James B. crawford, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
jgl

1390

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

September 5, 1991
BENNY JOHNSON I

CONTEST PROCEEDINGS
Contestant

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

...
..
.•

Docket No. KENT 91-937-R
through
KENT 91-955-R
Citation No. 9858650; 4/4/91
through
9858668; 4/4/91
Island Creek Coal-W Kentucky
Ohio No . 11

:

Mine IO 15-03178

DECISION
Before:

Judge Merlin

These cases are notices of contest filed under section
l05(d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 815(d), seeking to challenge the Secretary's proposed
revocation of contestant's status as a person certified by the
Secretary of Labor to take respirable dust samples. Each notice
of contest relates to a citation issued by the Secretary to contestant's operator, Island Creek Coal Company, for allegedly
tampering with a dust cassette. The Secretary has filed a
motion to dismiss and contestant has submitted a memorandum in
opposition.
On September 4, 1991, I held in Roberts v. Secretary, Docket
No. KENT 91-896-R, that an individual such as contestant has
rights arising from his certification which are entitled to due
process protections. However, I further held that I had no
jurisdiction to entertain an independent suit by such a miner or
to grant him relief. The issues in Roberts are the same as those
presented here and therefore, that decision is dispositive of
this matter.
As contestant's memorandum points out, the operator here,
unlike the operator in Roberts, has filed notices of contest
challenging the citations issued to it. Contestant may wish to
consider the possibility of becoming a party to the operator's
suits. (See Footnote 1, page 3 of the Roberts decision.)

1 39 1

In light of the foregoing, it is ORDERED that these cases be
and are hereby DISMISSED.

Paul. Merlin
Chief Administrative Law Judge
Distribution:
Marcus P. McGraw, Esq., Greenebaum, Doll & McDonald, 1400 Vine
Center Tower, Post Office Box 1808, Lexington, KY 40593 (Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, u. s. Department ot Labor, Room 414, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)
Jgl

' 1392

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

September 5, 1991

JAMES JACK,

Contestant

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

....

CONTEST PROCEEDINGS

..

Citation No~ 9859697: 4/4/91
through
9859723: 4/4/91

..
.

.

Docket No. LAKE 91-503-R
through
LAKE 91-529-R

:

Consolidation Coal Company
Powhatan No . 4 Mine
Mine ID

33-01157

DECISION
Before:

Judge Merlin

These cases are notices of contest filed under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 815(d), seeking to challenge the Secretary's proposed
revocation of contestant's status as a person certified by the
Secretary of Labor to take respirable dust samples. Each notice
of contest relates to a citation issued by the Secretary to
contestant's operator, Consolidation Coal Company, for allegedly
tampering with a dust cassette. The Secretary has filed a
motion to dismiss and contestant has submitted a memorandum in
opposition.
On September 4, 1991, I held in Roberts v. Secretary, Docket
No. KENT 91-896-R, that an individual such as contestant has
rights arising from his certification which are entitled to due
process protections. However, I further held that I had no
jurisdiction to entertain an independent suit by such a miner or
to grant him relief. The issues in Roberts are the same as those
presented here and therefore, that decision is dispositive of
this matter.
As contestant's memorandum points out, the operator here,
unlike the operator in Roberts, has filed notices of contest
challenging the citations issued to it. Contestant may wish to
consider the possibility of becoming a party in the operator's
suits. (See Footnote 1, page 3 of the Roberts decision.)

1393

In light of the foregoing, it is ORDERED that these cases be
and are hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Robert B. Allen, Esq., King, Betts & Allen, 1300 Charleston
National Plaza, P. o. Box 3394, Charleston, WV 25333-3394
(Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard,. A.r lington, VA 22203
(Certified Mail)
jgl

1 394

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

September 5, 1991

JOHN S. BIBY,
Contestant

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

.
.
..

CONTEST PROCEEDINGS
Docket No. LAKE 91-530-R
through
LAKE 91-605-R
Citation No. 9858333; 4/4/91
through
9858408; 4/4/91

.

Zeigler Coal Company
Spartan Mine
Mine ID

11-00612

DECISION
Before:

Judge Merlin

These cases are notices of contest filed under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 815(d), seeking to challenge a proposed revocation of
contestant's status as a person certified by the Secretary of
Labor to take respirable dust samples. Each notice of ·contest
relates to a citation issu ed to contestant's operator, Zeigler
Coal Company, for allegedly tampering with a dust cassette. The
Secretary has filed a motion to dismiss and contestant has
submitted a memorandum in opposition .
On September 4, 1991, I held in Roberts v . Secretary, Docket
No. KENT 91-896-R, that an individual such as contestant has
rights arising from his certification which are entitled to due
process protections. However, I further held that I had no
jurisdiction to entertain an independent suit by such a miner or
to grant him relief. The issues in Roberts are the same as those
presented here and therefore, that decision is dispositive of
this matter.
As contestant's memorandum points out, the operator here,
unlike the operator in Roberts, has filed notices of contest
challenging each of the citations issued to it. Contestant may
wish to consider the possibility of becoming a party to the
operator's suits.
(See Footnote 1, page 3 of the Roberts
decision.)

1395

In light of the foregoing, it is ORDERED that these cases be
and are hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Robert B. Allen, Esq., King, Betts & Allen, 1300 Charleston
National Plaza, P. 0. Box 3394, Charleston, WV 25333-3394
(Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, u.
ment of Labor, 4015 Wilson Boulevard, Arlington, VA
t.fciil)

jgl

1396

s. Depart2·2203 (Certified

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

September 5, 1991
LARRY FLYNN,
Contestant

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

.
.
..
.
.
.

CONTEST PROCEEDING
Docket No. SE 91-538-R
Decertification Notice
Lad Mining, Inc •
No. 35 Mine
Mine ID

40-02839

DECISION
Before:

Judge Merlin

This case is a notice of contest filed under section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 815(d), seeking to challenge the Secretary's proposed revocation of contestant's status as a person certified by the Secretary of Labor to take respirable dust samples. The instant
notice relates to citations which the Secr~tary issued to contestant's operator, Lad Mining, Inc., for allegedly tampering
with dust cassettes. The Secretary has filed a motion to
dismiss.
In opposing the motion to dismiss, contestant first raises
the Secretary's failure to answer within 30 days. The Secretary's
answer was only three days late and the delay was non-prejudicial. Equally without merit is contestant's assertion regarding
the Secretary's failure to plead jurisdiction. · This omission
could be easily corrected by an amended answer, but I deem it
unnecessary to do so because there is no prejudice and based upon
the submissions of the parties the matter is ripe for disposition
at this time.
Contestant relies upon and incorporates by reference the
arguments contained in the brief filed by the contestant in
Little v. Secretary, Docket No. KENT 91-898-R. The parties in
Little have agreed that the decision in Roberts v. Secretary,
Docket No. KENT 91-896-R, is controlling in that matter.
on September 4, 1991, I held in Roberts that an individual
such as contestant has rights arising from his certification
which are entitled to due process protections. However, I
further held that I had no jurisdiction to entertain an independent suit by such a miner or to grant him relief. The issues in
Roberts are the same as those presented here and therefore, that
decision which is determinative of Little is dispositive of this
matter.
1397

It is noted that contestant's notice of contest represents
that the operator here, unlike the operator in Roberts, has filed
notices of contest challenging each of the citations issued to it
and that contestant has filed a notice of intervention in those
cases.
In light of the foregoing, it is ORDERED that this case be
and is hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Enclosure
Distribution:
Michael w. Boehm, Esq., Spears, Moore, Rebman & Williams, 801
Pine Street, 8th Floor Blue Cross Building, Chattanooga, TN
37401
(Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA (Certified
Mail)

jgl

1398

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

September 5, 1991

CONTEST PROCEEDINGS

KIMMIE NOAH,
Contestant

Docket No. SE 91-544-R
through
SE 91-655-R

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

.

Citation No. 9860517; 4/4/91
through
9860628; 4/4/91
Consolidation Coal Company
Matthews Mine
Mine ID

40-00520

DECISION
Before:

Judqe Merlin

These cases are notices of contest filed under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 815(d), seeking to challenge the Secretary's proposed
revocation of contestant's status as a person certified by the
Secretary of Labor to take respirable dust samples. Each notice
of contest relates to a citation issued by the Secretary to
contestant's operator, Consolidation Coal Company, for allegedly
tampering with a dust cassette. The Secretary has filed a
motion to dismiss and contestant has submitted a memorandum in
opposition.
On September 4, 1991, I held in Roberts v. Secretary, Docket
No. KENT 91-896-R, that an individual such as contestant has
rights arising from his certification which are entitled to due
process protection. However, I further held that I had no
jurisdiction to entertain an independent suit by such a miner or
to grant him relief. The issues in Roberts are the same as those
presented here and therefore, that decision is dispositive of
this matter.
As contestant's memorandum points out, the operator here,
unlike the operator in Roberts, has filed notices of contest
challenging the citations issued to it. Contestant may wish to
consider the possibility of becoming a party to the operator's
suits.
(See Footnote 1, page 3 of the Roberts decision.)

1 399

In light of the foregoing, it is ORDERED that these cases be
and are hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Robert B. Allen, Esq., King, Betts & Allen, 1300 Charleston
National Plaza, P. o. Box 3394, Charleston, WV 25333 (Certified
Mail)
James B. crawford, Esq., Office of the Solicitor, u.
ment of Labor, 4015 Wilson Boulevard, Arlington, VA
Mail)
jgl

1400

s. Depart22203

(Certified

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

September 5, 1991

PATRICK HENRY FLUTY,
contestant

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

.:
...
..

.

· CONTEST PROCEEDINGS
Docket No. WEVA 91-1193-R
through
WEVA 91-1218-R
Citation No. 9862149; 4/4/91
through
9862174; 4/4/91
Mine No. 1
Mine ID No. 46-05978

DECISION
Before:

Judge Merlin

These cases are notices of contest filed under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 815(d), seeking to challenge a proposed revocation of
contestant's status as a person certified by the Secretary of
Labor to take respirable dust samples. Each notice of contest
relates to a citation issued to contestant's operator, Eastern
Mingo Coal Company, for a llegedly tampering with a dust cassette.
The notices of contest set forth that contestant is the
operator's safety supervisor. The Secretary's motion to dismiss
advises that the operator has contested these citations.
By letter received August 23, 1991, contestant's counsel
advises that contestant has no objection to the decision in
Roberts v. Secretary, Docket No. KENT 91-896-R, where oral argument was heard on August 22, 1991, being dispositive of this
matter. By letter dated August 23, 1991, the Secretary similarly
states that the decision in Roberts is controlling.
On September 4, 1991, I held in Roberts that an individual
such as contestant has rights arising from his certification
which are entitled to due process protection. However, I further
held that I had no jurisdiction to entertain the suit or grant
relief. Those conclusions obtain here as well.
As noted above, the operator here, unlike the operator in
Roberts, has filed notices of contest. Contestant here may wish
to consider the possibility of seeking to become a party in the
operator's suit.
(See Footnote 1, page 3 of the Roberts
decision.)

1401

In light of the foregoing, it is ORDERED that these cases be
and are he reby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Enclosure
Distribution:
Gregory J. Campbell, Esq., Suite 200, Morrison Building, 815
Quarrier Street, Charleston, WV 25301 (Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
/ gl

1402

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

September 5, 1991
EVERETTE E. BALLARD,
Contestant

.

CONTEST PROCEEDING
Docket No. WEVA 91-1385-R
Decertification letter
dated 4/18/91

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

Birchfield Mining Company

..

·M ine No. 1
Mine ID

46-07273

DECISION

Before:

Judge Merlin

This case is a notice of contest filed under section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 815(d), seeking to challenge a proposed revocatiqn of contestant's status as a person certified by the Secretary of
Labor to take respirable dust samples. The Secretary has filed
a motion to dismiss and contestant has submitted a brief in
opposition.
Contestant's brief is virtually identical to the one filed
in Roberts v. Secretary, Docket No . KENT 91-896-R. The Solicitor
has submitted a letter dated August 23, 1991, stating that a
determination in Roberts would be controlling. Upon review of
the instant file I find that the issues presented here are the
same as those in Roberts and that therefore, the decision in that
case governs .
On September 4, 1991, I held in Roberts that an individual
such as contestant has rights arising from his certification
which are entitled to due process protection. However, I further
held that I had no jurisdiction to entertain the suit or to grant
him relief. Those conclusions obtain here as well.
It should be noted, however, that by letter dated August 27,
1991, the Solicitor advised that a penalty petition has been
filed against ~he operator with respec t to the matters involved
herein and that the operator has answered. (Docket No. WEVA 911719). Contestant may wish to consider the possibility of
becoming a party in the penalty suit. (See Footnote 1, page 3 of
the Roberts decision) .

1403

In light of the foregoing, it is ORDERED that this case be
and is hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Enclosure
Distribution:
Martin J. Glasser, Esq., Webster J. Arceneaux, III, Esq., Lewis,
Ciccarello & Friedberg, Suite 700, One Valley Square, Charleston,
WV 25301
(Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA (Certified
Mail)
jgl

1404

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

September 5 , 1991
DANIEL SERGE,
Contestant

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

.
.
..

.
.

CONTEST PROCEEDING
Docket No. WEVA 91-1386-R
·cassette No. 46347258
Consolidation Coal Company
Osage No. 3
Mine ID

46-01455

DECISION
Before:

Judge Merlin

This case is a notice of contest filed under section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 u. s.c.
§ 815(d), seeking to challenge a proposed revocation of contestant's status as a person certified by the Secretary of Labor
to take respirable dust samples. The Secretary has filed a
motion to dismiss and contestant has submitted a memorandum in
opposition.
By letter dated August 23, 1991, counsel for contestant
advised that the decision in Roberts v. Secretary, Docket No .
KENT 91-896-R, would govern the outcome of this case. Similarly,
by letter also dated August 23, 1991, the Secretary agreed that
the decision in Roberts would be controlling here .
On September 4, 1991, I held in Roberts that an individual
such as contestant has rights arising from his certification
which are entitled to due process protections. However, I further
held that I had no jurisdiction to entertain an independent suit
by such a miner or to grant him relief. The facts here are the
same as those in Roberts 1 and the conclusions reached there
obtain here as well .

1

The file does not indicate why no citation was issued to
the operator with respect to the cassette in this matter, whereas
the operator was cited for sixteen other cassettes involving
contestant.
1405

In light of the foregoing, it is ORDERED that this case be
and is hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Robert B. Allen, Esq., King, Betts & Allen, 1300 Charleston
National Plaza, P. o. Box 3394, Charleston, WV 25333-3394
(Certified Mail)
·
James B. Crawford, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
jgl

1 40 6

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

September 5 , 1991

SANDRA EASTHAM,

CONTEST PROCEEDINGS
Contestant

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

..

Docket No. WEVA 91-1414-R
through
WEVA 91-1435-R
Citation No. 9861529; 4/4/91
through
9861562; 4/4/91
Consolidation Coal Company
Robinson Run No. 95 Mine
Mine ID

46-01318

DECISION

Before a

Judge Merlin

These cases are notices. of contest filed under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 815(d), seeking to challenge the Secretary's proposed
revocation of contestant's status as a person certified by the
Secretary of Labor to take respirable dust samples. Each notice
of contest relates to a citation issued by the Secretary to
contestant's operator, Consolidation Coal company, for allegedly
tampering with a dust cassette . The Secretary has filed a
motion to dismiss and contestant has submitted a memorandum in
opposition .
On September 4, 1991, I held in Roberts v. Secretary, Docket
No. KENT 91-896-R, that an individual such as contestant has
rights arising from her certification which are entitled to due
process protections. However, I further held that I had no
jurisdiction to entertain an independent suit by such a miner or
to grant her relief. The issues in Roberts are the same as thos e
presented here and therefore, that decision is dispositive of
this matter.
As contestant's memorandum points out, the opera tor here,
unlike the operator in Roberts, ha s filed notice s of c ontest
challenging the citations iss ued to it. Conte stant may wish to
conside r the possibility of becoming a par ty i n the ope rator's
suits. (See Footnote 1, page 3 of the Roberts decision.)

140 7

In light of the foregoing, it is ORDERED that these cases be
and are hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Robert B. Allen, Esq., King, Betts & Allen, 1300 Charleston
National Plaza, P. o. Box 3394, Charleston, WV 25333-3394
(Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
jgl

1408

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

September 5, 1991
KEVIN TUSTIN,

CONTEST PROCEEDINGS
Contestant

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

Docket No. WEVA 91-1436-R
through
WEVA 91-1447-R
Citation No. 9861681; 4/4/91
through
9861692; 4/4/91
Docket No. WEVA 91-1448-R
through
WEVA 91-1493-R
Citation No. 9861694; 4/4/91
through
9861739; 4/4/91
Consolidation coal Company
Blacksville No. 2 Mine
Mine ID 46-01968
DECISION

Before:

Judge Merlin

These cases are notices of contest filed under section 105(d)
of the Federal Mine Safety and Healtp Act of 1977, 30 u.s.c.
§ 815(d), seeking to challenge the Secretary's proposed revocation of contestant's status as a person certified by the Secretary of Labor to take respirable dust samples. Each notice of
contest relates to a citation issued by the Secretary to contestant's operator, Consolidation Coal Company, for allegedly
tampering with a dust cassette. The Secretary has filed a
motion to dismiss and contestant has submitted a memorandum in
opposition.
·
On September 4, 1991, I held in Roberts v. Secretary, Docket
No. KENT 91-896-R, that an individual such as contestant has
rights arising from his certification which are entitled to due
process protections. However, I further held that I had no
jurisdiction to entertain an independent suit by such a miner or
to grant him relief. The issues in Roberts are the same as those
presented here and therefore, that decision is dispositive of
this matter.
As contestant's memorandum points out, the operator here,
unlike the operator in Roberts, has filed notices of contest
challenging the citations issued to it. Contestant may wish to
consider the possibility of becoming a party in the operator's
suits. (See Footnote 1, · page 3 of the Roberts decision.)

1409

In light of the foregoing, it is ORDERED that these cases be
and are hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Robert B. Allen, Esq., King, Betts & Allen, 1300 Charleston
National Plaza, P. o. Box 3394, Charleston, WV 25333-3394
(Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA (Certified
Mail)
jgl

1 410

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

September 5, 1991

DANIEL SERGE,
Contestant

.

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

CONTEST PROCEEDINGS
Docket No. WEVA 91-1494-R
through
WEVA 91-1509-R
Citation No. 9861603; 4/4/91
through
9861618; 4/4/91

..
.•

Consolidation Coal Company
Osage No. 3 Mine
Mine ID

46-01455

DECISION
Before:

Judge Merlin

These cases are notices of contest filed under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 815(d), seeking to challenge the Secretary's proposed
revocation of contestant's status as a person certified by the
Secretary of Labor to take respirable dust samples. E~ch notice
of contest relates to a citation issued by the Secretary to
contestant's operator, Consolidation Coal Company, for allegedly
tampering with a dust cassette. The Secretary has filed a motion
to dismiss and contestant has submitted a memorandum of law in
opposition.
on September 4, 1991, I held in Roberts v. Secretary, Docket
No. KENT 91-896-R, that an individual such as contestant has
rights arising from his certification which are entitled to due
process protection. However, I further held that I had no
jurisdiction to entertain an independent suit by such a miner or
to grant him relief. The issues in Roberts are the same as those
presented here and therefore, that decision is dispositive of
this matter.
As contestant's memorandum points out, the operator here,
unlike the operator in Roberts, has filed notices o·f contest
challenging the citations issued to it. Contestant may wish to
consider ·the possibility of becoming a party to the operator's
suits.
(See Footnote 1, page 3 of the Roberts decision.)

1411

In light of the foregoing , it is ORDERED that these cases be
and are hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Robert B. Allen, Esq., King, Betts & Allen, 1300 Charleston
National Plaza, P. o. Box 3394, Charleston, WV 25333-3394
(Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, U. s. Department of Labor, 4015 Wilson Boulevard, Arlingt9n, VA 22203 :(certified
Mai l)
J gl

1412

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

September 5, 1991
CONTEST PROCEEDINGS

STEVEN PERKINS,
Contestant

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

.
.
.
.

Docket No. WEVA 91-1510-R
through
WEVA 91-1524-R

:

Ireland Mine

:

Mine ID

Citation No. 9861581; 4/4/91
through
9861595; 4/4/91
Consolidation Coal Company

46-01438

DEC:IS:ION
Before:

Judge Merlin

These cases are notices of contest filed under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 815(d), seeking to challenge the Secretary's proposed
revocation of contestant's status as a person certified by the
Secretary of Labor to take respirable dust samples. Each notice
of contest relates to a citation issued by the Secretary to
contestant's operator, Consolidation Coal Company, for allegedly
tampering with a dust cassette. The Secretary has filed a
motion to dismiss and contestant has submitted a memorandum in
opposition.
On September 4, 1991, I held in Roberts v. Secretary, Docket
No. KENT 91-896-R, that an individual such as contestant has
rights arising from his certification which are entitled to due
process protections. However, I further held that I had no
jurisdiction to entertain an independent suit by such a miner or
to grant him relief. The issues in Roberts are the same as those
presented here and therefore, that decision is ·dispositive of
this matter.
As contestant's memorandum points out, the operator here,
unlike the operator in Roberts, has filed notices of contest
challenging the citations issued to it. Contestant may wish to
consider the possibility of seeking to become a party in the
operator's suits.
(See Footnote 1, page 3 of the Roberts
decision.)

1413

In light of the forego .~ng, it is ORDERED that thes e cases be
and are hereby DISMISSED.

--

Paul Merlin
Chief Administrative Law Judge
Distribution:
Robert B. Allen, Esq., King, Betts & Allen, 1300 Charleston
National Plaza, P. o. Box 3394, Charleston, WV 25333-3394
{Certified Mail)
James B. crawford, Esq., Office of the Solicitor, U. s. Department of Labor, 4015 Wilson Boulevard, Arlingt.on, VA 22203 .. .. (.Certified
i-tail)
j gl

141 4
....

·~ ....

.....

.. ' ' .

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

September 5, 1991

DONALD CASE,
Contestant

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

Judge Merlin

.
.
..
.
..
.

CONTEST PROCEEDING
Docket No. WEVA 91-1614-R
Decertification Letter
Terry Eagle Coal Co .
Warren Eagle No. 2
Mine ID

46-04758

DECISION

This case is a notice of contest filed under section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 815(d), seeking to challenge a proposed revocation of contestant's status as a person certified by the Secretary of Labor
to take respirable dust samples. The Secretary has filed a
motion to dismiss and contestant has submitted a brief in
opposition.
Contestant's brief is virtually identical to the ·one filed
in Roberts v. Secretary, Docket No. KENT 91-896-R. Also, the
Solicitor has submitted a letter dated August 23, 1991, stating
that a determination in Roberts would be controlling. Upon
review of the file I find that the issues presented here are the
same as those in Roberts and that therefore, the decision in that
case is dispositive.
On September 4, 1991, I held in Roberts that an individual
such as contestant has rights arising from his certification
which are entitled to due process protection. However, I further
held that I had no jurisdiction to entertain the suit and grant
any relief. Those conclusions obtain here as well.
It should be noted, however, that by letter dated August 27,
1991, the Solicitor advised that a penalty petition has been
filed against the operator with respect to the matters involved
herein. (Docket No. WEVA 91-1732). Contestant may wish to
consider ~he possibility of becoming a party to the penalty suit.
(See Footnote 1, page 3 of the Roberts decision.)

1415

In light of the foregoing, it is ORDERED that this case be
and is hereby DISMISSED.

- \ _J (\

~

-~,-~

•

Paul Merlin
Chief Administrative Law Judge
Distribution:
Martin J. Glasser, Esq . , Webster J. Arceneaux, III, Esq., Lewis,
Ciccarello & Friedberg, Suite 700, One Valley Square, Charleston,
WV 25301 (Certified Mail)
James B. crawford, Esq., Offi ce of the Solicitor, U. s . Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)

/ gl

1416

FEDERAL MU

SAFETY AND HEALTH REVIEW

JMMISSION

OFFICE OF ADMINISTRATIVE lAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

September 5, 1991
FREEMAN UNITED COAL MINING
COMPANY,
Contestant

:.

CONTEST PROCEEDING
Docket No. LAKE 91-746-R
Citation No. 3218200; 8/8/91

v.

crown II Mine

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

Mine ID 11-02236
DECISION

Appearances:

Richard R. Elledge, E~q., Gould & Ratner,
Chicago, Illinois for Contestant.
Lisa Gray, Esq., Office of the Solicitor,
u.s. Department of Labor, Arlington, Virginia,
for Respondent;

Statement of the Case
This case is before me based on a Notice of Contest filed by
Freeman United Coal Mining Company (Contestant), contesting the
issuance of Citation No. 3218200 which alleges a violation of
30 c.F.R. § 75.321. Contestant also filed a Motion for Expedited
Hearing, and in a conference call initiated by the undersigned on
August 16, 1991, with counsel for both parties, counsel presented
oral ar~ent on the merits of this motion. The motion was
granted, 1 and the Secretary (Respondent), did not object to
Contestant's request that a hearing be held in Arlington,
Virginia.
A hearing was held in Falls Church, Virginia, on
August 19, 1991. At the hearing Lonnie Deon Conner, Tim Yakus,
Kenneth Fox and Charles Dana campbell testified for Respondent,
and Patrick J. Peterson, Harry A. Schum, and Kenneth E. Miller
testified for Contestant. The parties waived theirright to Rubrnit
written Post Hearing Briefs, and in lieu thereof presented
closing arguments at the conclusion of the evidentiary hearing.

1

In order to expedite the decisional process, the reporting
service contracted to transcribe the hearing, was required to
file the transcript within 3 days after the hearing. 1he
transcript was not filed until September 3, 1991.
1417

Fi ndings of Fac t and Discussion
On June 15 , 1991, the only f an providing venti lation at
Respondent's unde rground Crown II mine stopped during a
thunderstorm. It is uncontested that all pe rsons we re not
withdrawn from the mine as a consequence of the stoppage of the
fan.
On August 8, 1991, Lonnie Deon Conner, an MSHA Inspector
issued Citat i on No. 3218200.
The Citation alleges that "based
on information obtained from the ma in fan pressure recording
gauge char t, the main fan was stopped for more than 15 minutes
during the ev ening of June 15, 1991, between 6:00 p.m. and
7:00 p.m." The c i tation alleges a v iolation of Section 75 . 321
supra, which in essence, require s an operator to adopt a plan to
provide " ••• that when any mine fan stops," (emphasis added),
immediate action shall be taken by the operator to withdraw all
persons from the working sections . In this connection, the
revised fan stoppage plan (the Plan) in effect in June 1991
provides, as pertinent, as follows: "All persons shall be
withdrawn from the mine to the surface after a fan s toppage of 15
minutes or longer." (Joint Exhibit No.2, page 2). The sole
issue for resolution herein is whether Respondent has proven that
during the evening of June 15, 1991, there was "a fan stoppage"
of 15 minutes or longer. For the reasons that follows I conclude
that Respondent has not met this burden.
The testimony adduced at the hearing is not sufficiently
convincing to establish the time the fan stopped, and the time it
restarted. Kenneth Fox, a miner operator, was working
underground on June 15, 1991. He indicated that he was wearing a
watch and noted that the power went off a little before 6:15 p.m.
He did not testify specifically as to the time that the iAn went
off. Neither Fox, nor Tim Yakus Respondent's other witness who
was working in the hoist building on the shift in question on
June 15, 1991, convincingly established that the fan went off the
same time the power went off and not later. Yakus in this
connection testified that the lights went off, but did not
explicitly say that the fan went off at the same time . I find
more convincing the explicit testimony in this regard by
Contestant's witnesses ~ Harry Schum a maintenance foreman
testified that when he was at the bottom shop the power went off,
but that he could hear the fan as there is a "tremendous" amount
of air drawn there past a stopping and "it's whistling very loud"
(Tr . 206). Kenneth E . Miller, Contestant's shift mine manager
testified that at 6:00 p.m. on June 15, 1991, he was told that
there was no power underground . He then went to ·the power box and
discovered that the fan was off, as there was no air being .drawn
at the stopping.
According to Fox when he hea rd Yakus tell Miller that the
fan had restarted, he looked at his watch and it wa s 6:35 p.m .

1418

However, as noted above, he did not state explicitly the time
according to his watch when the fan stopped working. Yakus who
was only 15 to 20 yards away from the fan, noted when the fan
stopped, as he heard the alarm go off. He also heard the fan
restart. However, he was not wearing a watch at the time, and
had no personal knowledge of the time of the stoppage of the fan.
Yakus testified that he asked Tom Crays who was present with him
on June 15, 1991, the time ·when the fan stopped, and Crays told
him 6:20p.m., and he reported this to Miller. Also Yakus
testified that when the fan restarted he asked Crays the time,
and Crays told that it was 6:40 p.m . I find this hearsay
testimony inherently unreliable to establish the time of the
stoppage of the fan, as Crays did not testify and thus the record
does not contain any basis to evaluate the probative value of the
out of court conclusionary declarations he made to Yakus when
asked the time.
Respondent also relies on the pressure recording gauge chart
of the fan as interpreted by Charles Dana Campbell an MSHA Senior
Mining Engineer, and who is a professional engineer, and works in
a ventilation division technical support group. The chart was
made by a Bristol Babcock serial 500 pressure recorder (the
recorder) which is designed to record negative air pressure
created by the exhaust fan in question over a 7 day period. As
the chart rotates indicating a passage of time, pressure is
recorded by way of an ink stylus. It thus is possible to
correlate the negative pressure created by the fan, to a specific
hour in a 7-day cycle (See Government Exhibit No. 1).
Campbell examined a copy of the chart, and with the use of a
protractor located the center of the chart. He calculated the
angle of the arc denoting the distance on the chart between the
point in time on Saturday, June 15, when the pressure started to
go down, to the point in time where the pressure retu~ned to the
level it was at before the fan lost power. He then translated
the degree of this angle into minutes, and arrived at a figure of
19.6 minutes, with a margin of error of plus or minus 2.8
minutes. He opined that once the fan is re-energized it would
take 1 or 2 seconds to regain its operating negative pressure.
According to the plan the key element for analysis is the
time of the fan's "stoppage". This would appear to call for a
measurement of the time interval during which time the fan had
stopped. Patrick J. Peterson, a Senior Mining Engineer employed
by Contestant, testified that he observed the stylus on the
recorder to take several minutes to go from o, its position when
the fan is not on, back to n~gative 6. I place more weight on
his testimony in this regard rather than that of Campbell,
inasmuch as it was based on his observations, whereas Campbell
never observed the recorder in operation. Also, Peterson
testified that, by comparing the regular upward slope of the
stylus from zero up to maximum pressure, to the upward stroke in

1419

that direction indicated on the chart for Saturday, June 15, it
can be seen that the latter stroke did not follow the regular
slope. According to Peterson this indicates that the return to
maximum pressure once the fan was restarted took more time than
it took to go from maximum pressure to zero when the fan was
turned off by the storm.
Further, Peterson indicated that it takes less time for the
pressure to go down to zero once the fan is shut off, then it
does for the pressure to go back to the maximum level once the
fan is turned on, as in the former situation there are three
sources for air to enter to stabilize the pressure (the fan
shaft, man and material shaft, and track slope shaft), whereas
when the fan restarts only the man and material shaft and track
slope shaft are available, and hence the quantity of air entering
is less.
Also, as testified to by Peterson, due to the small scale of
the chart, the width of the ink line makes it very difficult to
perform precise measurements, and is thus inherently unreliable.
Peterson also indicated that the recorder is not designed to
chart the loss of power to a fan.
In the main, Peterson's testimony has not been rebutted or
impeached and I accept it. I find his opinions to be well
supported.
Taking into account all of the above I conclude that
Respondent has failed to establish, by way of convincing evidence
that, on June 15, 1991, there was a stoppage of the fan in
question that lasted for more than 15 minutes. Accordingly the
Notice of Contest is sustained.
ORDER
It is ORDERED that citation N~218200 be ~rsMrssen.

~ei~

· Administrative Law Judge
Distribution:
Lisa Gray, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Richard R. Elledge, Esq., Gould & Ratner, 222 North LaSalle
Street, Suite 800, Chicago, IL 60601 (Certified Mail)
nb

1420

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

SEP 10 1991
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 91 - 172
A. C. No . 36-04281-037 18
Dilworth Mine

CONSOLIDATION COAL COMPANY ,
Respondent
ORDER OF DISMISSAL

Appearances:

Covette Rooney, Esq ., Office of the Solicitor,
U.S . Department of Labor, Philadelphia ,
Pennsylvania , for the Petitioner;
Walter J. Scheller III, Esq., Consolidation Coal
Company , Pittsburgh, Pennsylvania, for the
Respondent .

Before:

Judge Melick

At hearings Petitioner requested approval to withdraw its
civil penalty petition in the captioned case on t~e grounds that
there is insufficient evidence of a violation. Upder the
circumstances herein , permission i o withdraw is gjl:anted.
29 c.F.R . § 2700 . 11 . This c~~e ! therefore dis~issed.
1

J

1

!, /

l

/L~'\il -l~.
!"\

} Gary Melick
,
· Administrative LaJ Judge

Distribution:

'

Covette Rooney, Esq . , Office of the Solicitor, U.S. Department of
Labor, Room 14480 Gateway Building , 3535 Market Street ,
Philadelphia, PA 19104 (Certified Mail)
Walter J. Scheller III , Esq . , Consolidation Coal Company
1800 Washington Road , Pittsburgh , PA 15241-1421 (Certified Mail)
/fb
1421

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

SEP 1 0 1991.
CONTEST PROCEEDINGS

BETH ENERGY MINES,
INCORPORATED ,
Contestant
v.

Docket No. PENN 91- 1334-R
Citation No. 3486330; 7/9/91

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

Docket No . PENN 91 - 1335-R
Citation No . 3486331 ; 7/9/91
Cambria Slope Mine No. 33
Mine ID 36 - 00840
DECISION

Appearances:

R. Henry Moore, Esq ., Buchanan Ingersoll ,
Pittsburgh , Pennsylvania , for the Contestant;
John M. Strawn , Esq. , Office of the Solicitor,
u. s . Department of Labor , Philadelphia,
Pennsylvania , for the Respondent .

Before :

Judge Melick

These expedited contest proceedings were filed by Beth
Energy Mines, Incorporated (Beth Energy), pursuant to
section 105(d) of the Federal Mine Safety and Health Act of 1977 ,
30 u. s .c. § 801 et seg. , the "Act ," to challenge a citati on and
withdrawal order alleging violations of mandatory standar ds . The
general issue before me is whether Beth Energy violated those
standards, and, if so, whether the violations were "significant
and substantial" and the result of "unwarrantable failure" .
Citation No . 3486330 issued pursuant to section 104(d)(l) of
the Act alleges a violation of the mandatory standard at
30 C.F.R. § 75.202(a) and charges as follows : I
11

Section 104(d)(l) of the Act reads as follows : If, upon
any inspection of a coal or other mine , an authorized
representative of the Secretary finds that there has been a
violation of any mandatory health or safety standard, and if he
also finds that, while the conditions created by such violation
do not cause imminent danger; such violation is of such nature as
could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard, and if he
finds such violation to be caused by an unwarrantable failure of
such operat or to c omply with such mandatory health or safety
1422

The ribs on the tight side of the 3 left conveyor
belt was [sic] not supported or otherwise controlled to
protect persons who have to work along this conveyor
shoveling coal spillage and changing belt rollers.
This area is required to be examined by pre-shift and
on-shift examiners and they should have seen these
loose unsupported ribs. The following areas of loose
ribs needs supported [sic] or taken down: 10' inby the
#1 Rectifier sign along the 3 left track belt entry, a
15' long 3 feet high 12" thick. Between the 1st & 2nd
x-cut outby this sign a 12' long, 3' high rib rock
exist [sic]. Between the 3rd & 4th x-cut a gapped open
3' high 20' long rib rock exists. Between the 4th
& 5th x-cut outby this sign, a gapped open 3 1/2 foot
by 25' long rib rock exists. Between the 4th & 5th
x-cut outby this sign a 2 1/2' high 10' long loose rib
rock also exists. A 2 1/2' x 2 1/2' loose rib rock
exists on the inby corner of the 7th x-cut from this
sign, it needs [sic] supported or taken down. At the
inby end of the lOth x-cut from this sign outby a
3' high 10' long rib rock exist [sic] that is broken
and is only supported partially by coal that is
sleuthing [sic] away. All of these ribs mentioned were
broken loose at the top and sides and were only
partially supported with coal under these areas. These
conditions existed in an area from 10 feet inby the
Rectifier sign along the tight side rib outby to survey
station # 6815.
The cited standard, 30 C.F.R. § 75.202(a), provides that:
"[t]he roof, face and ribs of areas where persons work or travel
shall be supported or otherwise controlled to protect persons
from hazards related to falls of the roof, face or ribs, and coal
or rock bursts."

footnote 1 (continued)
standards, he shall include such finding in any citation given to
the operator under this Act. If, during the same inspection or
any subsequent inspection of such mine within 90 days after the
issuance of such citation, an authorized representative of the
Secretary finds another violation of any mandatory health or
safety standard and finds such violation to be also caused by an
unwarrantable failure of such operator to so comply, he shall
forthwith issue an order requiring the operator to ·cause all
persons in the area affected by such violation, except those
persons referred to in subsection (c) to be withdrawn from, and
to be prohibited from entering such area until an authorized
representative of the Secretary determines that such violation
has been abated.

1423

Withdrawal Order No. 3486331 issued pursuant to
section 104(d)(1) of the Act (see footnote 1) alleges a violation
of the mandatory standard at 30 C. F . R. § 75 . 303(a) and charges as
follows:

An adequate pre- shift examination was not
conducted along the 3 left belt/track entry for the
dayshift on 7-9-91. Loose hazardous unsupported ribs
exist along the tight side of this conveyor belt entry
from 10' inby a sign marked #1 rectifier outby survey
station # 6815 along this belt/track entry. This
examination was conducted for the dayshift by Thomas
Korber on 7/9/91 and this hazardous condition was not
mentioned in his report on the pre-shift examiners
report.
The cited standard, 30 C.F.R.
follows:

§

75.303(a), provides as

Within 3 hours immediately preceding the beginning
of any shift, and before any miner in such shift enters
the active workings of a coal mine, certified persons
designated by the operator of the mine shall examine
such workings and any other underground area of the
mine designated by the Secretary or his authorized
representative. Each such examiner shall examine every
working section in such workings and shall make tests
in each such working section for accumulations of
methane with means approved by the Secretary for
detecting methane, and shall make tests for oxygen
deficiency with a permissible flame safety lamp or
other means approved by the Secretary; examine seals
and doors to determine whether they are functioning
properly; examine and test the roof, face, and rib
conditions in such working section; examine active
roadways, travelways, and belt conveyors on which men
are carried, approaches to abandoned areas, and
accessible falls in such section for hazards; test by
means of an anemometer or other device approved by the
Secretary to determine whether the air in each split is
traveling in its proper course and in normal volume and
velocity; and examine for such other hazards and
violations of the mandatory health or safety standards,
as an authorized representative of the Secretary may
from time to time require. Belt conveyors on which
coal is carried shall be examined after each coalproducing shift has begun. Such mine examiner shall
place his initials and the date and time at all places
he examines. If such mine examiner finds a condition
which constitutes a violation of a mandatory health or
safety standard or any condition which is hazardous to
persons who may enter or be in such area, he shall

1424

indicate such hazardous place by posting a "danger"
sign conspicuously at all points which persons entering
such hazardous place would be required to pass, and
shall notify the operator of the mi ne . No persons,
other than an authorized representative of the
Secretary or a State mine inspector or persons
authorized by the operator t6 enter such place for the
purpose of eliminating the hazardous condition therein,
shall enter such place while such sign is so posted.
Upon completing his examination, such mine examiner
shall report the results of his examination to a
person, designated by the operator to receive such
reports at a designated station on the surface of the
mine, before other persons enter the underground areas
of such mine to work in such shift. Each such mine
examiner shall also record the results of his
examination with i"nk or indelible pencil in a book
approved by the Secretary kept for such purpose in an
area on the surface of the mine chosen by the operator
to minimize the danger ·of destruction by fire or other
hazard, and the reco2d shall be open for inspect~on by
interested persons. I
In essence, Beth Energy is charged in Citation No. 3486330
with failing to support or take down certain areas of loose rib
and is charged in Order No. 3486331 with failing to have
discovered the cited ribs during the preshift examination and to
have reported in the preshift examination book the rib conditions
noted in Citation No. 3486330.
Beth Energy notes in its posthearing brief that the cited
standards must be reviewed in light of the reasonably prudent
person test i . e. whether a reasonably prudent person familiar
with the mining industry and the protective purpose of the
standards , would have recognized the hazardous conditions that
the standards seek to prevent. Canon Coal Co., 9 FMSHRC 667
(1987), Ozark-Mahoning Co., 8 FMSHRC 190 (1986). Under this
standard of review the reasonably prudent person is also charged
with knowledge of, and familiarity with, the factual
circumstances surrounding the allegedly hazardous conditions.
See Secretary v. Alabama By-Products Corp. , 4 FMSHRC 2128 (1983).
More particularly, this case involves the 3 Left area of t he "C"
21

Beth Energy argues that this standard does not require
testing of roof or ribs in travelways. While the l~nguage of the
standard may not be the most artful in all respects it is quite
clear in its requirements for the preshift examination for
hazards in "active roadways [and] travelways." In light of this
clear language there is no need to resort to other secondary
rules of statutory /regulatory construction .

1425

co~. l seam located between the 4 West Mains area and the 6 West
Mains area of the Cambria Slope No. 33 Mine. One entry of the
three designated as 3 Left contains both track and a conveyor
belt. The entry is approximately 23 feet wide and slopes
slightly down across the entry with the track being located on
the higher side. There is approximately 7-1/2 feet between the
higher rib and the track. The rails of the track are 3 feet
apart and approximately 4 feet from a row of timbers, which
separate the track and belt and which are spaced 5 feet apart
throughout the entry. A row of timbers has also been installed
next to the rib on the high side along the length of the entry.
The belt conveyor is hung from the roof on chains and its
assembly is 4-1/2 feet wide. There is approximately 3 feet
between the tight side rib and the belt. The entry itself is
approximately 6-1/2 feet high, the lower 40-45 inches of which is
coal. The lower or return portion of the belt is approximately
12 inches off the mine floor.

Federal Mine Safety and Health Administration (MSHA) Coal
Mine Inspector Leroy Niehenke testified that during the course of
a July 9, 1991, regular inspection of the No. 33 Mine,
accompanied by his Supervisor Paul Bizich, he observed as they
proceeded along the tight side of the 3 Left conveyer belt entry,
a rib roll some 15 to 20 feet long and 2-1/2 feet thick blocking
the walkway. Niehenke testified that from that location he could
observe areas of loose unsupported rib. Shifting to the track
side of the entry, he observed additional areas of loose
unsupported rib extending from an area 10 feet inby the rectifier
sign along the tight side rib outby approximately 1000 feet to
spad 6815. According to Niehenke there were seven to eight
unsupported areas 10 to 20 feet long in this area. Niehenke
testified that the conditions were "very obvious" in that you
could see a definite separation between the roof and rib. It is
not disputed that the area had been rock dusted some 3 to 4 weeks
before and was white or gray in color, while the separations
showed as a distinct black line against that white-gray color.
The area of rib that had fallen had also been rock dusted thus
indicating that it had been present for at least 3 weeks. None
of these conditions had been reported in the preshift exam book.
Inspector Niehenke also testified that General Mine Foreman
Fedorko told him regarding the ribs that "they knew they had a
problem in this area on the tight side" and because of that they
had been concerned about people working on the tight side. They
were also "thinking about elevating this belt away from the
bottom" to enable shoveling of rib material from under the belt.
Fedorko could not recall this conversation, but· did not clearly
deny it. Particularly under these circumstances, I give the
testimony of Inspector Niehenke on this significant point
considerable weight.

1426

Niehenke concluded that the condition was reasonably likely
to cause a fatality to persons who might be shoveling, replacing
rollers, splicing the belt, or performing similar work on the
tight side of the belt. There is no dispute that such work, as
well as repairs to the water valves, is in fact periodically
performed from the tight side and that if a miner were struck
with a rib roll such as found in this case he would be killed.
On exiting the mine., Niehenke found no report in the
preshift examination book concerning either the cited hazardous
rib conditions or the rib roll. It is not disputed that no such
report had been made and that since the shift had begun at
6:30 that morning the preshift examination should have been
completed the preceding 3 hours. Niehenke opined that
particularly under these circumstances involving the cited rib
hazards, such an inadequate preshift examination could result in
a fatality. He observed that there had been increasing problems
at the cited mine and indeed with the specific coal seam at
issue, with roof falls and roof pressure.
Supervisory Coal Mine Inspector Paul Bizich accompanied
Niehenke on his July 9 inspection and also observed the loose rib
material. It was about 15 feet long and covered the water line.
He noted that the cited separated ribs were so readily visible
that "any other certified person traveling in that area,
especially the preshift examiner, should have seen it." There
was "no doubt" in his mind that the condition would likely have
resulted in a fatality.
Within the framework of evidence presented at hearing, I am
satisfied that the Secretary has sustained her burden of proving
the violations charged and that those violations were
"significant and substantial" and the result of Beth Energy's
"unwarrantable failure." 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 (1981).
In Mathies Coal Co., 6 FMSHRC 1 (1984), the Commission
explained its interpretation of the term "significant and
substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and .
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of a

1427

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 104(d)(1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial . u.s. Steel Mining Company , Inc . , 6 FMSHRC
1866 , 1868 (August 1984); u.s. Steel Mining Company ,
Inc ., 6 FMSHRC 1573, 1574-75 (July 1984) .
The question of whether any particular v i olation is
significant and substantial must be based on the particular facts
surrounding the violation. Secretary of Labor v. Texasgulf ,
Inc., 10 FMSHRC 498 (1988); Youghiogheny & Ohio Coal Company,
9 FMSHRC 1007 (1987).
The third element of the 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" and that the
likelihood of injury must be evaluated in terms of continued
normal mining operations. U.S . Steel Mining Co. , 6 FMSHRC 1573
(1984); Monterey Coal Co., 7 FMSHRC 996 (1985). The time frame
for determining if a reasonable likelihood exists includes the
time that a violative condition existed or would have existed if
normal mining operations continued . Rushton Mining co. ,
11 FMSHRC 1432 (1989).
In addition, in Emery Mining Corporation, 9 FMSHRC 1997
(1987) and Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(1987), the Commission held that "unwarrantable failure " means
aggravated conduct, constituting more than ordinary negligence,
by a mine operator in relation to a violation of the Act. The
Commission stated that while negligence is conduct that is
"inadvertent," "thoughtless," or "inattentive," conduct
constituting an unwarrantable failure is conduct that is "not
justifiable" or "inexcusable . " Emery, supra, 9 FMSHRC at 2001.

1428

The credible testimony of experienced Inspector Niehenke
which is fully corroborated in essential respects by Supervisory
Inspector Bizich is sufficient in itself to prove these elements.
In applying the reasonably prudent person test to the citation
and order at bar it is also important to note that the
circumstances include the knowledge that shortly before these
violations i.e., between April 23, 1991 and June 5, 1991, MSHA
found and cited five other violations of the roof and rib control
standard (30 C.F.R. § 75.202(a)) at this mine and that management
admitted that they were aware of rib problems and concerned about
workmen on the tight side. Mine officials and the preshift
examiner in particular should therefore have been on heightened
notice of the potential for dangerous rib and roof conditions and
of the likelihood of injuries to miners at the time of the
July 9, preshift examination. This evidence also supports a
finding of aggravated negligence and "unwarrantable failure."
The evidence that a large rib roll had obstructed the tight side
walkway in the cited area for at least 3 weeks -- and had even
been covered by rock dusting -- and that this condition also had
never been reported in the preshift examination books further
warrants the aggravated negligence findings in regard to the
performance of preshift examinations and the failure ·t o properly
perform the preshift examination at issue.
In reaching my conclusions herein, I have also considered
the testimony of Thomas Korber the Beth Energy Mine Examiner
responsible for the preshift examination before the day shift on
July 9, 1991. Korber testified that when he returned to the
cited area on the following day, he observed cracks in the ribs
with not more than 1 inch of separation, and that there was
indeed some rib sloughage. He learned during abatement that at
least one of the cited rib areas had been brought down with a
bar. Korber also acknowledged that such rib separations should
be tested to determine whether the ribs are solid or separated.
He maintains that he did not see any of the gaps between the rib
and roof during his preshift examination on July 9, but admitted
that the rib on the tight side was not "my priority."
I have also considered the testimony of General Mine Foreman
Edward Fedorko that he also observed during the abatement process
coal sloughage along the cited rib area and 1/2 inch separation
of the ribs. He acknowledged that such a separation warranted
further examination of the rib and if it needed work it should be
reported in the preshift examination books.
Steven Horvath, a graduate mining engineer and underground
mine superintendent, took photographs after the abatement from
various positions in the cited area and noted that ribs
throughout had been scaled and taken down. This evidence indeed

1429

tends to corroborate the extent of the cited hazard and its
"significant and substantial" nature. Horvath also agreed that
when certain cracks appear in the rib along the roof line they
should be further tested by sounding and close observation.
It should be noted, however, that the Beth Energy witnesses
are entitled to but little weight in expressing "reasonably
prudent person" opinions because, aside from their obvious
self - interest, there is no evidence that they considered the
awareness of management of pre- existing problems with the tight
side ribs and of its express concern for miners working in that
cited area.
Considering that Beth Energy had five prior violations of
the standard at issue herein over the preceding 4 months, that
Beth Energy management admittedly knew that they had a rib
problem in the same area cited herein, the undi sputed testimony
of Inspector Niehenke and Supervisory Inspector Bizich that the
black rib separations were particularly visible against the
gray-white background of the rock dust, the existence of another
violative condition involving a rib roll obstructing the tight
side walkway which had existed unreported in the preshift books
for 3 to 4 weeks, the admission of belt-foreman Boyer that there
was no need to closely inspect the tight side in spite of the
potential fatal hazard to persons working there, the testimony of
shift- mine foreman and preshift examiner Thomas Korber that the
ribs on the tight side were not given a high priority during the
examination process, and in light of the serious hazard presented
by the separated ribs, I conclude that the failure to have
observed, corrected, and reported these conditions in the
preshift examination report constituted aggravated and gross
negligence amounting to "unwarrantable failure." Emery Mining
Corporation, supra; Youghiogheny & Ohio Coal Company, supra.
In addition, based upon the undisputed evidence that miners
would be required to periodically work on the tight side of the
belt, the clear evidence of rib separations of up to 1 inch, the
evidence (particularly noted from the photographs in evidence
taken after abatement) that many of the ribs in the cited area
had been taken down or fallen and the evidence that a miner hit
by a rib roll while working in the tight side would likely be
killed, the failure to have supported or taken down the cited
ribs and the failure to have properly examined and reported those
conditions in the preshift examination process, constituted a
"significant and substantial" violation. National Gypsum, supra,
Mathies Coal Co., supra, U.S. Steel Mining Co., Inc., supra.
Under all the circumstances the citation and or4er must be
affirmed.

1430

ORDER

Citation No. 3486330 and Order No. 348633
the contests of those are DISMISSED.

are

Distribution:
R. Henry Moore, Esq., Buchanan Ingersoll Professional
Corporation, usx Tower, 57th Floor, 600 Grant Street, Pittsburgh,
PA 15219 (Certified Mail)
John M. Strawn, Esq., Office of the Solicitor, u.s. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
dcp

1431

FEDERAL MINE SAFETY AND HEALTH REVIEW COMM ISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SEP 1 1 1991
SECRETARY OF LABOR ,
MINE SAFETY .AND HEALTH
ADMINISTRATI ON (MSHA),
Petitioner

CIVIL PENALTY PROCEEDI NG
Docket No . LAKE 91 - 127 - M
A.C . No . 20-02849-05501 GUL

v.

SOV Pioneer
YERINGTON CONSTRUCTI ON COMPANY,
Respondent
DECISION
Appearances:

Lisa R. Williams, Esq., Office of the Solicitor,
u.s. Department of Labor , Chicago, Illinois, for
the Petitioner;
John s . Yerington II, President, Yerington Leasing
Company, on behalf of Respondent, Yerington
Construction Company.

Before :

Judge Melick

This case is before me pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seg., the, "Act," to challenge two citations issued by the
Secretary of Labor, for violations of regulatory standards . The
general issue before me is whether Yerington Construction Company
(Yerington) violated the cited regulatory standards as alleged,
and, if so, what is the appropriate civil penalty for such
violations .
Citation No. 3618745 alleges a "significant and substantial"
violation of the regulatory standard at 30 C. F. R. § 56.14100(a)
and charges as follows:
The foreman failed to perform a pre-shift
examination of the dozer prior to use on the mine site.
The foreman stated he was the first to use it at thi s
site . It was discovered that the service brakes of
this Case 450 dozer, serial No. 3071733 were not
functional. A person can be seriously injured if
unaware of defects to equipment due to the lack of an

1432

equipment safety inspection prior to use. The foreman
was acting as a contractor to Yerington Leasing
Company.
The cited standard provides that "self-propelled mobile
equipment to be used during a shift shall be inspected by the
equipment operator before being placed in operation on that
shift."
Citation No. 3618746 alleges a "significant and substantial"
violation of the mandatory standard at 30 C.F.R. § 56.14100(c)
and charges as follows:
The employee of the Case 450 dozer, serial
No. 3071733 did not remove from service the equipment
when he knew the service brakes were not functional.
The dozer was in use on a stockpile 20 feet above the
pit floor. A person can suffer · serious injury if
involved in a [sic] accident due to a safety defect
involving service brakes.
·
The cited standard, 30 C.F.R.
follows:

§

56.14100(c), provides as

When defects make continued operation hazardous to
persons, the defective items including self-propelled
mobile equipment shall be taken out of service and
placed in a designated area posted for that purpose, or
a tag or other effective method of marking the
defective items shall be used to prohibit further use
until the defects are corrected.
The Respondent does not dispute the violations as charged
nor the special findings associated therewith, but argues that
the cited equipment was rented from a company named Maple Rapids
Aggregate, and therefore that company was responsible for the
violations. Respondent argues alternatively that in any event
he, as job manager, never authorized his employ~es to put
themselves in dangerous positions. According to Mr. Yerington,
it would follow therefore that the employee alone was responsible
for his own actions.
Under section 3(d) of the Act, however, an "o-p erator" of a
mine is "any owner, lessee, or other person who operates,
controls, or supervises a coal or other mine or any independent
contractor performing services or construction at such mine."
From the record herein it is clear that Yerington was, at a
minimum, supervising operations at the cited mine and was an
independent contractor performing services at the mine.
Accordingly, Yerington is an "operator" under the Act charged
with the responsibility for conforming with the Act and legally
promulgated regulations including the inspection and safe

1433

operation of its equipment whether owned or leased. It is also
noted that the violations in this case were personally committed
by the operator's foreman and agent.
According to Federal Mine Inspector Gerald Holeman, on the
date of the citations, September 10, 1990, Yerington Construction
Company had a separate federal identification number based on a
legal identity report filed in that name. During his inspection
of the portable crushing plant, he observed only two employees at
the work site and both were employees of Yerington Construction
Company. He saw one employee operating the bulldozer cited in
this case who identified himself as Steve Harman, the foreman .
Harman reportedly told Inspector Holeman that Yerington Leasing
Company owned the equipment and that he was an employee of
Yerington Construction Company, hired to operate the equipment.
As Inspector Holeman was questioning foreman Harman , another
employee, Bernie Knodl, began operating the bulldozer . Later
during the course of his inspection, Knodl was asked about the
condition of the brakes. Knodl admitted that the brakes on one
side did not work at all, and demonstrated this fact to the
inspector.
According to Holeman, the hazard of operating the bulldozer
on a 20 foot stockpile without functional service brakes on one
side was serious. Since the brakes on only one side of the
bulldozer operated you could only turn in one direction . Under
the circumstances, there would be limited ability to negotiate
the terrain, the equipment could therefore strike other employees
and equipment and could roll off the stockpile. Inspector
Holeman therefore concluded that it was reasonably likely for an
accident to occur and that such an accident was reasonably likely
to be fatal. Accepting this undisputed evidence, I find the
violations to be indeed serious and "significant and substantial"
Mathies Coal Company, 6 FMSHRC 1 (1984). Harman also conceded
that he had not preshifted the cited equipment, and that he was
the first employee to operate it on that shift. The violations
were therefore clearly the result of operator negligence.
Considering the absence of any prior history of violations
by this mine operator and its small size but also considering the
seriousness of the violation and the fact that an agent of the
operator, the foreman, was actually committing the violations, it
is apparent that the proposed civil penalty of $68 for each
violation is appropriate.

1434

ORDER

Citation Nos. 3618745 and 3618746 are affirme . Yerington
Construction Company is hereby directed to pay civ'l penalties of
$136 within 30 days of the date of this decision.

1

1{_/v\

Gary Me ick
~aw\
AdiDinis \rative Law 1Judge

.vt~

Distribution:
Lisa R. Williams, Esq., Office of the\$olicitor, u.s. Department
of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)
Mr. John s . Yerington II, President, Yerington Leasing Company,
P.O. Box 316, St. Joseph, MI 49085 (Certified Mail)
/fb

1435

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

22041

SEP 1-6 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

v.

..
.

DUININCK BROTHERS, INC.,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 91- 50-M
A. C. No. 21- 02722-05503
Docket No. LAKE 91-51-M
A. C. No. 21-02845-05504
KK004 & KK003 Crushing Unit

DECISION
Appearances :

Before:

Miguel J. Carmona , Esq., Office of the Solicitor,
u. s . Department of Labor, Chicago, Illinois, for
the Secretary of Labor (Secretary);
Paul A. Nelson, Esq., Willette, Kraft, Walser,
Nelson & Hettig , Olivia, Minnesota, for Duininck
Brothers, Inc. (Duininck).

Judge Broderick

The Secretary seeks civil penalties for two alleged
violations of 30 C.F.R . § 56 . 5050(b). Pursuant to notice, the
case was called for hearing in Minneapolis, Minnesota on
August 13, 1991. Roy Shrake, Diane Brayden, and Richard Goff
testified on behalf of the Secretary. John Davis, Virgil Gerdes,
Harris Duininck, and Rick Maursetter testified on behalf of
Duininck. Both parties have filed post- hearing briefs. I have
considered the entire record and the contentions of the parties
and make the following decision.
FINDINGS OF FACT
1. At all time pertinent hereto, Duininck was the owner and
operator of the sand and gravel mine known as the KK 004 and
KK 003 crushing Unit.
I

2.
During the calendar year preceding the issuance of the
citations involved in this case, 11,973 hours of work were
performed at the subject mines.
3. on May 9, 1990, Federal Mine Inspector Roy Shrake issued
a citation citing a violation of 30 C.P.R. § 56.5050(b) because a
tractor operator was exposed to noise in excess of that permitted
by the standard. on July 18, 1990, Inspector Shrake issued a
14 36

citation citing a violation of 30 C.F.R. § 56.5050(b) because a
bulldozer operator was exposed to noise in excess of that
permitted by the standard. Respondent agrees that the two miners
were exposed to noise in excess of the maximum noise level
prescribed by the standard.
4. The parties agree that the evidence offered at the
hearing with respect to Citation No. 3445314 (the tractor
operator - Docket No. LAKE 91-51-M) is applicable to Citation
No. 3619333 (the dozer operator- Docket No. LAKE 91-50-M).
· 5. The tractor operator was wearing adequate personal
hearing protection at the time the citation was issued.
6. There are no feasible administrative controls applicable
to the condition involved in the citation.
7. The tractor operator was operating a 1980 Model TO 25
International tractor. Noise was coming from the engine and the
tracks. The unit did not have a cab, and no other engineering
controls were being utilized to reduce the noise exposure.
8. The noise level to which the tractor operator was
exposed was equivalent to 102 db for an 8 hour period.
9. The personal hearing protection worn by the miner,
namely ear plugs, is designed to reduce the noise level by
28 decibels. This is under laboratory conditions. In fact,
under field conditions, the reduction varies from 0 to 25 db.
10. At the present time, a tractor of the kind inv olved in
this case would cost approximately $250,000, without a cab. An
enclosed cab with an air conditioner would cost an additional
$8,500 to $9,000. To l~ase such a unit would cost approximately
$10,000 a month depending on its age.
11. The present value of a 1978 or 1979 unit is between
$16,000 and $18,000. A 1985 or 1986 unit has a present value of
approximately $75,000. To retrofit a cab on one of these units
would cost about $10,000 including an air conditioner. The
market value of the unit would not be increased by the addition
of a cab .
12. The tractors such as are involved here have a useful
life of about 20 years before they are retired. Duininck
estimates that the tractor involved here (manufactured in 1980)
will be used for 5 more years. When it is replaced will depend
on the maintenance record and cost.

14 3 7

13. In 1988, Duininck attempted, with MSHA guidance, to
modify a tractor such as the one involved here by installing a
windshield, and floor and ceiling sound suppressants, but
discontinued the program when MSHA determined that enclosed cabs
were required if other sound suppressant devices were not
sufficient to bring the machine into compliance.
14. An enclosed full cab with proper acoustical treatment
can be expected to lower the noise level in a tractor such as
that involved here by 6 to 15 decibels. Cabs have been
retrofited on tractors under MSHA's supervision and have reduced
noise levels from 6 to 15 decibels. In only one instance was it
reduced to the level permitted by the standard. Where it did
not, personal hearing protection would still be required.
15. The citation was terminated when the cited equipment was
removed from the mine property.
REGULATION
30 C.F.R.

§

56.5050(b) provides as follows:

When employees' exposure exceeds that listed in
the above table, feasible administrative or engineering
controls shall be utilized. If such controls fail to
reduce exposure to within permissible levels, personal
protection equipment shall be provided and used to
reduce sound levels to within the levels of the table.
ISSUE
Whether an enclosed cab retrofited on the equipment involved
herein is a feasible engineering control mandated by the
standard?
CONCLUSIONS OF LAW
It is conceded that the employees' noise exposure in these
cases exceeded the maximum limit of 90 decibels per 8 hours.
It
is conceded that engineering controls were not used to reduce the
noise exposure. The evidence established that engineering
controls are technically feasible and would reduce the noise
exposure. The narrow issue here is whether such engineering
controls are economically feasible.
In the controlling ·commission decision, Callanan Industries,
Inc., 5 FMSHRC at 1990 (1983), the Commission said at page 1909:
"· . . we hold that the economic feasibility of the
control is to be determined by consideration of whether
the economic costs of the control are wholly out of
proportion to the expected benefits, i.e., whether

1438

given the reduction in noise level to which a miner
would be exposed after implementation of the control,
and the costs of achieving that reduction, it would not
be rational to require implementation of the control."
The test therefore is the expected benefits, (the reduction
in noise levels) compared to the cost of achieving that
reduction. It is not the cost of achieving the reduction
compared to the value of the machinery in question, as Ouininck
seems to contend. The benefits expected here are substantial - a
reduction of between 6 and 15 decibels of noise exposure. This
is especially significant in view of the testimony (not refuted)
that personal protection equipment is often unreliable under
field conditions, and may not result in noise reduction to the
extent that the equipment manufacturers represent.
In my judgment the cost of ·providing such engineering
controls (full cab with acoustical treatment) amounting to
$10,000 to $13,000 is not "wholly out of proportion to the
expected benefits . " It is therefore rational to require
implementation of the control.
·
I conclude therefore that Ouininck failed to utilize
' feasible engineering controls to reduce the noise exposure of its
tractor operators.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1.

Citation Nos. 3445314 and 3619333 are AFFIRMED

2. Ouininck shall, within 30 days of the date of this
Decision, pay the following civil penalties for the violations
found herein:
CITATION

30 C.F.R.

PENALTY

3445314
3619333

56.5050(:0)
56.5050(:0)
TOTAL

12..0.

•

;,·

I

I
,j.

$20
$40

I

,.

.

I'

.!fr. ~ Ki s· /H :..J t·~: a.c. ~· z fli

~ James A. Broderick .

Administrative Law Judge

1439

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

SEP 16 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
:

v.

Docket No. WEVA 90-224
A.C. No. 46-01816-03744
Gary No. so Mine

U.S. STEEL MINING COMPANY,
INC.,
Respondent
and
UNITED MINE WORKERS OF
AMERICA (UMWA) ,
Intervenor
DECISION
Appearances:

Javier I. Romanach, Esq., Office of the Solicitor,
u.s. Department of Labor, Arlington, Virginia, for
the Petitioner;
Billy M. Tennant, Esq., u.s. Steel Mining Company,
Inc., Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil
penalty filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking a civil penalty assessment of
$91 for an alleged violation of mandatory safety standard
30 c.F.R. § 75.1105. The respondent filed an answer contesting
the alleged violation and a hearing was held in Beckley, West
Virginia. The UMWA failed to appear. The parties filed
posthearing briefs, and I have considered their arguments in the
course of my adjudication of this matter.
Issues
The issues presented in this proceeding are (1) whether the
respondent has violated the cited standard as alleged in the
proposal for assessment of civil penalty and (2) the appropriate
civil penalty that should be assessed based on the .civil penalty
1440

criteria found in section 110(i) of the Act. Additional issues
raised by the parties are identified and disposed of in the
course of this decision.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of
1977, Pub. L. 95.164, 30 u.s.c. § 801 et seq.

2.

Section 110(i) of the 1977 Act, 30 u.s.c.
§ 820(i).

3.

30 C.F.R.

4.

Commission Rules, 20 C.F.R.

§

75.1105.
§

2700.1 et seg.

Stipulations
The parties stipulated in relevant part as follows (Exhibit
AIJ-1):
1.

The presiding judge has jurisdiction to hear
and decide this matter.

2.

The inspector who issued the contested
citation was acting in his official capacity
as a Federal coal mine inspector.

3.

The citation was properly issued to the respondent's
agents.

4.

The cited conditions were timely abated.

5.

Payment of the proposed civil penalty
assessment of $91 will not adversely affect
the respondent's ability to continue in
business.
Discussion

The contested section 104(a) non-"S&S" Citation No. 3237370,
issued by MSHA Inspector Randall c. Wooten on May 2, 1990, cites
an alleged violation of mandatory safety standard 30 C.F . R.
§ 75.1105, and the cited condition or practice is described as .
follows:
The battery charging station located in the ~o. 4
entry, 6 B section, where batteries are being serviced
from the equipment to be charged, is not housed
adequately in a fireproof structure or area.

1441

Petitioner's Testimony and Evidence
MSHA Inspector Randall C.Wooten testified that he issued the
citation in the course of a regular mine inspection after finding
what he believed to be an inadequate fireproof structure or area
used to house a battery-charging station. The inspector
estimated that the area was approximately 16 feet by
40 feet, and he stated that it was located between two pillar
blocks of an entry 20 feet wide. A fireproof stopping
constructed of masonry blocks was located in front of the area in
question, and the interior area consisted of corrugated metal
walls attached to and supported by 4 x 4 inch wooden timbers.
The inspector confirmed that the corrugated metal walls and
stopping were constructed of fireproof materials and he found no
problems with this.
Mr. Wooten stated that the roof of the enclosure consisted
of incombustible rock, and that the coal ribs were approximately
6 to 8 inches behind the metal corrugated walls of the enclosure.
The timbers supporting the metal walls were located between the
ribs and the back of the walls. The corrugated metal did not
extend fully to the roof, and the faces of four or five of the
wooden support timbers were not fully covered by the metal. The
exposed timber areas ranged from one to 12 inches. However, the
areas between the support timbers consisted of incombustible draw
rock which extended 10 to 12 inches down from the roof and around
the perimeter of the metal enclosure. The roof was approximately
5 1/2 teet high.
Mr. Wooten stated that the enclosure area was well rockdusted and properly ventilated, and he found no problems in this
regard. His belief that the enclosure was inadequate was based
on the tact that the interior metal walla did not extend all the
way to the roof, thereby leaving some ot the tops ot the
combustible wooden timbers exposed. He confirmed that if the
metal material were extended all the way to the roof fully
covering the timbers, he would not have issued a citation. He
also confirmed that abatement was achieved by extendinq the metal
material to the top of the timbers around the enclosure
(Tr. 13-22) •
Mr. Wooten stated that the battery charqer was approximately
30 inches hiqh, 34 inches long, and 30 inches wide, and that it
was located "off to the left as you walk into the station" and
approximately two to three teet from the corrugated metal in from
the rib (Tr. 23). If one were in the station area he would see
corrugated metal to the riqht and left, a stoppi~g with a block
removed "dead ahead", and an incombustible rock roof overhead
(Tr. 20). He was not sure whether or not the battery charger was
in use at the time of the inspection (Tr. 23).

1442

Mr. Wooten stated that if a fire were -to occur in the
charging station, the timbers could be ignited and burn and the
structure would then collapse and expose the coal ribs behind the
walls (Tr. 17). If a fire were to occur, he believed the flames
would reach the roof (Tr. 22). He later testified that the
charging station was completely open to the intersection and if
there were a fire at the station, it was unlikely that it would
spread out into the intersection because the fresh air which was
directed through the station was going through the stopping
return. He confirmed that the violation was "non-S&S", and he
indicated that any smoke from a fire would probably burn in the
direction of the return. He had no reason to believe that the
air current would cause the flames to go in an upward direction
and ignite the exposed portions of the timbers in question
(Tr. 25).
Respondent's Testimony and Evidence
William L. Jones, mine safety inspector, testified that when
he became aware of the citation he went to the area and found
that the floor was well rock-dusted with six to eight inches of
rock dust, and fifty bags of rockdust were stacked on the right
side of the station. Referring to his notes taken at the time in
question, he testified as to the construction of the battery
charging station, and in his opinion it was housed in a fireproof
structure. He was also of the opinion that in the event of a
fire at the charging station the exposed timber tops supporting
the tin enclosure would not have been exposed to any flame
because the battery charger was located toward the back of the
station on the left side looking in, and any fire would have
traveled inby towards the stopping and into the return
(Tr. 35-38). He confirmed that the timbers near the area where
the battery charger was located were least exposed and the
corrugated metal covered more of those timbers than the others
(Tr. 39) .
On cross-examination, Mr. Jones stated that taking into
account the rock dust in the area, the ribs, roof, floor, and any
exposed combustible materials, it was his opinion that the cited
station was fireproof and that the exposed timbers could not have
caught fire in the event a fire occurred at the battery charging
station (Tr. 40).
In response to further questions, Mr. Jones stated that the
cited station was constructed approximately a week prior to the
inspection, and that two additional stations were constructed in
the area in the same fashion. He did not know whether the
inspector ever saw the additional stations, but he confirmed that
they were not cited and were not reconstructed after the issuance
of the citation in question (Tr. 42).

144 3

Findings and Conclusions
The respondent is charged with an alleged violation of
mandatory safety standard 30 c.F.R. § 75.1105, which provides in
relevant part as follows:
Underground * * * battery-charging stations, * * *
shall be housed in fireproof structures or areas. Air
currents used to ventilate structures or areas
enclosing electrical installations shall be coursed
directly into the return. * * *·
MSHA's Program Policy Manual, July 1, 1988, states in
relevant part as follows with respect to the application of
section 75.1105:

*

*

*

*

*

*

Compressor stations, shops, and permanent pumps are
required to be enclosed in structures with the sides,
roof, and floor composed of incombustible material.
Where such structures are built, the naturally
incombustible surface of the roof, rib, or floor may be
utilized.

*

*

*

*

*

*

*

Battery-charging units enclosed in substantial metal
housings which are used to charge batteries that are
also enclosed in substantial metal housings and remain
on the machine during the charging operation may be
considered to be in a fireproof structure and require
no further fireproofing.

*

*

*

*

*

*

*

The battery(ies), battery charger(s), and the batterycharging station should be kept free of extraneous
combustible materials, such as paper, liquids, grease,
oil,
wood, loose coal, or coal dust •
.;
The term "fireproof" is not defined in MSHA's regulations.
Although section 75.1105, states that battery charging stations
shall be housed in fireproof structures or areas, such stations
are not included in the policy application requiring compressor
stations, shops, and permanent pumps to be enclosed in structures
with the sides, roof, and floor composed of inqombustible
material. The policy does not explain any distinctions, if any,
between a "structure" and an "area", and it only requires that
extraneous combustible wood materials be kept free of the
station.
The evidence establishes that the battery-charging station,
an area approximately 16 feet wide and forty feet long, was
adequately ventilated and that the air was being coursed into the
return as required by the standard. The evidence also
establishes that the corrugated metal walls and concrete stopping

1444
.\

.

used as part of the station were constructed of fireproof
materials and that the station was well rock-dusted.
It has also
been established that the roof of the station, which was
approximately 5 1/2 feet high, consisted of incombustible rock,
that the coal ribs were 6 to 8 inches behind the metal walls, and
that the areas between the tops of the 4 x 4 wooden timbers which
supported the metal walls enclosing the station consisted of
incombustible draw rock that extended 10 to 12 inches down from
the roof and around the area (Tr. 17, 18, 28}.
The parties do not dispute the fact that the corrugated
metal material which formed the two walls in the area housing the
battery charging station was incombustible. Nor do they dispute
the fact that the concrete block stopping, the roof composed of
draw rock, and draw rock which extended down from the roof and
along the top of the ribs, and the well rock-dusted floor, were
all incombustible. Indeed, the inspector himself conceded that
all of these materials ·used as part of the construction of the
area housing the station did not cau$e any problems and he
considered them to be fireproof.
The inspector believed that the term "housed" as used in the
standard means that the battery charging station should be inside
a fireproof structure or area (Tr. 24}. In his opinion, a
"fireproof" structure or area is one that has no combustible
exposed material as part of its construction (Tr. 30}. His
conclusion that the cited station was inadequately housed in a
fireproof structure or area was based on the fact that the tops
of four or five timbers which served to support the metal walls
were not completely covered by the corrugated metal material for
distances ranging from 2 to 10 inches. The inspector believed
that these exposed wooden combustible areas rendered the station
less than fireproof and unacceptable and inadequate as a
fireproof area or structure {Tr. 27-28}.
In Clinchfield Coal Company 4 FMSHRC 465 {March 1982),
Commission Judge Gary Melick affirmed a violation of
section 75.1105, after finding that a battery charger located
seven feet from combustible coal ribs, with no fireproof
separation between the charger ·and the ribs, was not housed
within a fireproof structure or area. Judge Melick rejected the
operator's contention that the absence of fireproof housing
around portions of the station was necessary to allow for the
ventilation required by the second part of the standard, and he
took note of the operator's admission that the station was not
completely housed in a fireproof structure or area. However, he
tacitly approved of the following interpretation of the standard
as advanced by the mine operator {4 FMSHRC 467):
The proper interpretation of this mandatory standard
insofar as it states the charging station be housed in
a fireproof area must be that the battery-charging

1445

station must be so ~ oused as to prevent the spread of
fire to combustible materials while, · at the same time,
allowing proper and necessary ventilation to carry away
any and all gases and fumes which could contribute to
an ignition and fire and all fumes and smoke that would
result from an ignition or a fire.
During the course of the hearing, respondent ' s counsel
complained that he only learned "the past week or so" prior to
the hearing that the inspector had a problem with exposed timbers
in the battery charging station . Counsel pointed out that the
citation makes no mention of any exposed timbers and simply
states that the station was not adequately housed in a fireproof
structure. Counsel believed that it was inconceivable and
incredible that any fire or flame in the direction of the air
being forced through the return "is going to allow those flames
to leap six feet in the air and catch a four-inch timber that is
exposed perhaps as little as one-half inch" (Tr. 45) .
Although I agree that the citation simply states a
conclusion that the charging station was inadequately housed, and
provides no description of the actual hazardous conditions
(exposed combustible wooden timbers) , I cannot conclude that the
respondent has been prejudiced. I take note of the fact that the
parties engaged in pre-trial discovery, and although the
petitioner advised the respondent that the inspector would
testify" about the conditions which gave rise" to the issuance of
the citation, and furnished the respondent a copy of the
inspector's notes, no further follow-up was apparently taken by
the respondent . Further, the respondent had an opportunity to
provide a management representative to accompany the inspector at
the time of the inspection, but apparently opted not to do so
(Tr. 46- 27). Finally , the citation was timely abated, and the
inspector testified and was cross- examined rather thoroughly by
the respondent's counsel. Under all of these circumstances, I
cannot conclude that the respondent has been prejudiced by the
unartfully written citation . To the contrary, I conclude and
find that the respondent has had a full and fair opportunity to
defend itself.
In response to a pre-trial interrogatory as to why it
believed that it did not violate 30 C.F.R . § 75.1105 , the
respondent stated as follows:
The cited battery- charging station was housed in a
fireproof area consisting of metal and incombustible
rock.
The roof, mine floor, and the upper ·portion
(21"-22") of both ribs consisted of incombustible rock.
The sheet metal protecting the ribs extended above the
coal seam. Along one rib the metal extended to within
1-1/2"-10- 1/2" of the roof. The metal extended to

1446

1/2"-6-3/4 of the roof along the other rib. The metal
is 30-gauge corrugated galvanized tin sheet. The MSHA
Program Policy Manual recognizes that the naturally
incombustible surface of the roof, rib, and floor may
be utilized as part of the fireproof structure.
In its posthearing bri~f, respondent relies on the following
definitions of "fireproof" and "fireproofing":
Fireproof is defined as:
Proof against fire; relatively incombustible. The
general meaning of fireproof, as applied to a
residence, a modern office building, an ordinary safe,
and a bank vault, includes varying degrees of immunity
from fire. Since even buildings and commodities
constructed of incombustible material will be damaged
by a fire of sufficient intensity, fire-prevention
engineers prefer the term i'fire resisting" to
"fireproof" as being more accurately descriptive. In
technical usage, "fireproof" designates buildings in
which all parts that carry weights or resist stresses,
and all exterior and interior walls, stairways, etc.,
are made of incombustible materials, and in which
structural members of materials such as steel or iron,
which are injuriously affected by heat, are protected
effectively by other materials not so affected.
Degrees of fire resistance, in decreasing order, are
designated by "fire-resistive", "fire retardant", and
"flameproof" .
Webster's New International Dictionary, 2d Edition
Unabridged, 1946.
4.

Fireproofing means:
Method of making normally combustible
materials as nearly non-combustible aa
possible. In most cases, it is possible only
to treat them with a solution or coating of
some substance that will tend to retard their
ignition ••• Wood construction can resist
fire for a long time if the timbers are much
heavier than necessary for structural
strength. Fire will burn very slowly inward
from the surface, leaving enough sound timber
in the center to prevent collapse.
The New Columbia Encyclopedia, 1975.

The respondent takes the position that "fireproof" does not
denote absolute protection against fire, but rather, indicates a
resistance to burning. Respondent maintains that the cited

1447

charging station provided a high degree of resistance to fire and
that in view of the size and location of the charger, the
surrounding structure, and the air coursing into the return, it
was extremely unlikely that a fire could reach and ignite the
timbers at the roofline. Respondent further argues that it is
illogical to claim that the exposed timbers destroyed the
fireproof nature o the structure when a fire could spread into
the intersection or through the regulator in the stopping and
into the return.
In support of the citation, the petitioner cites Clinchfield
Coal Company, supra, and argues that just as in that case, there
was no fireproof separation between the battery charging station
cited by the inspector in the instant case and the exposed
combustible timbers and coal ribs. Under the circumstances,
petitioner concludes that the cited station was not housed within
a fireproof structure or area.
Contrary to the respondent's assertion that the four-inch
timber was "exposed perhaps a little as one-half inch", (Tr. 45),
the unrebutted and credible testimony of the inspector reflects
that on either side of the two walls there were approximately
four or five timbers with exposed and unprotected face areas
ranging from one to 12 inches which were not covered by the metal
material which was otherwise fastened to the timbers (Tr. 17,
31). While it is true that the areas between the timbers
consisted of incombustible draw rock which extended 10 to
12 inches down from the roof, the fact remains that the wooden
timbers which provided the framework for the two corrugated metal
walls were combustible, and the inspector was concerned that if a
fire were to occur the unprotected timbers could be ignited and
burn, resulting in a collapse of the walls and the exposure of
the coal ribs which were located approximately 6 to 8 inches
behind the wooden framed walls.
While it is true that except for the exposed and unprotected
wooden combustible timber areas in question, the rest of the
station area was well rock dusted, adequately ventilated, and
constructed of incombustible materials, given the dynamics of
mining on a day-to-day basis, there is no assurance that a fire
will never occur or that the air ventilating a battery charging
station will never be interrupted and will always be adequate and
coursed through the return. In the event of such adverse
occurrences, one cannot predict the results of any fire which may
occur within the confines of the station, particularly in the
presence of exposed and unprotected combustible wooden timbers.
I cannot conclude that the inspector's belief that a
fireproof battery charging station area or structure pursuant to
section 75.1105, is one that has no exposed combustible exposed
material as part of its construction is unreasonable, and I agree
with the inspector. Further, although the language found in

1448

section 75.1105, does not include the words "adequate" or
"inadequate", I cannot conclude that the inspector's finding that
the exposed combustible wooden timber areas rendered the station
inadequate for purposes of the application of the regulation was
unreasonable or erroneous.
The regulatory requirement found in section 75.1105, is
straight forward--it requires that. battery charging stations be
housed in fireproof structures or areas. I conclude and find
that All materials used in the construction of a structure or
area to house (locate) a battery charging station must be
incombustible or fireproof, and that once constructed, the
station must be completely maintained in fireproof condition. On
the facts of this case, the station in question was rendered less
than fireproof when the metal material used in the construction
of the walls was not extended fully to the top of several of the
wooden combustible support timbers, leaving the upper portions of
the timbers exposed and unprotected. In these circumstances, I
conclude and find that a violation of section 75.1105, has been
established, and the contested citatlon IS AFFIRMED.
size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
I conclude and find that the respondent is a large mine
operator, and it has stipulated that the proposed civil penalty
assessment will not adversely affect its ability to continue in
business.
History
A summary of the respondent's violation history for the
period of May 2, 1988 through May 1, 1990, reflects that the
respondent paid $63,795, in penalty assessments for 488
violations issued at the subject mine · (Exhibit P-1). A computer
print-out itemizing the violations reflects that 161 of them were
"single-penalty" (non-"S&S") violations . Twenty (20) of the
prior violations are for violations of section 75.1105, five (5)
of which were issued as "non-S&S" section 104(a) citations.
Taking into account the size of the respondent's mining
operations, and absent any additional evidence to the contrary, I
cannot conclude that the respondent's history of prior
violations warrants any additional increase in the civ il penalty
assessment which I have made for t he violation.
Good Faith Compliance
The parties stipulated that the respondent timely abated the
violation, and I have taken this into consideration.

1449

Gravity
Based on the inspector's testimony and his finding that the
violative conditions were not significant and substantial, I
conclude and find that the violation was non-serious.
Negligence
I agree with the inspector's "low negligence" finding, and I
have taken this into consideration.

Civil Penalty Assessment
On the basis of the foregoing findings and conclusions, and
taking into account the six statutory civil penalty assessment
criteria found in section llO(i) of the Act, I conclude and find
that the proposed civil penalty of $91 is reasonable and
appropriate, and it is affirmed.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment
of $91 for the violation which has been affirmed within thirty
(30) days of the date of this decision and order.
Payment is to
be made to MSHA, and upon receipt of payment, this mater is
dismissed.

~"~
Ad;i~?;t~ative Law Judqe

Distribution:
Javier I. Romanach, Esq., Ottice ot the Solicitor, u.s.
Department ot Labor, 4015 Wilson Boulevard, Room 516, Arlinqton,
VA 22203 (Certitied Mail)
Billy M. Tennant, Esq., 600 Grant street, Room 1580, Pittsburqh,
PA 15219-4776 (Certitied Mail)
Mary Lu Jordan, Esq., United Mine Workers of America (UMWA),
900 15th street, N.w., Washinqton, DC 20005 (Certified Mail)
jml

1450

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

SEP 1 6 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

:

CIVIL PENALTY PROCEEDING
Docket No. WEVA 90-225
A.C. No. 46-01816-03745

v.
Gary No. 50 Mine
U.S. STEEL MINING COMPANY,
INC.,
Respondent
and
UNITED MINE WORKERS OF
AMERICA (UMWA),
Intervenor
DECISION
Appearances:

Javier I. Romanach, Esq., Office of the Solicitor,
u.s. Department of Labor, Arlington, Virginia, for
the Petitioner;
Billy M. Tennant, Esq., u.s. Steel Mining Company,
Inc., Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil
penalty filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking a civil penalty assessment of
$157 for an alleged violation of mandatory safety standard
30 C.F . R. § 75.511. The respondent filed an answer contesting
the alleged violation and a hearing was held in Beckley, West
Virginia. The UMWA failed to appear. The parties filed
posthearing briefs, and I have considered their arguments in the
course of my adjudication of this matter.
Issues
The issues presented in this proceeding are (1) whether the
respondent has violated the cited standard as alleged in the
proposal for assessment of civil penalty, (2) whether the
violation was "significant and substantial," and (3) the
1 4 51

appropriate civil penalty that should be assessed based on the
criteria found in section 110(i) of the Act. Additional issues
raised by the parties are identified and disposed of in the
course of this decision.
Applicable Statutory and Regul atory Provisions
1.

The Federal Min e Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq .

2.

Section 110(i) of the 1977 Act, 30 u.s.c.
§ 820(i) .

3.

30 C.F . R. § 75.511 and § 75 . 153.

4.

Commission Rules , 20 C. F.R . § 2700.1 et seq .
Stipulations

The parties stipulated in relevant part as follows (Exhibit
ALJ-1):
1.

The presiding judge has jurisdiction to hear
and decide this matter.

2.

The inspector who issued the contested
citation was acting in his official capacity
as a Federal coal mine inspector.

3.

The citation was properly issued to the respondent ' s
agents.

4.

The cited conditions were timely abated.

5.

Payment of the proposed civil penalty
assessment of $157 will not adversely affect
the respondent's ability to continue in
business.
Discussion

The contested section 104(a) " S&S " Citation No . 3237405,
issued by MSHA Inspector Gerald L. Smith on May 9 , 1990, cites an
alleged violation of mandatory safety standard 30 C.F.R. 75.511,
and the cited condition or practice is describeq as follows:
It was revealed during a 103(g) (1), Step 3 grievance
held on 5-9-90 that electrical work was being performed
on 5-2-90 in the Sulfer Branch section when repair was
made on a damaged permanent type. splice in a 300 u.o . c.

1452

trailing cable by a nonqualified person or under the
supervision of a qualified person.
Petitioner's Testimony and Evidence
Edward Ray Lewis, a shuttle car operator, testified that on
May 2, 1990, he found "a split in the boot on the shuttle car
cable," and reported it to his section foreman Harry Brooks.
Mr. Brooks instructed him to "lock it out and get some tape and
tape it." Mr. Lewis confirmed that he locked out the machine,
obtained some black electrical tape "and wrapped it three or four
coats and covered the split real good as best I could on the
cable and boot." Mr. Lewis confirmed that he is not a certified
electrician, that Mr. Brooks is not a certified electrician, and
that there was no certified electrician on the section at the
time in question. Mr. Lewis stated that he was not qualified to
know whether the cable was repaired properly (Tr. 62-64).
On cross-examination, Mr. Lewis stated that he has worked as
a shuttle car operator for approximately 5 1/2 years. He
confirmed that during this period of time he has found "nicks" on
shuttle car cables, and that he always reported it to ·his foreman
or directly to the mechanic. Mr. Lewis denied that he had ever
taped such cable nicks in the past, or that any other foreman h a d
ever asked him to do so. He admitted that he has helped a
mechanic tape such a cable "plenty of times," and that he did the
actual taping in the presence of the mechanic or a certified
person (Tr. 64-65).
Mr. Lewis stated that on the day in question, he saw no
exposed cable wires and that the "split in the boot" was
approximately 2 1/2 inches deep and long, and 1/2 inch wide. He
explained that the "split" was in the boot of the permanent cable
splice. He confirmed that the condition was "just a nick in the
outer boot", and that he taped it as instructed by Mr. Brooks
(Tr. 66).
Mr. Lewis further explained his prior taping of cables and
he indicated that he has helped a mechanic tape a splice after
the mechanic or certified electrician made the splice. He
confirmed that he has also taped cables in the past with a
mechanic either helping him or watching him, and he stated
further as follows at (Tr. 69):

Q.

A.

When we are just taping a nick, not making a
splice, just taping a nick, what part does
the mechanic play in that? What does he do
while you are taping the nick in the cable?
He usually does -- he's standing there.

1453

Q.
A.

Just standing there. He does not really have
to do anything; he is just there.
Yes, sir.

Mr. Lewis stated that he did not object to the taping
assignment by Mr. Brooks and he did not tell Mr. Brooks .that he
was not qualified to do the work. Mr. Lewis stated that it took
him approximately 5 minutes to lock out the machine, obtain the
tape, and tape the cable. He confirmed that he informed a safety
committee member about the matter. Mr. Lewis did not believe
that it was unsafe to do the work, and he did not believe that he
was placing himself at risk because the power was off the
machine. He also believed that it would have been unsafe to
leave the cable nick "like that" (Tr. 72).
MSHA Electrical Inspector Gerald L. Smith confirmed that he
issued the contested citation on May 9, 1990, and that he did so
on the basis of information which he received in the course of a
section 103(g) (1) Step 3 grievance proceeding at the mine. Based
on the evidence from individuals involved in the grievance, a
determination was made that electrical work had been performed by
a person who was not a certified or qualified electrician or
under the direct supervision· of a certified or qualified person
(Tr. 76-79) .
Mr. Smith stated that Mr. Lewis testified at the grievance
proceeding that he observed a damaged place in a permanent splice
on the cable of the shuttle car which he had operated and that
Mr. Brooks gave him a lock and told him to repair the damaged
place in the splice by taping it. As a result of this
information, Mr. Smith issued the citation and he did so because
he believed the work performed by Mr. Lewis was electrical work
and Mr. Lewis was not a certified electrician and did not perform
the work under the direct supervision of a certified person
(Tr. 79).
Mr. Smith stated that he considered the taping of the cable
by Mr. Lewis to be electrical work and repair to the cable, even
though the cable was not energized. Mr. Smith considered the
citation to be significant and substantial because Mr. Lewis was
not a qualified electrician and he could not determine whether he
repaired the cable properly so that it would not fail or cause
problems in the future. The insulated conductors inside the
cable would need to be checked to determine whether there was any
damage caused by the nick, and if the repairs are not properly
made future dampness could cause an arc inside the cable and
result in a blown cable. Although Mr. Lewis wa.s not MSHAcertified, Mr. Smith had no knowledge of his qualifications to
repair the cable, and Mr. Lewis stated that he had no previous
training (Tr. 81).

1454

Mr. Smith stated that it was reasonably likely that
"something could occur if the splice hadn't been properly
repaired." He also stated that "taping the splice is not
acceptable anyway" (Tr. 82). Mr. Smith did not believe that the
splice was properly repaired because permanent splicing is
covered by section 75.604. However, Mr. Smith confirmed that
Mr. Lewis was not making a splice and that "all he did was just
tape over top of a splice, which we don't accept anyway"
(Tr. 83).
Mr. Smith believed that shock injuries could occur if
someone were to handle a cable under wet conditions at the point
where it is damaged. Mr. Smith did not know how many people were
in the area on May 2, 1990, when Mr. Lewis repaired the cable,
and he had no knowledge of the actual condition of the cable.
Mr. Smith also did not know whether or not the mine safety
committee pursued the issue of the condition of the cable, and he
believed that the committee was . only concerned about whether or
not Mr. Lewis was a qualified person to do the work in question
(Tr. 84-85) •
On cross-examination, Mr. Smith confirmed tha~ he never saw
the cable and did not inspect it. He stated that the citation
was issued a week after Mr. Lewis performed the work on May 2,
and that he did not issue a citation for a violation of
section 75.604, because the complaint concerned electrical work
being performed by a noncertified person and not the type or
quality of the work being performed. He believed that the taping
of the cable would have been a violation of section 75.604
(Tr. 87) •
Mr . Smith stated that a nick in the cable may be taped, but
if the splice is nicked it may not be taped and a new splice must
be made (Tr. 89). He further indicated that if there were a nick
in the outer insulation of the cable, the fact that Mr. Lewis
taped it would not be a violation of section 75.604. Mr. Smith
explained the requirements of sections 75.517 and 75.604
(Tr. 90-94) •
Mr. Smith stated that he would consider the taping of a nick
on any portion of the cable to be electrical work, and that
MSHA's policy prohibits an unqualified person from applying tape
to a cable or to a splice. He believed that an unqualified
person may not apply tape anywhere along the length of a trailing
cable (Tr. 95). He considered this to be "electrical work" for
the following reason (Tr. 95):
Q.

Why do you consider that electrical work?

A.

Because it's an electrical component of that
piece of equipment, and it's the portion of
that equipment that furnishes power to

1455

operate that equipment . If you use
electrical tape and take the regular steps
pertaining to 511 which says that it should
be locked and tagged out, if you do all that,
so you must consider it electrical work or
why would you lock and tag it out if it's not
electrical work.
Mr. Smith explained the reasons for locking out the
equipment, and he described the cable and cable splice in
question (Tr. 96-98). He stated that if he were repairing a
cable splice he would visually examine the inner conductors to be
certain that they were not split or would allow moisture to get
in . He confirmed that the cable is protected, and if it blows,
the system will deenergize (Tr. 99-100).
Referring to MSHA's policy guidelines with respect to the
application of section 75.511 (Exhibit P-5), Mr. Smith stated
that the work performed by Mr. Lewis would "maybe" fall under
Example No. 5 at page 59, "repair of electrical components of
electrically-powered portable, mobile or stationary equipment" or
Example No. 7, "electrical maintenance of permissible equipment"
(Tr. 102). He agreed that the policy examples concerning what is
considered to be "electrical work" and what is not are not clear
cut, and he stated "I don't agree with a lot of them" (Tr . 104).
In response to further questions, Mr. Smith stated that the
citation was issued after he participated in the contractual
union-management grievance concerning the union's complaint that
an unqualified person {Lewis) was required to do electrical work.
Mr. Smith further stated that he made the determination that
electrical work was performed and that a violation existed, and
that the determination was in the form of the citation which he
issued {Tr. 106-108). He confirmed that his "determination"
consisted of the citation and abatement, and although notes were
taken during the grievance, the information supplied by witnesses
was not tape-recorded and no transcript of the grievance was made
{Tr. 113). Mr. Smith stated that his determination that
Mr. Lewis was not "qualified" was based on Mr. Lewis' statement
to that effect which he made the day following the grievance
{Tr. 114) .
Respondent's Safety Manager Chris Pres ley confirmed that
state mine inspectors were also called to hear the grievance and
they too issued a citation after concluding that the work
performed by Mr. Lewis was "electrical work . " Respondent's
counsel stated that the respondent contested that state finding,
which was in the form of a citation, and that a hearing has been
held, but no decision has been rendered (Tr. 108-111).

1456

Respondent's Testimony and Evidence
Jeffrey Husic, mine maintenance manager, testified as to his
duties as a maintenance foreman for 12 years, and he confirmed
that he has been a West Virginia certified electrician for 12
years. He confirmed that he is an MSHA "qualified person"
pursuant to section 75.153 (Tr. 114-116).
Mr. Music was of the opinion that once a cable splice is
made permanent, it becomes an integral part of the cable because
it is permanent and nothing further is required to be done. If
the splice is damaged, it is treated no different than other part
of the cable. If the damage is great, the splice is remade. If
the damage is superficial, such as the outer jacket, it is simply
taped and sealed in the same manner as a regular piece of cable
(Tr. 117).
Mr. Music stated that a nick in an unspliced portion of a
trailing cable, where there are no exposed wires, is simply
repaired by applying tape to the jack~t. Similar damage to a
permanent splice is repaired in the same manner. Splice kits are
not used unless a permanent splice is being made. Cable nicks,
where no conductors are exposed, are taped in order to keep the
condition from becoming worse, to keep water out, and to prevent
"nuisance tripping" of the breakers {Tr. 118).
Referring to the West Virginia State Administrative Mining
Regulations (Exhibit R-2), itemizing examples of what is
considered to be electrical work, and what is not, Mr. Music
stated that this information is used as part of the mine
training. He confirmed that as a qualified electrician, he is
obligated to follow these guidelines. He pointed out that item
No. 13, at page 2, states that a noncertified electrician may
perform work taping or reinsulating cables if no conductors or
bare wires are showing. In his opinion, Mr. Lewis was not asked
to perform electrical work because he was not making a splice,
and there were no exposed conductors or leaks (Tr. 119-120).
On cross-examination, Mr. Music stated that he was not at
the Mine on May 2, 1990, and he agreed that all electrical work
should be performed by a qualified person or under the direct
supervision of a qualified person. In his opinion, a nick in a
cable splice may be taped by a certified or noncertified person
(Tr. 121). He believed that an outer cable jacket provides
mechanical protection for the conductors inside the cable, and
"in one sense of the word it would be a type of mechanical work"
(Tr. 122).
Arguments by the Parties
During oral arguments in the course of the hearing,
petitioner's counsel asserted that pursuant to MSHA's policy, the
work performed by Mr. Lewis when he locked out the equipment and

1457

taped the nick in the shuttle car trailing cable, was electrical
work "within the meaning of section 75.511. Counsel stated that
the taping of the cable by Mr. Lewis constituted a "repair," and
that the locking out of any electrical equipment is required to
be done by a qualified person or under the supervision of a
qualified person. Counsel confirmed that the terms "qualified"
and "certified" are used interchangeably. He took the position
that Mr . Lewis and Mr. Brooks should have waited for an
electrician to check out and repair the cable, and that simply
because the cable was taped did not render it safe. Counsel
concluded that due to the hazards presented by an unqualified
persons repairing a trailing cable, the violation was significant
and substantial (Tr. 52-54; 73-74). Counsel took the position
that the intent of the cited standard is to insure that all
electrical work is done by a qualified person, or under the
supervision of a qualified person, so as to preclude any future
problems. He concluded that on the facts of this case, Mr. Lewis
was not only not qualified to do the work in question, but he was
also not qualified to determine whether the cable was repaired
properly.
In its posthearing brief, the petitioner asserts that the
respondent may not rely on the less stringent state standard that
allows a non-qualified person to tape cables where there are no
visible conductors or bare wires, and that MSHA's mandatory
standard is controlling. Petitioner also reiterates its argument
that an unqualified person would not be able to properly repair a
cable or to properly inspect it to ascertain the extent of any
damage to the insulated conductors.
Petitioner concludes that the hazards involved in having
unqualified persons working on or repairing trailing cables is
well-documented, citing Karst Robins Coal Company, Inc.,
10 FMSHRC 1708 (December 1988), where an unqualified miner was
shocked and burned while working on a 480 volt trailing cable.
However, I take note of the fact that in Karst Robins even though
the miner's supervisor who assigned him the electrical repair
work was the chief electrical supervisor and maintenance foreman,
the roof bolter cable which caused the injury had not been
deenergized and locked out or tagged at the power center. In the
instant case, the trailing cable which was taped by Mr. Lewis was
locked out and the shuttle car was deenergized.
citin9 u.s. Steel Mining Company, Inc., 5 FMSHRC 1752
(October 1983), where Judge Broderick affirmed a violation of
section 75.511, after concluding that an unqualified shuttle car
operator who changed a light bulb in a shuttle .car performed
electrical work, the petitioner concludes that even though
putting a piece of tape on a nick in a permanent splice in a
trailing cable seems rather elementary so that no certification
is required, it is still electrical work which only certified
persons should perform. However, I also take note that in the

1458

case cited, the unqualified miner failed to lock out and tag the
disconnecting device when he did the work, and that 'the changing
o~ the light bulb required the removal of the lens and the
insertion of the bulb having two prongs into a socket having two
holes.
Respondent's counsel asserted that at no time prior to the
hearing was he informed that the locking out of the equipment by
Mr. Lewis was considered a violation, and he pointed out that the
citation makes no reference to any "locking out" {Tr. 54-56).
With regard to the alleged "electrical work" performed by
Mr. Lewis, counsel asserted that there were no exposed wires or
conductors in the cable, and that "all Mr. Lewis did that day was
tape a cut in the outer insulation of a splice in a trailing
cable of a shuttle car," and that he was "simply dealing with a
nick in the neighborhood of 1 1/2 by 3 inches cut in the outer
surface of the cable" {Tr. 56). Counsel concluded that this was
not electrical work within the meaning of section 75.511.
Respondent's counsel further pointed out that the term
"electrical work" is not defined in MSHA's Safety Regulations,
but that it is addressed in MSHA's Program Policy Manual
{Exhibit P-5). Counsel asserted that Mr. Lewis was not making a
cable splice, which is one of the policy examples · cited as
"electrical work". Referring to the policy examples of work
which is not required to be performed by a qualified person,
counsel argued that "if handling an energized trailing cable is
not electrical work, then merely applying tape to a de-energized
trailing cable can hardly be considered to be electrical work"
{Tr. 57). Counsel cited Example No. 10 -"mechanical repairs on
electrically powered equipment, provided no energized parts or
conductors are exposed"- as work similar to what Mr. Lewis was
doing. Counsel argued that Mr. Lewis "was not doing anything
electrical. He was simply physically applying tape to a cut in
an outer insulation" {Tr. 58).
Respondent's counsel produced a copy of the rules and
regulations of the State of West Virginia with respect to the
certification of mine electricians, and he pointed out that many
of the examples as to the type of work which does and does not
qualify as "electrical work" are similar or identical to MSHA's
policy guidelines. We also pointed out that the state qualifies
the respondent's mine electricians and that they are duly
recognized as such by MSHA. One of the examples of nonelectrical
work which does not require a qualified person to perform states
"Reinsulate or tape cables when there are no conductors or bare
wires showing" {Exhibit R-2, No. {13), pg. 2; Tr. 58). Counsel
took the position that the work performed by Mr. Lewis "is simply
not electrical work under the State of West Virginia. Anybody
can do it" {Tr. 127) .

1459

In its posthearing brief, the respondent asserts that in
view of the requirements of sections 75.514 and 75.604, a
permanent splice provides at least the same degree of protection
to the electrical conductors within the cable as does the outer
insulation along the remainder of the cable. Respondent concedes
that if conductors or bare wires are exposed, a permanent splice
must be made by a qualiied peson to complete the electrical
repair. However, the respondent maintains that where cable
damage consists of a nick that does not expose conductors or bare
wires, the application of tape by a competent person is an
·
adequate mechanical repair because no electrical components of
the cable are damaged, and there is no basis for concluding that
damage to a cable permanent splice must be repaired any
differently than the same degree of damage to the remainder of
the cable.
Findings and conclusions
The respondent is charged with an alleged violation of
mandatory safety standard 30 C.F.R. § 75 . 511, which provides as
follows:
No electrical work shall be performed on low-, mediumor high-voltage distribution circuits or equipment,
except by a qualified person or by a person trained to
perform electrical work and to maintain electrical
equipment under the direct supervision of a qualified
person.
Disconnecting devices shall be locked out and
suitably tagged by the persons who perform such work,
except that in cases where locking is not possible,
such devices shall be opened and suitably tagged by
such persons. Locks or tags shall be removed only by
the persons who installed them or, if such persons are
unavailable, by persons authorized by the operator or
his agent.
(emphasis added)
An individual is deemed to be a "qualified person" to
perform electrical work within the meaning of section 75.511, if
he or she meets the requirements stated in 30 C.F.R. § 75.153.
The petitioner's counsel confirmed that the terms "certified" and
"qualified" are used interchangeably.
The respondent was cited for a violation of section 75.511
after the inspector received information that ·shuttle car
operator Edward Lewis had locked out the machine and taped over a
split or "nick" which he found on the boot of a permanent splice
in the shuttle car cable. Mr. Lewis had reported the cable
condition to his section foreman Harry Brooks, ~nd Mr. Brooks
instructed him to lock out the machine and tape the nick in the
cable. Mr. Lewis did so, and the job took approximately
5 minutes.

1460

The parties agreed that Mr. Lewis ·and Mr. Brooks were not
"qualified persons" pursuant to section 75.153 {Tr. 58-59). When
the UMWA Union learned that Mr. Brooks had instructed Mr. Lewis
to perform a job task which it believed constituted electrical
work, it filed a safety grievance pursuant to section 103(g) of
the Act. Based on the information received in the course of that
grievance, the inspector concluded that the work performed by
Mr. Lewis (locking out the machine and taping the nick in the
cable) was electrical work, and sirice Mr. Lewis was not qualified
to do the work pursuant to section 75.153, and since Mr. Brooks
was not qualified to supervise the work, the inspector issued the
citation.
The parties agreed that there were no exposed wires or
conductors in the cable at the time Mr. Lewis taped over the nick
in the splice boot, and there is no evidence concerning the
overall condition of the cable, or the quality of the taping job
performed by Mr. Lewis other than his statement that he "wrapped
it real good." The inspector believed, but was not sure, that
the splice was subsequently removed fFom the cable during the
same shift. Respondent's Safety Manager Presley indicated that
the splice was removed so that mine management could use it at
any hearing, but that it was later disposed of {Tr. 127-128).
The term "electrical work" is not defined in MSHA's
regulations or in its most recently published July 1, 1988,
Program Policy Manual (Exhibit P-5). However, the West Virginia
state Mining Regulations establishing standards for certification
of persons performing electrical work in coal mines contain the
following definition (Exhibit R-2):
Section 48-7-2. Definitions.
2.1 Electrical work- The term "electrical work" shall
mean work consisting primarily of electrical
construction, installation, testing, inspection,
maintenance and repair tasks on electrical coal mining
equipment, apparatus, circuits, and/or distribution
circuits used in or around a coal mine.
MSHA's Program Policy Manual states that for the purpose of
section 75.511, "electrical work is considered to be the work
required to install or maintain electric equipment or conductors"
(Exhibit P-5, pg. 58). Included among the examples of work
required to be performed by a qualified person are "3. Making
splices, connections and terminations in electric conductors and
cables," and "7. Electrical maintenance of permissible
equipment." Included among the examples of work that is not
required to be performed by a qualified person is 11 10. mechanical
repairs on electrically-powered equipment, provided no energized
parts or conductors are exposed."

1461

The state regulations also contain examples of what is, and
what is not, considered to be work required to be performed by a
certified electrician. Included among the examples of work that
is not required to be performed by a certified electrician is the
identical provision found in MSHA's policy manual (Item #10
quoted above), and the following: " (13) Reinsulate or tape
cables when there are no conductors or bare wires showing".
The violation notice issued by Inspector Smith describes the
"electrical work" in question as a "repair made on a permanent
type splice" in the trailing cable. However, the evidence
reflects that Mr. Lewis did not make or repair a splice. He
simply taped over a nick or split in the boot of the permanent
splice, and other than a roll of electrical tape, he used no
tools or other equipment. There were no exposed wires or
conductors, and Mr. Lewis covered the nick with three or four
wraps of tape, and it took him 5 minutes to lock out the machine,
obtain the tape, and tape the cable. MSHA's policy does not
prohibit the taping of a cable by a non-certified person when
there are no conductors or bare wires showing.
Although it is true that Mr. Lewis was not a qualified
person for purposes of electrical work, he admitted that he had
often either taped cables in the presence of a mechanic or a
certified person or assisted a mechanic in the taping of cables.
He also admitted to the taping of cable splices after they were
made by a mechanic or certified electrician. In the instant
case, Mr. Lewis did not advise Foreman Brooks that he was not a
qualified person, nor did he object to doing the work. Further,
Mr. Lewis did not believe that he was at risk by doing the job,
particularly since the machine was deenergized and locked out.
Indeed, Mr. Lewis believed that it would have been unsafe to
leave the cable nick in the condition which he found it.
The inspector stated that taping over a splice is not
acceptable, and he was concerned that a nonqualified person such
as Mr. Lewis was not competent to determine whether or not a
cable splice was properly repaired to preclude future failure or
other problems. The inspector stated that the taping of a splice
is unacceptable and he believed that the splice was not properly
repaired by Mr. Lewis as required by Section 75.604, and that the
taping was a violation of that section. However, the inspector
admitted that Mr. Lewis was not making a splice, and there is no
evidence to indicate that simply taping a nick in a cable
constitutes the making or repairing of a splice within the
meaning of Section 75.603, which defines a temporary splice as
"the mechanical joining of one or more conductors that have been
severed," or Section 75.604, which covers permanent splices in
trailing cables. Under the circumstances, I cannot conclude that
the taping of the cable constituted a violation of
Section 75.604, and I take note of the fact that no violations

1462

were issued pursuant to any of the mandatory standards dealing
with trailing cable · splices.
The inspector's belief that Mr. Lewis was performing
"electrical work" when he taped over the nick in the deenergized
and locked-out trailing cable was based on the fact that the
cable was an electrical component of the piece of equipment in
question (shuttle car), and his assumption that Mr. Lewis would
not have locked out and tagged the equipment pursuant to
Section 75.511, unless he performed electrical work.
Section 75.511 requires the locking out and tagging of
disconnecting devices by the qualified or trained person doing
the work.
However, the respondent was not cited for any
violation because Mr. Lewis locked out and deenergized the
equipment.
· I cannot conclude that simply because someone petorms work
involving a piece of electrical equipment or component, such as a
trailing cable, that such work iRaQ facto constitutes electrical
work required to be performed only by a qualified person. MSHA's
policy authorizes repairs to electrical equipment by nonqualified
persons provided no energized parts or conductors are ·exposed.
The guidelines also allow nonqual.ified persons to perform work
handling· energized trailing cables, inserting and removing cable
couplers from receptacles, and transporting cables. It seems to
me that this type of work, which does not require qualified
people to perform it, present potential hazards greater than
simply taping a nick in a trailing cable which has been
deenergized and locked out by the person doing the taping.
I take note of the fact that MSHA's policy examples also
provide that work involving the installation, repair, or guarding
of trolley wires may be done by nonqualified persons. Although
the policy goes on to explain that Section 75.510 requires
training to repair and maintain energized trolley wires, it is
not clear whether training is required to repair or install
trolley wires which are not energized. I also note that pursuant
to the state regulations, the taping or reinsulation of cables
where there are no conductors or bare wires showing is not
required to be performed by a certified electrician, even though
"maintenance and repair tasks on electrical coal mining
equipment" is included in the state definition of "electrical
work."
With respect to the locking out of the equipment and
trailing cable, I am not persuaded that electrical equipment is
only locked out if electrical work is going to be performed. The
inspector conceded that equipment is locked out regardless of any
electrical hazard "if you're working on it," and he agreed that
a person can be physically injured by a shuttle car or "hooked"
by the cable if the machine is inadvertently started (Tr. 96). I
take note of the fact that although Section 75.511 provides for

14 6 3

the locking out and tagging of electrical disconnecting devices
by the qualified person doing the work, if that person is
unavailable, the locks and tags may be removed by a person
"authorized" by the operator to do so. In the instant case,
since his foreman gave Mr. Lewis the lock and instructed him to.
lock out the machine, I assume that Mr. Lewis was "authorized" to
remove the lock.
After careful consideration of all of the evidence and
testimony adduced in this case, including the arguments advanced
by the parties in support of their respective positions, I
conclude and find that the taping of the nick in the deenergized
and locked out trailing cable by Mr. Lewis was more akin to
mechanical work and was not electrical work within the meaning of
the cited seciton 75.511, and that the work was not required ot
be performed by a qualified person pursuant to section 75.153.
Under the circumstances, the contested citation IS VACATED.
ORDER
On the basis of the foregoing findings and conclusions, IT
IS ORDERED THAT:
1.

Section 104(a) "S&S" Citation No. 3237405,
May 9, 199Q, citing an alleged violation of
30 C.F.R. § 75.511 IS VACATED.

2.

The petitioner's proposed civil penalty
assessment for the vacated citation IS DENIED
AND DISMISSED.

h.<~

Administrative Law Judge

Distribution:
Javier I. Romanach, Esq., Office of the Solicitor, u.s.
Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203 (Certified Mail)
Billy M. Tennant, Esq., 600 Grant Street, Room 1580, Pittsburgh,
PA 15219-4776 (Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America (UMWA),
900 15th Street, N.W., Washington, DC 20005 (Certified Mail)
jml

1464

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

SEP 16 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
:
:

v.

Docket No. WEVA 91-73
A.C. No. 46-05868-03541
Pinnacle Prep Plant

UNITED STATES STEEL MINING
COMPANY, INCORPORATED,
Respond~nt

DECISION
Appearances:

Before:

Javier I. Romanach, Esq., Office of the Solicitor,
u.s. Department of Labor, Arlington, Virginia, for
the Petitioner;
Billy M. Tennant, Esq . , u.s. Steel Mining Company,
Inc., Pittsburgh, Pennsylvania, for the Respondent

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil
penalty filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety. and Health Act of
1977, 30 u.s.c. § 820(a), seeking a civil penalty assessment of
$46 for an alleged violation of mandatory safety standard
30 C.F.R . § 77.200. The respondent filed an answer contesting
the alleged violation and a hearing was held in Beckley, West
Virginia. The parties filed posthearing briefs and I have
considered their arguments in the course of my adjudication of
this matter.
Issues
The issues presented in this proceeding are (1) whether the
respondent has violated the safety standard as alleged in the
proposal for assessment of civil penalty (2) whether the
violation was "significant and substantial," and (3) the
appropriate civil penalty that should be assessed based on the
civil penalty criteria found in section 110(i) of the Act.
Additional issues raised by the parties are identified and
disposed of in the course of this decision.

1465

Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of
1977, Pub . L. 95-164, 30 u.s . c. § 801 et seq.

2.

Section 110(i) of the 1977 Act, 30 u.s . c.
§ 820(i).

3.

30 C.F.R.

4.

Commission Rules, 20 C.F.R.

§

77.200.
§

2700.1 et seq.

stipulations
The parties stipulated in relevant part as follows
(Exhibit ALJ-1):
1.

The presiding judge has jurisdiction to hear
and decide this matter.

2.

The inspector who issued the contested
citation was acting in his official capacity
as a Federal coal mine inspector .

3.

The citation was properly issued to the
respondent's agents.

4.

The cited conditions were timely abated.

5.

Payment of the proposed civil penalty
assessment of $46 will not adversely affect
the respondent's ability to continue in
business.

The contested section 104(a) "S&~" Citation No. 2736728,
issued by MSHA Inspector Michael T. Dickerson on September 10,
1990, cites an alleged violation of mandatory safety standard
30 C.F . R. § 77.200, and the cited condition or practice is
described as follows:
The concrete floor at the feed end of (exterior)
thermal dryer bed has deteriorated. Leaks at floor
level are allowing live embers and small amounts of
float coal dust to escape dryer bed area, and allowing
loss of small amounts of fluidizing air current.
Petitioner's Testimony and Evidence
MSHA Inspector Michael T. Dickerson testified that he issued the
contested citation during a regular inspection of the responddent's preparation plant on September 10, 1990. He stated that
during his inspection of the thermal coal dryer he observed hot

1466

coal embers and coal dust coming through t h e "fractured" concrete
floor at the feed end of the dryer bed. He believed that a loss
of drying fluidizing air curr ent could cause coal dust to settle
and become hot and this would pose a hazard of fire or explosion .
He explained that his main concern was over the loss of air
current which could cause coal to settle on the drying bed, and
that any coal in suspension above the drying bed could be
ignited.
Mr . Dickerson stated that dryer explosions were not unusual
events , and he believed t hat it was reasonably likely that a fire
or explosion would occur as a result of the cited conditions,
and that the dryer attendant would be exposed to these hazards .
He confirmed that the violation was the result of "low negligence"
on the part of the respondent because the conditions were difficult
to see . He also confirmed that the violation was abated by
repairing the concrete floor area and welding a split in the
dryer wall. He did not know whether any work was done inside the
refractory (Tr. 133- 139).
On cross- examination, Mr. Dickerson described the thermal
dryer as "six stories high" and he stated that the cited
conditions were located at "floor level". He identified a
drawing of a " Typical Thermal Coal Dryer" (Exhibit P- 6), as
similar to the cited dryer facility in question. He stated that
the deteriorated concrete floor area was exposed to the air but
was not a walkway. He stated that he was in the area for
approximately 30 minutes and observed the floor from approximately 5 to 6 feet away a n d then closer as he approached the area
immediately adjacent to the dryer feed bin. He stated that the
"crumbled concrete" floor condition began a few inches from the
dryer and extended over an area approximately 8 to 10 feet long.
Mr . Dickerson stated that he found no methane hazards
present at the cited area, but he observed hot embers and coal
dust coming from the deteriorated floor. He agreed that it was
not unusual to see deteriorated concrete floor areas around a
thermal coal dryer . He stated that there was a "constant flow"
of embers from the floor and that he could see at least 10 embers
present at any one time . Mr. Dickerson was shown two photographic exhibits (R-1 and R-2} , showing a deteriorating concrete
floor area, but he could not definitely confirm whether they were
the areas which he cited (Tr. 140-144) .
Mr. Dickerson stated that the dryer building was washed down
on a regular basis. He did not observe any accumulations of coal
embers or coal dust, and he did not believe that the presence of
hot embers presented a hazard (Tr. 145). He stated that a small
area where the coal dust was coming through the floor was
" cloudy, and he believed that it was float coal dust in suspension. However , he did not believe that the amount of coal
dust which he observed posed any hazard (Tr. 147) .

1467

Mr. Dickerson stated that he could "feel air" coming through
the floor and that when he lifted a small piece of broken
concrete he felt an air current. He believed that the air
current would blow away any float coal dust, but he was concerned
that the loss of fluidizing air current would allow coal dust to
settle on the dryer bed itself, and if left unattended, it could
cause a fire. He was concerned that the conditions could
deteriorate further, and for these reasons, he believed that the
violation was "significant and substantial" (Tr. 151).
Mr. Dickerson stated that he was told that the dryer wall
was damaged and that a seam had to be sealed to correct the
conditions in question. He confirmed that if the dryer wall were
not damaged and there was no leakage, the deteriorated concrete
would not have caused a problem and the deteriorated concrete
condition was not in and of itself something that was "out of
disrepair" under the cited mandatory standard (Tr. 150) .
Mr. Dickerson confirmed that he was familiar with MSHA's
policy manual (Exhibit P-5), and he stated that section 75.200 of
the manual does not specifically address thermal dryers. He
believed that he cited the appropriate section 77.200, because
the loss of fluidizing air, coal dust, or embers, which is
addressed in section 77.305, requires tight ceiling doors to
prevent these conditions. He explained that "since I was not
addressing a door, I couldn't use that section at all and had to
go to section 77.200" (Tr. 153). He further confirmed that the
deteriorated floor played no part in the violation, and that he
only included the condition of the floor to describe what he
observed. The violation pertained to the loss of hot embers and
coal dust that floated out in the air, and this was caused by the
split in the metal lining of the dryer. The purpose of the floor
area was not to enclose the leakage from the dryer bed. The
metal which split was used for that purpose (Tr. 153).
In response to further questions, Mr. Dickerson stated that
the dryer leak was significant enough to cause loss of air
current, which posed a hazard (Tr. 154). He granted the
respondent two weeks to abate the conditions because he knew that
any abatement work would involve the damaged dryer wall.
Although he indicated that the deteriorated floor would affect
the air current and any potential hazard, he also stated that the
deteriorated floor did not contribute to the hazard and that it
was "just a tattle tale sign" (Tr. 155).
Mr. Dickerson stated that he was concerned with the loss of
fluidizing air current inside the dryer. He explained that the
fluidizing air current moves the coal across the dryer bed inside
the dryer and that the deteriorated concrete floor area was the
location where the dryer was leaking (Tr. 157). If the floor had
not deteriorated he would not have been . able to see the escaping

1468

fluidized .air current, and the concrete floor would not have
allowed the air to escape (Tr. 159) .
Mr. Dickerson confirmed t hat t he escaping coal dust and
escaping coal embers did not pose a hazard, and if the faci l ity
were washed down regularly , as he believed it was, any escaping
fluidizing air current would only be hazardous internally to the
dryer system, and not externally. The small amount of fluidizing
air current coming through the deteriorated concrete would only
pose a hazard if it restricted the air flow inside the dryer
(Tr. 150) .
Mr . Dickerson confirmed that a split in the metal lining of
the dryer was the cause of the escaping fluidizing air current,
and that at the time he viewed the conditions he did not know
that the dryer wall was constructed solely of metal or whether
the concrete floor was part of the dryer wall. He a l so confirmed
that the purpose of the floor which had deteriorated was not to
enclose or encompass the fluidizing air current, and he stated as
follows at (Tr. 160-161):
A. To clear this up, if they had fixed the wall of
the dryer and said, "Mike, the floor had nothing to do
with it," and I had went and looked and the floor was
still cracked up along there, that they had fixed the
metal and no air currents were escaping, I would have
terminated the paper.

*

*

*

*

*

*

*

If the floor had been properly maintained and
there would not have been any leaks coming out from the
floor, would there have been leaks into the atmosphere
going from somewhere else or another source?
Q.

A. No, because that seam was against the floor .
The floor was poured against that seam.
The reason that the embers and the air current
leaks were coming out into the atmosphere was because
of the deteriorated floor?

Q.

A.

That was part of it, yes.

Respondent's Testimony and Evidence
David T. Walters, shift foreman, testified that he became
aware of the cited conditions on the afternoon of the day
Mr. Dickerson issued the citation. Mr. Walters stated that he
took photographs of the area where he observed sparks being
emitted from the broken concrete floor area cited by the

1469

inspector, and he confirmed that there were no operational
changes from the· time the inspector saw the conditions (Exhibits
R-1 and R-2: Tr. 165-167).
Mr. Walters stated that he observed "a puff" of air, and a
"gentle constant flow" of small burning embers coming through the
floor. He stated that he observed an "ashy" colored product,
rather than float coal dust, and he described the material as
"fine pulverized coal" which had gone through the combustion
process. He stated that the material was leaking through a 3 to
4 inch crack in the stainless steel dryer wall and that the
condition was abated by welding the crack and pouring a new
concrete floor for "cosmetic purposes". Mr. Walters characterized the effect of the three-to-four inch split in the dryer
lining as "a spit in the ocean", and he believed that it would
take a large hole to short circuit the two 400 and 1,000
horsepower fans which were shoving from the bottom and pulling
from the top. He also confirmed that the area in question is
washed down more than once a day, and that people are there. three
shifts a day. (Tr. 168-171).
Mr. Walters stated that the deteriorated concrete floor
condition extended for a distance of approximately three and onehalf feet by one-foot, and in his opinion this condition
presented no hazard of any accident or injury to anyone. He
stated that leakage has occurred in the past because the metallic
dryer joint reacts to heat and splits, and when this occurs it is
necessary to weld the joint. In order to reach the joint, the
concrete floor is broken up in order to access the joint seam,
and it is then repaired. However, if the seam splits again, the
floor must again be broken in order to make the repairs (Tr. 172172) .
In response to further questions, Mr. Walters stated that
he is concerned about "sparks being emitted everywhere" and the
leak in the dryer wall. However he did not consider the
condition an imminent danger or something that would require
shutting down the plant. (Tr. 176) .
Discussion
The mandatory safety standards dealing with thermal dryers
are found in Subpart D, Part 77, Title 30, Code of Federal
Regulations. Sections 77.300 through 77.315, cover the operation
and maintenance of thermal dryers, and section 77.305 requires
drying chambers and associated ductwork to be equipped with tight
sealing access doors which are required to be latched during
dryer operation to prevent the emission of coal dust and the loss
of fluidizing air. In this case, the respondent has not been
charged with a violation of any of these dryer standards, nor has
it been charged with any violations of section 77.202, which
covers accumulations of coal dust on surface structures,

1470

enclosures, or other facilities, or the surface travelway
requirements found in section 77.205. The respondent is charged
with an alleged violation of section 77.200, which covers surface
installations in general, and it provides as follows:
All mine structures, enclosures, or other facilities
(including custom coal preparation) shall be maintained
in good repair to prevent accidents and injuries to
employees.
MSHA's July 1, 1988, and the most current April 1, 1991,
Program Policy Manual reference to section 77.200, (Exhibit P-5),
states as follows:
This section does not apply to housekeeping. It is to
be used for keeping surface facilities in good repair
relative to safety.
Inspections of surface facilities, structures, and
enclosures should include an examination of all loadcarrying members and related bracing. When such
members or bracing are substantially warped, bent,
deteriorated due to corrosion or weathering, or
otherwise damaged or missing, the structure may be
unstable or have a reduced load-carrying capacity.
These conditions can cause or contribute to serious
accidents and injuries, and appropriate enforcement
action must be taken pursuant to this Section to
require the structure, enclosure, or other facility to
be maintained in good repair.
The district engineering staff should be consulted to
evaluate the condition of a surface structure where
assistance is needed in determining whether the
condition causes instability or reduces the loadcarrying capacity of the structure.
During oral arguments on the record, and in his posthearing
brief, the respondent's counsel took the position that the cited
section 77.200 requirement for maintaining surface installations
"in good repair" is intended to apply to the structural stability
of surface facilities, rather than the conditions cited by the
inspector. Counsel asserted that the "structural stability"
interpretation is specifically covered and discussed in MSHA's
policy guideline (Exhibit P-5, Tr. 177-178). Counsel also
suggested that since the inspector allowed two weeks to abate the
conditions, they did not constitute a significant and substantial
violation (Tr. 151).
Respondent's counsel conceded that the respondent would be
concerned about a deteriorating thermal dryer wall that allowed
material to escape into the atmosphere "if there is not

1471

sufficient air current to continue to move that coal across the
dyer bed" (Tr. 162). Counsel asserted that it was his
understanding that theqnetal lining, rather than the dryer wall
itself, was cracked, and that the lining did not provide any
structural support for the dryer. Counsel agreed that the
equipment "was not designed to leak like that" (Tr. 164) .
Petitioner's counsel took the position that although there
is no specific regulation addressing the particular problem posed
by the conditions which the inspector believed were hazardous,
the inspector necessarily relied on the more general requirements
found in the cited section 77.200 (Tr. 177).
In his posthearing brief, petitioner's counsel asserted that
since the damaged floor was causing a loss in the fluidizing air
current in the dryer chamber, a violation of section 77.200,
occurred since this scenario could potentially result in an
unplanned ignition or explosion.
Inspector Dickerson confirmed that he was familiar with
MSHA's policy guidelines concerning the application and
interpretation of section 77.200, and the sections dealing with
thermal dryers. He still believed that he cited the proper
standard, and he explained that although the loss of fluidizing
air or coal dust and embers is addressed in section 77.305 , that
section requires tight ceiling doors to prevent the conditions.
Since he was not addressing a door, he believed that he could not
rely on section 77.305, and had to rely on section 77.200.
(Tr . 152-153). The inspector also confirmed that if he had seen
only the ruptured lining and the two-inch opening exposed above
the level of the floor he would still cite a violation of section
77.200 (Tr. 177).
Findings and conclusions
Although I agree with the respondent's contention that the
primary purpose and intent of section 77.200, as explained by
MSHA's policy manual, is to assure the physical and structural
integrity of surface coal preparation structures such a thermal
dryer, I believe the language of the standard is broad enough to
cover a damaged and unrepaired dryer bed enclosure lining which
allows dangerous levels of coal dust or float coal dust to escape
and remain on equipment structures where it could be ignited by
escaping hot embers and sparks flowing from the damaged
enclosure. The standard requires that such structures be
maintained in good repair to prevent accidents and injuries to
employees.
I conclude and find that the dryer bed enclosure was not
maintained in good repair. While it may .be true that the metal
lining, rather than the dryer wall itself was cracked, the fact
remains that the cracked or ruptured lining, which I find was an

1472

integral .part of the enclosure, allowed materials to escape or
leak out of the enclosure. The respondent has not rebutted the
fact that the damaged lining was in fact causing the leakage, and
it conceded that the enclosure was not designed to leak and that
it would be concerned about a deteriorating dryer wall that
allowed material to escape.
Although I have found that the dryer bed enclosure was not
maintained in good repair, I conclude that given the language "to
prevent accidents and injuries to ·employees" found in the
standard, in order to establish a violation it must be established that the disrepair, or condition of the cited equipment
presented a hazard to miners. Based on the evidence adduced in
this case, I cannot conclude that the petitioner has established
that the leaking dryer bed enclosure lining presented a hazard to
miners.
Inspector Dickerson conceded that the escaping coal dust and
coal embers did not pose a hazard, and he detected no hazards
from any methane. Although he expressed concern that coal dust
could settle on the drying bed and that coal dust in suspension
could be ignited, he confirmed that the air current would blow
away any float coal dust, and he did not believe that the amount
of coal dust which he observed posed any hazard. The inspector
also conceded that the deteriorated floor condition described in
the citation did not contribute to any hazard, and he did not
believe that the floor area in question was a walkway. As noted
earlier, no citations were issued for accumulations of coal dust
on surface structures or enclosures, or for any unsafe surface
travelways, and the inspector confirmed that he found no
accumulations of coal dust or embers.
The inspector's testimony reflects that he was primarily
concerned about the loss of a fluidizing air current inside the
dryer, and his concern that any loss of air current could cause
coal dust to settle on the drying bed itself and pose a potential
ignition or fire hazard. However, he conceded that if the
facility were washed down regularly, as he believed it was, any
hazard resulting from any escaping fluidizing air current would
be limited to the inside of the dryer and not the outside. Given
the small amount of fluidizing air current coming through the
cracked dryer lining, the inspector further conceded that it
would only pose a hazard if it restricted the air flow inside the
dryer. However, there is no evidence that this was the case.
Under all of these circumstances, I conclude and find that the
petitioner has failed to establish a violation. Under the
circumstances, the contested citation IS VACATED.

1473

ORDER
on the basis of the foregoing findings and conclusions, IT
IS ORDERED THAT:
1.

Section 104(a) "S&S" Citation No. 2736728,
September 10, 1990, citing an alleged
violation of 30 C.F.R. § 77.200, IS VACATED.

2.

The petitioner's proposed civil penalty
assessment for the vacated citation IS DENIED
AND DISMISSED.

Distribution:
Javier I. Romanach, Esq., Office of the Solicitor, u.s.
Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203 (Certified Mail)
Billy M. Tennant, Esq., United States Steel Mining Company,
Incorporated, 600 Grant street, Room 1580, Pittsburgh, PA
15219-4776 (Certified Mail)
jml

1474

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

22041

SEP 1 8 199J
LONNIE DARRELL ROSS,
Complainant

.
..

v.

DISCRIMINATION PROCEEDING
Docket No. KENT 91-76-D
BARB CD 90-40
No. 10 Mine

SHAMROCK COAL COMPANY,
INC . I
Respondent
CHARLES E. GILBERT,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 91-77-D
B~B CD 90-41
No. 10 Mine

v.
SHAMROCK COAL COMPANY,
INC.,
Respondent

DECISION
Appearances:

Phyllis L. Robinson, Esq., Hyden,
KY, for Complainant;
Neville Smith, Esq., Manchester, KY,
for Respondent.

Before:

Judge Fauver

These consolidated discrimination proceedings were brought by
Lonnie Ross and Charles Gilbert against Shamrock Coal company,
Inc., alleging that they were wrongfully discharged for engaging in
protected activity, i.e., making safety complaints, in violation of
Section 105(c) (1) of the Federal Mine Safety Act of 1977, 30 u.s.c .
§ 801 et ~
In September,
1990,
Complainants
filed
their
initial
complaints with the Mine Safety and Health Administration (MSHA).
On November 7, 1990, MSHA advised them that its investigation did
not indicate a violation of § 105 (c).
on November 30, 1990,
Complainants filed the instant complaints with the Commission.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable and
probative evidence establishes the following Findings of Fact and
further findings in the Discussion below:

1475

FINDINGS OF FACT

1.
Respondent operates an underground coal mine known as
Greasy creek Mine No. 10, where it mines coal for sale or use in or
substantially affecting interstate commerce. Mine No. 10 is part
of Respondent's Greasy Creek coal division, which consists · of
several coal mines.
2.
Complainant Lonnie Ross was employed at the mine as a
fireboss and crew leader, and Charles Gilbert as a maintenance
worker on Ross' crew, when they were discharged by Respondent, on
July 31, 1990.
3.
Lonnie Ross began work for Respondent on May 28, 1981.
He was employed as a fireboss and maintenance employee on the night
(third) shift from 1985 until July 31, 1990, when h e was
discharged. Beginning about 6 months before his discharge, he also
became a crew leader of a maintenance crew on the third shift. His
principal duties included firebossing, doing preshift examinations
of two sections, and being a crew leader in maintenance work to
prepare one section to run coal on the day shift. His job was to
carry out orders from the third shift foreman.
4.
Charles Gilbert was employed by Respondent as a
maintenance worker on the third shift from July 3, 1981, until July
31, 1990, when he was discharged. His job was to carry out orders
from the third shift foreman or his crew leader in preparing his
section to run coal on the day shift.
Gilbert was a member of
Ross' maintenance crew.
5.
The maintenance crew in Section 10-3A, where Complainants
were working when they were discharged, consisted of three miners Lonnie Ross (fireboss and crew leader) and two general
maintenance workers, Charles Gilbert and Mike Europa. Occasionally
they had a "greenhorn," a trainee miner , assisting them .
Their
job was to carry out assigned duties to prepare the section for the
production of coal by the day shi ft.
Complainants regularly
performed electrical work without the presence or direct
supervision of certified electricians. This included splicing high
voltage cables , disconnecting and hooking up power centers,
electrical boxes and water pumps, locking out. and re-energizing
power circuits.
The electrical work was not isolated or sporadic,
but a regular part of their jobs . Complainants were not certified
mine electricians .
They moved the power center in their section
three or four times a week, routinely doing the electrical work
that was invo l ved in such a move.
6.
It was well known by their supervisors that Complainants
were not certified mine electricians, that they were doing
electrical work without the direct supervision of a certified
electrician, and that t his work was prohibited by federal safet y
standards.

1476

7.
In the 1980's, Ross and Gilbert complained to their
foreman, Doug Collett, about working on high voltage electricity
and not being certified mine electricians.
Collett indicated to
them that was part of their job and they had the choice of doing it
or quitting.
In the fall of 1989, they complained to his
successor,
Foreman Ralph Bowling, but he either ignored their
complaints or said he could not spare an electrician to do the
electrical work they were doing. ·
8.
Ross and Gilbert continued doing unlawful electrical work
to keep their jobs, but they did not want to work on high voltage
electricity and did so only because their supervisors expected such
job performance of them.
9.
In the fall of 1989, the mine changed the work week from
five 8-hour days to four 10-hour days. The two production shifts
increased daily production from 16 hours to 20 hours, so that the
third shift maintenance · crew had only 4 hours instead of 8 hours
between production shifts. This significantly increased the work
load and job pressures on Complainants.
As a result, Ross and
Gilbert were vocal in making complaints to Foreman R~lph Bowling
that they had too much work to do in the 4 hours betweep production
shifts and asked for help by having more personnel assigned. They
emphasized that they did not have enough time to do their jobs
properly. Bowling did not address these complaints.
10. In January, 1990, the general mine superintendent,
Stanley Couch, quit because of his objections to the 10-hour plan.
He found that it created unacceptable job pressures and
inefficiency.
11. Couch was replaced by Don Smith as mine superintendent.
Ross and Gilbert complained to Smith that they needed more men on
their crew, and did not have enough time to do their jobs, but he
either ignored the complaints or indicated that they were expected
to do ·the job with what they had.
12. In the first part of July, 1990, Foreman Bowling went on
vacation for one week .
He recommended that Ross be promoted as
acting third shift foreman in his absence.
Smith approved the
recommendation. In recommending Ross, Bowling said Ross was one of
his best workers.
13. On July 18, 1990, a federal mine inspector was preparing
to go underground for an inspection.
Ross had filled out his
preshift examination report, as fireboss, and signed it.
Smith
came up to him and said that the day shift foreman, Charles L.
Morgan, had not countersigned the report.
Without Morgan's
signature, it would be a violation to begin production on the day
shift .
Smith asked Ross to sign Morgan's name.
Ross refused.
Smith asked him again, but Ross refused.
This made Smith angry,
and he signed Morgan's name himself.

1477

14. After this inc i dent, Ross perceived a clear change in
smith's attitude toward him, ·which became hostile and harassing.
Ross feared, from that incident, that Smith would retaliate against
him.
15. The last week of July, 1990, Mike Europa, the . third man
on Complainants' maintenance crew, went on vacation for one week.
Ross and Gilbert asked Foreman Ralph Bowling to replace Europa for
that week, but Bowling told them that Ross would have to do
Europa's job as well as his own duties for that week.
This
decision increased the job pressures on Ross and Gilbert for that
week, and created a number of safety risks· by causing pressures on
them to do their jobs faster. These risks included rushing Ross in
his preshift examinations and rushing Ross and Gilbert in doing
unlawful electrical work. Both Complainants complained to Foreman
Bowling that they needed a replacement for Mike Europa that week,
and could not do their work properly without a replacement. These
complaints were unheeded.
16. Ross was fireboss and crew leader, and also filling in
for Mike Europa (on vacation) the last week of July, 1990. Gilbert
was doing his regular job, with added pressure because of the
absence of Europa. The only other employee with Ross and Gilbert
was a greenhorn, who had been in training for several weeks.
17. On July 26, 1990, between production shifts, Ross and
Gilbert moved the power center in their section, doing the
electrical work involved in the move.
18. By the time they moved the power center and one cable, it
was approaching 6:00a.m., and they still had two cables to move.
They were under pressure to move the cables, so they could hook up
the power center, connect the cables, and have the section ready
for the day shift at 7:00 a.m. Ross looked for pull ropes on the
section, but did not find any.
These ropes are loops used to
attach a cable to a vehicle for pulling.
He decided to use a
method of pulling the cables that he had often seen used before,
and at times had used himself. By bending a cable into a loop, and
lowering the scoop batteries onto the loop, a cable could be pulled
by the scoop. This method was commonly used to pull a cable out of
the mine, or to move a cable out of the way if it was going to be
removed from the mine. The advantage of this method was that the
grip on a cable loop was more reliable than a grip on a pull rope,
which would become loose or disconnected over a long distance. The
disadvantage of this method was that a cable loop could be damaged
by the heavy batteries (weighing about 7,000 pounds) and this would
require cutting off about four feet of cable. Since this amount of
cable cost only $20, various supervisors believed it was worth the
cost, rather than lose time reconnecting a pull rope during a long
haul.
This comparison of time and cost was relevant in moving a
cable out of the mine, because the replacement of the damaged end
of the cable eliminated a safety risk. Also, pulling the cable did

1478

not present a hazard at the time of pulling, because the cable was
de-energized. However, a safety risk would be involved if the last
four feet of cable were damaged and not repl_a ced. The damage could
expose bare wire or it could weaken the outer jacket so that, with
further use of the cable in mining, a bare wire might be exposed in
the last four feet of the cable and could cause an electric shock.
It was therefore not a safe practice to move a cable by placing it
under the scoop batteries if the looped end of the cable was not
replaced before re-using the cable. Ross knew that it was not a
good practice, but he was also aware of cases in which a cable was
moved that way with no apparent damage. He had also seen foremen
move a cable this way when they were in a hurry.
19. As of July, 1990, moving a cable under scoop batteries
was not an accepted practice at this mine if the cable were being
advanced with the section.
It was an accepted practice if the
cable were being moved out of the mine.
20. When Ross told Gilbert to lower the scoop batteries onto
the cables, Gilbert knew this was not an accepted practice, and
advised Ross several times not to move the cables under the scoop
batteries. Ross rejected this advice, and ordered Gilbert to lower
the scoop batteries onto the cable loops.
Gilbert followed the
order of his crew leader.
21 . Gilbert drove the scoop, pulling the cables to the power
center, where Roger Hoskins saw him. Hoskins, a crew leader on a
repair crew, told Gilbert that they were wrong to pull the cables
that way.
22. When the day shift tried to use the cables, one had
internal damage so that the circuit breaker would keep shutting off
the circuit. Hoskins told the day shift foreman, Charles Morgan,
that he had seen certain employees pull the cables under scoop
batteries. He did not tell Morgan their names.
23. Morgan told Mine Superintendent Don Smith what Hoskins
had said.
Smith told Foreman Ralph Bowling to find out what
happened and that, if employees had pulled the cables under the
scoop batteries, to fire "whoever did it."
24. Bowling contacted Ross, who said he did not know anything
about it. He then contacted Gilbert, who said he drove the scoop,
pulling the cables under the scoop batteries. Bowling told him he
was fired.
Gilbert said he would not take the blame alone, and
that Ross had told him to do it. Gilbert was not actually fired at
that time.
He was fired later, by Superintendent Smith, not
Foreman Bowling.
25. on July 31, 1990, at Smith's request, Bowling called Ross
to the office, where Don Smith, Pearl Napier, and Gilbert were also
present. Smith confronted Ross with Gilbert's statement that he

14 79

had told Gilbert to move the cables under the scoop batteries.
Ross said he would take the blame.
26. Bowling did not want to see the men fired.
He persuaded
Don smith to step outside the room. Outside, he recommended two
weeks • suspension without pay, instead of discharge. Smith agreed.
27. They returned, and Bowling said they were giving
Complainants two weeks off without pay.
Ross indicated his
agreement to accept that punishment. Gilbert was angry, because he
had only followed his crew leader's order and did not believe he
should be given time off without pay, and because he believed the
company had imposed undue job pressures on him. He told management
he did not believe he deserved two weeks' suspension and that he
was "tired" of "having to work like a dog and not having time to do
the job" (Tr. 36).
He said that, if he had enough accumulated
hours for that year for his profit-sharing fund, they could go
ahead and fire him rather than give him two weeks' suspension.
28. Someone called the payroll office, to see whether Gilbert
had enough hours for 1990 for his profit-sharing fund, and reported
that he did have enough time. At this point, Bowling told Smith
that they could not fire one employee and give the other only two
weeks • suspension since they were "equally" at fault. Gilbert then
reconsidered. He said that he did not want Ross to lose his job,
and agreed to take the two weeks' suspension.
29. Superintendent Don Smith, who had a short temper, lost
his temper at this point, and said "just go ahead and fire both of
them." Tr. 338.
DISCUSSION . WITH FURTHER FINDINGS

Scope of Protected Activity
Section
1

105(c) (1)

of

the

Act

prote cts

miners

Section 105(c) (1) provides:

No person shall discharge or in any manner discrimi nate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners
or applicant for employment in any coal or other mine
subject to this Act because such miner, representative of
miners or applicant for employment has filed or made a
complaint under or related to this Act, including a
complaint notifying the operator or the operator • s agent,
or the representative of the miners at the coal or other
mine of an alleged danger or safety or health violation
in a coal or other mine,
or because such miner,

1480

from

retaliation for exercl.sl.ng rights under the Act, including the
right to complain to supervisors about an alleged danger or safety
or health violation.
The basic purpose of this protection is to encourage miners
"to play an active part in the enforcement of the Act" recognizing
that, "if miners are to be encouraged to be active in matters of
safety and health, they must be· protected against any possible
discrimination which they might suffer as a result of th-eir
participation." s. Rep. No. 95-181. 95th Cong. 2d Sess. 1977,
reprinted in the Legislative History of the Federal Mine Safety and
Health Act of 1977 at 623 (Senate Subcommittee on Labor, Committee
on Human Resources, 95th Cong., 2nd Sess. (1978)).
This provision is a key part of remedial legislation, which is
to be liberally construed to effectuate its purposes.
Reporting an alleged danger or violation to a mine operator is
distinguished from refusing to work · because of such a complaint.
Refusal-to-work cases generally focus on whether the miner believed
that he or she was being subjected to danger .
A key issue is
whether the belief was held in good faith and was a reasonable one.
In such cases, the miner generally has an obligation to express the
safety complaint with sufficient clarity and detail to enable the
mine operator to address it and take corrective action if
necessary.
In contrast, if a miner does not refuse to work but
complains about a hazard or violation, the voicing of the
complaint is protected by § 105(c) without examining whether the
miner would be justified in refusing to work.
Complaints About Electrical Work
Early in their employment, Complainants were introduced to
electrical work as a normal part of their jobs.
This included
making high voltage splices, disconnecting and hooking up power
centers, electrical boxes, water pumps, and locking out and reenergizing circuits.
This work was dangerous in the hands of
unqualified personnel and forbidden by a mandatory safety standard,
30 C.F.R. § 75.511, which provides:
representative of miners or applicant for employment is
the subject of medical evaluations and potential transfer
under a standard published pursuant to section 101 or
because such miner, representative of miners or applicant
for employment has instituted or caused to be instituted
any proceeding under or related to this Act or has
testified or is about to testify in any such proceeding,
or because of the exercise by such miner, representative
of miners or applicant for employment on behalf of
himself or others of any statutory right afforded by this
Act.

1481

No electrical work shall be performed on low,
medium, or high-voltage distribution circuits
or equipment, except by a qualified person or
by a person trained to perform electrical work
and to maintain electrical equipment under the
direct supervision of a qualified person •.
Disconnecting devices shall be locked out and
suitably tagged by the persons who perform
such work, except that in cases where locking
out is not possible, such devices shall be
opened and suitably tagged by such persons.
Locks or tags shall be removed only by the
persons who installed them or, if such persons
are unavailable, by persons authorized by the
operator or his agent.
Complainants were not certified mine electricians ("qualified
persons") and were not working under the direct supervision of a
certified mine electrician when they performed electrical work .
Indeed, they usually did such work without the presence of a
certified mine electrician. Respondent regarded this unlawful 2
electrical work as a routine and integral part of their jobs.
Complainants complained to an early supervisor, Foreman Doug
Collett, about doing electrical work and not being certified mine
electricians. Collett did not heed their complaints, and indicated
that they had the option of doing such work or quitting.
They complained to Collett 1 s successor, Foreman Ralph Bowling,
about doing electrical work and not being certified mine
electricians. His usual reaction was to ignore their complaints or
say that he could not spare an electrician to do the electrical
work Complainants were performing.
The regular practice by Ross and Gilbert, with Respondent's
knowledge, was to handle the power moves on their section, doing
the electrical work themselves, including disconnecting and hooking
up the power center, electrical boxes, disconnecting, hooking up
2

In finding that Complainants• electrical work was unlawful,
I address the basis of one of their protected activities under
§ 105 (c), which applies to complaints of "an alleged danger or
safety or health violation" (emphasis added). Complainants were
entitled to complain about safety violations to their employer
without fear of retaliation. Their performance of electrical work
without the direct supervision of a certified mine electrician was
a plain violation of 30 C.F.R. § 75.511 (quoted above). This is
not an adjudication of a violation for civil penalties under §
110(i) of the Act, or for any purpose other than determining the
nature of Complainants • protected activities proved in these
proceedings.

1482

and splicing cabl es, and locking out and re-energizing circuits,
without the presence or supervision of a certified electrician.
The reliable evidence corroborates Complainants' testimony
that they regularly did u nlawful electrical work as a routine,
integral part of their jobs.
Other employees saw them do
electrical work and themselves did electrical work although they
were not certified electricians.
Respondent did not assign an
electrician to Complainants ' section, but did so a few months after
they were discharged.
During Complainants' employment, on the
third shift electricians were assigned to a "roving" repair crew
that covered a number of mines . They were usually not present for
power moves in Complainants• section.
Complainants• foreman, Ralph Bowling, knew that Complainants
were doing electrical work , and saw them hooking up power boxes and
making high voltage splices. His attitude was that in doing such
work complainants were in " No more danger than an electrician or
anybody else would have been in" (Tr . 435).
Bowling was not a
certified mine electrician but did electrical work because he
believed in doing "What had to be done" (Tr . 436). In his view, an
"electrician's card" does not make an electrician. This apparently
was his justification for not seeking electrical training and
certification and for employing Complainants to do electrical work
without the presence or supervision of a certified electrician.
Foreman Bowling showed a serious disregard for mandatory safety
standards requiring training, qualification, certification, and job
assignments of mine electricians.
Complainants ' safety complaints about doing electrical work
went unheeded by Respondent.
Gilbert testified that his last
safety complaint about doing electrical work was about 5 or 6
months before his discharge (Tr . 78).
Ross testified that he
specifically requested that he not be required to do electrical
work "A lot of times" (Tr . 169) .
Ralph Bowling became their
foreman around October, 1989, and remained their foreman until they
were discharged .
I find that Complainants complained to Foreman
Bowling about doing electrical work a number of times and at least
as late as the last months of 1989. With Bowling's attitude toward
electrical work, such complaints were futile.
Complainants complained, and adequately put Respondent on
notice, that they objected to doing electrical work for which they
were not certified mine electricians , and that they did not want to
work on high voltage . They acquiesced in doing unlawful electrical
work, not because they were not afraid of high voltage electricity,
but because they needed to keep their jobs. This mine is located
in a remote area where jobs are very had to find.
One of the
Complainants was on a waiting list for a year to get his job with
Respondent, and his starting wage was nearly three times larger
than the pay he was earning elsewhere. Complainants had families
to provide for, and were easy prey to pressures to ignore safety

14 8 3

standards.
I find that Complainants' complaints about doing electrical
work were a protected activity under§ 105(c).
complaints About the 10-Hour Work Shift

In the fall of 1989, Respondent started a 10-hour work shift,
changing from five 8-hour days to four 10-hour days.
This meant
that coal was produced 20 hours a day instead of 16 hours, and
the third shift had only 4 hours between production shifts, instead
of 8 hours, to do section preparation work while power and
production machinery were turned off.
Although, in theory, the
third shift maintenance crew had 10 hours (instead of 8 hours) to
prepare their section for daytime production, in reality they were
under increased and significant job pressures because much of their
work required shutting off the power.
The mine superintendent,
Stanley Couch, quit in January, 1990, because of his objections to
the 10-hour plan. His replacement, Don Smith, testified that the
10-hour plan was later dropped because "it wasn't working out. We
could not keep our repairing up on our equipment. We just did not
have enough time in four hours to keep the repairing on our
equipment and stuff. The down time was eating us up .... " Tr. 344 .
Complainants bore a considerable work burden under this plan, and
were vocal in their complaints to Foreman Ralph Bowling and at
times to the new mine superintendent, Don Smith, that they needed
more men to assist them and that they could not do their jobs
properly in the squeeze of 4 hours between production shifts.
Complainants advanced the power center three or four nights a week.
This meant that their power moves and related electrical work that
could be done only between production shifts had to be done in 4
hours instead of the 8 hours previously allowed.
Complainants'
complaints to Bowling and Smith went unheeded.
I find that these complaints were a protected activity under
105(c) of the Act. In light of the dangers inherent in mining, a
miner's complaints (without refusing to work) that he is overworked
and does not have enough time to do his job properly imply a safety
complaint that haste and overwork will create hazards and
accidents.
Whether or not such a complaint merits corrective
action by management, depending on an evaluation of the facts, the
voicing of the complaint has a sufficient connection to safety or
health to be a protected activity under§ 105(c).
In addition,
there were clear hazards in rushing these complainants because Ross
was doing critical firebossing duties and both he and Gilbert were
performing unlawful electrical work. 3 As stated, complaints of
§

3

The dangers involved in Complainants' unlawful electrical
work were increased in the context of mine management's
longstanding risk-taking attitude toward electrical work. On one
occasion, their foreman, Collett, said he would have the main power

1484

this nature are distinguished from refusal-to-work complaints,
which may require more specificity.
Ross• Refusal to Falsify a
Preshift Report

On July 18, 1990, two weeks before Complainants' discharge,
Ross had a serious incident with Mine Superintendent Don Smith.
The day shift production foreman, Charles Morgan, had failed to
countersign Ross' preshift report, and it would be a viol~tion to
start production without it.
A federal inspector was about to
begin his inspection.
Smith asked Ross to sign Morgan's name.
Ross refused.
Smith asked him again, and Ross refused.
Smith
became angry and signed Morgan's name himself. Ross perceived a
marked change in Smith's attitude toward him, which became hostile
and harassing.
Ross' refusal to falsify a preshift report was a protected
activity under § 105(c) of the Act. Miners are protected against
retaliation for refusing to violate the Act or any safety or health
regulation promulgated under it.
Complaints About the
Failure to Replace Mike Europa

In the last week of their employment, Mike Europa, the third
member of Complaina nts' maintenance crew, went on vacation.
Complainants asked Foreman Bowling to replace Europa for that week,
but he said Ross would have to fill in for Europa.
This meant
another major increase in the already intense work pressures on
Complainants.
They were vocal in complaining to Bowling several
times during that week that they could not do their jobs properly
without a replacement for Europa.
This condition created safety
hazards for Complainants and others.
Ross was pressured in his
circuit de-energized while Ross made a
high voltage splice.
Collett failed to do so, and it was only Ross' decision to deenergize the local circuit that prevented an electrical shock to
employees. On another occasion, Don Smith sent an employee to deenergiz e a circuit and assumed he was gone long enough to do so.
Smith started cleaning the bare leads of a h i gh voltage cable with
a subordinate. When Smith sprayed a cleaner on the wires, there was
a short circuit and a bolt of electricity shot from the cable,
hitting Smith and knocking him against the mine rib.
He was
hospitalized. The surge through his body caused a burn where each
of his dental fillings touched his tongue.
Smith and his
subordinate could have been killed or permanently disabled by this
misjudgment.
Complainants' last foreman, Bowling, who was not a
certified mine electrician, showed a serious disregard for the
mandatory safety standards requiring training, qualification,
certification, and job assignments of mine electricians.

14 85

duties as fireboss and both Ross and Gilbert were under substantial
pressure in trying to cope with the 10-hour shift problems, now
made more severe by the absence of a critical member of their
maintenance crew, and rushing in their performance of unlawful
electrical work. Their complaints were unheeded.
I find that these complaints were a protected activity under
§ 105(c), for the reasons stated concerning the 10-hour shifts.

Gilbert's Complaints on July 31, 1990
In the meeting between management and Complainants on July 31,
the day of their discharge, management offered to discipline
Complainants with two weeks' suspension without pay. Ross agreed
to take this punishment. Gilbert rejected this at first, feeling
that he did not deserve punishment because he was only following
the order of his crew leader and being upset about management's
excessive work pressures. Gilbert stated he was "tired" of "having
to work like a dog and not having time to do the job" (Tr. 36).
I find that, in the context of Complainants' prior safety
complaints to mine management, this expression of being overworked
(worked like a dog and not having enough time to do his job)
related sufficiently to prior and recent safety complaints about
the excessive work pressures on Complainants to be a protected
activity under§ 105(c).

was There Discrimination Against complainants?
Having found that Complainants were engaged in protected
activities, I turn to the question whether adverse action against
them was motivated by their protected activities.
To establish a prima facie case of discrimination under
§ 105{c) of the Act, a miner has the burden to prove that he or she
engaged in protected activity and that the adverse action
complained of was motivated in any part by that activity.
secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786,
2797-2800
{1980),
rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F. 2d 1211 (3rd Cir. 1981);
Secretary on behalf of Robinette v. United castle Coal Co., 3
FMSHRC 803, 817-18 (1981).
"Direct evidence of motivation is rarely encountered, more
typically, the only available evidence is indirect. * * * 'Intent
is subjective and in many cases the discrimination can be proven
only by the use of circumstantial evidence.'" Secretary on behalf
of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (1981), rev'd
on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d
86 (D.C. Cir. 1983), quoting NLRB v. Melrose Processing Co., 351
F.2d 693, 698 (8th cir. 1965).
In "analyzing the evidence,
circumstantial or direct, the [adjudicator] is free to draw any

1486

reasonable inference" (id.).
After
accepting
Foreman
Bowling's
recommendation,
Superintendent Don Smith agreed to discipline Complainants by two
weeks' suspension without pay.
Ross agreed to accept the
discipline. Gilbert at first objected to suspension, because he
was only following an order of his crew leader and believed he
should not be punished, and because he felt so mistreated by being
"worked like a dog" and "not having time to do the job" (Tr. 36) ,
He added that, if he had enough accumulated time that year for his
profit-sharing fund, they could go ahead and fire him rather than
give him two weeks' suspension. Someone called the office, and
reported that Gilbert had enough reported hours for vested profitsharing in 1990. Bowling then said to Smith that they could not
fire one employee and give the other only two weeks off because
they were "equally" guilty. Gilbert then reconsidered. He said he
did not want to sea Ross lose his job, so he (Gilbert) would accept
the two weeks' suspension also.
At this point, Don Smith, who had a short temper, lost his
temper and said, "just go ahead and fire both of them." Tr. 338.
Smith testified that he lost his temper (became "aggravated")
because "they was a'squalling and hollering. I got aggravated and
I told them to just go ahead and fire both of them." l.sL. I find
that an animus toward Complainants was created in Smith by their
safety complaints, including the July 18 incident between Ross and
Smith over the signature on the preshift report, complaints about
the pressures of the 10-hour shift and the failure to replace Mike
Europa, and Gilbert's safety-related complaint at the final meeting
(being worked like a dog and not having enough time to perform his
job), as well as their long background of complaining about
unlawful electrical work. Smith also testified that he believed
"They weren't sorry for what they did and they would probably do it
again anyway." Tr. 338. This appears to me to be an afterthought
by Smith, not a motivating factor. However, assuming that this was
a factor in his decision to discharge Complainants, I find that it
was a "mixed motive" discharge, motivated at least in part by
protected activities of the Complainants. Complainants made out a
prima facie case of discrimination.
Did Respondent Rebut the Prima Facie
case of Discrimination or Establish
an Affirmative Defense?

An operator may rebut a prima facie case by showing either
that no protected activity occurred or that the adverse action was
not motivated in any part by the protected activity.- Failing that,
the operator may defend affirmatively against the prima facie case
by proving that it was also motivated by unprotected activity and
that it would have taken the adverse action in any event for the
unprotected activity alone. In a "mixed motive" case, although the
miner must bear the ultimate burden of persuasion, the operator, to

1487

sustain its affirmative defense, must prove by a preponderance of
the evidence that the adverse action would have been taken even if
the miner had not engaged in the protected activity.
Boich v.
FMSHRC, 719 F.2d 194, 195-196 (6th Cir. 1983).
Foreman Bowling's recommendation for two weeks' suspension
does not reflect a discriminatory animus against Complainants. He
was trying to reach a reasonable and, he believed,
just result
(although suspension of Gilbert would appear harsh considering he
was following a crew leader's order). 4
However, the discharge decision made by Don Smith was through
a loss of temper directed at Complainants, after management had
offered two weeks' suspension and Complainants had accepted it.
This showed an animus toward them which I find was motivationally
connected with their substantial protected activities. Respondent
has not proved, by a preponderance of the reliable evidence, that
the complainants would have been discharged even if they had not
engaged in protected activities. Instead, Respondent has offered
a case generally denying that safety complaints were even made.
However,
I
credit Complainants' evidence of making safety
complaints. Respondent did not prove an affirmative defense.
The fact that Don Smith originally ordered discharge for
"whoever did it" does not alter this conclusion .
The reliable
evidence shows that Smith, at that time, knew or had reasonable
grounds for believing that Complainants had moved the cables under
the scoop batteries. It was clear that the cables were moved on
the third shift, in Complainants' section. Complainants' three-man
maintenance crew were the only employees who would be moving cables
with a scoop in that section on the third shift. Mike Europa was
on vacation. Excluding the greenhorn, that left Complainants. I
do not credit Smith's testimony that he did not know or have
reasonable grounds for believing that Complainants were the ones
who moved the cables under the scoop batteries.
An angry early
order to fire "whoever did it" on facts that pointed to
Complainants would have presented a similar problem for Respondent
in responding to a prima facie case as did the actual discharge
decision made on July 31 . However, the early order to Bowling is
not the issue here . The issue is the July 31 discharge, which I
find was an angry decision taken after Smith knew Complainants had
accepted management's offer to take two weeks' suspension. This
was a discriminatory discharge, of at least a "mixed motive" kind,
and Respondent has not made out an affirmative defense.

4

There was no precedent at this mine for suspending or
discharging a miner for following the order of a crew leader or
other supervisor.

148 8

Respondent•s Limited Offer to Reinstate Gilbert
Respondent introduced evidence that, around October 27, 1990,
after Complainants engaged an attorney and filed their complaints
with MSHA, Respondent's personnel director made an offer to Gilbert
to reinstate him with one month's back pay . This settlement offer
was made to Gilbert directly and .not to his attorney, and it did
not offer to pay Gilbert full back pay, interest, and litigation
costs including a reasonable attorney fee. I find that Gilbert was
not obligated to accept this limited offer.
CONCLUSIONS OF LAW
1.

The judge has jurisdiction in this proceeding.

2.
Respondent discriminated against Complainants on July 31,
1990, by discharging them in violation of § 105(c) (1) of the Act.
3.
Complainant Gilbert was not
Respondent's limited offer of settlement .

obligated

to

accept

4.
Complainants are entitled to reinstatement with back pay,
interest, 5 and their litigation costs, including a reasonable
attorney fee.
ORDER
WHEREFORE, IT IS ORDERED THAT:
1.
Respondent shall, within 30 days of this decision,
reinstate each Complainant in its employment with the same
position, pay, assignment and all other conditions and benefits of
employment that would apply had he not been discharged on July 31,
1990, with no break in service for employment or any other purpose;
provided: Respondent may in its discretion apply retroactively two
weeks ' suspension without pay to Ross or to both Ross and Gilbert
effective July 31, 1990.

2.
Within 15 days of this decision, counsel for the parties
shall confer in an effort to stipulate the amount of Complainants•
back pay , interest, and litigation costs including a reasonable
attorney fee.
Such stipulation shall not prejudice Respondent's
right to seek review of this decision. If the parties agree on the
amount of monetary relief , counsel for Complainants shall file a
stipulated proposed order for monetary relief within 30 days of
this decision . If they do not agree on such matters, counsel for
Complainants shall file a proposed order of monetary relief within
5

Interest is computed at the IRS adjusted prime rate for each
quarter. See Arkansas-carbona Company, 5 FMSHRC 2042, 2050-2052
(1983).

.1489

30 days of this decision and Respondent shall have ten days to
reply to it. If appropriate, a further hearing shall be held on
issues of fact concerning monetary relief.
3.
This decision shall not be a final disposition of this
proceeding until a supplemental decision is entered on monetary
relief.

·t.'F

~

/JN~v~

iam Fau er
Administrative Law Judge
Distribution :
Phyllis Robinson, Esq., Main Street, P.
41749 (Certified Mail)

o. Box 952, Hyden,

Neville T. Smith, Esq., Smith and Smith,
Manchester, KY 40962 (Certified Mail)
/faa

1490

llO

KY

Lawyer Street,

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

,.

22041

SEP 1 8 1991
CIVIL PENALTY PROCEEDINGS

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

Docket No. VA 90-47
A. C. No. 44 - 05668-03577

v.
Docket No. VA 90-60
A.C. No. 44-05668-03579

LJ'S COAL CORPORATION,
Respondent

Docket No. VA 90 - 62
A.C. No. 44 -05668-03580
No. 1 Mine
DECISION
Appearances:

Before:

Ronald E . Gurka, Esq., U. S . Department of Labor,
Office of the Solicitor, Arlington , Virginia, for
Petitioner;
Carl E. McAfee, Esq. , LJ's Coal Corporation,
St. Charles, Virginia for Respondent .

Judge Weisberger

Statement of the Case
These cases are before me based on three Petitions for
Assessment of a Civil Penalty ·filed by the Secretary of Labor
(Petitioner) alleging violations of various mandatory safety
standards. Pursuant to notice, these cases were scheduled for
hearing March 25 - 28, 1991. on March 14, 1991, Petitioner filed
a Motion to Continue Hearings. The Motion was subsequently
granted, and the cases were rescheduled for July .8, 1991. On
March 17 , 1991 Petitioner filed a Motion to Reschedule, which was
not opposed by the Operator (Respondent) . The hearing set for
July 8-11, 1991, was adjourned and rescheduled for July 23 - 25,
1991. A hearing was held on July 23, 1991 in Bristol, Virginia.
Fred L . Buck, Clarence Slone , and Ewing c. Rines testified for
Petitioner. Respondent did not call any witnessei, nor did it
offer any documents in evidence.
Finding of Fact and Discussion
I.

Docket No. VA 90-47
A.

Citation No. 29~8870 .

1491

Fred L. Buck, an MSHA Inspector inspected the Mine
Technology Mine Rescue Station ("Mine Technology") on April 11,
1990. According to Buck, the records of Technology Mine contain
dates of inspections performed on Mine Technology apparatus, aDd
indicate what was done on each inspection. Buck testified that
the records indicated that an inspection had not been performed
within the preceding 30 day period. According to Buck, MSHA
records indicate that Respondent filed with the MSHA District
Manager a "request" indicating that Mine Technology is to perform
mine rescue services at the Respondent's Mine No. 1.
(Tr. 19)
Buck issued a Citation alleging a violation of 30 C.F.R. §
49.6(b) in that "the mine rescue apparatus was not being tested
within the 30 day interval."
As pertinent, Section 49.6(b) supra provides that a trained
person shall "inspect and test" mine rescue apparatus at
intervals not exceeding 30 days.
At best, the evidence
establishes that the records at Mine Technology did not contain
an entry listing an inspection of rescue apparatus within a 30
day period prior to April 11, 1990. This evidence by itself is
insufficient to establish that, in fact the apparatus itself was
not tested within a 30 day interval. Accordingly, Citation
No. 2968870 is to be dismissed.
B.

Citation No. 3146288

On April 17, 1990, Clarence Slone, an MSHA Inspector,
inspected Respondent's No. 1 Mine, and observed a high voltage
cable in the No. 2 drive of the track and belt entry that was not
guarded. The cable, which carried 4,160 volts, was suspended
within 6 to 8 inches from the roof.
In this area, the distance
from the floor to the ceiling was 60 inches. The cable itself
was insulated, and had a protective jacket or cover. According
to Slone, the area in question is examined daily, and that, in
general, 2 to 3 times a shift persons would work under the cable
"handling materials such as maybe a slate bar, a shovel .•. "
(Tr.37).
He also indicated that if coal is produced and the
belt is in operation, it must be examined and maintained, which
requires miners to shovel. Slone issued a Citation alleging a
violation of 30 C.F.R. § 75.807.
Section 75.807 supra provides, as pertinent, that a high
voltage cable"··· shall be covered, buried or placed so as to
afford protection against damage, guarded where men regularly
work or pass under them unless they are 6 1/2 feet or more above
the floor or rail, securely anchored, properly insulated, and
guarded at ends and covered, insulated, or placed to prevent
contact with trolley wires and other low-voltage circuits." The
testimony of Slone established that the cable in question carried
high voltage, was unguarded, and was suspended in an area where
men regularly work or pass under. Also Slone's testimony has
established that the cable was less then 6 1/2 feet above the

149.2

floor. Hence, I find that the Respondent herein did violate
Section 75.807 as alleged.
Slone further indicated that air containing oxygen
ventilates the surface of the roof in the area in question.
He
said that in the normal course of mining, the air flow would
cause the roof consisting of firm shade to become soft and fall
off. Since the cable in question was not protected by a
guarding, a roof fall could damage . the cable. If a cable is thus
damaged, voltage could leak out causing a person in proximity to
the cable to be electrocuted even without contact.
Although the
cable in issue did not have any observable defects and was
protected with a jacket or cover, I find, based on the testimony
of Slone, that the lack of a guarding contributed to a hazard of ·
a miner suffering an electrical shock. Thus, given the further
fact that the mine was wet as testified to by Slone, and
considering the condition of the roof as testified to by Slone, I
conclude that an injury of a reasonably serious nature was
reasonably likely to have occurred, given continued mining in the
absence of a guarding. Hence, it has been established that the
violation herein was significant and substantial (See Mathies
Coal Co. 6 FMSHRC 1 (1984)).
The violation herein could have led to a miner being
electrocuted, and hence was of a high level of gravity. On
direct examination, Slone was asked whether the violative
condition was one that "appeared" to him "to have existed there
for some time" (Tr.43). Slone answered "that's correct"
{Tr. 43). This testimony is the only evidence adduced with
regard to Respondent's negligence.
I conclude that it has not
been established that the degree of Respondent's negligence
herein was more than a low level. I conclude that a penalty of
$100 is proper for this violation.

c.

Citation No. 3146289

On April 17, 1990, when Slone inspected the subject
mine, he examined the No. 3 belt transformer. An AC receptacle
approximately 6 x 8 inches, is located on the side of the
transformer, approximately a foot to 18 inches off the floor.
The receptacle contains fingers or prongs that are exposed, and
stick out approximately a half inch beyond the surface. The
fingers receive cable plugs in order beyond supply power outby to
belt drives, pumps and other equipment. When Slone observed the
receptacle, a protective cover, which is designed to snap in
place, was not in place, and the fingers were exposed. According
to Slone, the breaker for this equipment was tested and was found
to be not working. He indicated that the fingers were energized,
and accordingly, if a miner were to plug in or unplug equipment
and come in contact with the energized receptacle, he could be
injured. He also indicated that it is easy to come in contact
with the receptacle if one is next to the power center. He said

1493

tha~

contact with the energized receptacle would at least produce
an electrical shoe~, and at the most would lead to a fatality.
Slone issued a Citation alleging a violation of 30 C.F.R. § ·
75.1725.

Section 75.1725 supra provides, in essence, that machinery
and equipment " ••• shall he maintained in safe operating condition
and the machinery or equipment in unsafe condition shall be
removed from service immediately." Webster's Third New
International Dictionary, {1986 edition) ("Webster's") defines
"safe" as "2. Secure from threat of, danger, harm or loss:",
Webster's defines "free from" as "(a) lacking: without."
"Danger" is defined in Webster's as "3. liability to injury,
pain, or loss: PERIL, RISK . • . . " I find that the exposed
energized prongs of the receptacle exposed miners to the risk of
injury by way of el~ctrical shock. As such, applying the common
usage of the term "safe" as defined i~ Webster's, infra, I
conclude that the receptacle was not safe, and as such, I find
· that Respondent herein. did violate Section 75.1725, supra.
According to Slone, equipment must be plugged into the
receptacle in question at least once a shift. In addition, if
the belt requires repair work, it must be unplugged from the
·receptacle in question in order to stop the belt. Hence,
considering the location of the receptacle, being only a foot to
18 inches off the floor, and the fact that, as testified to by
Slone, the area was wet, and the fact that the breaker did not
operate, I conclude that it was reasonably likely that the
violation herein would have resulted in contact with the exposed
energized prongs, and that it was reasonably likely that such
contact would have led to a reasonably serious injury. As such I
find that the violation herein was significant and substantial.
I find the violation herein to be of a high level of a
gravity inasmuch it could have resulted in a fatality. Also, I
find support for Slone's testimony that the lack of a protective
cover being in place should have been noticed, taking into
account the size of the receptacle, its location, and, the fact
that the cover was at the side of the power center within arms
reach of the receptacle. I conclude that a penalty of $100 is
appropriate for this violation.
D.

Citation No . 3146290

According to Slone, when observed by him on April 17,
1990, the No. 3 Belt Drive breaker box contained an accumulation
of dry float coal and dust at a depth of a qua~ter of an inch
throughout the floor of the box. Slone issued a Citation
alleging a violation of 30 C.F.R. § 75.400, which, as pertinent,
provides that coal dust including float coal dust shall be
cleaned-up and not be permitted to accumulate in active workings
or on electrical equipment therein. Based on Slone's

1494

uncontradicted testimony, I find that there was an accumulation
of coal dust especially considering its depth, and therefore
section 75.400 supra was violated.
Although Slone indicated on cross examination that generally
the mine is wet, it is significant that there was no
contradiction to his testimony that the accumulation in question
was dry. There also was no contradiction to his testimony that
float dust is most volatile. There also was no contradiction to
Slone's testimony that the belt in question is stopped and
started 2 to 3 times a shift, and that these actions cause an arc
in the circuit box which could cause an explosion, given the
presence of the accumulation at issue. According to Slone, should
such an explosion occur, the box would be blown apart. Since the
box is located 10 feet from the belt drive, in the event of an
explosion at the box, there would be a reasonable likelihood of
injuries to miners who frequently come to the area to clean and
inspect the belt drive. Hence, I find that the violation herein
to be significant and substantial.
Inasmuch as the violation herein could have resulted in an
ignition and hence injury to miners, I conclude that the gravity
of the violation is moderately high. Slone's opinion that it
' took approximately 2 to 3 shifts for the accumulation herein to
have occurred was not contradicted. I find a reasonable basis
for this opinion taking into account the depth and extent of the
accumulation inside the box. Hence I ·find that the violative
conditions should have been noted on a preshift examination and
should have been cleaned-up. Hence Respondent's negligence
herein is of a moderately high degree. I conclude that a penalty
of $100 is appropriate for this violation.
E.

citation No. 3146292.

on April 18, 1990, Slone observed wet float coal dust
on previously dusted surfaces beginning at the No. 2 belt drive,
extending inby 180 feet, and extending into the crosscuts. The
float coal dust which was black in color, was located on the
floor, and both ribs. Since Slone's testimony was not
contradicted, I find that the Citation he issued, alleging a
violation of Section 75.400 supra was properly issued, and that
Respondent herein did violate section 75.400 supra. Inasmuch as
the accumulations herein were approximity 5,000 feet from the
face and were wet, I conclude that the violation was of a low
level of gravity. Slone opined that it took 2 to 3 shifts for
the accumulations to have. occurred. Due to the extent of the
accumulations, I find a basis for his conclusion. · Hence,
Respondent's negligence herein was of a moderate level. I
conclude that a penalty of $50 is appropriate for this violation.

1495

F. Citation No. 3146293
Slone testified that on April 19, 1990, he observed an
accumulation of wet, .loose, coal dust of a depth of 2 to 8 inches
commencing at the portal, and extending inby approximately 800
feet under the No. 1 conveyor belt. He said that, in the area in
question, the accumulation was under all of the belt's idlers,
and extended for the width of the belt. Inasmuch as Slone's ·
testimony was not contradicted, I find that Respondent herein did
violate section 75.400 supra as alleged in the Citation that he
issued.
Although the accumulation was wet, according to Slone, over
a period of time it will dry out and the idlers could roll in the
coal. Should these idlers then become hot there is a possibility
of a fire. Hence, th~ violation was a moderate level of gravity.
According to Slone, the area in question is subject to daily
examinations, and the cited accumulation was "obvious" (Tr. 169).
This opinion has not been contradicted, and hence I find that
Respondent was moderately negligent in not having cleaned up the
accumulation. I find that a penalty $50 is appropriate for this
violation.
G.

Citation No. 3146294

Slone testified, in essence, that on April 19, 1990, he
issued Citation No. 3146294 alleging a violation of Safeguard No.
2969259 dated May 6, 1987, which requires, as pertinent, as
follows: "··· crossover facilities be provided on all belt
conveyors in the mine hereafter where men are required to
crossover them to do work." [sic]. According to Slone, belts 1,
2, and 4 were provided with crossovers. However, belt No. 5,
located more than 1,000 feet from the face, did not have any
crossover facilities to allow persons to cross the belt. When
Slone made his observations the belt was in operation, and he
estimated that the closest crossover to belt No. 5, was
approximately 3,000 feet away. According to Slone, persons are
required to cross the belt to clean it, and to maintain the
rollers and remove dust. He said that crossing the belt while it
is in motion without the use of a crossover facility is a hazard .
Slone's testimony was not contradicted, and accordingly I
find that the No. 5 belt was not provided with a crossover in
violation of Safeguard No. 3146294.
Inasmuch as persons desiring to cross the belt to clean it
could either wait until the belt is turned off,. or walk to the
closest crossover, I find that the violation herein to be only a
moderate level of gravity. No facts were adduced with regard to
Respondent's negligence, and hence that I cannot find that it was
more than a low level. I conclude that· a penalty of $30 is
appropriate for this violation.

149€>

G. .

Citation No. 3146300

on May 3, 1990, Respondent utilized a miner and two bridge
carriers hooked to one another, to . remove coal. The bridge
carriers are moved in tandem with the miner and operated from the
side of the bridge carrier. 1 The location of the panel
containing. the controls for the operation of the bridge carrier
requires the miner operating it to crawl alongside the carrier.
The operator of the miner is not . able to see either the bridge
carriers or their operators. Hence, the bridge carriers are
provided with a switch which allows the operator of the carrier
to de-energize the miner, so as to prevent it, in an emergency,
from running into the carrier and possibly crushing its operator.
The miner itself does not contain an automatic shut off in the
case an emergen~y.
On May 3, 1990 ·, · when the system was observed by Slone, the
switch at the bridg~ carrier to stop the miner in the event of an
emergency did not operate, although the switch to stop the
carrier itself did function. Slone issued a Citation alleging a
violation of Section 75.1725 supra. · Slone's testimony that the
emergency switch did not operate was not contradicted. Due to
the failure of the switch, there was a danger of the miner
· running into the carriers and thus injuring their operators.
I
thus conclude that the haulage system at question was not in a
safe condition, and hence Section_ 75.1725 was violated.
Slone testified that in 1977 a fatality had occurred when an
operator of a bridge carrier was crushed against the rib by a
miner. Slone testified that in backing up the miner, its
operator could not see the bridge carriers or their operators.
This testimony was not contradicted.
Hence, since the emergency
switch of the bridge carrier herein did not function, I find that
there was a reasonable likelihood of a reasonably serious injury
to the operator of the carrier. I thus conclude that the
violation was significant and substantial.
Inasmuch the violation herein could have resulted in a
fatality it is of a high level of gravity. According to Slone's
uncontradicted testimony, Gary Williams, Respondent's
superintendent, informed him when he discussed the violation with
him that he knew that the switch was out. There were no facts
presented at the hearing to mitigate Respondent's ·negligence . I
find that the degree of Respondent's negligence was of a high
level. I conclude that a penalty of $300 is appropriate for this
violation.
·

1Each carrier has its own operator.

1497

II.

Docket No. KENT 90-60
A. Order No . 3146.287
.

.

In essence Slone testified that when observed by him on
April 16, 1990, a portable sanitary toilet located on the surface
of Respondent's mine was locked with a padlock. He said that
inside the shop a key was hanging on a nail 12 feet above the
floor, and a sign indicated that it .was a toilet key. Slone
issued an Order alleging a violation of 30 C.F.R. § 75.500.
Respondent did not contradict Slone's testimony. Hence, I
find that Respondent herein did violate Section 75.500 supra
which requires the provision of a sanitary toilet.
I find that . th~. level gravity of this violation was low.
According to Slone, Williams did not .g ive him any reason why the
toilet was locked • . There were no facts adduced to mitigate
Respondent's negligence. I find ·that the violation herein
resulted from Respondent's intentional act. I find that a
penalty of $500· accordingly is appropriate.
B.

citation No.3146291

At the hearing, Respondent moved to withdraw its Answer with
regard to this citation. Accordingly, judgment is entered in
favor of the Secretary based on the pleadings. Respondent shall
pay a civil penalty of $50, the amount sought in the Secretary's
Petition.
·
III.

Docket No. VA 90-62

At the hearing, the Respondent moved to withdraw its
pleading in regard to this docket number. The motion was
granted, and accordingly judgment is entered on the pleadings in
favor of the Secretary. Respondent shall pay a civil penalty of
$364, the amount sought in the Secretary's Petition.
ORDER
It is ORDERED that Citation No. 2968870 be DISMISSED. It is
further ORDERED that Judgment be entered in favor of the
Petitioner with regard to Citation No. 3146291, and regard to
Docket VA 90-62 . It is further ORDERED that Respondent pay,
within 30 days of this Decision, $1,644 as a civil penalty.
~

~(~\J ~

Avram ~eisberger
Administrativ e Law Judge

149 8

Distribution:
Ronald E. Gurka, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified M~il)
Carl E. McAfee, Esq., LJ's Coal Corporation, P.O. Box M, st.
Charles, VA 24282 {Certified Mail)
nb

1499

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

SEP 1 9 1991

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 90- 197- M
A . C. No . 04-01924- 05518

v.

Docket No. l\IEST 90- 205- t-1
A . C . No . 04-01924- 05519

JAMIESON COMPANY,
Respondent

Pleasanton Pit & Mill
DECISION

Appearances:

Before :

George O ' Haver , Esq ., Office of the Solicitor,
U. S . Department of Labor , San Francisco, CA,
for Petitioner ;
William R. Pedder , Esq. , Alameda , CA,
for Respondent.

Judge Morr i s

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration ( " MSHA") alleges Respondent Jamieson Company , ( " Jamieson" ) , violated safety regulations promulgated under
the authority of the Federal Mi ne Safety and Health Act , 30
u. s . c . § 801 , et ~(the " Act" ).
A hearing on the merits was held on July 9 , 1991 , i n San
Franci sco , california .
The 'parties filed post- trial briefs .
Docket No. West 90- 197-M
This case involves three citations .
Citation No . 3460324
alleges Jamieson violated 30 C. F . R. § 14112 .
At the hearing , Petitioner moved to vacate th i s citati on .
For good cause shown, the motion was granted and i t i s formalized in this decision.

1500

§

Citation No . 3458703 alleges the operator violated 30 C. F . R.
56.14112(B). 1
THE EVIDENCE

Ann F. Johnson , an MSHA inspector since February 1989 , is
experienced in mining and construction .
(Tr . 7).
On March 6 , 1990 , she inspected Jamieson ' s sand and gravel
operation in california. The fairly good-sized operation employs
about 80 people .
During the course of the inspection Ms . Johnson observed the
guard on the PC4A tail pul l ey conveyor belt. The guard was hangThe posts secure the pinch point on
i ng by one of its two posts .
the tail pulley .
( Tr . 9) . Ms . Johnson prepared a drawing
depicting the guard . · (Ex. S- 1 >.
.
.
The head pulley of the c onveyor was depositing coarse
material (rock and dirt) onto the tail pulley of the conveyor .
The inspection party determined that the material coming off
the head pulley had knocked off the guard.
(Tr . 10, 11} .
There
was a single extended guard for the tail pulley and the conveyor
belt roller.
(Tr . 12) .
Ms. Johnson states she was on the other side of the guard
from the portion shown in Exhibit R-2.
The company had only one
guard at that time .
(Tr. 14 , 1 5) .

1

The cited regulation reads as follows :
56.14112 Contruction and maintenance of
guards .
(a) Guards shall be constructed and maintained
to(1) Withstand the vibration , shock , and wear
to which they will be subjected during normal
operation; and
(2) Not create a hazard by their use.
(b) Guards shall be securely in place while
machinery is being operated , except when test
ing or mak i ng ad j ustments which cannot be performed without removal of the guard .
§

1501

CHRISTOPHER LEE MATHIAS , safety coordinator for Jamieson ,
accompanied the inspector during the walk-around .
(Tr. 26, 27) .
The drawing (Exhibit R-1) is a fair representation ~f the
conveyor belt .
There are two separate guards : One is for the
tail pulley and one for the skirting panel. The tail pulley
guard did not tall in any z:ash1on . t...ia c~l:' iC:l.J.. l:Oitliro~y iut:o -ct..:: .
hopper caused the skirting guard to be displaced.
The guard was photographed (Exhibit R-2) from a different
side but it reflects the situation. The tail pulley guard is
separate from the skirting guard .
(Tr . 29).
The side shown in Exhibit R-2 is not the side where the
guard was displaced.
Even with the skirting guard out of place no one would have
access to the tail pulley since the tail pulley was well protected.
The skirting guard had fallen down between the first and
second inspection of the area .
(Tr . 32) .
Mr . Mathias disagrees with the inspector's contention that
the guard was one piece rather than two. The skirting panel
guard that fell was actually protecting the conveyor belt rollers.
(Tr. 35>.
Exhibit R- 3 is MSHA's policy statement relating to conveyor
belt rollers.
(Tr. 36).
Discussion and Further Findings
The critical question here is whether there were separate
guards, namely a skirting guard and a tail pulley guard.
The citation itself does not clarify this issue . However,
Inspector Johnson prepared a diagram at the time of the inspection (Exhibit S-1) .
The diagram shows shape of the "fall en"
guard to be e l ongated rather than square.
This discription bears
a striking resemblance to the drawing of the skirting guard shown
in the operator ' s schematic drawing.
(Ex . R- 1) .
The inspector testified the guard \'las a one piece unit.
However, I credit the contrary testimony of Jamieson ' s safety
coordinator . He indicated the tail pulley guard was separate
from the skirting guard . As a safety coordinator , Mr. Mathias
should be more familiar than the inspector with the intricacies
of the guards on the PC-4A conveyor .

1502

In the factual_ scenario presented here it ·appears a prima
facie violation of. § 56 .14112:( b) existed. -It is uncontroverted
that the skirting guard was not "securely in place" within the
meaning of. the regulation.
In - support of its defense that the citation should not have
been issued, Jamieson of~ers a portion of MSHA's Program Policy
~1anual, Volume IV, Part 56/57, which provides in part as. follows:
Conveyer belt rollers are not to be construed
as "-sil'!lilar exposed moving machine parts" under
the standard and cannot be cited for the absence of guards and violation of this standard
where skirt boards exist along the belt. However, inspectors should recognize the accident
potential, bring the hazard to the attention of
the. mine ope~ators, and recommend appropriate
safeguards to prev~nt injuries. <Ex. R-3).
The cited portion of the Policy .Manual is not applicable
here. It is true the conveyor belt rollers are at least partially guardeQ by skirt guards along the belt. (See Ex. R-2).
However, MSHA's policy statement deals with "sfmilar exposed moving machine parts". Such "exposed moving machine parts" are not
involved in the cited regulation, § 56.14112.
Even ass~ing MSHA was not following its own directives that
factor would not be a sufficient reason to vacate an otherwise
valid citation. MSHA's instructions are not officially promulgated and do not p~escribe rules of law binding on the Commission.
Old Ben Coal Company 2 FMSHRC 2806, 2809 (1980).
Citation No. 3458703 should be affirmed.
§

2

Citation No. 3458711 alleges a violation of 30 C.F.R.
56.12005. 2
The cited regulation reads as .follows:
§

56.12005 Protection of power conductors from
mobile equipment.

Mobile equipmen~ shall not run over power
conductors, nor shall loads be dragged over
power conductors, unless the conductors are
properly bridged or p~otected.

1503

THE EVIDENCE
During the inspection Ms. Johnson observed a power cable
l ying across a concrete driveway .
The weld i ng power cabl e extended from the mi l l shop to the tool c r ib building. The 440
volt cable was not bridged or protected. There were t i re marks
on the cable. If cables of this type are run over , the inside
wires can be crushed . If electrical current escapes, a fatality
could result.
(Tr . 17 , 18). There were employees in the area.
The condition was abated by putting the cable in conduit and
plac ing it over the top of the driveway . Ms . Johnson prepared a
diagram showing the violative condition .
(Ex. S-2) .
The cable
had been spl i ced next to the shopmill but the splice was not mechanical l y strong.
(Tr. 1 9-21) .
It had rained the day of the
i nspec tion and there was moisture i n the air .
( Tr . 24) .
One to five people could be impacted by this situation .
<Tr. 2 5) •

MERLE w. MOODY , an electrician for Jamieson, accompanied the
inspector. The location of the cable across the driveway was
temporary .
Mr . Moody did not observe any water in the area.
In his
opini on if there was any leak from the cable it would go to
ground which is wrapped in the cable . However , i t could go to
ground or spray out .
(Tr . 39) . If the electricity goes to
ground , the current is broken and it kicks the breaker.
(Tr 40).
Witness Mathias (recalled) indicated the photograph (Exhibit
R- 3) depicts the same condition as existed on the day of the
inspection.
( Tr . 4 3) .
Discussion and Further Findings
Respondent does not dispute the existence of this violation
but contests the " significant and substantial" designation and
the number of people affected, i . e. , f i ve (5) with the consequent
alleged high degree of negligence.
A violation is properly designated as being of a significant
and substantial nature if , based on the particular facts
surrounding the violat i on , there exists a reasonable likelihood
that t he hazard contributed to will result in an injury or illness of a reasonabl y serious nature. Cement Division , Nat i onal
Gypsum , 3 FMSHRC 822 , 825 (April 1981 ) ; Mathies Coal Co ., 6
FMSHRC 1, 3-4 (January 1 984) .
In Consolidation Coal Co. , 8
FMSHRC 890 , 897- 98 (June 1982) , aff ' d , 824 F.2d 1071 (D . C. Ci r .

150 4

1987), the Commission explained that adapting the National
Gypsum/Mathies test to a violation of a mandatory health standard
results in the following formulation of the elements necessary to
support a significant and substantial finding:
(1) The underlying violation of a mandatory
health standard; (2) a discrete health hazard-a measure of danger to heal"th constributed to by
the violation; ( 3) a reasonable likelihood that
the health hazard contributed to will result in
an illness; and (4) a reasonable likelihood that
the illness in question will be of a reasonably
s er i ou s nature.
In the instant case, Inspector Johnson testified that a fatality could result if the high voltage current escaped from the
power cable. I credit Ms. Johnson's testimony over the contrary
view of the operator's expert. Mr. Moody, in fact, conceded that
electricity "could" spray out of the power cable.
(Tr. 39).
The close proximity of workers in the vicinity of the power
cable establish factors (3) and (4) within the National Gypsum
doctrine. Factors (1) and (2) are apparent.
Citation No. 3458711 should be affirmed.
Docket No. WEST 90-205-M
This case involves Citation No. 3460325 alleging the operator violated 30 C. F.R. § 56.1420l(b).
At the hearing, Petitioner moved to vacate the citation.
For good cause shown, the motion was granted and it is formalized in this decision.
Civil Penal ties
The statutory criteria to assess civil penalties is contained in Section llO(i) of the Act, 30 u.s.c. § 820(i).
The evidence establishes that Jamieson has 80 employees and
is a "fairly good-size" operator. As a result, the penalties
herein appear appropriate.
There is no evidence as to the effect of the penalty on the
operator's ability to continue in business. However, this is an
affirmative defense.

1505

The record fails to develop any facts showing the opera-tor's ·
prior history.
Concerning the operator's negligence: the guard was displaced between the initial inspection and a subsequent walkthrough on the same day. This indicates only minimal ·negligence
was involved.
The power cable on the concrete driveway involves high negligence such the condition was open and obvious.
The gravity involving the displaced guard was minimal as the
tail pulley guard remained in place. Further, employees were
only minimally exposed to the hazard.
The power cable involved exposure to at least one employee.
I consider the gravity high whether one employee or five employees were involved.
The operator demonstrated statutory good faith by abating
the violative conditions.
Considering the statutory criteria, I consider that the penalties set forth within this decision are appropriate.
For the foregoing reasons I enter the following:
ORDER

Docket No. West 90-197-M:
1.

Citation No. 3460324 and all penalties therefor are

VACATED.

2. Citation No. 3458703 is AFFIRMED and a penalty of
$20 is ASSESSED.
3. Citation No. 3458711 is AFFIRMED and a penalty of
$200 is ASSESSED.
Docket No. West 90-2 0 5-M:
4.

Citation No. 3460325 and all penalties therefor are

VACATED.

Law Judge

1506

Distribution:
George O'Haver, Esq., Office of the Solicitor, U.S. Department of
Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA
94105-2999 (Certified Mail)
William R. Pedder, Esq., 2(47 Santa Clara Avenue, Suite 201,
Alameda, CA 94501 (Certified Mail)

sh

1507

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
!;lOOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

SEP 1 9 J99J
WILLIAM P. KORHONEN, USWA,
ON BEHALF OF FOUR MINERS
J . EDWARDS, B. COLEMAN,
C. MAEZ, and R. BOWERS,
Complainants

DISCRIMINATION PROCEEDING

..

v.

Docket No. WEST 90-267- DM
RM MD 90-07
General Chemical Mine

GENERAL CHEMICAL COMPANY,
Respondent

.

DECISION
AND ORDER OF DISMISSAL
This case is before me on a discrimination complaint filed
under Section 105(c) of the Federal Mine Safety and Health Act of
1977 (the Act). The complaint was filed by William P . Korhonen ,
President USWA , Local Union 1532 Miners Representative on behalf
of four miners , Mr . John E. Edwards, Mr. Barrey w. Coleman, Mr.
Casey L. Maez and Mr. Robert F . Bowers.
The Complainants allege that Respondent violated the provision of 30 C. F.R . § 48 . 30 in its scheduling of rotating shift/
surface production employees for MSHA required annual refresher
training and in so doing discriminated against them in violation
of 105(c) of the Act.
The initial complaint was filed with MSHA i n April 1990.
MSHA made an investigation and on review determined that the
facts disclosed during the investigation did not constitute a
violation of Section 105(c) of the Act.
Complainants then filed the discrimination complaint with
the Commission . After the matter was set for hearing before me,
the parties filed and requested approval of a settlement agreement which in pertinent part reads as follows:
Concurrent with the representing parties and
affected miners signature to the following,
and with Admin i strative Law Judge August F .
Cetti ' s acceptance of same , all Discrimination
Complaints under this matter are hereby withdrawn .
The Company , in its scheduling of rotating
shift/surface production employees for MSHA
required annual refresher training will afford such employees the option to receive .
such training:
1508

(a) on the last day of the employee's normal
evening shift schedule, provided that the employee agrees to obtain the training on day
shift and further agrees to fulfill his or
her scheduled shift for that given evening
Or,
(b) during the employee's normal working
hours when he or she is normally scheduled on
day shift.
While it is understood that in certain instances, unforeseen circumstances may dictate
training schedules other than that which an
employee has .chosen, it is also understood
that the Company will exhaust the list of
those qualified, by experience and contractual
agreement, to fill the vacancy, if the Company
desires to fill such vacancy, of the employee
who has chosen to receive training during his
or her normally scheduled day shift hours.
The proposed settlement provides that on the undersigned Administrative Law Judge's acceptance of the executed settlement
all discrimination complaints under Docket No. WEST 90-267-DM are
"withdrawn".
After careful review and consideration of the pleadings, arguments, and submissions in support of the proposed settlement of
this case, I conclude and find that the proposed settlement disposition is reasonable, appropriate, and in the public interest.
Accordingly, the settlement is accepted and this proceeding is
DISMISSED.

&£.
t F. Cetti
nistrative Law Judge

1509

Distribution:
William P. Korhonen, President, USWA, Local Union 15320, Miners'
Representative, Post Office Box 1588, Green River, WY. 82935
Matthew F. McNulty, III, Esq., VANCOTT, BAGLEY, CORNWALL &
McCARTHY, 50 South Main, Suite. l600, Post Office Box 45340, Salt
Lake City, UT 45340
Mr. James Vaneskey, Safety Superintendent, GENERAL CHEMICAL co.,
Post Office Box 551, Green River, WY 82935
Mr. John E. Edwards, · 317 Pinion St., Rock Springs, WY 82935
Mr. John E. Edwards, 317 Pinion St., Rock Springs, WY 82935
(Certified Mail)
Mr. Barrey W. Coleman, Box 861, Lyman, WY 82937

(Certified Mail)

Mr. Casey L. Maez, 1110 Bridger Drive, Green River, WY 82935
(Certified Mail)
Mr. Robert F. Bowers, 403 w. Walnut, Lyman, WY 82937
(Certified Mail)
Office of Special ·Investigations, MSHA-Metal, u.s. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Mr. Harry Tuggle, Safety and Health Specialist' United SteelWorkers of America, Five Gateway Center, Pittsburgh, PA 15222

sh

1 510

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

SEP 2 3 1991
SECRETARY OF LABOR,
MINE ·.SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
SUMMIT INCORPORATED,
Respondent

.
.

.
.
.
.

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 90-112-M
A.C. No. 39-01363-05502 X52
Docket No. CENT 91-49-M
A.C. No. 39-01363-00503 X52
Richmond Hill Mine

DECISION
Appeara~ces:

Susan J. Eckert, Esq., Office of the Solicitor,
u.s. Department of ·L abo·r, Denver, Colorado,
for Petitioner;
J9hn J. Delaney, Esq., DELANEY, BANKS, JOHNSON,
JOHNSON, COLBATH & HUFfMAN, Rapid City, South
Dakota,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of Mine Safety and Health
Administration (MSHA), charges Respondent Summit, Inqorporated
11
(
Surnrni t 11 ) , with violating safety regula tiona prornulga ted under
the Federal Mine Safety and Health Act, 30 u.s.c. § 801 et ~
(the "Act").
A hearing on the merits was held in Rapid City, South
Dakota, on May 29, 1991. The parties filed post-trial briefs.
STIPULATION
·At the hearing the parties stipulated as follows:
1. summit is engaged in the mining of gold, lode, and
placer, in the United States, and its mining opera~ions affect
interstate commerce.
2. Summit is an operator at the Richmond Hill Mine, MSHA
I.D. No. 39-01363-X52.
3. Summit is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977; 30 u.s .• c. § 801, et -~
4.
rna tter.

The Administrative Law Judge has jurisdictio~ in this
1511

5. The subject citation was properly served by a duly
authorized representative of the Secretary upon an agent of
Respondent on the date and place stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevance of any
statements asserted therein.
6. The exhibits to be offered by Respondent and the Secretary are stipulated to be authentic but no stipulation is made as
to their relevance or the truth of the matters asserted therein.
7. The proposed penalty will not affect Respondent's ability to continue in business.
8. The operator demonstrated good faith in abating the
violation.

I • 1•

9. The certified copy of the MSHA Assessed Violations History accurately reflects the history of this mine for the two
years prior to the date of the citation.
10. The operator is a medium-sized operator with 144,452
hours worked in 1990.
§

In CENT 91-49-l-1 Summit is charged \'lith violating 30 C.P.R.
56.11002. 1
Citation No. 3452409 reads as follows:
The walkway along the right side of the Keohring
back-hoe with a rock knocker attached on it was
not equiped [sic] with handrails or midrails to
eliminate a person from falling off walkway and
being injured. The walkway was approximately
4 1/2 feet up off the ground. Person uses \'lalkway for maintenance and repair, which is probably
not often. The Koehring back-hoe was located at
the ore stockpile a~ the crushing area.

1

The cited regulation provides as follows:
§ 56.11002

Handrails and toeboards.

Crossovers, elevated walkways, elevated ramps,
and stairways shall be of substantial construction
provided with handrails, and maintained in good
condition. Where necessary, toeboards shall be
provided.

1512

GUY CARSTEN, an MSHA inspector experienced in m1n1ng,
inspected the Richmond Hill Mine \'lhere Surnmi t was performing
worlc .
( Tr. 10-12) • The inspection took place on Ma reb 8, 1990.
The inspector observed that the walkway on the right side of the
backhoe lacked a handrail and a midrail. The walkway was approximately 18 inches wide and about 12 feet long. It was about 4.5
feet above the ground. .( Tr . 13-14) .
(See Exs. R-1 , R- 2, and R- 3
showing backhoe with rail installed.)
Inspector Carsten considered the walkway to be a travelway
because a fire extinguisher was located about halfway to the cab.
In addition, maintenance and pre-inspection workers use the walkway to check the engine ( Tr. 14). Summit ' s representative
Mr. Ross told the inspector that workers travel the area approximately twice a week.
(Tr. 14>.
The cab was located on the front part of the backhoe. You
can step out of the cab onto the walkway and walk down th~ walk~
way to the motor compartment.
(Tr. 15).
There were no handrails or midrails on the outside edge.
(Tr. 15). The inspector considers this condition to constitute a
violation of Section 56.11002 since the standard requires handrails on the outside edge of an elevated walkway.
(Tr . ·17) .
Inspector Carsten has cited other operators under Subpart J .
In a CAV inspection, the operator (not Summit) was required
to change the original structure of the machine.
(Tr. 18).
The inspector did not consider this to be an S&S violation
because the walkway was seldom used .
(Tr . 19).
MSHA inspectors are required to wr1~e a citation if they
observe a violation . The hazard involved any worker \'lho might
fall off a walkway and be injured.
(Tr. 20).
The operator abated the citation by placing handrails, as
well as midrails, on the walkway.
The South Dakota Cement Plant and Pete Lien & Company have
similar equipment (backhoes) equipped with handrails and guardrails.
(Tr. 24).
The inspector did not have an MSHA policy memorandum stating the side of a backhoe constitutes a travelway.
(Tr . 29, 30) .
In the inspector's opinion, a walkway is r egularly used if
it is used once weekly or monthly.
(Tr. 31). If it is used once
a year, that would be sufficient to make the passageway "regularly used. " (Tr. 31).

1513

Whoever starts the backhoe should pre-inspect it. The person doing such inspections must walk do~m the passageway.
If no
person ever uses the walkway, then it is not a travelway.
(Tr.
32, 33).

The handrails, as presently located, prevent the engine compartment doors from opening fully. The doors could either be put
on a slide or be hinged on each side.
(Tr. 37).
The inspector did not know if this equipment had been previously cited.
(Tr. 41).
CHUCK ROUNDS, testifying for Summit, advised MSHA in a
letter that the walkway was used a couple of times a week.
(Tr.
43). A worker ·boosts himself to a standing position on the platform by using a grab rail on the back corner of the machine.
' ··
(Tr. 44).
The mechanics usually visually check components of the
machine.
(Tr. 45) .
The operator of the machine does not do any maintenance work
on it.
The operator does his walk-around inspection on the
ground before he climbs on the machine.
(Tr. ~6).
Before this citation was received, no one suggested that
handrails were required.
(Tr. 47, 48). MSHA inspections occur
twice a year.
(Tr • . 48).
The company is challenging the citation because extending
the rails would modify the swing radius of the backhoe.
Also,
handrails can be knocked off while the equipment is being
operated.
Supervisory employees, both mechanical and production, would
see this equipment on a daily basis. The platform, located 54
inches off the ground, is wide enough to accommodate a worker
traveling between the cab and the engine.
(Tr. 52).
GUY CARS.TEN, recalled, . testified that Summit was the
first operator cited "in recent history."
(Tr. 55).
JOHN ROSS, safety director for Summit, indicated the
company had never been previously cited for this condition.
The machines have platforms along the side and are inspected
by MSHA twice a year.
( Tr. 56). The company was never previously cited for this condition.
The backhoe operator has no duties that require him to
travel to the rear of the machine.
(Tr. 57). The maintenance

1514

people check the oil , fuel, and do such repairs as are neceSsary;
maintenance is done from the counterweight; and the sid e door is
used to remove interior parts.
(Tr . 58). The operator does his
walk-around from the ground.
( Tr. 59).
Mr. 'R.oss agreed that he told the inspector that the maintenance people travel that area. If a pump goes out, it w~uld have
to be replaced .
(Tr. 60).
MARTY DELP, equiprn·e nt manager for Summit, worked for
CATERPILLAR dealers for 23 years. He is familiar with backhoes
of similar size and nature as the one involved here .
In the industry, backhoes of this size have a platform alonq
the side. They have no guardrails. In his 23 years , Mr. Delp
was never aware of being cited for such a traveh1ay lacking a
guardrail .
(Tr. 62 , 63).
Mr. Delp ' s department is responsible for maintenance "Vlhich
includes daily maintenance and repairs .
The equipment operators
have no maintenance responsibilities for this equipment . On very
rare occasions , a backhoe operator will start the machinery.
The backhoes are operated two to three times per week.
(Tr .
63, 64) . A maintenance person would cross the track onto the
pla tforrn , come back to the countervleight, open the · rear doors,
and check the engine oil and the radiator.
(Tr . 64) . He would
then climb down , go up to the cab , and start the machine.
(Tr.
65) . He would go in through the side door when there was a
radiator or a heating problem. A visual inspection is made
through the door to check for radiator leaks.
(Tr . 65).
The platform on the side of the backhoe , to the witness ' s
knowledge, v1as not used as a walkway by the maintenance workers.
(Tr . 66).
If the radiator must be removed, it would be necessary to
unbolt the handrail, which is held by three bolts. The handrail
has restricted access to the back of the counterweight and to the
grab rail.
(Tr. 67).
The company has other backhoes without guards·.
not been cited for such equipment.
(Tr . 68, 69).

They have

Exhibits R-4 , R-5 , R-6, and R-7 show similar equipment,
which also lack handrails.
(Tr . 71).

1515

DARRYL GALT has been the Operations Manager for Butler
Machinery Company in Rapid City since March 1989. Butler machinery is ~ne authorized dealer for hydraulic excavators , 2 including CATERPILLAR.
(Tr. 78).
In contacting major mining companies , the CATERPILLAR company , other manufacturers , and competitors , it was established
that any backhoes manufactured in the 50,000-pound class and
above come equipped with platforms on the service access areas.
(Tr. 80-82). Such suppliers are expected to build equipment
complying v1ith applicable safety regulations.
There are no
guardrails on any of Summit ' s other equipment nor have they been
cited by HSHA .
(Tr. 84, 85).
All of the CATERPILLAR equipment is manufactured in accordance with the SAE 185 Safety Standards.
(Tr. 85).
The backhoe ·
falls under Subpart M which makes it a mobile machine and, as a
result , guardrails are not required.
(Tr . 85). The SAE standards are developed by the Society of Automotive Engineers .
( Tr .
85) . The existing SAE standards do not have any requirements for
guardrails . The SAE regula ·t ions come up for modification every
five years.
<Tr. 86).
The witness identified two exhibits ( R-8, R- 9), showing two
pieces of equipment with access platforms but without guardrails.
(Tr. 87).
Mr . Galt described a handrail or handgrab as something taken
a hold of to .help lift yourself onto a machine. On the other
hand , a guardrail i s to prevent an individual from falling over
an open side.
(Tr . 89, 90).
The rotating structure of these backhoes continually moves
in a 360° swing. If the machine is made longer or wider, its
capability to operate in confined spaces is limited.
(Tr. 91 ,
92) •
DISCUSSION
The initial issue presented here is whether the facts
establish a violation of Section 56.11002 .

2

A hydraulic excavator is the same as a backhoe such as involved here.
(Tr. 79) .

1516

The mandatory regulation requires, in its relevant part,
that "eleva ted walkwaysn shall "be provided with handrails."
This regulation is contained in Part 56 of 30 C.F.R. which
regulates surface metal and non-metal mines .
While the term " travelway" is defined in Sections 56 .2 and
56.3000 , there is no definition of what constitutes a "walkway."
It is accordingly proper to construe "walkway " in its ordinary
meaning . l.Vebster defines a walkway as "a passage for walking." 3
The definition of a "walkway" appears less broad than that of
"travelway . "
In the factual scenario presented here, maintenance workers
use the walkway to check the motor as well as the radiator . According to Witness Ross, people "travel that area approximately
twice a week."
( Tr. 14) . The walkway is a means of traveling to
the motor compartment pf each of the backhoes. Further , whoever
pre-inspects the equipment would have to travel on the walkway to·
check the fire extinguisher located ·near the compartment door.
(Tr. 32>.
Section 56.11002 is not detailed but rather is the type made
" simple and brief in order to be broadly adaptable to myriad 'circumstances." See, Kerr McGee Corp., 3 FMSHRC. 2496, 2497 (November 1981); Alabama By-Products Corp., 5 FMSHRC 2128, 2130 (December 1982} . Nevertheless , such a broad standard must afford reasonable notice of what is required or proscribed. U.S. Steel
Corp., 5 FMSHRC 3, 4 (January 1983}. The safety standard must
"give the person of ordinary intell ig ence a reasonable opportunity to know what is prohibited , so that he may act accordingly."
Grayned v. City of Rockford, 408 u.s. 104, 108-109 (1972}; ~
also , Phelps Dodge v . FMSHRC, 682 F.2d 1189, 1192 (9th Cir .
1982} .
When faced with a challenge that a safety standard failed to
provide adequate notice of prohibited or required conduct , the
Commission has applied an objective standard, i.e., the reasonably prudent person test. The Commission recently summarized
this test as "whether a reasonably prudent person familiar with
the mining industry and the protective purposes of the standard
would have recognized the specific prohibition or requirement of

3

Webster, New Collegiate Dictionary, 1979, at 1307.

1517

the ~tandard would have recognized the specific prohibition or
requirement of the standard." Ideal Cement Co . , 12 FI'iSHRC 2409,
2416 (November 1990). " In order to afford adequate notice and
pass constitutional muster, a mandatory safety standard cannot be
'so incomplete, vague, indefinite or uncertain that [persons) of
common intelligence must necessarily guess at its meaning and
differ as to its application . • " Id . , quoting ~labama By-Products
.Corp. , 4 FMSHRC at 2129 .
In the instant case there is no evidence of the \'Ieight of
this backhoe but industry standards require guardrails if the
"'eight of the equipment exceeds 50,000 pounds. This would indicate that a reasonably prudent person would have recognized
that handrails were required on its . backhoes by Section 56 . 1102.
The initial issue presented here is whether the facts
lish a violation of Section 56.11002.

estab~

The regular activities by maintenance workers using the
platform establish the platform of the service access area is a
vlalkway. Compare Homestake Mining Company , 4 FMSHRC 146 (1982);
Hanna Mining Co., 3 FMSHRC 2045 (1981).
Since the platform was about 4.5 feet off the ground, it was
elevated. Compare : United Cement Company, 2 FMSHRC 133 (1980)
(Cook, J) (Platform 30 inches above ground without handrails;
held to be a violation of 30 C.F.R. § 56 . 11) .
It is uncontroverted that the platform lacked guards.
Summit argues the section cited does not apply to backhoes .
Specifically, the operator argues that read in its entirety the
Subpart is clearly designed for general application to protect
workers as they move from place to place. Further, Summit contends the platform is not a travelway.
I conclude the cited section encompasses elevated walkways
found on mobile equipment as well as in other locations .
Subpart
J of Part 56, entitled " Travelways" is a general section relating
to travelways found in surface metal and/or non-metal mines .
There is no language in Subpart J removing mobile equipment from
the application of Section 56.1102 . It is true that Subpart M is
entitled "Machinery and Equipment ." However, there is no language in Subpart M stating that mobile equipment is not covered
by Subpart J as well .
A broad interpretation of Section 56 . 11002 to include elevated walkways on mobile equipment is warranted and consistent
with the intent of Part 56. See ~deal Cement Company , supra.

1518

This section should not be interpreted narrowly so as to derogate
from the safety of miners by removing all mobile equipment from
the Subpart J requirements. If an elevated walkway found at a
crusher is considered unsafe without handrails, then the elevated
walkway found on a piece of mobile equipment is like\'lise unsafe.
Clearly MS~A knows how to remove equipment from the coverage
of a regulation. For example, see Section 56.11025, provides as
follows:
Fixed ladders, except on mobile equipment, shall
be offset and have substantial railed landings at
least every ••••
It is apparent, as stated by the inspector, that Summit is
the only operator cited for this condition "in recent history." '
However, since the facts establish a violation of the regulation,
the citation should be affirmed.
Respondent also asserts, for various reasons, that the platforlll on the backhoe as a "travelway."
As previously noted, Section 56.11002 addresses "eleva ted
walkways." "Travelways," which are otherwise defined, are not
involved in this case.
In CENT 91-49-M, the citation should be affirmed.
In CENT 90-112-M, the parties submitted a written settlement
motion to settle one citation for $54, · the amount of the penalty
originally assessed. Petitioner further modified the citation to
indicate the violation was non-S&S.
In support of their settlenent motion, the parties have further submitted information relating to the statutory criteria for
assessing civil penalties as contained in 30 u.s.c. § 820(i).
I have reviewed the proposed settlement and I find it is
reasonable and in the public interest. It should be approved.
CIVIL PENALTY
It is necessary to assess a civil penalty for the violation
of Citation no. 3452409.
The statutory criteria to assess civil penalties are contained in Section llO(i) of the Act, 30 u.s.c. § 820(i).

1519

The operator's previous history is very favorable since it
was cited for only one violation in the two years prior to
March 7, 1990. It had no violations before March 8, 1988.
The operator is medium-sized and the proposed penalty wil~
.not affect the company's ability to continue in business.
CStipulation) •
The operator was negligent since the lack of guardrails was
an open and obvious condition.
The gravity was low since the
platform was only 4.5 feet off the ground. The operator abated
the violation and is entitled to statutory good faith.
I believe that the proposed penalty of $20 is appropriate.
Accordingly, I enter the fol.lO\'ling:
ORDER
In CENT 91-49-M:
1. Citation No. 3452409 and the proposed penalty of $20 are
AFFIRMED.
In CENT 90-112-M:
2.

The settlement agreement is APPROVED.

3. Citation No. 3452408 and the proposed penalty . are
AFFIRMED.
4. Respondent, if it has not already done so, is ORDERED
TO PAY $54 to the Secretary of Labor within 40 days of the date
of this decision for the settlement in CENT 90-112-M.

•
Law:. Judge
Distribution:
Susan J. Eckert, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294 (Certified Mail)
John J. Delaney, Esq., 3202 West Main Street, Rapid City, SD
57702 (Certified Mail)

ek

1520
. ..

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRAT IVE LAW JUDGES
2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SEP 2 3 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMI NISTRATION (MSHA) ,
Petitioner

v.

CIVIL PENALTY PROCEEDING
Docke t No . PENN 90-49
A. C. No . 36- 07783 - 03516
Slope No . 1 Mine

HICKORY COAL COMPANY,
Respondent
FINAL ORDER
Before :

Judge Fauver

My decision of July 2, 1991, found that Respondent violate d
103 (a) of the Federal Mine Safety and Health Act , 30 u.s.c . § 801
et seq. This matter has been pending assessment of a civil penal ty
for the violation.
§

The record indicates that the Department of Justice has
obtained a default judgment against Respondent for the arrearages
of unpaid civil penalties referred t o in my decision . It appears
that Respondent is now exploring with the Justice Department the
possibility of a schedule of payments to satisfy the judgment.
Considering the facts of the violation found in this case,
Respondent•s financial condition, and all the criteria for a civil
penalty in § 110(i) of the Act , I find that a civil penalty of $600
is appropriate for the violation found in this case .
WHEREFORE IT IS ORDERED that Respondent shall pay a civil
penalty of $600, in three monthly installments of $200 on November
1, 1991, December 1, 1991, and January 1, 1992; provided: if any
installment of $200 is not paid when due, the entire remainder of
the c i vil penalty shall become due immediately.

U}:J,t.~ ~v~
William Fauver
Administrat ive Law Judge

15 21

Distribution:
Anthony G. O'Malley, Jr., Esq., Office of the Solicitor, u. s.
Department of Labor, 144~0-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 {Certified Mail)
Mr. William Kutsey, Hickory Coal Company, R.D. 1, Box 479, Pine
Grove, PA 17963 {Certified Mail)
/fas

1522
. . ... ·~- ···- .. ' .... .

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

SEP 2 3 1991
CYPRUS TONOPAH MINING
CORPORATION,
Contestant

CONTEST PROCEEDINGS
Docket No. WEST 90-363-RM
Citation No . 3645243; 9/5/90

v.
SECRETARY OF LABOR ,
MINE SAFETY AND HEALTH
REVIEW ADMINISTRATION,
Respondent
SECRETA 'RY OF LABOR,
MINE SAFETY AND HEALTH
REVIEW ADMINISTRATION ,
Petitioner

v.
CYPRUS TONOPAH MINING CORP.,
Respondent

Docket No. WEST 90-364- RM
Citation No. 3459560; 9/5/90

.
.
.
.
.
.

Cyprus Tonopah
Mine I.D . 26-02069
CIVIL PENALTY PROCEEDING
Docket No . WEST 90-202-M
AO No. 26- 02069-05507

:

DECISION
Appearances :

Lisa A. Gray, Esq. , Office of the Solicitor , U.S.
Department of Labor, Arlington, Virginia,
for Respondent/Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll Professional Corporation , Pittsburgh, Pennsylvania,
for Contestant/Respondent.

Before:

Judge Lasher

In this matter (1) the Respondent/Petitioner (MSHA) seeks
assessment of penalties for two alleged violations originally
charged in two Section 104(a) 1 Citations dated February 27 ,
1990 , which were subsequently modified by MSHA on .March 1 , 1990,
to a Section 104(d)(l) Citation and a Section 104(d)(l) Withdrawal Order, respectively (I-T. 24-28), and (2) Contestant/Respondent Cyprus Tonopah Mining Corporation (herein "Cyprus")

1

Federal Mine Safety and Health Act of 1977, 30 U.S . C.

§ 801, et ~

1523

seeks (as enlarged at hearing) broad review of practically all
aspects of the two enforcement documents and MSHA ' s actions t;aken
with respect thereto . 2
Enforcement Documentation
Section 104(d)(l) Citation No . 3459560 as modified was issued
by MSHA Inspector Arthur L. Ellis and charges Cyprus wi th a v i o lation of 30 C.F . R. § 56 . 3200 as follows:
There was loose material and rocks on high walls
in the Pushback 1 Pit .
Benches were full and
did not provide protection from falling material.
The walls were about 145 ft . high. An access road
ran next to the west wall and pumps \'lere being
utilized to pump water at the bottom of the pit .
An employee enters the area to move and mainta i n
pumps .
The area was not posted or barricaded to
prevent travel alongside the high walls.
30 C. F . R. § 56.3200, under the general heading " Scaling and
Support" and pertaining to "Correction of Hazardous Conditions ,"
provides:
Ground conditions that create a hazard to persons shall be taken do\vn or supported before
other work or travel is permitted in the affected area. Until corrective \'lark is completed ,
the area shall be posted with a warning against
entry and , when left unattended , a barrier shall
be installed to impede unathorized entry .
Section 104(d)(l) Order No. 3645243 , as modified, was issued
by Inspector Ellis and charges Cyprus with the following violation of 30 C.F . R. § 56.3130 :

2 The hearing was held on three hearing days , March 13, 14,
and 15 , 1991. For each of the three days of hearing ther e is a
separate transcript beginning with page 1 . Accordingly , the
transcript citations wil l be prefaced with "I", . " II ", and "II I"
for March 1 3 , 14, and 1 5 , respect i vel y .

1524
...............

Benches between the 5545 level and the 5400 level
in the Pushback 1 had accumulated with materials
and would not provide an adequate catch-bench to
protect persons working below. An access road ran
next to the west wall and pumps were being utilized to pump water from the bottom of the pit.
Employees enter the area to move and maintain
the pumps. 3
30 C.F.R. § 56.3130, under the general heading "Mining
Methods" and specifically pertaining to "Wall, bank, and slope
stability" provides:
Mining methods shall be used that will maintain wall, bank, and slope stability in places
where persons work or travel in performing their
assigned tasks~ When benching is necessary, the
width and height shall be ba.sed on the type of
equipment used for cleaning of benches or for
scaling of walls, banks, and slopes.
Contentions
Cyprus (1) challenges the occurrence of both violations
charged, the special findings of "Significant and Substantial"
<"S&S") and "Unwarrantable Failure" attributed by MSHA to both,
and the validity of the issuance of the modifications to both
enforcement documents, and (2) maintains that both enf orcement
documents (the Citation and the Order) and the two safety standards allegedly infracted are impermissibly vague.
In addition,
and of considerable focus during litigation, Cyprus contends that
the two violations charged are duplicative. Cyprus alleges that
no "hazard" existed relative to the Section 56.3200 standard, and
that (a) there was no "wall, bank, or slope" instability, and
(b) clean benches were not "necessary" - relative to the Section
56.3130 standard.

3
It is noted that neither enforcement document specifically alleges that the benches themselves were failing, although
the testimony of MSHA's expert witness, Assistant District Manager Rodric M. Breland, mentions "failing" benches and stress
fractures in benches.
(I-T. 127-130). After careful scrutiny,
it is concluded that both enforcement documents are broad enough
to include this condition as a ground condition hazard or bench
inadequacy.

152!.

It is noted that Ci tation No . 3459560 is the underly i ng
l04(d)(l) Citation in the Section 104(d) chain required as a p r erequisite to the validity of the subject (d)( 1) Order, No.
3645243 (I - T. 26- 27) . Should, for any reason, the Citation fail,
or its 104(d) nature prove to be unsustainable , the validity of
the Order would likewise fail .
A final major question is whether, with respect to both the
allegedly S&S Citation and Order, any hazard contributed to by
any proven violation 'w'las "reasonably likely" to have resulted in
an injury .
MSHA ' S Modifications of Original Citations
Ci ·t ation No . 3459560 (involved in Contest Docket WEST
90- 364- RH) \vas modified to a Section 104(d) (1) Citation on
March 1, 1990 , at 8 a.m . , was "terminated" on 1'1arch 2 , 1990,
at 9 a . m. , and was modified what appears to be three subsequent
times thereafter .
In a modifica·tio.n on Septe..mber 5, 1990 , line
10 D of this enforcement document was modified to show that the
"Number of Persons Affected" was " 5" instead of "1".
Similarly, Citation No. 3645243 <involved in Contest Docket
t'Jes ·t 90 - 363 - RH) was modified to a Section 1 04(d)(l) Order on
I..farch 1, 1990 (the hour of such modifica·tion was left blank on
the modification form) ; was "terminated" at 8:40 a . m. on March 2 ,
1990 (see Stipulation , Court Ex. 1) ; and -v1as further modified in
various respects on five subsequent occasions.
In a modificat i on
dated March 5, 1990 , line 10 D of this enforcement docmnent also
v;a s modified to shmv the " Number of Persons Affected to "5 " instead of " 1".
Cyprus, in both contest dockets , filed its " Notice of Contest" on September 13 , 1990 , and an nAmended Notice of Contest "
on September 24 , 1990 .
In its contests, Cyprus challenged only
the validity of the modifications dated I>Brch 5 , 1990, pertaining
to the number of persons affected by the alleged v i olations . 4
It is noted here that other challenges made to the enforcement ,
i.e. , occurrence of the alleged violations, special findings ,
duplicative charges , etc~, were litigated as part of the penalty
docket , ~JEST 90-202- M.

4
In its contest pleadings cyrpus correctly pointed out , as
to both enforcement documents , that such were "subject to challenge in a civil penalty contest docketed at No. WEST 90- 202-M. "

1526

Prior to hearing, Cyp.r us filed a "Hotion for Partial Summary
Judgment" (on December 10, 1991) confined again to the same
Harch 5, 1 990 , modifications described above . The basis for such
motion was that a Citation, once "terminated," cannot be modified .
By my Order dated January 22, 1991, this motion was denied. It
was held, inter alia, in such Order that (1) MSHA's administrative termination·----or-a citation does not vacate it, and (2) ·that a
citation can be modified after its termination to alter or amend
allegations relating to penalty assessment factors but not to materially change the nature of the violation charged or the description of the violation charged set forth in the citation.
That holding is here affirmed and my "Order Denying Hotion for
Partial Sununary Judgment" dated January 22, 1991, is incorporated
by reference as part of this decision.
Stipulation
Pursuant to written stipulation (Ct. Ex. 1; I-T. 178), the
parties stipulated and I find as follows:
1. At all times relevant to these proceedings, Cyprus was
the owner and operator of an open pit molybdenUm mine located in
Tonopah, Nevada .
2.

Cyprus's mining operations affect interstate commerce.

.
3. Cyprus and its mine at Tonopah are subject to the provisions 0f the Federal Mine Safety and Health Act of 1977 (the
"Act") .

4. The Administrative Law Judge has jurisdiction over these
proceedings, pursuant to Section 105 of the Act.
5. Citation No. 3459560 was properly served by a duly
authorized representative of the Secretary of Labor upon an agent
qf Cyprus. It was not issued or served at the time or date shown
on the Citation.
6. Citation No. 3645243 was properly served by a duly
authorized . representative of the Secretary of Labor upon an agent
of Cyprus. It was not issued or served at the time or date shown
on the Citation.
7. Cyprus is a large operation and the subject mine is a
large mine.
8. Civil penalties hav e been proposed for Citation Nos.
3459560 and 3645243. Payment of such penalties will not affect
Cyprus's ability to continue in business.

1527

9. By a subsequent action issued on March 1, 1990, Citation
No. 3459560 was modifiedJ to allege a violation of Section
104(d)(l) of the Act.
10.
9 a . m.

Citation No. 3459560 was terminated on March 2 , 1990, at

11. By a subsequent action issued on March 1, 1990, Citation
No. 3645243 was modified to allege a violation of Section
1 0 4 ( d > ( 1 ) of the Act •
12. Citation No . 3645243 was terminated on March 2, 1990, at
8:40a.m.
Findings
On Tuesday , February 27, 1990, MSHA Metal/Non-Metal t-Hne
Inspector Arthur L. Ell is, while on a regular inspection of the
mine, observed the conditions which he cited in the two subject
Citations (Exs. P-1 and P-2; I-T. 13-15). The Citations were
actually served on Cyprus on February 28, 1990 .
CI-T. 14-15).
Inspector Ellis intended both Citations to cover the entire area
called "Pushback No . 1, " meaning the north , south , east, and west
walls thereof.
CI-T . 28, 45-46). The conditions cited did
exist.
When Inspector Ellis commenced his inspection on February 27 ,
1990, Cyprus ' s l'<iine Manager Michael A . "Z.1ike" Curran and Safety
Director Robert R. Altamirano accompanied him to a place called
the " overlook" from which they could observe the pit , i.e, the
entire operation CI- T. 15). Mr . Ellis explained generally what
he saw:
. •. We got out of the vehicle, looked at the
overlook and I observed the pit, and looked
like there was a pit wi thin a pit . It was exp l ained that the small pit, the middle of the
pit is the--actually was called " Pushback No. 1.
CI-T. 16) 5
Inspector Ellis observed some of the benches to be filled
with loose, unconsolidated material and rocks .
CI-T 16, 29, 79,
82). Benches are normally left on a pit wall to prevent material

5
See also I-T. 125-126 and photographs CExs. P-3 and
R-14 A) for a general description an~ views of the subject area.

1528

from accelerating down a wall.
(II-T. 18-19). If material falls
off the top, the bench is to act as a catch area to keep material
from accelerating down into the pit and possibly causing damage
or injury.
on the east wall of the pushback 6 he observed a "partial
bench about one quarter of the way down from the top 7 and "no
benches the rest of the way down."
(I-T. 17, 49).
During the inspection from the overlook, Inspector Ellis observed a dozer about to descend into the pit and was advised by
i-ir. Curran that he (Curran) "was getting ready to build a berm."
(I-T. 17) The berm was to be built in the pit alongside the west
wall of the Pushback 1 <I-T. 17, lines 21-22), because the berm
which has been there had filled up "with a loose, a ravel rna terial." Mr. Ellis objected, since he did not want the west wall
disturbed, since he was afraid "loose material or something"
would come down on the dozer. 8 Curran and Altamirano explained
to him that the former mine manager and chief engineer who were
responsible for the situation had been discharged (I-T. 18, 19)
for giving false information to the general mine manager (I-T.
19). This had nothing to do with this matter.
(!I-T. 207-208).
It was decided to build the new berm by hauling in new material
(I-T. 17). Before leaving the overlook, Inspector Ellis indicated to Curran and Altamirano that he was going to issue a
citation.
After leaving the overlook, the inspection party proceeded to
near the bottom of the pit, but did not stay because it \\fas narrow and there was activity ensuing in building the new berm (I-T.
18-19, 33). They then went to the south end at the top of Pushback 1. The Inspector described what he saw there as follows:

6
Review of the transcript reveals that the inspector's
primary concern was the west wall of Pushback 1.
7
The height of the pushback was approximately 250 feet.
(I-T. 49, 85).
8
Although his testimony was somewhat disjointed, the Inspector CJ;edibly testified "there were some benches on the west
wall" which were not "being maintained" and were "full"; that
there was "loose" on the faces and that there was . "loose and
unconsolidated material in the west wall that could come down and
get somebody."
<I-T. 2 9, 79) • A berm already at the base of
west wall was "filled up."
(I-T. 68).

1529

And from there I observed the same thing I did
fr9m the overlook, benches that had been . filled
\'lith loose and con sol ida ted rna terials and· some
benches that h~d appeared to be--have been failing on the east wall. There was one partial bench
about one quarter of the way down, but hardly any
benches. I also noticed that the east wall kind of
bellied in the middle and protrudes out, narrowing the middle of the pit floor considerably.
(I-T. 20).
.

* *

*

* *

A.

I noticed some loose unconsolidated material
and rocks in the wall. Benches \'lere pretty
\'lell full, the. ones that they had tried to
lever or had filled with this material and
some benches that appeared to be failing.

Q.

All right. And the material you described as
loose, is this material that has the potential
to move or be dislodged?

A.

Yes , it does.

Q.

And how did you determine that the material
was loose?

A.

Well, just from my experienc:::e, i t looked loose.
And also from Mike Curran and Bob Altamirano's
s ·tatement that this loose material was continually filling up their benches and that's why
they were putting in berms 9 about 10, 15 feet
from the toe, 3 to 4 feet high, was to try to
keep any material from coming all the way down
on the people who were working at the bottom.

* *. * * *

9
The purpose of a berm, according to Inspecto~ Ellis, is
"to keep something from corning on down into the bottom of a pit
or to block something out," or to keep peopl~ away from hazards
(I-T. 91-92).
A berm installed to abate two . previous citations was
inadequate.
(II-T. 38-39).

1530

A.

.
.
That's correct. · I asked them '1.17hy there wasn't
a berm at the toe at the timEt I was observing
this pit and they said because it filled up
with loos e unraveled material .
CI-T. 21).
(Emphasis added) .

*

*

*

*

*

MSHA expert witness David M. Ropchan, a mining engineer in
the Ground Suppor t Divi~ion of MSHA, observed the Pushback 1 area
on March 6 , 1990 , some seven days after the inspection of Inspector Ellis . He stated that he was first struck by the narrowness
of bottom of the pit .
Yes, it was immediately apparent that-- the first
thing that really struck me was the very narrow
condition of the bottom of the pit. There really
wasn't a floor in the ·pit ; there was just a travelway that looked really very narrow, considering
the overall condition of the lower area of the
pit . 10

*

*

*

*

*

. •• The west wall of the pit was i n a state of
distress .
It had- -it was evident that partial
failure in the upper area of the wall had covered portions of benches . It appeared that
some of the lower benches had failed and that
there was a mater i al covering or a portion of
those lower benches rendering some of them
quite ineffective.

*

*

*

*

*

Well , benches wer e normally--are normal l y
left on a pit wa ll to prevent material from accelerating down the wall . If material fal l s off
the top , the bench is to act as a catch area to

10 Mr. Ropchan indi ca ted that " ••• con sidering the very narr ow throat area down in the bottom, the condition of the wa l ls
was tota l ly 'i nadequate to allow peopl e to work in t he bot tom of
that pit. "
(II- T. 30) .

1531

keep material from accelerating down into the
pit and possibly causing damage or injury .

*

*

*

*

*

For the most part, it did not appear that
there had been any attempt to maintain or keep
the benches open or clean them . There was no- simply did not seem like that there was much
really effective area really left there to contain. There was still some bench area left but
not a great deal .

*

*

*

*

*

Near the top of the west wa ll there was some
rather large rna terial that was loose on the top
of the wall . It appeared that there was portions
of an escarpment at the very top of the wall.
This is a hazardous situation because these areas
could feed rock down onto the slopes below and
allow it to roll down into the pit .
(li- T. 18-19).
Mr . Ropchan described the "material" as rock "of various
sizes ."
(II-T . 22 , 24). More specifically , in connection
tion with an area along the upper part of the west wall, he
testified:
from the north end you could easily see a
fault trace running across the south end of the
upper area of the pit , and Mr. Curran said that
the fault trace pretty much a ligned- - was pretty
much aligned along the edge of the upper part of
the west wall , 11 and some of the- - of course that
material to the west was alluvium , and it was a
brownish , tanish material , and some of it in fairly large chunks was lying in the top part--it was
in the top part of that wall , loose.

11 See also Ropchan Report (Ex . P-12, pg. 1) . Although
Mr. Ropchan' s inspection took place a weelt: after the Ell i s i nspection, it is found that the passage of this relatively sho r t
per iod in terms of mining environment and conditions does not
materially detract from the reliability or the probati ve value
of Ropchan ' s observations, opinions , and conclusions .

1532

I

Q.

And did you notice the size of the loose
material you observed?

A.

Oh, it was fair- sized. I thin-k some of it
was several feet in diameter.

Q.

All right . And based on what you saw, if
the rna terial of the size that you sa\~ was to
reach the bottom of the pit floor could it
damage equipment if it struck equipment at
the bottom?

A.

Yes , definitely. I think it was a real
threat to men and equipment at the bottom .

Q.

All right . And from what you observed , if
there were movement of the loose material,
would the ~atch benches , starting with the
point at the west wall you observed , would
those benches have been -able to--would they
have been able to contain material moving
down the slope?

A.

Well , definitely they ' d contain some of it,
but I felt there was sufficient threat of
them being unabl e to contain it , that there
was a real hazard from this material .
( II- T. 31- 32) •

Mr . Ropchan in some detail described the nature and mechanism
of the hazard he observed. In particular , he stated:
A.

The hazards that I perceived \llere the \~est
wall was in a state of failure.
The benches
had either fa il ed or were partially filled
or fallen away .
There was no access to any
of the benches on the lower--on that west
wa ll. There was no way to ma i ntain i t , and
it stood right above a very narrow travel
way .

Q.

What was the hazard?

A.

In the fact that it stood above a very narrow travel way .
There was loose material ,
l arge loose material escarpments on the very
top of the fa ll, could have fed rock dpwn ,
a l lowed it to r o l l down , jump off that wall,
hit the floor below. The overall wall was

1533

very ragged and rough in appearance.
It
was not a smooth surface.
It was a very
hazardous ~ondition for rock fall. Anyone
who's ever observed rock fall will note that
on areas of rough walls, this rock can
bounce and hop around, become airborne, it
can assume a considerable horizontal velo~
city. It can really reach out. 12 (li-T. 36)
(Emphasis added).
In his written report (Ex. P-12), r-1r. Ropchan reached specific conclusions as to the conditions in Pushback 1 and. their portent which are (a} found convincing, reliable, and consistent
with the general sense of the evidentiary record (including the
various photographic exhibits therein> and (b) incorporated as
part of the .f indings and factual conclusions set forth in this
decision, to wit:
The portion of the pit below the 5545 level contains serious safety hazards from a ground control standpoint. This lower area has been developed in a manner that has resulted in narrow,
deep work areas that are poorly protected against
rock falls or slope failure.
The west wall of this lower part of the pit is
in a very hazardous condition. There are no
adequate or effective catch benches remaining
in place along most of this wall. The existing
benches are either full or have partially or
completely failed.
The alignment of this lower
west wall along a major fault could result in a
continuous weakness plane occurring in the upper
part of the wall. There has evidently been a
large displacement along t~is fault plane. This
could result in a disturbed or weakened shear
zone occurring in both the monzonite and in the
alluvium for some distance on both sides of the
fault.
The presence of a long tension crack developing just back of and parallel to the edge
on the wide bench above this lower. pit area may
be a result of this weakness zone.

12

See illustration, Ex. P-11.

1534

The east wall in · the ·lower portion of the pit
does not have adequate catch benches to protect
against falling rock in the work and travel areas
below . Furthermore, this portion of the pit wall
wall is convex in plain view \'lhich puts the wall
area under tension. This can increase the potential for failure of pottions bf the slope. At the
outermost bulge of this wall , the pit floor (which
is also a travelway} is only about 50 feet wide.
In summary, the 1o\'ler portion of this pit appears
to have been developed to minimize the excavation
necessary to get at two small areas of the ore body .
In so doing, both travelways and work· areas are
exposed to serious · fall of ground hazards .
The
narrow, deep confined work areas at each end of . ·
the pit floor expose workers to ground fall hazards funneled toward the pit floor from three
sides in close proximity .
The haulroad leading
down into the lm'ler pit area is not sufficiently
protected from falling material from either the
west or east walls. A berm has been placed along
the west half of the road along the \'lest -wall .
This berm is too close to the wall and too small
to provide sufficient rock fall protection considering the overall condition of this west wall.
In addition~ th~ size of the haulage trucks ' (170ton) make ·it inadvisable to reduce the roadway
width to such a degree.
It is found from the testimony and evidence of Inspector
Ellis and Mr . Ropchan 13 that loose unconsolidated material not
only had the potential of moving from the wall face, but was in
fact moving and filling up the benches below the movement (see
also Breland, I-T. 127-135) and had fi lled up a berm built by
Cyprus at the bottom.
Thus, the material could and did travel to
the bottom (III-T. 126-127; Ex. P-11) and, as indicated in the
statement to the Inspector by Mr. curran and Mr. Altamirano, the
purpose of the berm was to try to keep the ma·terial from corning
down "on ··the people who were working at the bottom."
(See also
I-T. 68, 188-191; 193). · I infer from this and the testimony
quoted above that the material was of su£ficient size to have
created a hazard, i.e., posed a threat of bodily harm to those

13

Contrary to Cyprus's Contention (Cyprus's Brief, p. 17).

1535

working at the bottom.
(See, for example, Ropchan testimony
reporting "large material."
CII-T. 18, 36, 38-39). See also,
testimony of Cyprus's Mine Operations Supervisor Vernon Lee Alan.
CII-T. 164, 173-175), and further testim'o ny at II-T. 189-190,194-198; III-T. 126-127).
The use of adequately maintained benches was a necessary part
of the mining method employed by Cyprus in Pushback No. 1.
(I-T.
29, 29, 79-86, 121-122, 130, 134-135, 155-157, 165-168, 171-172,
173, 174, 188-189, 193, 195; II-T. 18, 31-32, 36; Exs. P-10,
P-11, P-12).
It was established not only from the testimony of Inspector
Ellis and MSHA Engineer Ropchan, but also that of MSHA Assistant
District Manager Breland, who inspected the area 30 days after
Ellis, that the benches were full, inadequate, and failing.
CI-T. 79-83, 128, 129, 130; II-T. 20, 32, 3-37, 40). 14
The bottom of the Pushback No. 1 Pit was very narrow, amounting only to a travelway.
CII-T. 18, 36).
The conditions (loose rock and material, filled benches, falling benches, tension cracks, and a narrow pit floor) in Pushback
1, as charged in Citation No. 3459560 constituted a hazard.
CI-T.
21, 23, 26, 28, 29, 30, 51-52, 65, 79-83, 84-86, 122, 130, 134135; II-T. 18, 19, 21, 23, 27, 28-29, 30-36, 67-68, 74, 83; III-T.
15-16, 33-34, 126-127; Ex. P-3, P-10, P-11, P-12).
Approximately five miners who worked in the pit were exposed
to the hazard CI-T. 62-63, 184; Exs. P-5, P-6, P-7, and P-8).
F.our miners (a shovel operator and three truck drivers) had been
working in the pit shortly before Inspector Ellis's inspection
CI-T. 23-26, 50, 52, 61-62, 63) in addition to another miner who
was maintaining and moving pumps CI-T. 18, 22, 51-52, 62, 67, 91).
Water at the north and south ends of the Pushback 1 pit
blocked access to the bottom of the pit below the walls at those
two ends CI-T. 55, 64-65}. The west wall was not bermed or barricaded to prevent access to the area below the wall CI-T. 29,
6 4 ; Ex • P-12 ) •

14 If benches, originally installed as part of a m1n1ng
methodology, are not maintained and/or kept clean, and such lack
of maintenance subsequently causes or contributes to a groundfall hazard, can it reasonably be said that benches are not
"necessary" as that term is used in 30 C.F.R. § 56.3130?

1536

Mining was "expected" by Cyprus to be and was completed in
the bottom of Pushback 1 on or about Monday, February 26, 1990,
and thereafter the only activity going on rthere was to have been
maintaining the pup station (II-T. 135, 136, 141, 142; III-T.
11-12, 15). The last blasting in the bottom of the Pushback 1
occurred on about February 15 CII-T. 139-140). Pushback 1 was
completed on the swing shift on February 26, 1990 CII-T. 165-166,
168; III-T. 11). There were no plans to go into the bottom of
the pit thereafter with a shovel and haul trucks CIII-T. 11).
Final mining in the pit was along the south end (III-T. 17).
Summary of Cyprus's Evidence
Alan Dale Curtis, who was Cyprus's acting chief engineer on
February 27, 1990, was of the opinion that the west, east, and
south walls were safe and stable for miners to work and travel
under and that the catch benches were adequate to catch any
raveling CII-T. 129, 130-134). 15
He also indicated, inter alia, that Cyprus does not go back
on benches to clean them up a ·fter mining below them because "the
catch bench is in place and we've done all we can to scale the
wall without equipment, with our blasting methods, so ••• it's
not necessary to go back." He said that if "you do go back,
you're putting equipment and manpower at risk •••• "
(II-T.
157-158).
Mine Operations Supervisor Vernon Lee Alan testified that the
week before mining ceased in Pushback 1 (the week before February 27, 1991) he felt the east, west, and south walls were stable
and that it was not "unsafe to work in the bottom of the pit."
CII-T. 162-163).
Cyprus introduced two videotapes, Ex. R-24 (taken between
March 2 and March 13, 1990) and Ex. R-39 (taken in December 1990).
Exhibit R-24 runs 20 minutes, demonstrates the conditions of
Pushback 1, and is summarized in a written narrative of record-Exhibit R-25. Exhibit R-38 runs five minutes, was shown during
the hearing CII-T. 184-186) and depicts an enactment of the effect Closs of energy) of dumping material over a bench down a
35-36u, 40-50 feet vertically high (90-foot long) slope CII-T.

15 He indicated that when the design for Pushback 1 was put
in place, it was never intended to go back on the benches to
clean and scale CII-T. 146).

1537

181-183, 184-185, 190, 193). These two pieces of evidence have
been considered both as to occurrence of a hazard, gravity, and
the "reasonable likelihood" aspect of the "significant and substantial" issues.
·
Robert R. Altamirano, Safety Director, testified that there
had been no accidents or injuries to miners from material coming
off the east, west, or sou·th walls of Pushback 1. (II-·T. 189).
there were "one or two incidents" where boulders "came down and
struck equipment 11 over the 12-month period prior to February 27,
1990 (II-T. 194, 195-200). See also Exhibits P-21, P-22, and
P-24. Exhibit P-22, an Incident Investigation Report dated
1-19-89, indicates that "In this area it's hard to tell if you
have a ball of mud or a big rock hanging on the wall."
Mr. Altamirano gave the following opinion as to work safety
in Pushback 1:
Q.

And why do you think it was safe to work in
Pushback 1 with regard to the slopes?

A.

Well, in discussing the west wall I was informed that we had stepped back and the angle of repose had been reached and we maintained a berm at the bottom, so that, you
know, in my opinion, the west wall did an
adequate job.

Q.

What about the east wall?

A.

On the east wall where the double-benching
technique had been attempted or, you know,
had taken place, they took extra precautions
to step back at each bench. I think it was
five feet o.r so, so they wouldn't undercut,
and to me that looked like a good situation.
( I I-T·. 18 8 ) •

Mine Superintendent Michael A. curran testified it was not
unsafe to conduct mining in the bottom of the pit because the
"walls around the bottom of the pit were in a stable condition
and posed no hazard" because "the west wall was stepped out and
sitting at an angle of repose, and material that was on that
slope was at rest •••• He also indicated that the berm had been
constructed along the toe to keep travel away from that area
(III-T. 16, 26-27). He said the east wall was "very competent
rock that had been scaled and that there were adequate catch
benches along the south wall (III-T. 16-17). Final mining in the
pit was in the southeast corner and there was an adequate catch
bench above this area (III-T. 17).

1538

Duane W. Pergrem, Manager of Safety and Hygiene, examined
the pit on March 6 , 1990 . He scrutinized the old berm (built to
abate the 1989 violations) and the new berm (under construction
on February 27, 1990) 16 and noted that the old b~rm was about
half full.
(III-T. 44 - 45).
He felt the west wall was fairly shallow and that two or
three pieces of large material on it "were resting in a fairly
stable position."
<II;r-T. 46). He indicated that in some places
on the west wall "it had run to the angle of repose " and that in
some places it still had benches. He saw no problem with the
east wall or the south wall , noting that there was water in front
of both the south and north walls.
( III-T. 4 6-4 7) . He thought
the benches were satisfactory on the east wall and saw nothing
"that looked like it was going to come off."
(III- T. 48-49).
His conclusion was that it was safe to work in the bottom of the
pit.
(III- T . 52).
Based on his prior experience with Cyprus ' s and other mines ,
he stated that
•.. I have not seen a pit that didn't have
benches full with material sluffed down to the
next level . On many of them I've seen berms or
barriers above in a place where employees might
go by to contain the material if it should go
on down.
(II I-T. 53).
During his examination, Mr . Pergrem observed a blast on one
of the upper benches of the south wall of Pushback 1 and noted
that the rna terial which he "assumed" was from the blast traveled
slowly down the wall in the southwest corner. He saw no other
material move on the wall.
(!II-T. 49-51, 52) .
James P . Savely, senior geological engineer in Cyprus ' s
technical service assistance group, 'Vlho was recognized at the
hearing as an expert in slope stability (III- T. 75, 77) inspected
Pushback 1 on March 6, 1990.
(III- T . 78).
He found nothing to be concerned about \.,i th the east wall ,
finding the same to be stable and competent .
(III-T. 84, 87).
He felt the benches on the south wall "were in pretty good shape ."
(II I - T . 88).

16

III-T. 32.

1539

On the west wall, he examined the crown (top) of the failure, found no tension cracks that were "well behind the crest of
the slope" and concluded that the "rubble-ized" portion of the
slope was superficial.
(III-T. 89). He had no alarming concerns
about the reddish rna terial (the large pieces mentioned by
Mr. Ropchan).
(III-T. 89-90). His conclusion was that it was
safe to work in the bottom of the pit.
(III-T. 91-92). 17
As to the reddish material below the work area on the west
wall, Mr. Savely \ias unable to reach a conclusion as to the likelihood of its coming down the wall. He did believe that the rock
pieces were not "strong" and would tend to break up -v1hen "colliding" and thus concluded that such was "likely" to fragment and
stop somewhere on the slope.
(III-T. 102-103). His observation
of the new berm on March 6, 19 9 0, was that there was nothing on ..
its far side and that it was "containing everything there."
(III-T. 103, 111, 112).
Mr. Savely testified that it was not common practice to go
back and clean benches once mining had progressed past them.
(III-T. 103). The mining method to be utilized was to mine such
an area bench by bench and to "step out" (explained, infra) and
subsequently to install berms.
(III-T. 104, 109). He thought it
"unlikely" that the material on the west wall would start to move
on i t s own .
( I I I-T. 1 0 5 ) .

17 This is repeated in a summary of Mr. Savely's findings,
Exhibit R-15. Therein, he reiterates his favorable view of the
east wall's stability, indicates he saw no evidence of unsafe
mining practices, and as to the west wall indicates:
The west wall below the Liberty fault had . partial benches remaining. There were no signs of
deep-seated large-scale movement or active tailure. The talus on the slope was already at an
angle of repose of 36v to 38v, which is a stable
condition. There was no significant active raveling occurring and because the slope is at angle of repose it is very difficult for rocks to
begin to roll. Usually, for rocks to roll on
angle of repose slopes they must have some significant energy input to give the rock momentum.
This occurs when material is being dumped from
above or when the slope is in active faiiure.
Neither condition was present.

1540

Dr. Richard D. Call , president of a geotechnical consulting
firm and an expert on ground control , also testified on behalf of
Cyprus. Dr. Call's firm specia l izes in rock mechanics , open- pit
slope design, and underground rock mechanics . He visited the
mine on May 15, 1990, to inspect it in preparation for rendering
his expert opinion on slope stability conditions.
(III - T . 1 16).
Mining had taken place around the ~op of Pushback 1 dur i ng the
interim between February 27 and the date of his inspection-three levels on the east side and one level on the south end.
(III - T. 118 , 121-122). Dr . Call could not state for certain that
material he observed which had "gone beyond the berm and was on
the pit floor was from "overbank," i.e . , being pushed over the
bank during mining during the interim period , or from raveling .
(III - T. 126- 128). Dr. Call ' s opinion was that it would have been
safe to work in the bottom of ·the pit on February 2 7, 19 9 0.
(III - T. 130 - 131, 133) .
He felt the probability that mater i al oh
the west wall reaching bottom was low :
A • . Well, one , there ' s a significant probability
that it won ' t reach the bottom .
The material
and angle of repose tend to absorb energy. As
a particle goes in that , the energy's lost in
moving pieces around. So that i t could very
easily get hung up on the wall on the way down,
and there are a number of boulders on the face
there that have do·ne just that .
Secondly , when it reaches the bottom it ' s not
going to have high--a high level of energy ,
therefore it ' s not going to be moving that fast,
and it will impact directly at the toe of the
slope, and it doesn ' t take a great deal of a
retaining berm to stop it from rol ling on out
into the pit .
Q.

When you say it doesn ' t take a great deal of a
retaining berm , let ' s take the berm that had
been built at the time of the citations issued
five to six feet h i gh and out from that wall .
Would that be retaining material that was rav eling off i t, for some reason, did ravel?

A.

Based on my observations of the mechanics and
the computer simulations of that , I would estimate that 90 percent or greater of the material
would be retained by that berm .
I can ' t say a
100 percent because that ' s an extreme value and
all kinds of extreme values are possible ,· but in
terms of reasonable probability , it would be reta in ed •
( I I I-T. 1 31- 13 2 ) •

1541

Dr. Call said that the "potential is very low for any significant rock fall on the east wall" <III-T. 133) and that the
south wall was "intermediate" ·meaning not as favorable as the
east wall but "more competent" than the west wall.
<III-T.
13 3-13 4 ) • 18
Dr. Call also pointed out a line of thinking that benches
actually decrease slope stability.
(III-T. 138-141).
Special Findings Concerning Order No. 3645243 and "Unwarrantable
Failure" Issues
on May 31, 1989, and June 1, 1989, Cyprus received two ci tations, analogous to the two involved in the instant proceeding,
also charging violations ·of the same two standards, 30 C.F.R.
§ 56.3200 and 30 C.F.R. § 56.313Q.
These were issued by MSHA
Inspector Ronald Barri and were numbered 3463545 <Ex. P-18) and
3463546 (Ex. P-19), respectively. See I-T. 102-104, 105-110, 11,
175-176.
Citation No. 3463545 charged:
There were large pieces [sic] of loose material
hanging on the west high ·Wall about 100 feet
above the ramp haul road on the 5400 level.
Haul trucks and other equipment travel the road
alongside the high wall. The area \'las not posted or barricaded to prevent travel alongside
the high wall.
Citation No. 3463546 charged:
The 5728 bench on the south end of the pit to
the east face at 5682 level bench on the south
end and east face had been allowed to accumulated [sic] materials and would not provide an

18 Dr. Call's testimony, en toto, seems to concede the hazard of rock fall, but gauges the-probability of such happening
and going beyond the berm as improbable. See also his testimony
at III-T. 142-143. As with the opinion of Mr. Savely, this testimony has more probative value in terms of the "reasonable likelihood" aspect of S&S, rather than as to the occurrence of a
violation.

1542

adequate catch bench to protect haul truck traffic below. A maintenance program for maintaining benches had not been established. During
time periods needed to clean these benches
[operator will use] one lane outer edge haulage beneath these benches will be required if
loose material is · subject to spilling on haul ·
road.
On or about June 1, 1989 (I-T. 102, 104, 106, 105-113), MSHA
Assistant District Manager Rodric M. Breland spoke with Inpector
Barri and then conducted his own investigation of these two prior
citations at the mine.
At this time, some nine months prior to the issuance of the
instant Citations, Mr. Breland observed that the benches ·on the ·
west wall had "already started to fail."
(I-T. 105, 106-107,
109). Thereafter, on the same day, a meeting was held with
Cyprus's management (I-T. 110-114), including Mr. · Curran, which.
was described in some detail by Mr. Breland as follows:
Predominantly we discussed the issue of the
pit walls and overall mining plan, and mostly in
generalities as far as reacting to conditions as
they developed. In this case the west wall was
showing signs of failure and they were aware of
that and had at that time explained that they
were going to step out a little bit, and by stepping out meaning move away from the angle they .
were at, at that time, and flatten it back a little more. We talked about the 56.3130 requirement and the 3200 requirements, fairly extensively, that the--with the conditions such as were
existing there, they were required to put the
berm or the barrier in prior to continuing on
with working in the area. They couldn't wait
for loose material to hit the floor.
There was
some material on the floor that had sluffed off
the face, even after the berm had been put in,
even the day before I was there, so that face
was working. Also the 3130 I specifically had
gone out on several of those benches with Mike
Curran and my superintendent. I talked to him
about what was going on there. They were--or
could have been accessed to do the bench maintenance that's required as part of the standard.
However, they were not doing that and had. not
been doing that, a·nd I explained the requirement
there to keep those benches clear as long as
there was staff beneath them.
(I-T. 110-111).
(Emphasis added) •

1543

These two prior citations were not contested (I-T. 171-172)
and were abated by (a) building a berm to impede traffic to the
affected area and (b) cleaning off the benches.
(I-T. 112,
151-152, 175-176; II-T. 206-207). 19
During the meeting on these two prior citations, Mr. Breland
"cautioned" Cyprus management that MSHA had issued a CAV <Compliance Assistance Visit) notice (Ex. P-9, Notice dated 7-27-88)
prior to the commencement of their operation "concerning the same
issue on the benches and bench maintenance" and reminded them
that this was a "subsequent repeat problem or potential problem
and that they had been made aware back probably six months (previously) that MSHA expected bench areas--or benches to be maintained where people work."
(I-T. 114, 115, 120, 121).
Following the issuance of the July 27, 198~, CAV Notice
pertaining to cleaning benches the follm>~ing correspondence (I-T.
117-119) ensued between Thomas C. Lukins, MSHA District Manager,
and Cyprus. 20 In a letter dated August 2, 1988, Mr. Lukins
advised Ron 0. Kellnar, Vice President/General Manager of Cyprus,
as follows:
During the July 28, 1988, visit to your operation by Ron Barri and Art Ellis of the Mine
Safety and Health Administration, we discussed
the problem of your benches and the inability
to maintain or clean them.
Section 56.3130 states, "Mining methods shall
be used that will maintain wall, bank, and
slope stability in places where persons work or
travel in performing their assigned tasks. When
benching is necessary, the width and height shall

19 Cleaning a bench which had "tension fractures" may not
have been feasible (I-T. 152-153) due to inaccessibility. According to Mr. Breland, Cyprus used the "berm" abatement technique it employed to abate these two prior violations as part of
its subsequent "routine mining practice." (I-T. 172).
20 This correspondence, like the two prior Citations and
the CAV Notice, is' of some consequence with respect to the issues
of unwarrantability, culpability generally, and the question
whether or not benches were necessary as part of Cyprus's mining
methodology to maintain wall, bank, and slope stability.

1544

be based on the type of equipment used for cleaning of benches or for scaling of walls, banks,
and slopes.
Since no mining activity was being conducted and
your company has just recently taken over the
mine, a general mine plan was not available.
As per the meeting, a general mine plan must be
submitted to this office, when developed, stating the bench heights and widths to be usea-and
pow you plan on · cleaning/maintaining the benches
if they become full of material.
(Ex. P-10).
(Emphasis added).
In Cyprus's reply letter to Mr. · Lukins from Mine Manager
Burjore E. Choksey, dated September 21, 1988 <Ex. P-4), regarding
"30 C.F.R. § 56.3130, Ground Control, Wall, Bank, and Slope Stabiity," Cyprus enclosed its mine pl~n, and agreed to · utilize a
double-benching technique to "contain any raveling," to wit:
In response to your letter dated August 2, 1988,
to the V.P. and General Manager, Mr. Ron Kellner,
we are enclosing a copy of our mine plan titled
"Ultimate Pit with Roads."
The mine plan will utilize· a double· benching techpique, which will allow us to have wider catch
benches to contain any raveling that may occur.
The width of the catch benches will vary from 32
to 50 feet, for every 91 to 100 feet of vertical
interval. The varying widths are because of Anaconda .having had 14-meter-high benches.
The current pit bottom elevation is 5500.
Benches above this elevation will be 46 feet
high and below 5500 level, they will be 50
feet high. As an added safety factor we plan
to step-out an additional 10 feet, every fourth
bench. The plan also provides for extra road
width so that catch berms could be constructed
if for some reason we encountered increased local raveling. Every effort will be made to control the pit walls by way of controlled perimeter
blasting and surface drainage. The plan as laid
out above will allow us to operate the mine in a
safe and efficient manner."
(Ex. P-4).
(Emphasis added).

1545

Conflicting Evidence
The testimony of MSHA's witnesses, including Inspector Ellis
who observed the violative condition on February 27, 1990, has
been credited over the testimony of Cyprus's witnesses in the
areaS Of ffia j0r COnfliCt: Whether a hazard existed 1 Whether
benches were necessary, whether benches should have been cleaned
and maintained as mining progressed to the bottom level, and
\-.rhether there was loose rock and rna terial on the slopes which
posed the threat of falling into the bottom of the pit on miners.
The description of conditions and the opinions of MSHA's
witnesses were particularly convincing. See, for one example,
Inspector Ellis's testimony at I-T. 21 as to why he considered
the rna terial to be "loose." Thus, it appeared that way (loose)
·.ot only from his visual observation but he was told that the old
berm had filled up from falling material and that Mr. Curran and
Mr. Altamirano were having the new berm built to keep material
from falling on miners in the pit. I find this and the preponderance of documentary and testimonial evidence at odds with the
opinions of Mr . Curran and Mr . Altamirano and other Cyprus's
witnesses that it was safe for miners to work in the pit. 21
Upon careful evaluation of the record, it is concluded tha MSHA's
evidence was the more objective, reliable, and convincingly
stated. I have thus to some extent incorporated MSHA's evidence
in to "Findings," supra, but summarized Cyprus's evidence.
DISCUSSION, ULTIMATE FINDINGS, AND CONCLUSIONS
A.

The Two Regulations
Section 56.3130 requires:
1.

that mining methods be used that will maintain wall stability where persons work or travel, and

21 The behavior and conversation of Cyprus's Superintendent
and Safety Director on February 27, 1990, when advised of the
violations doesn't indicate disagreement at that time with Inspector Ellis's determination.
The long-standing approach of Cyprus to the situation,
beginning with the CAV inspection, through the two· prior citations in 1989 and to the two subject violations, appears to have
been an ignoring of the problem recognized and described by MSHA
and discussed between MSHA and Cyprus.

1546

2.

if benches are necessary as part of the mining method,
their width and height shall be based on type of equipment
a.

used for cleaning the benches, or

b.

used to scale ·the walls and slopes.

To establish the elements of a violation, MSHA must establish that benches
1.

were a "necessary" mining method, or part of such ,

2.

the benches were improperly maintained (cleaned) or
were of inadequate width and height to permit maintenance/cleaning, and

3.

that, as a result of the improper benches, or maintenance thereof , "wall, bank, and slope" s tabi 1 i ty was not
rna in tained, in

4.

places where persons \'lOrk or travel ••• · ."

The focus of this standard is on benches, and their being a
necessary part of the mining method used. If benches were a
necessary mining method and they were not kept up, and people
worked in the area, an infraction occurs. 22 The standard (3130)
itself does not specifically require benches.
(I-T. 70, 96, 101,
164).
The d-1 Order (No. 3645243) in its second sentence clearly
charges that persons work or travel in the area.

22 This differs from the thrust of 30 C.F.R. § 56.3200 (d-1
Citation No. 3459560) where the essence of the violations charged
was existence of "ground conditions," i.e., "loos e materials and
rocks on highwalls" which created a hazard (of such falling on
persons below). If the hazard--\'lhich MSHA attests was contributed to by full benches--is created, work or travel is not to be
permitted until the condition is alleviated, and until th is
"corrective work" is completed, the area shall be posted--and •••
barricaded when unattended.
(See I-T. 101-102). Notably , the
the Citation charges that there existed "loose material and rocks
on high walls," as \'lell as full benches, . as well as the adrni tted
fact that the area was not posted or barricaded.

B.

Vagueness

Cyprus contends th.a t 30 C.P.R. § 56 . 3130 is impermissibly
vague since it does not provide reasonable notice of the conduct
required by the mine operator. Based on analysis of this standard, supra, it is concluded that a reasonably prudent person fa miliar with the mining industry , relevant facts, and protective
purpose of the standard \olould understand what was required. See
Ideal Cement Company , 12 FMSHRC 2409 , 2415-2416 (November 199F.
The record indicates that benching was a necessary part of the
mining method employed by the mine operator , that Cyprus
undoubtedly understood the purpose of the standa r d (Exs. P- 4 and P-10; I - T. 103119, 120 - 121, 165 - 166 ; II- T . 206-207), 23 that Cyprus in writing
agreed to a plan utilizing a " double benching technique " to actually "have wider catch benches to contain any raveling that may ···
occur" (Ex. P-4 ; I - T . 1 65) , as well as agreeing that every
fourth bench would be stepped out an additi6nal 10 feet as " an
added " safety factor .
(Ex. P-4 ).
I t did not mention that it d i d
not intend to maintain o r c l ean such.
The standard is clearl y the type of regulation that must be
couched in simple and brief l anguage in order to be "broadly
adaptable to myriad circumstances. " 24 As the Secretary states
in her Brief (p . 7) , "Any per son familiar with open - pit mining
and its methods \'lould be a\'lare that the standard is directed
toward the prevention of death or injury caused by the collapse
of walls , banks, or slopes upon miners who work in the area . "
The Secretary also cites comments appearing in the Federal Regis ter , Vol. 51 , No . 195 , p . 36193 , October 8, 1986 , concerning what
would appear to be understandable to an average prudent person as
requirements of the standard and such are listed here and approved as part of the meaning attributable to the standard:
a.

When bench i ng is necessary , the benches must be able to
serve as catch benches.

23 As above noted , Cyprus was cited for a similar viol ation
of the same standard o n June 1 , 1989 .
(See Ex. P-1 9; I - T. 1 021 1 3 , 114) 'lllhich was not contested .
(I-T . 191-192) .
24 The process for analysis of vagueness challenges is wel l
illustrated in Secretary v . U. S . Steel Corporation , 5 MSHRC 3
(January 1983) .

154R

b.

The determination of when benches are a necessary part
of the mining process is left within the province of the
mine operator <see I-T. 101), as is the determination of
bench width and height.

c.

The only restriction placed upon the operator is that
the width and height selected for the benches be meas urements which allow the operator to use available
equipment to prevent the benches from creating a fall of
ground hazard as well as to act as a catch bench .

Here, it is clear that Cyprus chose benching as a part of
its mining method. Accordingly , it was required by - the standard
to maintain the benches to ensure wall, bank, and slope stability
in those places where persons worked or traveled.
(See I-T . 157 ,
172 , 173-1 74, 175 - 176)~
The contention of Cyprus that the standard in 30 C. F . R.
56 . 3130 is unenforceably vague is rejec t ed. 25 Any contention
of Cyprus that the standard cited i n Citation No . 3459560 (30
c. F . R. § 56.3200 is unenforceabl y vague 26 is like111ise rejected .

§

c.

Duplicative Charges

.
Cyprus takes the position that the two subject enforcement
documents (Citation and Order) were i ssued for essen ti ally the
same condition in the same area of the mine, i.e ., " because the
benches were full" in Pushback 1 .
<Cyprus Brief , pp. 58- 59).
This contention is rejected. As noted in the analysis
above , the gravamen of violations under the two subject standards
differs materially . Under Section 56 . 3200 the existence of a
ha zard must be established and , once established , a violation is
established if work or travel is permi tted in the area . If the
hazardous condition is in the process of c orrection but correction is not completed , the area is to be p osted and/or barricaded.
Section 56.3130 , on the other hand, does not focus on the actual
existence of a hazard and does not mention the requirements of
corrective work , barring work and travel of miners , and posting
and barr i cading .

25 Compare Secretary v . Al abama By- Pr oducts - Corp. , 4 FMSHRC
2128 (December 1982) .
26
Br i ef .

Such contention is no t made specifical l y in Cyprus ' s

1549

The fact that both the Citation and Order mentioned one condition--full benches-~in common does not change the basic differences in the thrust of each or the safety standard under which
each was issued. Contrary to Cyprus's argument, the conditions
cited in each enforcement document differ.
They were not the
same . In addition to full benches, the Citation also charges,
unlike the Order, (1) that there was "loose material and rocks"
on highwalls in Pushback l, and (2) in the specific language of
Section 56.3200, that the area was not posted or barricaded.
Both these factual issues were the subject of evidentiary presentation at hearing.
The Mine Act imposes a duty upon mine operators to comply
with all mandatory safety and health standards. It does not
permit an operator to shield itself from liability for a violation of a mandatory standard simply because the operator violat~d .
a different, but unrelated mandatory standard. Secretary v. El
Paso Rock Quarries, Inc., 3 FHSHRC 35, 40 (January 1981); Secre'tary v. UNC Mining and Milling, 5 FMSHRC 1164 (June 1983).
The Citation and Order are found not to be duplicative.
D.

Occurrence of Violations

As charged by the Inspector and as refl ected hereinabove, it
is concluded that there existed loose rock and material on walls
and slopes of Pushback 1, which together with full and partly
full, inadequately maintained, failing benches created a hazard
to miners working in the narrow pit below and traveling along the
haul road leading into the lower pit area. Tnese hazardous
ground conditions had not been taken down or corrected, and the
area was not posted with a warning against entry or otherwise
barricaded to impede entry. Miners were permitted to work and
travel in areas exposed to the danger of ground fa ll • .
This is found to. constitute a violation of 30 C.P.R. § 3200
as charged in underlying Section l04(d)(l) Citation 3459560.
Although Cyprus management indicated it never intended to
maintain or clean the benches in Pushback l, this is found to be
contradictory to its previous conduct and acquiescence when cited
during the CAV inspection, and when cited with two prior violations and discussions following such .
<I-T. 110-lll; Exs. P-4,
P-9, P-10).
The most reliable and persua~ive in the record establishes
that benches in Pushback 1 had accumulated with rock and materials and did not serve as adequate catchbenches to protect miners
working below. The mining method employed by Cyprus to mine in

1550

Pushback 1 did not maintain wall, bank, and slope . stability sufficient to safeguard miners working in the pit or traveling along
the haulroad from falling rock and rna terial. That a hazard
existed was well-established by MSHA by the preponderant reliable
and probative evidence . Thus, maintenance and cleaning of the
benches was "necessary." 27.
In summary, it i s concluded that a violation of 30 C.F.R.
3130 as charged in Section 104(d)(l) Order No. 3645243 did
occur since MSHA, in terms of the standard, established that

§

E.

1.

benches (including the maintenance and cleaning thereof)
was "necessary,"

2.

the benches were not maintained or cleaned, were inadequate, and were, in some cases, themselves " fail ing,"

3.

that as a result of the inadequate benches, "wall,
bank, and slope" stability was not maintained in

4.

places where person worked or traveled. 28

Unwarrantable Failure

"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, 2004 (December 1987>: Youghiogheny & Ohio Coal Com~' 9 FMSHRC 2007, 2010 (December 1987).
An operator's failure

27 It does not appear that Cyprus contends that building
the benches initially was not necessary. Cyprus made no convincing showing that it had successfully employed some alternative
method to accomplish wall and slope stability, i.e., effective to
prevent the ground fall hazard. As noted elsewhere in this decision, there was evidence that rock and material was reaching the
bottom of the pit, not just that it was "loose" on the wall. The
presence of loose rock on the walls without adequate catch
benches below would create a hazard and alone warrant the conclusion that "benching'' (including the maintenance thereof) was
"necessary."
28 It is noted that this violation of 3130 was simply a
part, a component, of the larger 3200 violation for having a
"ground condition" hazard which was not taken down, etc., in an
area which was not posted or barricaded.

1551

to correct a hazard about which it has knowledge, w~ere .its conduct constitutes more than ordinary negligence, can amount to
unwarrantable failure . Secretary v . Quinland Coals , Inc. , 10
FMSHRC 705 (June 1 988). While negligence is conduct that i s
"thoughtless ," " inadvertent , " or "inattentive, " conduct constituting an unwarrantable failure is " not justif i able" or is
11
inexcusable. 11
Here , Cyprus concedes it never intended to maintain i ts
benches after mining through them in Pushback 1 , and that it was
unsafe to go back and maintain the benches . Thus , by not maintaining the benching or engaging in an alternative mining mode
consistent with keeping the benches clean and safe (II-T. 39 - 40),
Cyprus contends that after the benches indeed became unsafe to
clean and maintain , that such justifies its mining methodology to
b egin with . This argument i s rejected for several reasons .
Fi r st , because of the ac t ual hazard of falling r ock and mater i a l
i njuring miner s working i n the pit and haul r oad. Secondl y ,
because this record does reflect that such material did i n fact
reach the areas in the pit where miners worked , and because of
the conduct and reaction of Cyprus ' s management with respect to
the prior attempts of MSHA (CAV inspection , two prior Citati ons,
and correspondence) to deal with the probl em belying the explanations derived on this record after the two sub j ect enforcement
documents were issued by Inspector Ellis. While Cyprus further
argues that the regulat i on (56 . 3130) was unconstitutionally vague
in that it deprived Cyprus of knowing \>lhat course of conduct to
follow , the prior enforcement actions of MSHA also serve to
dilute the efficacy of this argmnent . 29
The record is compelling that Cyprus ' s fa i lure to maintain
and clean its benches was not merely due to inadvertence or inattention since it is beyond dispute that its management personnel were quite aware of the continuity of the conditions , proceeded intentionally to expose miners on the haul road and in the
very narrow pit despite i neffective failing catch benches , and
t h e presence of loose r ock and mater ial . See Secretary of Labor
v . Eastern Associated Coal Corporation , 1 3 FMSHRC 178 , 187
(February 1991 ) .
It is thus concluded that the violations charged occurred as
a result of Cyprus's unwarrantabl e failure to comply with the two
cited safety standards .

29 I have previously in this decision found the Secretary ' s
position meritorious on the vagueness question.

1552

F.

Significant and Substantial

Both enforcement documents (Citation and Order) were designated as " Significant and Substantial. "
A violation is properly designated " significant and substantial " if, based on the particular facts surrounding that v i olation , there exists a reasonable liJ{elihood that the hazard contributed to will result in an injur y or i l lness of a reasonably
serious nature. Cement Division, National Gypsum Co., 3 Ft-1SHRC
822, 825 (April 1981) . In Mathies Coal Co. , 6 FMSHRC 1, 3- 4
( January 1 984) , the Commission explained:
In order t o establish that a violation of a
mandatory safety standard is significant and
substantial unqer National Gypsum the Secretary
of Labo r must prove :
(1) the underlying viola tion of a mandatory safety standard; (2) a dis crete safety ~azard -- that is , a measure of da n ger to safety- -contr i buted to by the violation ;
(3) a reasonable likelihood that the hazard contributed to will result in an injure ; and (4) a
reasonable likelihood that the injury in question
will be of a reasonably serious nature .
Accord , Aust i n Power v. Secretary of Labor, 861 F . 2d 99, 103 (5th
Cir . 198.8.).
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 ,
and that the likelihood of injury must be evaluated in terms of
continued normal mining operations~ U.S. Steel Mining Co., 6
Fl-iSHRC 1573 , 1574 (July 1 984). See ?lso !1onterey Coal Co. , 7
FMSHRC 996 , 1001- 02 July 1985). The operative time frame for
determining if a reasonable l i kelihood of injury exists includes
both the time that a violat i ve condi tion existed prior to the
citation and -the time that it would have existed if normal min i ng
operations had continued . Halfway , Inc ., 8 FMSHRC 8 , 1 2 (January
1986) ; U . S . Steel Mining Co . , 7 FMSHRC 1125, 1 130 (August 1 985) .
The question of whether any particular violation is significant
and substantial must be based on the particular facts surroundi ng
the violation , including the nature of the mine involved. Texasgulf , Inc ., 10 FMSHRC 498 , 500-01 (April 1988) ; Youghiogheny &
Ohio Coal Company , 9 FMSHRC 2007 , 2011- 12 (December 1987). Fi nally , the Commission has emphasized that it i s the contribution
of a v i o l ation t o the cause a nd effect of a hazard that must be
significant and substantial. u.s . Steel Mining Co ., 6 FHSHRC
1834 , 1 836 (August 1984) .

1553

It has been determined that the violations charged in both
the Citation nd Order did in fact occur, and that both constituted and/or contributed to discrete safety hazards as above
described.
In terms of the four-part Mathies formula, the decisive question here is whether the hazard contributed to by both
violations, res8ectively, would in reasonable likelihood result
in an injury. 3
Inspector Ellis, although given the opportunity, never advanced from characterizing the "likelihood" of the hazard's occurrence from something which "could have" happened, or was merely "possible. "
CI-T. 85-86, 95).
There was no evidence presented by MSHA of prior injuries or what can be termed "close
calls" from fall of ground.
Cyprus's evidence that occurrence of the hazard was not
likely is found to be more persuasive.
CIII-T. 10 3, 105, 126127, 131; Ex . R-25). As Cyprus points out 31 a lengthy and
unl~kely chain of events w~uld have to transpire, even in
connection with the west wall 32, before the circumstances
constituting the hazard would combine to cause an injury:
1.

Movenent of material would have to begin as a result
of some event.

2.

Such material would have to travel to the bottom of
PBl in sufficient size to pose a hazard.

3.

Such material would have to retain sufficient velocity
to pose a hazard.

4.

Such material would have to overcome the friction of the
material on the west wall.

30 The testimony of MSHA's primary witness, Inspector
Ellis, did not directly deal with the "likelihood" question and
was almost devoid of enlightenment as to the possibilities of the
occurrence of the hazard.
31

Brief, pgs. 49-50.

32 Which by all accounts was the most hazardous of the four
walls in Pushback 1.

1554

.

·~ ·~

...... . - . .

5.

Such ~aterial would have to overcome the characteristics
of the material on the slope· of ..the west wall to gain
momentum as it slid down the slo'pe.

6.

Such material would have to retain sufficient momentum
to climb up and over the berm at the bottom of the west
wall.

7.

Such material would have to overcome the unevenness of
the slope of the west wall which would tend t.o slope or
stop the material.

8.

Such material would have to avoid being retained on the
slope by the remnants of the existing benches.

9.

When mining was occurring, such material would have to
come to the bottom of · the pit with ·Sufficient size and
with sufficient velocity to overcome (in some cases) ,
protection afforded by the location ·of miners in equipment cabs high above the pit floor.

10.

After mining ceased, such material would have to arrive
at the bottom of PB 1 coincident with the brief 10-15
minute period on one of the two or three days a week
when the pumps \'7ere serviced in the pit .

11 .

After mining ceased , such material would have to arrive
at the bottom in a portion of the pit where access to
the base of the walls was not blocked by large pools of
water.

t-i'hile it has been determined that there existed serious
"fall of ground" safety hazards to miners contributed to by the
two violations, it is also concluded that there was not established a "reasonable likelihood" that the hazards contributed to
would result in an injury. Accordingly , both violations are
found not to be significant and substanti al .

G.

F inal Modifications

Since Citation No . 3459560 has been found not to be " Signif i cant and Substantial ," it does not meet the requirements of
Section 104(d)(l) of the Act . Accordingly, its nature shall be
modified to delete this special finding and to show issuance under Section 104(a) of the Act.

1555

Since Citation No . 3459560 as original l y issued was the u nderlying Section l04{d)( l) Citation for Section 104{d)(l) Withdrawal Order No . 3645243 33 , its modification to a Section 104(a)
Citation resul ts in ther e no longer being the prerequisite foundation in the 104(d)(l) scheme for Order No . 3645243 . Since
Order No. 3645243 has a l so been found not to be " Significant and
Substantial ," it lacks the prerequisite elements for a 104(d){l)
Citation , and it also is to be modified to a Section 104(a) Citation. Se~ Mettiki Coal Corporation , 13 FMSHRC 760 , 764 <May
1991) ; Consolidation Coal Company, 4 FMSHRC 1791 (October 1982).
H.

Penalty Assessment

Cyprus i s the owner and operator of a large open p i t molybdenum mine located in the vicinity (Ex . P- 12) of Tonopah, Nevada.
Cyprus is a l arge mine operator (Stipulation, Court Ex . 1) which
had a history of 34 previous viol ations (Ex . P- 27) including the
two similar v i olations cited on May 31, 1989, and June 1, 1989 ,
discus s ed in detail herein. Payment of penalties will not affect
Cyprus ' s abi lity to continue in business (Court Ex . 1) . Cyprus ,
after notification of the violat i ons , proceeded in good faith to
promptly abate the same .
(III- T. 1 59 ).
Although neither violation has been found to be " significant
and substantial" within the special meaning in mine safety law of
this legal term of art , both violations are found to be serious
in view of the hazard found to have been posed by them and the
potential for serious i n jury to miners had the hazard come to
fruition .
In view of the frequency of the occurrence of the problem ,
first discovered during a CAV inspection, subsequently cited in
May and June of 1989 , and again cited during the subject inspect i on by Inspector Ellis , and the mine operator having been warned
about the situation by MSHA ' s representative Mr. Breland , I have
concluded that both v i o l ations resul ted from Cyprus ' s continuing
(see I-T. 1 88- 193 , 195) u nwarrantable failure to comply with the
pertinent standards and here conclude that Cyprus exhibited a
considerable degree of culpability in the commi ssion of the two
infractions .

33 See Exhibit P-1, 1st Ellis Modification of Order 3645243
dated 3 - 1-90.

1556

Accordingl y , a penalty of $1000 is assessed for Citation No .
3459560 and a penalty of $1000 for Citation No . 3645243.
ORDER
1 . Citation No . 3459560 is MODI F I ED to change the
11 Gravity 11 designation in Section 10 A thereof from 11 Reasonably
Likely 11 to 11 Unlikely, .. to delete the .. significant and substantial 11 designation in Section 10 c thereof, and to change the
issuance authority thereof from Section 104(d)(l) of the Act
to Section 104(a).
2 . Order No. 3645243 is MODI FIED to change the 11 Gravity 11
designation in Section 10 A thereof f r om .. Reasonably Likely .. to
11
Unlikely , 11 to delete the 11 Significant and Substantial .. designa tion in Section 10 C thereof, and to change its nature and issu~
ance authority from a Section 104(df<l) order to a Section lO~(a)
Citation;
3.
Contestant/Respondent Cyprus shall pay to the Secretary
of Labor \'1i thin 30 days from the date of issuance of this decision the total sum of $2000 as and for the civil penalties above
assessed.

:J~~~t:e

ce..#t'd~(~.

Michael A. Lasher, Jr .
Administrative Law Judge

Dis tribution:
R. Henry Moore , Esq ., BUCHANAN INGERSOLL PROFESSIONAL CORP ., USX
Tower 5 7 t h F l oor , 60 0 Gra n t Str eet, Pittsburgh , PA 15219
(Cert i f i ed Mail)
Li sa A . Gray , Esq . , Office of the Sol icitor , u.s. Department of
Labor, 4015 Wilson Boul evard , Arlington , VA 22203 (Certified
Mai l >
ek

1557

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

SEP 2 5 1991

. CONTEST PROCEEDING

ARCH OF KENTUCKY, INC. ,
Contestant

v.

Docket No. KENT 91-16-R
Order No. 3384076; 9/13/90

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

:

.

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

..

v.

No. 37 Mine
Mine ID 15-04670
CIVIL PENALTY PROCEEDING
Docket No. KENT 91-167
A.C. No. 15-04670-03634
No. 37 Mine

ARCH OF KENTUCKY, INCORPORATED,
Respondent
DECISIONS
Appearances:

Mary Sue Taylor, Office of the Solicitor, U.S.
Department of Labor, Nashville, Tennessee, for the
Respondent/Petitioner;
MarcoM. Rajkovich, Esq., Wyatt, Tarrant & Combs,
Lexington, Kentucky, for the Contestant/Respondent

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern a . proposal for
assessment of civil penalty filed by the Secretary of Labor
(MSHA), against the respondent mine operator (Arch of Kentucky,
Inc., hereafter referred to as Arch), pursuant to section 110(a)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 820(a), seeking a civil penalty assessment of $1,000, for an
alleged violation of mandatory safety standard 30 C.F.R. § 75.316
(Docket No. KENT 91-167). Docket No. KENT 91-16-R, concerns a
Notice of Contest filed by Arch challenging the legality and
propriety of the violation.
The contested citation and order were consolidated for
hearing in Pikeville, Kentucky, and the parties appeared and
presented testimony and evidence with respect to the alleged
violation. Subsequently, the parties informed me that they
1558

settled the cases, and they filed a j oint motion pursuant to
Commission Rule 30, 29 C.F.R. 27 00.30, seeking approval of the
proposed settlements.
Stipulations
The parties stipulated in relevant part as follows
(Tr. 5-6):
1.

The contestant/respondent is a large mine
operator.

2.

The contestant/respondent is subject to the
jurisdiction of the Act and the presiding
administrative law judge.

3.

Payment of the propos.ed civil penalty
assessment will not adversely affect the
respondent's ability to continue in business.

4.

The mine ventilation plan required 38,0QO
cubic feet of air per minute on the longwall
face on September 13, 1990, and it also
mentions other air quantities . The plan did
not specify a location for taking face air
readings.
Discussion

The alleged violation of mandatory safety standard 30 C. F.R.
75.316, is stated as follows in the initial section 104(d) (1)
Order No. 3384076, issued by MSHA Inspector James W. Poynter on
September 13, 1990:
§

The approved ventilation and methane and dust control
plan was not being fully complied with on the G-2 (004)
longwall section. An air measurement taken with a
calibrated anemometer, at the No. 66 shield, indicated
that 29,858 cfm of air was coursing a cross the longwall
face. The approved plan stipulated that 38,000 cfm of
air will be maintained on the longwall face .
In the course of the hearing, MSHA's counsel stated that the
contested order was subsequently modified to a section 104(d) (1 )
citation (Tr. 10-11). As a result of the settlement discussions
by the parties following the hearing, the citation has been
further modified to a section 104(a) citation, with special
significant and substantial (S&S) findings. Further, the
proposed civil penalty assessment of $1,000, has been reduced to
an assessment of $500, which Arch has agreed to pay .

1 5 59

In support of their proposed settlement, the partie.s have
submitted additional information with respect to negligence and
gravity, and I take note of the fact that abatement was achieved
within approximately one hour when the air current across the
longwall face was increased to 38,768 cfm of air. The record
reflects that the decreased air on the section was caused by a
blockage of the tailgate area by a piece of rock. The parties
agree that the mine had some problems with rock falls in the
tailgate area, and that the foreman discussed the decreased air
situation with his crew and that they all agreed that in their
opinion the safest way to remove the rock was to take additional
cuts of coal along the longwall face. Under these mitigating
circumstances, the parties further agree that the unwarrantable
failure notice should be modified to a section 104(a) citation.
Conclusion
After careful review of the entire record in this case,
including the posthearing arguments submitted by the parties in
support of the proposed settlement, I conclude and find that the
settlement is reasonable and in the public interest.
Accordingly, IT IS APPROVED.
ORDER
IT IS ORDERED THAT:
1.

Docket No . KENT 91-167. The modified
section 104(a) "S&S" Citation No. 3384076,
September 13, 1990, charging a violation of
mandatory safety standard 30 C.F.R. § 75.316,
IS AFFIRMED.
The respondent Arch of Kentucky, Inc., IS
ORDERED to pay a civil penalty assessment of
$500 for the violation, and payment shall be
made to MSHA within (30) days of the date of
this decision and order. Upon receipt of
payment, this matter is dismissed.

2.

Docket No. KENT 91-16-R. In view of the
approved settlement of the civil penalty
case, the contest filed by Arch of Kentucky,
Inc., is deemed to be withdrawn, and IT IS
DISMISSED.

~-ld~
Administrative Law Judge

1560

Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, u.s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
MarcoM. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, Lexington
Financial Center, 250 West Main Street, Lexington, KY 40507
(Certified Mail)
jml

1561

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

SEP 2 0 1991

.

...
.

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

v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 89-36-M
A.C. No. 41-00267-05520
Laura Todd Pit and Plant

FEATHERLITE BUILDING PRODUCTS
CORPORATION,
Respondent

.

AMENDMENT TO CORRECT CLERICAL ERROR IN DECISION
Before:

Judge Cetti

The decision dated December 13, 1990, at 12 FMSHRC 25.8 0
(Dec. 1990) is AMENDED to approve the penalties assessed b¥
MSHA for three citations that were accepted and paid b¥ Respondent without formal litigation or approval.
The Parties, through their respective representatives, have
now filed and requested approval of a settlement agreement pursuant to Section llO(k) of the ·Federal Mine Safety and Health Act
of 1977, 83 Stat . 742, 30 u.s.c. § 801-960, (the Act). The parties by their settlement agreement seek a formal order approving
the full amount of the penalties assessed by MSHA and paid by
Respondent as follows:
Citation No.

Standard
30 C.F.R. §

Assessment

Disposition
Settlement

03276702

5Q.l2032

$. 276

$ 276

03276704

56.12032

$ 276

$ 276

03276459

56.12016

$1000

$1000

I have reviewed these three citations in light of the six
statutory criteria set forth in Section llO(i) of the Act, 30
u.s.c. § 810(i), and find that the penalties assessed are in
accordance with the provisions of the Act.

1562

Accordingly, I approve the above-mentioned penalty assessments and, the operator having paid, these penalties in addition
to the $7,000 penalty assessed for the other three citations that
were fully litigated, this case is and remains DISMISSED.

Aug st F. Cetti
Administrative Law Judge

Distribution:
Mary E. Witherow, Esq., Office of the Solicitor, u.s. Department
of Labor, 525 South Griffin Street, Suite 501, Dallas, Texas
75202
(Certified Mail)
Steven R. McCown, Esq., Jennifer A. Youpa, Esq., JENKINS &
GILCHRIST, 1445 Ross Avenue, Suite 3200, Dallas, TX 75202-2711
(Certified Mail)

sh

1563

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

SEP 27 1991
ROY FARMER, ET AL . ,
Complainants
v.
ISLAND CREEK COAL COMPANY,
Respondent

COMPENSATION PROCEEDING
Docket No. VA 91 - 31-C
VP-3 Mine
DECISION

Appearances:

Michael Dinnerstein , Esq. , and Mary Lu Jordan,
Esq., Uni ted Mine Workers of America, Washington ,
D.C., for the Compl ainants;
John Graykowski , Esq., and Timothy M. Biddle,
Esq . , Crowell & Moring, Washington, D.C., for the
Respondent.

Before:

Judge Melick

This case is before me upon remand by the Commission on
May 9, 1991, and upon subsequent reassignment for further
proceedings to determine (1) whether "good cause" exists for the
Complainants failure to have presented to the judge then
presiding, their excuses for the untimely filing of thei r
complaint for compensation , and, if so , (2) whether there is
"adequate justification" for the l ate filing of their complaint
and, if so , (3) whether the Respondent has suffered "material
legal prejudice" from the delay.
A thorough analysis of the law regarding these issues and a
detailed procedural history of the case is provided in the
Commission's decision and need not be restated herein. It is
suffici ent for purposes of this decision to note that on
April 17 , 1990, the Department· of Labor, Mine Safety and Health
Administration (MSHA) , issued to the Island Creek Coal Company
(Island Creek) an imminent danger withdrawal order and a related
citation alleging dangerous concentrations of methane in its VP-3
Mine . By letter dated October 29, 1990, and received by the

1564·

Commission on November 2, 1990, Roy Farmer, identifying himself
as a miner's representative, filed a "reque~t for compensatio~
per Section 111 of Coal Mine Safety and Health Act of 1977." I
Commission Procedural Rule 35, 29 C.F.R. § 2700.35 provides
as follows:
A complaint for compensation under section 111 of the
Act, 30 u.s.c. 821 shall be . filed within 90 days after
the commencement of the period the complainants are
idled or would have been idled as a result of the order
which gives rise to the claim.
As the Commission noted in its decision, Mr. Farmer's
complaint, submitted to the Commission more than 6 months after
the issuance of the imminent danger order, is silent as to
reasons for the late filing. On November 28, 1990, Island Creek
filed its answer asserting that the complaint "must be dismissed
because it was not filed within the period required by Commission
Rule 35". On November 30, 1990, Island Creek also filed a motion
to dismiss arguing that the Complaint was late filed and that no
excuse was offered for the untimeliness. There is no evidence
that the Complainants ever responded to the dismissal motion. As
noted by the Commission, its procedural rules provide a party
10 days after the date of service, plus 5 additional days for a
document served by mail, to file a statement in opposition to a
motion. 29 C.F.R. § 2700 . 8(b) and§ 2700.10(b). In this
instance then the Complainants' 15-day period for filing a
response ended on December 17, 1990.
Subsequently on December 20, 1990, the presiding judge
issued his order of dismissal noting representations that the
complaint was filed 198 days after the date of the alleged
entitlement and that Rule 35 requires filing within 90 days after
that entitlement. Referencing the late filing and Complainants
failure to respond to the motion or to offer any justification
for the late filing, the judge granted the motion and dismissed
the proceeding. Subsequently, based in part upon excuses
advanced in a petition for review filed with the Commissi on on
January 4, 1991, the Commission remanded this case to give the
Complainants an additional opportunity at an evidentiary hearing
to present "good cause" and/or "adequate justification" for the
untimely filing of its Complaint and its failure to have
responded to the motion to dismiss.

1 ; The action herein would come within Section 111 of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq., the "Act."

1565

At evidentiary hearings on August 22, 1991, Mr. Farmer
clearly established that even before the Motion to Dismiss was
filed in this case, he made reasonable efforts to obtain copies
of the Commission Rules of Procedure from both this Commission
and the Department of Labor, but without success. These rules,
as previously noted, provide time frames and guidance for
opposing a motion such as the Motion to Dismiss at issue herein.
Mr. Farmer also testified credibly that he thought he would be
given an opportunity to present the reasons for his late filing
at an oral hearing, and that he was unaware of a requirement for
a written response. Under the circumstances, I find that good
cause does indeed exist for Complainants' failure to have filed a
written response to the Motion to Dismiss or to have otherwise
timely presented their excuses for the late filing of their
complaint.
The Complainants have also furnished adequate justification
for the late filing of their complaint. The credible evidence
establishes that their representative, Mr. Farmer, was indeed
ignorant of the filing requirements for compensation claims.
Moreover, while it is true that Farmer's educational background
would suggest that he should be held to a higher standard,
compensation proceedings under the Act are relatively rare and,
from the mere fact of his having a college degree in business
administration and that he was "reading the law" for the Virginia
Bar, it cannot reasonably be inferred that he should have had or
should even be expected to have such esoteric knowledge.
In addition, there is sufficient credible evidence in the
record to conclude that Farmer did converse with Mine Manager
Eddie Ball about the issue of compensation and that Ball at the
very least advised Farmer that nothing would be done about
compensation until the contest of the underlying citation was
resolved. I also find from the credible evidence that Mr. Farmer
did contact officials from the Federal Mine Safety and Health
Administration within the 90 day deadline but was not provided
sufficient information to file a timely complaint with this
Commission. From these circumstances alone, I find that
"adequate justification" exists to excuse the late filing herein.
I further find that there is insufficient evidence of "legal
prejudice" to otherwise warrant dismissal of these proceedings.
Under the circumstances the Motion to Dismi s is denied and
this case may now proceed on the m~ri ' .

(l

J~-

/ cl - ·---\ ·;\\,- t~'\_,.. .'- \ '' --(

/

•

I

I

G~ry Melick

\

I

\ :

Administrative Law ·\~Udge

\

\

1566

FEDERAL MINE SAFETY ·AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
.FALLS CHURCH, V!RGINIA

22041

SEP 3 0 1991
SECRETARY OF LABOR,
MINE SAFETY AND ·HEALTH
ADMINISTRATION (MSHA),
Petitioner

. CIVIL · PENALTY PROCEEDING
: Docket
WEVA 91-286

CONSOLIDATION COAL COMPANY, ·
Respondent

..• Arkwright No. 1 Mine
•

v.

No~

A.C. No. 46-01452•03773

DECI·SION
Appearances:

Before:

Charles M. , Jackson, Esq., u.s. Department of
Labor, Office of the Solicitor, Arlington,
Virginia, for Petitioner;
Walter J. Scheller III, Esq., Consolidation Coal
Company, Pittsburgh; Pennsylvania, for Respondent·.

Judge Weisberger

statement of the case
This case is before me based on a petition for assessment of
civil penalty filed by the Secretary of Labor (Petitioner)
requesting the imposition of a civil penalty for an alleged
violation of 30 c.F.R. § 75.517. The Operator (Respondent) filed
an answer, and pursuant to notice, the ca-s e was .h eard in
Morgantown, West Virginia on August 28, 1991. Lynn Arthur
Workley, and Michael J. Kalich, test-ified for Petitioner. Harold
w. Moore, Jr., and Kevin D. Dolinar, testifie(i . for Respondent.
The part-i es waived t ·h eir right to submit a writte.n brief, and in
lieu thereof, at the conclusion of the hearing, presented closing
arguments.
Findings of Fact and pisgusaion ·
On January 17, 1991, while inspecting the l-R section at
Respondent's Arkwright No. l Mine, Lynn Arthur Workley, an MSHA
inspector who is also a certified underground electrician in
Ohio, observed a split outer jacket on a cable that supplies
power to a continuous mining mach.ine ("miner"). At the hearing,
Respondent indi9ated that it stipulates to the violation. Based
upon the stipulation as well as the evidence presented at the
hearing, I find that Respondent herein did violate
Section 75.517 supra as alleged.

1567

The cable at issue contains three .phase conductors, 2 ground
wires, and a pilot wire. It supplies approximately 1000 volts
from the power center to a miner. The cable is protected by a
jacket, approximately a quarter of-an inch thick, which
.
completely envelopes the cable. . In addition to physically
protecting the conductors, ground, and, pilot inside the cable,
the jacket also serves to keep out water, dust, and oil. The
only defect to the cable in question when observed by Workley,
was that it had a longitudinal gash or split a few inches long.
Workley, was able to see the conductor shield below the jacket
but could not estimate the width of the split. Harold w. Moore,
Jr., Respondent's safety escort who accompanied Workley testified
that the width of the split was less than an inch. Inasmuch as
his testimony in this regard was not impeached or rebutted it is
accepted.
Each of the phase conductors in the cable is covered with
insulation and phys~cally protected by a shield made up of
braided copper and cotton. When .observed by Workley, there was
no evidence of other damage to the . jacket aside from the split,
and there was no evidence of damage to the conductor shield. The
condition was abated by sealing the jacket with tape.
Essentially, it is the opinion of both Workley and Michael G.
Kalich, an MSHA electrical inspector who has taught courses in
electricity, and is a certified electrician for medium high and
low voltage, that the violation herein is significant and
substantial since, there was a reasonable likelihood of a serious
injury with continued mining operations. For the reasons that
follow, I conclude that it has not been established that the
violation herein i~ significant and substantial.
In analyzing whether the facts herein establish that the
violation is significant and substantial, I take note of the
recent Decision of the Commission in Southern Ohio Coal Company,
13 FMSHRC 912, (1991), wherein the Commission reiterated the
elements required to establish a significant and substantial
violation as follows:
We also affirm the judge's conclusion that the
violation was of a significant and substantial nature.
A violation is properly designated as significant and
substantial "if, based on the particular facts
surrounding that violation, there exists ·a reasonable
likelihood that the hazard contributed to .w ill result
in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum Co.,
3 FMSHRC 822, 825 (April 1981). In Mathie.s Coal Co., 6
FMSHRC 1, 3-4 {January 1984), the Commission explained:
In order to establish that a violation
of a mandatory standard is significant and
substantial under National Gypsum the

1568

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 natu;re.
See also Austin Power Co. v . Secretary, 861 F.2d
99, 103-04 (5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria). The
third element of the Mathies formula "requires that the
Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which
there is an injury" (U.S. steel Mining co., 6 FMSHRC
1834, 1836 (August· 1984)), and also that the likelihood
of injury be evaluated in t~rms of ·continued normal
mining operations: (U.s. steel Mining Co. , Inc. 6 FMSHRC
1573, 1574 . (July 1984); see also Halfway, Inc., 8
FMSHRC 8, 12 (Japuary 1986). 11 (Southern Ohio, supra at
916-917).
The record establishes, as discussed infra, a violation of ·a
mandatory safety--standard, and that the violation herein, i.e.
the split in the jacket, did contribute somewhat to the hazard of
exposure to abrasion of the inner shield and insulation. such
abrasion could destroy the integrity of the shield and insulation
which could possibly lead to a ground fault or leakage of
voltage. This could possibly cause injury, should one come in
contact with the exposed portions of the cable or equipment,
which could be affected by the ground fault . Accordingly, the
record establishes the first two elements of the Mathies formula.
However, the record fails to establish the third element
i.e. a reasonabie likelihood that the hazard contributed to will
result in an injury, which requires that the Secretary establish
"a reasonable likelihood that the hazard contribute to would
result in an event in which there is injury" (U.s. steel Mining
Co., 6 FMSHRC 1834, 1836 (August 1984).
Essentially, according to Workley, inasmuch as the integrity
of the cable jacket has been breached by the split in question,
continued normal use of- the heavy cable by dragging it around
corners and against edges of equipment, will cause abrasion,
which, over time, will damage the insulation of the conductors.
However, such damage is possible only in the event that the split
in question would not.· have been found and corrected. There is
nothing in the record to support such a conclusion. To the
contrary, Respondent had provided its miner operators with
instructions to look for "cuts, breaks, bare wires, and bad

1569

splices in cable" (sic) and to notify a foreman or mechanic if
any ~amage is found (Exhibit 0-1).
Kalich opined that since the ~acket was subject to
sufficient stress to create a split in it, it is reasonably
likely that some damage occurred to the wires inside the cable,
inasmuch as the insulation material of the conductors is not as
strong as the jacket. However, there is no evidence that such
did occur. Workley in this regard indicated that there was no
evidence of damage aside from the split in the jacket .
According to Kalich, even though the insulation on the
conductors is intact, if a conductor's shield is not intact, a
person touching it could be subject to up to 600 volts as a
result of a corona1 which normally is grounded. Kalich was
asked how a break in the shield would occur in normal mining . He
said that" ••• it could be an improperly repaired place in the
cable • ••• And that would be normally what you would expect,
you know, if you would find that condition, that's what would
happen" (Tr.56). He was asked if this is a comon occurrence and
he said that he had found a "few" cables that had not been
properly repaired, and the shield had not been replaced (Tr. 56).
There is nothing in the record to indicate there was any
likelihood a splice would not be properly repaired. Due to
Dolinar's work experience and education, having a Bachelor's
degree in electrical engineering, I place more weight upon his
opinion that a corona is of concern only if 4,000 to s,ooo volts
are present. In contrast, in the instant case, the voltage
supplied by the cable is only approximately 1,000 volts. 2
Kalich testified to a hazard of leakage of electricity to
the shields, and that contact with 0.05 amps could cause shock,
and contact with 0.1 amps would cause death. He indicated if a
person touches a shield to which electricity had leaked, an
injury could occur, as the person may suffer burns. He also
opined that due to electrical shock, a peson might jump or fall
onto moving equipment. However, any hazard created is mitigated
by the fact that the electrical system in question is protected ·
by circuit breakers that cut off power at 4 to 5 amps. Also, due
to the grounding system present, the amount of leakage is limited
to 40 volts which is the maximum allowed by MSHA. It is
Respondent's position, as testified to by Kalich, that if the
breakers were not set or did not function properly, their
protection would be nullified and a hazard would result.
There
is no evidence that the breakers were in any way defective.
1

current which is induced.

2According

to Dolinar, the shielding "attempts" to
distribute the voltage equally among the three conductors.
(Tr. 123)

1570

Kalich indicated essentially that defects to breakers could occur
in normal mining, and that in his expereince "probably" five ·out
of 100 breaken tested do not work properly (Tr. 52). This
evidence is insufficient to establ~sh that. there was a reasonable
likelihood that the breakers herein would fail with continued
mining.
Kalich also testified -that since the breakers were set for
4 to 5 amps, a leakage of a lesser amount could result. He
indicated that, in such an event, should a person contact
equipment attached to the electical system at issue, an injury
could result, especially if the person is wet, as his resistance
would be less. In this connection, Kalich indicated that in
normal mining conditions the environment would be wet, as the
continuous miner would normally be sprayed with water.
According to Dolinar, even a leakage of up to 4 amps would
not create any danger to a person coming in contact with an
exposed shield. He indicated that the grounding system insures
that no more than 40 volts would he present in exposed equipment
or shields. As such, according to Dolinar, there would be
insufficinet force to push a current of 4 Amps into a person
considering the person's resistance. In this connection he
· indicated that a ground path with only 1 ohm of resistance is
available. In contr~st, the resistance to electricity of an
average dry person is measured in the range of 50,000 to 75,000
ohms. He testified that even soaking wet and standing in a
puddle of water the resistance of a human body would be at least
1,000 ohms.
I accept this testimony of Dolinar, inasmuch as in the main
it was not rebutted or impeached. Also mitigating any hazard is
the fact that the conductors are tied to the ground wire, and are
grounded together providing further protection. Although, as
indicated by Dolinar on cross examination, if the jacket becomes
loose it will affect the connection between the ground and the
conductors in the area of looseness, there is no evidence that it
is reasonably likely that the jacket will become loose. Also,
although the system could break down if the breakers are set
improperly, if the ground wire breaks, or if the breakers do not
trip, there is insufficient evidence to conclude that these
events are reasonably likely to occur.
For all these reasons, I conclude that it has not been
established that there was a reasonable likelihood that the
hazard of an electrical shock contributed to by the violation
herein would result an event in which there is an i-njury.
Accordingly, I conclude that it has not been established that the
violation herein is significant and substantial.
Petitioner has not adduced any evidence with regard to
Respondent's negligence. Taking this into account, as well as

1571

the gravity of the violation, and the rema1n1ng statutory
factors, I conclude that a violation of $50 is appropriate for
the violation found herein.
ORDER
It is ORDERED that Citation No. 3315922 be amended to
reflect the fact that the violation cited therein was not
significant and substantial. It is further ORDERED that
Respondent shall, within 30 days of this decision, pay $50 as a
civil penalty for the violation z o u n
erein.

~

vram
isberger
Administrative Law Judge
Distribution:
Charles M. Jackson, Esq., Page H. Jackson, Esq., Office of the
Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard,
Room 516, Arlington, VA 22203 (Certified Mail)
.Walter J. Scheller III, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)

1572

ADMINISTRATIVE LAW JUDGE ORDERS

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

SEP 13 1991
IN RE:

CONTESTS OF RESPIRABLE
DUST SAMPLE ALTERATION
CITATIONS

MASTER DOCKET NO. 91-1

ORDER GRANTING IN PART AND DENYING IN
PART CONTESTANTS' MOTIONS TO COMPEL,
AND DIBECTING THE SECRETARY TO SU8MIT
DOCVMENTS FOR IN CAMERA INSPECTION

On July 26, 1991, Contestants Kentucky Carbon,~ AI., filed
a motion for an order to compel the Secretary of Labor to produce
67 documents which she claims are privileged and therefore not
subject to discovery. In the alternative, Contestants request
that the Secretary be required to produce the documents for an in
camera inspection by the court. A memorandum was filed in
support of the motion. On July 26, 1991, Contestants Andalex
Resources, Inc.,~ Al., filed a similar motion and relied on the
arguments advanced on behalf of Kentucky Carbon, ~ Al·
Contestants' position is that the Secretary has failed to meet
her burden of justifying her claim of privilege with respect to
all of the documents. The Secretary filed an opposition to the
motions on August 9, 1991. She agrees to an in camera inspection
if I am unable from the document description to determine the
validity of the privilege asserted.
On August 13, 1991, Contestants Great Western Coal, Inc.,
and Harlan Fuel company, filed a motion to compel, joining in the
motion of Kentucky Carbon,~ Al., and filing a memorandum of
law. Great Western requested that the motions be scheduled for
oral argument.
On August 19, 1991, Contestants Horn Construction Co., Inc.,

Al, filed a motion to compel, joining in the motions filed by
Kentucky Carbon, st Al., and Great Western coal co., At Al·

~

on August 9, 1991, the Secretary filed an Opposition to the
Motion of Kentucky carbon, ~ Al·, to Compel Discovery and filed
a Memorandum of Law in Support of the Opposition. On August 26,
1991, she filed a Memorandum in Support of her opposition to the
Motion of Great Western to compel discovery. On August 21, 1991,
contestants Kentucky Carbon, et al., filed a Reply Memorandum.
On August 22, 1991, I ordered the Secretary to reply to the
contention in the Motions to Compel, that the privileges must be
formally asserted by the agency head after personal consideration
1573

of the documents for which privilege is claimed. On August 30,
1991, the Secretary filed an affidavit of Edward c. Hugler,
Deputy Assistant Secretary for Mine Safety and health, u.s.
Department of Labor. Secretary Hugler formally asserted the
"deliberative" privilege with respect to certain documents, the
"investigative" privilege with respect to others and, the
attorney-client privilege with respect to yet others. He
concurred with the assertion of the work product privilege made
by the Solicitor of Labor. · He also decided not ~o assert a
privilege with respect to certain documents for which privilege
was originally claimed.
Attached to Secretary Hugler's affidavit is an affidavit of
Robert A. Thaxton, Supervisory Industrial Hygienist for MSHA, and
an agent of Federal grand juries investigating allegations of the
alteration of coal dust samples. He reviewed certain documents
for which privileges have been claimed and asserts that release
of those documents would reveal potential targets of criminal or
civil investigations, the investigative techniques being
utilized, or grand jury proceedings. Thaxton's affidavit
provides additional descriptions of documents 326, 327, 328, 350,
353 and 406.
·
The affidavit of Secretary Hugler was stated· to have been
filed in accordance with my order of August 22, and is intended
to supplement the Secretary's opposition to the Motion to Compel.
Contestants Great Western, et al., filed a reply to the
Secretary's opposition on September 13, 1991.
I

PLAN AND SCHEDULE OF DISCOVERY
On June 21, 1991, the Secretary, in compliance with the
Prehearing Order Adopting the Amended Plan and Schedule of
Discovery, provided Contestants with a list of 406 documents
which she revised on July 8, 1991, to include 425 documents. Of
the 425, she claims that 67 are privileged and therefore not
subject to discovery. On July 29, 1991, the Secretary filed an
amended Generic and Privileged Document List, adding two
documents to the privileged list. Contestants filed an
additional Motion to Compel production of these documents, and
the Secretary filed an opposition thereto.
II
DISCOVERY AND PRIVILEGE
Under Commission Rule 55(c), 29 C.F.R. § 2700.55(c), and
Rule 26(b) (1) of the Federal Rules of Civil Procedure, all

1574

relevant material not privileged is subject to discovery. The
Commission and the Federal Courts have broadly construed the
discovery rule to include relevant materia~, and conversely, have
narrowly construed the claim of privilege. Hickman v . Taylor,
329 u.s. 495 (1947); Secretary/Logan v. Bright Coal Co., I·nc., 6
FMSHRC 2520 (1984). The burden is on the party claiming that
relevant material is not subject to discovery because of
privilege. In re: Sealed case, 676 F.2d 793 (D.c. Cir . 1982).
As contestants further point out, even if the Secretary has
properly asserted a privilege, the material may be subject to
discovery "where disclosure is essential to a fair determination
of the case."
The Secretary claims that the documents involved here are
not subject to discovery because they are covered by (1) the
deliberative process privilege; (2) the investigative file
privilege; (3) the attorney-client privilege; (4) the attorney
work product privilege, and, with respect to certain documents,
by more than one of the privileges. She also asserts that some
of the documents are subject to Rule 6(e) of the Federal Rules of
Criminal Procedure prohibiting disclosure of grand jury
information.
·
Rule 501 of the Federal Rules of Evidence provides that
"[e]xcept as otherwise required by the Constitution • • • or
provided by Act of Congress, or in rules prescribed by the
Supreme Court [i.e., Rule 26(b) FRCP] • • • , the privilege of a
witness, person, government • • • shall be governed by the
principles of the common law as they may be interpreted by the
courts of the United States in the light of reason and
experience." Therefore questions of privilege in cases before
the Commission must be determined in the light of Federal Court
case law, which may arise in connection with discovery disputes
or in suits brought to enforce disclosure under the Freedom of
Information Act, 5 u.s.c. § 552.
Contestant Great Western argues that the Government's claim
of privilege may only be asserted by a formal claim of the agency
head supported by affidavit. In the reply memorandum of Kentucky
Carbon, et al., Contestants contend that the claim of privilege
in this case may only be asserted by Secretary of Labor Lynn
Martin after her personal considerati on of the documents in
question.
The case of u.s. v. Reynolds, 345 u.s. 1 (1953), involved an
assertion of privi lege based upon national security interests i n
a military aircra f t accident report. The Supreme ~c urt held that
in such a case " [t]here must be a formal claim of privilege,
lodged by the head of the department which has control over the
matter (here the Secretary of the Air Force], after actual
personal consideration by that officer." Id. at 7-8. Two cases
from the District Court of Delaware, Pierson v. United States,

1575

428 F.Supp. 384 (D.Del. 1977) and Coastal Corp. v. Duncan, 86
F.R.D. 514 (D.Del. 1980) held that "executive privilege"
(including the deliberative and investigative privileges) may be
asserted only by the responsible agency head (the Commissioner of
Internal Revenue and the Secretary of Energy in the two cases).
The latter case also considered the attorney-client privilege and
the work product privilege although they were asserted by
Department of Energy attorneys. · United States v. O'Neil, 619
F.2d 222 (3rd Cir. 1980) involved an administrative subpoena
duces tecum issued by the United States Civil Rights Commission
upon the Commissioner of the Philadelphia police department for
certain records. Privilege was asserted orally by the city
Solicitor based on claims of the Fifth Amendment privilege
against self-incrimination, attorney-client and work product
privileges and police officers' due process rights. The
privilege was rejected because it was asserted orally, because it
was not invoked by the head of the department, and because it was
"a broadside invocation of privilege • • . " In the case Mobil Oil
Corp. v. QQE, 520 F.Supp. 414 (N.D •. N.Y. 1981), the court stated
that the department head may delegate the assertion of executive
privilege, "but only to a subordinate with high authority," and
then only after the head of the agency has issued "guidelines on
the use of the privilege." ~. at 416.
In Fowler v. Wirtz, 34 F.R.D. 20 (S.D. Fla. 1963) the Court
held that where the authority to make policy decisions relating
to suits under the Labor Management Reporting and Disclosure Act
was vested solely in the Secretary of Labor, the Secretary was
required to file a formal claim of privilege against disclosure
of governmental informers.
In the Bright Coal co. case, supra, the Commission stated at
page 2523:
There is authority for the ·proposition that
the privilege (informant's privilege) can be
invoked only through the filing of a formal
claim of privilege and confidentiality by the
head of the department with control over the
matter, supported by affidavits attesting to
facts sufficient to allow an independent
judicial determination that the privilege
exists • • • [cases). The great weight of
case law concerning the privilege, however,
addresses and disposes of the issue without
focusing on whether the privilege was
'formally' raised.
In a more recent case, Secretary v. ASarco, 12 FMSHRC 2548
(1990), the Commission considered assertions of informant's
privilege, attorney-client privilege and work product privilege
raised by the Secretary's trial counsel, and did not hold that

1576

the privileges could only be invoked by the Secretary of Labor
personally.
Because discovery of relevant material is favored, and a
claim of privilege is narrowly construed, i t is essential that
privilege not be lightly claimed. Whatever the formalities
required, its assertion must be made by a responsible
governmental official.
In a suit for damages for an alleged
illegal eavesdropping operation by the FBI, plaintiff sought to
discovery FBI files.
Executive privilege was claimed and an
affidavit by the Attorney General who had not personally
considered all the documents, together with an offer to produce
the documents for in camera inspection by the court was held
sufficient.
Black v. Sheraton Corp., 564 F.2d 531 (D.C. Cir.
1977). The Court said at page 545:
Even if the affidavit . . . was too imprecise
to be used in a final determination of the
scope of the privilege, it was adequate to
reserve for the government an opportunity to
interpose specific objections with respect to
individual documents before their production
was ordered. In our view the proper course
would have been for the District Court to
have accepted the proffered file for in
camera inspection.
I take official notice that the Secretary of Labor is
involved in a large number and variety of regulatory and
enforcement matters. She may be a party at a given time in
hundreds of proceedings in the courts and before administrative
agencies. To require that she personally consider all the
documents in these cases and invoke privileges such as are
claimed in this administrative proceeding is in my opinion
neither practical nor necessary.
I hold that the claim of
executive privilege invoked here by a high level official of the
Department of Labor who has direct responsibility for the matters
involved after personal consideration of the documents, is
sufficient formal claim of privilege when coupled with the
Secretary's offer to submit the documents (except those for which
grand jury immunity is claimed) for in camera inspection.
The request for oral argument on the motions is DENIED.
III
DELIBERATIVE PROCESS PRIVILEGE
The deliberative process privilege is unique to the
government.
It seeks to insure that government agency
subordinates will feel free to provide their superiors with
uninhibited recommendations and opinions and to protect against

1577

premature disclosure of policies under consideration. Coastal
States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir.
1980). 'l'he documents in question must be "predecisional," NLRB
v. Sears Roebuck & Co., 421 U.S. 132 (1975), and must indeed be
deliberative. The agency has the burden of establishing the
deliberative quality of the document.
Id., at 868. The Sears
Roebuck case was a suit under the Freedom of Information Act for
disclosure of documents, rather than a discovery issue in a
pending lawsuit, but the principles are the same: See
Environmental Protection Agency v. Mink, 410 U.S. 73, 91:
"Exemption 5 (of FOIA] contemplates that the public's access to
. . • memoranda will be governed by the same flexible common
sense approach that has long governed private parties discovery
of such documents involved in litigation with government
agencies." See also 2 Weinstein's Evidence§ 509.
Factual material contained in deliberative memoranda is not
privileged from discovery by private parties in litigation with
the Government. Environmental Protection Agency v. Mink, supra,
Schwartz v. Internal Revenue Service, 511 F.2d 1303 (D.C. Cir.
1975). Memoranda prepared by consultants, not Government
employees, recommending for or against proposed Government action
may be part of the deliberative process of the agency and
protected from disclosure. Wu v. National Endowment for
Humanities, 460 F.2d 1030 (5th Cir. 1972), cert denied, 410 U.S.
926 (1972).
IV
INVESTIGATIVE FILE PRIVILEGE
Documents which are claimed to be privileged by a government
agency because contained in investigatory files must not only be
shown to have been prepared in the course of an investigation,
but the agency must establish that disclosure would interfere
with enforcement proceedings. Coastal States Gas Corp., supra.
Where there is no prospect of law enforcement proceedings,
Bristol Myers Col v. Federal Trade Commission, 424 F.2d 935 (D.C.
Cir. 1970), cert denied, 400 U.S. 824 (1970), or where the
government's regulatory action has already been taken, Wellford
v. Hardin, 444 F.2d 21 (4th Cir. 1971), the materials are not
privileged.

v
ATTORNEY-CLIENT PRIVILEGE
The attorney-client privilege is the oldest privilege known
to common law. Weinstein, supra, § 503[02]. It protects from
discovery communications from client to attorney (including
communications from a Government agency to a Government attorney)
and communications from the attorney to the client. Coastal

1578

States Gas Corp., supra. Confidentiality must be maintained at
the time of the communication and subsequently. Disclosure to an
outside party will waive the privilege.
Despite its venerable
and honored state, i t is, like all privileges, "narrowly
construed and • • . limited to those situations in which its
purposes will be served." Coastal States Gas Corp., at 862. The
privilege is based on the assumption that it encourages clients
to make the fullest disclosure to their attorneys, enabling the
latter to act more effectively as officers of the court. Upjohn
Co. v. United States, 449 U.S. 383 (1981).
The privilege is limited to communications and focuses on
the attorney-client relationship. Information other than
communications between attorney and client is not covered by the
privilege.
In re: Sealed Case, at 808.
VI
THE ATTORNEY WORK PRODUCT PRIVILEGE
The attorney work product privilege first set out in the
Supreme Court case of Hickman v. Taylor, and later in Rule
26(b) (3) FRCP is in one sense broader than the attorney-client
privilege in that i t protects from disclosure materials not
constituting attorney-client communications.
It includes
materials gathered by or prepared by an attorney.
In another
sense, it is narrower because i t applies only to work and
materials performed or assembled in anticipating of litigation.
Hickman v. Taylor, supra; Coastal States Gas Corp., supra; In re:
Sealed Case, supra.
Its rationale is not protection of the client's interest,
but rather "both the attorney-client relationship and a complex
of individual interests particular to attorneys that their
clients may not share." In re: Sealed case, at 808-9. The
attorney work product privilege is applicable to Government
attorneys and includes "memoranda prepared by an attorney in
contemplation of litigation which set forth the attorney's theory
of the case and his litigation strategy." NLRB v. Sears
Roebuck & Co., at 154. Jordan v. United States Department of
Justice, 591 F.2d 753 (D.C. Cir. 1978). It may include materials
prepared or gathered by others and assembled in the work files of
an attorney. United States v. Kelsey-Hayes Wheel Co., 15 F.R.D.
461, 462 (E.D. Mich. 1954):
"· . • work files of an attorney,
assembled in preparation for a lawsuit, are protected against
deposition-discovery provisions of the Federal Rules of Civil
Procedure . . . even though the materials were gathered by FBI
investigators."
The "documents must presently be part of the
work files of an attorney before they are entitled to the
protection of the work product rule." Id. at 465. A party
seeking disclosure of such documents may obtain it "upon a
showing that the party • . • has substantial need of the

1579

materials in the preparation of the party's case and that the
party is unable withou~ undue hardship to obtain the substantial
equivalent of the materials by other means." Rule 26(b) (3). An
order to disclose factual work product materials must "protect
against disclosure of the mental impressions, conclusions,
opinions, or legal themes of an attorney • . . " Id.
The Commission has held in Asarco, supra, that the work
product rule may apply even to documents not prepared by or for
an attorney, so long as they are prepared because "of the
prospect of litigation."
VII
GRAND JURY SECRECY
Rule 6(e)(2) of the Federal Rules of Criminal Procedure
generally prohibits the disclosure of matters occurring before
the grand jury . As the Secretary notes, this prohibition extends
not only to testimony before the Grand Jury but also to names of
witnesses and identity of documents before the grand jury.
Contestants Great Western, et al., contend that Rule .6(e) is
totally inapplicable to documents not in the actual possession of
the grand jury and therefore is an inappropriate basis for
objection.
Because I have found the documents claimed subject to grand
jury secrecy privileged on other grounds, I need not decide at
this time whether the Secretary has properly invoked Rule 6(e) of
the Fed. Rules of Criminal Procedure mandating secrecy for grand
jury documents.
VIII
QUALIFIED PRIVILEGES
Except for the attorney-client privilege and the rule
mandating grand jury secrecy, all the privileges involved in this
proceeding are qualified privileges. Therefore, even if the
privilege is properly invoked, disclosure may be ordered if the
needs of the party seeking disclosure outweigh the interests
served by the privilege. Committee For Nuclear Responsibility,
Inc. v. Seaberg, 463 F . 2d 788 (D.C . Cir. 1971), cert denied, 404
u.s. 917 (1971); Logan, 6 FMSHRC at 2526. Therefore, I must
decide whether the Contestants have shown that they require the
withheld documents in order to fairly and adequately prepare for
trial in these proceedings, and if they do, whether this
requirement is of greater importance than the Government's
inter~st in keeping the documents secret.
Contestants allege that the documents withheld directly
relate to the central issue of the litigation, that they are

1580

exclusively in possession of the government, and that they
consist largely of factual material. I must consider these
contentions with respect to each document for which I uphold the
claim of privilege to determine whether Contestants' need for the
documents in the preparation of their cases outweighs the
policies behind the privilege against disclosure. The burden of
proof on this issue rests with Contestants.
IX

SECRETARY'S CLAIM OF PRIVILEGE UPHELD
In applying the foregoing principles to the documents
claimed to be privileged among the listed documents provided in
the Secretary's Amended Generic and Privileged Document List, I
have determined that the Secretary's claim of privilege was
properly invoked with respect to the following documents. I
conclude that her description of these documents, while somewhat
cryptic and lacking in detail, is sufficient for me to determine
that the documents fit the privilege asserted.
Document 3. Letter from Warren Myers, Ph.D. [apparently a
consultant] to MSHA regarding draft of the report [Document l].
The deliberative process privilege includes memoranda prepared by
consultants to agency personnel concerning proposed Government
Action. See Wu v. National Endowment, supra. The document is
privileged as part of the deliberative process of the Agency.
Document 4. summaries of investigative work conducted on
AWC's by West Virginia University and Pittsburgh Health Tech
Center. I am upholding the privilege based on the deliberative
process, which the document clearly fits, but not the claim of
attorney work product since there is no showing that the
summaries were prepared by or for Government attorneys, were part
of the attorney work files, or prepared in anticipation of
litigation. See United States v. Kelsey-Hayes, supra; Asarco,
supra.
Document 5. Draft Report titled, Investigation of Dust
Deposition Patterns on Respirable Coal Mine Dust Samples. I
uphold the claim of privilege based on the deliberative process
but not on the attorney work product for the same reasons as
given for Document 4.
Document 17. Note to File from Assistant U.S. Attorney
setting forth phone conversation with coal operators' attorney.
The claim of privilege based .on the attorney-client relationship
is upheld. The note is to a file in MSHA's (the client's)
possession.
Document 56. Letter from Associate Solicitor DOL and
Assistant Secretary DOL to U.S. Attorney. This document is

1581

clearly a communication from client to attorney, and as such is
privileged .
Document 111. Page 9119 of a memorandum from MSHA District
Manager to MSHA Chief Division of Health containing notes of
Ronald Franks concerning an investigative program being developed
involving other potential violations of the dust sampling
program. I uphold the claim of privilege as being part of an
investigative file and not as attorney work product.
Document 113. Draft of a letter from u.s. Attorney to
Peabody coal Company with handwritten notes said to reveal
deliberations and thought processes of u.s. Government Attorneys.
I uphold the claim of privilege. The document appears to be part
of the work product of a government attorney.
Document 119. MSHA internal memo concerning AWC
investigation including information prepared for the Secretary
reflecting opinions of Agency .officials. I uphold the
Secretary's claim based on deliberative process privilege.
Document 130. Letter from u.s. Attorney to MSHA concerning
criminal investigation. The document is privileged as an
attorney-client communication.
Document 131. Memorandum for the Secretary from the
Assistant Secretary dated April 12, 1991, concerning potential
agency action subsequent to the citations. The document is
protected as part of the deliberative process.
(It is not shown
to be part of the attorney work product).
Document 132.
Memorandum from Associate Solicitor DOL to
Deputy Solicitor concerning criminal matters in AWC cases. The
document is protected as part of the attorney work product .
Document 133. Memorandum from Assistant Secretary to Acting
Secretary concerning criminal matters involving AWCs. The claims
of privilege based on the deliberative process and investigative
files are upheld.
Document 134. Memorandum from MSHA Chief Office of
Investigation to Supervisory Special Investigator concerning data
for u.s. Attorney. The privilege based on the document being
part of an investigative file is upheld.
Document 135. Memorandum for MSHA District managers titled
"Special Investigation" concerning direction and development of
potential criminal investigation. This document is privileged as
part of the Government's investigative files. It is not shown to
be part of any deliberative process.
Document 136.

Letter from u.s. Attorney to counsel for

1582

trial litigation SOL. Although the description of the document
does not at all indicate the subject matter of the letter, I
assume that it is relevant to these cases and concerns the
alleged dust sample alterations. It is privileged as a
confidential communication from attorney to client.
Document 137. Memorandum for the Secretary from the
Solicitor titled "Peabody Dust Fraud Investigation." This also
is privileged as a confidential communication from attorney t6
client.
Document 138. Memorandum from Associate Solicitor to MSHA
Administrator for Coal Mine Safety and Health concerning referral
of special investigation to u.s. Attorney. This document is
privileged as a confidential communication from attorney to
client.
Document 141. Memorandum from Associate Solicitor to
Solicitor titled "Peabody Dust Fraud Investigation." This
document is privileged as part of the attorney work product.
Document 142. Memorandum from Acting Counsel for Trial
Litigation to Associate Solicitor regarding Dust Fraud
Investigation. This document is privileged as part of the
attorney work product.
Document 145. Memorandum from Acting counsel for Trial
Litigation to Associate Solicitor concerning AWC criminal
investigation. This document is privileged as part of the
attorney work product.
Document 146. Memorandum from Administrator Coal Mine
Safety and Health concerning special investigation and referral
of cases to u.s. Attorney. This document is privileged as part
of a government investigative file .
Document 147. Letter from Administrator Coal Mine Safety
and Health and Associate Solicitor to U.S. Attorney concerning
AWC Criminal investigation. This document is privileged as a
confidential communication from client to attorney.
Document 148. Memorandum from MSHA Special Investigator to
Chief Office of Investigations ·concerning referral of tampered
dust samples to u.s. Attorney. This document is privileged as
part of the deliberative process and the government investigative
file.
Document 149. Unsigned document giving the status of a
special investigation of AWC indicating developments and
potential direction of criminal investigation. This document is
privileged as part of the deliberative process and the
government's investigative file.

1583

Document 152. List of mine operators and AWC occurrences
prepareq at the direction of and for the assistance of the u.s.
attorney. This document is privileged as part of the attorney
work product and as part of the investigative file.
Document 155. List of mine operators with handwritten marks
prepared at the direction of and for the assistance of the u.s.
Attorney. This document is privileged as part of the attorney
work product.
Document 156. List of mine · operators and AWC occurrences
prepared at the direction of and for the assistance of the u.s.
Attorney. This document is privileged as part of the attorney
work product.
Document 157. Memorandum concerning criminal investigation
and studies to be performed to assist the u.s. Attorney in
criminal investigation of possible dust tampering. This document
is privileged as part of the attorney work product.
Document 160. Memorandum from .Assistant Secretary to
Secretary concerning AWC investigation discussing past
deliberations and potential future actions ~f Agency. This
document is privileged as part of the deliberative process.
Document 200. Note to file concerning FOIA request which
includes advice received from SOL. This document is privileged
as including confidential communication from attorney to client.
Document 201. Memorandum for District Mangers from Chief
Division of Health concerning processing of dust samples and
referring to investigative program being developed. This
document is privileged as part of the investigative file.
'

Document 203. Notes of telephone conversation with ~SHA
Arlington Health Division concerning new void code · for dust
samples reflecting opinions and deliberations of Agency
officials. This document is privileged as part of the
deliberative process.
Documents 326, 327, and 328. These were originally
described as a printout of dust samples, a printout of "AWC
tally," and a printout of certified dust samplers. The privilege
claimed for each document was work product, but there was no
indication that they were prepared in anticipation of litigation.
However, the affidavit of Robert Thaxton, attached as Exhibit 1
to Deputy Assistant Secretary Hugler's affidavit states that each
of these documents was prepared at the request of United States
Attorneys' offices and is related to criminal investigations. On
the basis of Thaxton's amended description, I hold these
documents are privileged as part of the attorney work product.

15B4
.., • • , • .,.,

,. ,.._

• •,

I

Document 339. Document titled "AWC Test Case" prepared by
counsel for Trial Litigation SOL. This d9cument is privileged is
part of the attorney work product.
{There is no indication that
it is a confidential communication to the agency-client).
Document 340. This document was prepared by attorneys in
SOL office titled "Dust Case {Civil)." It is privileged as part
of the attorney work product.
Document 365. Letter 3-16-90 from G. Tinney to Dr. Warren
Myers re-draft report on sampling filter abnormalities reflecting
deliberations and opinions prior to completion of Report
(Document No. 2). This document is privileged as part of the
deliberative process.
Document 366. Letter from G. Tinney to Dr. Warren Myers redraft report on sampling filter abnormalities. ~his document is
privileged as part of the deliberative process.
Document 367. Draft of report of Dr. Myers and Allen Wells
with handwritten notations reflecting Agency thought processes
and deliberations concerning altered dust samples. This document
is privileged as part of the deliberative process.
Document 384. Notes of Robert Thaxton MSHA of conference
call with U.S. Attorney and SOL, includes discussion of opinions
of agency officials and direction of investigation. This
document is privileged as part of the investigative file.
Document 394. Monthly Planner Calendars maintained by
Robert Thaxton December 1989 to January 1991, including
information concerning the direction of criminal investigation of
altered dust samples. This document is privileged as part of the
investigative file.
Document 401. File marked PHTC Report containing draft of
PHTC study and deliberations prior to PHTC report identified as
Document No. 1. This document is privileged as part of the
deliberative process.
Document 402. Report titled "Tampered Samples Summary for
Southern West Virginia" prepared for u.s. Attorney's Office.
This document is privileged as part of the attorney work product.
Document 403. Notes of telephone conversation between
G. Tinney and Robert Thaxton discussing AWC investigation and
including opinions and deliberations of agency and - advice
received from Solicitor. This document is privileged as part of
the deliberative process.
Document 406.
19 Manila File Folders containing documents
prepared at the request of the u.s. Attorneys' Offices in

~585

connection with ongoing criminal investigations. The Secretary
has withdrawn her claim of privilege with respect·to certain
portions of this document as detailed in Attachment A to the
Affidavit of Deputy Assistant Secretary Hugler. The remaining
documents are privileged as part of the attorney work product.
Document 407. 1991 Monthly Planner Calendar Robert Thaxton
including information concerning the direction of the criminal
investigation of altered dust samples and indicating the thought
processes and deliberations of the Agency. This document is
privileged as part of the ·investigative file.
Document 424. Draft titled "List of Tables" 9/29-10/5/89
with notations indicating results of Agency testing of dust
filters preliminary to report identified as Document No. 1. This
document is privileged as part of the investigative file.
Document 426. Monthly planning calendars of Robert Thaxton
1988 to January 1990 including information regarding the criminal
investigation of altered dust samples. The documents are
privileged as part of the investigative file.
Document 441. Letter April 4, 1989 to FBI from Robert
Thaxton concerning respirable dust samples submitted to FBI in
ongoing criminal investigation. This document is privileged as
part of the investigative file. ·
X

SECRETARY DIRECTED TO SUBMIT DOCUMENTS
FOR IN CAMERA INSPECTION
ln Vauqhn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert
denied, 415 U.S. 977 (1974), the court stated at 826 that it
"will no longer accept conclusory and generalized allegations of
exceptions [in FOIA] . . . but will require a relatively detailed
analysis in manageable segments." This direction was repeated in
Coastal States Gas Corp., at 861.
In the Motion filed by
Kentucky Carbon, et al., counsel suggests as an alternative to
ordering production of the documents that I should conduct an in
camera inspection to determine which documents or portions of
documents are truly privileged. The Secretary agrees to an in
camera inspection of any document concerning which I cannot
determine from the Secretary's description the validity of the
privilege asserted, with the exception of certain portions of
Document 406 which involve grand jury investigations.
For the reasons given by Judge Gesell in Military Project v.
Bush, 418 F.Supp. 876 (D.D.C. 1976), I am reluctant to order an
in camera inspection of documents claimed to be privileged.
Judge Gesell was apparently unsuccessful however in obtaining

1586

more specificity in document description, see 418 F.Supp. 880,
and I would not expect greater success if I ordered the Secretary
to provide better and more complete description of some of the
documents. I conclude that an in camera inspection will save
time and trouble. Therefore, I will order the Secretary to
submit the following documents to me for an in camera inspection
to determine whether the privileges were properly invoked.
Document 55. Letter 11-1-89 from Chief General Litigation
and Legal Advice Section, Criminal Division, DOJ to U.S.
Attorney .
Document 112. Undated memorandum setting forth substance of
meeting with u.s. Attorney involving development of criminal
investigation.
Document 116. Letter 1-18-91 from J. Davitt McAteer,
Occupational Safety and Health Law Center to Assistant Secretary
with handwritten notes. The letter itself is not privileged, but
the handwritten notes may be.
Document 120. Undated draft briefing paper reflecting "the
thought processes and deliberations of the Agency."
Document 139. Unsigned note to file concerning case
referral to u.s. Attorney's Office.
Document 143.
investigations.

Undated memorandum concerning criminal AWC

Document 144.

Sample citation and memorandum concerning

AWCs.
Document 154. Undated memorandum concerning criminal AWC
investigation "which apparently was prepared prior to the
issuance of the citations and which concerns the thought
processes and scope of direction of investigative activities."
Document 161.
investigation.

Unsigned handwritten notes concerning AWC

Document 169. Unsigned handwritten notes concerning
April 18, 1991, meeting with MSHA.
Document 350.

AWC statistical breakdown.

Document 353. Printout summary of altered dust samples with
handwritten date of October 13, 1989, concerning criminal
investigation.
Document 375. Memorandum 3-15-89 from Leighton Farley to
Robert Nesbit (not identified) re: request for direct referral to

1587

u.s. Attorney, possible tampering with respirable dust samples,
Eastern Associated Coal Co.
Document 425. Unsigned notes of Andrew Gero, not otherwise
identified, with handwritten notations.

XI
SECRETARY ' S CLAIM bF PRIVI LEGE DENIED
ORDER TO PRODUCE DOCUMENTS
With respect to the following documents, the Secretary's
claim of privilege is not justified by the document descriptions,
and the Secretary is ORDERED to make them available to
Contestants by placing them in the Document Depository.
Document 116 . The letter without the handwritten notes
(concerning the handwritten notes , I have directed the Secretary
to submit the document for in camera inspection) .
Document 163 .
Briefing materials for the Secretary for use
in preparation for Secretary ' s testimony before Congress. These
documents obviously are not part of the work product. There is
no indication that they were prepared in anticipation of
litigation. Their relationship to the deliberative process is
tenuous and wholly based on conclusions.
Document 176 .
FBI " invoice" to the PHTC . Nothing in the
description indicates that the document is part of the
deliberative process or investigative files.
Document 329. Printout listing of AWC sampling and
documents used to prepare list. Nothing in the description of
this document reportedly shows that it is part of the attorney
work product, prepared in anticipation of litigation .
Accordingly, IT IS ORDERED:
1 . The Secretary ' s claim of privilege is upheld with
respect to Documents 3, 4, 5, 17, 56, 111, 113, 119, 130, 131,
132, 133, 134, 135, 136, 137, 138, 141, 142, 145, 146, 147, 148,
149, 152, 155, 156, 157, 160, 200, 201, 203, 326, 327, 328, 339,
340, 365, 366, 3671 384, 394, 401, 402, 403, 406, 4071 424 1 426 1
441.
2. The Secretary shall submit the following documents to me
for in camera inspection:
55 , 112, 116 (handwritten notes), 120, ·
139, 143, 144, 154, 161, 169, 350, 353, 375, 425 .
3. The Secretary shall produce the following documents : 116
(letter without notes), 163, 176, 329 .

1588

·4. After I have reviewed the documen~~ submitted for in
camera inspection, I will determine which privileged documents,
if any, are to be disclosed as being essential to the adequate
preparation of the operators' cases.
'Vk£S
~

.~f.f;vci4--t~

ames A. Broderick
Administrative Law Judge

Distribution:
By Certified Mail to:
Douglas White, Esq., carl Charneski, Esq., u.s. Department of
Labor, Office of the Solicitor, 4015 Wilson Blvd., Arlington, VA
22203
Laura E. Beverage, Esq., David J. Hardy, Esq., Jackson and Kelly,
P.O. Box 553, Charleston, WV 25322
Linda Homerding, Esq., Williams and Connolly, 839 17th street,
N. W., Washington , D.C. 20006
Thomas R. Scott, Esq., Street , Street, Street, Scott and Bowman, .
P.O. 2100, Grundy, VA 24614
By Regular Mail to:
Michael Dinnerstein, Esq., United Mine Workers of America, 900
15th Street, N. W., Washington, D.C. 20005
All other counsel for parties

1589

Robert B. Allen, Esq.
King, Betts and Allen
P.O. Box 3394
Charleston, WV 25333
Karl F. Anuta, Esq. (Co-counsel Crowell & Moring)
Western Fuels-Utah, Inc.
P.O. Box 1001
1720 14th Street
Boulder, co 80306
Charles J. Baird, Esq.
Baird, Baird, Baird and Jones, P.S.c.
P.O. Box 351
415 Second Street
Pikeville, KY 41502
George Basara, Esq.
Polito & Smock, P.C.
Suite 400, Four Gateway Center
Pittsburgh, PA 15222-1207
Sheila Becker, Vice President
Jim Dandy Coals, Inc.
P.O. Box 328
Buckhannon, WV 26201
Laura E. Beverage, Esq.
Jackson and Kelly
P.O. Box 553
Charleston, WV 25322
Timothy M. Biddle, Esq.
Crowell and Moring
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Michael W. Boehm, Esq.
Spears, Moore, Rebman and Williams
8th Floor, Blue Cross Building
P.O. Box 1749
Chattanooga, TN 34402
William E. Bradshaw, Esq.
Keuling, Stout and Bradshaw
P.O. Box 400
Big Stone Gap, VA 24219
Harry L. Capadano, III, Esq.
Decker Coal Company
One Thousand Kiewit Plaza
omaha, NE 68131

(Co-counsel Crowell & Moring)

David E. Cecil, Esq.
Robertson, Cecil, King and Pruitt
237 Main Street
Drawer 1560
Grundy, VA 24614
Harry M. Coven, Esq.
Gould and Ratner
222 North LaSalle Street
8th Floor
Chicago, IL 60601-1086
Michael w. Critch, Superintendent!
Thor, Inc.
1000 Dupont Road
Building #6
Morgantown, WV 26505
Martin J. Cunningham, Esq.
Reece, Lang & Breeding
London Bank & Trust Bldg.
400 s. Main Street
P.O. Drawer 5087
London, KY 40745-5087
Robert I. Cusick, Esq.
Wyatt, Tarrant and Combs
Citizens Plaza
Louisville, KY 40202
Forester, Buttermore, Turner & Lawson
P.O. Box 935
Harlan, KY 40831-0935
Denise A. Dragoo, Esq.
Geoffrey P. Griffin, Esq.
Fabian & Clendenin
215 So. State Street, 12th Floor
P.o. Box 510210
Salt Lake City, UT 84151
Loyal G. Forman, Jr., President
Ringold Mining, Inc.
P.O. Box 433
Kingwood, WV 26537
Ray D. Gardner, Esq. (Co-counsel Crowell & Moring) ·
Pittsburg and Midway Coal
6400 South Fiddler's Green Circle
Englewood, CO 80111-4991

James A. Harris, Esq.
Waters, Warner & Harris
700 Goff Building
P . O. Box 1716
Clarksburg, WV 26301
Carl H. Hellerstedt, Jr. , Esq.
Volk, Frankovitch, Anetakis, Recht, Robertson & Hellerstedt
Three Gateway Center
15th Floor East
Pittsburgh, PA 15222
Michael T. Heenan, Esq.
Smith, Heenan and Althen
1110 Vermont Avenue, N. W.
Washington, D. C. 20005
Linda Homerding, Esq.
Williams and Connolly
839 17th Street, N.W.
Washington, D.C. 20006
John M. Huddle, Esq.
Gentry, Locke, Rakes & Moore
P.O. Box 1018
Roanoke , VA 24005
Donald L. Humphreys, Esq.
BHP-Utah International, Inc.
550 California Street
San Francisco, CA 94104
Morris Issac
Safety Director
Reynolds Branch Coal company, Inc.
P.O. Box 620
Martin, KY 41649
D. B. Kazee, Esq
Francis, Kazee & Francis
111 East Court Street
P.O. Box 700
Prestonsburg, KY 41653
David A. Laing, Esq. (Co-counsel Crowell & Mor~ng)
Porter, Wright, Morris and Arthur
41 s. High Street
Columbus, OH 43215

1592

Mary Lu Jordan, Esq.
Michael Dinnerstein, Esq.
United Mine Workers of America
900 15th Street, N.W.
Washington, D.C. 20005
John c. Martin, Esq
v. Heather Sibbison, Esq.
Patton, Boggs & Blow
2550 M street, N.w.
Washington, D.C. 20037
Michael J. Schmitt, Esq.
Wells, Porter, Schmitt & Walker
327 Main street
P.o .. Box 1179
Paintsville, KY 41240-5179
Randall Scott May, Esq.
Barett, Haynes, May, Carter & Roarck, P.s.c.
P.O. Box 1017
Hazard, KY 41701
Leo M. Stepanian, Esq.
Stepanian & Muscatello
228 So. Main Street
Butler, PA 16001
Marcus P. McGraw, Esq.
Greenbaum, Doll and McDonald
1400 Vine Center Tower
P.O. Box 1808
Lexington, KY 40593
Matthew F. McNulty, III, Esq.
Van Cott, Bagley, Cornwall and McCarthy
50 South Main Street, Suite 1600
Salt Lake City, UT 84145
Dina M. Mohler, Esq.
Kay, Casto, Chaney, Love and Wise
P.O. Box 2031
Charleston, WV 25327
R. Henry Moore, Esq.
Buchanan Ingersoll
600 Grant Street, 58th Floor
Pittsburgh, PA 15219

1593

John Palmer , Esq.
Robinson and McElwee
P.O. Box 1791
Charleston, WV 25326
Thomas R. Scott, Jr ., Esq.
Street, Street, Street, Scott and Bowman
P.O. Box 2100
Grundy, VA 24614
David M. Smith, Esq .
Maynard, Cooper, Frierson and Gale
1901 6th Avenue, North
Suite 2400 AmsouthjHarbert Plaza
Birmingham, AL 35203
s. R. Smith, President
Teays Mining, Inc.
P . O. Box 72
Mt. Hope, WV 25880
William D. Stover, Esq .
41 Eagles Road
Beckley, WV 25326
Ora Dwaynne Tennant, Superintendent
Gray Stone Mining, Inc.
Route 2
Box 284
Fairview , WV 26570
Charles A. Wagner, Esq.
Wagner, Myers and Sanger
P . O. Box 1308
Knoxville, TN 37901

w. Challen Walling, Esq .

Penn, stuart, Eskridge & Jones
306 Piedmont Avenue
P . O. Box 2009
Bristol , VA 24203
Wellbon, Dufford, Brown & Tooley
1700 Broadway
Suite 1700
Denver, CO 80290- 1701
R. Gregory West, Esq.
106 Municipal Drive, suite 200
Oneida, TN 37841

1594

Dougl as N. White , Esq.
u . s. Department of Labor
Office of the Solicitor
4015 Wilson Blvd .
Arlington, VA 22203
Jacksons. White, Jr., Esq .
White, Elliott and Bundy
P . O. Box 429
Abingdon , VA 24210
Robert C. Wil son, Esq.
Wilson & Cape
105 s. Commercial
P.O. Box 544
Harrisburg, IL 62946

1595

FEDERAL MINE SAFETY AND HEALTH REVIEW <;OMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, loth . FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SEP 191991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS

•.

..

Docket No. KENT 90-348 ·
A. C. No. 15-15509-03527

v.

No. 1 Mine

TOLER CREEK ENERGY, INC.,
Respondent

Docket No. KENT 91-30
A. C. No. 15-15509-03532
No. 2 Mine

DECISION APPROVING· IN PART AND
DISAPPROVING IN PART A PROPOSED
SETTLEMENT

Before:

Judge Fauver

These consolidated proceedings are petitions for civil
penalties under § 105(d) of the Federal Mine Safety and Health Act
of 1977. 30 u.s.c. § 801 et ~
The parties have filed a motion to approve settlement.
I

In Docket No. KENT 90-348, the settlement would reduce the
penalty from $1,300 to $700 for Citation 3368969 and have no change
in the penalties for Order 3368970 ($1, 300) and Order 3368971
($1, 000). In Docket No. KENT 90-30 the settlement would reduce the
penalty from $850 to $500 for Order 3361356, from $850 to $500 for
Order 3369132, and have no change for · Order 3361357 ($850) . I find
these proposals consistent with § 110(i) of the Act.
II

In Docket No. KENT 91-30, the settlement would merge the
charges in Order 336972·1 and Order 3369722 into Order 3369722,
charging a single violation of 30 C.F.R. § 75.300 for failure to
maintain the mine fan in its original condition.
Order 3369721 charges a violation of § 75.300 because the
main mine fan was not maintained as originally approved. The fan's
circuit had been rewired so that the fan shared a power circuit
with No. 1 belt drive. It alleges that the rewiring was done in
1596

an unworkmanlike manner and required the stoppage of the main fan
at any time No. 1 belt was stopped, and that this violated the
approved mine fan plan. The plan required that the fan circuit be
separate from any other mine circuit.
The motion states that Order 3369722 was issued the same date
"for problems with the mine fan's electrical system under§ 77.900
of the regulations."
The parties have not attached a copy of Order 3369722 and have
not shown that the charge in such order is so closely related to
the charge in Order 3369721· as to warrant merger of the charges.
Therefore, unless the missing order is presented with a showing
that merger is justified, that part of the motion will be denied.
III

The motion seeks to merge the charges in Order 3361358 and
Order 3361359 into Order 3361359.
Order 3361358 charges a violation of § 75.303 for failure to
make adequate preshift examinations along Nos. 1, 2, 3, 4, 5 and 6
belt conveyors in 001-0 working section.
order 3361359, issued the same date, charqes a violation of
75.305 for failure to conduct adequate weekly examinations in the
return air course.
§

The motion seeks a merger of the charges on the ground that
"the two violations ware the result ot a single action by the
operator •••• " However'· the orders alleqe separate. violations
based on the failure to report and correct separate hazards in
separate locations.
Order 3361358 alleges inadequate preshift
examinations as reflected by the -failure to report and correct
"numerous violations of mandatory safety standards issued along the
six belt conveyors" referencing citations and orders that charge
violations for float coal dust and loose coal accumulations along
the belt conveyors.
. In contrast,
Order 3361359 alleges that inadequate
examinations of the return air course were evident from the failure
to report and correct violations of safety standards in that "there
were at least 25 permanent stoppings that were . not plastered.
Stoppings were missing from cross-cuts in two different locations."
I find that these separate orders charge discrete violations
and the motion does not show sufficient cause for a merger of
charges.
·

1597

IV

The motion seeks to merge the charges in Orders Nos . 3362168,
3362169, and 3362176 into Order 3362169 charging a single violation
of § 75.400 for accumulat~ons of loose coal and float coal dust on
Nos. 5 and 6 belt drives.
Order 3362168 alleges a violation of § 75.400 because loose
coal and float coal dust accumulations 2 to 4 inches deep were
present the entire length of No. 6 belt entry, for approximately
700 feet.
Order 3362169 alleges a violation of § 75 . 1100-2(b) because
fire hose outlets were not installed at 300 feet intervals for the
entire waterline in Nos. 5 and 6 belt conveyors, a distance of
about 2,200 feet.
Order 3362176 charges a violation of § 75.400 because float
coal dust ranging from 1/ 4 to 2 inches deep was present at numerous
locations in an area from No. 5 belt drive to an outby distance of
approximately 1,500 feet.
The motion states that "the presence of coal, loose coal and
float coal dust along the two belts is the same violation of the
Act and that the lack of sufficient waterhose outlets on beltline
was a condition contributing to the fire hazard due to dust
buildups on those belts."
I find that these orders char ge discrete violations and the
motion does not show sufficient cause for a merger of charges.

v
The motion seeks to merge the charges in Orders Nos. 3369123,
3369125, 33669126, and 3369127 into Order 3369123 charging a s i ngle
violation of § 75.400 for float coal dust accumulations in Nos. 1,
2, and 3 beltlines and No. 2 entry.
Order 3369123 charges a violation of § 75.400 because float
coal dust ranging from 1 to 4 inches deep was allowed to accumulate
along the ribs, mine floor and under the belt roller on No. 1 belt
conveyor in No. 2 entry and extended the length of the No. 1 belt
conveyor, a distance of approximately 1,500 feet.
Order 3369125 charges a violation of § 75.400 because float
coal dust ranging from 1 to 10 inches deep was allowed to
accumulate along the ribs, mine floor and under the belt roller on
No. 2 belt conveyor in No. 2 entry for a distance of approximately
1,200 feet. The first 10 bottom belt rollers inby this drive were
turning in float coal dust .
Order 3369126 charges a violation of

1 598

§

75.400 because float

coal dust one inch deep was allowed to accumulate in the bottom of
the 480 volt energized starter box used to control power to No. 2
belt drive.
Order 3369127 charge~ a violation of § 75.400 because float
coal dust ranging from 1 to 12 inches deep was allowed to
accumulate along the ribs, mine floor and under the belt rollers .on
No. 3 belt in No. 2 entry, a distance of approximately 800 feet .
I find that these orders charge discrete violations and that
the motion does not show sufficient cause for a merger of charges.
ORDER

WHEREFORE IT IS ORDERED that:
1.
The motion to approve settlement is GRANTED as to the
following citations and orders:
Citation or Order

Approved civil Penalty
$ 700
$1,300
$1,000
$ 500
$ 850
$ 500

3368969
3368970
3368971
3361356
3361357
3369132

$4,850
2.
Respondent shall pay the above penalties within 30 days
of the date of this decision .
3.
The motion to approve settlement by merger of charges, as
discussed above, is DENIED. Those charges will proceed to hearing
unless a new settlement motion is submitted and approved.
·

~
~QMV~
William Fauver
Administrative Law Judge

1599

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

SEP 25 S91
CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 91-127
A. C. No. 15-15400-03513

.

v.
COAL MAC INCORPORATED,
Respondent

Docket No. KENT 91-151
A. C. No. 15-15400-03514
coal Mac No. 17 surface
Docket No. KENT 91-152
A. C. No. 15-14847-03514

.

Docket No. KENT 91-154
A. C. No. 15-14847-03514
Coal Mac No. 7 surface
DECISION APPROVING IN PART AND
DISAPPBOVINq IN PART A PROPOSED
SETTLEMENT
Before:

Judge Fauver

These consolidated cases are petitions for civil penalties
under§ 105(d) of the Federal Mine Safety and Health Act of 1977, ·
30 u. s. c. § 801 At ~
The parti"es have moved for approval of a settlement.
It is stipulated that Respondent is a large operator.

The Meaning of a 11 Siqnific:sant and
Substantial" violation
Since the settlement motion proposes to reduce many of the
charges from a "significant and substantial" violation to a "nonsignificant and substantial" violation, it will be helpful to
review the meaning of this statutory term.
The Commission has held that a violation is "significant and
substantial" if there is "a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably
serious nature." u. s. Steel Mining Co. , Inc., 7 FMSHRC 327, 328,
(1985); Cement Division, National Gypsum co., 3 FMSHRC 822, 825
1600

(1981); Mathies Coal co. , 6 FMSHRC 1, 3 - 4 (1984) . This evaluation
is made in terms of "continued normal mining operations ." U. s.
Steel Mining Co., Inc. 6 FMSHRC 1573, 1574 (1984). The question of
whether any particular violation is significant and substantial
must be based on the particular facts surrounding the violation.
Texasgulf , Inc. , 10 FMSHRC 498 (1988); Youghiogheny & Ohio Coal
Company, 9 FMSHRC 1007 (1987).
Analysis of the stat utory language and the Commission ' s
decisions indicates that the test of an S&S violation is a
practical and realistic question whether, assuming continued mining
operations, the violation presents a substantial possibility of
resulting in injury or disease, · not a requirement that the
Secretary of Labor prove that it is more probable than not that
injury or disease will result.
See my decision in Consolidation
Coal Company, 4 FMSHRC '1748 - 752 (1991). The statute , which does not
use the phrase " reasonably likely to occur" or " reasonable
likelihood" in defining an S&S violation, states that an S&S
violation exists if "the violation 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" (§ 104(d) (1) of
the Act; emphasis added). Also, the statute defines an "imminent
danger" as " any condition or practice . • • which could reasonably
be expected to cause death or serious physical harm before [it] can
be abated~" 1 and expressly places S&S violations below imminent
dangers.
It follows that the Commission ' s use of the phrase
"reasonably likely to occur" or " reasonable likelihood" does not
preclude an S&S finding where a substantial possibility of injury
or disease is shown by the evidence, even though t he proof may not
show that injury or disease was more probable than not.
The Proposed Settl ement

Citation 3517608 alleges a violation of 30 c. F . R. § 77.410,
dealing with automatic warning devices on mobile equipment.
The
motion states that the inspector would testify that the reverse
alarm on the Caterpillar 992
c
loader was
inoperative.
Respondent's wit nesses would testify that the loader operated in an
area in which no one worked afoot and there was minimal vehicular
traffic.
Originally, the inspector determined that the violation was
significant and substantial.
The parties move to change this
designation to non-S&S .

1

Section 3(j) of the 1969 Mine Act, unchanged by the Federal
Mine Safety and Health Act of 1977; emphasis added.
2

Section 104(d) (1) limits S&S violations to conditions that
"do not cause imminent danger . . .
"

1601

The citation was assessed at $276.
penalty of $178.

The motion proposes a

The absence of a reverse alarm in "minimal vehicular traffic"
does not indicate there was no substantial possibility of injury
resulting from the violation.
The proposed reduction of the amount of penalty is approved,
but not the redesignation as a non- S&S violation.
citation No. 3517610 alleges a violation of § 77.1606(c),
which requires that equipment defects affecting safety be corrected
before the equipment is used . The motion states that the inspector
would testify that the Ford 7000 grease truck had several defects;
namely , the headlights were stuck on low or high beam, the left
front turn signal was missing from the truck, and all the other
turn signals were inoperative.
Respondent's witnesses would
testify that the truck regularly was used only on the day shift and
in areas where there was minimal vehicular traffic.
S&S.

originally, the inspector determined that the violation was
The parties move to change this designation to non-S&S.
The citation was assessed at $178.

The motio~ proposes $127.

The proffered facts do not indicate there was no substantial
possibility of injury resulting from the violation.
The proposed reduction of the amount of penalty is approved,
but not the redesignation as a non-S&S violation.
citation No. 3517611 alleges a violation of§ 77.1606(c). The
motion states the inspector would testify that the Ford 800 fuel
haulage truck had several defects; namely, the headlights were
stuck on low or high beam, all the turn signals were inoperative,
and the brake 1 ights were inoperative.
Respondent's witnesses
would testify that the truck regularly was used only on the day
shift and in areas where there was minimal vehicular traffic.
S&S.

Originally, the inspector determined that the violation was
The parties move to change this designation to non-s&s.
The citation was assessed at $178.

The motion proposes $127.

The proffered facts do not indicate there was no substantial
possibility of injury resulting from the . violation.
The proposed reduction of the amount of penalty is approved,
but not the redesignation as a non-S&S violation.
Citation No.
dealing with the

3517612 alleges a violation of § 77.404 (a)
operation and maintenance of machinery and

1602

equipment.
The motion states the inspector would testify that a
Black & Decker angle grinder aboard the Ford F-250 welding truck
was not equipped with a guard to protect a user from accidental
contact with the metal-cutting disk. Respondent's witnesses would
testify that the grinder had been removed from service.
Originally, the inspector determined that the violation was
S&S. The parties move to change this designation to non-S&S.
The citation was assessed at $227.

The motion proposes $178.

The motion does not state why the grinder was in the welding
truck if it "had been removed from service."
In the absence of
facts showing how the grinder was removed from service, the
proffered facts do not indicate there was no substantial
possibility of injury resulting from the violation.
The proposed reduction in the amount of penalty is approved,
but not the redesignation as a non-S&S violation.
Citation No. 3517613 alleges a violation of § 77.208 (e)
dealing with storage of materials.
The motion states that the
inspector would testify that he found that the valves of the
acetylene and oxygen cylinders stored on the Ford F-250 welding
truck were not protected by any type of cover.
The gauges and
hoses were attached to the cylinders. Respondent's witnesses would
testify that the tanks were empty and were being transported to an
appropriate storage area.
S&S.

Originally, the inspector determined that the violation was
The parties move to change this designation to non-s&s.
The citation was assessed at $178.

The motion proposes $127.

The proposed reduction in the amount of penalty and the
redesignation as a non-S&S violation are approved.
Citation No. 3517614 alleges a violation of§ 77.1606(c). The
motion states ·that the inspector would testify that he found the
following defects on the 600 Mack water haulage truck used for
allayi.ng road dust: the headlights were stuck on low or high beam,
all of the turn signals were inoperative, an air leak was present
near the engine. The exhaust pipe was broken near the muffler, and
no heat shield was provided around the upright exhaust stack near
the right cab door. Respondent's witnesses would testify that the
truck regularly was used only on the day shift and in areas where
there was minimal vehicular traffic. They would testify that the
operator of this truck regularly got in and out . of the vehicle
through the left cab door and that there usually were no passengers
in this vehicle.
S&S.

Originally, the inspector determined that the violation was
The parties move to change this designation to non-S&S.

1603

The citation w~s assessed at $178.

The motion proposes $127.

The proffered facts do not indicate there was no substantial
possibility of injury resulting from the violation.
The proposed reduction of the amount of penalty is approved,
but not the redesignation as a non-S&S violation.
Citation No. 3517616 alleges ·a violation of§ 77 . 404(a). The
motion states that the inspector would testify that he found aboard
the Ford F-800 mechanic's truck three chisels with mushroomed
striking surfaces with cracks in the outer edges.
He considered
that the condition of the chisels increased the likelihood of
injury from. flying metal chips during use. Respondent's witnesses
would testify that the chisels had been removed from service and
were being transported back to the garage for regrinding.
S&S.

Originally, the inspector determined that the violation was
The parties move· to change this designation to non-S&S.
The citation was assessed at $227.

The motion proposes $127.

The motion does not state why the defective chisels were in
the mechanic•s · truck if they had been '"removed from service." In
the absence of facts showing how the defective chisels had been
removed from service, the proffered facts do not indicate there was
no substantial possibility of injury resulting from the violation.
The proposed reduction in the penalty amount is approved, but
not the redesignation as a non-S&S violation.
Citation No. 3517607 alleges a violation of§ 77.1606(c). The
motion states that the inspector would testify that the bottom step
of the right side boarding ladder was torn off and the rear step to
the engine access area on the fight side was missing from the
caterpillar 980C loader (Company No . L-13).
The equipment was
being used to load coal.
Respondent's witnesses would testify
that, in the normal course of operations,
the right side of the
equipment was not used for boarding by the operator and that there
was other access to the engine area.
S&S.

Originally, the inspector determined that the violation was
The parties move to change this designati6n to non-S&S.
The citation was assessed at $178.

The motion proposes $127.

The proffered facts do not indicate there was no substantial
possibility of injury resulting from the violation.
The proposed reduction of the amount of penalty is approved,
but not the redesignation as a non-S&S violation.

1604

· Citation No. 3517609 alleges a violation of§ 77.1606(c). The
motion states that the inspector found the following defects in the
600 Mack explosives haulage truck: there was no heat shield around
the exhaust stack located adjacent to the right side cab door used
by the blaster's helper, the headlights were stuck on low or high
beam, all the turn signals were inoperative, and the brake lights
were inoperative.
The inspector determined that the violation was S&S.
parties agree that this is the proper designation.
The citation was assess·e d at $178.
pay this amount.

The

Respondent has agreed to

The proposed settlement of this charge is approved.
Citation No. 3517615 alleges a violation of § 77.1103 (a)
dealing with the storage of flammable liquids. The motion states
that the inspector would t ·e stify that he found approximately one
pint of gasoline being stored in a gallon milk jug. The jug had
been tied onto the side of the 600 Mack water haulage truck, and
was used to fuel ·the transfer pump.
The inspector determined that the violation was S&S.
parties agree that this is the proper designation.
The citation was assessed at $178.
pay this amount.

The

Respondent has agreed to

The proposed settlement of this charge is approved.
Citation No. 3517851 alleges a violation of § 77.l606(c). The
motion states that the inspector would testify that the Caterpillar
No. l4G motor grader used to grade the road had several defects
a·ffflcting safety; namely, the brake and tail lights were gone, the
re·a r windshield wiper was inoperative, oil leakage was noted at the
valve banks under the cab and at the hydraulic lines to the
steering gearbox. Respondent's witnesses would testify that the
grader regularly was used only on the day shift and in areas where
there was minimal vehicular traffic, and that the leakage noted
would not adversely affect the operator's ability to steer the
grader.
S&S.

Originally, the inspector determined that the violation was
The parties move to change this designation to non-S&S.
The citation was assessed at $311.

The motion proposes $178.

The proffered facts do not indicate there was no substantial
possibility of injury resulting from the violation.
The proposed reduction of the amount of penalty is approved,

1605

but not the redesignation as a non-S&S violation.
Citation No. 3511971 alleges a violation of§ 45.4(b) dealing
. with the maintenance of an independent contractor register.
The
motion states that the inspector would testify that he found that
Respondent had failed to maintain in writing the contractor
register containing information required in § 45.4(a) (1) through
45.4(a) (4). The information could not be produced when requested.
The non-S&S citation was assessed at $20.
agreed to pay this amount.

Respondent has

A violation that hampers enforcement of the Act is a serious
violation, even though it is non-S&S. If the facts indicated were
proved at a hearing, I would consider a penalty of $50 appropriate
for this violation.
Citation No. 3517584 alleges a violation of§ 77.1605(b)
dealing with the installation. of brakes and parking brakes on
loading and haulage equipment.
The motion states that the
inspector would testify that he found that the White Mack Truck,
Number 7, used to transport explosives was being used with
defective brakes.
There was an air leak in or. near the brake
valve. The right front brake plunger would not move when the foot
brake was set. The brakes needed to be adjusted on all wheels; the
loss of air when the brakes were used showed that there was too
much travel in the brake pedal.
The inspector determined that the violation was s&s.
parties agree that this is the proper designation.
The citation was assessed at $371.
pay this amount.

The

Respondent has agreed to

The proposed settlement of this charge is approved.
Citation No. 3511978 alleges a violation of § 77.1303 (d),
which requires that damaged or deteriorated explosives or
detonators be destroyed in a safe manner. The motion states that
the inspector would testify that he found explosive materials in a
state of deterioration. Liquid had leaked from the explosives in
the explosives magazine.
Several cartridges of Tovex water gel
explosives had been cut in half and were stored in that condition
in the explosives magazine.
He noted that the deteriorated and
damaged explosives had not been destroyed in a safe manner, and
that the use of such material, altered from the condition intended
by the manufacturer, could adversely affect a blast. Respondent's
witnesses would testify that only their explosives experts would
have access to the explosives and that they were not planning to
use the altered explosives.
The inspector determined that the violation was S&S.

1606

The

parties agree that this is the proper designation.
The citation was assessed at $350.

The motion proposes $227.

The proposed settlement of this charge is approved.
Citation No. 3517842 alleges a violation of § 77.410.
The
motion states that the inspector would testify that he found that
the blue Ford F250 mechanic pickup truck, used for repair work, was
not provided with a reverse alarm. The view to the rear of the
truck was impaired by tool boxes on each side of the truck bed and
an air compressor mounted in the middle of the bed. There was a
ladder atop the right side tool box.
The truck was used in a
service area where others were afoot.
The non-S&S citation was assessed at $20.
agreed to pay this amount.

Respondent has

If the proffered facts were proved at a hearing, I would be
inclined to find the violation was S&S, instead of a non-S&S, and
that a penalty of $150 is appropriate for this violation.
The
proposed settlement of a $20 penalty is not approved.
Citation No. 3517843 alleges a violation of§ 77 . 1605(b). The
motion states that the inspector would testify that he found that
the white Ford F600 grease truck, used for service of equipment,
was not provided with adequate brakes. The emergency park brake
failed to hold the truck on a slight roadway grade. The truck was
subject to steep grades at this pit and the driver would not be
able to stop in the event of a service brake malfunction . In the
inspector's opinion, the truck could roll if parked on a slight
grade. Respondent's witnesses would testify that the truck was not
operated where others were afoot.
S&S.

Originally, the inspector determined that the violation was
The parties move to change this designation to non-S&S.
The citation was assessed at $392.

The motion proposes $227.

The proffered facts do not indicate there was no substantial
possibility of injury resulting from the violation .
The proposed reduction of the amount of penalty is approved,
but not the redesignation as a non-S&S violation.
Citation No. 3517844 alleges a violation of § 77.400 (a)
dealing with mechanical equipment guards. The motion states that
the inspector would testify that he found that there was no guard
on the t wo V-belts, flywheel and pulley of the air compressor on
the white Ford F-600 grease truck.
In the inspector's opinion,
workers could have contacted moving parts or could have been struck
by a broken belt.
Respondent's witnesses would testify that

1 6 07

placement of the equipment in the bed of the truck made it so
inaccessible that it was unlikely that a worker could come into
contact with the moving parts.
S&S.

Originally, the inspector determined that the violation was
The parties move to change this designation to non-S&S.
The citation was assessed a~ $311.

The motion proposes $178.

The conflict between the expected testimony of the inspector
and Respondent's witnesses, without a factual resolution, does not
warrant redesignation as a non-S&S violation.
The proposed
reduction in the amount of penalty is approved.
Citation No. 3517847 alleges a violation of § 77.208(b)
dealing with storage of materials that could create hazards if
accidentally liberated from their containers. The motion states
the inspector would testify that gasoline vapors were being emitted
from the fill cap atop the pit gasoline tank. The gasoline was not
properly stored in that no vent pipe· was installed to allow vapors
to escape higher and away from the top of the tank where a careless
smoker or spark could cause ignition.
The non-S&S citation was assessed at $20.
agreed to pay this amount.

Respondent has

The proffered facts do not indicate a non-s&s violation. If
the proffered !acts were proved attar a hearinq, I would be
inclined to tind an S&S violation and tind a penalty ot $100 to be
appropriate.
Citation No. 3517848 alleqes a violation ot § 77.1606(c). The
motion states that the inspector would testify that he found that
the Caterpillar 988 loader, used to load spoil into trucks, had
several safety detects. The riqht boardinq ladder was badly bent
thereby reducinq the width ot the ladder, and the riqht bottom step
was missinq. The left and riqht enqine deck steps were qone and
had been replaced with a chain which required a step of 30 inches.
The windshield wipe overtraveled to the left, leavinq approximately
the riqht one third of the windshield unclean.
The right tail
liqht was inoperative. The brake lights were inoperative. The
front horn was too weak to be audible at a distance. Respondent's
witnesses would testify that,in the normal course of operations,
the riqht side of the equipment was not used for boarding by the
operator and there was a good boardinq ladder on the other side of
the truck where the operator usually boarded. They would testify
that there rarely was a passenqer on this equipment. Respondent•s·
witnesses would testify that the truck regularly was used only on
the day shift and in areas where there was minimal vehicular
traffic and where people are not afoot.
Originally, the inspector determined that the violation was

1608

S&S.

The parties move to change this designation to non-s&s.
The citation was assessed at $311.

The motion proposes $227.

The proffered facts do not indicate there was no substantial
possibility of injury resulting from the violation.
The proposed reduction of the amount of penalty is approved,
but not the redesignation as a non-S&S violation.
Provisional Order
If the parties agree to entry of the following provisional
order, the charges herein will be disposed of as indicated.
In
such case, the parties should file, within 10 days of this date, a
joint motion for entry of the provisional order as a final order.
If the parties do not agree to the provisional order, they may
file a revised settlement motion.
"PROVISIONAL ORDER
"Upon motion of the parties, settlement of the charges in
these cases is approved as follows, without modification of the
citations (except Citation 3517613, which is redesignated as a nonS&S violation):
Citation

Approved civil Penalty

3517608
3517610
3517611
3517612
3517613
3517614
3517616
3517607
3517609
3517615
3517851
3511971
3517584
3511978
3517842
3517843
3517844
3517847
3517848

$178
127
127
178
127
127
127
127
178
178
178
50
371
227
150
227
178
100
227
$3,182

1609

"Respondent shall pay the above civil penal ties within 30 days
of the date of this Order."

Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, U. s. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
{Certified Mail)
Timothy P. Rosinsky, Es·q., Jackson &
Charleston, WV 25322 (Certified Mail)
jfas

1610

Kelly,

P.

o.

Box

553,

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

22041

SEP 27 1991
IN RE :

CONTESTS OF RESPIRABLE DUST
SAMPLE ALTERATION CITATIONS

MASTER DOCKET NO. 9 1-1

ORDER GRANTING MOTION FOR RECONSIDERATION
ORDER UPHOLDING CLAIM OF PRIVILEGE ASSERTED FOR
CERTAIN DOCUMENTS
ORDER TO PRODUCE NON-PRIVILEGED DOCUMENTS
ORDER TO PRODUCE CERTAIN PRIVILEGED DOCUMENTS
In accordance with my order of September 13, 1991, the
Secretary submitted on September 20, 1991, certain documen ts for
in camera inspec~ion. She also filed a motion for
reconsideration of that part of my order directing production of
documen ts 161 and 176 , and submitted these two documents for in
camera inspection in the event the motion for reconsideration is
granted .
I

MOTION FOR RECONSIDERATION
The Secreta ry argues that document 163 is protected by the
work product privilege and the deliberative process privilege.
She asserts that doc ument 176 is protected by the investigative
privilege.
I have examined both documents , and grant the
Secretary ' s motion for reconsideration.
Document 163 consists of 36 typewritten pages, some with
handwritten changes . The title page is dated April 11, 1991 , and
is headed " Briefing Materials" with eleven subtitles .
Pages 9248
through 9262 constitute a draft of a statement for Secretary of
Labor Lynn Martinto be given before a House Subcommittee on April
15 , 1991 . There are handwritten changes on pages 9255, 9256 ,
9 2 57, and 92 5 9 of the draft . Pages 926 2 through 9265 consist of
a general description of the Department's dust sampling program
and a "chrono logy of events" outlining the history of "tampered
samples" from February 1989 through March 1991. Pages 9266
through 9270 contain proposals from persons outside the
Department for changes in the dust sampling program and the
Department ' s position on those proposals. Pages 9271 through
9275 contain proposals for enforcing " AWC violations" by penalty
assessment , dece rtification, changes . i n the sampling program and
criminal investigations. · Pages 9276 through 9280 have to do with
Department proposals for future action on matters u n related to
the dust tampering changes . These pages are not r elevant to this

1 611

proceeding. Pages 9281 and 9282 are a copy of a letter from
Assistant Secretary Tattersall to the Safety Director of Energy
West Mining Company, December 24, 1990, concerning the latter's
proposal for the use of a helmet ±o control a miner's dust
exposure .
The Secretary argues that the work product privilege is
applicable because the document was prepared after the dust
sampling citations were issued . · But it is clear that it was not
prepared in contemplation of litigation but to brief the
Secretary who was going to testify before Congress. The work
product privilege is inapplicable. With the exception of pages
9266 through 9275, the document is not covered by the
deliberative process privilege. Only those pages comprise
predecisional recommendations or opinions concerning policies
under consideration. I uphold the Secretary's claim of privilege
with respect to pages 9266 through 9275. Pages 9276 through 9280
are irrelevant and therefore not discoverable. The Secretary
will be ordered to produce the rest of the document.
Document 176 is a single page memorandum from the FBI to
MSHA Pittsburgh Technical Support Center dated April 11, 1989,
accompanying 19 respirable dust sample cassettes. The Secretary
asserts that a reference in the upper right hand portion of the
document reveals an investigative technique. As such it is
privileged. The remainder of the document is not privileged .
The Secretary will be ordered to produce the document after
excising the description in the upper right hand corner.
II

OTHER DOCUMENTS INSPECTED IN CAMERA

Document 55 is a copy of a letter from the Criminal Division
of the United States Justice Department to the u.s. Attorney for
the Eastern District of Kentucky dated November 1, 1989,
concerning an MSHA investigation of tampered respirable dust
samples. ·The letter notes that identical letters were sent to 15
other u.s. Attorneys. The Secretary's claim of privilege is
upheld . The document is protected by the work product privilege.
Document 112 is a file concerning an investigation of
possible altered dust samples by a coal mine operator showing
referral to the U.S. Attorney and "progress updates" from March
1989 to May 1991. The document is privileged as part of the
investigative file.
Document 116 is a letter dated January 18, 1991, from
J. Davitt McAteer, Executive Director, Occupational Safety and
Health Law Center to Assistant Secretary Tattersal, enclosing a
copy of a letter from McAteer to Senator Edward Kennedy and a
."Report on the All White Center Problem" prepared by the

1612

Occupational Safety and Health Law Center. ~ There are
unde.r linings and marginal notes in the letters and report,
apparently made by MSHA officials. The letter and accompanying
documents are not privileged. Neither the underlining nor the
marginal notes could be taken as predecisional deliberations by
MSHA personnel. Therefore, the claim of privilege is denied and
the ·secretary will be ordered to produce the entire document.
Document 120 is an unsigned, undated draft "Briefing Paper"
describing the respirable dust standards for coal mines, the
purposes and resul·t s of the standards, and "recent enforcement
activity" concerning the alleged tampered samples. The
description of the recent enforcement activity is factual and
does not include proposals for future action. For this reason it
does not fit the deliberative process privilege. The Secretary
will be ordered to produce the document .
Document 139 is a memorandum dated March 16, 1989,
concerning the direct referral of a case to the u . s. Attorney,
Charleston, West Virginia. This document is privileged as part
of the u.s. Attorney work product, and the investigative file.
Document 143 consists of notes of a meeting on August 8,
1989, between MSHA representatives and the Solicitor of Labor's
office concerning evidence of alleged respirable dust sample
tampering and "a strategy for dealing with the growing scope of
this evidence. " The document appears to be incomplete, but as
presented is privileged as part of the attorney work product.
Document 144 is a sample citation and a one page list of
"issues to be di~cussed during 10/24 meeting . " The latter page
lists a number of options for dealing with alleged violations of
§ 70.209(b).
It includes a discussion of possible criminal
proceedings . The document is privileged as part of the
deliberative process.
Document 154 is a two page, undated, unsigned memorandum
with two headings: "The Peabody Case" and "Current MSHA
Activity." The latter discusses proposed enforcement action
against mine operators after the completion of the criminal
investigation. The document is privileged as part of the
investigative file.
Document 161 consists of two pages of unsigned handwritten
notes headed by "5/13 Dust Meeting:" the notes refer to the
Peabody plea agreement, Congressional oversight hearings and
future enforcement activity, including criminal proceedings . The
document is privileged as part of the investigative file.
Document 169 consists of a single page of handwritten notes
entitled "Meeting with MSA 4/18/91. 11 It does not appear to refer
to the present proceedings or future proceedings, but to a

1613

proposal for new dust capsules.
deliberative process.

It is privileged as part of the

Document 350 is a computer printout showing the number and
percentage of tampered samples from approximately 630 mines. It
does not show any dates. It is privileged as part of the
investigative file.
Document 353 is a computer printout of altered dust samples
with handwritten notations. The handwritten notations indicate
that the count is ·"as . of 10/13/89 11 • Although the Secretary
states that it concerns a criminal investigation, there is
nothing in the document to indicate that. However, it is
privileged as part of the investigative file.
Document 375 is a copy of a memorandum dated March 15, 1989,
from an MSHA investigator and an MSHA industrial hygienist to the
Chief of the MSHA Office of Technical Compliance and
Investigations recommending that a case of alleged dust sample
tampering be referred to the ·u.s. Attorney. This document is
privileged as part of the investigative file and as part of the
attorney work product.
Document 425 consists of copies of 2 pages of partially
illegible notes with dates from 10/30/89 to 12/8/89, apparently
referring to testing of dust filters. The document is privileged
as part of the investigative file.
III
DISCOVERY OF PRIVILEGED DOCUMENTS
Documents for which claims of "executive privilege" or
attorney work product privilege are upheld may nevertheless be
ordered produced if necessary to the opposite party's case. In
such a case, I must consider whether "need for access to the
documents, or any part of the documents, for purposes of this
litigation must be overridden by some higher requirement of
confidentiality." Committee For Nuclear Responsibility, Inc. v.
Seaberg, 463 F.2d 788, 794 (D.C. Cir. 1971), cert. denied, 404
u.s. 917 (1971). In the case of Secretary/Logan v. Bright Coal
Company, Inc., 6 FMSHRC 2520 (1984), the Commission considered
whether disclosure of documents protected by the "informer's
privilege" should be compelled. It ruled that the burden is on
the party seeking disclosure to show that the information is
essential to a fair determination of the case. Factors to be
considered in deciding whether to compel disclosure include
whether the Secretary is in sole control of the material, and
whether the other party has other avenues available to it to
obtain the substantial equivalent of the requested material. In
the cases before me, the material sought is, for the most part,
in the sole possession of the Secretary, and the operators do not

1614

have other means of obtaining it or its equivalent. In addition
to those factors, I will use the following guidelines in deciding
whether to order disclosure of privileged documents:
1. Confidential communications between attorney and client
will not be ordered disclosed.
2. Documents related to continuing criminal investigations
or criminal proceedings will not be ordered disclosed.
3. Other documents for which the claim of executive
privilege was upheld will be ordered disclosed to the extent that
they are factual and deal with matters which are completed rather
than those still pending.
4. Documents for which the claim of work product privilege
was upheld will be ordered disclosed to the extent they are
factual and do not include mental impressions, conclusions,
opinions or legal theories.
Following these guidelines, I will order the Secretary to
disclose the following documents by placing them in the Document
Depository:
Documents 3, 4 and 5. These documents were held privileged
as part of the deliberative process. However, they appear to be
factual in nature although in draft form. They are exclusively
in the Secretary's control, and are clearly relevant and
important, indeed are close to the core issue of this case.
Since the final report has been prepared, these documents relate
to a completed matter. I hold that their disclosure is essential
to a fair determination of this case, and this overrides the
Secretary's interest in confidentiality.
Documents 350 and- 353. These are computer printouts
concerning the alleged tampered samples . They are wholly factual
and do not include mental impressions, conclusions or proposals
for future action.
Documents 365, 366 and 367. These documents do contain
deliberations a nd opinions, but they precede the Report on sample
filter abnormalities (Document -No. 2), and therefore are related
to a completed rather than a pending matter.
Document 401. This is a draft of a study PHTC prepared
prior to the report identified as Document No. 1 For the reasons
given in my discussion of Documents 365, 366 and 367, this
document will be ordered disclosed.
Document 424. This is a draft showing the results of Agency
testing of dust filters preliminarily to the preparation of
Document No. 1. For the same reasons as given for the four prior

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documents, this will be ordered disclosed.
Documents 425. This document apparently relates to testing
of dust filters. There is no indication that it involves pending
or continuing matters.
ORDER
For the above reasons, IT IS ORDERED:
1. The Secretary shall produce the following documents
by placing them in the Document Depository available to all other
parties: Documents 3, 4, 5, 116, 120, 163 (except for pages 9266
through 9275 and 9276 through 9280), 176 (with the description in
the upper right hand corner of the one page document excised),
201, 203, 329, 350, 353, 365, 366, 367, 401, 424 and 425.
2. The Secretary need not produce the following documents:
17, 55, 56, 111, 112, 113, 119, 130, 131, 132, 133, 134, 135,
136, 137, 138, 139, 141, 142, 143, 144, 145, 146, 147, 148, 149,
152, 154, 155, 156, 157, 160, 161, 169, 200, 326, 327, 328, 339,
340,375,384,394,402,403,406,407,426,441.

tf.AA~ ~'l:'dt-vc~/~

J

James A. Broderick
Administrative Law Judge

Distribution:
carl c. Charneski, Esq., Douglas N. White, Esq., U.S. Department
of Labor, Office of the Solicitor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)
Laura E. Beverage, Esq., Jackson & Kelly, P.O. Box 553,
Charleston, WV 25322 (Certified Mail)
Linda Homerding, Esq., Williams & Connolly, 839 17th street,
N.W., Washington, D.C. 20006 (Certified Mail)
Thomas R. Scott, Jr., Esq., Street, Street, Street, Scott &
Bowman, P.O. Box 2100, Grundy, VA 24614 (Certified Mail)
All other counsel and parties Regular Mail

1616

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